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https://www.courtlistener.com/api/rest/v3/opinions/8471909/ | OPINION
PER CURIAM.
Dylan Stephen Jayne, proceeding pro se, appeals from the District Court’s order dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). For the reasons that follow, we will affirm in part and vacate in part the District Court’s order.
On June 21, 2007, Jayne filed a complaint in the United States District Court for the Middle District of Pennsylvania alleging several misdeeds by the Pike County Correctional Facility and several of its employees. The complaint, while lengthy, lacks the structure necessary to assess the exact claims that Jayne attempts to advance. The District Court, however, evaluated the complaint liberally to include several types of claims, including: (1) challenges to his state court prosecution and conviction; (2) allegations that his First Amendment right to meaningful access to the court was violated; (3) allegations that the defendants violated his Eighth Amendment rights by acting with deliberate indifference to his medical needs; and (4) allegations that his prison placement and custodial classification were improper. The District Court granted Jayne’s motion to proceed in forma pau-peris and then determined that all of his claims had fatal defects that warranted sua sponte dismissal.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s sua sponte dismissal of a complaint pursuant to 28 U.S.C. § 1915(e)(2) is plenary. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). If a complaint is vulnerable to dismissal, a district court must first permit the plaintiff to file a curative amendment even if the plaintiff does not seek leave to amend. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004). Dismissal without leave to amend is justified only on grounds of bad faith, undue delay, prejudice, or futility. Id. at 235-36.
To the extent that Jayne seeks to challenge his underlying state prosecution and conviction, the District Court properly found that he could only bring such claims in a 28 U.S.C. § 2254 petition for habeas corpus. The District Court, however, erred in dismissing the remaining claims without providing Jayne with an opportunity to amend his complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). There is no doubt that, in its current form, Jayne’s complaint is wholly inadequate. Nevertheless, given the opportunity to amend, he may be able to properly set forth claims pursuant to 42 U.S.C. § 1983 alleging that his Eighth Amendment rights were violated due to the deliberate indifference to a serious *863medical need, see Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and/or that his custodial classification presented an atypical hardship as is required to establish a constitutional violation under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Further, the district court dismissed Jayne’s claims of denial of access to the courts as time-barred. See Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir.1993); 42 Pa. Cons.Stat. Ann. § 5524. While it appears that some of the complained-of actions occurred outside the limitation period, we cannot say, at this stage, that the facts alleged in the complaint plainly demonstrate that a cause of action is barred by the statute of limitation. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir.1995) (holding that sua sponte dismissal of a complaint is proper only if it appears on the face of the complaint that it is barred by the applicable statute of limitations). Accordingly, because of the dearth of information regarding Jayne’s claims, we cannot conclude that amendment of his complaint will be futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.2007) (observing that, in civil rights cases, “leave to amend must be granted sua sponte before dismissing” the complaint).
Accordingly, we will affirm in part, vacate in part, and remand the matter for further proceedings consistent with this opinion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471911/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Salyer appeals from the tax court’s orders denying, based on lack of jurisdiction, his Motion to Restrain Assessment or Collection, and denying his motion to vacate. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the tax court. See Salyer v. Comm’r, IRS, Tax Ct. No. 08L-14638 (U.S.T.C. Jan. 13, 2009 & entered Mar. 5, 2009; filed Mar. 6, 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471912/ | *870Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Wane Marett appeals from the tax court’s orders imposing sanctions, upholding the Commissioner’s proposed collection activities with respect to his tax liability for the 2000 tax year, and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the tax court. See Marett v. Comm’r, IRS, Tax Ct. No. 06-4048, 2009 WL 151487 (U.S.T.C. Jan 22, 2009); (entered Feb. 25 & filed Feb. 26, 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471915/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stanley A. Cook appeals from the tax court’s orders upholding the Commissioner’s deficiency determination as to Cook’s income tax liability for the 2003 tax year, and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the tax court. See Cook v. Comm’r, IRS, Tax Ct. No. 06-24547, 2008 WL 2917635 (U.S.T.C. July 30, 2008); (Nov. 18, 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471917/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Harold Saunders, Jr., a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing without prejudice his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Saunders v. LaManna, No. 8:08-cv-03333-GRA, 2009 WL 363752 (D.S.C. filed Feb. 9, 2009 & entered Feb. 10, 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478100/ | ORDER
The petitioner having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471918/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William F. Case seeks to appeal the district court’s order dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of ap-pealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Case has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 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.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471920/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dr. Joseph Askew and Joseph Askew, Jr., appeal the district court’s order dismissing their civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Askew v. Wachovia Bank of Delaware, No. 4:08-cv-00065-D (E.D.N.C. May 15, 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471922/ | PER CURIAM: *
AFFIRMED. See 5th Cir. R. 47.6.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471926/ | ORDER
David Estrada, a federal inmate, suffered a stroke in prison and asserts in this civil-rights action that five employees of the federal Bureau of Prisons violated the Eighth Amendment by denying him medical care necessary to aid his recovery. The district court dismissed most of Estrada’s claims at initial screening, see 28 U.S.C. § 1915A, and at summary judgment the court found from the undisputed evidence that only one of the remaining claims had been administratively exhausted by Estrada. On that claim — that the medical director at Estrada’s prison had not authorized enough physical therapy— the district court granted summary judgment on the merits to the defendant. We affirm the judgment.
Estrada suffered a stroke on April 30, 2005, while confined at the federal prison in Oxford, Wisconsin. He was treated at two local hospitals for a total of six days, and then he was moved to a third hospital for three weeks of rehabilitation. On May 26 he was taken back to the prison in Oxford, and for the next month he participated in outpatient physical therapy at a hospital about twice each week. Then, on June 30, 2005, he was transferred to the Federal Medical Center in Rochester, *89Minnesota, where he received physical therapy for over six months. Estrada returned to Oxford in February 2006 but did not resume physical therapy until July 20, after making a request to Dr. James Reed, the medical director at Oxford. In January 2007 Estrada was transferred to the Federal Medical Center in Missouri.
Estrada filed an administrative grievance in September 2006 in which he complained that he had been returned too quickly to Oxford from the local hospital where he received physical therapy after the stroke, and that he was likewise prematurely sent back to Oxford after his stint in Rochester. He insisted that he had not received any physical therapy in the seven months since he returned from Rochester, and he also asserted that Dr. Reed did not evaluate his condition for three months after his return. The warden denied his request for a speedy transfer “to the proper facility to facilitate” recovery. Estrada appealed to the BOP’s Regional Office, this time contending only that he had gone too long without physical therapy; he requested damages in addition to a transfer. When that appeal was rejected, he unsuccessfully appealed to the BOP’s Central Office.
Estrada then took his case to district court. He sought damages from Dr. Reed along with Warden Stephen Hobart, guard Antonio Salas, and health-service administrators Michael Carr and Virginia Jones. At screening the district court allowed Estrada to proceed only with his claims that (1) Reed did not order enough therapy; (2) Reed and Jones failed to monitor his vital signs; (3) Hobart and Salas prevented him from using a cane or wheelchair in his cell; (4) Salas would not give him a table and chair he needed to perform therapy routines in his cell; and (5), in an apparently unrelated incident, Carr and Reed refused to supply him with a splint for a hyper-extended finger. ■
At summary judgment the district court agreed with the defendants that the only claim that had been exhausted properly was Estrada’s contention that Dr. Reed had not procured sufficient physical therapy. The court reasoned that Estrada’s undisputed failure to mention in his administrative appeals the other claims that had survived screening prevented him from pursuing them in court. As for the merits, the court concluded that no jury could reasonably believe that Reed had been deliberately indifferent to Estrada’s need for physical therapy because Reed repeatedly approved his requests.
On appeal Estrada contends that the district court made three procedural errors. First, he argues that the court should have let him amend his complaint after the defendants had filed their answers. But a district court has discretion to deny leave to amend a complaint that has been answered, Fed. R. Civ. P. 15(a)(2), and it does not abuse that discretion by denying a futile amendment. Smart v. Local 702 Int’l Bhd. of Elec. Workers, 562 F.3d 798, 811 (7th Cir.2009); King ex rel. King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 819 (7th Cir.2007). Estrada wanted to add unrelated claims against Reed, Jones, and several new defendants, yet, as the district court noted, where there are multiple defendants, a plaintiff may join only those claims relating to each. See George v. Smith, 507 F.3d 605, 607 (7th Cir.2007). Moreover, several of those claims were based on incidents that occurred in the 1990s. Since the statute of limitations for suits alleging that state officers in Wisconsin committed constitutional violations is six years, Gray v. Lacke, 885 F.2d 399, 409 (7th Cir.1989), and that statute applies to actions against federal officers as well, King v. One Unknown Fed. *90Corr. Officer, 201 F.3d 910, 913 (7th Cir.2000), those new claims also were time-barred. Given this backdrop, the district court did not abuse its discretion in denying the motion.
Second, Estrada argues that the district court abused its discretion by refusing to let him proceed informa pauper-is on several claims that the district court determined were frivolous or failed to state a claim. Estrada apparently assumes that the only question before the court at that point was his financial eligibility for pauper status. See 28 U.S.C. § 1915(a). But that view is mistaken; a district court must screen the complaint of any plaintiff who would like to proceed in forma pauperis and dismiss with prejudice claims that are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2); see Gladney v. Pendleton Cow. Facility, 302 F.3d 773, 775 (7th Cir.2002). And when, as here, the plaintiff is a prisoner seeking redress from employees of a government entity, the district court is required to screen the complaint promptly whether or not the inmate is proceeding in forma pauperis. See 28 U.S.C. § 1915A; Rowe v. Shake, 196 F.3d 778, 781 (7th Cir.1999); Koutnik v. Brown, 456 F.3d 777, 781 n. 1 (7th Cir.2006).
Third, Estrada contends that the district court should have recruited counsel for him because, he says, his legal experience is minimal and his stroke impaired his ability to present his case. We ask whether the district court abused its discretion in concluding, given the difficulty of the case, that Estrada seemed competent to litigate it himself, and even if there was an abuse of discretion, we would reverse only if Estrada could show that he was prejudiced by that error. See Pruitt v. Mote, 503 F.3d 647, 655, 658-59 (7th Cir.2007) (en banc); Jackson v. Kotter, 541 F.3d 688, 700-01 (7th Cir.2008). The district court did not abuse its discretion by concluding that the issues in this case are straightforward and that Estrada was capable of handling the case, even after his stroke. Estrada asserts that, because of his condition, he was unable to prepare his submissions in the district court and relied on a fellow inmate to do so, but far from suggesting that he needed a lawyer to litigate his case competently, his partnership with another inmate indicates that Estrada was able to make his own arrangements so that he could pursue this action. See Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir.1997).
Next, Estrada challenges the dismissal at summary judgment of all but one of his claims for failure to exhaust administrative remedies. He does not disagree with the district court’s observation that his failure to pursue those claims through each step of the BOP’s system was undisputed, but instead he argues for the first time on appeal that the defendants did not adequately plead an exhaustion defense. In their answer to his complaint, the defendants listed four affirmative defenses, among them, “Plaintiff may have failed to exhaust his administrative remedies.” Estrada contends this assertion was too conclusory to comply with the requirement in Fed.R.CivP. 8(c) that a defendant include affirmative defenses in its response to a pleading. But the purpose of Rule 8(c) is to give the plaintiff notice of a potential affirmative defense so that he or she can prepare to rebut it at summary judgment or trial, see Williams v. Lampe, 399 F.3d 867, 871 (7th Cir.2005); Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1377 (7th Cir.1990), and Estrada has not explained why the defendants’ concise warning fails to accomplish that aim. Nothing in the rule or the cases suggests that more was required.
*91Finally, Estrada attacks the grant of summary judgment to Dr. Reed on the claim that Reed refused to order as much physical therapy as Estrada needed. Estrada argues that it was error for the district court to determine, on the one hand, that he stated a claim of deliberate indifference against Reed and, on the other, that he had not established that Reed was deliberately indifferent. But these two positions are not contradictory: the standard for reviewing the adequacy of a complaint differs from that applicable to the review of evidentiary submissions at summary judgment. To state a claim, a plaintiff may rest on his complaint, but to survive summary judgment, the plaintiff must produce enough admissible evidence supporting his claims to establish that there is a genuine issue of material fact. Fed.R.Civ.P. 56(e)(2); Whitman v. Nesic, 368 F.3d 931, 933-34 (7th Cir.2004); Brown v. Budz, 398 F.3d 904, 914 (7th Cir.2005). And a district court’s conclusion that a claim has properly been stated has no effect on its resolution of the merits of that claim. Whitman, 368 F.3d at 933-34; Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 767 (7th Cir.2003).
In any event, we agree with the district court that Estrada did not meet his burden of production on his claim that Dr. Reed refused to order enough physical therapy. To prevail, Estrada needed to submit evidence that Reed acted with deliberate indifference to a serious medical need. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Gil v. Reed, 535 F.3d 551, 556 (7th Cir.2008). This requires a showing that Reed acted with intentional or criminally reckless disregard. See Board v. Farnham, 394 F.3d 469, 478 (7th Cir.2005); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir.2001). But according to the undisputed evidence, every time that Estrada told Reed that he needed further physical therapy, Reed granted his request within days. Instead of challenging the district court’s conclusion on appeal, Estrada switches targets and focuses on the six days that passed between his stroke and the start of physical therapy in the hospital; he now argues that this brief delay is evidence of Reed’s deliberate indifference. This is a new theory. In his administrative filings Estrada complained that Reed ordered a premature end to each round of inpatient therapy — first at the local hospital and then, after a sojourn at Oxford, in Rochester — but he never suggested that Reed waited too long after the stroke to start his therapy. In his argument to the district court, Estrada also bypassed the immediate aftermath of the stroke and took issue only with his access to therapy after he was returned from the hospital to prison. As Estrada did not present this claim to the district court (nor did he exhaust his administrative remedies with respect to it), he has forfeited it. See Domka v. Portage County, 523 F.3d 776, 783 (7th Cir.2008) (holding general attack on due process waiver in district court did not preserve for appeal specific theory that had not been mentioned).
Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471928/ | ORDER
Eric Ellis appeals the district court’s grant of summary judgment on his claim that FedEx Smartpost, Inc., failed to promote him on account of his race, sex and other grounds. We affirm.
Smartpost consolidates and delivers high volumes of low-weight, business-to-consumer packages using the United States Postal Service for final residential delivery. It opened an Indianapolis hub in October 2006 and soon thereafter hired Ellis as Parcel Assistant. As part of his job, Ellis sorted, wrapped, and cut pallets.
Ellis’s grievances against Smartpost stem from its decision to promote other Parcel Assistants instead of him. Because its office had just opened, Smartpost typically created new positions as needed, without any formal application process. Ellis, who referred to himself as a “light-skinned” male, was upset that he was not chosen as a “team leader.” Instead at a pre-shift employee meeting in April 2007, management selected Denise Ham, a white female, and Ben Riley, a white male. Ellis resigned voluntarily the following month. In July Parcel Assistant Shelly Rush, a white female, was promoted.
Ellis filed suit, claiming that Smartpost failed to promote him due to his race, sex, and other grounds in violation of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2. He claimed that Smartpost improperly promoted three white employees, two of them female, instead of him. He contended that he was more qualified because of his education (he had taken college courses), prior mail-handling experience, and experience working with pallets.
The district court granted Smartpost’s motion for summary judgment, finding that Ellis could not establish a prima facie case of discrimination under Title VII based on failure to promote. Specifically, the court found that Ellis had not shown that the position he sought was given to a person outside the protected class who was similarly or less qualified than he. The court noted that the two persons promoted-Riley and Ham-were considered by their supervisor, Kim Shittu (who happened also to be Ellis’s supervisor), to be well qualified. According to Shittu, Smartpost promoted Riley and Ham because of their communication skills, work ethic, positive attitudes, and willingness to seek out additional responsibility. The court discredited Ellis’s self-serving statements about his superior work ethic, especially in light of Shittu’s statement that he “showed very little initiative.” The court noted that it disregarded Rush’s promotion because it occurred after Ellis had left Smartpost.
On appeal Ellis first asserts that the district court did not apply the correct legal standard when it ruled that he failed *94to establish a prima facie case of discrimination. He contends that the court should have applied the standard set forth in a Tenth Circuit case, Simms v. Okla. ex rel. Dept. of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir.1999), which does not require the promoted person to be similarly or less qualified than the plaintiff. It requires only that the “position remained open or was filled with a non-minority.” Id.
But the district court properly followed this circuit’s approach, which has consistently required a plaintiff to show that he was at least as qualified as the promoted employees, see, e.g., Hobbs v. City of Chi, 573 F.3d 454, 460 (7th Cir.2009); Jackson v. City of Chi, 552 F.3d 619, 622 (7th Cir.2009). Ellis made no such showing, as the district court explained, and we decline the invitation to depart from our precedent.
Ellis next argues that the district court should have read his claim as asserting discrimination under 42 U.S.C. § 2000e-2 not just in the promotion process but also in conditions of employment. Although he mentioned harsh work conditions in his complaint, Ellis forfeited this argument by failing to include it when responding to Smartpost’s motion for summary judgment. See Humphries v. CBOCS W., Inc., 474 F.3d 387, 407-08 (7th Cir.2007). And to the extent Ellis asserts that such conditions were imposed in retaliation for a complaint he filed earlier about conditions, see 42 U.S.C.A. § 2000e-3(a), he waived that claim by not addressing it in his complaint. See Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir.2002).
Ellis also argues that the district court should not have credited Smartpost’s reasons for promoting Riley and Ham. He asserts, without explanation, that Smart-post’s reasoning was “post hoc,” and notes that Smartpost had no application process for promotions, let alone any record that he was unable to perform his job. But as the district court found, Ellis presented no evidence that Smartpost’s stated reasons for its promotional decisions were dishonest. See Schuster v. Lucent Techs., Inc., 327 F.3d 569, 577-78 (7th Cir.2003). In any event, the absence of any negative work record for Ellis is irrelevant; as the district court properly concluded, Ellis failed to show that his credentials were so superior to those of Riley and Ham that no reasonable person could have promoted them over him. See Jordan v. City of Gary, Ind., 396 F.3d 825, 834 (7th Cir. 2005).
Finally, Ellis asserts that the district court should have considered two unreported discrimination cases against Federal Express (cited in his response to Smartpost’s motion for summary judgment) to show that Smartpost has a history of discriminatory practices. See Satchell et al. v. FedEx Exp., No. 3:03-cv-2659 (N.D. Cal. notice of removal filed June 6, 2003); EEOC v. FedEx Corp., No. 6:02-cv-1112-JA-DAB (M.D. FI. filed September 27, 2002). But the district court did consider these decisions and found no clear nexus between them and the practices at Smartpost’s Indianapolis office. Ellis did not assert that the plaintiffs in those cases shared any of the same supervisors or management as he did, see, e.g., Williams v. Wendler, 530 F.3d 584, 588 (7th Cir.2008); Keri v. Bd. of Tr. of Purdue Univ., 458 F.3d 620, 630 (7th Cir.2006), and the district court properly found the connection to Smartpost too remote to support any pattern of discrimination.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471930/ | ORDER
Javier Armas-Calvillo has been removed from the United States twice, and after serving his sentence for illegal reentry he’ll have one more to add to his tally. He was first forced to leave after serving a Wisconsin sentence for sexual assault. He snuck back into the country, only to be removed again after being convicted in Wisconsin in 2007 for manufacturing and delivering marijuana. Undeterred, he came back to Wisconsin a third time and was arrested again in 2008 on various drug charges. Soon after this arrest he was indicted for unlawfully reentering the United States following an order of removal, 8 U.S.C. § 1326, an offense to which he pleaded guilty.
A defendant — -like Armas-Calvillo — who was previously deported following a conviction for a felony drug-trafficking offense, faces a 12-level increase in his sentencing guidelines range. U.S.S.G. § 2L1.2(b)(l)(B). Relying on his 2007 drug convictions, the probation officer recommended imposing this guidelines hike. Armas-Calvillo objected, since shortly before sentencing (but well after his second *96removal from the United States) he managed to have the drug convictions vacated. It’s not that Armas-Calvillo was innocent. Rather, he was not properly advised of the immigration consequences of his pleas as required under Wisconsin law. Wis. Stat. § 971.08(2). Noting that at the time of his removal he was a convicted drug trafficker, and relying on our opinion in United States v. Garcia-Lopez, 375 F.3d 586 (7th Cir.2004), the district court rejected this argument and sentenced him to 30 months of imprisonment.
Armas-Calvillo renews this objection before us, but he cannot escape the holding in Garciar-Lopez. In that case, the defendant was deported following a Wisconsin armed robbery conviction before sneaking back into the United States. He also pleaded guilty to illegal reentry and faced a higher guidelines range due to his prior conviction. But — just like Armas-Calvillo — Garcia-Lopez obtained an order vacating his Wisconsin conviction after he had been deported but shortly before sentencing because he received no warning about the immigration consequences of his guilty plea. The district court declined to impose a sentencing increase based on the vacated conviction, and the government appealed. Noting that the plain language of the guidelines indicates that the appropriate inquiry is whether the defendant had been convicted of a crime “at the time of deportation,” we reversed. Id. at 588 (emphasis in original). Armas-Calvillo’s case is on all fours with Garcia-Lopez. At the time of his removal, Armas-Calvillo was a convicted drug-trafficker. The vacation of those convictions, based on a minor procedural error, does nothing to change this fact.
Armas-Calvillo tries to escape this precedent by pointing to 8 U.S.C. § 1101(a)(48)(A), which defines a conviction as a formal judgment of guilt entered by a court. He argues that, since his convictions have been vacated and the presumption of innocence restored, he is no longer convicted, as defined by this statute. But this argument misses the point. The key to the sentencing increase is temporal — the plain language of the guidelines requires the court to assess whether the defendant was removed after a drug-trafficking conviction. When Armas-Calvillo was removed, he had two drug convictions — even as defined by 8 U.S.C. § 1101(a)(48)(A) — on the books. As we noted in Garcia-Lopez, this case might come out differently if the convictions were vacated upon a showing of actual innocence. 375 F.3d at 589. But those weighty concerns are not implicated here, and so we need not address them.
Armas-Calvillo also argues that the district court violated his Sixth Amendment rights when it, rather than the jury, found that he had prior convictions which were absent from the indictment, exposing him to a higher sentence. But the Supreme Court has rejected that argument, Almendarez-Torres v. United States, 523 U.S. 224, 244, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and unless or until it changes course, we are bound by this precedent. See United States v. Stevens, 453 F.3d 963, 967 (7th Cir.2006). Acknowledging the weight of Almendarez-Torres, Armas-Calvillo tries to distinguish his case by again noting that his drug convictions have been vacated. But we have already explained why that argument is unavailing, and mounting it again in this context only raises a distinction without a difference. The district court was required to properly calculate Armas-Calvillo’s sentencing range under the guidelines, United States v. Rivera, 463 F.3d 598, 602 (7th Cir.2006), and considering the vacated convictions was appropriately included in its calculus.
*97Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471932/ | ORDER
After a scuffle with prison guards on June 1, 2003, Sherrell Towns, an Illinois prisoner, was cited for misconduct on June 3 and later disciplined for assaulting a staff member. But in this suit under 42 U.S.C. § 1983, he alleges that the guards attacked him without provocation and falsified the disciplinary report. He also says that he was denied medical care for his injuries. The district court conducted an evidentiary hearing to resolve whether Towns had exhausted his administrative *98remedies, concluded that he did not, and dismissed the lawsuit. Towns appeals.
Towns attached to his complaint copies of two prison grievances, one dated June 1 and the other, June 8, 2003. The first concerns the alleged assault, and the second asserts that the misconduct charge was bogus. The defendants concede that Towns’s prison counselor processed the June 1 grievance as an “informal” grievance and rejected it as unsubstantiated on July 24. Towns says he forwarded this rejection to the prison grievance officer and, after two months passed without a response, sent a copy to the Administrative Review Board, the final level of review. Towns also says that no one answered his June 3 grievance, which he filed directly with the grievance officer (since prison counselors do not deal with disputes about discipline), and so he mailed a copy to the Board on October 2. The Board did not respond to either grievance.
At summary judgment the defendants said nothing about the June 1 grievance. They acknowledged that the June 3 grievance was received but contended that the warden had denied it and that Towns never appealed. The defendants attached a copy of the denial (which conveys, strangely, that the warden — the deciding official— received the June 3 grievance in October 2003 though the grievance officer — the initial reviewer — did not evaluate it until January 2004) and submitted an affidavit from a Department of Corrections employee who attests that she searched the Administrative Review Board’s files and located appeals from Towns before and after 2003 but found no record of “a timely grievance to this office for an issue allegedly occurring in 2003.” It followed, according to the defendants, that Towns did not exhaust his administrative remedies.
After Towns responded with an affidavit tracking the allegations in his complaint, the district court acknowledged the exhaustion dispute and conducted a hearing to resolve it. See Pavey v. Conley, 544 F.3d 739 (7th Cir.2008). At that hearing the defendants asserted, without referring to evidence in the record, that the June 3 grievance was the only one Towns had filed at the institutional level. The defendants then relied solely on the affidavit from the DOC employee who wasn’t able to find a “timely grievance” relating to events in 2003 in the files of the Administrative Review Board. Towns, who participated by telephone, detailed his travails with the June 1 grievance and emphasized that he mailed a copy to the Board after months had passed with no answer. In response, defense counsel fell back on the “no record” affidavit from the DOC employee and insisted that the Board does not ignore grievances. At the same time, though, counsel conceded that a claim by Towns “that at the institutional level he had problems dealing with the grievance would be more credible.”
In ruling for the defendants, the district judge did not say whether he thought Towns was telling the truth that he submitted his grievances then mailed copies to the Administrative Review Board after not receiving a response. Instead, the district court rested its ruling on the affidavit from the DOC employee. The court reasoned that other appeals filed by Towns had made their way to the Board, and so the absence of appeals in this instance must be the fault of Towns. The court thus concluded that Towns had not exhausted his grievances and dismissed the lawsuit.
The Prison Litigation Reform Act, see 42 U.S.C. § 1997e(a), mandates that inmates exhaust administrative remedies “as are available” before suing about prison conditions. Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Macias v. Zenk, 495 F.3d 37, 40-41 (2d *99Cir.2007); Dale v. Lappin, 376 F.3d 652, 655-56 (7th Cir.2004). The Illinois Administrative Code defines the three-step grievance process for state inmates, beginning with an attempt at an informal resolution though a prison counselor, then proceeding to institutional-level review, and culminating in an appeal to the Illinois Department of Corrections. 20 Ill. Admin. Code §§ 504.810(a), 504.850(a). (An inmate may begin directly at the institutional level, however, if grieving a disciplinary report. Id. § 504.810(a).) It was the defendants’ burden to raise failure to exhaust as an affirmative defense and prove that there were remedies available to Towns that he did not use. See Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir.2008); Kaba v. Stepp, 458 F.3d 678, 686 (7th Cir.2006). We review the court’s factual findings for clear error, see Fed.R.Civ.P. 52(a)(6); Bryant v. Rich, 530 F.3d 1368, 1379 (11th Cir.2008), and legal conclusions de novo, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006).
To prevail, the defendants had to establish that Towns bypassed a remedy that was “available” to him. See Pavey, 544 F.3d at 742; Dale, 376 F.3d at 655-56. But the defendants did not establish that Towns ever had an opportunity to appeal these to grievances to the Administrative Review Board, and therefore the district court’s conclusion that he did not appeal to the Board — whether or not that conclusion is sound — is irrelevant.
The DOC employee explains in her affidavit that an inmate may appeal a warden’s adverse ruling “after receiving” the decision. The sensible inference — uncontradicted by the defendants — is that an inmate must have the institutional decision before appealing. But as far as this record shows, Towns never received a ruling from the warden on either grievance. As to the June 3 grievance, the defendants point to the denial that they submitted at summary judgment, but they offer no proof that Towns actually received it. Unlike the form used to convey disciplinary rulings, which bears the date served and the signature of the employee who served it, rulings on grievances do not evidence delivery to the inmate, and the defendants introduced no evidence of actual receipt by Towns or information about how rulings typically are delivered to inmates. All the denial establishes is that the warden eventually made a decision, either in October 2003 or January 2004. Whichever month it was, Towns had not received a decision within the two-month response time required “where reasonably feasible under the circumstances,” 20 III. Admin. Code § 504.830, or even after four months when, by his account, he mailed a copy of the unanswered grievance to the Board.
As to the June 1 grievance, Towns maintains in his affidavit that he mailed it to the grievance officer after his counselor’s rejection, and he spoke at length about this process during the evidentiary hearing. Counsel for the defendants represented that Towns had submitted only the June 3 grievance, but a lawyer’s statement is not evidence. The defendants made no effort to contradict Towns’s affidavit, not even with evidence that a records custodian had conducted a diligent search for the June 1 grievance but found nothing. If anything, counsel undermined the defendants’ exhaustion defense by conceding that Towns might well have encountered problems with the grievance process at the institutional level. And just as the defendants did not dispute that Towns had submitted the June 1 grievance, they did not dispute his affidavit or representations at the hearing that he never got a ruling.
As the record stands, it is undisputed that Towns submitted two grievances *100about his claims, the first dated June 1, 2003, and the other dated two days later. It is also undisputed that he received no reply from prison officials to either grievance. The defendants proved nothing, then, by producing evidence that a DOC employee found no record of an appeal. Towns has never contended that he filed “appeals” with the Administrative Review Board; what he has said all along is that he sent copies of the two grievances to the Board because those grievances had gone unanswered. It comes as no surprise that the DOC employee located no record of an appeal or of “a timely grievance” filed with the Board about the events of June 2003; grievances are sent to the prison’s grievance officer, not the Board, and an appeal cannot be taken without a decision by the warden. The DOC employee’s carefully worded affidavit omits whether she looked for correspondence from Towns other than a “timely grievance.”
At the evidentiary hearing, of course, the district court was not compelled to accept Towns’s word that he submitted his grievances and received no response. But the court did not make a credibility finding; rather, it simply accepted the defendants’ misguided premise that Towns did not exhaust because he did not appeal rulings that he never received. The court offered no other basis for its decision, and though we give great deference to credibility findings based on demeanor, see, e.g., Pinkston v. Madry, 440 F.3d 879, 891 (7th Cir.2006), that same level of deference is not due when a district court relies instead on faulty logic, see Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir.2004). The exhaustion requirement of § 1997e(a) does not require that inmates appeal from unresolved grievances. Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir.2008). It is enough that an inmate exhaust “available” remedies, and a prison system that fails to respond to an inmate’s grievance has made its grievance process “unavailable.” Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002).
Accordingly, we VACATE the dismissal and REMAND for further proceedings. Towns’s pending motion for appointment of appellate counsel is DENIED as unnecessary. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471934/ | Ricardo Villa and Francisco Torres were convicted for their involvement in drug trafficking — Villa following a guilty plea and Torres following a jury trial — and both were sentenced to 360 months’ imprisonment. They appealed, and we vacated both sentences and remanded the cases to the district court for resentencing consistent with post-Booker standards. See United States v. Torres, et al., 216 Fed.Appx. 579 (7th Cir.2007) (unpublished order).
The district judge conducted separate resentencing hearings for Villa and Torres at which he heard from counsel and the defendants. As a result, Villa’s sentence was cut to 276 months while Torres’ sentence was reduced to 246 months. Despite a substantial reduction in their sentences, Villa and Torres appeal their new sentences.
Court-appointed counsel for Villa and Torres have filed motions to withdraw, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Edwards, 777 F.2d 364 (7th Cir.1985). Both attorneys claim that there are no non-frivolous issues requiring appellate review.
The court notified Villa and Torres of their attorneys’ motions and informed both defendants that they could dispute counsel’s characterization of their appeals as frivolous. Villa responded and presented arguments that his sentence was invalid; Torres did not respond.
We have reviewed the records in both appeals, including the transcripts of the original sentencing and resentencing hearings, the Anders briefs submitted by counsel and Villa’s response and agree with counsel that there are no non-frivolous issues for appeal in either case. The district judge properly calculated the applicable guideline ranges, did not err in his factual findings, and imposed reasonable sentences below the range after considering the factors articulated in 18 U.S.C. § 3553(a).
We therefore AFFIRM Villa’s 276-month sentence and Torres’ 246-month sentence. Counsel’s motions to withdraw are GRANTED, and the appeals of both Villa and Torres are DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471936/ | ORDER
Sylvester Williams filed suit under 42 U.S.C. § 1983, claiming that medical staff at the DuPage County Jail were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The district court granted summary judgment to the defendants, and we affirm.
This case centers on Williams’ problems with the medical treatment he received while in jail. The first condition for which he claims he received inadequate care was severe pain in his feet. Before arriving at the jail in April 2005, he had been diagnosed with peripheral neuropathy in his lower extremities and prescribed Amitriptyline for neuropathic pain. Williams informed the jail’s medical staff of his need for Amitriptyline. Nurse Kathe Pava verified Williams’ Amitriptyline prescription with his neurologist and noted in his medical chart that the next nurse on duty should follow up with a jail physician because only physicians have authority to order prescriptions. Later, Dr. Evaristo Aguinaldo, a part-time physician at the jail, examined Williams and found his symptoms to be consistent with neuropa*104thy of the feet. But because he was unfamiliar with peripheral neuropathy, Dr. Aguinaldo decided to get records from Williams’ neurologist before prescribing any medication.
In May 2005, after examining Williams and speaking with his neurologist, Dr. Geraldo Guzman, the jail’s Medical Director, ordered Amitriptyline. When he still had not received Amitriptyline one month later, Williams submitted a written grievance, seeking use of a wheelchair and complaining that the jail’s medical staff was ignoring his foot pain. Deputy Martin Manion,1 a grievance officer at the jail, relied on Dr. Guzman’s assessment that Williams did not need a wheelchair and denied the request. Dr. Guzman, upon learning that Williams had not received the Amitriptyline, resubmitted his order. Williams did not receive his first dose of Amitriptyline until late June or early July 2005.
The second condition for which Williams claims he received inadequate care was an injury to his left eye. In April 2005, Nurse Barbara Fanta examined Williams after he complained of falling in his cell and injuring his left eye, but she found no sign of eye injury. In the following weeks, Dr. Guzman, Dr. Aguinaldo, and Nurse Pava also found no problem with his left eye. Nonetheless, in May 2005, Dr. Guzman referred Williams to the Wheaton Eye Clinic because of his persistent complaints of vision problems in his left eye. In July 2005, an ophthalmologist at the Wheaton Eye Clinic diagnosed Williams with a partially dislocated left lens and performed surgery to remove the lens. The record does not reveal why Williams was not seen at the clinic until July, but the ophthalmologist opined that the outcome of the procedure would have been the same regardless of when Williams received treatment.
In late 2006, Williams sued Dr. Guzman, Dr. Aguinaldo, Nurse Pava, Nurse Fanta, and Deputy Manion for being deliberately indifferent to his foot pain and eye injury. He claimed, first, that the defendants did not give him Amitriptyline until late June or early July 2005 despite knowing since April 2005 that he needed this medication to control severe neuropathic pain in his feet. Second, Williams claimed that the defendants knew that he had injured his left eye but nonetheless delayed providing necessary ophthalmic care.
The district court granted summary judgment to the defendants, concluding that there was nothing in the record, either regarding Williams’ Amitriptyline prescription or his eye appointment, that reflected deliberate indifference. The court found that Deputy Manion reasonably relied on the opinion of medical staff in resolving Williams’ grievance; that the nurses had insufficient involvement in Williams’ medical care, and lacked knowledge that he was not receiving Amitriptyline; that Williams did not establish a serious medical need for Amitriptyline to necessitate Dr. Aguinaldo ordering the medication; and that Dr. Guzman did not know either that Williams was not receiving Amitriptyline after he ordered it in May 2005, or that his appointment with the Wheaton Eye Clinic was delayed.
We review the district court’s decision de novo, construing all factual inferences in Williams’ favor. See Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir.2008); Greeno v. Daley, 414 F.3d 645, 651 (7th Cir.2005). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any *105material fact and that the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c); Dale v. Poston, 548 F.3d 563, 568-69 (7th Cir.2008).
On appeal, Williams argues that the district court incorrectly rejected his deliberate-indifference claim by concluding that he did not have a serious medical need for Amitriptyline. He points to deposition testimony by his neurologist and Dr. Guzman as confirmation that he needed Amitriptyline to treat severe neuropathic pain in his feet. Although we have no precise test to assess when a plaintiffs medical need is sufficiently serious, our standard contemplates a condition that has been diagnosed by a doctor as requiring treatment or one that is so obvious that even a lay person would perceive the need for medical treatment. Greeno, 414 F.3d at 653; Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.1997). Given his neurologist’s prescription for Amitriptyline to treat the pain associated with peripheral neuropathy, we do not question Williams’ serious medical need for the medication.
To establish deliberate indifference, however, a plaintiff must show not only that his medical need was serious but also that “a state official was deliberately, that is subjectively, indifferent.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.2008). Williams contends that Dr. Guzman and Dr. Aguinaldo were deliberately indifferent for failing to act on Nurse Pava’s note for medical follow-up on his Amitriptyline prescription. He insists that the doctors had a duty to read his medical chart, and their failure to exercise this duty establishes deliberate indifference. Williams cannot, however, point to evidence showing that the doctors’ disregard of Nurse Pava’s note reflected the requisite “culpable state of mind.” See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Greeno, 414 F.3d at 653. With no evidence that the doctors knew about the note and deliberately disregarded it, failure to review the nurse’s note is at most negligence, which is insufficient to establish deliberate indifference. See Boyce v. Moore, 314 F.3d 884, 889 (7th Cir.2002) (explaining that guard’s negligent failure to review jail logbooks would not constitute deliberate indifference); Stewart v. Murphy, 174 F.3d 530, 536 (5th Cir.1999) (in certain circumstances, doctor’s failure to read nurse’s notes might constitute negligence but not necessarily deliberate indifference).
Williams then argues that the doctors’ decision to confirm his Amitriptyline prescription with his neurologist raised a triable issue as to whether they deliberately disregarded his continued pain and suffering. But we defer to a medical professional’s treatment decisions “unless ‘no minimally competent professional would have so responded under those circumstances.’” Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir.2008). Williams points to no evidence that might suggest the doctors acted unreasonably by not ordering Amitriptyline before first verifying Williams’ condition and the prescription with his neurologist. See Farmer, 511 U.S. at 844, 114 S.Ct. 1970 (“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.”); Walker v. Peters, 233 F.3d 494, 500 (7th Cir.2000) (approving as reasonable mandatory HIV testing as prerequisite for dispensing of drug to treat HIV/ AIDS).
Williams similarly suggests that the doctors’ delay in providing him Amitriptyline raises a fact issue concerning their deliberate indifference. He argues that the doctors knew of his need for Amitriptyline but nonetheless denied him *106the medication for his first three months in custody, causing him severe pain. It is true that delays in treating painful medical conditions may support a deliberate-indifference claim, Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828-29 (7th Cir.2009); Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir.2002), Gutierrez, 111 F.3d at 1371, but a plaintiff must also show that the defendants deliberately disregarded the harm caused by the delay, Gil v. Reed, 381 F.3d 649, 661-62 (7th Cir.2004); Hines v. Anderson, 547 F.3d 915, 920-21 (8th Cir.2008). Here, however, Williams cannot show that the doctors were aware of the delay in getting him Amitriptyline. Indeed, the record reflects that as soon as Dr. Guzman learned that Williams had not been receiving Amitriptyline, he placed a second order for the medication.
