url
stringlengths 56
59
| text
stringlengths 3
913k
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8478032/
|
PER CURIAM.
Glenn Johnson, Jr., and Alton Louis Vaughn, Sr., appeal the district court’s1 dismissal of their lawsuit and denial of their motion for recusal. After careful de novo review, see Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir.2005), we conclude that dismissal was proper under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (requirements to survive Rule 