Williams contends that he established a triable issue regarding the doctors’ deliberate indifference to his left-eye injury when they misdiagnosed his eye problem and disregarded the two-month delay in his being seen at the Wheaton Eye Clinic. But even if the doctors misdiagnosed his eye problem, a misdiagnosis is insufficient to satisfy the subjective component of a deliberate-indifference claim because, here, the doctors had no knowledge of any risk to Williams’ left eye. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.2006) (it is not enough to show that a doctor should have known that surgery was necessary; rather, the doctor must know that the surgery was necessary and then consciously disregard that need in order to be held deliberately indifferent); Self v. Crum, 439 F.3d 1227, 1234 (10th Cir.2006). As for the delay in his eye appointment, Williams did not demonstrate that the doctors were aware of any harm caused by the delay, see Hines, 547 F.3d at 920-21, nor did he rebut the opinion of the clinic’s ophthalmologist that the delay in treatment did not affect the outcome of the procedure.
Williams next argues that Nurse Pava and Nurse Fanta were deliberately indifferent by not checking whether doctors had ordered Amitriptyline and by disregarding the delays in his receiving Amitriptyline and seeing an ophthalmologist. But there is no evidence that the nurses acted with any culpable state of mind because they played no part in the doctors’ treatment decisions, and nothing in the record suggests that they had authority to refer inmates to outside specialists. See Johnson v. Snyder, 444 F.3d 579, 586 (7th Cir.2006); Comstock v. McCrary, 273 F.3d 693, 712 (6th Cir.2001); Camberas v. Branstad, 73 F.3d 174, 177 (8th Cir.1995).
Finally, Williams argues that Deputy Manion acted with deliberate indifference by failing to investigate the complaints in his written grievance before denying it. But as the district court explained, Deputy Manion reviewed Williams’ complaints and was entitled to rely on the professional opinions of the jail’s medical staff in responding to the grievance. See Hayes v. Snyder, 546 F.3d 516, 527 (7th Cir.2008); Greeno, 414 F.3d at 657. Because Williams provides no evidence that Deputy Manion had reason to believe he was not receiving adequate medical cai'e, Deputy Manion’s denial of his grievance cannot serve as a basis for a deliberate-indifference claim. See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir.2009); George v. Smith, 507 F.3d 605, 609-10 (7th Cir.2007).
AFFIRMED.
. Deputy Manion is not related to Judge Daniel A. Manion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471938/ | ORDER
Jack Zatz applied for disability insurance benefits, claiming that he is unable to work because of severe back and leg pain. An administrative law judge (“ALJ”) concluded that Zatz is able to perform light work and denied the application. Zatz sought review in the district court, and a magistrate judge, presiding by consent, upheld the ALJ’s decision. Zatz appeals, and we affirm.
At the time of his administrative hearing in March 2001, Zatz was 52 years old. He had worked as a customer-service agent at United Airlines for over 30 years until September 1999, when he injured himself while lifting heavy luggage onto a convey- or belt. He immediately developed pain in his back and right leg, and an x-ray taken during an emergency-room visit three days later revealed a slight dislocation of his lower spine. Zatz was evaluated the following month by Dr. Richard Rabinowitz, an orthopedic specialist, who diagnosed probable radiculopathy (a disorder of the spinal-nerve roots, see Stedman’s Medical Dictionary 1622 (28th ed.2006)) and disc herniation and prescribed physical therapy, lumbar epidurals, and an anti-inflammatory drug. When that course of treatment proved ineffective, Dr. Rabinowitz performed surgery in February 2000, including a partial discectomy and excision of a large conglomeration of epidural veins that had been exerting pressure on a nerve root in Zatz’s lower back.
At a follow-up appointment with Dr. Rabinowitz later that month, Zatz reported that his preoperative back complaints were “completely gone” but that he was still experiencing weakness in his right quadriceps even though his right-leg pain had shown “mild improvement” overall. The doctor placed him on a 28-session physical-therapy plan and advised him to stay off work for an additional 6 weeks. In April 2000, halfway through his therapy regimen, Zatz reported complete relief of his leg pain, although by then he had already applied for disability benefits. Zatz also reported complete relief of his leg numbness in May but complained of *109intermittent pain in his interior thighs. Dr. Rabinowitz observed atrophy of Zatz’s right quadriceps and decreased motor strength in his right leg, and the doctor recommended continued physical therapy and home exercise and ordered Zatz not to work for an additional four weeks.
In May 2000 a state-agency physician reviewed Zatz’s medical file and evaluated his residual functional capacity. The doctor noted that Zatz was recovering from surgery and concluded that by September 2000 he would have the capacity to perform medium work. Specifically, the doctor opined that Zatz would be able to occasionally lift up to 50 pounds, frequently lift 25 pounds, stand and/or walk and sit for a total of 6 hours in an 8-hour workday, and occasionally climb, balance, stoop, kneel, crouch, and crawl. A second state-agency physician reviewed Zatz’s file and concurred with this assessment.
In June 2000 Zatz saw Dr. Rabinowitz again and reported that he continued to have right-thigh pain and that his lower-back pain had returned. Dr. Rabinowitz observed in his notes that an MRI showed evidence of epidural fibrosis (formation of fibrous tissue as a reparative or reactive process, see Stedman’s Medical Dictionary 726 (28th ed.2006)), and spondylolisthesis (slippage of one vertebra onto another, see id. at 1813). The doctor recommended home exercise and authorized Zatz to return to work with a lifting restriction of 20 pounds and a limitation to 6-hour workdays for the next 4 weeks. In August 2000 Zatz saw Dr. Rabinowitz again and reported that his back pain had improved dramatically and he no longer had right-leg pain but that he had weakness in his right quadriceps. The doctor authorized him to return to work on a “light duty basis.”
Zatz continued to report improvement in his back pain, but in October 2000 he complained of weakness and numbing pain in his right thigh and intermittent symptoms in his left thigh. Dr. Rabinowitz referred Zatz to neurologist Donald Kuhlman, and at his first consultation in November 2000, Zatz reported that he was walking up to five miles daily, though his leg tended to “give out” once or twice per mile. Dr. Kuhlman opined that Zatz’s pain was probably the result of prolonged compression by the vascular anomaly that had been removed during his surgery. Dr. Kuhlman evaluated Zatz again in February 2001 and reported “dramatic improvement” in Zatz’s lower-extremity pain with regular use of the drug Neurontin (an antiseizure medication also used to treat neuropathic pain).
At the hearing before the ALJ, Zatz testified that he had not worked since injuring his back. He reported constant lower-back pain but conceded that the Neurontin was “working pretty well” and usually took away some of his leg pain. Zatz testified that he can sit continuously for 30 minutes but then has to stand for 15 minutes before he is able to sit again. He also said that he can stand for 2 hours without a break and lift up to 20 pounds, but can bend only with difficulty and cannot squat at all. Zatz reported that he did leg-strengthening exercises and walked roughly 30 minutes each day before the pain became too great. He testified that he grooms himself without difficulty and is able to do chores such as dusting, sweeping, making the bed, shopping at the grocery store and mall, and vacuuming for short periods. When the ALJ asked Zatz how he spends his days, he reported that he shuttles his 9- and 11-year-old children to school and extracurricular activities, reads, works on his computer, watches television, visits friends, and runs errands. Finally, he testified that United Airlines will not allow him to return to his job with *110a limitation for light work, that he has never performed office work, and that he probably could perform a job where he “could just sit for 30 minutes and then get up and do something else and then come back later and sit.”
The ALJ, applying the five-step analysis for evaluating disability, see 20 C.F.R. § 404.1520(a)(4), concluded, first, that Zatz had not engaged in substantial gainful employment since the onset of his alleged disability. The ALJ next determined that Zatz’s impairments, although severe, did not meet or equal the requirements of any listed impairment. The ALJ then assessed Zatz’s residual functional capacity and concluded that he has no limitations other than an inability to lift over 20 pounds. The ALJ acknowledged that Zatz cannot return to his job as an airline customer-service agent because that position requires lifting more than 20 pounds, but, the ALJ found, Zatz can perform light work. Finally, given Zatz’s age, high-school education, and residual functional capacity for light work, the ALJ concluded that he is not disabled under the Commissioner’s Medical-Vocational Guidelines, see 20 C.F.R. pt. 404, subpt. P, app. 2, tbl.2. The Appeals Council denied review in July 2005, and the district court affirmed in October 2008.
When the Appeals Council denies review, the ALJ’s decision becomes the final decision of the Commissioner. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir.2009). Our review is deferential, and we will uphold the ALJ’s decision so long as it is supported by substantial evidence, meaning “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation marks and citation omitted); see Elder v. Astrue, 529 F.3d 408, 413 (7th Cir.2008).
Zatz first challenges the ALJ’s determination at step three of the five-step analysis that his condition does not meet or equal the requirements of a listed impairment. In explaining his conclusion at step three, the ALJ wrote:
The claimant suffered a back injury in September 1999, and continues to suffer some residuals of that injury. However, although severe, his impairments do not meet or equal the requirements of any impairment listed in Appendix 1 to Sub-part P of the Regulations (20 CFR Part 404). The medical evidence does not include signs and findings satisfying all of the criteria of any section in Listing 1.01 for musculoskeletal impairments so disability cannot be established under section 404.1520(d) of the Regulations.
We have cautioned that an ALJ should mention the specific listings he is considering at step three, Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir.2006), and Zatz thus faults the ALJ for referencing only Listing 1.01 (the title heading for the general category of musculoskeletal impairments) but not Listing 1.04 (the subheading for disorders of the spine). According to Zatz, if the ALJ had specifically examined Listing 1.04, he would have “found some compelling correspondences” between that listing and Dr. Rabinowitz’s preoperative evaluation of his condition.
The argument is without merit. When an ALJ fails to cite any listed impairment and provides only a perfunctory analysis, there is little basis for meaningful judicial review and remand therefore may be required. See Brindisi v. Barnhart, 315 F.3d 783, 785-86 (7th Cir.2003). But an ALJ’s failure to explicitly refer to a particular listing does not require automatic reversal, especially where, as here, the ALJ’s consideration of the listing is apparent from the record. See Rice v. Barnhart, 384 F.3d 363, 369-70 (7th Cir.2004) (declin*111ing to remand because, although ALJ did not specifically reference purportedly relevant listing, vocational expert and applicant’s attorney had both discussed that listing and parties agreed it was the only potentially applicable listing). Here, although the ALJ did not mention Listing 1.04, he explained that the medical evidence did not satisfy the criteria of “any section in Listing 1.01,” indicating that he considered all of that category’s sublistings, including 1.04.
In any event, Zatz has the burden of proving that his condition meets or equals each criterion of a listed impairment, see Ribaudo, 458 F.3d at 583, but he has told us only that there are “compelling correspondences” between Listing 1.04 and Dr. Rabinowitz’s preoperative diagnosis. Listing 1.04 refers to several disorders including herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, and vertebral fractures, but Zatz has not specified which of these impairments resembles his own. And although Zatz seems to assert that the presence of an “epidural ventral mass” noted in Dr. Rabinowitz’s preoperative assessment might be the equivalent of an impairment described in Listing 1.04, that mass was removed during surgery, so we cannot see how the comparison would help him.
Zatz next challenges the ALJ’s conclusion that he has the residual functional capacity required to perform light work. A job qualifies as light work when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 416.967. To perform the full range of light work, a claimant must be able to stand or walk, off and on, for a total of approximately 6 hours of an 8-hour workday, lift up to 20 pounds, and frequently lift or carry objects weighing up to 10 pounds. Id.; SSR 83-10, 1983 WL 31251, at *5-6. Zatz argues that the ALJ failed to scrutinize all of the evidence in the record and did not comply with Social Security Ruling 96-8p, which instructs ALJs to assess a claimant’s work-related abilities on a “ function-by-function basis” before classifying his residual functional capacity in exertional terms (e.g., “light work”). See SSR 96-8p, 1996 WL 374184, at *1. Zatz’s interpretation of SSR 96-8p would require an ALJ to provide a narrative discussion assessing the applicant’s capacity to perform every single work-related function, including sitting, standing, walking, lifting, carrying, pushing, pulling, stooping, climbing, reaching, handling objects, seeing, hearing, speaking, and understanding instructions. If this interpretation was correct, the ALJ’s decision would fall short because he did not specifically address Zatz’s ability to perform each and every work-related function. Instead, the ALJ considered the medical evidence and concluded that Zatz’s only limitation is the inability to lift or carry over 20 pounds.
Although the ALJ could have been more explicit in his findings, his duty under SSR 96-8p is not as onerous as Zatz suggests. A function-by-function assessment of an individual’s limitations ensures that the ALJ does not overlook an important restriction and thereby incorrectly classify the individual’s capacity for work. See SSR 96-8p, 1996 WL 374184, at *4. But an ALJ need not provide superfluous analysis of irrelevant limitations or relevant limitations about which there is no conflicting medical evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.2005); Depover v. Barnhart, 349 F.3d 563, 567-68 (8th Cir.2003); cf. Myers v. Apfel, 238 F.3d 617, 620-21 (5th Cir.2001) (remanding where ALJ failed to provide specific assessment of applicant’s capacity to *112stand, walk, push, or pull despite conflicting medical evidence about those functions).
Zatz testified that he walks 30 minutes each day for exercise and can lift up to 20 pounds without difficulty, stand for 2 hours at a time without a break, and sit with intermittent breaks. Although he testified about back and leg pain, he also said that his medication works “pretty well” and that he spends his days exercising, working on his computer, visiting friends, doing errands such as cleaning, grocery shopping, and going to the mall, and driving his children to their extracurricular activities. The ability to perform minimal activities is not necessarily inconsistent with disabling pain, but Zatz’s daily tasks are more than minimal. Compare Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir.2001) (observing that washing dishes, helping children prepare for school, doing laundry, and making dinner are “minimal” activities), and Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.2000) (concluding that applicant’s activities were not inconsistent with disabling pain where she performed only two hours of chores daily with husband’s assistance and breaks for rest, shopped for groceries three times a month, played cards twice a month, and could walk only three to five blocks without resting), with Johansen v. Barnhart, 314 F.3d 283, 288 (7th Cir.2002) (doubting whether daily schedule of home exercise, grocery shopping, laundry, driving, and walking a mile could be characterized as “minimal”), and Scott v. Sullivan, 898 F.2d 519, 524 & n. 6 (7th Cir.1990) (noting that applicant’s capacity to perform household chores, carry groceries, ride a bike, hunt and fish was inconsistent with disabling back pain). Further, Dr. Rabinowitz had approved Zatz’s return to light-duty work in August 2000, and Dr. Kuhlman, the most-recent doctor to evaluate Zatz, noted in February 2001, the month before the hearing, that Zatz was “doing well” and had reported “dramatic improvement” in his pain.
Zatz has not pointed to any evidence undermining the ALJ’s conclusion that he has no limitations other than the inability to lift more than 20 pounds, nor does he even specify what particular functions the ALJ should have, but did not, explicitly assess. The ALJ built an “accurate and logical bridge” from the evidence to his conclusions, see Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.2008) (internal quotations marks and citation omitted), and we are satisfied that his decision is supported by substantial evidence.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471940/ | ORDER
A jury found Antonio Mendoza guilty of conspiracy to possess and distribute methamphetamine, 21 U.S.C. §§ 846, 841(a)(1), and possession with intent to distribute, id. *114§ 841(a)(1). The district court sentenced him to life imprisonment, the mandatory minimum sentence given the quantity of drugs and Mendoza’s prior felony drug convictions. See id. § 841(b)(1)(A). Mendoza appeals, but his appointed counsel move to withdraw because they cannot identify any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mendoza opposes dismissal of his appeal. See Cir. R. 51(b).
At Mendoza’s request counsel scrutinized the record searching for errors in the jury selection and sentencing proceedings but uncovered no potential defects. Counsel mention this process only to demonstrate that they discharged their duty to review the record for possible appellate claims, and because they conclude that the jury selection and sentencing proceedings yielded no potential issues, we will not further discuss those aspects of Mendoza’s case. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). We instead confine our review to those potential issues evaluated in counsel’s facially adequate brief and Mendoza’s response. See United States v. Sehuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Before trial the government moved in limine to prohibit any reference to two letters written by Hugo Soto, a government witness, regarding Mario Garcia, a defendant in a separate drug case. Soto had first written the government proclaiming Garcia’s innocence, but in his second letter, he asserted that he had lied in the first letter and offered to testify against Garcia. Prosecutors moved to exclude these letters as irrelevant and likely to confuse or prejudice the jury. In an oral ruling, the district court granted the government’s motion without elaboration.
At trial the government called witnesses who testified about Mendoza’s involvement in methamphetamine trafficking in Indianapolis, Indiana. Soto and his wife, Darlene, testified that Mendoza became their methamphetamine supplier in 2001. Darlene said that after she collected orders from buyers, her husband would contact Mendoza to arrange delivery of the drugs. Soto, Darlene, and Darlene’s mother, Wanda McQueen, all recounted that they had received deliveries of up to a pound from Mendoza’s brother Jose, his brother-in-law, or another man named “Longoria.” The witnesses stated that exchanges were made in public places such as grocery stores and at the bar Soto owned in south Indianapolis. In addition, Soto, Darlene, and McQueen testified that they picked up drugs at one of the houses Mendoza used to process methamphetamine. During one of those drug runs, McQueen recounted, Jose was at the house and methamphetamine was cooking on the stove. Officer Steven Swarm of the Indianapolis Police Department confirmed that utility bills for the several houses associated with Mendoza’s drug operations were registered in the names of his wife, Jose, or his brother-in-law.
In January 2002 Jason Johnson, a government informant, contacted Darlene to buy three ounces of methamphetamine and, if those drugs were satisfactory, an additional pound. According to Darlene, she saw Soto use her cell phone to call Mendoza to relay Johnson’s order. Officer Swarm verified from telephone records that a call was made from Darlene’s phone to a cell phone registered to Mendoza shortly after Johnson had contacted Darlene. Johnson testified that the following night he and Bobbie James, an undercover police officer, received their three-ounce order from Soto outside of his bar. Johnson said that he and Officer James later went into the bar to retrieve the remaining *115pound of drugs. Johnson and Darlene confirmed that Mendoza and his brother-in-law were also at the bar that night and that Mendoza sat alone while his brother-in-law left the bar with Soto to pick up the drugs intended for Johnson and Officer James. James could not remember seeing Mendoza, but another police officer who was conducting surveillance testified that a car matching the description of Mendoza’s pulled into the bar’s parking lot on the night of the controlled buy. According to Officer James, after Soto and Mendoza’s brother-in-law returned to the bar, Darlene met Johnson in a back room and handed over one pound of methamphetamine. Johnson, in turn, paid Soto for the drugs. Darlene testified that she then saw Soto and Mendoza go to the bar’s kitchen where Soto handed over Johnson’s money.
The government presented evidence of additional controlled buys between government informants and the Sotos. Mendoza did not testify or present evidence at trial. During closing argument, his lawyer attacked the credibility of the government’s witnesses, emphasizing the fact that the witnesses’ plea agreements made cooperation with the government mandatory and that they had received reduced sentences in exchange for their cooperation.
The jury found that the conspiracy and possession counts involved 500 or more grams of methamphetamine. At sentencing Mendoza made no objections to the presentence investigation report. Given the amount of drugs and Mendoza’s two prior felony drug convictions, the district court imposed the mandatory sentence of life imprisonment on each count. See 21 U.S.C. § 841(b)(1)(A).
One possible argument evaluated by counsel is whether the district court abused its discretion by prohibiting mention of Soto’s letters about Garcia. Rule 608(b) of the Federal Rules of Evidence bars extrinsic evidence of conduct bearing on a witness’s character for truthfulness, but a trial judge has discretion to allow cross-examination about such conduct. Fed.R.Evid. 608(b); United States v. Holt, 486 F.3d 997, 1002 (7th Cir.2007). Rule 403 establishes the standard for the district court’s exercise of discretion in evidentiary matters and permits even relevant evidence to be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion. Fed.R.Evid. 403; United States v. Seymour, 472 F.3d 969, 971 (7th Cir.2007). We review evidentiary rulings for abuse of discretion, but even when error is found, we will not reverse if the error was harmless. United States v. Woods, 556 F.3d 616, 620 (7th Cir.2009); United States v. Bonty, 383 F.3d 575, 579 (7th Cir.2004).
Here, the government moved to exclude Soto’s about-face concerning Garcia on the grounds that this information was irrelevant and, even if relevant, would be prejudicial and confusing to the jury. In granting the government’s motion, the district court did not specify which evidentiary rules justified excluding Soto’s letters about Garcia. But we have held that district courts “retain wide latitude to impose reasonable limitations on cross-examination based on concerns about harassment, prejudice, confusion of the issues or interrogation that is only marginally relevant.” United States v. Saunders, 166 F.3d 907, 920 (7th Cir.1999). Our review of the district court’s exercise of discretion in limiting cross-examination is informed by whether the defendant had a “reasonable chance” to discredit the witness and pursue his own theory of the case. United States v. Williamson, 202 F.3d 974, 978 (7th Cir.2000). In this case Mendoza’s lawyer tried to discredit Soto by asking him about his plea agreement, which made *116cooperation mandatory, and the reduced sentence he received in exchange for his testimony. Pressing him to explain why he exonerated Garcia until striking a deal with the government might have assisted counsel’s cross-examination, see United States v. Skelton, 514 F.3d 433, 443-44 (5th Cir.2008); United States v. McGee, 408 F.3d 966, 979-82 (7th Cir.2005), but even if we were to conclude that counsel should have been permitted to inquire about the letters while questioning Soto, we would also conclude that Mendoza was not harmed by the court’s ruling because Soto’s testimony was duplicative of, and corroborated by, the testimony of Darlene, McQueen, and Johnson. See United States v. Beck, 557 F.3d 619, 621 (8th Cir.2009); United States v. Span, 170 F.3d 798, 803 (7th Cir.1999).
The only other argument counsel considers is whether Mendoza could challenge the sufficiency of the evidence supporting his convictions. We view the trial evidence in the light most favorable to the government and will uphold the jury’s verdict if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see United States v. Bailey, 510 F.3d 726, 733 (7th Cir.2007). A conspiracy conviction under § 846 requires an agreement between two or more persons to fulfill a particular criminal objective, such as possessing or distributing drugs. United States v. Kincannon, 567 F.3d 893, 897 (7th Cir.2009); United States v. Colon, 549 F.3d 565, 569 (7th Cir.2008). For a possession conviction under § 841, even without proof of actual possession, a defendant may nevertheless be held accountable on a theory of constructive possession, which may be established by circumstantial evidence. United States v. Campbell, 534 F.3d 599, 605-06 (7th Cir.2008); United States v. Parra, 402 F.3d 752, 761 (7th Cir.2005). Soto, Darlene, and McQueen all testified that Mendoza utilized Jose, Longoria, and his brother-in-law to deliver his methamphetamine. McQueen also recounted seeing Jose monitoring the manufacture of methamphetamine at one of the houses Mendoza used for processing drugs. In addition, Johnson, Darlene, and two police officers testified to Mendoza’s role in supplying the methamphetamine for the controlled buy in January 2002. Based on this evidence, it would be frivolous to argue that no rational jury could have concluded beyond a reasonable doubt that Mendoza conspired with at least Jose, Longoria, and his brother-in-law to possess methamphetamine for distribution and that he possessed methamphetamine in January 2002 as charged.
In his Rule 51(b) response, Mendoza first argues that his statutory right to a speedy trial was violated because of the two-and-one-half-year delay between indictment and trial. But this argument is frivolous because Mendoza waived his rights under The Speedy Trial Act by failing to move to dismiss the indictment, see 18 U.S.C. § 3162(a)(2); United States v. Gearhart, 576 F.3d 459, 462 (7th Cir.2009).
Mendoza then proposes to argue that trial counsel was ineffective for requesting continuances and for failing to object to the government’s use of a prior conviction at trial and at sentencing. Challenges to counsel’s performance, however, are best brought on collateral review and not direct appeal. Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Recendiz, 557 F.3d 511, 531 (7th Cir.2009). This is because the trial record in many cases will not reveal the facts necessary to decide whether counsel’s ac*117tions were supported by a reasonable strategy. Massaro, 538 U.S. at 505, 123 S.Ct. 1690; United States v. Jackson, 546 F.3d 801, 814 (7th Cir.2008). In addition, a defendant who pursues an ineffective-assistance claim on direct appeal cannot relitigate the claim on collateral attack unless there has been an intervening change of law or a discovery of previously withheld evidence. United States v. Peleti, 576 F.3d 377, 383 (7th Cir.2009); Peoples v. United States, 403 F.3d 844, 846 (7th Cir.2005). Thus, we would decline to consider whether Mendoza could maintain a non-frivolous ineffective-assistance claim.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471942/ | ORDER
Following a jury trial, James Thomas was convicted of possession of a firearm after a felony conviction, see 18 U.S.C. § 922(g)(1), and the district court sentenced him under the Armed Career Criminal Act to 240 months’ imprisonment, see id. § 924(e)(1). Thomas filed a notice of appeal. Appointed counsel, however, is unable to discern a nonfrivolous basis for the appeal and moves to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Thomas to comment on counsel’s submission, see Cir. R. 51(b), but he has not responded. We limit our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
On the evening of March 30, 2006, Crystal Johnson was walking home when she saw Thomas, whom she knew as a friend from the neighborhood. Thomas, however, immediately shoved her against the wall of a nearby garage, held a gun to her neck, and said, “Bitch, this is your calling card.” Just as this was happening, Johnson spotted a passing police car and yelled for help, shouting that Thomas had a gun. The officers stopped their car, and Officer Mike LaChance saw Thomas walk away and throw the gun over a fence. Officer LaChance gave chase and caught Thomas, while his partner, Officer Edward Garcia, retrieved the fully loaded gun.
*119At trial the parties stipulated that Thomas had a prior felony conviction and that the gun had traveled in interstate commerce, leaving the government to prove only that Thomas had possession of the gun. See United States v. Caldwell, 423 F.3d 754, 757 (7th Cir.2005). The two officers and Johnson all testified that they saw Thomas holding the gun. An expert in latent fingerprint identification testified that, as is common with firearms, only partial prints, impossible to identify, were found on the gun. Thomas’s defense focused on the credibility of the three eyewitnesses; counsel highlighted inconsistencies in the officers’ testimony and argued that, because Johnson was a drug user with criminal charges pending against her at the time of the incident, her testimony was unreliable. The jury believed the witnesses anyway, and found Thomas guilty. The district court denied his posttrial motions for mistrial and acquittal.
At sentencing the district court determined that, in holding the gun to Johnson’s head, Thomas had used the gun in connection with a crime of violence, and that, based on his prior convictions, he qualified for sentencing as an armed career criminal, see 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4(a), (b)(3)(A). The court therefore applied the resulting offense level of 34 and criminal histoiy category of VI to reach a guidelines imprisonment range of 262 to 327 months. Next the court considered the mitigating evidence— Thomas’s strong family ties, troubled childhood, educational and emotional difficulties, and recent efforts to seek treatment — and imposed a below-guidelines sentence of 240 months’ imprisonment.
Counsel first considers whether Thomas could argue that the trial evidence is insufficient to support his conviction. We would overturn the jury’s verdict only if, after viewing the evidence in the light most favorable to the government, no rational jury could have found him guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Moore, 572 F.3d 334, 337 (7th Cir.2009). Counsel postulates that Thomas might challenge the credibility of the witnesses, argue that the absence of his prints on the gun refutes their testimony, or submit additional evidence to show that the gun was originally purchased by another individual. Counsel is correct, however, to reject each possibility as frivolous. Three eyewitnesses testified that they saw Thomas with the gun in his hand and saw him throw it over the fence, where it was immediately recovered. We will not second-guess a jury’s determination to credit a witness unless the testimony was “so implausible that it cannot be trusted as a matter of law.” United States v. Calabrese, 572 F.3d 362, 369 (7th Cir.2009). At trial Thomas pointed to Johnson’s previous drug use and to the officers’ minor inconsistencies about the clothing Thomas was wearing, about whether they drove past or stopped when they first saw him with Johnson, and about whether he walked or ran from the scene. But none of this would render the witnesses’ testimony incredible as a matter of law. See id. (“Neither inconsistencies nor motive to fabricate are capable of rendering testimony legally incredible.”); United States v. Williams, 553 F.3d 1073, 1080 (7th Cir.2009) (refusing to second-guess jury’s decision to believe witnesses who had prior felony convictions, a history of lying, and motive to testify against the defendant). And although the police found no identifiable prints on the gun, the government’s expert testified that identifiable prints are rarely recovered from firearms. Finally, counsel’s supposition that Thomas might ask this court to consider additional, non-record evidence would also be a nonstarter, as we would not consider evidence *120that the jury did not have. See Moore, 572 F.3d at 337; see also Ruvalcaba v. Chandler, 416 F.3d 555, 563 (7th Cir.2005) (noting that “we generally decline to supplement the record on appeal with materials that were not before the district court”).
Counsel next considers whether Thomas could argue that the prosecutor committed misconduct during closing argument when, in describing Thomas’s actions, he stated, “All the time bad people attack other people that might be considered to be bad people.” Thomas’s counsel immediately objected, and the trial court instructed the jurors that argument by counsel is not evidence and that they could consider only the evidence presented from the witness stand. Given Thomas’s objection, we would review the court’s ruling for an abuse of discretion. See United States v. Clark, 535 F.3d 571, 580 (7th Cir.2008). “[Ijmproper comments during closing arguments rarely rise to the level of reversible error,” United States v. McMath, 559 F.3d 657, 667 (7th Cir.2009) (internal quotation marks and citation omitted), and in evaluating such comments, we consider whether the remarks in isolation were improper, and, if so, we then evaluate the remarks in the context of the entire record and assess whether they caused the defendant prejudice by denying him a fair trial, United States v. Myers, 569 F.3d 794, 798 (7th Cir.2009); Clark, 535 F.3d at 580. Here, to the extent that the prosecutor’s remark could be interpreted as implying that Thomas was “bad” and had a propensity to attack other people, it was improper. Considering the remark in context, however, we could not conclude that he was prejudiced. The prosecutor’s remark was made during the government’s rebuttal argument, and although Thomas did not have an opportunity to rebut it, defense counsel invited the remark by improperly arguing that Johnson, a drug user, perhaps “had crack in her pocket” or might have been high, giving her motive to lie about the assault. See Kunz v. DeFelice, 538 F.3d 667, 677 (7th Cir.2008) (explaining that evidence of drug use may be used to impeach a witness’s recollection of events but not for the impermissible “inference that drag users tend to lie”); United States v. Robbins, 197 F.3d 829, 843 (7th Cir.1999) (concluding that defense attacks on witness credibility invited prosecutor’s attempt to “right the scale”); United States v. Magana, 118 F.3d 1173, 1196 (7th Cir.1997) (suggesting that defendant -will have difficulty establishing prejudice “if defense counsel strikes the first blow” and “the prosecutor attempts to even the scales by making a reasonable but otherwise improper response”). The prosecutor’s comment did not misstate the evidence or implicate a specific right, and the court mitigated the effect of the comment by promptly instructing the jury to consider only the evidence presented. See Clark, 535 F.3d at 581; Robbins, 197 F.3d at 843. Jurors are presumed to follow their instructions, and counsel cannot identify any reason to believe that the jury was so tainted by the comment that the limiting instruction was ignored. See Clark, 535 F.3d at 581; United States v. Serfling, 504 F.3d 672, 677 (7th Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 1718, 170 L.Ed.2d 525 (2008). Moreover, the evidence weighs strongly against Thomas given that all three eyewitnesses saw him with the gun. See Clark, 535 F.3d at 580-81; Serfling, 504 F.3d at 677 (explaining that weight of the evidence is “the factor ‘most important’ to the prejudice inquiry”). In light of this evidence and the court’s curative instruction, we agree with counsel that arguing that the comment prejudiced Thomas would be pointless.
Counsel also evaluates whether Thomas could contend that the district *121court erred in refusing to exclude as unduly prejudicial Johnson’s testimony that Thomas threatened her with the gun. We review rulings on objections under Federal Rule of Evidence 403 for abuse of discretion. United States v. Samuels, 521 F.3d 804, 813 (7th Cir.2008). Counsel posits that Johnson’s testimony made the incident sound frightening and was unnecessary, but this testimony was probative of Johnson’s credibility: she not only saw the gun in Thomas’s hand, but she saw it up close to her face and felt it against her neck. “ ‘Rule 403 was never intended to exclude relevant evidence simply because it is detrimental to one party’s case.’ ” United States v. Perkins, 548 F.3d 510, 515 (7th Cir.2008) (quoting United States v. Dennis, 497 F.3d 765, 769 (7th Cir.2007)). Rather, the relevant inquiry is whether any unfair prejudice from the evidence substantially outweighs its probative value such that the jury may be induced to decide the case on emotional grounds or some other improper basis. See id.; United States v. Harris, 536 F.3d 798, 809 (7th Cir.2008). And here, as the result of a separate motion in limine, the government refrained from eliciting testimony about Johnson’s emotional state during the assault. We therefore agree with counsel that a claim about this testimony would be frivolous because the possible prejudice to Thomas did not substantially outweigh the probative value of Johnson’s testimony.
Finally, as to the trial, counsel assesses whether Thomas could challenge the denial of his motion to call the prosecutor as a witness to impeach Officer La-Chance’s testimony that he remembered the clothing Thomas was wearing. The district court concluded that the prosecutor’s testimony was unnecessary because Thomas could cross-examine Officer La-Chance, and, indeed, Thomas successfully obtained an admission that the officer had not told the prosecutors about the clothing before trial. See United States v. Ashman, 979 F.2d 469, 493-94 (7th Cir.1992) (upholding district court’s denial of motion to call prosecutor where information was available from another source). Thus, any argument that the court’s ruling was an abuse of its discretion would be frivolous.
As to Thomas’s sentence, counsel questions whether he might argue that the district court committed “minor errors” in the course of sentencing. But the court committed no error at all. As the sentencing transcript shows, the parties agreed and understood that Thomas was being sentenced under U.S.S.G. § 4B1.4 as an armed career criminal. The court found that Thomas had assaulted Johnson with the gun, and although, as counsel notes, the court stated that “a 2K2.1(b)(6) finding is appropriate here,” it went on to apply the correct offense level and criminal history category under the armed career criminal guideline for a defendant who used the firearm in connection with a crime of violence, see U.S.S.G. § 4B 1.4(b)(3)(A), (c)(2); United States v. Vallejo, 373 F.3d 855, 859-60 (7th Cir.2004).
Last, counsel considers whether Thomas could argue that his trial lawyer was ineffective. As counsel acknowledges, we rarely consider a claim of ineffective assistance on direct appeal because the appellant cannot develop a factual record and must rely solely on the trial record, from which ineffective assistance is rarely apparent. See United States v. Recendiz, 557 F.3d 511, 531-32 (7th Cir.), petition for cert. filed (U.S. Aug. 21, 2009) (No. 09-238). Appellate counsel points to the trial lawyer’s statement in the record that she limited her attack on Johnson “in many areas that would have been inflammatory” because of “certain things that the defense knew and chose not to go into.” This *122statement, counsel suggests, could be read to suggest that the trial lawyer should have brought forth “even more damaging evidence” to attack Johnson’s credibility. But none of this evidence is currently in the record, nor is there any evidence that the decision to limit the attack on Johnson was anything but a strategic move. See id. at 532; United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005). Thus, a claim that trial counsel’s ineffectiveness is obvious on the face of the trial record would also be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471949/ | MEMORANDUM **
Jose Abel Arguello Valera and Ana Guadalupe Arguello, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying their motion to reopen removal proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo claims of constitutional violations in immigration proceedings. Itunibarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
The IJ did not abuse her discretion in denying petitioners’ motion to reopen for failure to establish “exceptional circumstances.” See 8 U.S.C. § 1229a(e)(l).
It follows that the denial of petitioners’ motion to reopen did not violate due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a due process violation).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471921/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dr. Joseph Askew and Joseph Askew, Jr., appeal the district court’s order dismissing their civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Askew v. Wachovia Bank of Delaware, No. 4:08-cv-00065-D (E.D.N.C. May 15, 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471923/ | PER CURIAM: *
AFFIRMED. See 5th Cir. R. 47.6.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471925/ | PER CURIAM: *
David Heston Gary appeals his guilty plea conviction for possession of a firearm during and in relation to a drug trafficking offense. He argues that the district court erred by accepting his guilty plea because the factual basis did not establish that he carried a weapon in relation to an underlying drug trafficking crime.
*955Gary asserts that the issue should be reviewed for plain error because it was not raised in the district court. To show plain error, the defendant must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If the defendant makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.
The Government’s factual basis showed that, following a traffic stop, distributable quantities of narcotics and a firearm were found in a closed compartment of the vehicle driven by Gary. However, Gary maintained at rearraignment that the vehicle belonged to his niece and that he was not aware that there was a firearm in the vehicle until, while being pursued by police due to a traffic violation, he opened the compartment to hide the drugs.
The record shows that Gary pleaded guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). An Alford plea is one in which the defendant maintains his innocence but agrees to plead guilty. See Alford, 400 U.S. at 37, 91 S.Ct. 160 An Alford plea is constitutionally valid (i.e., voluntary and the result of a knowing and intelligent choice by the defendant), so long as there is a factual basis for the plea, and the court inquires into the conflict between the defendant’s pleading guilty, yet maintaining innocence. Id. at 38 n. 10, 91 S.Ct. 160; United States v. Jack, 686 F.2d 226, 230 (5th Cir.1982). The court may find the plea to have been knowing and intelligent if the evidence presented substantially negates the claim of innocence. Alford, 400 U.S. at 37-38, 91 S.Ct. 160.
Gary’s guilty plea in this matter satisfies the requirements for an Alford plea. The district court inquired extensively into the apparent conflict between Gary’s assertion that he was only belatedly aware of the firearm’s presence and his entry of a guilty plea to the charge of possessing a firearm during and in relation to a drug trafficking offense. As the district court determined, the Government had evidence that pointed strongly toward Gary’s guilt on charges related to the firearm. Moreover, any claim of lack of knowledge of the firearm on the night in question would have been undermined by evidence that Gary had previously driven the vehicle.
Further, Gary’s statements at rearraignment demonstrate that he knew that he was pleading guilty because the Government had evidence to negate substantially his assertion of innocence and that he made a knowing and intelligent decision to plead guilty rather than to stand trial. By pleading guilty Gary reduced his total offense level by securing a three-level reduction for acceptance of responsibility, an adjustment Gary would likely not have received had he exercised his right to a trial. See U.S.S.G. § 3E1.1, comment, (n.2).
Gary has not shown that the district court erred, plainly or otherwise, in accepting his guilty plea. See Alford, 400 U.S. at 37-38 & n. 10, 91 S.Ct. 160. The judgment of the district court is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471927/ | ORDER
David Estrada, a federal inmate, suffered a stroke in prison and asserts in this civil-rights action that five employees of the federal Bureau of Prisons violated the Eighth Amendment by denying him medical care necessary to aid his recovery. The district court dismissed most of Estrada’s claims at initial screening, see 28 U.S.C. § 1915A, and at summary judgment the court found from the undisputed evidence that only one of the remaining claims had been administratively exhausted by Estrada. On that claim — that the medical director at Estrada’s prison had not authorized enough physical therapy— the district court granted summary judgment on the merits to the defendant. We affirm the judgment.
Estrada suffered a stroke on April 30, 2005, while confined at the federal prison in Oxford, Wisconsin. He was treated at two local hospitals for a total of six days, and then he was moved to a third hospital for three weeks of rehabilitation. On May 26 he was taken back to the prison in Oxford, and for the next month he participated in outpatient physical therapy at a hospital about twice each week. Then, on June 30, 2005, he was transferred to the Federal Medical Center in Rochester, *89Minnesota, where he received physical therapy for over six months. Estrada returned to Oxford in February 2006 but did not resume physical therapy until July 20, after making a request to Dr. James Reed, the medical director at Oxford. In January 2007 Estrada was transferred to the Federal Medical Center in Missouri.
Estrada filed an administrative grievance in September 2006 in which he complained that he had been returned too quickly to Oxford from the local hospital where he received physical therapy after the stroke, and that he was likewise prematurely sent back to Oxford after his stint in Rochester. He insisted that he had not received any physical therapy in the seven months since he returned from Rochester, and he also asserted that Dr. Reed did not evaluate his condition for three months after his return. The warden denied his request for a speedy transfer “to the proper facility to facilitate” recovery. Estrada appealed to the BOP’s Regional Office, this time contending only that he had gone too long without physical therapy; he requested damages in addition to a transfer. When that appeal was rejected, he unsuccessfully appealed to the BOP’s Central Office.
Estrada then took his case to district court. He sought damages from Dr. Reed along with Warden Stephen Hobart, guard Antonio Salas, and health-service administrators Michael Carr and Virginia Jones. At screening the district court allowed Estrada to proceed only with his claims that (1) Reed did not order enough therapy; (2) Reed and Jones failed to monitor his vital signs; (3) Hobart and Salas prevented him from using a cane or wheelchair in his cell; (4) Salas would not give him a table and chair he needed to perform therapy routines in his cell; and (5), in an apparently unrelated incident, Carr and Reed refused to supply him with a splint for a hyper-extended finger. ■
At summary judgment the district court agreed with the defendants that the only claim that had been exhausted properly was Estrada’s contention that Dr. Reed had not procured sufficient physical therapy. The court reasoned that Estrada’s undisputed failure to mention in his administrative appeals the other claims that had survived screening prevented him from pursuing them in court. As for the merits, the court concluded that no jury could reasonably believe that Reed had been deliberately indifferent to Estrada’s need for physical therapy because Reed repeatedly approved his requests.
On appeal Estrada contends that the district court made three procedural errors. First, he argues that the court should have let him amend his complaint after the defendants had filed their answers. But a district court has discretion to deny leave to amend a complaint that has been answered, Fed. R. Civ. P. 15(a)(2), and it does not abuse that discretion by denying a futile amendment. Smart v. Local 702 Int’l Bhd. of Elec. Workers, 562 F.3d 798, 811 (7th Cir.2009); King ex rel. King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 819 (7th Cir.2007). Estrada wanted to add unrelated claims against Reed, Jones, and several new defendants, yet, as the district court noted, where there are multiple defendants, a plaintiff may join only those claims relating to each. See George v. Smith, 507 F.3d 605, 607 (7th Cir.2007). Moreover, several of those claims were based on incidents that occurred in the 1990s. Since the statute of limitations for suits alleging that state officers in Wisconsin committed constitutional violations is six years, Gray v. Lacke, 885 F.2d 399, 409 (7th Cir.1989), and that statute applies to actions against federal officers as well, King v. One Unknown Fed. *90Corr. Officer, 201 F.3d 910, 913 (7th Cir.2000), those new claims also were time-barred. Given this backdrop, the district court did not abuse its discretion in denying the motion.
Second, Estrada argues that the district court abused its discretion by refusing to let him proceed informa pauper-is on several claims that the district court determined were frivolous or failed to state a claim. Estrada apparently assumes that the only question before the court at that point was his financial eligibility for pauper status. See 28 U.S.C. § 1915(a). But that view is mistaken; a district court must screen the complaint of any plaintiff who would like to proceed in forma pauperis and dismiss with prejudice claims that are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2); see Gladney v. Pendleton Cow. Facility, 302 F.3d 773, 775 (7th Cir.2002). And when, as here, the plaintiff is a prisoner seeking redress from employees of a government entity, the district court is required to screen the complaint promptly whether or not the inmate is proceeding in forma pauperis. See 28 U.S.C. § 1915A; Rowe v. Shake, 196 F.3d 778, 781 (7th Cir.1999); Koutnik v. Brown, 456 F.3d 777, 781 n. 1 (7th Cir.2006).
Third, Estrada contends that the district court should have recruited counsel for him because, he says, his legal experience is minimal and his stroke impaired his ability to present his case. We ask whether the district court abused its discretion in concluding, given the difficulty of the case, that Estrada seemed competent to litigate it himself, and even if there was an abuse of discretion, we would reverse only if Estrada could show that he was prejudiced by that error. See Pruitt v. Mote, 503 F.3d 647, 655, 658-59 (7th Cir.2007) (en banc); Jackson v. Kotter, 541 F.3d 688, 700-01 (7th Cir.2008). The district court did not abuse its discretion by concluding that the issues in this case are straightforward and that Estrada was capable of handling the case, even after his stroke. Estrada asserts that, because of his condition, he was unable to prepare his submissions in the district court and relied on a fellow inmate to do so, but far from suggesting that he needed a lawyer to litigate his case competently, his partnership with another inmate indicates that Estrada was able to make his own arrangements so that he could pursue this action. See Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir.1997).
Next, Estrada challenges the dismissal at summary judgment of all but one of his claims for failure to exhaust administrative remedies. He does not disagree with the district court’s observation that his failure to pursue those claims through each step of the BOP’s system was undisputed, but instead he argues for the first time on appeal that the defendants did not adequately plead an exhaustion defense. In their answer to his complaint, the defendants listed four affirmative defenses, among them, “Plaintiff may have failed to exhaust his administrative remedies.” Estrada contends this assertion was too conclusory to comply with the requirement in Fed.R.CivP. 8(c) that a defendant include affirmative defenses in its response to a pleading. But the purpose of Rule 8(c) is to give the plaintiff notice of a potential affirmative defense so that he or she can prepare to rebut it at summary judgment or trial, see Williams v. Lampe, 399 F.3d 867, 871 (7th Cir.2005); Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1377 (7th Cir.1990), and Estrada has not explained why the defendants’ concise warning fails to accomplish that aim. Nothing in the rule or the cases suggests that more was required.
*91Finally, Estrada attacks the grant of summary judgment to Dr. Reed on the claim that Reed refused to order as much physical therapy as Estrada needed. Estrada argues that it was error for the district court to determine, on the one hand, that he stated a claim of deliberate indifference against Reed and, on the other, that he had not established that Reed was deliberately indifferent. But these two positions are not contradictory: the standard for reviewing the adequacy of a complaint differs from that applicable to the review of evidentiary submissions at summary judgment. To state a claim, a plaintiff may rest on his complaint, but to survive summary judgment, the plaintiff must produce enough admissible evidence supporting his claims to establish that there is a genuine issue of material fact. Fed.R.Civ.P. 56(e)(2); Whitman v. Nesic, 368 F.3d 931, 933-34 (7th Cir.2004); Brown v. Budz, 398 F.3d 904, 914 (7th Cir.2005). And a district court’s conclusion that a claim has properly been stated has no effect on its resolution of the merits of that claim. Whitman, 368 F.3d at 933-34; Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 767 (7th Cir.2003).
In any event, we agree with the district court that Estrada did not meet his burden of production on his claim that Dr. Reed refused to order enough physical therapy. To prevail, Estrada needed to submit evidence that Reed acted with deliberate indifference to a serious medical need. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Gil v. Reed, 535 F.3d 551, 556 (7th Cir.2008). This requires a showing that Reed acted with intentional or criminally reckless disregard. See Board v. Farnham, 394 F.3d 469, 478 (7th Cir.2005); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir.2001). But according to the undisputed evidence, every time that Estrada told Reed that he needed further physical therapy, Reed granted his request within days. Instead of challenging the district court’s conclusion on appeal, Estrada switches targets and focuses on the six days that passed between his stroke and the start of physical therapy in the hospital; he now argues that this brief delay is evidence of Reed’s deliberate indifference. This is a new theory. In his administrative filings Estrada complained that Reed ordered a premature end to each round of inpatient therapy — first at the local hospital and then, after a sojourn at Oxford, in Rochester — but he never suggested that Reed waited too long after the stroke to start his therapy. In his argument to the district court, Estrada also bypassed the immediate aftermath of the stroke and took issue only with his access to therapy after he was returned from the hospital to prison. As Estrada did not present this claim to the district court (nor did he exhaust his administrative remedies with respect to it), he has forfeited it. See Domka v. Portage County, 523 F.3d 776, 783 (7th Cir.2008) (holding general attack on due process waiver in district court did not preserve for appeal specific theory that had not been mentioned).
Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471929/ | ORDER
Eric Ellis appeals the district court’s grant of summary judgment on his claim that FedEx Smartpost, Inc., failed to promote him on account of his race, sex and other grounds. We affirm.
Smartpost consolidates and delivers high volumes of low-weight, business-to-consumer packages using the United States Postal Service for final residential delivery. It opened an Indianapolis hub in October 2006 and soon thereafter hired Ellis as Parcel Assistant. As part of his job, Ellis sorted, wrapped, and cut pallets.
Ellis’s grievances against Smartpost stem from its decision to promote other Parcel Assistants instead of him. Because its office had just opened, Smartpost typically created new positions as needed, without any formal application process. Ellis, who referred to himself as a “light-skinned” male, was upset that he was not chosen as a “team leader.” Instead at a pre-shift employee meeting in April 2007, management selected Denise Ham, a white female, and Ben Riley, a white male. Ellis resigned voluntarily the following month. In July Parcel Assistant Shelly Rush, a white female, was promoted.
Ellis filed suit, claiming that Smartpost failed to promote him due to his race, sex, and other grounds in violation of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2. He claimed that Smartpost improperly promoted three white employees, two of them female, instead of him. He contended that he was more qualified because of his education (he had taken college courses), prior mail-handling experience, and experience working with pallets.
The district court granted Smartpost’s motion for summary judgment, finding that Ellis could not establish a prima facie case of discrimination under Title VII based on failure to promote. Specifically, the court found that Ellis had not shown that the position he sought was given to a person outside the protected class who was similarly or less qualified than he. The court noted that the two persons promoted-Riley and Ham-were considered by their supervisor, Kim Shittu (who happened also to be Ellis’s supervisor), to be well qualified. According to Shittu, Smartpost promoted Riley and Ham because of their communication skills, work ethic, positive attitudes, and willingness to seek out additional responsibility. The court discredited Ellis’s self-serving statements about his superior work ethic, especially in light of Shittu’s statement that he “showed very little initiative.” The court noted that it disregarded Rush’s promotion because it occurred after Ellis had left Smartpost.
On appeal Ellis first asserts that the district court did not apply the correct legal standard when it ruled that he failed *94to establish a prima facie case of discrimination. He contends that the court should have applied the standard set forth in a Tenth Circuit case, Simms v. Okla. ex rel. Dept. of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir.1999), which does not require the promoted person to be similarly or less qualified than the plaintiff. It requires only that the “position remained open or was filled with a non-minority.” Id.
But the district court properly followed this circuit’s approach, which has consistently required a plaintiff to show that he was at least as qualified as the promoted employees, see, e.g., Hobbs v. City of Chi, 573 F.3d 454, 460 (7th Cir.2009); Jackson v. City of Chi, 552 F.3d 619, 622 (7th Cir.2009). Ellis made no such showing, as the district court explained, and we decline the invitation to depart from our precedent.
Ellis next argues that the district court should have read his claim as asserting discrimination under 42 U.S.C. § 2000e-2 not just in the promotion process but also in conditions of employment. Although he mentioned harsh work conditions in his complaint, Ellis forfeited this argument by failing to include it when responding to Smartpost’s motion for summary judgment. See Humphries v. CBOCS W., Inc., 474 F.3d 387, 407-08 (7th Cir.2007). And to the extent Ellis asserts that such conditions were imposed in retaliation for a complaint he filed earlier about conditions, see 42 U.S.C.A. § 2000e-3(a), he waived that claim by not addressing it in his complaint. See Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir.2002).
Ellis also argues that the district court should not have credited Smartpost’s reasons for promoting Riley and Ham. He asserts, without explanation, that Smart-post’s reasoning was “post hoc,” and notes that Smartpost had no application process for promotions, let alone any record that he was unable to perform his job. But as the district court found, Ellis presented no evidence that Smartpost’s stated reasons for its promotional decisions were dishonest. See Schuster v. Lucent Techs., Inc., 327 F.3d 569, 577-78 (7th Cir.2003). In any event, the absence of any negative work record for Ellis is irrelevant; as the district court properly concluded, Ellis failed to show that his credentials were so superior to those of Riley and Ham that no reasonable person could have promoted them over him. See Jordan v. City of Gary, Ind., 396 F.3d 825, 834 (7th Cir. 2005).
Finally, Ellis asserts that the district court should have considered two unreported discrimination cases against Federal Express (cited in his response to Smartpost’s motion for summary judgment) to show that Smartpost has a history of discriminatory practices. See Satchell et al. v. FedEx Exp., No. 3:03-cv-2659 (N.D. Cal. notice of removal filed June 6, 2003); EEOC v. FedEx Corp., No. 6:02-cv-1112-JA-DAB (M.D. FI. filed September 27, 2002). But the district court did consider these decisions and found no clear nexus between them and the practices at Smartpost’s Indianapolis office. Ellis did not assert that the plaintiffs in those cases shared any of the same supervisors or management as he did, see, e.g., Williams v. Wendler, 530 F.3d 584, 588 (7th Cir.2008); Keri v. Bd. of Tr. of Purdue Univ., 458 F.3d 620, 630 (7th Cir.2006), and the district court properly found the connection to Smartpost too remote to support any pattern of discrimination.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471933/ | ORDER
After a scuffle with prison guards on June 1, 2003, Sherrell Towns, an Illinois prisoner, was cited for misconduct on June 3 and later disciplined for assaulting a staff member. But in this suit under 42 U.S.C. § 1983, he alleges that the guards attacked him without provocation and falsified the disciplinary report. He also says that he was denied medical care for his injuries. The district court conducted an evidentiary hearing to resolve whether Towns had exhausted his administrative *98remedies, concluded that he did not, and dismissed the lawsuit. Towns appeals.
Towns attached to his complaint copies of two prison grievances, one dated June 1 and the other, June 8, 2003. The first concerns the alleged assault, and the second asserts that the misconduct charge was bogus. The defendants concede that Towns’s prison counselor processed the June 1 grievance as an “informal” grievance and rejected it as unsubstantiated on July 24. Towns says he forwarded this rejection to the prison grievance officer and, after two months passed without a response, sent a copy to the Administrative Review Board, the final level of review. Towns also says that no one answered his June 3 grievance, which he filed directly with the grievance officer (since prison counselors do not deal with disputes about discipline), and so he mailed a copy to the Board on October 2. The Board did not respond to either grievance.
At summary judgment the defendants said nothing about the June 1 grievance. They acknowledged that the June 3 grievance was received but contended that the warden had denied it and that Towns never appealed. The defendants attached a copy of the denial (which conveys, strangely, that the warden — the deciding official— received the June 3 grievance in October 2003 though the grievance officer — the initial reviewer — did not evaluate it until January 2004) and submitted an affidavit from a Department of Corrections employee who attests that she searched the Administrative Review Board’s files and located appeals from Towns before and after 2003 but found no record of “a timely grievance to this office for an issue allegedly occurring in 2003.” It followed, according to the defendants, that Towns did not exhaust his administrative remedies.
After Towns responded with an affidavit tracking the allegations in his complaint, the district court acknowledged the exhaustion dispute and conducted a hearing to resolve it. See Pavey v. Conley, 544 F.3d 739 (7th Cir.2008). At that hearing the defendants asserted, without referring to evidence in the record, that the June 3 grievance was the only one Towns had filed at the institutional level. The defendants then relied solely on the affidavit from the DOC employee who wasn’t able to find a “timely grievance” relating to events in 2003 in the files of the Administrative Review Board. Towns, who participated by telephone, detailed his travails with the June 1 grievance and emphasized that he mailed a copy to the Board after months had passed with no answer. In response, defense counsel fell back on the “no record” affidavit from the DOC employee and insisted that the Board does not ignore grievances. At the same time, though, counsel conceded that a claim by Towns “that at the institutional level he had problems dealing with the grievance would be more credible.”
In ruling for the defendants, the district judge did not say whether he thought Towns was telling the truth that he submitted his grievances then mailed copies to the Administrative Review Board after not receiving a response. Instead, the district court rested its ruling on the affidavit from the DOC employee. The court reasoned that other appeals filed by Towns had made their way to the Board, and so the absence of appeals in this instance must be the fault of Towns. The court thus concluded that Towns had not exhausted his grievances and dismissed the lawsuit.
The Prison Litigation Reform Act, see 42 U.S.C. § 1997e(a), mandates that inmates exhaust administrative remedies “as are available” before suing about prison conditions. Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Macias v. Zenk, 495 F.3d 37, 40-41 (2d *99Cir.2007); Dale v. Lappin, 376 F.3d 652, 655-56 (7th Cir.2004). The Illinois Administrative Code defines the three-step grievance process for state inmates, beginning with an attempt at an informal resolution though a prison counselor, then proceeding to institutional-level review, and culminating in an appeal to the Illinois Department of Corrections. 20 Ill. Admin. Code §§ 504.810(a), 504.850(a). (An inmate may begin directly at the institutional level, however, if grieving a disciplinary report. Id. § 504.810(a).) It was the defendants’ burden to raise failure to exhaust as an affirmative defense and prove that there were remedies available to Towns that he did not use. See Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir.2008); Kaba v. Stepp, 458 F.3d 678, 686 (7th Cir.2006). We review the court’s factual findings for clear error, see Fed.R.Civ.P. 52(a)(6); Bryant v. Rich, 530 F.3d 1368, 1379 (11th Cir.2008), and legal conclusions de novo, Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006).
To prevail, the defendants had to establish that Towns bypassed a remedy that was “available” to him. See Pavey, 544 F.3d at 742; Dale, 376 F.3d at 655-56. But the defendants did not establish that Towns ever had an opportunity to appeal these to grievances to the Administrative Review Board, and therefore the district court’s conclusion that he did not appeal to the Board — whether or not that conclusion is sound — is irrelevant.
The DOC employee explains in her affidavit that an inmate may appeal a warden’s adverse ruling “after receiving” the decision. The sensible inference — uncontradicted by the defendants — is that an inmate must have the institutional decision before appealing. But as far as this record shows, Towns never received a ruling from the warden on either grievance. As to the June 3 grievance, the defendants point to the denial that they submitted at summary judgment, but they offer no proof that Towns actually received it. Unlike the form used to convey disciplinary rulings, which bears the date served and the signature of the employee who served it, rulings on grievances do not evidence delivery to the inmate, and the defendants introduced no evidence of actual receipt by Towns or information about how rulings typically are delivered to inmates. All the denial establishes is that the warden eventually made a decision, either in October 2003 or January 2004. Whichever month it was, Towns had not received a decision within the two-month response time required “where reasonably feasible under the circumstances,” 20 III. Admin. Code § 504.830, or even after four months when, by his account, he mailed a copy of the unanswered grievance to the Board.
As to the June 1 grievance, Towns maintains in his affidavit that he mailed it to the grievance officer after his counselor’s rejection, and he spoke at length about this process during the evidentiary hearing. Counsel for the defendants represented that Towns had submitted only the June 3 grievance, but a lawyer’s statement is not evidence. The defendants made no effort to contradict Towns’s affidavit, not even with evidence that a records custodian had conducted a diligent search for the June 1 grievance but found nothing. If anything, counsel undermined the defendants’ exhaustion defense by conceding that Towns might well have encountered problems with the grievance process at the institutional level. And just as the defendants did not dispute that Towns had submitted the June 1 grievance, they did not dispute his affidavit or representations at the hearing that he never got a ruling.
As the record stands, it is undisputed that Towns submitted two grievances *100about his claims, the first dated June 1, 2003, and the other dated two days later. It is also undisputed that he received no reply from prison officials to either grievance. The defendants proved nothing, then, by producing evidence that a DOC employee found no record of an appeal. Towns has never contended that he filed “appeals” with the Administrative Review Board; what he has said all along is that he sent copies of the two grievances to the Board because those grievances had gone unanswered. It comes as no surprise that the DOC employee located no record of an appeal or of “a timely grievance” filed with the Board about the events of June 2003; grievances are sent to the prison’s grievance officer, not the Board, and an appeal cannot be taken without a decision by the warden. The DOC employee’s carefully worded affidavit omits whether she looked for correspondence from Towns other than a “timely grievance.”
At the evidentiary hearing, of course, the district court was not compelled to accept Towns’s word that he submitted his grievances and received no response. But the court did not make a credibility finding; rather, it simply accepted the defendants’ misguided premise that Towns did not exhaust because he did not appeal rulings that he never received. The court offered no other basis for its decision, and though we give great deference to credibility findings based on demeanor, see, e.g., Pinkston v. Madry, 440 F.3d 879, 891 (7th Cir.2006), that same level of deference is not due when a district court relies instead on faulty logic, see Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir.2004). The exhaustion requirement of § 1997e(a) does not require that inmates appeal from unresolved grievances. Walker v. Sheahan, 526 F.3d 973, 979 (7th Cir.2008). It is enough that an inmate exhaust “available” remedies, and a prison system that fails to respond to an inmate’s grievance has made its grievance process “unavailable.” Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002).
Accordingly, we VACATE the dismissal and REMAND for further proceedings. Towns’s pending motion for appointment of appellate counsel is DENIED as unnecessary. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471937/ | ORDER
Sylvester Williams filed suit under 42 U.S.C. § 1983, claiming that medical staff at the DuPage County Jail were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The district court granted summary judgment to the defendants, and we affirm.
This case centers on Williams’ problems with the medical treatment he received while in jail. The first condition for which he claims he received inadequate care was severe pain in his feet. Before arriving at the jail in April 2005, he had been diagnosed with peripheral neuropathy in his lower extremities and prescribed Amitriptyline for neuropathic pain. Williams informed the jail’s medical staff of his need for Amitriptyline. Nurse Kathe Pava verified Williams’ Amitriptyline prescription with his neurologist and noted in his medical chart that the next nurse on duty should follow up with a jail physician because only physicians have authority to order prescriptions. Later, Dr. Evaristo Aguinaldo, a part-time physician at the jail, examined Williams and found his symptoms to be consistent with neuropa*104thy of the feet. But because he was unfamiliar with peripheral neuropathy, Dr. Aguinaldo decided to get records from Williams’ neurologist before prescribing any medication.
In May 2005, after examining Williams and speaking with his neurologist, Dr. Geraldo Guzman, the jail’s Medical Director, ordered Amitriptyline. When he still had not received Amitriptyline one month later, Williams submitted a written grievance, seeking use of a wheelchair and complaining that the jail’s medical staff was ignoring his foot pain. Deputy Martin Manion,1 a grievance officer at the jail, relied on Dr. Guzman’s assessment that Williams did not need a wheelchair and denied the request. Dr. Guzman, upon learning that Williams had not received the Amitriptyline, resubmitted his order. Williams did not receive his first dose of Amitriptyline until late June or early July 2005.
The second condition for which Williams claims he received inadequate care was an injury to his left eye. In April 2005, Nurse Barbara Fanta examined Williams after he complained of falling in his cell and injuring his left eye, but she found no sign of eye injury. In the following weeks, Dr. Guzman, Dr. Aguinaldo, and Nurse Pava also found no problem with his left eye. Nonetheless, in May 2005, Dr. Guzman referred Williams to the Wheaton Eye Clinic because of his persistent complaints of vision problems in his left eye. In July 2005, an ophthalmologist at the Wheaton Eye Clinic diagnosed Williams with a partially dislocated left lens and performed surgery to remove the lens. The record does not reveal why Williams was not seen at the clinic until July, but the ophthalmologist opined that the outcome of the procedure would have been the same regardless of when Williams received treatment.
In late 2006, Williams sued Dr. Guzman, Dr. Aguinaldo, Nurse Pava, Nurse Fanta, and Deputy Manion for being deliberately indifferent to his foot pain and eye injury. He claimed, first, that the defendants did not give him Amitriptyline until late June or early July 2005 despite knowing since April 2005 that he needed this medication to control severe neuropathic pain in his feet. Second, Williams claimed that the defendants knew that he had injured his left eye but nonetheless delayed providing necessary ophthalmic care.
The district court granted summary judgment to the defendants, concluding that there was nothing in the record, either regarding Williams’ Amitriptyline prescription or his eye appointment, that reflected deliberate indifference. The court found that Deputy Manion reasonably relied on the opinion of medical staff in resolving Williams’ grievance; that the nurses had insufficient involvement in Williams’ medical care, and lacked knowledge that he was not receiving Amitriptyline; that Williams did not establish a serious medical need for Amitriptyline to necessitate Dr. Aguinaldo ordering the medication; and that Dr. Guzman did not know either that Williams was not receiving Amitriptyline after he ordered it in May 2005, or that his appointment with the Wheaton Eye Clinic was delayed.
We review the district court’s decision de novo, construing all factual inferences in Williams’ favor. See Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir.2008); Greeno v. Daley, 414 F.3d 645, 651 (7th Cir.2005). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any *105material fact and that the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c); Dale v. Poston, 548 F.3d 563, 568-69 (7th Cir.2008).
On appeal, Williams argues that the district court incorrectly rejected his deliberate-indifference claim by concluding that he did not have a serious medical need for Amitriptyline. He points to deposition testimony by his neurologist and Dr. Guzman as confirmation that he needed Amitriptyline to treat severe neuropathic pain in his feet. Although we have no precise test to assess when a plaintiffs medical need is sufficiently serious, our standard contemplates a condition that has been diagnosed by a doctor as requiring treatment or one that is so obvious that even a lay person would perceive the need for medical treatment. Greeno, 414 F.3d at 653; Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.1997). Given his neurologist’s prescription for Amitriptyline to treat the pain associated with peripheral neuropathy, we do not question Williams’ serious medical need for the medication.
To establish deliberate indifference, however, a plaintiff must show not only that his medical need was serious but also that “a state official was deliberately, that is subjectively, indifferent.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.2008). Williams contends that Dr. Guzman and Dr. Aguinaldo were deliberately indifferent for failing to act on Nurse Pava’s note for medical follow-up on his Amitriptyline prescription. He insists that the doctors had a duty to read his medical chart, and their failure to exercise this duty establishes deliberate indifference. Williams cannot, however, point to evidence showing that the doctors’ disregard of Nurse Pava’s note reflected the requisite “culpable state of mind.” See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Greeno, 414 F.3d at 653. With no evidence that the doctors knew about the note and deliberately disregarded it, failure to review the nurse’s note is at most negligence, which is insufficient to establish deliberate indifference. See Boyce v. Moore, 314 F.3d 884, 889 (7th Cir.2002) (explaining that guard’s negligent failure to review jail logbooks would not constitute deliberate indifference); Stewart v. Murphy, 174 F.3d 530, 536 (5th Cir.1999) (in certain circumstances, doctor’s failure to read nurse’s notes might constitute negligence but not necessarily deliberate indifference).
Williams then argues that the doctors’ decision to confirm his Amitriptyline prescription with his neurologist raised a triable issue as to whether they deliberately disregarded his continued pain and suffering. But we defer to a medical professional’s treatment decisions “unless ‘no minimally competent professional would have so responded under those circumstances.’” Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir.2008). Williams points to no evidence that might suggest the doctors acted unreasonably by not ordering Amitriptyline before first verifying Williams’ condition and the prescription with his neurologist. See Farmer, 511 U.S. at 844, 114 S.Ct. 1970 (“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.”); Walker v. Peters, 233 F.3d 494, 500 (7th Cir.2000) (approving as reasonable mandatory HIV testing as prerequisite for dispensing of drug to treat HIV/ AIDS).
Williams similarly suggests that the doctors’ delay in providing him Amitriptyline raises a fact issue concerning their deliberate indifference. He argues that the doctors knew of his need for Amitriptyline but nonetheless denied him *106the medication for his first three months in custody, causing him severe pain. It is true that delays in treating painful medical conditions may support a deliberate-indifference claim, Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828-29 (7th Cir.2009); Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir.2002), Gutierrez, 111 F.3d at 1371, but a plaintiff must also show that the defendants deliberately disregarded the harm caused by the delay, Gil v. Reed, 381 F.3d 649, 661-62 (7th Cir.2004); Hines v. Anderson, 547 F.3d 915, 920-21 (8th Cir.2008). Here, however, Williams cannot show that the doctors were aware of the delay in getting him Amitriptyline. Indeed, the record reflects that as soon as Dr. Guzman learned that Williams had not been receiving Amitriptyline, he placed a second order for the medication.
Williams contends that he established a triable issue regarding the doctors’ deliberate indifference to his left-eye injury when they misdiagnosed his eye problem and disregarded the two-month delay in his being seen at the Wheaton Eye Clinic. But even if the doctors misdiagnosed his eye problem, a misdiagnosis is insufficient to satisfy the subjective component of a deliberate-indifference claim because, here, the doctors had no knowledge of any risk to Williams’ left eye. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir.2006) (it is not enough to show that a doctor should have known that surgery was necessary; rather, the doctor must know that the surgery was necessary and then consciously disregard that need in order to be held deliberately indifferent); Self v. Crum, 439 F.3d 1227, 1234 (10th Cir.2006). As for the delay in his eye appointment, Williams did not demonstrate that the doctors were aware of any harm caused by the delay, see Hines, 547 F.3d at 920-21, nor did he rebut the opinion of the clinic’s ophthalmologist that the delay in treatment did not affect the outcome of the procedure.
Williams next argues that Nurse Pava and Nurse Fanta were deliberately indifferent by not checking whether doctors had ordered Amitriptyline and by disregarding the delays in his receiving Amitriptyline and seeing an ophthalmologist. But there is no evidence that the nurses acted with any culpable state of mind because they played no part in the doctors’ treatment decisions, and nothing in the record suggests that they had authority to refer inmates to outside specialists. See Johnson v. Snyder, 444 F.3d 579, 586 (7th Cir.2006); Comstock v. McCrary, 273 F.3d 693, 712 (6th Cir.2001); Camberas v. Branstad, 73 F.3d 174, 177 (8th Cir.1995).
Finally, Williams argues that Deputy Manion acted with deliberate indifference by failing to investigate the complaints in his written grievance before denying it. But as the district court explained, Deputy Manion reviewed Williams’ complaints and was entitled to rely on the professional opinions of the jail’s medical staff in responding to the grievance. See Hayes v. Snyder, 546 F.3d 516, 527 (7th Cir.2008); Greeno, 414 F.3d at 657. Because Williams provides no evidence that Deputy Manion had reason to believe he was not receiving adequate medical cai'e, Deputy Manion’s denial of his grievance cannot serve as a basis for a deliberate-indifference claim. See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir.2009); George v. Smith, 507 F.3d 605, 609-10 (7th Cir.2007).
AFFIRMED.
. Deputy Manion is not related to Judge Daniel A. Manion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471939/ | ORDER
Jack Zatz applied for disability insurance benefits, claiming that he is unable to work because of severe back and leg pain. An administrative law judge (“ALJ”) concluded that Zatz is able to perform light work and denied the application. Zatz sought review in the district court, and a magistrate judge, presiding by consent, upheld the ALJ’s decision. Zatz appeals, and we affirm.
At the time of his administrative hearing in March 2001, Zatz was 52 years old. He had worked as a customer-service agent at United Airlines for over 30 years until September 1999, when he injured himself while lifting heavy luggage onto a convey- or belt. He immediately developed pain in his back and right leg, and an x-ray taken during an emergency-room visit three days later revealed a slight dislocation of his lower spine. Zatz was evaluated the following month by Dr. Richard Rabinowitz, an orthopedic specialist, who diagnosed probable radiculopathy (a disorder of the spinal-nerve roots, see Stedman’s Medical Dictionary 1622 (28th ed.2006)) and disc herniation and prescribed physical therapy, lumbar epidurals, and an anti-inflammatory drug. When that course of treatment proved ineffective, Dr. Rabinowitz performed surgery in February 2000, including a partial discectomy and excision of a large conglomeration of epidural veins that had been exerting pressure on a nerve root in Zatz’s lower back.
At a follow-up appointment with Dr. Rabinowitz later that month, Zatz reported that his preoperative back complaints were “completely gone” but that he was still experiencing weakness in his right quadriceps even though his right-leg pain had shown “mild improvement” overall. The doctor placed him on a 28-session physical-therapy plan and advised him to stay off work for an additional 6 weeks. In April 2000, halfway through his therapy regimen, Zatz reported complete relief of his leg pain, although by then he had already applied for disability benefits. Zatz also reported complete relief of his leg numbness in May but complained of *109intermittent pain in his interior thighs. Dr. Rabinowitz observed atrophy of Zatz’s right quadriceps and decreased motor strength in his right leg, and the doctor recommended continued physical therapy and home exercise and ordered Zatz not to work for an additional four weeks.
In May 2000 a state-agency physician reviewed Zatz’s medical file and evaluated his residual functional capacity. The doctor noted that Zatz was recovering from surgery and concluded that by September 2000 he would have the capacity to perform medium work. Specifically, the doctor opined that Zatz would be able to occasionally lift up to 50 pounds, frequently lift 25 pounds, stand and/or walk and sit for a total of 6 hours in an 8-hour workday, and occasionally climb, balance, stoop, kneel, crouch, and crawl. A second state-agency physician reviewed Zatz’s file and concurred with this assessment.
In June 2000 Zatz saw Dr. Rabinowitz again and reported that he continued to have right-thigh pain and that his lower-back pain had returned. Dr. Rabinowitz observed in his notes that an MRI showed evidence of epidural fibrosis (formation of fibrous tissue as a reparative or reactive process, see Stedman’s Medical Dictionary 726 (28th ed.2006)), and spondylolisthesis (slippage of one vertebra onto another, see id. at 1813). The doctor recommended home exercise and authorized Zatz to return to work with a lifting restriction of 20 pounds and a limitation to 6-hour workdays for the next 4 weeks. In August 2000 Zatz saw Dr. Rabinowitz again and reported that his back pain had improved dramatically and he no longer had right-leg pain but that he had weakness in his right quadriceps. The doctor authorized him to return to work on a “light duty basis.”
Zatz continued to report improvement in his back pain, but in October 2000 he complained of weakness and numbing pain in his right thigh and intermittent symptoms in his left thigh. Dr. Rabinowitz referred Zatz to neurologist Donald Kuhlman, and at his first consultation in November 2000, Zatz reported that he was walking up to five miles daily, though his leg tended to “give out” once or twice per mile. Dr. Kuhlman opined that Zatz’s pain was probably the result of prolonged compression by the vascular anomaly that had been removed during his surgery. Dr. Kuhlman evaluated Zatz again in February 2001 and reported “dramatic improvement” in Zatz’s lower-extremity pain with regular use of the drug Neurontin (an antiseizure medication also used to treat neuropathic pain).
At the hearing before the ALJ, Zatz testified that he had not worked since injuring his back. He reported constant lower-back pain but conceded that the Neurontin was “working pretty well” and usually took away some of his leg pain. Zatz testified that he can sit continuously for 30 minutes but then has to stand for 15 minutes before he is able to sit again. He also said that he can stand for 2 hours without a break and lift up to 20 pounds, but can bend only with difficulty and cannot squat at all. Zatz reported that he did leg-strengthening exercises and walked roughly 30 minutes each day before the pain became too great. He testified that he grooms himself without difficulty and is able to do chores such as dusting, sweeping, making the bed, shopping at the grocery store and mall, and vacuuming for short periods. When the ALJ asked Zatz how he spends his days, he reported that he shuttles his 9- and 11-year-old children to school and extracurricular activities, reads, works on his computer, watches television, visits friends, and runs errands. Finally, he testified that United Airlines will not allow him to return to his job with *110a limitation for light work, that he has never performed office work, and that he probably could perform a job where he “could just sit for 30 minutes and then get up and do something else and then come back later and sit.”
The ALJ, applying the five-step analysis for evaluating disability, see 20 C.F.R. § 404.1520(a)(4), concluded, first, that Zatz had not engaged in substantial gainful employment since the onset of his alleged disability. The ALJ next determined that Zatz’s impairments, although severe, did not meet or equal the requirements of any listed impairment. The ALJ then assessed Zatz’s residual functional capacity and concluded that he has no limitations other than an inability to lift over 20 pounds. The ALJ acknowledged that Zatz cannot return to his job as an airline customer-service agent because that position requires lifting more than 20 pounds, but, the ALJ found, Zatz can perform light work. Finally, given Zatz’s age, high-school education, and residual functional capacity for light work, the ALJ concluded that he is not disabled under the Commissioner’s Medical-Vocational Guidelines, see 20 C.F.R. pt. 404, subpt. P, app. 2, tbl.2. The Appeals Council denied review in July 2005, and the district court affirmed in October 2008.
When the Appeals Council denies review, the ALJ’s decision becomes the final decision of the Commissioner. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir.2009). Our review is deferential, and we will uphold the ALJ’s decision so long as it is supported by substantial evidence, meaning “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation marks and citation omitted); see Elder v. Astrue, 529 F.3d 408, 413 (7th Cir.2008).
Zatz first challenges the ALJ’s determination at step three of the five-step analysis that his condition does not meet or equal the requirements of a listed impairment. In explaining his conclusion at step three, the ALJ wrote:
The claimant suffered a back injury in September 1999, and continues to suffer some residuals of that injury. However, although severe, his impairments do not meet or equal the requirements of any impairment listed in Appendix 1 to Sub-part P of the Regulations (20 CFR Part 404). The medical evidence does not include signs and findings satisfying all of the criteria of any section in Listing 1.01 for musculoskeletal impairments so disability cannot be established under section 404.1520(d) of the Regulations.
We have cautioned that an ALJ should mention the specific listings he is considering at step three, Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir.2006), and Zatz thus faults the ALJ for referencing only Listing 1.01 (the title heading for the general category of musculoskeletal impairments) but not Listing 1.04 (the subheading for disorders of the spine). According to Zatz, if the ALJ had specifically examined Listing 1.04, he would have “found some compelling correspondences” between that listing and Dr. Rabinowitz’s preoperative evaluation of his condition.
The argument is without merit. When an ALJ fails to cite any listed impairment and provides only a perfunctory analysis, there is little basis for meaningful judicial review and remand therefore may be required. See Brindisi v. Barnhart, 315 F.3d 783, 785-86 (7th Cir.2003). But an ALJ’s failure to explicitly refer to a particular listing does not require automatic reversal, especially where, as here, the ALJ’s consideration of the listing is apparent from the record. See Rice v. Barnhart, 384 F.3d 363, 369-70 (7th Cir.2004) (declin*111ing to remand because, although ALJ did not specifically reference purportedly relevant listing, vocational expert and applicant’s attorney had both discussed that listing and parties agreed it was the only potentially applicable listing). Here, although the ALJ did not mention Listing 1.04, he explained that the medical evidence did not satisfy the criteria of “any section in Listing 1.01,” indicating that he considered all of that category’s sublistings, including 1.04.
In any event, Zatz has the burden of proving that his condition meets or equals each criterion of a listed impairment, see Ribaudo, 458 F.3d at 583, but he has told us only that there are “compelling correspondences” between Listing 1.04 and Dr. Rabinowitz’s preoperative diagnosis. Listing 1.04 refers to several disorders including herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, and vertebral fractures, but Zatz has not specified which of these impairments resembles his own. And although Zatz seems to assert that the presence of an “epidural ventral mass” noted in Dr. Rabinowitz’s preoperative assessment might be the equivalent of an impairment described in Listing 1.04, that mass was removed during surgery, so we cannot see how the comparison would help him.
Zatz next challenges the ALJ’s conclusion that he has the residual functional capacity required to perform light work. A job qualifies as light work when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 416.967. To perform the full range of light work, a claimant must be able to stand or walk, off and on, for a total of approximately 6 hours of an 8-hour workday, lift up to 20 pounds, and frequently lift or carry objects weighing up to 10 pounds. Id.; SSR 83-10, 1983 WL 31251, at *5-6. Zatz argues that the ALJ failed to scrutinize all of the evidence in the record and did not comply with Social Security Ruling 96-8p, which instructs ALJs to assess a claimant’s work-related abilities on a “ function-by-function basis” before classifying his residual functional capacity in exertional terms (e.g., “light work”). See SSR 96-8p, 1996 WL 374184, at *1. Zatz’s interpretation of SSR 96-8p would require an ALJ to provide a narrative discussion assessing the applicant’s capacity to perform every single work-related function, including sitting, standing, walking, lifting, carrying, pushing, pulling, stooping, climbing, reaching, handling objects, seeing, hearing, speaking, and understanding instructions. If this interpretation was correct, the ALJ’s decision would fall short because he did not specifically address Zatz’s ability to perform each and every work-related function. Instead, the ALJ considered the medical evidence and concluded that Zatz’s only limitation is the inability to lift or carry over 20 pounds.
Although the ALJ could have been more explicit in his findings, his duty under SSR 96-8p is not as onerous as Zatz suggests. A function-by-function assessment of an individual’s limitations ensures that the ALJ does not overlook an important restriction and thereby incorrectly classify the individual’s capacity for work. See SSR 96-8p, 1996 WL 374184, at *4. But an ALJ need not provide superfluous analysis of irrelevant limitations or relevant limitations about which there is no conflicting medical evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.2005); Depover v. Barnhart, 349 F.3d 563, 567-68 (8th Cir.2003); cf. Myers v. Apfel, 238 F.3d 617, 620-21 (5th Cir.2001) (remanding where ALJ failed to provide specific assessment of applicant’s capacity to *112stand, walk, push, or pull despite conflicting medical evidence about those functions).
Zatz testified that he walks 30 minutes each day for exercise and can lift up to 20 pounds without difficulty, stand for 2 hours at a time without a break, and sit with intermittent breaks. Although he testified about back and leg pain, he also said that his medication works “pretty well” and that he spends his days exercising, working on his computer, visiting friends, doing errands such as cleaning, grocery shopping, and going to the mall, and driving his children to their extracurricular activities. The ability to perform minimal activities is not necessarily inconsistent with disabling pain, but Zatz’s daily tasks are more than minimal. Compare Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir.2001) (observing that washing dishes, helping children prepare for school, doing laundry, and making dinner are “minimal” activities), and Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.2000) (concluding that applicant’s activities were not inconsistent with disabling pain where she performed only two hours of chores daily with husband’s assistance and breaks for rest, shopped for groceries three times a month, played cards twice a month, and could walk only three to five blocks without resting), with Johansen v. Barnhart, 314 F.3d 283, 288 (7th Cir.2002) (doubting whether daily schedule of home exercise, grocery shopping, laundry, driving, and walking a mile could be characterized as “minimal”), and Scott v. Sullivan, 898 F.2d 519, 524 & n. 6 (7th Cir.1990) (noting that applicant’s capacity to perform household chores, carry groceries, ride a bike, hunt and fish was inconsistent with disabling back pain). Further, Dr. Rabinowitz had approved Zatz’s return to light-duty work in August 2000, and Dr. Kuhlman, the most-recent doctor to evaluate Zatz, noted in February 2001, the month before the hearing, that Zatz was “doing well” and had reported “dramatic improvement” in his pain.
Zatz has not pointed to any evidence undermining the ALJ’s conclusion that he has no limitations other than the inability to lift more than 20 pounds, nor does he even specify what particular functions the ALJ should have, but did not, explicitly assess. The ALJ built an “accurate and logical bridge” from the evidence to his conclusions, see Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.2008) (internal quotations marks and citation omitted), and we are satisfied that his decision is supported by substantial evidence.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471943/ | ORDER
Following a jury trial, James Thomas was convicted of possession of a firearm after a felony conviction, see 18 U.S.C. § 922(g)(1), and the district court sentenced him under the Armed Career Criminal Act to 240 months’ imprisonment, see id. § 924(e)(1). Thomas filed a notice of appeal. Appointed counsel, however, is unable to discern a nonfrivolous basis for the appeal and moves to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Thomas to comment on counsel’s submission, see Cir. R. 51(b), but he has not responded. We limit our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
On the evening of March 30, 2006, Crystal Johnson was walking home when she saw Thomas, whom she knew as a friend from the neighborhood. Thomas, however, immediately shoved her against the wall of a nearby garage, held a gun to her neck, and said, “Bitch, this is your calling card.” Just as this was happening, Johnson spotted a passing police car and yelled for help, shouting that Thomas had a gun. The officers stopped their car, and Officer Mike LaChance saw Thomas walk away and throw the gun over a fence. Officer LaChance gave chase and caught Thomas, while his partner, Officer Edward Garcia, retrieved the fully loaded gun.
*119At trial the parties stipulated that Thomas had a prior felony conviction and that the gun had traveled in interstate commerce, leaving the government to prove only that Thomas had possession of the gun. See United States v. Caldwell, 423 F.3d 754, 757 (7th Cir.2005). The two officers and Johnson all testified that they saw Thomas holding the gun. An expert in latent fingerprint identification testified that, as is common with firearms, only partial prints, impossible to identify, were found on the gun. Thomas’s defense focused on the credibility of the three eyewitnesses; counsel highlighted inconsistencies in the officers’ testimony and argued that, because Johnson was a drug user with criminal charges pending against her at the time of the incident, her testimony was unreliable. The jury believed the witnesses anyway, and found Thomas guilty. The district court denied his posttrial motions for mistrial and acquittal.
At sentencing the district court determined that, in holding the gun to Johnson’s head, Thomas had used the gun in connection with a crime of violence, and that, based on his prior convictions, he qualified for sentencing as an armed career criminal, see 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4(a), (b)(3)(A). The court therefore applied the resulting offense level of 34 and criminal histoiy category of VI to reach a guidelines imprisonment range of 262 to 327 months. Next the court considered the mitigating evidence— Thomas’s strong family ties, troubled childhood, educational and emotional difficulties, and recent efforts to seek treatment — and imposed a below-guidelines sentence of 240 months’ imprisonment.
Counsel first considers whether Thomas could argue that the trial evidence is insufficient to support his conviction. We would overturn the jury’s verdict only if, after viewing the evidence in the light most favorable to the government, no rational jury could have found him guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Moore, 572 F.3d 334, 337 (7th Cir.2009). Counsel postulates that Thomas might challenge the credibility of the witnesses, argue that the absence of his prints on the gun refutes their testimony, or submit additional evidence to show that the gun was originally purchased by another individual. Counsel is correct, however, to reject each possibility as frivolous. Three eyewitnesses testified that they saw Thomas with the gun in his hand and saw him throw it over the fence, where it was immediately recovered. We will not second-guess a jury’s determination to credit a witness unless the testimony was “so implausible that it cannot be trusted as a matter of law.” United States v. Calabrese, 572 F.3d 362, 369 (7th Cir.2009). At trial Thomas pointed to Johnson’s previous drug use and to the officers’ minor inconsistencies about the clothing Thomas was wearing, about whether they drove past or stopped when they first saw him with Johnson, and about whether he walked or ran from the scene. But none of this would render the witnesses’ testimony incredible as a matter of law. See id. (“Neither inconsistencies nor motive to fabricate are capable of rendering testimony legally incredible.”); United States v. Williams, 553 F.3d 1073, 1080 (7th Cir.2009) (refusing to second-guess jury’s decision to believe witnesses who had prior felony convictions, a history of lying, and motive to testify against the defendant). And although the police found no identifiable prints on the gun, the government’s expert testified that identifiable prints are rarely recovered from firearms. Finally, counsel’s supposition that Thomas might ask this court to consider additional, non-record evidence would also be a nonstarter, as we would not consider evidence *120that the jury did not have. See Moore, 572 F.3d at 337; see also Ruvalcaba v. Chandler, 416 F.3d 555, 563 (7th Cir.2005) (noting that “we generally decline to supplement the record on appeal with materials that were not before the district court”).
Counsel next considers whether Thomas could argue that the prosecutor committed misconduct during closing argument when, in describing Thomas’s actions, he stated, “All the time bad people attack other people that might be considered to be bad people.” Thomas’s counsel immediately objected, and the trial court instructed the jurors that argument by counsel is not evidence and that they could consider only the evidence presented from the witness stand. Given Thomas’s objection, we would review the court’s ruling for an abuse of discretion. See United States v. Clark, 535 F.3d 571, 580 (7th Cir.2008). “[Ijmproper comments during closing arguments rarely rise to the level of reversible error,” United States v. McMath, 559 F.3d 657, 667 (7th Cir.2009) (internal quotation marks and citation omitted), and in evaluating such comments, we consider whether the remarks in isolation were improper, and, if so, we then evaluate the remarks in the context of the entire record and assess whether they caused the defendant prejudice by denying him a fair trial, United States v. Myers, 569 F.3d 794, 798 (7th Cir.2009); Clark, 535 F.3d at 580. Here, to the extent that the prosecutor’s remark could be interpreted as implying that Thomas was “bad” and had a propensity to attack other people, it was improper. Considering the remark in context, however, we could not conclude that he was prejudiced. The prosecutor’s remark was made during the government’s rebuttal argument, and although Thomas did not have an opportunity to rebut it, defense counsel invited the remark by improperly arguing that Johnson, a drug user, perhaps “had crack in her pocket” or might have been high, giving her motive to lie about the assault. See Kunz v. DeFelice, 538 F.3d 667, 677 (7th Cir.2008) (explaining that evidence of drug use may be used to impeach a witness’s recollection of events but not for the impermissible “inference that drag users tend to lie”); United States v. Robbins, 197 F.3d 829, 843 (7th Cir.1999) (concluding that defense attacks on witness credibility invited prosecutor’s attempt to “right the scale”); United States v. Magana, 118 F.3d 1173, 1196 (7th Cir.1997) (suggesting that defendant -will have difficulty establishing prejudice “if defense counsel strikes the first blow” and “the prosecutor attempts to even the scales by making a reasonable but otherwise improper response”). The prosecutor’s comment did not misstate the evidence or implicate a specific right, and the court mitigated the effect of the comment by promptly instructing the jury to consider only the evidence presented. See Clark, 535 F.3d at 581; Robbins, 197 F.3d at 843. Jurors are presumed to follow their instructions, and counsel cannot identify any reason to believe that the jury was so tainted by the comment that the limiting instruction was ignored. See Clark, 535 F.3d at 581; United States v. Serfling, 504 F.3d 672, 677 (7th Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 1718, 170 L.Ed.2d 525 (2008). Moreover, the evidence weighs strongly against Thomas given that all three eyewitnesses saw him with the gun. See Clark, 535 F.3d at 580-81; Serfling, 504 F.3d at 677 (explaining that weight of the evidence is “the factor ‘most important’ to the prejudice inquiry”). In light of this evidence and the court’s curative instruction, we agree with counsel that arguing that the comment prejudiced Thomas would be pointless.
Counsel also evaluates whether Thomas could contend that the district *121court erred in refusing to exclude as unduly prejudicial Johnson’s testimony that Thomas threatened her with the gun. We review rulings on objections under Federal Rule of Evidence 403 for abuse of discretion. United States v. Samuels, 521 F.3d 804, 813 (7th Cir.2008). Counsel posits that Johnson’s testimony made the incident sound frightening and was unnecessary, but this testimony was probative of Johnson’s credibility: she not only saw the gun in Thomas’s hand, but she saw it up close to her face and felt it against her neck. “ ‘Rule 403 was never intended to exclude relevant evidence simply because it is detrimental to one party’s case.’ ” United States v. Perkins, 548 F.3d 510, 515 (7th Cir.2008) (quoting United States v. Dennis, 497 F.3d 765, 769 (7th Cir.2007)). Rather, the relevant inquiry is whether any unfair prejudice from the evidence substantially outweighs its probative value such that the jury may be induced to decide the case on emotional grounds or some other improper basis. See id.; United States v. Harris, 536 F.3d 798, 809 (7th Cir.2008). And here, as the result of a separate motion in limine, the government refrained from eliciting testimony about Johnson’s emotional state during the assault. We therefore agree with counsel that a claim about this testimony would be frivolous because the possible prejudice to Thomas did not substantially outweigh the probative value of Johnson’s testimony.
Finally, as to the trial, counsel assesses whether Thomas could challenge the denial of his motion to call the prosecutor as a witness to impeach Officer La-Chance’s testimony that he remembered the clothing Thomas was wearing. The district court concluded that the prosecutor’s testimony was unnecessary because Thomas could cross-examine Officer La-Chance, and, indeed, Thomas successfully obtained an admission that the officer had not told the prosecutors about the clothing before trial. See United States v. Ashman, 979 F.2d 469, 493-94 (7th Cir.1992) (upholding district court’s denial of motion to call prosecutor where information was available from another source). Thus, any argument that the court’s ruling was an abuse of its discretion would be frivolous.
As to Thomas’s sentence, counsel questions whether he might argue that the district court committed “minor errors” in the course of sentencing. But the court committed no error at all. As the sentencing transcript shows, the parties agreed and understood that Thomas was being sentenced under U.S.S.G. § 4B1.4 as an armed career criminal. The court found that Thomas had assaulted Johnson with the gun, and although, as counsel notes, the court stated that “a 2K2.1(b)(6) finding is appropriate here,” it went on to apply the correct offense level and criminal history category under the armed career criminal guideline for a defendant who used the firearm in connection with a crime of violence, see U.S.S.G. § 4B 1.4(b)(3)(A), (c)(2); United States v. Vallejo, 373 F.3d 855, 859-60 (7th Cir.2004).
Last, counsel considers whether Thomas could argue that his trial lawyer was ineffective. As counsel acknowledges, we rarely consider a claim of ineffective assistance on direct appeal because the appellant cannot develop a factual record and must rely solely on the trial record, from which ineffective assistance is rarely apparent. See United States v. Recendiz, 557 F.3d 511, 531-32 (7th Cir.), petition for cert. filed (U.S. Aug. 21, 2009) (No. 09-238). Appellate counsel points to the trial lawyer’s statement in the record that she limited her attack on Johnson “in many areas that would have been inflammatory” because of “certain things that the defense knew and chose not to go into.” This *122statement, counsel suggests, could be read to suggest that the trial lawyer should have brought forth “even more damaging evidence” to attack Johnson’s credibility. But none of this evidence is currently in the record, nor is there any evidence that the decision to limit the attack on Johnson was anything but a strategic move. See id. at 532; United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005). Thus, a claim that trial counsel’s ineffectiveness is obvious on the face of the trial record would also be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471944/ | MEMORANDUM **
The Administrative Law Judge (ALJ) did not err in relying on Dr. Watkins’s evaluation of Korenica’s mental residual functional capacity. When a claimant objects to being examined by a medical source, the ALJ may reschedule the examination with a different medical source without first determining whether there was good cause for such an objection. See 20 C.F.R. § 416.919j. The regulation, however, does not require the ALJ to ignore the results of the first medical source’s examination. Korenica does not argue that the language barrier affected Dr. Watkins’s evaluation or prejudiced her in any way. Moreover, Dr. Watkins’s evaluation was substantially consistent with Dr. Geaiy’s report.
The ALJ also gave a specific and legitimate reason for crediting Dr. Geary’s narrative report over his check-the-box medical source statement. The ALJ reasonably determined that the statements in the two documents were contradictory, and determined that Dr. Geary’s narrative report was more consistent with his clinical findings and the findings of other medical sources. This is a specific and legitimate reason to reject a portion of Dr. Geary’s report. See Thomas v. Barnhart, 278 F.3d 947, 956-58 (9th Cir.2002). Nor was the ALJ required to recontact Dr. Geary to clarify his opinion merely because the report contained an internal inconsistency. Rather, the ALJ appropriately resolved the inconsistency in the medical record. Id. at 958.
Finally, the ALJ did not err in rejecting poi'tions of Korenica’s testimony. The ALJ provided a number of specific, clear, and convincing reasons for his conclusion that Korenica’s testimony was not entirely credible. Among other reasons, the ALJ found that Korenica’s mood had improved with proper treatment and medication, her physical symptoms were unsupported by objective medical evidence (which undermined her credibility as to her mental health symptoms), and her social isolation was the result of her language barrier, rather than a mental disability. See id. at 959.
*143Finally, the ALJ did not err in concluding that Korenica is not disabled if she can perform past relevant work in her country of origin. At step four, a claimant who can perform past relevant work is not disabled; it is not appropriate to consider whether the claimant’s previous work exists in the national economy at that step. Barnhart v. Thomas, 540 U.S. 20, 25, 124 S.Ct. 876, 157 L.Ed.2d 333 (2003). Accordingly, the district court did not abuse its discretion by remanding the case to the ALJ to clarify the testimony of the vocational expert as to whether Korenica can perform her past relevant work in her country of origin.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471947/ | MEMORANDUM **
John Thomas Sundquist, a civil detainee, appeals pro se from the summary judgment in his 42 U.S.C. § 1983 action alleging that defendants violated his Fourteenth Amendment due process rights by transporting and temporarily housing him with criminal detainees (i.e., criminal pretrial detainees, prisoners, or both), and his Fourth Amendment rights by subjecting him to a strip search that included a visual body cavity search. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a summary judgment. Aguilera v. Baca, 510 F.3d 1161, 1167 (9th Cir.2007). We affirm.
The district court properly entered summary judgment on Sundquist’s claim that defendant Transcor violated his due process rights by transporting him with criminal detainees because Sundquist failed to demonstrate a triable issue as to whether the conditions of his transportation were excessive in relation to the legitimate, non-punitive interests of Transcor and the government in safety and effective management of its transportation services. See Jones v. Blanas, 393 F.3d 918, 932-35 (9th Cir.2004) (describing applicable legal standard).
The district court properly entered summary judgment on Sundquist’s claim that Transcor violated his due process rights by housing him with criminal detainees during a stopover because Transcor presented uncontroverted evidence that it had no control over these conditions. See Harper v. City of L.A., 533 F.3d 1010, 1026 (9th Cir.2008) (“In a § 1983 action, the plaintiff must ... demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.”).
The district court properly entered summary judgment on Sundquist’s Fourth Amendment claim against the Humboldt County defendants because he failed to demonstrate a triable issue as to whether the search was unreasonable in light of “the scope of the particular intrusion, the manner in which it [wa]s conducted, the justification for initiating it, and the place in which it [wa]s conducted.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
The district court properly entered summary judgment on Sundquist’s claim that the Humboldt County defendants violated his due process rights by housing him temporarily with criminal detainees because Sundquist failed to demonstrate a triable issue as to whether the conditions of his confinement were excessive in relation to the government’s legitimate, non-punitive interests in security and effective facility management. See Jones, 393 F.3d at 932-35.
Although Sundquist contends that defendants violated sections 4001 and 4002 of *145the California Penal Code by housing him with criminal detainees, he has not shown that these provisions afford him a private right of action, or that a violation is actionable under section 1983. See Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir.1996) (explaining that a violation of state law may not form the basis for a section 1983 action unless it causes the deprivation of a right protected by the Constitution).
We do not consider Sundquist’s contention, raised for the first time on appeal, that he was prevented from opposing Transcor’s motion for summary judgment because he was separated from his legal materials. See Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir.2002).
Sundquist’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478101/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471946/ | MEMORANDUM **
John Thomas Sundquist, a civil detainee, appeals pro se from the summary judgment in his 42 U.S.C. § 1983 action alleging that defendants violated his Fourteenth Amendment due process rights by transporting and temporarily housing him with criminal detainees (i.e., criminal pretrial detainees, prisoners, or both), and his Fourth Amendment rights by subjecting him to a strip search that included a visual body cavity search. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a summary judgment. Aguilera v. Baca, 510 F.3d 1161, 1167 (9th Cir.2007). We affirm.
The district court properly entered summary judgment on Sundquist’s claim that defendant Transcor violated his due process rights by transporting him with criminal detainees because Sundquist failed to demonstrate a triable issue as to whether the conditions of his transportation were excessive in relation to the legitimate, non-punitive interests of Transcor and the government in safety and effective management of its transportation services. See Jones v. Blanas, 393 F.3d 918, 932-35 (9th Cir.2004) (describing applicable legal standard).
The district court properly entered summary judgment on Sundquist’s claim that Transcor violated his due process rights by housing him with criminal detainees during a stopover because Transcor presented uncontroverted evidence that it had no control over these conditions. See Harper v. City of L.A., 533 F.3d 1010, 1026 (9th Cir.2008) (“In a § 1983 action, the plaintiff must ... demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.”).
The district court properly entered summary judgment on Sundquist’s Fourth Amendment claim against the Humboldt County defendants because he failed to demonstrate a triable issue as to whether the search was unreasonable in light of “the scope of the particular intrusion, the manner in which it [wa]s conducted, the justification for initiating it, and the place in which it [wa]s conducted.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
The district court properly entered summary judgment on Sundquist’s claim that the Humboldt County defendants violated his due process rights by housing him temporarily with criminal detainees because Sundquist failed to demonstrate a triable issue as to whether the conditions of his confinement were excessive in relation to the government’s legitimate, non-punitive interests in security and effective facility management. See Jones, 393 F.3d at 932-35.
Although Sundquist contends that defendants violated sections 4001 and 4002 of *145the California Penal Code by housing him with criminal detainees, he has not shown that these provisions afford him a private right of action, or that a violation is actionable under section 1983. See Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir.1996) (explaining that a violation of state law may not form the basis for a section 1983 action unless it causes the deprivation of a right protected by the Constitution).
We do not consider Sundquist’s contention, raised for the first time on appeal, that he was prevented from opposing Transcor’s motion for summary judgment because he was separated from his legal materials. See Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1004 (9th Cir.2002).
Sundquist’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471948/ | MEMORANDUM **
Jose Abel Arguello Valera and Ana Guadalupe Arguello, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying their motion to reopen removal proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo claims of constitutional violations in immigration proceedings. Itunibarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
The IJ did not abuse her discretion in denying petitioners’ motion to reopen for failure to establish “exceptional circumstances.” See 8 U.S.C. § 1229a(e)(l).
It follows that the denial of petitioners’ motion to reopen did not violate due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a due process violation).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471950/ | MEMORANDUM *
Dr. Alameda Starkey and the San Diego-Imperial County Cattlemen’s Association appeal the district court’s denial of their motion for preliminary injunctive relief in an action against the County of San Diego, the San Diego Department of Planning and Land Use (“DPLU”), and two employees of the DPLU in their official capacities (collectively, “the County”), for violations of their rights under the First Amendment of the U.S. Constitution and article I of the California Constitution. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and we reverse and remand.
The district court abused its discretion in denying appellants’ request for injunctive relief. “The proper legal standard for preliminary injunctive relief requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.’ ” Stormans, Inc. v. Selecky, 571 F.3d 960, 978 (9th Cir.2009) (quoting Winter v. NRDC, Inc., — U.S. -, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008)). Each factor weighs in favor of appellants.
The record flatly contradicts the County’s pretextual assertion that Dr. Starkey was removed from the steering committee due to uncooperative behavior and unwillingness to cooperate.1 The only identifiable act that led to Dr. Starkey’s removal was her reading of a brief, prepared statement into the record of a committee meeting. Viewpoint discrimination of this nature is particularly odious under the First Amendment. Although “[t]he First Amendment does not forbid a viewpoint-neutral exclusion of speakers who would disrupt a nonpublic forum and hinder its effectiveness for its intended purpose,” state action that is merely a “facade for viewpoint-based discrimination” goes to the heart of the First Amendment’s protection of free speech. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 811, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); see also, e.g., Prince v. Jacoby, 303 F.3d 1074, 1091 (9th Cir.2002) (“While certainly not required to grant student clubs access to these benefits, the school has chosen to do so. Having done so, it cannot deny access to some student groups because of their desire to exercise their First Amendment rights without a compelling government interest that is narrowly drawn to achieve that end.... ‘Discrimination against speech because of its message is presumed to be unconstitutional.’ ” (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995))). We note that the County has conceded both in briefing and at oral argument that the steering committee meetings are a limited public forum and that they “constitute a governmental process with a governmental purpose.” While the record is not yet developed sufficiently to render an independent judgment on that question, it thus *149appears that appellants have a likelihood of success on the claim that, once the County granted them the benefit of participation as steering-committee members, the County could not then engage in viewpoint discrimination against them in this forum without violating the First Amendment.2
The other factors also tilt emphatically in favor of appellants. As the district court recognized, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). That presumption is buttressed by the fact that, without preliminary injunctive relief, the steering committee will continue to meet and may even conclude its role in developing the East County Multiple Species Conservation Program. On the other hand, as counsel for the County represented at oral argument, the expression of dissenting views on the steering committee does not harm the appellees. To the contrary, the expression of diverse viewpoints presumably improves decisionmaking. Indeed, the steering committee was formed for the express purpose of soliciting public opinion, on the premise that such input would be valuable, and the County has indicated that it continues to “welcome[] involvement by a representative from the Cattleman’s Association.” Accordingly, the balance of equities and the public interest in full and diverse participation, see Cal. Fish & Game Code § 2815, both favor the issuance of preliminary injunctive relief.
Though the record is far from fully developed, it is apparent that Dr. Starkey’s reinstatement to the steering committee, as a representative of the Cattlemen’s Association, will harm neither the steering committee’s operations, nor its decision-making. At worst, based on the meetings that have already occurred, Dr. Starkey’s contributions may necessitate a small amount of additional time and attention. Weighed against the considerable First Amendment concerns that stem from the exclusion of the appellants from the steering committee, this harm is negligible, and preliminary injunctive relief is warranted while the parties develop the record and proceed to a decision on the merits. Accordingly, we remand to the district court with instructions to grant appellants’ request for preliminary injunctive relief, narrowly tailoring the relief to allow Dr. Starkey, as the selected representative of the Cattlemen’s Association, to once again participate as a steering committee member consistent with the purposes of the committee.
IT IS SO ORDERED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The County's assertion that Dr. Starkey “made threats, through legal counsel she has hired to represent her interests, of potential future lawsuits against the County,” is also unsupported. Dr. Starkey merely attempted to obtain documents the County was otherwise required by law to disclose, and she initiated these attempts prior to her appointment to the steering committee.
. The district court's conclusion that appellants have no First Amendment right to membership on the steering committee, while correct, is beside the point and cannot form the basis for denying the request for a preliminary injunction. Moreover, the record makes it abundantly clear that participation in the public comment portion of the steering committee meetings differs both qualitatively and quantitatively from participation on the steering committee itself. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471952/ | MEMORANDUM **
James Huson and his parents, Michael and Tena Huson (the “Husons”) appeal the district court’s dismissal of their claims under the Rehabilitation Act, Americans with Disabilities Act, and 42 U.S.C. § 1983. Because the parties are familiar with the facts of the case, we repeat them here only to the extent necessary to explain our decision. We have jurisdiction over the district court’s order under 28 U.S.C. § 1291. We review questions of law, such as whether administrative exhaustion is required under the Individuals with Disabilities Education Act, (“IDEA”) de novo. Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1274 (9th Cir.1999). We affirm.
“[Pjlaintiffs must exhaust administrative remedies before filing a civil lawsuit if they seek relief for injuries that could be redressed to any degree by the IDEA’S administrative procedures.” Kutasi v. Las Virgenes Sch. Dist., 494 F.3d 1162, 1163 (9th Cir.2007) (emphasis added); see also Robb v. Bethel Sch. Dist., #403, 308 F.3d 1047, 1050 (9th Cir.2002). Exhaustion is not required where the IDEA administrative process would be “futile or inadequate.” Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988).
Here, Appellants’ attempt to invoke the futility exception is not persuasive. Appellants initially sought IDEA services and were denied. Appellants seek to avoid the exhaustion requirement by adopting Appellees’ position that James Huson is ineligible for IDEA services. The IDEA provides the “opportunity for any party to present a complaint ... with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such a child.” 20 U.S.C. § 1415(b)(6)(A); see also Cal. Educ. Code § 56501(a) (providing a due process hearing when there is a “refusal to initiate or change the identification, assessment, or educational placement of the child or the provision of a free appropriate public education to the child”). The disagreement over James Huson’s education falls within these bounds, and must be administratively exhausted before Plaintiffs may bring other claims.1
Accordingly, the district court’s order is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because James Huson's eligibility for IDEA services has not yet been finally determined and because Appellants must exhaust IDEA remedies, we do not reach the other issues presented on appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471954/ | *153MEMORANDUM *
Appellants, employees of the Northrop Grumman Corporation, challenge the district court’s denial of their motion for class certification in this ERISA action asserting a breach of fiduciary duty.
1. The district court abused its discretion by failing to make any findings whatsoever regarding the class certification requirements articulated in Fed.R.Civ.P. 23. See Parra v. Bashas’, Inc., 536 F.3d 975, 977-78 (9th Cir.2008) (“An abuse of discretion occurs when the district court ... omits consideration of a [Rule 23] factor ...”).
2. Although the determination of class certification is within the province of the district court rather than the appeals court, this case appears to meet the requirements of Fed.R.Civ.P 23(a) and (b). See Ortiz v. Fibreboard Corp., 527 U.S. 815, 833-34, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) (A “[classic example[]” of a Rule 23(b)(1)(B) action is one “charging a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class of beneficiaries ... ”) (citations and internal quotation marks omitted).
3. Due to the failure of the district court to make the requisite findings, we vacate the district court’s August 7, 2007, order denying class certification. Although we recognize and regret the burden placed on other judges in the judicial district, to avoid further delay in resolving this matter, we order reassignment to a different judge on remand. See, e.g., United States v. Murillo, 548 F.3d 1256, 1257 (9th Cir.2008).
VACATED AND REMANDED. CASE TO BE REASSIGNED TO A DIFFERENT DISTRICT JUDGE ON REMAND.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471959/ | MEMORANDUM **
Victor Segovia (“Victor”) appeals a decision of the Bankruptcy Appellate Panel that affirmed a bankruptcy court’s (1) reduction of Victor’s claim against the estate of his sister Maria Segovia (“Maria”) and (2) rejection of Victor’s objections to the claim of creditor Bach Construction, Inc. (“BCI”). We have jurisdiction under 28 U.S.C. § 158(d). We affirm.
The facts of the case are known to the parties, and we do not repeat them here.
Victor argues that the bankruptcy court erred in reducing his $726,000 claim *158under 11 U.S.C. § 502(b)(4). The bankruptcy court correctly concluded that “reasonable value” under § 502(b)(4) means more than merely “enforceable under the law governing enforcement of the [Fee Agreement].” See Joseph F. Sanson Inv. Co. v. 268 Ltd. (In re 268 Ltd.), 789 F.2d 674, 676-77 (9th Cir.1986) (interpreting “reasonable” under § 506(b)); see also Cohen v. de la Cruz, 523 U.S. 213, 220, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998) (utilizing “the presumption that equivalent words have equivalent meaning when repeated in the same statute”). The bankruptcy court did not clearly err in finding that $50,000 was the reasonable value of Victor’s services in representing Maria in her dispute with BCI. See In re 268 Ltd., 789 F.2d at 677 (reviewing “bankruptcy court factual determinations under the dearly erroneous standard”).
Victor argues that the bankruptcy court erred in refusing to enforce his lien. We agree with the bankruptcy court that Victor’s Fee Agreement violated rule 3-300 of the Rules of Professional Conduct of the State Bar of California. The Fee Agreement’s terms were not “fair and reasonable to [Maria and] fully disclosed and transmitted in writing to [Maria] in a manner which should reasonably have been understood by [Maria].” See Rule 3-300(A). Victor’s claim for $50,000 is properly left unsecured. See Fletcher v. Davis, 33 Cal.4th 61, 14 Cal.Rptr.3d 58, 90 P.3d 1216, 1223 (2004).
Victor argues that the bankruptcy court improperly overruled his objections to BCI’s claim. “We may affirm on any ground supported by the record.” See Olsen v. Zerbetz (In re Olsen), 36 F.3d 71, 73 (9th Cir.1994). Victor’s objection under § 502(b)(4) lacks merit because BCI is not an insider or attorney. Victor’s objection under § 502(b)(1) also lacks merit because he does not allege that BCI’s judgment is unenforceable under applicable law. The bankruptcy court properly overruled Victor’s objections.
Victor’s motion for leave to submit voluminous exhibits is denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471961/ | MEMORANDUM**
Stephen Francis Rhett appeals his con*160victions for importation of marijuana,1 possession of marijuana with intent to distribute,2 and for aiding and abetting.3 We affirm.
(1) The district court did not abuse its discretion 4 when it admitted evidence that Rhett defecated in his pants at the point when border patrol officers were discovering the illegally imported marijuana in the trailer he was pulling. See United States v. Velarde-Gomez, 269 F.3d 1023, 1030-31 (9th Cir.2001) (en banc); see also United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir.2005) (balancing under Fed.R.Evid. 403). Nor did the district court err when it determined that evidence of how the trailer behaved under tow when loaded with a half ton of marijuana was relevant, and admitted that evidence.
(2) While the government’s asking a witness if he believed Rhett’s story was improper,5 there was no reversible error because the district court sustained an immediate objection, the question was not answered,6 and the court gave a sufficient general instruction regarding counsels’ questions.7 Denial of a mistrial was not an abuse of discretion. See United States v. Washington, 462 F.3d 1124, 1135 (9th Cir.2006); see also Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir.1998).
(3) Finally, the district court did not commit reversible plain error8 when it failed to sua sponte strike certain of the prosecutor’s arguments. The prosecutor should have avoided the “we know” phraseology in argument, but, in context, the court’s failure to sua sponte prevent its use here was not plain error. See United States v. Younger, 398 F.3d 1179, 1190-91 (9th Cir.2005). Even if it were, on this record it did not affect Rhett’s substantial rights and did not seriously affect the “ ‘fairness, integrity or public reputation of judicial proceedings.’ ” Olano, 507 U.S. at 736, 113 S.Ct. at 1779; see also Younger, 398 F.3d at 1191. Similarly, the court’s failure to sua sponte preclude the prosecutor’s arguments regarding inferences that the jury could draw from the large amount of marijuana imported here, and from the sophisticated means used to transport the marijuana into this country, was not reversible plain error, if error at all. See United States v. Henderson, 241 F.3d 638, 652 (9th Cir.2000); United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir.2000); see also United States v. Cordoba, 104 F.3d 225, 230 (9th Cir.1997); cf. United States v. Vallejo, 237 F.3d 1008, 1015-17 (9th Cir.), amended by 246 F.3d 1150 (9th Cir.2001) (stating that evidence of operations of enormous international drug organizations improper).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*160ed by Ninth Circuit Rule 36-3.
. See 21 U.S.C. §§ 952, 960.
. See 21 U.S.C. § 841(a)(1).
. See 18 U.S.C. § 2.
. See United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir.2004).
. See United States v. Geston, 299 F.3d 1130, 1136 (9th Cir.2002); United States v. Sanchez, 176 F.3d 1214, 1221 (9th Cir.1999).
. Cf. Geston, 299 F.3d at 1135-36 (evidence did come in); Sanchez, 176 F.3d at 1220-21 (same).
. See United States v. Layton, 767 F.2d 549, 556 (9th Cir.1985).
. See United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993); United States v. Banks, 514 F.3d 959, 976 (9th Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471973/ | MEMORANDUM **
Petitioner-Appellant Kethon Triggs (“Triggs”), a state prisoner, appeals the district court’s denial of his habeas petition. In 1995, a jury convicted Triggs of cocaine possession in violation of California Health and Safety Code section 11350(a). Under California’s three-strikes law, the trial court sentenced Triggs to 25 years to life in prison.
Triggs petitioned for habeas relief under 28 U.S.C. § 2254, claiming that he was incompetent to stand trial, and that the state court denied him due process in failing sua sponte to hold a competency hearing. Secondly, Triggs claims that trial counsel’s failure to investigate and present evidence about his incompetency denied him his Sixth Amendment right to effective assistance of counsel.1 Thirdly, Triggs claims that the admission at trial of a preliminary hearing transcript from 1982 violated his Sixth Amendment right to confrontation. Finally, Triggs claims that his sentence constitutes cruel and unusual punishment as prohibited by the Eighth Amendment.
We review de novo the district court’s denial of Triggs’s habeas petition. Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir.2008). In conducting a review of a state court decision, we “look to the last reasoned state-court decision.” Van Lynn *175v. Farmon, 347 F.3d 735, 738 (9th Cir.2003). In so doing, we must determine whether the state court proceedings “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” as to any claim adjudicated on the merits in State court proceedings. 28 U.S.C. § 2254(d). Where, as here, there has been no state court decision on the merits of several of the claims, we review those claims de novo. Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir.2005). In reviewing such claims, we do not follow the AED-PA deference standard. See Pirtle v. Morgan, 313 F.3d 1160, 1167-68 & n. 4 (9th Cir.2002). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Competency Hearing
Triggs claims that he was denied due process because he was incompetent at the time of his 1995 trial and 1997 re-sentencing and the state court did not hold a competency hearing. Because the state courts did not address the merits of this claim, we review de novo without applying the AEDPA deference standard.
A defendant’s constitutional right to due process is violated if his competency to stand trial was at issue and he did not receive an adequate competency determination. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). A trial court is required to conduct a competency hearing if it receives evidence or information that raises a bona fide doubt about the defendant’s competency to stand trial. Odie v. Woodford, 238 F.3d 1084, 1087 (9th Cir.2001). In considering such a claim, we examine only the information that was before the trial court. AmayaRuiz v. Stewart, 121 F.3d 486, 489 (9th Cir.1997). Evidence of mental illness does not, by itself, raise such a doubt, de Kaplany v. Enomoto, 540 F.2d 975, 983 & n. 9 (9th Cir.1976).
Triggs had a long history of mental illness and commitment, of which the trial court and counsel were aware. During his trial in 1995, Triggs had a violent outburst in jail and was moved to a safety cell. While the sheriffs deputies were moving Triggs, he bit an officer on the hand. Triggs spent the night in the safety cell, and was returned to regular confinement the following day. The trial court learned of this incident when Triggs was charged with aggravated assault on an officer.
While the trial judge was aware that Triggs had assaulted an officer, he was not presented with contemporaneous evidence that would suggest Triggs’s incompetency. The trial record reflects that the only information presented to the court was the probable cause statement documenting the assault. That statement does not contain any facts about Triggs’s condition either immediately before or after the incident. Significantly, neither trial counsel nor the district attorney questioned Triggs’s competence to stand trial, either before or after the incident at the jail. Further, Triggs’s conduct, demeanor, and trial testimony did not give rise to a bona fide doubt about Triggs’s competence at the time of trial. Indeed, Triggs’s trial testimony shows that he fully understood the charge and that he had little difficulty relating his defense to the jury. Although the trial court was aware of Triggs’s past mental illness and that he had bitten an officer at the jail, this information, in light of Triggs’s demeanor and testimony at trial, was insufficient to raise a bona fide doubt about Triggs’s competence. Nor did evidence suggest that Triggs was incompetent at the time of his 1997 re-sentencing. *176The trial court therefore did not err in failing to hold, sua sponte, a competency hearing.
Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was constitutionally deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the state courts did not address the merits of this claim, we review de novo without applying the AEDPA deference standard.
Counsel was aware of Triggs’s history of mental illness and that he sought to use his mental competence to challenge the validity of his prior convictions in 1982 and 1987. However, even considering counsel’s knowledge of the incident at the jail during trial, in light of Triggs’s ability to communicate with counsel and to understand the charge and proceedings, including his defense testimony, counsel was not ineffective in investigating Triggs’s competence in 1995 or failing to request a hearing regarding Triggs’s competency in 1995 and 1997.
Even assuming that counsel was ineffective, Triggs was not prejudiced by counsel’s performance. The fact that he testified coherently in his own defense demonstrates that he possessed “at least a minimum rational understanding of the trial proceedings” and the ability to participate in them. See Benson v. Terhune, 304 F.3d 874, 885 (9th Cir.2002). Trial counsel also attested in the state court habeas proceeding that Triggs spoke with him frequently before and during trial about problems he was having with the jail staff, and gave him copies of grievances that he had filed against the deputies at the jail, including a pro se civil suit. This further shows that Triggs was competent to stand trial, and that therefore it was not reasonably probably that a mental health evaluation of him at the time of trial would not have concluded otherwise.
Sixth Amendment Right to Confrontation
Triggs claims that the admission of the 1982 burglary preliminary hearing transcripts at his 1995 trial violated his Sixth Amendment right to confrontation because the state made no showing that the witnesses were unavailable to testify, and because Triggs was physically screened from the witnesses at the hearing. In reviewing these claims, we need not decide whether Triggs properly presented them to the California Court of Appeal because, whether we apply AED-PA’s deferential standard of review or review de novo, we reach the same result.
Triggs’s Confrontation Clause claim cannot benefit from the rule announced in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because Crawford does not apply retroactively. Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). We must therefore decide whether the state court’s admission of the transcripts was constitutional under Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).
Under rules announced by the California Supreme Court,2 the prosecution was precluded from presenting the live testimony at Triggs’s 1995 trial of the witnesses in the 1982 burglary preliminary hearing. This preclusion rendered the witnesses legally unavailable, triggering the necessity rule articulated in Ohio v. Roberts: that prior testimony is admissible in trial if the witness is unavailable to *177testify, so long as the testimony bears some “indicia of reliability.” Id. at 65-66, 100 S.Ct. 2531 (internal quotations omitted). The 1982 preliminary hearing transcripts were reliable under Roberts because defense counsel had the opportunity to cross examine the witnesses (and did so), thus affording “the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” Id. at 73, 100 S.Ct. 2531 (internal quotations omitted). The admission of the transcripts was thus constitutionally permissible.
Triggs makes a separate claim that his right to confrontation was violated because he was physically screened from the witnesses at the 1982 preliminary hearing. He is not challenging his underlying conviction in that case, but rather the admissibility of the transcript of the preliminary hearing in this one. Thus, the screen is evidence that must be considered as part of his larger Confrontation Clause claim under Roberts. Triggs does not contend that the screen impeded defense counsel’s cross examination of the witnesses, nor does he argue that the preliminary hearing transcripts are any less reliable because of it. See Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (“[T]he face-to-face confrontation requirement is not absolute....”). We therefore find no constitutional violation.
Eighth Amendment Claim
Triggs claims that the state trial court violated the Eighth Amendment prohibition against cruel and unusual punishment when it sentenced him to 25 years to life in prison. He argues that the sentence is disproportionate to the crime, and that it was impermissibly based on mental illness and drug addiction. Because the California Court of Appeal addressed the merits of this claim, we review under the deferential AEDPA standard.
The Supreme Court has held that a sentence is unconstitutional under the Eighth Amendment only in “exceedingly rare” cases, Ewing v. California, 538 U.S. 11, 22, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (internal quotations omitted), where the punishment is grossly disproportionate to the crime. Lockyer v. Andrade, 538 U.S. 63, 77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Triggs’s sentence does not rise to this level. Nor is there any evidence that his sentence was based on mental illness or drug addiction. We therefore conclude that the state court’s decision rejecting this claim was not an unreasonable application of established Supreme Court law. See Lockyer, 538 U.S. at 70-71, 123 S.Ct. 1166.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Triggs also argues that he was denied due process because he was, in fact, convicted while incompetent. For the purposes of a habeas petition, however, we need only determine whether the trial court proceedings were adequate to protect his right. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Therefore, this argument is subsumed by Triggs’s other two competency arguments: that the trial judge should have ordered a competency hearing sua sponte, and that his trial counsel was ineffective for failing to raise the issue himself and request a hearing.
. See People v. Reed, 13 Cal.4th 217, 226, 52 Cal.Rptr.2d 106, 914 P.2d 184 (1996); People v. Guerrero, 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150(1988). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478102/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471953/ | MEMORANDUM **
James Huson and his parents, Michael and Tena Huson (the “Husons”) appeal the district court’s dismissal of their claims under the Rehabilitation Act, Americans with Disabilities Act, and 42 U.S.C. § 1983. Because the parties are familiar with the facts of the case, we repeat them here only to the extent necessary to explain our decision. We have jurisdiction over the district court’s order under 28 U.S.C. § 1291. We review questions of law, such as whether administrative exhaustion is required under the Individuals with Disabilities Education Act, (“IDEA”) de novo. Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1274 (9th Cir.1999). We affirm.
“[Pjlaintiffs must exhaust administrative remedies before filing a civil lawsuit if they seek relief for injuries that could be redressed to any degree by the IDEA’S administrative procedures.” Kutasi v. Las Virgenes Sch. Dist., 494 F.3d 1162, 1163 (9th Cir.2007) (emphasis added); see also Robb v. Bethel Sch. Dist., #403, 308 F.3d 1047, 1050 (9th Cir.2002). Exhaustion is not required where the IDEA administrative process would be “futile or inadequate.” Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988).
Here, Appellants’ attempt to invoke the futility exception is not persuasive. Appellants initially sought IDEA services and were denied. Appellants seek to avoid the exhaustion requirement by adopting Appellees’ position that James Huson is ineligible for IDEA services. The IDEA provides the “opportunity for any party to present a complaint ... with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such a child.” 20 U.S.C. § 1415(b)(6)(A); see also Cal. Educ. Code § 56501(a) (providing a due process hearing when there is a “refusal to initiate or change the identification, assessment, or educational placement of the child or the provision of a free appropriate public education to the child”). The disagreement over James Huson’s education falls within these bounds, and must be administratively exhausted before Plaintiffs may bring other claims.1
Accordingly, the district court’s order is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because James Huson's eligibility for IDEA services has not yet been finally determined and because Appellants must exhaust IDEA remedies, we do not reach the other issues presented on appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471955/ | *153MEMORANDUM *
Appellants, employees of the Northrop Grumman Corporation, challenge the district court’s denial of their motion for class certification in this ERISA action asserting a breach of fiduciary duty.
1. The district court abused its discretion by failing to make any findings whatsoever regarding the class certification requirements articulated in Fed.R.Civ.P. 23. See Parra v. Bashas’, Inc., 536 F.3d 975, 977-78 (9th Cir.2008) (“An abuse of discretion occurs when the district court ... omits consideration of a [Rule 23] factor ...”).
2. Although the determination of class certification is within the province of the district court rather than the appeals court, this case appears to meet the requirements of Fed.R.Civ.P 23(a) and (b). See Ortiz v. Fibreboard Corp., 527 U.S. 815, 833-34, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999) (A “[classic example[]” of a Rule 23(b)(1)(B) action is one “charging a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class of beneficiaries ... ”) (citations and internal quotation marks omitted).
3. Due to the failure of the district court to make the requisite findings, we vacate the district court’s August 7, 2007, order denying class certification. Although we recognize and regret the burden placed on other judges in the judicial district, to avoid further delay in resolving this matter, we order reassignment to a different judge on remand. See, e.g., United States v. Murillo, 548 F.3d 1256, 1257 (9th Cir.2008).
VACATED AND REMANDED. CASE TO BE REASSIGNED TO A DIFFERENT DISTRICT JUDGE ON REMAND.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471958/ | MEMORANDUM **
Victor Segovia (“Victor”) appeals a decision of the Bankruptcy Appellate Panel that affirmed a bankruptcy court’s (1) reduction of Victor’s claim against the estate of his sister Maria Segovia (“Maria”) and (2) rejection of Victor’s objections to the claim of creditor Bach Construction, Inc. (“BCI”). We have jurisdiction under 28 U.S.C. § 158(d). We affirm.
The facts of the case are known to the parties, and we do not repeat them here.
Victor argues that the bankruptcy court erred in reducing his $726,000 claim *158under 11 U.S.C. § 502(b)(4). The bankruptcy court correctly concluded that “reasonable value” under § 502(b)(4) means more than merely “enforceable under the law governing enforcement of the [Fee Agreement].” See Joseph F. Sanson Inv. Co. v. 268 Ltd. (In re 268 Ltd.), 789 F.2d 674, 676-77 (9th Cir.1986) (interpreting “reasonable” under § 506(b)); see also Cohen v. de la Cruz, 523 U.S. 213, 220, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998) (utilizing “the presumption that equivalent words have equivalent meaning when repeated in the same statute”). The bankruptcy court did not clearly err in finding that $50,000 was the reasonable value of Victor’s services in representing Maria in her dispute with BCI. See In re 268 Ltd., 789 F.2d at 677 (reviewing “bankruptcy court factual determinations under the dearly erroneous standard”).
Victor argues that the bankruptcy court erred in refusing to enforce his lien. We agree with the bankruptcy court that Victor’s Fee Agreement violated rule 3-300 of the Rules of Professional Conduct of the State Bar of California. The Fee Agreement’s terms were not “fair and reasonable to [Maria and] fully disclosed and transmitted in writing to [Maria] in a manner which should reasonably have been understood by [Maria].” See Rule 3-300(A). Victor’s claim for $50,000 is properly left unsecured. See Fletcher v. Davis, 33 Cal.4th 61, 14 Cal.Rptr.3d 58, 90 P.3d 1216, 1223 (2004).
Victor argues that the bankruptcy court improperly overruled his objections to BCI’s claim. “We may affirm on any ground supported by the record.” See Olsen v. Zerbetz (In re Olsen), 36 F.3d 71, 73 (9th Cir.1994). Victor’s objection under § 502(b)(4) lacks merit because BCI is not an insider or attorney. Victor’s objection under § 502(b)(1) also lacks merit because he does not allege that BCI’s judgment is unenforceable under applicable law. The bankruptcy court properly overruled Victor’s objections.
Victor’s motion for leave to submit voluminous exhibits is denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471960/ | MEMORANDUM**
Stephen Francis Rhett appeals his con*160victions for importation of marijuana,1 possession of marijuana with intent to distribute,2 and for aiding and abetting.3 We affirm.
(1) The district court did not abuse its discretion 4 when it admitted evidence that Rhett defecated in his pants at the point when border patrol officers were discovering the illegally imported marijuana in the trailer he was pulling. See United States v. Velarde-Gomez, 269 F.3d 1023, 1030-31 (9th Cir.2001) (en banc); see also United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir.2005) (balancing under Fed.R.Evid. 403). Nor did the district court err when it determined that evidence of how the trailer behaved under tow when loaded with a half ton of marijuana was relevant, and admitted that evidence.
(2) While the government’s asking a witness if he believed Rhett’s story was improper,5 there was no reversible error because the district court sustained an immediate objection, the question was not answered,6 and the court gave a sufficient general instruction regarding counsels’ questions.7 Denial of a mistrial was not an abuse of discretion. See United States v. Washington, 462 F.3d 1124, 1135 (9th Cir.2006); see also Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir.1998).
(3) Finally, the district court did not commit reversible plain error8 when it failed to sua sponte strike certain of the prosecutor’s arguments. The prosecutor should have avoided the “we know” phraseology in argument, but, in context, the court’s failure to sua sponte prevent its use here was not plain error. See United States v. Younger, 398 F.3d 1179, 1190-91 (9th Cir.2005). Even if it were, on this record it did not affect Rhett’s substantial rights and did not seriously affect the “ ‘fairness, integrity or public reputation of judicial proceedings.’ ” Olano, 507 U.S. at 736, 113 S.Ct. at 1779; see also Younger, 398 F.3d at 1191. Similarly, the court’s failure to sua sponte preclude the prosecutor’s arguments regarding inferences that the jury could draw from the large amount of marijuana imported here, and from the sophisticated means used to transport the marijuana into this country, was not reversible plain error, if error at all. See United States v. Henderson, 241 F.3d 638, 652 (9th Cir.2000); United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir.2000); see also United States v. Cordoba, 104 F.3d 225, 230 (9th Cir.1997); cf. United States v. Vallejo, 237 F.3d 1008, 1015-17 (9th Cir.), amended by 246 F.3d 1150 (9th Cir.2001) (stating that evidence of operations of enormous international drug organizations improper).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*160ed by Ninth Circuit Rule 36-3.
. See 21 U.S.C. §§ 952, 960.
. See 21 U.S.C. § 841(a)(1).
. See 18 U.S.C. § 2.
. See United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir.2004).
. See United States v. Geston, 299 F.3d 1130, 1136 (9th Cir.2002); United States v. Sanchez, 176 F.3d 1214, 1221 (9th Cir.1999).
. Cf. Geston, 299 F.3d at 1135-36 (evidence did come in); Sanchez, 176 F.3d at 1220-21 (same).
. See United States v. Layton, 767 F.2d 549, 556 (9th Cir.1985).
. See United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993); United States v. Banks, 514 F.3d 959, 976 (9th Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471962/ | MEMORANDUM**
Gilberto Placencia-Medina appeals his sentence for attempted entry after removal. 8 U.S.C. § 1326(a). We affirm.
The district court did not err when it considered the nature and similarity of Placencia’s prior convictions in deciding to impose a six-month variance from the sentence range under the United States Sentencing Guidelines. See United States v. *162Orlando, 553 F.3d 1235, 1239 (9th Cir.2009); cf. United States v. Segura-Del Real, 83 F.3d 275, 277-78 (9th Cir.1996) (court can consider repetitive immigration violations in calculating an upward departure from the Guidelines).
Moreover, considering the simplicity of the matter, the district court sufficiently explained its decision to vary from the guideline range. See 18 U.S.C. § 3553(c); United States v. Carty, 520 F.3d 984, 991-92 (9th Cir.2008) (en banc). Finally, the district court was not required to mouth the so-called parsimony principle when it stated that the sentence it was awarding was reasonable. A reasonable sentence incorporates that principle,1 and we assume that “district judges know the law.”2
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. See United States v. Crowe, 563 F.3d 969, 977 n. 16 (9th Cir.2009); United States v. Vasquez-Landaver, 527 F.3d 798, 804-05 (9th Cir.2008).
. Carty, 520 F.3d at 992. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471964/ | MEMORANDUM *
Alla Valadmirovna Davis seeks review of a decision of the Board of Immigration Appeals (“BIA”) denying her application for asylum. As the facts are known to the parties, they will not be repeated here, except as necessary to our decision.
Davis filed her application for asylum over six years after entry into this country. Such applications must be “filed vrithin 1 year after the date of the alien’s arrival in the United States,” 8 U.S.C. § 1158(a)(2)(B), except in cases where there are “extraordinary circumstances relating to the delay in filing an application,” id. § 1158(a)(2)(D). Ineffective assistance of counsel may constitute extraordinary circumstances. See 8 C.F.R. § 1208.4(a)(5).
The “Real ID Act of 2005 restores our jurisdiction over constitutional claims or questions of law.” Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (internal quotation marks and citation omitted). We have held that extraordinary circumstance determinations are a reviewable mixed question of law and fact, so long as the underlying facts are undisputed. Husyev v. Mukasey, 528 F.3d 1172, 1178-79 (9th Cir.2008). Here, the BIA concluded that Davis had presented insufficient evidence to support her claim of ineffective assistance of counsel. We lack jurisdiction to review such determinations, especially in a case such as this where the underlying facts are disputed.
DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471968/ | *168MEMORANDUM **
Joshua Larson (“Larson”) appeals the district court’s order dismissing his conviction for receipt of child pornography without prejudice, contending that the district court should have instead dismissed his conviction with prejudice. He also challenges his conviction for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).
We do not have jurisdiction over Larson’s challenge to the district court’s dismissal of the receipt conviction because it is not ripe for review. “Ripeness is more than a mere procedural question; it is determinative of jurisdiction. If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed.” S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir.1990). We determine “if a case is ripe for review by evaluating whether (1) the issues are fit for judicial decision, and (2) the parties will suffer hardship if we withhold decision.” United States v. Lazarenko, 476 F.3d 642, 652 (9th Cir.2007).
Declining to review the district court’s dismissal order imposes no hardship on Larson. Because we affirm Larson’s possession conviction, the Double Jeopardy Clause bars the government from recharging him with receipt or seeking to have his prior conviction reinstated. See United States v. Davenport, 519 F.3d 940 (9th Cir.2008). Moreover, all of Larson’s challenges to his possession conviction apply with equal or greater force to his receipt conviction and it is therefore impossible for the possession conviction to be vacated and the receipt conviction reinstated under any factual scenario. Under the unique facts of this case, there is simply no case or controversy for us to adjudicate on this Count.
We reject Larson’s various challenges to his conviction for possession of child pornography. Larson’s claim that the district court should have required the government to prove that he knew child pornography was illegal is foreclosed by circuit precedent. See United States v. Moncini, 882 F.2d 401, 406 (9th Cir.1989). The district court also properly rejected Larson’s claim that his developmental disability could serve as a form of diminished capacity, thus excusing a violation of § 2252A(a)(5)(B). We recognize the defense of diminished capacity only where the charged crime requires specific, rather than general intent. See United States v. Smith, 638 F.2d 131, 132 (9th Cir.1981). Because § 2252A(a)(5)(B) is a crime requiring only general intent, the diminished capacity defense does not apply.
Finally, we reject Larson’s claim that it violates principles of equal protection for the government to treat some juvenile offenders as adults while denying adult offenders who function mentally as children the reciprocal right to be treated as juveniles in the criminal justice system. It is unclear whether this claim is one of discrimination against the developmentally disabled or discrimination based on age, but we need not decide this question because rational basis review applies to both of these types of classifications. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442-47, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 311-13, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).
Applying rational basis review, it was reasonable for Congress to decide not to *169permit chronologically-aged adults to be charged as juveniles. Such a system would be difficult to administer and would have far-reaching consequences, consequences that Congress could have rationally decided were unnecessary, particularly in light of procedural and substantive considerations the legal system already offers developmentally disabled individuals.
Thus, we affirm Larson’s conviction for possession, and dismiss the portion of his appeal challenging his conviction for receipt. We vacate the district court’s decision on the merits of Larson’s challenge to the receipt statute and its mandatory minimum provision.
AFFIRMED in part, DISMISSED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471971/ | MEMORANDUM *
Defendant-Appellant Miguel AlvarezAdame appeals his conviction for reentering the United States after removal in violation of 8 U.S.C. § 1326(a), and the sentence enhancement imposed for having been removed subsequent to a felony conviction under § 1326(b).1 We have jurisdiction under 28 U.S.C. § 1291, and affirm the conviction, vacate the sentence, and remand for resentencing.
Alvarez-Adame raises five claims of error. First, he argues that the district court was required to dismiss the indictment because it did not state the precise date of a prior deportation or conviction. The indictment alleged that AlvarezAdame was “removed from the United States subsequent to May 22, 1997.” An indictment is sufficient to support both a charge and sentence enhancement under § 1326 if it “alleges a removal date, thus enabling the sentencing court to compare that date to the dates of any qualifying felony convictions to determine whether *171the sentence-enhancing sequence is satisfied.” United States v. Mendoza-Zaragoza, 567 F.3d 431, 434 (9th Cir.2009). There was no structural error in the indictment because the May 22, 1997, date permitted the district court to make the required comparison.
We address, second, AlvarezAdame’s collateral attack on his prior deportation. He argues that the indictment should have been dismissed because the 1989 deportation order, which formed the basis for later removals, was constitutionally defective. At his 1989 removal hearing, the immigration judge incorrectly told AlvareznAdame that he was ineligible for any form of relief, when in fact he was statutorily eligible for relief under the former Immigration and Nationality Act § 212(c). See 8 U.S.C. § 1182(c) (1988). Even assuming that this misinformation violated due process, Alvarez-Adame still cannot demonstrate prejudice as required for a successful collateral attack. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047-48 (9th Cir.2004). In order to have qualified for a discretionary § 212(c) waiver in 1989, Alvarez-Adame would have needed to show “unusual and outstanding equities” because of his criminal history. United States v. Gonzalez-Valerio, 342 F.3d 1051, 1056-57 (9th Cir.2003); In re Marin, 16 I. & N. Dec. 581, 586 n. 4 (BIA 1978). By 1989, AlvarezAdame had eleven criminal convictions, including assault with a deadly weapon and forcible rape. Although Alvarez-Adame had lived in the United States for many years and had close family here, those equities could not overcome his history of persistent and serious crime. See Gonzalez-Valerio, 342 F.3d at 1057. Because Alvarez-Adame cannot show plausible grounds for a § 212(c) waiver, no prejudice resulted from the alleged due process violation and the district court did not err in denying Alvarez-Adame’s motion to dismiss the indictment.
We address, third, the claim by Alvarez-Adame that the district court incorrectly imposed a sixteen-level increase in the base offense score under U.S. Sentencing Guidelines section 2L1.2(b)(l)(A). That upward adjustment applies where a defendant was deported following a drug-trafficking conviction with a sentence of at least thirteen months. In 1987, AlvarezAdame was sentenced to three years imprisonment following his guilty plea to conspiring to possess a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. The judgment and commitment—which explicitly incorporated the indictment—was before the district court at sentencing and the court properly imposed the sixteen-level adjustment. See U.S.S.G. § 2L1.2 cmt. n. 5; United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir.2006).
Fourth, Alvarez-Adame argues that the district court improperly declined to find that he had accepted responsibility and was entitled to a two-level base offense reduction under U.S.S.G. § 3El.l(a). He claims that the district court denied the downward adjustment because he exercised his constitutional right to a trial, and because the court wrongly believed that he lied about not having been advised about the possibility of § 212(c) relief during his 1989 deportation hearing. These claims are not supported by the record. The district court judge explained that he declined to find acceptance of responsibility because Alvarez-Adame lied about not having been advised of his appellate rights, and the sentencing transcript contains the district court’s finding that Alvarez-Adame affirmatively misled the court on this issue. The district court did not commit clear error in finding that Alvarez-Adame gave *172intentionally-misleading testimony, and did not err in denying the acceptance-of-responsibility adjustment. See United States v. Bazuaye, 240 F.3d 861, 863 (9th Cir.2001).2
Finally, Alvarez-Adame argues that the district court violated Rule 32 of the Federal Rules of Criminal Procedure by not ruling on his objections to the calculation of his criminal history score in the Criminal History Report. Where a defendant disputes a matter that impacts sentencing, Rule 32 requires the district court either to rule on the dispute or to determine that the contested matter will not be considered in sentencing. Fed.R.Crim.P. 32(i)(3)(B). Here, the district court did not rule on the specific objections raised by Alvarezr-Adame, but did conclude that his fourteen prior convictions constituted a “horrible record” sufficient to place Alvarez-Adame in Criminal History Category VI — the highest category.
The district court’s conclusion about Alvarez-Adame’s record is understandable, but our precedents mandate strict compliance with Rule 32. United States v. Houston, 217 F.3d 1204, 1208 (9th Cir.2000) (citing United States v. Femandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.1990) (en banc)). In his sentencing memorandum, Alvarez-Adame objected to having his 1982 marijuana-possession conviction counted toward his criminal history score. That conviction contributed three points toward Alvarez-Adame’s thirteen-point total, placing him in Criminal History Category VI. Without those three points, his criminal history score would drop to ten, a score falling within Criminal History Category V. This decrease would correspondingly reduce the starting Guideline range from 100-125 months to 92-115 months.
Because the sentencing court’s first obligation is to make the Guideline calculation correctly, a failure to follow Rule 32 and ensure a correct calculation is generally considered reversible error. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). In this case, the error was not harmless because it potentially affected the Guideline range, and a remand for resentencing is therefore required.3
The judgment of conviction is AFFIRMED, the sentence VACATED, and the case REMANDED to the district court for resentencing.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. The relevant facts are known to the parties, and will not be recited except as necessary to understand our disposition.
. Because Alvarez-Adame was not entitled to a base-level decrease under U.S.S.G. § 3El.l(a), we do not reach his argument that he was entitled to an additional one-point decrease under U.S.S.G. § 3El.l(b).
. We are aware that the actual sentence imposed, 110 months, falls within the Guideline range whether Alvarez-Adame belongs in Criminal History Category V or VI. Although we have some concern that the district court might have sentenced at the same level irrespective of the correct Guidelines range, thereby making it a waste of judicial resources to require resentencing, we will not speculate about what the district court would have done if it had resolved the objection pursuant to Rule 32. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471963/ | MEMORANDUM**
Gilberto Placencia-Medina appeals his sentence for attempted entry after removal. 8 U.S.C. § 1326(a). We affirm.
The district court did not err when it considered the nature and similarity of Placencia’s prior convictions in deciding to impose a six-month variance from the sentence range under the United States Sentencing Guidelines. See United States v. *162Orlando, 553 F.3d 1235, 1239 (9th Cir.2009); cf. United States v. Segura-Del Real, 83 F.3d 275, 277-78 (9th Cir.1996) (court can consider repetitive immigration violations in calculating an upward departure from the Guidelines).
Moreover, considering the simplicity of the matter, the district court sufficiently explained its decision to vary from the guideline range. See 18 U.S.C. § 3553(c); United States v. Carty, 520 F.3d 984, 991-92 (9th Cir.2008) (en banc). Finally, the district court was not required to mouth the so-called parsimony principle when it stated that the sentence it was awarding was reasonable. A reasonable sentence incorporates that principle,1 and we assume that “district judges know the law.”2
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. See United States v. Crowe, 563 F.3d 969, 977 n. 16 (9th Cir.2009); United States v. Vasquez-Landaver, 527 F.3d 798, 804-05 (9th Cir.2008).
. Carty, 520 F.3d at 992. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471965/ | MEMORANDUM *
Alla Valadmirovna Davis seeks review of a decision of the Board of Immigration Appeals (“BIA”) denying her application for asylum. As the facts are known to the parties, they will not be repeated here, except as necessary to our decision.
Davis filed her application for asylum over six years after entry into this country. Such applications must be “filed vrithin 1 year after the date of the alien’s arrival in the United States,” 8 U.S.C. § 1158(a)(2)(B), except in cases where there are “extraordinary circumstances relating to the delay in filing an application,” id. § 1158(a)(2)(D). Ineffective assistance of counsel may constitute extraordinary circumstances. See 8 C.F.R. § 1208.4(a)(5).
The “Real ID Act of 2005 restores our jurisdiction over constitutional claims or questions of law.” Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (internal quotation marks and citation omitted). We have held that extraordinary circumstance determinations are a reviewable mixed question of law and fact, so long as the underlying facts are undisputed. Husyev v. Mukasey, 528 F.3d 1172, 1178-79 (9th Cir.2008). Here, the BIA concluded that Davis had presented insufficient evidence to support her claim of ineffective assistance of counsel. We lack jurisdiction to review such determinations, especially in a case such as this where the underlying facts are disputed.
DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471967/ | *165MEMORANDUM**
Frank A. Rust appeals the district court’s denial of one habeas corpus petition on the merits and the denial of another one as being second and successive. 28 U.S.C. §§ 2244(b), 2254. We affirm in part and reverse and remand in part.
(1) Rust asserts that pursuant to “clearly established Federal law, as determined by the Supreme Court”1 his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated.2 We disagree. At the time that Rust’s conviction became final on direct appeal, the principles set forth in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2581, 2589, 65 L.Ed.2d 597 (1980), controlled consideration of the admission of evidence. Now, the principles of Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004), control. While Crawford cannot be applied retroactively at the behest of a petitioner,3 it can be applied retroactively at the behest of the state.4 In any event, the result would be the same under either Roberts or Crawford.
In the first place, the state court’s determination that the witnesses in question— Rita Keith and Andre Thomas Barnett— were not available and that due diligence had been used by the prosecution in an attempt to make them available was not unreasonable. See 28 U.S.C. § 2254(d); Cal. Evid.Code § 240(a)(5); see also Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968); People v. Cromer, 24 Cal.4th 889, 892,15 P.3d 243, 244,103 Cal.Rptr.2d 23, 24 (2001).
Secondly, as far as Keith’s preliminary hearing testimony is concerned, there is no claim that it was not subject to cross-examination; thus, it was admissible under either Crawford or Roberts. Similarly, her statements to a police officer, whether testimonial or not, were essentially the same as those at her preliminary hearing, and, therefore, their substance was subject to cross-examination; at worst, any error in their admission was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993). Moreover, her statement to a lay person shortly after she was bludgeoned with a baseball bat was not testimonial under Crawford, and, therefore, did not present a Confrontation Clause issue at all under that approach. See Whorton, 549 U.S. at 420, 127 S.Ct. at 1183; Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006); Delgadillo, 527 F.3d at 924. Under Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, it was based on a firmly rooted hearsay exception. See Cal. Evid.Code § 1240 (spontaneous statements).
*166Thirdly, we agree that admission of Barnett’s statements was more problematic. However, they were essentially cumulative to Keith’s statements, and the jury did not find Rust guilty for the attack on Barnett. Any error was harmless. See Brecht, 507 U.S. at 623, 113 S.Ct. at 1714.
(2) The instruction given to the jury regarding Rust’s prior domestic-violence offense (rape) did not undermine the requirement that he be found guilty beyond a reasonable doubt of every element of the offense at hand. See Mendez v. Knowles, 556 F.3d 757, 768 (9th Cir.2009). We note that the instruction was quite different from one that we have found unconstitutionally defective,5 and to the extent that some residual ambiguity remained, it did not render the instruction so defective that it violated due process.6
(3) While Rust’s first petition was still under submission, he filed a wholly new petition with the district court. The district court dismissed the new petition as second and successive. See 28 U.S.C. § 2244(b). In so doing, the district court erred because we have held that when a pro se petitioner (like Rust) files a new petition before the first one is decided, the district court must treat the new one as a motion to amend rather than as a second and successive petition. See Woods v. Carey, 525 F.3d 886, 890 (9th Cir.2008). Thus, we must reverse in this respect.7
AFFIRMED as to No. 07-55413; REVERSED and REMANDED as to No. 07-55697.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. 28 U.S.C. § 2254(d)(1).
. At the outset, the state argues that Rust either failed to exhaust or has procedurally defaulted his claims. However, in the district court the state expressly waived the exhaustion claim. See 28 U.S.C. § 2254(b)(3). Moreover, it did not raise the procedural-default claim. See Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir.2003); Franklin v. Johnson, 290 F.3d 1223, 1232-33 (9th Cir.2002). Thus, we will proceed to the merits.
. See Whorton v. Bockting, 549 U.S. 406, 421, 127 S.Ct. 1173, 1183-84, 167 L.Ed.2d 1 (2007).
. See Danforth v. Minnesota, 552 U.S. 264, -, 128 S.Ct. 1029, 1032-33, 169 L.Ed.2d 859 (2008); Delgadillo v. Woodford, 527 F.3d 919, 926-28 (9th Cir.2008).
. Gibson v. Ortiz, 387 F.3d 812, 818-19 (9th Cir.2004), overruled on other grounds by Byrd v. Lewis, 566 F.3d 855, 865-66 (9th Cir.2009).
. See Hedgpeth v. Pulido, — U.S.-,-, 129 S.Ct. 530, 532, 172 L.Ed.2d 388 (2008) (per curiam); Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 1832, 158 L.Ed.2d 701 (2004) (per curiam).
. We leave to the district court in the first instance the state’s assertions that the new petition violated a scheduling order, as well as that it was late and could not relate back. See Mayle v. Felix, 545 U.S. 644, 650, 125 S.Ct. 2562, 2566, 162 L.Ed.2d 582 (2005); King v. Ryan, 564 F.3d 1133, 1141 (9th Cir.2009). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471969/ | *168MEMORANDUM **
Joshua Larson (“Larson”) appeals the district court’s order dismissing his conviction for receipt of child pornography without prejudice, contending that the district court should have instead dismissed his conviction with prejudice. He also challenges his conviction for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).
We do not have jurisdiction over Larson’s challenge to the district court’s dismissal of the receipt conviction because it is not ripe for review. “Ripeness is more than a mere procedural question; it is determinative of jurisdiction. If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed.” S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir.1990). We determine “if a case is ripe for review by evaluating whether (1) the issues are fit for judicial decision, and (2) the parties will suffer hardship if we withhold decision.” United States v. Lazarenko, 476 F.3d 642, 652 (9th Cir.2007).
Declining to review the district court’s dismissal order imposes no hardship on Larson. Because we affirm Larson’s possession conviction, the Double Jeopardy Clause bars the government from recharging him with receipt or seeking to have his prior conviction reinstated. See United States v. Davenport, 519 F.3d 940 (9th Cir.2008). Moreover, all of Larson’s challenges to his possession conviction apply with equal or greater force to his receipt conviction and it is therefore impossible for the possession conviction to be vacated and the receipt conviction reinstated under any factual scenario. Under the unique facts of this case, there is simply no case or controversy for us to adjudicate on this Count.
We reject Larson’s various challenges to his conviction for possession of child pornography. Larson’s claim that the district court should have required the government to prove that he knew child pornography was illegal is foreclosed by circuit precedent. See United States v. Moncini, 882 F.2d 401, 406 (9th Cir.1989). The district court also properly rejected Larson’s claim that his developmental disability could serve as a form of diminished capacity, thus excusing a violation of § 2252A(a)(5)(B). We recognize the defense of diminished capacity only where the charged crime requires specific, rather than general intent. See United States v. Smith, 638 F.2d 131, 132 (9th Cir.1981). Because § 2252A(a)(5)(B) is a crime requiring only general intent, the diminished capacity defense does not apply.
Finally, we reject Larson’s claim that it violates principles of equal protection for the government to treat some juvenile offenders as adults while denying adult offenders who function mentally as children the reciprocal right to be treated as juveniles in the criminal justice system. It is unclear whether this claim is one of discrimination against the developmentally disabled or discrimination based on age, but we need not decide this question because rational basis review applies to both of these types of classifications. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442-47, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 311-13, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).
Applying rational basis review, it was reasonable for Congress to decide not to *169permit chronologically-aged adults to be charged as juveniles. Such a system would be difficult to administer and would have far-reaching consequences, consequences that Congress could have rationally decided were unnecessary, particularly in light of procedural and substantive considerations the legal system already offers developmentally disabled individuals.
Thus, we affirm Larson’s conviction for possession, and dismiss the portion of his appeal challenging his conviction for receipt. We vacate the district court’s decision on the merits of Larson’s challenge to the receipt statute and its mandatory minimum provision.
AFFIRMED in part, DISMISSED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471970/ | MEMORANDUM *
Defendant-Appellant Miguel AlvarezAdame appeals his conviction for reentering the United States after removal in violation of 8 U.S.C. § 1326(a), and the sentence enhancement imposed for having been removed subsequent to a felony conviction under § 1326(b).1 We have jurisdiction under 28 U.S.C. § 1291, and affirm the conviction, vacate the sentence, and remand for resentencing.
Alvarez-Adame raises five claims of error. First, he argues that the district court was required to dismiss the indictment because it did not state the precise date of a prior deportation or conviction. The indictment alleged that AlvarezAdame was “removed from the United States subsequent to May 22, 1997.” An indictment is sufficient to support both a charge and sentence enhancement under § 1326 if it “alleges a removal date, thus enabling the sentencing court to compare that date to the dates of any qualifying felony convictions to determine whether *171the sentence-enhancing sequence is satisfied.” United States v. Mendoza-Zaragoza, 567 F.3d 431, 434 (9th Cir.2009). There was no structural error in the indictment because the May 22, 1997, date permitted the district court to make the required comparison.
We address, second, AlvarezAdame’s collateral attack on his prior deportation. He argues that the indictment should have been dismissed because the 1989 deportation order, which formed the basis for later removals, was constitutionally defective. At his 1989 removal hearing, the immigration judge incorrectly told AlvareznAdame that he was ineligible for any form of relief, when in fact he was statutorily eligible for relief under the former Immigration and Nationality Act § 212(c). See 8 U.S.C. § 1182(c) (1988). Even assuming that this misinformation violated due process, Alvarez-Adame still cannot demonstrate prejudice as required for a successful collateral attack. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047-48 (9th Cir.2004). In order to have qualified for a discretionary § 212(c) waiver in 1989, Alvarez-Adame would have needed to show “unusual and outstanding equities” because of his criminal history. United States v. Gonzalez-Valerio, 342 F.3d 1051, 1056-57 (9th Cir.2003); In re Marin, 16 I. & N. Dec. 581, 586 n. 4 (BIA 1978). By 1989, AlvarezAdame had eleven criminal convictions, including assault with a deadly weapon and forcible rape. Although Alvarez-Adame had lived in the United States for many years and had close family here, those equities could not overcome his history of persistent and serious crime. See Gonzalez-Valerio, 342 F.3d at 1057. Because Alvarez-Adame cannot show plausible grounds for a § 212(c) waiver, no prejudice resulted from the alleged due process violation and the district court did not err in denying Alvarez-Adame’s motion to dismiss the indictment.
We address, third, the claim by Alvarez-Adame that the district court incorrectly imposed a sixteen-level increase in the base offense score under U.S. Sentencing Guidelines section 2L1.2(b)(l)(A). That upward adjustment applies where a defendant was deported following a drug-trafficking conviction with a sentence of at least thirteen months. In 1987, AlvarezAdame was sentenced to three years imprisonment following his guilty plea to conspiring to possess a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. The judgment and commitment—which explicitly incorporated the indictment—was before the district court at sentencing and the court properly imposed the sixteen-level adjustment. See U.S.S.G. § 2L1.2 cmt. n. 5; United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir.2006).
Fourth, Alvarez-Adame argues that the district court improperly declined to find that he had accepted responsibility and was entitled to a two-level base offense reduction under U.S.S.G. § 3El.l(a). He claims that the district court denied the downward adjustment because he exercised his constitutional right to a trial, and because the court wrongly believed that he lied about not having been advised about the possibility of § 212(c) relief during his 1989 deportation hearing. These claims are not supported by the record. The district court judge explained that he declined to find acceptance of responsibility because Alvarez-Adame lied about not having been advised of his appellate rights, and the sentencing transcript contains the district court’s finding that Alvarez-Adame affirmatively misled the court on this issue. The district court did not commit clear error in finding that Alvarez-Adame gave *172intentionally-misleading testimony, and did not err in denying the acceptance-of-responsibility adjustment. See United States v. Bazuaye, 240 F.3d 861, 863 (9th Cir.2001).2
Finally, Alvarez-Adame argues that the district court violated Rule 32 of the Federal Rules of Criminal Procedure by not ruling on his objections to the calculation of his criminal history score in the Criminal History Report. Where a defendant disputes a matter that impacts sentencing, Rule 32 requires the district court either to rule on the dispute or to determine that the contested matter will not be considered in sentencing. Fed.R.Crim.P. 32(i)(3)(B). Here, the district court did not rule on the specific objections raised by Alvarezr-Adame, but did conclude that his fourteen prior convictions constituted a “horrible record” sufficient to place Alvarez-Adame in Criminal History Category VI — the highest category.
The district court’s conclusion about Alvarez-Adame’s record is understandable, but our precedents mandate strict compliance with Rule 32. United States v. Houston, 217 F.3d 1204, 1208 (9th Cir.2000) (citing United States v. Femandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.1990) (en banc)). In his sentencing memorandum, Alvarez-Adame objected to having his 1982 marijuana-possession conviction counted toward his criminal history score. That conviction contributed three points toward Alvarez-Adame’s thirteen-point total, placing him in Criminal History Category VI. Without those three points, his criminal history score would drop to ten, a score falling within Criminal History Category V. This decrease would correspondingly reduce the starting Guideline range from 100-125 months to 92-115 months.
Because the sentencing court’s first obligation is to make the Guideline calculation correctly, a failure to follow Rule 32 and ensure a correct calculation is generally considered reversible error. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). In this case, the error was not harmless because it potentially affected the Guideline range, and a remand for resentencing is therefore required.3
The judgment of conviction is AFFIRMED, the sentence VACATED, and the case REMANDED to the district court for resentencing.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. The relevant facts are known to the parties, and will not be recited except as necessary to understand our disposition.
. Because Alvarez-Adame was not entitled to a base-level decrease under U.S.S.G. § 3El.l(a), we do not reach his argument that he was entitled to an additional one-point decrease under U.S.S.G. § 3El.l(b).
. We are aware that the actual sentence imposed, 110 months, falls within the Guideline range whether Alvarez-Adame belongs in Criminal History Category V or VI. Although we have some concern that the district court might have sentenced at the same level irrespective of the correct Guidelines range, thereby making it a waste of judicial resources to require resentencing, we will not speculate about what the district court would have done if it had resolved the objection pursuant to Rule 32. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471972/ | MEMORANDUM **
Petitioner-Appellant Kethon Triggs (“Triggs”), a state prisoner, appeals the district court’s denial of his habeas petition. In 1995, a jury convicted Triggs of cocaine possession in violation of California Health and Safety Code section 11350(a). Under California’s three-strikes law, the trial court sentenced Triggs to 25 years to life in prison.
Triggs petitioned for habeas relief under 28 U.S.C. § 2254, claiming that he was incompetent to stand trial, and that the state court denied him due process in failing sua sponte to hold a competency hearing. Secondly, Triggs claims that trial counsel’s failure to investigate and present evidence about his incompetency denied him his Sixth Amendment right to effective assistance of counsel.1 Thirdly, Triggs claims that the admission at trial of a preliminary hearing transcript from 1982 violated his Sixth Amendment right to confrontation. Finally, Triggs claims that his sentence constitutes cruel and unusual punishment as prohibited by the Eighth Amendment.
We review de novo the district court’s denial of Triggs’s habeas petition. Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir.2008). In conducting a review of a state court decision, we “look to the last reasoned state-court decision.” Van Lynn *175v. Farmon, 347 F.3d 735, 738 (9th Cir.2003). In so doing, we must determine whether the state court proceedings “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” as to any claim adjudicated on the merits in State court proceedings. 28 U.S.C. § 2254(d). Where, as here, there has been no state court decision on the merits of several of the claims, we review those claims de novo. Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir.2005). In reviewing such claims, we do not follow the AED-PA deference standard. See Pirtle v. Morgan, 313 F.3d 1160, 1167-68 & n. 4 (9th Cir.2002). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Competency Hearing
Triggs claims that he was denied due process because he was incompetent at the time of his 1995 trial and 1997 re-sentencing and the state court did not hold a competency hearing. Because the state courts did not address the merits of this claim, we review de novo without applying the AEDPA deference standard.
A defendant’s constitutional right to due process is violated if his competency to stand trial was at issue and he did not receive an adequate competency determination. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). A trial court is required to conduct a competency hearing if it receives evidence or information that raises a bona fide doubt about the defendant’s competency to stand trial. Odie v. Woodford, 238 F.3d 1084, 1087 (9th Cir.2001). In considering such a claim, we examine only the information that was before the trial court. AmayaRuiz v. Stewart, 121 F.3d 486, 489 (9th Cir.1997). Evidence of mental illness does not, by itself, raise such a doubt, de Kaplany v. Enomoto, 540 F.2d 975, 983 & n. 9 (9th Cir.1976).
Triggs had a long history of mental illness and commitment, of which the trial court and counsel were aware. During his trial in 1995, Triggs had a violent outburst in jail and was moved to a safety cell. While the sheriffs deputies were moving Triggs, he bit an officer on the hand. Triggs spent the night in the safety cell, and was returned to regular confinement the following day. The trial court learned of this incident when Triggs was charged with aggravated assault on an officer.
While the trial judge was aware that Triggs had assaulted an officer, he was not presented with contemporaneous evidence that would suggest Triggs’s incompetency. The trial record reflects that the only information presented to the court was the probable cause statement documenting the assault. That statement does not contain any facts about Triggs’s condition either immediately before or after the incident. Significantly, neither trial counsel nor the district attorney questioned Triggs’s competence to stand trial, either before or after the incident at the jail. Further, Triggs’s conduct, demeanor, and trial testimony did not give rise to a bona fide doubt about Triggs’s competence at the time of trial. Indeed, Triggs’s trial testimony shows that he fully understood the charge and that he had little difficulty relating his defense to the jury. Although the trial court was aware of Triggs’s past mental illness and that he had bitten an officer at the jail, this information, in light of Triggs’s demeanor and testimony at trial, was insufficient to raise a bona fide doubt about Triggs’s competence. Nor did evidence suggest that Triggs was incompetent at the time of his 1997 re-sentencing. *176The trial court therefore did not err in failing to hold, sua sponte, a competency hearing.
Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was constitutionally deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the state courts did not address the merits of this claim, we review de novo without applying the AEDPA deference standard.
Counsel was aware of Triggs’s history of mental illness and that he sought to use his mental competence to challenge the validity of his prior convictions in 1982 and 1987. However, even considering counsel’s knowledge of the incident at the jail during trial, in light of Triggs’s ability to communicate with counsel and to understand the charge and proceedings, including his defense testimony, counsel was not ineffective in investigating Triggs’s competence in 1995 or failing to request a hearing regarding Triggs’s competency in 1995 and 1997.
Even assuming that counsel was ineffective, Triggs was not prejudiced by counsel’s performance. The fact that he testified coherently in his own defense demonstrates that he possessed “at least a minimum rational understanding of the trial proceedings” and the ability to participate in them. See Benson v. Terhune, 304 F.3d 874, 885 (9th Cir.2002). Trial counsel also attested in the state court habeas proceeding that Triggs spoke with him frequently before and during trial about problems he was having with the jail staff, and gave him copies of grievances that he had filed against the deputies at the jail, including a pro se civil suit. This further shows that Triggs was competent to stand trial, and that therefore it was not reasonably probably that a mental health evaluation of him at the time of trial would not have concluded otherwise.
Sixth Amendment Right to Confrontation
Triggs claims that the admission of the 1982 burglary preliminary hearing transcripts at his 1995 trial violated his Sixth Amendment right to confrontation because the state made no showing that the witnesses were unavailable to testify, and because Triggs was physically screened from the witnesses at the hearing. In reviewing these claims, we need not decide whether Triggs properly presented them to the California Court of Appeal because, whether we apply AED-PA’s deferential standard of review or review de novo, we reach the same result.
Triggs’s Confrontation Clause claim cannot benefit from the rule announced in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because Crawford does not apply retroactively. Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). We must therefore decide whether the state court’s admission of the transcripts was constitutional under Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).
Under rules announced by the California Supreme Court,2 the prosecution was precluded from presenting the live testimony at Triggs’s 1995 trial of the witnesses in the 1982 burglary preliminary hearing. This preclusion rendered the witnesses legally unavailable, triggering the necessity rule articulated in Ohio v. Roberts: that prior testimony is admissible in trial if the witness is unavailable to *177testify, so long as the testimony bears some “indicia of reliability.” Id. at 65-66, 100 S.Ct. 2531 (internal quotations omitted). The 1982 preliminary hearing transcripts were reliable under Roberts because defense counsel had the opportunity to cross examine the witnesses (and did so), thus affording “the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” Id. at 73, 100 S.Ct. 2531 (internal quotations omitted). The admission of the transcripts was thus constitutionally permissible.
Triggs makes a separate claim that his right to confrontation was violated because he was physically screened from the witnesses at the 1982 preliminary hearing. He is not challenging his underlying conviction in that case, but rather the admissibility of the transcript of the preliminary hearing in this one. Thus, the screen is evidence that must be considered as part of his larger Confrontation Clause claim under Roberts. Triggs does not contend that the screen impeded defense counsel’s cross examination of the witnesses, nor does he argue that the preliminary hearing transcripts are any less reliable because of it. See Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (“[T]he face-to-face confrontation requirement is not absolute....”). We therefore find no constitutional violation.
Eighth Amendment Claim
Triggs claims that the state trial court violated the Eighth Amendment prohibition against cruel and unusual punishment when it sentenced him to 25 years to life in prison. He argues that the sentence is disproportionate to the crime, and that it was impermissibly based on mental illness and drug addiction. Because the California Court of Appeal addressed the merits of this claim, we review under the deferential AEDPA standard.
The Supreme Court has held that a sentence is unconstitutional under the Eighth Amendment only in “exceedingly rare” cases, Ewing v. California, 538 U.S. 11, 22, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (internal quotations omitted), where the punishment is grossly disproportionate to the crime. Lockyer v. Andrade, 538 U.S. 63, 77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Triggs’s sentence does not rise to this level. Nor is there any evidence that his sentence was based on mental illness or drug addiction. We therefore conclude that the state court’s decision rejecting this claim was not an unreasonable application of established Supreme Court law. See Lockyer, 538 U.S. at 70-71, 123 S.Ct. 1166.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Triggs also argues that he was denied due process because he was, in fact, convicted while incompetent. For the purposes of a habeas petition, however, we need only determine whether the trial court proceedings were adequate to protect his right. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Therefore, this argument is subsumed by Triggs’s other two competency arguments: that the trial judge should have ordered a competency hearing sua sponte, and that his trial counsel was ineffective for failing to raise the issue himself and request a hearing.
. See People v. Reed, 13 Cal.4th 217, 226, 52 Cal.Rptr.2d 106, 914 P.2d 184 (1996); People v. Guerrero, 44 Cal.3d 343, 355, 243 Cal.Rptr. 688, 748 P.2d 1150(1988). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471975/ | PREGERSON, J.,
dissenting:
The majority disposition holds that the Administrative Law Judge (“ALJ”) properly denied Burkstrand’s application for disability and supplemental security income benefits. I respectfully disagree.
First, the ALJ erred in posing a hypothetical to the vocational expert that did not include Burkstrand’s inability to work eight hours in a day. We have held that for a “vocational expert’s testimony to have any value, the hypothetical must set forth all of a Plaintiffs impairments.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.1984). Here, the vocational expert’s hypothetical did not include Burkstrand’s inability to work a full day. The validity of the vocational expert’s conclusion is therefore questionable because it was based on an improper hypothetical.
The ALJ also erred by finding that Burkstrand’s complaints of pain and functional limitations were not credible because his daily activities indicated he was able to work. We have repeatedly held that “the mere fact that a plaintiff has carried on certain daily activities ... does not in any way detract from her credibility as to her *181overall disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.” Benecke v. Barnhart, 879 F.3d 587, 594 (9th Cir.2004) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001)). Here, the record indicates that Burkstrand was able to walk two blocks, play with his grandchildren, shop with his family, and visit relatives. These activities, however, do not indicate an ability to work in the competitive and stressful conditions of the real world.
Finally, the ALJ improperly rejected Burkstrand’s treating physician, Dr. Galvas’s, determination that Burkstrand could not work a full day. To reject an uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005). Here, Dr. Galvas attended to Burkstrand for seven months and was in communication with Burkstrand’s physical therapist and chiropractor. I therefore believe his opinion was fully informed and medically sound.
Accordingly, I dissent. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471978/ | MEMORANDUM **
Before the district court, the government alleged that, along with several others, Defendants-Appellants Mario Arriaga-Nunez, aka, Jorge Alexander Canchóla (Canchóla) and Javier Castaneda transported and distributed large quantities of methamphetamine in Nevada and Idaho. Canchóla pled guilty and requested a 188-month sentence, which the district court imposed. On appeal, Canchóla argues that the sentence was unreasonable. Castaneda went to trial and was convicted. On appeal, he argues that the district court erred by failing to give a mere presence jury instruction and by failing to grant a mistrial, admonish the jury, or strike certain testimony that he argues was irrelevant and unduly prejudicial. As the remaining facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our disposition.
1. Substantive Reasonableness of Canchola’s Sentence
Canchola argues that his sentence was substantively unreasonable. The Sentencing Guidelines and 18 U.S.C. § 3553(a) factors, however, indicate otherwise. First, Canchola’s sentence is twenty-two months below the bottom of the applicable range of 210 to 262 months. Moreover, while Canchóla received a longer sentence than most of his co-conspirators, he maintained the drug “stash house,” he coordinated with local distributors, he was involved in Las Vegas drug deals, and, on several occasions, he discussed future drug purchases with an undercover officer. Thus, the sentence does not create an “unwarranted sentence disparity] among defendants with similar records who have *183been found guilty of similar conduct.” See 18 U.S.C. § 3553(a)(1). The other § 3553(a) factors also support the sentence imposed. For example, the sentence is appropriate to “adequately] deter[ ]” both Canchóla and the public from similar crimes, see id. § 3553(a)(2)(B). The district court therefore did not abuse its discretion in sentencing Canchóla. See United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009) (“[T]he substantive reasonableness of a sentence — whether objected to or not at sentencing — is reviewed for abuse of discretion.”)
2. Castaneda’s Motion to Grant a Mistrial, Strike Evidence, or Admonish the Jury
Castaneda contends that the district court abused its discretion by failing to grant a mistrial, strike evidence, or admonish the jury regarding parts of Officer Bustos’s trial testimony which Castaneda argues were inadmissible under Federal Rules of Evidence 401, 402, and 403. Bustos testified that Canchóla was concerned with events in Mexico affecting the supply of ephedrine and that he sold drugs because of Mexican government corruption. This testimony supports the government’s theory that there was a conspiracy to distribute and posses methamphetamine, and the testimony is therefore relevant. See Fed.R.Evid. 401. Though the evidence regarding Canchola’s knowledge of the drug trade and his reasons for selling drugs is not particularly probative, it is even less prejudicial. Cf. United States v. Vallejo, 237 F.3d 1008, 1016-17 (9th Cir.2001) (holding inadmissible agent’s testimony about drug trafficking procedures which implied, without evidence, that any defendant had such knowledge). In this case, Bustos recounted what Canchóla, Castaneda’s coconspirator, had told Bustos about Canchola’s knowledge of drug trafficking. Finally, Canchola’s statement about the Mexican government’s stealing money did not tie Castaneda to Mexican government corruption; if it had any effect, it suggested Canchola’s aversion to involvement with the government. It was therefore not prejudicial. The district court did not abuse its discretion with regard to Bustos’s testimony. See Fed.R.Evid. 403.
3. Castaneda’s Requested Mere Presence Instruction
Castaneda also argues that the court should have given the jury a mere proximity instruction. The government, however, presented substantial evidence of Castaneda’s involvement in the drug activity. See United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir.1992) (A “mere presence” instruction is unnecessary when the government’s case rests on “more than just a defendant’s presence.”). The DEA intercepted several phone calls between Castaneda and Canchóla in which they used various codes to discuss drug deals. Castaneda was captured on video removing a bundle, consistent with a package of drugs, from within a vehicle’s brake light. Finally, two witnesses testified that Castaneda had brought them methamphetamine. The district court therefore did not abuse its discretion in denying Castaneda’s request for a mere presence instruction. See id. at 1282.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471987/ | MEMORANDUM **
This case was remanded to us by the United States Supreme Court following the Court’s decision in Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Following Scott, we asked for supplemental briefing from the parties. In Scott, the Court cautioned that we are not required to accept a non-movant’s version of events when it is “clearly contradicted]” by a video in the record and the accuracy of the video is not disputed. Scott, 550 U.S. at 378, 127 S.Ct. 1769. Unlike the court of appeals in Scott, we reviewed the video that captured the events at issue in this case. The "video did not “clearly contradict[ ]” the plaintiffs’ version of events.
Because the video does not clearly contradict the version of events recounted by the plaintiffs, and for the reasons stated in our prior memorandum disposition, Lehman v. Robinson, 228 Fed.Appx. 697 (9th Cir.2007), the district court’s denial of Robinson and Tygard’s motion for summary judgment based on qualified immunity is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471989/ | *190MEMORANDUM ***
Frederick J. Vasquez appeals the district court’s order affirming an administrative law judge’s denial of social security benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291. The district court’s order is reviewed de novo. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.2001). The decision may be set aside only if it is based on legal error or unsupported by substantial evidence. Id. If the evidence is subject to different rational interpretations, the ALJ’s decision must be upheld. Id. We affirm.
Substantial evidence supports the ALJ’s finding that Vasquez’s mental and physical conditions do not prevent him from engaging in substantial gainful activity. 42 U.S.C. § 423(d)(1)(A); Edlund, 253 F.3d at 1156. The ALJ found Vasquez’s reported behavior consistent with narcissistic personality traits, not a listed mental impairment. 20 C.F.R. § 404, subpt. P, app’x 1. The medical records describe Vasquez as an elitist thinker, derogatory toward and critical of others, and unwilling to accept responsibility for social discord. The ALJ was not required to specify the listed mental impairments Vasquez failed to meet. Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir.1990). The ALJ considered Vasquez’s ability to work in light of his personality limitations, and concluded Vasquez could work as an inspector, production worker, or packer. Soc. Sec. Regulation 85-15,1985 WL 56857 (1985).
The ALJ provided specific and legitimate reasons for not giving significant weight to the opinion of Vasquez’s treating rheumatologist that Vasquez’s physical conditions prevent him from working. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005). The rheumatologist’s opinion is comprised of non-detailed conclusions in checklist form, without an explanation or description of the severity of Vasquez’s symptoms, and conflicts with the consultative examiner’s report and evidence that Vasquez maintains a daily routine of household chores and childcare responsibilities. Batson v. Comm’r, 359 F.3d 1190, 1194-95 (9th Cir.2004) (holding that treating physicians’ conflicting, checklist form opinions were entitled to minimal weight). The ALJ provided specific, clear, and convincing reasons for rejecting Vasquez’s testimony about the severity of his symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996). Vasquez’s self-reported pain was inconsistent with his reported daily activities, and he failed to delineate his pain. Rather, he testified primarily about sleep disturbances.
Vasquez requests a remand to the ALJ to develop the record because the ALJ limited the vocational expert’s repetitive cross-examination. He was not entitled to unlimited cross-examination at the hearing, just cross-examination necessary for a full and true disclosure of facts. 5 U.S.C. § 556(d); Solis v. Schweiker, 719 F.2d 301, 302 (9th Cir.1983). His remand request is denied becaüse he fails to identify testimony or evidence the ALJ precluded.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471991/ | MEMORANDUM**
Defendant Subhash Chadha appeals his sentence following a guilty plea to one count of wire fraud in violation of 18 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm the sentence, vacate the judgment, and remand with instructions to conform the judgment to the record.1
Because Chadha did not object to the conditions of sentencing before the district court, we review his sentence for plain error. United States v. Maciel-Vasquez, 458 F.3d 994, 996 n. 3 (9th Cir.2006).
Chadha first argues that the district court plainly erred by imposing a condition — that he participate in “mental health counseling as directed by the probation officer” — not reasonably related to any of the 18 U.S.C. § 3553(a) factors. However, we conclude that Chadha’s sentence is reasonably related to the court’s mandatory consideration of “the need for the sentence imposed ... to provide the defendant with needed ... medical care[ ] or other correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2)(D). Chadha told the probation officer that he would “rather be dead” than feel the shame caused by his conviction, and that he found his conviction “humiliating and degrading.” Chadha’s wife described Chadha as “depressed and worried.” These facts support the district court’s exercise of discretion to impose mental health treatment as a condition of supervised release under 18 U.S.C. § 3553(a)(2)(D). See United States v. Lopez, 258 F.3d 1053, 1057 (9th Cir.2001). Thus, the opinion is reasonably based on the record, and there is no error .that is plain. Moreover, because Chadha can still seek modification of the conditions of supervised release before the district court, it is difficult to see how his substantial rights could be affected. Finally, even assuming the existence of plain error affecting substantial rights, we conclude that any such error in sentencing did not “seriously affect[] the fairness, integrity, or public reputation of judicial proceedings,” and we decline to exercise our discretion to notice any alleged error. See Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal citations and quotations omitted).
Next, Chadha argues that the district court erred by failing to provide a statement of reasons for the imposition of the mental health treatment and access-to-business-records conditions. However, absent a “particularly significant liberty interest,” district courts are generally not required to articulate reasons for each condition of supervised release, provided that those reasons can be adequately determined from the record'. See United States v. Betts, 511 F.3d 872, 876 (9th Cir.2007). As previously discussed, the record provides ample support for the mental health *193treatment condition, and its imposition was not an abuse of discretion. Similarly, the aecess-to-business-records condition was reasonably justified by the record because Chadha has a sizeable restitution obligation of over $488,000, a history of noncompliance with court-ordered financial disclosure, and several outstanding judgments. Moreover, the facts underlying Chadha’s conviction involved falsification of financial statements, the very business records to which the condition would ostensibly provide access. Accordingly, the district court did not abuse its discretion by imposing the access requirement. Finally, even assuming the existence of error, there is no indication such an error affected the fairness, integrity, or public reputation of the proceedings.
Third, Chadha contends that Rule 32 requires that the court provide notice before imposing the access-to-business-records condition. Under U.S.S.G. § 5D1.3(d)(3), a court that imposes an order of restitution may additionally require the defendant to provide the probation officer “access to any requested financial information.” Because Chadha’s sentence included a $488,436.53 restitution order, the district court was entitled to require access to defendant’s records. To the extent that access to “any and all business records, client lists and other records pertaining to the operation of any business owned” might arguably be broader than “any requested financial information,” the alleged distinction is not sufficiently “plain,” “clear,” or “obvious” to constitute plain error. See Johnson, 520 U.S. at 467, 117 S.Ct. 1544.2
Finally, Chadha requests, without objection by the government, that the judgment be remanded for the limited purpose of conforming the written judgment to the district court’s statements at the sentencing hearing. “Where a discrepancy arises between the terms of an oral pronouncement of a sentence and the subsequent written judgment, the terms of the oral pronouncement control.” United States v. Orlando, 553 F.3d 1235, 1240 (9th Cir.2009). The sentencing judge’s oral pronouncement conditions Chadha’s payment of the costs of mental health treatment on his “ability to pay for such treatment.” That condition was left out of the written judgment and commitment order. The government does not contest this issue in its briefs and agrees that the written judgment is in error. As a result, we remand for the limited purpose of conforming the written judgment to the oral pronouncement at the sentencing hearing whereby the district court order that Chadha’s obligation to pay for his mental health treatment would be conditioned on his ability to pay.
The sentence is AFFIRMED; the judgment is VACATED and REMANDED with instructions to conform the written judgment to the record of what was pronounced.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. The parties are familiar with the facts of this case and we do not repeat them here.
. Because the access-to-business-records condition is contemplated by the Sentencing Guidelines and in any event does not constitute a plain error, we do not reach the issue of the effect of Irizarry v. United States, - U.S. -, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008), on Rule 32's implied notice requirement. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471981/ | MEMORANDUM *
Defendant-Appellant Steven Landers (“Landers”) was convicted, after a bench trial, of manufacturing with intent to possess and distribute 100 or more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Landers now appeals the *185district court’s denial of his motions to suppress. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
The district court did not err in finding the power company’s inspection did not implicate Landers’s Fourth Amendment rights because Landers did not meet his burden to show government action. See United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1995). The power company was furthering its own interests with a legitimate, independent motivation of investigating a possible power theft. See id. at 1094. There was no obvious violation of the law requiring the officers’ intervention. See United States v. Reed, 15 F.3d 928, 931 (9th Cir.1994).
The district court did not err in denying Landers a Franks hearing because the court properly found that Landers failed to make a substantial preliminary showing that any allegedly false statements were made knowingly and intentionally, or with reckless disregard for the truth; and that they were necessary to a finding of probable cause. See United States v. Craighead, 539 F.3d 1073, 1080 (9th Cir.2008), citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471983/ | MEMORANDUM *
Sarabjit Singh Takhar, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). As the facts of the case are known to the parties, we need not repeat them here.
In his petition for review, Takhar argues that because the BIA found the IJ’s adverse credibility determination clearly erroneous, it should also have credited his explanation for failing to produce any corroborating evidence. In his brief before the BIA, however, Takhar “d[id] not contest the [IJ’s] finding that he should have provided ... corroborating statements.” Takhar therefore failed to exhaust this claim, and we are barred “from reaching the merits of a legal claim not presented in administrative proceedings below.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
As the corroboration requirement was the only ground for the BIA’s denial of Takhar’s claims, we may not consider any of his other contentions. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir.2004) (per curiam).
Accordingly, Takhar’s petition for review is
DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471985/ | MEMORANDUM *
Diamond Electric appeals the district court’s summary judgment to Pace Pacific. This is a diversity case applying Nevada law. We affirm.
Pace’s letter of intent to Diamond did not create a binding contract. “Commonly, a letter of intent is used so that people negotiating toward an agreement, who do not yet have one, can get their preliminary inclinations down on paper without committing themselves.” Rennick v. O.P.T.I.O.N. Care, Inc., 77 F.3d 309, 315 (9th Cir.1996). The purpose of a letter of intent is ordinarily to “avoid[ ] a misunderstanding that a commitment has been made.” Id. Pace’s letter shows that it intended to form a contract with Diamond at a later date. An agreement to agree on contract terms at a later date is not a binding contract in Nevada. City of Reno v. Silver State Flying Serv., Inc., 84 Nev. 170, 438 P.2d 257, 261 (1968).
Nor did Diamond establish a genuine issue of fact as to whether Pace was unjustly enriched by receiving Diamond’s “value engineering” free of charge. Value engineering was part of the competitive bidding process and not performed with an expectation of payment. The record contains no evidence that Diamond provided unique insight, in the expectation that it would be compensated, that Pace would not have received from another electrical subcontractor. These facts do not go “against [the] fundamental principles of justice or equity.” Asphalt Prods. Corp. v. All Star Ready Mix, Inc., 111 Nev. 799, 898 P.2d 699, 701 (1995) (quotations omitted).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478103/ | ORDER
The parties having so agreed, it is
*117ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471980/ | MEMORANDUM *
Defendant-Appellant Steven Landers (“Landers”) was convicted, after a bench trial, of manufacturing with intent to possess and distribute 100 or more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Landers now appeals the *185district court’s denial of his motions to suppress. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
The district court did not err in finding the power company’s inspection did not implicate Landers’s Fourth Amendment rights because Landers did not meet his burden to show government action. See United States v. Cleaveland, 38 F.3d 1092, 1093 (9th Cir.1995). The power company was furthering its own interests with a legitimate, independent motivation of investigating a possible power theft. See id. at 1094. There was no obvious violation of the law requiring the officers’ intervention. See United States v. Reed, 15 F.3d 928, 931 (9th Cir.1994).
The district court did not err in denying Landers a Franks hearing because the court properly found that Landers failed to make a substantial preliminary showing that any allegedly false statements were made knowingly and intentionally, or with reckless disregard for the truth; and that they were necessary to a finding of probable cause. See United States v. Craighead, 539 F.3d 1073, 1080 (9th Cir.2008), citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471984/ | MEMORANDUM *
Diamond Electric appeals the district court’s summary judgment to Pace Pacific. This is a diversity case applying Nevada law. We affirm.
Pace’s letter of intent to Diamond did not create a binding contract. “Commonly, a letter of intent is used so that people negotiating toward an agreement, who do not yet have one, can get their preliminary inclinations down on paper without committing themselves.” Rennick v. O.P.T.I.O.N. Care, Inc., 77 F.3d 309, 315 (9th Cir.1996). The purpose of a letter of intent is ordinarily to “avoid[ ] a misunderstanding that a commitment has been made.” Id. Pace’s letter shows that it intended to form a contract with Diamond at a later date. An agreement to agree on contract terms at a later date is not a binding contract in Nevada. City of Reno v. Silver State Flying Serv., Inc., 84 Nev. 170, 438 P.2d 257, 261 (1968).
Nor did Diamond establish a genuine issue of fact as to whether Pace was unjustly enriched by receiving Diamond’s “value engineering” free of charge. Value engineering was part of the competitive bidding process and not performed with an expectation of payment. The record contains no evidence that Diamond provided unique insight, in the expectation that it would be compensated, that Pace would not have received from another electrical subcontractor. These facts do not go “against [the] fundamental principles of justice or equity.” Asphalt Prods. Corp. v. All Star Ready Mix, Inc., 111 Nev. 799, 898 P.2d 699, 701 (1995) (quotations omitted).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471986/ | MEMORANDUM **
This case was remanded to us by the United States Supreme Court following the Court’s decision in Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Following Scott, we asked for supplemental briefing from the parties. In Scott, the Court cautioned that we are not required to accept a non-movant’s version of events when it is “clearly contradicted]” by a video in the record and the accuracy of the video is not disputed. Scott, 550 U.S. at 378, 127 S.Ct. 1769. Unlike the court of appeals in Scott, we reviewed the video that captured the events at issue in this case. The "video did not “clearly contradict[ ]” the plaintiffs’ version of events.
Because the video does not clearly contradict the version of events recounted by the plaintiffs, and for the reasons stated in our prior memorandum disposition, Lehman v. Robinson, 228 Fed.Appx. 697 (9th Cir.2007), the district court’s denial of Robinson and Tygard’s motion for summary judgment based on qualified immunity is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471990/ | MEMORANDUM**
Defendant Subhash Chadha appeals his sentence following a guilty plea to one count of wire fraud in violation of 18 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm the sentence, vacate the judgment, and remand with instructions to conform the judgment to the record.1
Because Chadha did not object to the conditions of sentencing before the district court, we review his sentence for plain error. United States v. Maciel-Vasquez, 458 F.3d 994, 996 n. 3 (9th Cir.2006).
Chadha first argues that the district court plainly erred by imposing a condition — that he participate in “mental health counseling as directed by the probation officer” — not reasonably related to any of the 18 U.S.C. § 3553(a) factors. However, we conclude that Chadha’s sentence is reasonably related to the court’s mandatory consideration of “the need for the sentence imposed ... to provide the defendant with needed ... medical care[ ] or other correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2)(D). Chadha told the probation officer that he would “rather be dead” than feel the shame caused by his conviction, and that he found his conviction “humiliating and degrading.” Chadha’s wife described Chadha as “depressed and worried.” These facts support the district court’s exercise of discretion to impose mental health treatment as a condition of supervised release under 18 U.S.C. § 3553(a)(2)(D). See United States v. Lopez, 258 F.3d 1053, 1057 (9th Cir.2001). Thus, the opinion is reasonably based on the record, and there is no error .that is plain. Moreover, because Chadha can still seek modification of the conditions of supervised release before the district court, it is difficult to see how his substantial rights could be affected. Finally, even assuming the existence of plain error affecting substantial rights, we conclude that any such error in sentencing did not “seriously affect[] the fairness, integrity, or public reputation of judicial proceedings,” and we decline to exercise our discretion to notice any alleged error. See Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal citations and quotations omitted).
Next, Chadha argues that the district court erred by failing to provide a statement of reasons for the imposition of the mental health treatment and access-to-business-records conditions. However, absent a “particularly significant liberty interest,” district courts are generally not required to articulate reasons for each condition of supervised release, provided that those reasons can be adequately determined from the record'. See United States v. Betts, 511 F.3d 872, 876 (9th Cir.2007). As previously discussed, the record provides ample support for the mental health *193treatment condition, and its imposition was not an abuse of discretion. Similarly, the aecess-to-business-records condition was reasonably justified by the record because Chadha has a sizeable restitution obligation of over $488,000, a history of noncompliance with court-ordered financial disclosure, and several outstanding judgments. Moreover, the facts underlying Chadha’s conviction involved falsification of financial statements, the very business records to which the condition would ostensibly provide access. Accordingly, the district court did not abuse its discretion by imposing the access requirement. Finally, even assuming the existence of error, there is no indication such an error affected the fairness, integrity, or public reputation of the proceedings.
Third, Chadha contends that Rule 32 requires that the court provide notice before imposing the access-to-business-records condition. Under U.S.S.G. § 5D1.3(d)(3), a court that imposes an order of restitution may additionally require the defendant to provide the probation officer “access to any requested financial information.” Because Chadha’s sentence included a $488,436.53 restitution order, the district court was entitled to require access to defendant’s records. To the extent that access to “any and all business records, client lists and other records pertaining to the operation of any business owned” might arguably be broader than “any requested financial information,” the alleged distinction is not sufficiently “plain,” “clear,” or “obvious” to constitute plain error. See Johnson, 520 U.S. at 467, 117 S.Ct. 1544.2
Finally, Chadha requests, without objection by the government, that the judgment be remanded for the limited purpose of conforming the written judgment to the district court’s statements at the sentencing hearing. “Where a discrepancy arises between the terms of an oral pronouncement of a sentence and the subsequent written judgment, the terms of the oral pronouncement control.” United States v. Orlando, 553 F.3d 1235, 1240 (9th Cir.2009). The sentencing judge’s oral pronouncement conditions Chadha’s payment of the costs of mental health treatment on his “ability to pay for such treatment.” That condition was left out of the written judgment and commitment order. The government does not contest this issue in its briefs and agrees that the written judgment is in error. As a result, we remand for the limited purpose of conforming the written judgment to the oral pronouncement at the sentencing hearing whereby the district court order that Chadha’s obligation to pay for his mental health treatment would be conditioned on his ability to pay.
The sentence is AFFIRMED; the judgment is VACATED and REMANDED with instructions to conform the written judgment to the record of what was pronounced.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. The parties are familiar with the facts of this case and we do not repeat them here.
. Because the access-to-business-records condition is contemplated by the Sentencing Guidelines and in any event does not constitute a plain error, we do not reach the issue of the effect of Irizarry v. United States, - U.S. -, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008), on Rule 32's implied notice requirement. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472111/ | *578ON MOTION
ORDER
Upon consideration of Kenneth L. Jordan’s motion to voluntarily dismiss his appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471992/ | MEMORANDUM **
Denice Greenwalt-Baltrons appeals pro se from the district court’s judgment affirming the Commissioner of Social Security’s denial of disability insurance benefits. “We review de novo the district court’s order affirming the Commissioner’s denial of benefits.” Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir.2005) (quoting Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir.2004)). “A decision to deny benefits will only be disturbed if it is not supported by ‘substantial evidence or it is based on legal error.’ ” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989)). The district court exercised jurisdiction under 42 U.S.C. § 405(g). We have jurisdiction under 28 U.S.C. § 1291. We affirm.
*195The facts of this case are known to the parties and we do not repeat them here.
Substantial evidence supports the administrative law judge’s (“ALJ”) finding that Greenwalt-Baltrons’ medical impairments did not constitute a severe disability-before the date she was last insured. See 42 U.S.C. § 423(d)(1)(A).
The ALJ properly rejected Dr. Luigi Piciucco’s opinion as irrelevant. See Lombardo v. Schweiker, 749 F.2d 565, 567 (9th Cir.1984).
The ALJ properly denied Greenwalt-Baltrons’ request for a supplemental hearing. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir.1996); Copeland v. Bowen, 861 F.2d 536, 539 (9th Cir.1988).
We conclude that Greenwalt-Baltrons’ ineffective assistance of counsel claim is without merit. See Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir.1985).
We decline to address Greenwalt-Baltrons’ arguments raised for the first time on appeal. See Macri v. Chater, 93 F.3d 540, 544 n. 3 (9th Cir.1996); Abex Corp. v. Ski’s Enters., 748 F.2d 513, 516 (9th Cir.1984).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471996/ | *198MEMORANDUM **
Gloria Lucia Salmerón Sanchez, her husband J. Baudelio Barrera Guzman, and their three sons, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“U”) order denying the parents’ applications for cancellation of removal. We deny the petition for review.
Petitioners do not challenge the IJ’s denial of their applications for cancellation of removal. Instead, they request that their case be remanded so that Barrera Guzman can apply for adjustment of status. We deny petitioners’ request.
Petitioners’ challenge to the BIA’s decision to streamline their case is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.2003).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471998/ | MEMORANDUM **
Robert Raphaelson appeals the district court’s order granting plaintiffs Ashley Andrews and Ashtonwood Stud Associates, L.P. (collectively, “Andrews”) partial summary judgment on her claims for conversion under Nevada law. Andrews appeals the district court’s order reducing the jury’s punitive damages award. We affirm the district court’s grant of summary judgment, but reverse the district court’s reduction of punitive damages.
The facts and procedural history of this case are familiar to the parties, and we do not repeat them here. We review the district court’s grant of summary judgment de novo. Diaz v. Eagle Produce Ltd. P’Ship, 521 F.3d 1201, 1207 (9th Cir.2008). We review the district court’s determination of state law under the same standard. See Salve Regina Coll. v. Russell, 499 U.S. 225, 239, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).
I
Under Nevada law, “[cjonversion is a distinct act of dominion wrongfully exerted over another’s personal property in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights.” Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 5 P.3d 1043, 1048 (2000) (quotation marks omitted). A plaintiff in Nevada can prevail on a claim for conversion by establishing that the defendant wrongfully withheld specifically identifiable money that is due. See Larson v. B.R. Enters., Inc., 104 *200Nev. 252, 757 P.2d 354, 356 (1988). Raphaelson admitted that he retained the entirety of the proceeds from the sales of stallion syndicate nominations and that a portion of these proceeds rightfully belonged to Andrews, and Andrews introduced evidence that Raphaelson retained these proceeds without her consent. Under Kentucky law, which governs the joint venture agreements, the members of a joint venture have no right to possess property of the venture for personal use without the consent of the other members, see Ky.Rev.Stat. § 362.270(2)(a), and Raphaelson introduced no evidence indicating that the agreements at issue either explicitly or implicitly changed the contours of this right. Accordingly, the district court properly granted partial summary judgment to Andrews.
II
Nevada Revised Statutes section 42.005 permits punitive damages “in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, express or implied.” Nev.Rev.Stat. § 42.005(1). The statute limits punitive damages to “[tjhree times the amount of compensatory damages awarded to the plaintiff if the amount of compensatory damages is $100,000 or more.” Id. § 42.005(l)(a).
The jury’s punitive damages award was less than three times the total compensatory damages award, and thus the limitation in section 42.005 does not apply. Although the jury reported $285,074 in compensatory damages on its verdict form, it was specifically instructed to deduct $510,625 from its total compensatory damages award before reporting it on that form. Accordingly, we must presume that the jury’s total compensatory damages award equaled $795,699. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000) (“A jury is presumed to follow its instructions.”). The jury’s punitive damages award of $1,600,000 is less than three times $795,699, so Nevada Revised Statutes section 42.005 cannot provide a basis for limiting the punitive damages awarded in this case.
Ill
We AFFIRM the district court’s award of partial summary judgment, and REVERSE the district court’s reduction of punitive damages pursuant to Nevada Revised Statutes section 42.005. We REMAND to the district court with instructions either to reinstate the $1,600,000 punitive damages award or to specifically explain its basis for limiting the award, mindful that a reviewing court must “assume that the jury believed all the evidence favorable to the prevailing party and drew all reasonable inferences in her favor.” Paullin v. Sutton, 102 Nev. 421, 724 P.2d 749, 750 (1986).
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472001/ | BEA, Circuit Judge,
dissenting:
I respectfully dissent. Yanko Hritsov Dimitrov petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. Dimitrov claimed before the BIA that he was a Bulgarian Gypsy, even though he spoke no Romani, did not have a Gypsy name, and appeared to know little about Gypsy culture. The BIA found Dimitrov’s testimony he was a Gypsy was “implausible,” and, on the basis of this adverse credibility finding, denied his applications for relief.
Contrary to the majority’s assertion, the BIA’s adverse credibility finding went to the heart of Dimitrov’s claims. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (holding that when an immigration judge (“U”) denies asylum based “on an adverse credibility determination, he must provide specific, cogent reasons to support his determination ... [which] cannot be peripheral, but rather must go to the heart of petitioner’s claim”). Even if Dimitrov could prevail by claiming his persecutors perceived him to be a Gypsy, that was not his claim before the BIA. Dimitrov claimed he was entitled to asylum because he was, in fact, a Gypsy. If the BIA disbelieved him about his claim he was a Gypsy, and this disbelief is supported by substantial evidence, the BIA was also entitled to disbelieve the remainder of Dimitrov’s testimony, including his testimony he was persecuted by Bulgarian police because they perceived him to be a Gypsy. See Wang v. INS, 352 F.3d 1250, 1259 (9th Cir.2003) (“[W]hether we have rejected some of an [BIA]’s grounds for an adverse credibility finding is irrelevant. So long as one of the identified grounds is supported by substantial evidence and goes to the heart of [the petitioner’s] claim of persecution, we are bound to accept the [BIA]’s adverse credibility finding.”). Even were we to credit evidence in the record showing Dimitrov was assaulted by police in Bulgaria, without Dimitrov’s testimony, there is no basis to conclude Dimitrov was assaulted “on account of’ the Bulgarian police’s perception Dimitrov was Gypsy. With respect, the majority errs in saying “Nothing impugned Dimitrov’s story he was beaten by police who characterized him as a Gypsy.” Supra at 2. Dimitrov’s false story he was a Gypsy impugned it. One can believe Dimitrov’s story only if one believes Dimitrov; if Dimitrov is a liar *204about being a Gypsy, the BIA can disbelieve the rest of his testimony. It is that simple.
The BIA’s conclusion that Dimitrov’s testimony he was a Gypsy was implausible is supported by substantial evidence and is not mere “speculation” or “conjecture.” See Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir.2005) (“Under our case law, testimony that is implausible in light of background evidence can support an adverse credibility finding---- However, when an IJ finds a petitioner’s testimony implausible based solely on ‘conjecture and speculation’ that testimony ... should not automatically be accorded deference.”) (internal quotation marks omitted). Dimitrov averred he grew up in a Gypsy neighborhood, played only with other Gypsy children because he was afraid to leave the Gypsy community, and that he served in a special Gypsy-only unit of the Bulgarian military. Yet he testified at the hearing that he spoke no Romani. The critical question, then, is whether it was reasonable for the BIA to conclude, on the basis of the record before it, that a true Gypsy, raised in a Gypsy community, would speak Romani. With respect, the majority errs when it states: “Like many European Gypsies, [Dimitrov] did not speak Roma.” Supra at 3. The majority does not favor us with the source of its insight about what many European Gypsies do or do not speak. But, it was not mere speculation for the IJ to conclude that a Gypsy who grew up in a Gypsy neighborhood in Bulgaria would speak Romani. The record before the BIA included a State Department country report on Bulgaria. U.S. Department of State, Country Reports on Human Rights Practices — 2003, Bulgaria (February 25, 2004). [ER 233] This report stated both that Gypsy children entering Bulgarian schools were not proficient in Bulgarian and that, in an effort to integrate Gypsies into the Bulgarian police forces, the Bulgarian police introduced bilingual training manuals. Id. at 10, 12. Both of these facts suggest that a Bulgarian Gypsy would most probably speak Romani. And from this, the BIA could conclude that it was implausible that a true Gypsy, who grew up in a Gypsy neighborhood, as Dimitrov did, would not speak Romani.
Dimitrov’s evidence to the contrary does not support his contention that a Gypsy in Bulgaria would not be likely to speak Romani. At most, it shows that many Gypsies are now bilingual. In any event, this evidence was introduced for the first time in an untimely motion to reopen. Because the untimely filing of this motion is not excusable, we lack jurisdiction to consider it. See Ekimian v. INS, 303 F.3d 1153 (9th Cir.2002). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472006/ | MEMORANDUM *
Pablo Cobb appeals the district court’s order denying his petition for a writ of habeas corpus. We affirm. On the basis of the record before us, we cannot say that the California Court of Appeal acted contrary to clearly established federal law in concluding that Cobb’s confession was admissible.1 See 28 U.S.C. § 2254(d).
Although police ignored Cobb’s initial invocation of his right to silence, the dialogue that eventually led to Cobb’s confession was reinitiated by Cobb himself at the suggestion of — and after conferring *208with — his girlfriend. The failure to suppress did not violate clearly established law in light of the circumstances surrounding Cobb’s reinitiation and his subsequent waiver of his right to silence. Cobb cites no Supreme Court precedent which supports his position, and we have found none.
Nor did the police violate Cobb’s right to counsel. Although authorities may have overheard Cobb privately telling his girlfriend that he wanted a lawyer, this statement did not amount to an unambiguous request for counsel. See Davis v. United States, 512 U.S. 452, 458-59, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). This is especially true in light of the trial court’s finding that Cobb’s girlfriend was not acting at the behest or direction of the police, a finding that is supported by the record and presumed correct.2 See Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir.1996).
Similarly, Cobb’s statement prior to his confession, “Can I — can I talk to you with a lawyer or I have to talk to you?” was too ambiguous to invoke his right to counsel.3 See Davis, 512 U.S. at 459, 114 S.Ct. 2350; Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir.2003) (holding statement “should I be telling you, or should I talk to an attorney?” insufficient to invoke right to counsel).
Finally, under the totality of the circumstances, Cobb’s confession was not involuntary under the Fourteenth Amendment. See Pollard v. Galaza, 290 F.3d 1030, 1033-34 (9th Cir.2002).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the facts and prior proceedings are known to the parties, we restate them here only as necessary to explain our disposition.
. The dissent invokes a Fourth Circuit case, Hyatt v. Branker, 569 F.3d 162, 169 (4th Cir.2009), to suggest that if police overheard the defendant ask a relative for counsel, such an overheard request binds police as an unambiguous request under Davis. Dissent at 208-09. But because this is not a Supreme Court case, the state appellate court’s failure to follow it cannot violate the AEDPA.
. The dissent relies on one of our pre-AEDPA cases to suggest that the detective "was ‘attempting] to impose a penalty on [Cobb’s] invocation' of his constitutional rights.” Dissent at 209 (quoting Collazo v. Estelle, 940 F.2d 411, 417 (9th Cir.1991) (en banc) (alterations in original)). It then further suggests that the state appellate court’s denial of this claim was unreasonable. But, again, because no Supreme Court case is cited in support of this assertion, the state court’s action could not have been an unreasonable application of Supreme Court case law, as AEDPA, § 2254(d)(1), requires. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472007/ | BERZON, Circuit Judge,
dissenting:
I dissent.
I would hold that the California appellate court’s conclusion that Pablo Cobb did not unambiguously invoke his Fifth Amendment right to counsel “involved an unreasonable application of ... clearly established Federal law.” 28 U.S.C. § 2254(d). Accordingly, I would reverse the district court’s denial of Cobb’s petition for writ of habeas corpus and grant the writ.
“[A] suspect [in custody] who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present.” Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). The suspect’s request for counsel must be unambiguous. Id. at 459, 114 S.Ct. 2350. In other words, it must be “sufficiently clear[ ] that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. Perhaps obviously, the request must also be heard by an officer: “[t]o invoke a right to counsel, the suspect himself must request an attorney and a representative of the state must hear that request.” Hyatt v. Branker, 569 F.3d 162, 169 (4th Cir.2009) (citing Davis, 512 U.S. at 458-59, *209114 S.Ct. 2350) (holding that the state court did not err in concluding that the defendant had not invoked his right to counsel by asking his father, in the presence of a law enforcement officer, “to get him a lawyer” because the trial court’s findings were “ambiguous as to whether [the officer] actually heard [the defendant] request an attorney”).
I can scarcely conceive of a more unambiguous request for counsel than the ones Cobb made in this case. While talking to his girlfriend in the interrogation room right after his interview was suspended, Cobb asked for an attorney at least six times. Cobb asserts, and the state concedes, that the police were monitoring the conversations between Cobb and his girlfriend. According to the transcript of the videotaped interrogation, Cobb made the following statements to his girlfriend or her grandmother as they were urging him to talk to the police:
“I want to talk to a lawyer.”
“I want an attorney.”
“I just want to talk ... to my lawyer first and talk to you.”
“I need a lawyer, ‘cause, uh — I need a lawyer for (Unintelligible).”
“I’m not until I talk to a lawyer.”
“I’ve got to see paperwork. I need a lawyer. I want a lawyer.”
Thus, while the police listened in, Cobb clearly and repeatedly articulated his desire to speak with an attorney. Under these circumstances, it was unreasonable for the state court to conclude that Cobb had not invoked his right to counsel. Whether Cobb’s girlfriend was acting at the police’s behest in talking to Cobb does not matter. The critical point is that Cobb said, six times, unambiguously, that he did not want to talk further to the police without a lawyer. The police definitely — because they were purposely eavesdropping, presumably to hear any incriminating statements — heard him say that.
Cobb did not retract his request when he first met with the police; if anything, he reiterated it, albeit not sufficiently distinctly to constitute a request for counsel had it stood alone. But to me, the question is not whether he requested an attorney again when he met anew with the police; it is whether the police had reason to think he had changed his mind since they heard him say — six times — that he wanted to speak to a lawyer before talking to the police.
The only possible basis for thinking the request retracted was that Cobb, after first asking Detective Winton, “[C]an I talk to you with a lawyer or I have to talk to you?,” said, “Well, I want to talk to you.” But that occurred only after Detective Winton responded to his initial question with: “If you want to talk to a lawyer it ends right now, right now, and I take you across the street [to jail].” In other words, Cobb had no opportunity to decide with a lawyer’s help whether to speak to the police before being booked, and agreed to talk without a lawyer only after being told, essentially, that he would be booked for the crime if he invoked his right to counsel but might not be if he did not. By telling Cobb that he would be booked right away — and lose his chance to speak to the police — if he asserted his right to counsel, Detective Winton was “attempting] to impose a penalty on [Cobb’s] invocation” of his constitutional rights. Collazo v. Estelle, 940 F.2d 411, 417 (9th Cir.1991) (en banc). The state appellate court dismissed this concern, reasoning that “as a practical matter, Winton was right that Cobb’s retention of counsel would end the interview.”1 People v. Cruz Armando Avila, No. C029883, at 29, 2002 WL 853554 (Cal.Ct.App. May 2, 2002). Indeed, it is likely that a defense attorney would have *210counseled Cobb against speaking to the police, but that is certainly not a foregone conclusion; the attorney could have tried to negotiate for a cooperation deal in advance of booking, for example. More to the point, it was up to Cobb and his attorney to decide whether it was in Cobb’s best interests to speak to the police.
In sum, the police should not have questioned Cobb after they overheard him say, over and over again, that he wanted to talk to a lawyer. By instead ignoring those requests and attempting to impose a penalty on any request for counsel when he raised the issue anew, the police violated Cobb’s Fifth Amendment right to counsel. It was unreasonable of the state court to find otherwise. I would reverse the district court and grant the writ of habeas corpus. I respectfully dissent.
. In Collazo, the state advanced a similar argument without success. There, a police *210officer told the defendant, "Once you get a lawyer, he’s gonna say forget it. You know, don't talk to the police. Then it might be worse for you.” 940 F.2d at 414. The state argued that the officer’s statement was "harmless” because it was "true”: ”[A]ny defense lawyer is going to tell his client not to talk to tile police.” Id. at 418 n. 8. We rejected this argument as "borderLing] on the absurd.” Id. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472010/ | MEMORANDUM **
Ezequiel Arnoldo Argueta-Hernandez petitioned for review of the order denying his application for asylum and withholding of removal. We deny his petition for review.
Argueta-Hernandez sought asylum and withholding of removal because of persecution in El Salvador on account of his religious beliefs. We must uphold the denial of asylum and withholding of removal if the agency decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Argueta-Hernandez must show not only that the evidence supports the conclusion that he suffered persecution or has a well-founded fear of persecution on account of a protected ground, but that the evidence compels that conclusion. SinghKaur v. INS, 183 F.3d 1147, 1149-50 (9th Cir.1999); Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996). Where, as here, the Immigration Judge finds the applicant’s testimony to be credible, we accept his testimony as true and undisputed. Ramos-Lopez v. Holder, 563 F.3d 855, 858 (9th Cir.2009).
There is no evidence in the record to compel the conclusion that Argueta-Hernandez was persecuted on account of his religious beliefs. Argueta-Hernandez did not inform the Mara Salvatrucha why he did not want to be “involved in [them] type of group.” Compare Matter of E-A-G-24 I. & N. Dec. 591, 596-97 (B.I.A.2008) (finding no persecution on account of political opinion where there was no evidence the persecutor knew of the petitioner’s political views), with Gonzales-Neyra v. INS, 122 F.3d 1293, 1296, amended by 133 F.3d 726 (9th Cir.1998) (granting petitioner asylum where he told his persecutors he did not agree with their political cause and would not pay any future protection bribes). Furthermore, there is substantial evidence in the record that the Mara Salvatrucha were motivated entirely by economic gain and a desire to swell their ranks.1
Petition for review DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the burden of proof for withholding of removal is higher than that for asylum, Argueta-Hernandez’s failure to establish eligibility for asylum requires denial of his application for withholding of removal. Singh-Kaur, 183 F.3d at 1149; Fisher, 79 F.3d at 961. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472012/ | *213MEMORANDUM *
A class of Network Commerce, Inc. (“NCI”) shareholders (collectively, “Sherman”) appeals the district court’s dismissal of its complaint alleging that NCI violated Section 11 of the 1938 Securities Act. We affirm in part, and reverse and remand in part.
1. In her complaint, Sherman alleges that NCI failed to disclose a $52,912.50 loan to its CEO, DeWayne Walker (“Walker”) in registration statements accompanying NCI’s Initial Public Offering (“IPO”) and Secondary Public Offering (“SPO”). The district court held that a Form 4 filed by NCI in November of 1999 placed Sherman on inquiry notice, thereby starting the one-year statute of limitations and time-barring Sherman’s complaint.
We may affirm the judgment of the district court on any ground supported by the record. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.1998). We hold instead that the loan, in light of all of the information available at the time the registration statements were issued, was not material. To establish materiality, plaintiffs must demonstrate a “substantial likelihood that a reasonable investor would have acted differently if the misrepresentation had not been made or the truth had been disclosed.” Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir.2005). NCI anticipated that its IPO would generate proceeds of over $70 million and that its SPO would generate proceeds of over $130 million. The $52,912.50 loan to Walker therefore constituted .07% of the IPO’s anticipated proceeds and .04% of the SPO’s anticipated proceeds. Investors do not change their minds over these kinds of sums.
Sherman attempts to establish the loan’s materiality on the ground that the loan, though seemingly small, implicated broader problems in the way NCI ran its business. Sherman’s argument is unconvincing. Not only did the amount of the loan make it very unlikely that it would have any effect on a reasonable investor — let alone a “substantial” one — but under then-existing SEC regulations, NCI was not even obligated to disclose any CEO-related transaction worth less than $60,000. 17 C.F.R. § 229.404(a) (1999).
2. Moreover, Sherman’s unadorned allegation that NCI did not disclose a general plan to pay senior executives additional compensation fails to state a claim under Federal Rule of Civil Procedure 8(a). After four years and several amended complaints, Sherman is not able to provide any additional information regarding the details of NCI’s so-called “plan.” Her claim is nothing more than a “[tjhreadbare recital[ ] of the elements of a [Section 11 claim], supported by mere conclusory statements .... ” Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Because it is not “facial[ly] plausible],” the claim falls short. Id. In addition, even if Sherman’s allegations were more specific, they would still fail to state a claim because NCI’s reminder to investors that it retained broad discretion in the way it used its proceeds was sufficiently specific and cautionary to garner protection under the bespeaks caution doctrine and statutory safe harbor. 15 U.S.C. § 77z-2(c)(1)(A)(i) (2009) (liability will not attach if the registration statement contains “meaningful cautionary statements identifying important factors that could cause *214actual results to differ materially from those in the forward-looking statement”).
3. The statutory safe harbor also protects assertions NCI made in its Ubarter.com registration statement regarding the benefits of the Ubarter merger. To be sure, NCI failed to mention that Ubarter.com required a new back-end management system and new user interface before it could generate meaningful cash flow. But the registration statement explicitly warned investors that NCI might “improperly evaluate] new services and technologies,” and might fail to “successfully integrate the acquired businesses, technologies and other assets.” Far from being a “[bjlanket warning” about the general risks of investing, Provenz v. Miller, 102 F.3d 1478, 1493 (9th Cir.1996) (quotation marks omitted), the Ubarter statement directly cautioned investors that there might be problems with coordinating and streamlining the relevant technology. Further, NCI’s Ubarter.com registration statement was not misleading in its cash forecasts and projections. As the district court concluded, the statement did not contain “any affirmative statement of fact ... much less a projection regarding cash flows.” In re Network Commerce Inc. Sec. Litig., No. C01-0675L, 2006 WL 1375048, at *1 (W.D.Wash. May 16, 2006).
4. With respect to claims already discussed, the district court acted within its discretion in denying leave to amend. Sherman also alleged, however, that the Ubarter registration statement failed to disclose two loans in excess of $1 million each that NCI issued to Walker approximately three weeks after the statement became effective. For reasons not clear from the record, the district court failed to address this claim. And unlike Sherman’s other claims, this claim appears to be both material and sufficient to state a claim under Rule 8(a). As a result, we remand to the district court to address it in the first instance. 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472014/ | MEMORANDUM *
Ann Standley appeals from the district court’s summary judgment to Elko County on her section 1983 claims and its dismissal of her remaining state law claims. The facts are well-known to the parties; we need not repeat them here.
The district court properly granted summary judgement to Elko County because Standley produced no evidence that she enjoyed a right to pre-termination due process. An employee has a pre-termination due process right only when she has a property interest in continued employment “from an independent source, such as state law.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Here, Nevada law presumes that all employees serve at-will, assuming the absence of an express or implied contract. SW. Gas Coup. v. Vargas, 111 Nev. 1064, 901 P.2d 693 (1995). Vanelli v. Reynolds School District No. 7, 667 F.2d 773 (9th Cir.1982), and Matthews v. Harney County, 819 F.2d 889 (9th Cir.1987), cited by Standley, are thus distinguishable because the claimants in those cases had state law property interests. Standley has not shown that she had any contract or other property interest.
Standley did offer a contradicted statement from Jerilyn Underwood, the human and social services administrator for Elko County, that “[hjourly employees by definition are not at will.” But Standley was not an hourly employee at the time of her termination. Underwood’s statement, therefore, could not create an implied contract which would cover Standley. Nor is there any evidence that Underwood’s understanding of county policy was shared by anyone else, including Standley. Thus, it could not be an implied contract. The best Standley can muster is an affidavit claiming that “at no time during [her] employment did [she] have a reason to believe that [she] had no right to notice and a pretermination hearing before I could lose my job.” This string of negatives carefully fails to assert even a personal belief that she had any pre-termination rights.
The district court acted well within its discretion in dismissing the remaining state claims.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472112/ | *578ON MOTION
ORDER
Upon consideration of Kenneth L. Jordan’s motion to voluntarily dismiss his appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472002/ | MEMORANDUM *
Yanko Hristov Dimitrov, a citizen of Bulgaria, appeals the denial by the Board of Immigration Appeals (the BIA) of his petition for asylum. We remand.
The parties are familiar with the facts. We proceed to issues of law. First, the BIA erred in its credibility determination by treating as central to Dimitrov’s claims the evidence of his ethnicity as a Gypsy. What is central is the persecutor’s belief as to the status of the persecutor’s victim. In deciding whether anyone has a well-founded fear of persecution or is in danger of losing life or liberty because of [protected ground], one must continue to look at the person from the perspective of the persecutor. Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir.1987), overruled as to a subordinate point of evidence by Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996). Nothing impugned Dimitrov’s story that he was beaten by police who characterized him as a Gypsy. He pursued a scavenger’s trade characteristic of a class at the bottom of society, analogous to that of untouchables. He did what Gypsies did and when he stepped beyond their bounds, he was threatened, jailed and beaten as a Gypsy.
The dissent would affirm the BIA’s finding that Dimitrov’s story is “implausible” because Dimitrov does not speak the Roma language. The evidence that many Roma children enter school lacking proficiency in Bulgarian, found in the in the U.S. Department of State, Country Report, is not sufficient to support a finding that Dimitrov was lying. Evidence that some Bulgarian Gypsies speak Roma does not contract Dimitrov’s testimony that some do not. The Country Report also states that “Romani children and ethnic Bulgarian children generally attended separate schools.” Dimitrov testified that his parents avoided speaking the Roma language with him at home and sent him to a Bulgarian school, rather than a school with other Roma children.
We may take judicial notice of public undisputed facts. Singh v. Ashcroft, 393 F.3d 903, 905 (9th Cir.2004) (taking notice of an article in the Encyclopedia Britannica). As the Britannica Book of the Year (2006) reports in an article entitled “The Roma—Europe’s Largest Minority,” the Communist regimes in Eastern Europe “suppressed the use of the Romani language.” At the beginning of the present century, one Gypsy in five did not speak Roma in Bulgaria. See Peter Bakker, “Romani in Europe,” The Other Languages of Europe (ed. Clevedon, 2001).
The BIA also erred in doubting his account of his condition after the beating. The differences between the medical certificate reporting his condition and his testimony did not consist in contradictions but in emphasis, phrasing or degree of severity. The certificate said he had “crippling of movement from the waist down.” That diagnosis is not inconsistent with his testi*203mony that, with a sense of necessity, he walked with difficulty, taking “a long time,” two kilometers to reach refuge in his parents’ home. The certificate spoke of “visible fractures in the face ... with fractural damage in the nasal area.” Dimitrov testified that the police “hit my nose” but that “he did not tell me anything about a broken nose.” The difference between a broken and a battered nose does not go to the heart of his claim, especially when it is his testimony that diminishes the injury.
The BIA’s characterization of Dimitrov’s testimony as “vague” is an inappropriate description of his detailed narrative. The BIA’s treatment of the term “robbed” used by Dimitrov in his airport interview is woodenly univocal. “Robbed” in common parlance covers every outrage from being scammed to having one’s favorite sports team the victim of bad umpiring. A remand is in order.
The CAT claim fell with the asylum claim and so, too, requires remand.
There was no violation of Dimitrov’s right to due process. The translation was his own lawyer’s responsibility.
The motion to reopen was late. That decision is mooted by our conclusion here.
REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472003/ | BEA, Circuit Judge,
dissenting:
I respectfully dissent. Yanko Hritsov Dimitrov petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. Dimitrov claimed before the BIA that he was a Bulgarian Gypsy, even though he spoke no Romani, did not have a Gypsy name, and appeared to know little about Gypsy culture. The BIA found Dimitrov’s testimony he was a Gypsy was “implausible,” and, on the basis of this adverse credibility finding, denied his applications for relief.
Contrary to the majority’s assertion, the BIA’s adverse credibility finding went to the heart of Dimitrov’s claims. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (holding that when an immigration judge (“U”) denies asylum based “on an adverse credibility determination, he must provide specific, cogent reasons to support his determination ... [which] cannot be peripheral, but rather must go to the heart of petitioner’s claim”). Even if Dimitrov could prevail by claiming his persecutors perceived him to be a Gypsy, that was not his claim before the BIA. Dimitrov claimed he was entitled to asylum because he was, in fact, a Gypsy. If the BIA disbelieved him about his claim he was a Gypsy, and this disbelief is supported by substantial evidence, the BIA was also entitled to disbelieve the remainder of Dimitrov’s testimony, including his testimony he was persecuted by Bulgarian police because they perceived him to be a Gypsy. See Wang v. INS, 352 F.3d 1250, 1259 (9th Cir.2003) (“[W]hether we have rejected some of an [BIA]’s grounds for an adverse credibility finding is irrelevant. So long as one of the identified grounds is supported by substantial evidence and goes to the heart of [the petitioner’s] claim of persecution, we are bound to accept the [BIA]’s adverse credibility finding.”). Even were we to credit evidence in the record showing Dimitrov was assaulted by police in Bulgaria, without Dimitrov’s testimony, there is no basis to conclude Dimitrov was assaulted “on account of’ the Bulgarian police’s perception Dimitrov was Gypsy. With respect, the majority errs in saying “Nothing impugned Dimitrov’s story he was beaten by police who characterized him as a Gypsy.” Supra at 2. Dimitrov’s false story he was a Gypsy impugned it. One can believe Dimitrov’s story only if one believes Dimitrov; if Dimitrov is a liar *204about being a Gypsy, the BIA can disbelieve the rest of his testimony. It is that simple.
The BIA’s conclusion that Dimitrov’s testimony he was a Gypsy was implausible is supported by substantial evidence and is not mere “speculation” or “conjecture.” See Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir.2005) (“Under our case law, testimony that is implausible in light of background evidence can support an adverse credibility finding---- However, when an IJ finds a petitioner’s testimony implausible based solely on ‘conjecture and speculation’ that testimony ... should not automatically be accorded deference.”) (internal quotation marks omitted). Dimitrov averred he grew up in a Gypsy neighborhood, played only with other Gypsy children because he was afraid to leave the Gypsy community, and that he served in a special Gypsy-only unit of the Bulgarian military. Yet he testified at the hearing that he spoke no Romani. The critical question, then, is whether it was reasonable for the BIA to conclude, on the basis of the record before it, that a true Gypsy, raised in a Gypsy community, would speak Romani. With respect, the majority errs when it states: “Like many European Gypsies, [Dimitrov] did not speak Roma.” Supra at 3. The majority does not favor us with the source of its insight about what many European Gypsies do or do not speak. But, it was not mere speculation for the IJ to conclude that a Gypsy who grew up in a Gypsy neighborhood in Bulgaria would speak Romani. The record before the BIA included a State Department country report on Bulgaria. U.S. Department of State, Country Reports on Human Rights Practices — 2003, Bulgaria (February 25, 2004). [ER 233] This report stated both that Gypsy children entering Bulgarian schools were not proficient in Bulgarian and that, in an effort to integrate Gypsies into the Bulgarian police forces, the Bulgarian police introduced bilingual training manuals. Id. at 10, 12. Both of these facts suggest that a Bulgarian Gypsy would most probably speak Romani. And from this, the BIA could conclude that it was implausible that a true Gypsy, who grew up in a Gypsy neighborhood, as Dimitrov did, would not speak Romani.
Dimitrov’s evidence to the contrary does not support his contention that a Gypsy in Bulgaria would not be likely to speak Romani. At most, it shows that many Gypsies are now bilingual. In any event, this evidence was introduced for the first time in an untimely motion to reopen. Because the untimely filing of this motion is not excusable, we lack jurisdiction to consider it. See Ekimian v. INS, 303 F.3d 1153 (9th Cir.2002). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472005/ | MEMORANDUM **
Sargon Shahbaz Yoghanloui Ginzeh petitions for review of a Board of Immigration Appeals (“BIA”) order dismissing his appeal of an Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252 and do so for “substantial evidence,” meaning that we must affirm the BIA’s ruling unless the record “not only supports [the conclusion that Ginzeh has established eligibility for relief], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original).
Ginzeh contends that the IJ erroneously discredited his testimony. The IJ found that Ginzeh was not eligible for asylum or withholding of removal because he had not proffered credible testimony. After noting certain inconsistencies and omissions, the IJ provided Ginzeh the opportunity to offer explanations. See Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). The IJ found that Ginzeh’s explanations were unpersuasive and that Ginzeh did not clarify the inconsistencies and omissions. We agree that Ginzeh did *206not adequately explain the inconsistencies between his testimony and prior applications and that substantial evidence supports the adverse credibility determination. Therefore, we deny the petition for rehearing with respect to Ginzeh’s asylum claim.1
Because we affirm the determination that Ginzeh failed to establish eligibility for asylum, we also affirm the denial of Ginzeh’s application for withholding of removal. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
While the IJ’s determination and the BIA’s affirmance were proper as to the denial of the asylum application and the withholding of removal application, denial of CAT relief should not be based solely on an adverse credibility determination made during an asylum assessment when there are further means in the record for assessing whether it is more likely than not that the petitioner will be tortured if returned to his home country. See Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir.2001). We have held that, by contrast, “proper attention to relevant country conditions might lend credence to ... assertions of torture and cause the BIA to view them in a different light.” Id.
In the denial of Ginzeh’s CAT claim, the IJ mentioned his adverse credibility finding and discussed Ginzeh’s testimony. He did not, however, ground his denial on any of the other evidence available in the record. In the context of a CAT claim, “all evidence relevant to the possibility of future torture shall be considered, including, but not limited to: ... [efvidence of gross, flagrant or mass violations of human rights within the country of removal; and [o] ther relevant information regarding conditions in the country of removal.” Id. at 1282 (quoting 8 C.F.R. § 208.16(c)(2) and (3) (2000) (emphasis in original)). Because the IJ did not appear to consider such evidence, noting only that “Iran does not have a good human rights record,” we grant the petition as to Ginzeh’s CAT claim and remand for the BIA to give proper weight and consideration to evidence of the relevant country conditions contained in the record. See Id. at 1284.
Petition GRANTED in part, DENIED in part and REMANDED. Each party shall bear its own costs on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Ginzeh also contends that the IJ erred when he found that Ginzeh had firmly resettled in Germany. Having determined that the IJ’s adverse credibility determination was not in error, we do not address whether the IJ erred as to Ginzeh’s firm resettlement. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472008/ | MEMORANDUM *
Pablo Cobb appeals the district court’s order denying his petition for a writ of habeas corpus. We affirm. On the basis of the record before us, we cannot say that the California Court of Appeal acted contrary to clearly established federal law in concluding that Cobb’s confession was admissible.1 See 28 U.S.C. § 2254(d).
Although police ignored Cobb’s initial invocation of his right to silence, the dialogue that eventually led to Cobb’s confession was reinitiated by Cobb himself at the suggestion of — and after conferring *208with — his girlfriend. The failure to suppress did not violate clearly established law in light of the circumstances surrounding Cobb’s reinitiation and his subsequent waiver of his right to silence. Cobb cites no Supreme Court precedent which supports his position, and we have found none.
Nor did the police violate Cobb’s right to counsel. Although authorities may have overheard Cobb privately telling his girlfriend that he wanted a lawyer, this statement did not amount to an unambiguous request for counsel. See Davis v. United States, 512 U.S. 452, 458-59, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). This is especially true in light of the trial court’s finding that Cobb’s girlfriend was not acting at the behest or direction of the police, a finding that is supported by the record and presumed correct.2 See Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir.1996).
Similarly, Cobb’s statement prior to his confession, “Can I — can I talk to you with a lawyer or I have to talk to you?” was too ambiguous to invoke his right to counsel.3 See Davis, 512 U.S. at 459, 114 S.Ct. 2350; Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir.2003) (holding statement “should I be telling you, or should I talk to an attorney?” insufficient to invoke right to counsel).
Finally, under the totality of the circumstances, Cobb’s confession was not involuntary under the Fourteenth Amendment. See Pollard v. Galaza, 290 F.3d 1030, 1033-34 (9th Cir.2002).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the facts and prior proceedings are known to the parties, we restate them here only as necessary to explain our disposition.
. The dissent invokes a Fourth Circuit case, Hyatt v. Branker, 569 F.3d 162, 169 (4th Cir.2009), to suggest that if police overheard the defendant ask a relative for counsel, such an overheard request binds police as an unambiguous request under Davis. Dissent at 208-09. But because this is not a Supreme Court case, the state appellate court’s failure to follow it cannot violate the AEDPA.
. The dissent relies on one of our pre-AEDPA cases to suggest that the detective "was ‘attempting] to impose a penalty on [Cobb’s] invocation' of his constitutional rights.” Dissent at 209 (quoting Collazo v. Estelle, 940 F.2d 411, 417 (9th Cir.1991) (en banc) (alterations in original)). It then further suggests that the state appellate court’s denial of this claim was unreasonable. But, again, because no Supreme Court case is cited in support of this assertion, the state court’s action could not have been an unreasonable application of Supreme Court case law, as AEDPA, § 2254(d)(1), requires. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472009/ | BERZON, Circuit Judge,
dissenting:
I dissent.
I would hold that the California appellate court’s conclusion that Pablo Cobb did not unambiguously invoke his Fifth Amendment right to counsel “involved an unreasonable application of ... clearly established Federal law.” 28 U.S.C. § 2254(d). Accordingly, I would reverse the district court’s denial of Cobb’s petition for writ of habeas corpus and grant the writ.
“[A] suspect [in custody] who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present.” Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). The suspect’s request for counsel must be unambiguous. Id. at 459, 114 S.Ct. 2350. In other words, it must be “sufficiently clear[ ] that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. Perhaps obviously, the request must also be heard by an officer: “[t]o invoke a right to counsel, the suspect himself must request an attorney and a representative of the state must hear that request.” Hyatt v. Branker, 569 F.3d 162, 169 (4th Cir.2009) (citing Davis, 512 U.S. at 458-59, *209114 S.Ct. 2350) (holding that the state court did not err in concluding that the defendant had not invoked his right to counsel by asking his father, in the presence of a law enforcement officer, “to get him a lawyer” because the trial court’s findings were “ambiguous as to whether [the officer] actually heard [the defendant] request an attorney”).
I can scarcely conceive of a more unambiguous request for counsel than the ones Cobb made in this case. While talking to his girlfriend in the interrogation room right after his interview was suspended, Cobb asked for an attorney at least six times. Cobb asserts, and the state concedes, that the police were monitoring the conversations between Cobb and his girlfriend. According to the transcript of the videotaped interrogation, Cobb made the following statements to his girlfriend or her grandmother as they were urging him to talk to the police:
“I want to talk to a lawyer.”
“I want an attorney.”
“I just want to talk ... to my lawyer first and talk to you.”
“I need a lawyer, ‘cause, uh — I need a lawyer for (Unintelligible).”
“I’m not until I talk to a lawyer.”
“I’ve got to see paperwork. I need a lawyer. I want a lawyer.”
Thus, while the police listened in, Cobb clearly and repeatedly articulated his desire to speak with an attorney. Under these circumstances, it was unreasonable for the state court to conclude that Cobb had not invoked his right to counsel. Whether Cobb’s girlfriend was acting at the police’s behest in talking to Cobb does not matter. The critical point is that Cobb said, six times, unambiguously, that he did not want to talk further to the police without a lawyer. The police definitely — because they were purposely eavesdropping, presumably to hear any incriminating statements — heard him say that.
Cobb did not retract his request when he first met with the police; if anything, he reiterated it, albeit not sufficiently distinctly to constitute a request for counsel had it stood alone. But to me, the question is not whether he requested an attorney again when he met anew with the police; it is whether the police had reason to think he had changed his mind since they heard him say — six times — that he wanted to speak to a lawyer before talking to the police.
The only possible basis for thinking the request retracted was that Cobb, after first asking Detective Winton, “[C]an I talk to you with a lawyer or I have to talk to you?,” said, “Well, I want to talk to you.” But that occurred only after Detective Winton responded to his initial question with: “If you want to talk to a lawyer it ends right now, right now, and I take you across the street [to jail].” In other words, Cobb had no opportunity to decide with a lawyer’s help whether to speak to the police before being booked, and agreed to talk without a lawyer only after being told, essentially, that he would be booked for the crime if he invoked his right to counsel but might not be if he did not. By telling Cobb that he would be booked right away — and lose his chance to speak to the police — if he asserted his right to counsel, Detective Winton was “attempting] to impose a penalty on [Cobb’s] invocation” of his constitutional rights. Collazo v. Estelle, 940 F.2d 411, 417 (9th Cir.1991) (en banc). The state appellate court dismissed this concern, reasoning that “as a practical matter, Winton was right that Cobb’s retention of counsel would end the interview.”1 People v. Cruz Armando Avila, No. C029883, at 29, 2002 WL 853554 (Cal.Ct.App. May 2, 2002). Indeed, it is likely that a defense attorney would have *210counseled Cobb against speaking to the police, but that is certainly not a foregone conclusion; the attorney could have tried to negotiate for a cooperation deal in advance of booking, for example. More to the point, it was up to Cobb and his attorney to decide whether it was in Cobb’s best interests to speak to the police.
In sum, the police should not have questioned Cobb after they overheard him say, over and over again, that he wanted to talk to a lawyer. By instead ignoring those requests and attempting to impose a penalty on any request for counsel when he raised the issue anew, the police violated Cobb’s Fifth Amendment right to counsel. It was unreasonable of the state court to find otherwise. I would reverse the district court and grant the writ of habeas corpus. I respectfully dissent.
. In Collazo, the state advanced a similar argument without success. There, a police *210officer told the defendant, "Once you get a lawyer, he’s gonna say forget it. You know, don't talk to the police. Then it might be worse for you.” 940 F.2d at 414. The state argued that the officer’s statement was "harmless” because it was "true”: ”[A]ny defense lawyer is going to tell his client not to talk to tile police.” Id. at 418 n. 8. We rejected this argument as "borderLing] on the absurd.” Id. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472015/ | MEMORANDUM *
Ann Standley appeals from the district court’s summary judgment to Elko County on her section 1983 claims and its dismissal of her remaining state law claims. The facts are well-known to the parties; we need not repeat them here.
The district court properly granted summary judgement to Elko County because Standley produced no evidence that she enjoyed a right to pre-termination due process. An employee has a pre-termination due process right only when she has a property interest in continued employment “from an independent source, such as state law.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Here, Nevada law presumes that all employees serve at-will, assuming the absence of an express or implied contract. SW. Gas Coup. v. Vargas, 111 Nev. 1064, 901 P.2d 693 (1995). Vanelli v. Reynolds School District No. 7, 667 F.2d 773 (9th Cir.1982), and Matthews v. Harney County, 819 F.2d 889 (9th Cir.1987), cited by Standley, are thus distinguishable because the claimants in those cases had state law property interests. Standley has not shown that she had any contract or other property interest.
Standley did offer a contradicted statement from Jerilyn Underwood, the human and social services administrator for Elko County, that “[hjourly employees by definition are not at will.” But Standley was not an hourly employee at the time of her termination. Underwood’s statement, therefore, could not create an implied contract which would cover Standley. Nor is there any evidence that Underwood’s understanding of county policy was shared by anyone else, including Standley. Thus, it could not be an implied contract. The best Standley can muster is an affidavit claiming that “at no time during [her] employment did [she] have a reason to believe that [she] had no right to notice and a pretermination hearing before I could lose my job.” This string of negatives carefully fails to assert even a personal belief that she had any pre-termination rights.
The district court acted well within its discretion in dismissing the remaining state claims.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478104/ | ORDER
The parties having so agreed, it is
*117ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472016/ | MEMORANDUM *
Elias Velgara-Chavez appeals his conviction for attempted illegal reentry after deportation in violation of 8 U.S.C. § 1326(a), with a sentence enhancement pursuant to § 1326(b)(2), and challenges his 51-month sentence as substantively *217and procedurally unreasonable. We affirm.
Velgara-Chavez contends that there was insufficient evidence that he had the specific intent to reenter the United States without the Attorney General’s consent. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir.2000) (en banc) (holding that specific intent is an element of attempted illegal reentry).
We disagree. Most significantly, the government presented evidence that Velgara-Chavez admitted in a sworn statement that he attempted to enter the United States illegally. Additionally, the government offered evidence that two weeks prior to Velgara-Chavez’s attempted reentry, Immigration and Customs Enforcement deported Velgara-Chavez and informed him that if he attempted to return to the United States without the Attorney General’s consent, he would be subject to prosecution for a felony.
Velgara-Chavez also challenges his sentence. He first asserts that the district court committed procedural error by failing to consider the nature and circumstances of his offense. See 18 U.S.C. § 3553(a)(1). The record shows the contrary.
Velgara-Chavez next contends that his sentence is substantively unreasonable because it over-emphasizes his criminal history and fails to reflect the innocuous way in which he committed his offense. Given the totality of the circumstances, including Velgara-Chavez’s significant criminal history, we cannot conclude that a 51-month sentence is unreasonable.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472018/ | MEMORANDUM **
Ronald P. Foster, a California state prisoner, appeals from the district court’s entry of summary judgment in favor of state prison officials M.D. McDonald, D.J. Davey, and R. St. Andre. McDonald reassigned Foster from a single cell to a cell shared with another inmate. Foster refused the order to share a cell for the stated reason that he was not ready to deal with living with another inmate. Although Foster was not forced to share a cell, he lost his accumulated good-time credits and was placed on zero-credit earning status for his continuing refusal to obey the order to double-cell. Foster’s loss of good-time credits directly and significantly affects his release date by at least 390 days. In this 42 U.S.C. § 1983 action, Foster claimed the double-cell order violates the Eighth Amendment because McDonald knew or should have inferred that Foster’s safety was at risk if Foster were forced to accept a cellmate. In addition, Foster claimed that Davey and St. Andre deprived him of property without due process by confiscating his electronics equipment without a hearing. Foster sought damages on both claims, as well as an injunction requiring that his single-cell status be reinstated.
*219We have jurisdiction pursuant to 28 U.S.C. § 1291. Summary judgment rulings are reviewed de novo. Corales v. Bennett, 567 F.3d 554, 562 (9th Cir.2009). A grant of summary judgment may be affirmed on any basis supported by the record. Id. We affirm.
The district court did not err in concluding that Foster’s § 1983 claim is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). A state prisoner’s § 1983 claim is not cognizable if success on the claim would necessarily imply the invalidity of his sentence. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. Consequently, a prisoner’s § 1983 challenge to disciplinary hearing procedures is barred if judgment in his favor would necessarily imply the invalidity of the resulting loss of good-time credits. Balisok, 520 U.S. at 646, 117 S.Ct. 1584. A decision in Foster’s favor would necessarily imply the invalidity of his loss of good-time credits for refusing to share a cell with another inmate. This consequence would affect directly and significantly his release date. Although Foster disclaims seeking reinstatement of good-time credit in this case, the result is clearly implied from the requested injunction to reinstate his single-cell status. The requested injunctive relief would invalidate the basis for the disciplinary charges and loss of good-time credits.
The district court did not err in declining to adopt the magistrate judge’s recommended denial of McDonald’s summary judgment. Foster failed to present a genuine issue of material fact that his safety was at risk if double-celled, or that McDonald knew or should have inferred that Foster’s safety was threatened if double celled. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (holding that a prison official acts with deliberate indifference when he knows of and disregards an excessive risk to inmate safety). Foster contends he was entitled to continued single-cell status because twelve prior classification committees between 1999 and 2003 found him eligible. But the California Department of Corrections updated its single-cell policy in April 2003; Foster no longer qualified.
The district court did not err in granting summary judgment for Davey and St. Andre on Foster’s property deprivation claim. California law provides an adequate post-deprivation remedy for a prisoner’s property loss. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir.1994) (per curiam) (holding that California’s post-deprivation remedy for property loss barred a prisoner’s § 1983 challenge to property deprivation).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472021/ | MEMORANDUM ***
Christine Baker appeals pro se the district court’s grant of summary judgment in favor of Equifax Information Services, Retailers National Bank, and Capital One Bank (collectively “Defendants”). Baker sued Defendants in district court for the District of Arizona for violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681X (2006), the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-169U, and Arizona state law, Ariz.Rev.Stat. Ann. § 44-1522 (Supp.2008). We affirm.
The Fair Credit Reporting Act does not obligate creditors to report consumers’ credit limits. See 15 U.S.C. § 1681s-2. The Fair Credit Reporting Act does not obligate credit reporting agencies, such as Equifax, to report information they do not possess. See 15 U.S.C. § 1681L Therefore, we hold Baker’s claims that defendants are liable for failing to report her credit limits lack merit.
With respect to Baker’s myriad miscellaneous claims on appeal, we hold them to be also without merit. To the extent the defendants did incorrectly modify Baker’s *221information upon reinvestigation, Baker has not shown how she suffered any harm from that specific incident.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472023/ | *222MEMORANDUM **
The Board of Immigration Appeals (BIA) dismissed Miguel Ramos Flores’ appeal from the Immigration Judge’s (IJ’s) decision denying his application for cancellation of removal, and denied his motion to reconsider. Ramos petitions for review. We have jurisdiction because the petition raises a “colorable” question of law. 8 U.S.C. § 1252(a)(2)(D); Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir.2009). Because the BIA applied the wrong legal standard to determine whether Ramos met his burden to establish eligibility for cancellation of removal, we grant the petition for review and remand.
The BIA found Ramos ineligible for cancellation of removal because Ramos failed to demonstrate that his U.S. citizen children or lawful permanent resident parents would experience “exceptional and extremely unusual hardship” as a result of his removal. See 8 U.S.C. § 1229b(b)(1)(D).
Ramos testified that, if he were removed, his children would remain in the United States. In evaluating his claim, the BIA and IJ relied on Perez v. INS, 96 F.3d 390 (9th Cir.1996) and Matter of Ige, 20 I. & N. Dec. 880 (BIA 1994). Those cases hold that, in order to establish hardship based on family separation, an alien must submit an affidavit stating that the family wall be separated if he is deported. Perez, 96 F.3d at 393; Matter of Ige, 20 I. & N. Dec, at 885. However, pursuant to Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir.1998) (per curiam), that per se evidentiary requirement does not apply where other evidence adequately shows that the family will be separated.
Because Perez and Ige were limited by Salcido-Salcido, the IJ and BIA erred by relying solely on those cases in evaluating whether Ramos had met his evidentiary burden. We therefore GRANT Ramos’ petition and REMAND for the BIA to reconsider whether Ramos has established “exceptional and extremely unusual hardship” under the correct standard.
Because we find that the BIA erred by applying an incorrect legal standard, we do not reach the question whether the IJ violated Ramos’ due process rights at his removal hearing.
GRANTED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472025/ | MEMORANDUM ***
Sampuran Singh, a native and citizen of India, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the determinations of an immigration judge (“IJ”) that Singh is ineligible for asylum and withholding of removal because he engaged in terrorist related activities. We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we affirm.
As we held recently in Khan v. Holder, 584 F.3d 773, 779-80 (9th Cir.2009), this court has jurisdiction to review the BIA’s denial of asylum relief on terrorist grounds. Although there is a limitation on judicial review of denial of asylum relief on these grounds in 8 U.S.C. § 1158(b)(2)(D), the REAL ID Act inserted revised Section 1252(a)(2)(D) into Chapter 8 of the United States Code, thereby restoring this court’s jurisdiction to determine the scope and meaning of the statutory terrorism bar, and to review the BIA’s determination that a petitioner engaged in terrorist activity. See Khan, 584 F.3d at 779-80.
The BIA did not err in determining that Singh engaged in terrorist related activity by providing material support to a terrorist group, and it was thus correct in concluding that Singh was statutorily barred from obtaining relief in the form of asylum, withholding of removal under the INA, and withholding of removal under the Convention Against Torture (“CAT”). See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2009). Substantial evidence in the administrative record indicates that Singh provided Sikh militants, who planned to plant bombs dur*224ing an Indian Independence Day celebration, with material support in the form of food, shelter, and funds. [AR 137]
Singh argues that he acted under duress when he provided this support to the Sikh militants, and that an involuntariness exception to the terrorist bar should be implied from the language of the INA. [Blue Brief at 19] The BIA held, however, that Singh acted voluntarily, and substantial evidence supports its conclusion. Singh had the opportunity to inform the authorities about the militants’ plans during the four-hour period that he spent raising money for the militants, but he chose not to do so. [AR 165] Because Singh acted voluntarily, we need not reach the question of whether there is a statutory exception to the terrorist bar for asylum seekers who involuntarily provide material support to terrorists.
The BIA also did not err in determining that Singh was ineligible for deferral of removal under CAT. In order to qualify for deferral of removal under CAT, an applicant must establish a clear probability that he would be tortured if he were to return to his country of origin. See 8 C.F.R. § 1208.16(c)(2) (2009). Substantial evidence in the administrative record supports the BIA’s determination that Singh failed to establish a clear probability of torture, should he return to India. Singh testified that before entering the United States he was able to reside for a few months in two other Indian cities, New Delhi and Haryana, without persecution or arrest by the authorities. [AR 152-53] State Department reports in the administrative record also indicate that changed circumstances in India since the mid-1990s have enabled former Sikh militants from Punjab to reside safely in other parts of India and to return from overseas and reintegrate into Indian society. [AR 197, 211] There is, therefore, substantial evidence in the record to support the BIA’s determination that it is not more likely than not that Singh would be tortured if he were to return to India, rendering him statutorily ineligible for deferral of removal under CAT.
DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472029/ | MEMORANDUM *
Petitioner Jeanne Barthold raises two appeals. First, she challenges an order of the Board of Immigration Appeals (“BIA”) affirming the denial of her applications for asylum, withholding of removal, and relief *229under the Convention Against Torture (“CAT”) (“2005 Order”). Second, she challenges an order of the BIA denying her motion to reopen proceedings (“2006 Order”). We deny Barthold’s petition for review of the 2005 Order, because the Immigration Judge’s (“IJ’s”) determination that Barthold lacked credibility was supported by substantial evidence. We grant Barthold’s petition for review of the 2006 Order, because the BIA abused its discretion in holding that Barthold failed to present evidence of materially changed country conditions.
I
Barthold testified before the IJ that while in Haiti, she had been harassed, beaten, and raped due to her support of former Haitian President Jean-Bertrand Aristide. She further testified that after the attack, she went into hiding with her friend Nancy for almost five years in Portau-Prince, until she was placed on a boat to the United States in July 1996. The IJ denied all of Barthold’s claims in 2003, holding that her testimony was not credible. The BIA summarily affirmed the IJ’s decision, and Barthold appealed to this court in May 2005.
While that appeal was pending, Barthold filed a motion to reopen proceedings -with the BIA based on ineffective assistance of counsel and changed country conditions following a 2004 coup of Aristide. The BIA denied Barthold’s motion in 2006, holding that her ineffective assistance of counsel claim was procedurally barred and that Barthold had not demonstrated a material change in country conditions. Bart-hold appealed, and the two appeals were consolidated.
II
To be eligible for asylum, an alien must demonstrate either past persecution or a well-founded fear of future persecution on account of a protected ground. See 8 U.S.C. § 1101(a)(42)(A). An IJ may deny an alien’s application for asylum based on lack of credibility, so long as the IJ provides “specific, cogent reasons that bear a legitimate nexus to the finding.” Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir.2000). “We review adverse credibility determinations for substantial evidence and reverse only if the evidence compels a contrary conclusion.” Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006).
The IJ found that Barthold lacked credibility because although she repeatedly testified that she had never been to the United States before July 1996, and claimed she was in hiding with her friend Nancy in Port-au-Prince from 1991 to 1996, the IJ found that Barthold had entered the United States in 1992 using a counterfeit passport. Barthold now concedes that she has been in the United States since 1992, and that she fabricated the part of her story about going into hiding. That part of the story, however, was crucial to Barthold’s claim. It served to heighten the perception that her fear of persecution was genuine, and it enhanced the status of prior incidents in her story by showing their profound impact on her subsequent, day-to-day life in Haiti. It therefore cannot be dismissed as not going “to the heart of [her] asylum claim.” Marcos v. Gonzales, 410 F.3d 1112, 1117 (9th Cir.2005). Because it is now undisputed that this portion of her story is untrue, the record simply does not compel a reversal of the adverse credibility finding.
Ill
With regard to Barthold’s motion to reopen, the BIA correctly held that Barthold’s ineffective assistance of counsel claim was procedurally barred because she *230failed to comply with two of the three requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Specifically, Barthold 1) failed to submit an affidavit with sufficient details regarding her agreement with prior counsel; and 2) failed to file a complaint against her prior counsel with the proper disciplinary authorities. See id. at 639. Moreover, Barthold’s case is not the kind of “clear and obvious case of ineffective assistance” in which we have been flexible applying the hozada rules. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002).
However, the BIA erred in holding that Barthold failed to provide evidence of a material change in conditions in Haiti because these conditions had continuously existed in Haiti for years. In 2003, the IJ found that circumstances in Haiti had improved such that, even accepting Bart-hold’s original story, she no longer had a well-founded fear of future persecution. This finding was necessary to the disposition of the case even though the IJ had rejected Barthold’s testimony regarding her alleged past persecution, because Barthold could demonstrate a well-founded fear of future persecution without demonstrating past persecution. See Singh v. Ashcroft, 362 F.3d 1164, 1170 (9th Cir.2004). Barthold’s evidence shows conditions following the 2004 coup that are materially different from the conditions the IJ found to exist in 2003. In other words, the Id’s findings as to improved conditions might now be outdated. Because the BIA failed to compare Barthold’s recent evidence of worsened conditions to the evidence of improved conditions relied upon by the IJ, the BIA abused its discretion. On remand, the BIA should consider whether Barthold now has a well-founded fear of future persecution.
PETITION GRANTED IN PART AND DENIED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472031/ | MEMORANDUM ***
Carl E. Person, pro se, appeals the district court’s dismissal of his Second Amended Complaint (“SAC”) against Google, Inc. Person alleged that Google violated the Sherman Act § 2 for “monopolizing and combining to monopolize the search advertising market and submarket for monetizing the traffic of community search websites.” Person alleges, in the alternative, attempted monopolization under the Sherman Act § 2. The district court dismissed Person’s SAC under Federal Rule of Civil Procedure 12(b)(6). We affirm.
Person has failed to plead facts sufficient to raise the allegations in his complaint that Google engaged in exclusionary, anticompetitive, or predatory behavior beyond a speculative level. See Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Because we hold that Person has failed adequately to allege that Google engaged in exclusionary, anticompetitive, or predatory behavior, we do not reach the question whether Person pleaded facts sufficient to show a relevant market.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472230/ | SUMMARY ORDER
Plaintiffs-appellants, Mitchell Camarda et al. (collectively, the “plaintiffs”), appeal from a summary judgment entered on September 18, 2007, 2007 WL 2702825, in the United States District Court for the Southern District of New York (Brieant, J.), in favor of defendants-appellees Snapple Distributors, Inc., Snapple Finance Corp., Snapple Beverage Corporation, and Snapple Beverage Group, Inc. (collectively, the “defendants”). The District Court dismissed the plaintiffs’ secondary-line price discrimination claim brought pursuant to the Robinson-Patman Act, 15 U.S.C. *692§§ 18(a), 15(a), the court having found, inter alia, that the plaintiffs failed to establish that they suffered actual injury. Having dismissed plaintiffs’ secondary-line price discrimination claim, the District Court declined to exercise supplemental jurisdiction over the plaintiffs’ state-law breach of contract claims. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
A price discrimination claim brought by a private plaintiff for violations of the Robinson-Patman Act cannot succeed unless the plaintiff establishes (1) a violation of the Robinson-Patman Act and (2) actual injury resulting therefrom. See George Hang Co. v. Rolls Royce Motor Cars Inc., 148 F.3d 136, 141 (2d Cir.1998); see also 15 U.S.C. § 15(a); J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 562, 101 S.Ct. 1923, 68 L.Ed.2d 442 (1981). To establish actual injury, a plaintiff must demonstrate (1) an injury-in-fact; (2) that has been caused by the violation of the Robinson-Patman Act; and (3) that is the type of injury contemplated by the Robinson-Patman Act. Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 220 (2d Cir.2004). To this end, and as relevant in this appeal, the plaintiff must make some showing that the injury to its business was not caused by factors unrelated to the defendant’s price discrimination. Cf. J. Truett Payne Co., 451 U.S. at 565-66, 101 S.Ct. 1923 (“The Court has repeatedly held that in the absence of more precise proof, the factfinder may conclude as a matter of just and reasonable inference from the proof of defendants’ wrongful acts and their tendency to injure plaintiffs’ business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants’ wrongful acts had caused damage to the plaintiffs.” (emphasis added) (internal quotation marks omitted)).
Here, it is undisputed that the plaintiffs did not provide evidence demonstrating the “extent [to which] other factors ... may have played a role in the loss of customers and accounts.” Appellant’s Br. at 49. See J. Truett Payne Co., 451 U.S. at 565-66, 101 S.Ct. 1923; see also Am. Booksellers Ass’n, Inc. v. Barnes & Noble, Inc., 135 F.Supp.2d 1031, 1042 (N.D.Cal.2001). The plaintiffs argue, instead, that they were not required to submit any such evidence because there was substantial proof that the defendants were aware of a transshipping problem and failed to adequately suppress it.1
The existence of a “transshipping problem,” however, does not establish a causal connection between the plaintiffs’ claimed injuries and the defendants’ alleged price discrimination. As the District Court observed, factors unrelated to the defendants’ pricing of the Snapple products, e.g., the convenience of “one-stop shopping” and the willingness of transshippers to sell at a lower price for less profit, can lead to the plaintiffs’ losing business to transshippers. A change in consumer preference and other external factors may also contribute to the plaintiffs’ loss of business. See Official Publ’ns, Inc. v. Kable News Co., 884 F.2d 664, 667 (2d Cir.1989) (“In order to show antitrust injury under the Robinson-Patman Act, a party must prove a causal connection between price discrim*693ination and the injury it claims to have suffered.” (emphasis added)). We reject the plaintiffs’ argument that they need not have accounted for other factors that may have caused their businesses to decline. Accordingly, we hold that the District Court did not err in concluding that the plaintiffs failed to establish “actual injury” resulting from the defendants’ purported violation of the Robinson-Patman Act.
To the extent the plaintiffs request a remand to submit further evidence of causation, we decline to grant the request because the plaintiffs had an opportunity throughout the lower court proceedings to submit proper evidence of a causal connection between their alleged injury and the defendants’ alleged price discrimination. At no time did the plaintiffs request the District Court to consider evidence accounting for other causal factors. Cf. Delta Traffic Serv., Inc. v. Appco Paper & Plastics Corp., 931 F.2d 5, 7 (2d Cir.1991) (“[W]e decline to remand to the district court for consideration of a defense which has been raised for the first time on appeal.”).
The District Court having properly dismissed the plaintiffs’ federal claim brought pursuant to the Robinson-Patman Act, we see no abuse of discretion in the court’s decision to decline exercising supplemental jurisdiction over the plaintiffs’ remaining state-law claims. See Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.2006).
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
. ''[W]henever a substantial price difference exists between two neighboring markets for the same or similar products, a practice called 'transshipping' may occur, whereby an individual or a company purchases a stock of product in the lower priced territory, and 'transships' it to the higher priced territory for resale.” Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 581-82 (2d Cir.1987). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472017/ | MEMORANDUM *
Elias Velgara-Chavez appeals his conviction for attempted illegal reentry after deportation in violation of 8 U.S.C. § 1326(a), with a sentence enhancement pursuant to § 1326(b)(2), and challenges his 51-month sentence as substantively *217and procedurally unreasonable. We affirm.
Velgara-Chavez contends that there was insufficient evidence that he had the specific intent to reenter the United States without the Attorney General’s consent. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir.2000) (en banc) (holding that specific intent is an element of attempted illegal reentry).
We disagree. Most significantly, the government presented evidence that Velgara-Chavez admitted in a sworn statement that he attempted to enter the United States illegally. Additionally, the government offered evidence that two weeks prior to Velgara-Chavez’s attempted reentry, Immigration and Customs Enforcement deported Velgara-Chavez and informed him that if he attempted to return to the United States without the Attorney General’s consent, he would be subject to prosecution for a felony.
Velgara-Chavez also challenges his sentence. He first asserts that the district court committed procedural error by failing to consider the nature and circumstances of his offense. See 18 U.S.C. § 3553(a)(1). The record shows the contrary.
Velgara-Chavez next contends that his sentence is substantively unreasonable because it over-emphasizes his criminal history and fails to reflect the innocuous way in which he committed his offense. Given the totality of the circumstances, including Velgara-Chavez’s significant criminal history, we cannot conclude that a 51-month sentence is unreasonable.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472019/ | MEMORANDUM **
Ronald P. Foster, a California state prisoner, appeals from the district court’s entry of summary judgment in favor of state prison officials M.D. McDonald, D.J. Davey, and R. St. Andre. McDonald reassigned Foster from a single cell to a cell shared with another inmate. Foster refused the order to share a cell for the stated reason that he was not ready to deal with living with another inmate. Although Foster was not forced to share a cell, he lost his accumulated good-time credits and was placed on zero-credit earning status for his continuing refusal to obey the order to double-cell. Foster’s loss of good-time credits directly and significantly affects his release date by at least 390 days. In this 42 U.S.C. § 1983 action, Foster claimed the double-cell order violates the Eighth Amendment because McDonald knew or should have inferred that Foster’s safety was at risk if Foster were forced to accept a cellmate. In addition, Foster claimed that Davey and St. Andre deprived him of property without due process by confiscating his electronics equipment without a hearing. Foster sought damages on both claims, as well as an injunction requiring that his single-cell status be reinstated.
*219We have jurisdiction pursuant to 28 U.S.C. § 1291. Summary judgment rulings are reviewed de novo. Corales v. Bennett, 567 F.3d 554, 562 (9th Cir.2009). A grant of summary judgment may be affirmed on any basis supported by the record. Id. We affirm.
The district court did not err in concluding that Foster’s § 1983 claim is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). A state prisoner’s § 1983 claim is not cognizable if success on the claim would necessarily imply the invalidity of his sentence. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. Consequently, a prisoner’s § 1983 challenge to disciplinary hearing procedures is barred if judgment in his favor would necessarily imply the invalidity of the resulting loss of good-time credits. Balisok, 520 U.S. at 646, 117 S.Ct. 1584. A decision in Foster’s favor would necessarily imply the invalidity of his loss of good-time credits for refusing to share a cell with another inmate. This consequence would affect directly and significantly his release date. Although Foster disclaims seeking reinstatement of good-time credit in this case, the result is clearly implied from the requested injunction to reinstate his single-cell status. The requested injunctive relief would invalidate the basis for the disciplinary charges and loss of good-time credits.
The district court did not err in declining to adopt the magistrate judge’s recommended denial of McDonald’s summary judgment. Foster failed to present a genuine issue of material fact that his safety was at risk if double-celled, or that McDonald knew or should have inferred that Foster’s safety was threatened if double celled. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (holding that a prison official acts with deliberate indifference when he knows of and disregards an excessive risk to inmate safety). Foster contends he was entitled to continued single-cell status because twelve prior classification committees between 1999 and 2003 found him eligible. But the California Department of Corrections updated its single-cell policy in April 2003; Foster no longer qualified.
The district court did not err in granting summary judgment for Davey and St. Andre on Foster’s property deprivation claim. California law provides an adequate post-deprivation remedy for a prisoner’s property loss. See Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir.1994) (per curiam) (holding that California’s post-deprivation remedy for property loss barred a prisoner’s § 1983 challenge to property deprivation).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472020/ | MEMORANDUM ***
Christine Baker appeals pro se the district court’s grant of summary judgment in favor of Equifax Information Services, Retailers National Bank, and Capital One Bank (collectively “Defendants”). Baker sued Defendants in district court for the District of Arizona for violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681X (2006), the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-169U, and Arizona state law, Ariz.Rev.Stat. Ann. § 44-1522 (Supp.2008). We affirm.
The Fair Credit Reporting Act does not obligate creditors to report consumers’ credit limits. See 15 U.S.C. § 1681s-2. The Fair Credit Reporting Act does not obligate credit reporting agencies, such as Equifax, to report information they do not possess. See 15 U.S.C. § 1681L Therefore, we hold Baker’s claims that defendants are liable for failing to report her credit limits lack merit.
With respect to Baker’s myriad miscellaneous claims on appeal, we hold them to be also without merit. To the extent the defendants did incorrectly modify Baker’s *221information upon reinvestigation, Baker has not shown how she suffered any harm from that specific incident.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472022/ | *222MEMORANDUM **
The Board of Immigration Appeals (BIA) dismissed Miguel Ramos Flores’ appeal from the Immigration Judge’s (IJ’s) decision denying his application for cancellation of removal, and denied his motion to reconsider. Ramos petitions for review. We have jurisdiction because the petition raises a “colorable” question of law. 8 U.S.C. § 1252(a)(2)(D); Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir.2009). Because the BIA applied the wrong legal standard to determine whether Ramos met his burden to establish eligibility for cancellation of removal, we grant the petition for review and remand.
The BIA found Ramos ineligible for cancellation of removal because Ramos failed to demonstrate that his U.S. citizen children or lawful permanent resident parents would experience “exceptional and extremely unusual hardship” as a result of his removal. See 8 U.S.C. § 1229b(b)(1)(D).
Ramos testified that, if he were removed, his children would remain in the United States. In evaluating his claim, the BIA and IJ relied on Perez v. INS, 96 F.3d 390 (9th Cir.1996) and Matter of Ige, 20 I. & N. Dec. 880 (BIA 1994). Those cases hold that, in order to establish hardship based on family separation, an alien must submit an affidavit stating that the family wall be separated if he is deported. Perez, 96 F.3d at 393; Matter of Ige, 20 I. & N. Dec, at 885. However, pursuant to Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir.1998) (per curiam), that per se evidentiary requirement does not apply where other evidence adequately shows that the family will be separated.
Because Perez and Ige were limited by Salcido-Salcido, the IJ and BIA erred by relying solely on those cases in evaluating whether Ramos had met his evidentiary burden. We therefore GRANT Ramos’ petition and REMAND for the BIA to reconsider whether Ramos has established “exceptional and extremely unusual hardship” under the correct standard.
Because we find that the BIA erred by applying an incorrect legal standard, we do not reach the question whether the IJ violated Ramos’ due process rights at his removal hearing.
GRANTED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472024/ | MEMORANDUM ***
Sampuran Singh, a native and citizen of India, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the determinations of an immigration judge (“IJ”) that Singh is ineligible for asylum and withholding of removal because he engaged in terrorist related activities. We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we affirm.
As we held recently in Khan v. Holder, 584 F.3d 773, 779-80 (9th Cir.2009), this court has jurisdiction to review the BIA’s denial of asylum relief on terrorist grounds. Although there is a limitation on judicial review of denial of asylum relief on these grounds in 8 U.S.C. § 1158(b)(2)(D), the REAL ID Act inserted revised Section 1252(a)(2)(D) into Chapter 8 of the United States Code, thereby restoring this court’s jurisdiction to determine the scope and meaning of the statutory terrorism bar, and to review the BIA’s determination that a petitioner engaged in terrorist activity. See Khan, 584 F.3d at 779-80.
The BIA did not err in determining that Singh engaged in terrorist related activity by providing material support to a terrorist group, and it was thus correct in concluding that Singh was statutorily barred from obtaining relief in the form of asylum, withholding of removal under the INA, and withholding of removal under the Convention Against Torture (“CAT”). See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2009). Substantial evidence in the administrative record indicates that Singh provided Sikh militants, who planned to plant bombs dur*224ing an Indian Independence Day celebration, with material support in the form of food, shelter, and funds. [AR 137]
Singh argues that he acted under duress when he provided this support to the Sikh militants, and that an involuntariness exception to the terrorist bar should be implied from the language of the INA. [Blue Brief at 19] The BIA held, however, that Singh acted voluntarily, and substantial evidence supports its conclusion. Singh had the opportunity to inform the authorities about the militants’ plans during the four-hour period that he spent raising money for the militants, but he chose not to do so. [AR 165] Because Singh acted voluntarily, we need not reach the question of whether there is a statutory exception to the terrorist bar for asylum seekers who involuntarily provide material support to terrorists.
The BIA also did not err in determining that Singh was ineligible for deferral of removal under CAT. In order to qualify for deferral of removal under CAT, an applicant must establish a clear probability that he would be tortured if he were to return to his country of origin. See 8 C.F.R. § 1208.16(c)(2) (2009). Substantial evidence in the administrative record supports the BIA’s determination that Singh failed to establish a clear probability of torture, should he return to India. Singh testified that before entering the United States he was able to reside for a few months in two other Indian cities, New Delhi and Haryana, without persecution or arrest by the authorities. [AR 152-53] State Department reports in the administrative record also indicate that changed circumstances in India since the mid-1990s have enabled former Sikh militants from Punjab to reside safely in other parts of India and to return from overseas and reintegrate into Indian society. [AR 197, 211] There is, therefore, substantial evidence in the record to support the BIA’s determination that it is not more likely than not that Singh would be tortured if he were to return to India, rendering him statutorily ineligible for deferral of removal under CAT.
DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472026/ | MEMORANDUM *
Weddington appeals from the district court’s summary judgment for United National Insurance Company (United National). The district court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
We will affirm the district court if the insurance policy at issue (the Policy) excludes coverage of Weddington’s claim against Reeves, his former attorney. United National insured Reeves under a “claims made” professional liability insurance policy, with a policy period extending from June 15, 2004 to June 15, 2005. Policy exclusion II.B states that the Policy does not apply to claims “arising out of any WRONGFUL ACT occurring prior to the effective date of this policy ... if the INSURED at or before the effective date knew or could have reasonably foreseen that such WRONGFUL ACT might be expected to be the basis of a CLAIM.”
The central question here is whether exclusion II.B should be subject to an “objective” or “subjective” test. Weddington contends that exclusion II.B bars coverage only where Reeves believed that her handling of Weddington’s underlying case might result in a malpractice claim, i.e. only where the insured subjectively believed that a claim was likely. United National asserts, and the district court agreed, that exclusion II.B applies on an objective basis and bars coverage where a claim is reasonably foreseeable.
California substantive law applies to our interpretation of this insurance contract. In order to bar coverage, an exclusionary clause, such as that we consider here, “must be conspicuous, plain and clear.” MacKinnon v. Truck Ins. Exch., 31 Cal.4th 635, 3 Cal.Rptr.3d 228, 73 P.3d 1205, 1207 (2003), citing Gray v. Zurich Ins. Co., 65 Cal.2d 263, 54 Cal.Rptr. 104, 419 P.2d 168, 172 (1966).
Policy exclusion II.B provides that coverage is excluded where an insured either “knew or could have reasonably foreseen” *226that a wrongful act “might be expected to be the basis of a CLAIM” prior to the effective date of the policy. The exclusion of coverage for reasonably foreseeable claims applies here. This provision does not call for the exercise of the insured’s judgment as to the probability of a claim. Instead, the use of the phrase “or could have reasonably foreseen” indicates that coverage is excluded where a claim was foreseeable from a reasonable, objective viewpoint. Weddington’s subjective interpretation would have this exclusion bar coverage only where the insured knew of a claim; as such, Weddington’s interpretation would effectively nullify the second clause, which excludes coverage where a claim “could have [been] reasonably foreseen.”
Weddington argues that exclusion II.B is ambiguous because it fails to indicate whether an objective or subjective standard applies to the determination of whether a claim was foreseeable. But the policy need not use the term “objective” or “subjective” in order to articulate an unambiguous exclusion. The term “reasonably” indicates that an objective standard should apply. The term “reasonably” is not ambiguous. Phoenix Ins. Co. v. Sukut Constr. Co., 136 Cal.App.3d 673, 186 Cal.Rptr. 513, 514 (1982) (in context of professional liability insurance policy, the phrase “might be expected to be the basis of a claim or suit” was unambiguous and “perfectly clear”); see also Coregis Ins. Co. v. Camico Mut. Ins. Co., 959 F.Supp. 1213, 1222 (C.D.Cal.1997) (“a reasonable person would have foreseen that the conduct alleged ... might form the basis of a claim or suit”).
Exclusion II.B is capable of only one reasonable construction and is therefore not ambiguous. Waller v. Truck Ins. Exch., Inc., 11 Cal.4th 1, 44 Cal.Rptr.2d 370, 900 P.2d 619, 627 (1995) (a clause in an insurance policy “will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable”). As we have concluded that exclusion II.B is not ambiguous, we need not reach Weddington’s assertion that public policy favors his interpretation, because a clear exclusion should not be ignored on public policy grounds. Rosen v. State Farm Gen. Ins. Co., 30 Cal.4th 1070, 135 Cal.Rptr.2d 361, 70 P.3d 351, 353 (2003) (“we do not rewrite any provision of any contract, [including an insurance policy], for any purpose”), citing Certain Underwriters at Lloyd’s of London v. Superior Court, 24 Cal.4th 945, 103 Cal.Rptr.2d 672, 16 P.3d 94, 108 (2001).
Weddington argues that James River Insurance Co. v. Hebert Schenk requires that a “subjective” interpretation be applied to exclusion II.B. 523 F.3d 915 (9th Cir.2008). In James River, we reviewed the district court’s conclusion that the insured’s failure to disclose an incident that later gave rise to a malpractice claim, in response to a question on a policy application, permitted the insurer to deny coverage under Arizona law. Id. at 921. Reversing, we concluded that the question was not clear and could not support summary judgment, because “reasonable persons could differ as to whether [the question at issue] elicited a statement of opinion or fact,” id., and answering the question required the insured to “exercise judgment in applying that standard to the facts concerning particular clients.” Id. at 922. As the policy application called for the insured’s evaluation of whether a claim was likely, a subjective test was appropriate. Here, we are asked to interpret a policy exclusion, not a policy application. Policy exclusion II.B does not call for a response by the insured, and does not call for the insured’s judgment as to whether a claim is likely.
*227James River also considered whether the district court erred in entering summary judgment to the insurer on the basis of a policy exclusion that denied coverage for claims arising from a legal service rendered prior to the effective date of the policy. Id. at 922-23. We determined that summary judgment was unwarranted based on our determination that the claim at issue was not necessarily “reasonably foreseeable.” Id. We did not indicate whether the policy exclusion was subject to a “subjective” or “objective” test. Id.
Weddington argues that, even if the district court did not err in its interpretation of exclusion II.B, it incorrectly applied that exclusion to this case. He asserts that United National did not have sufficient information to deny coverage at the time it withdrew its defense. But the underlying action was dismissed because it was not brought to trial within five years, and this was the basis for United National’s denial of a defense. The district court concluded that dismissal for failure to prosecute was the sort of incident likely to give rise to a claim. We agree. Failure to bring an action to trial within five years is the sort of incident likely to give rise to a claim for the reasons set forth in the district court’s order. Moreover, at the time when she applied for the insurance, Reeves knew that the matter had been dismissed under the five-year rule. Such an instance is distinguishable from that of an attorney who knows merely that he or she has erred at some point in the handling of a case. United National’s denial of a defense was, therefore, made upon sufficient information.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472028/ | MEMORANDUM *
Petitioner Jeanne Barthold raises two appeals. First, she challenges an order of the Board of Immigration Appeals (“BIA”) affirming the denial of her applications for asylum, withholding of removal, and relief *229under the Convention Against Torture (“CAT”) (“2005 Order”). Second, she challenges an order of the BIA denying her motion to reopen proceedings (“2006 Order”). We deny Barthold’s petition for review of the 2005 Order, because the Immigration Judge’s (“IJ’s”) determination that Barthold lacked credibility was supported by substantial evidence. We grant Barthold’s petition for review of the 2006 Order, because the BIA abused its discretion in holding that Barthold failed to present evidence of materially changed country conditions.
I
Barthold testified before the IJ that while in Haiti, she had been harassed, beaten, and raped due to her support of former Haitian President Jean-Bertrand Aristide. She further testified that after the attack, she went into hiding with her friend Nancy for almost five years in Portau-Prince, until she was placed on a boat to the United States in July 1996. The IJ denied all of Barthold’s claims in 2003, holding that her testimony was not credible. The BIA summarily affirmed the IJ’s decision, and Barthold appealed to this court in May 2005.
While that appeal was pending, Barthold filed a motion to reopen proceedings -with the BIA based on ineffective assistance of counsel and changed country conditions following a 2004 coup of Aristide. The BIA denied Barthold’s motion in 2006, holding that her ineffective assistance of counsel claim was procedurally barred and that Barthold had not demonstrated a material change in country conditions. Bart-hold appealed, and the two appeals were consolidated.
II
To be eligible for asylum, an alien must demonstrate either past persecution or a well-founded fear of future persecution on account of a protected ground. See 8 U.S.C. § 1101(a)(42)(A). An IJ may deny an alien’s application for asylum based on lack of credibility, so long as the IJ provides “specific, cogent reasons that bear a legitimate nexus to the finding.” Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir.2000). “We review adverse credibility determinations for substantial evidence and reverse only if the evidence compels a contrary conclusion.” Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006).
The IJ found that Barthold lacked credibility because although she repeatedly testified that she had never been to the United States before July 1996, and claimed she was in hiding with her friend Nancy in Port-au-Prince from 1991 to 1996, the IJ found that Barthold had entered the United States in 1992 using a counterfeit passport. Barthold now concedes that she has been in the United States since 1992, and that she fabricated the part of her story about going into hiding. That part of the story, however, was crucial to Barthold’s claim. It served to heighten the perception that her fear of persecution was genuine, and it enhanced the status of prior incidents in her story by showing their profound impact on her subsequent, day-to-day life in Haiti. It therefore cannot be dismissed as not going “to the heart of [her] asylum claim.” Marcos v. Gonzales, 410 F.3d 1112, 1117 (9th Cir.2005). Because it is now undisputed that this portion of her story is untrue, the record simply does not compel a reversal of the adverse credibility finding.
Ill
With regard to Barthold’s motion to reopen, the BIA correctly held that Barthold’s ineffective assistance of counsel claim was procedurally barred because she *230failed to comply with two of the three requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Specifically, Barthold 1) failed to submit an affidavit with sufficient details regarding her agreement with prior counsel; and 2) failed to file a complaint against her prior counsel with the proper disciplinary authorities. See id. at 639. Moreover, Barthold’s case is not the kind of “clear and obvious case of ineffective assistance” in which we have been flexible applying the hozada rules. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002).
However, the BIA erred in holding that Barthold failed to provide evidence of a material change in conditions in Haiti because these conditions had continuously existed in Haiti for years. In 2003, the IJ found that circumstances in Haiti had improved such that, even accepting Bart-hold’s original story, she no longer had a well-founded fear of future persecution. This finding was necessary to the disposition of the case even though the IJ had rejected Barthold’s testimony regarding her alleged past persecution, because Barthold could demonstrate a well-founded fear of future persecution without demonstrating past persecution. See Singh v. Ashcroft, 362 F.3d 1164, 1170 (9th Cir.2004). Barthold’s evidence shows conditions following the 2004 coup that are materially different from the conditions the IJ found to exist in 2003. In other words, the Id’s findings as to improved conditions might now be outdated. Because the BIA failed to compare Barthold’s recent evidence of worsened conditions to the evidence of improved conditions relied upon by the IJ, the BIA abused its discretion. On remand, the BIA should consider whether Barthold now has a well-founded fear of future persecution.
PETITION GRANTED IN PART AND DENIED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
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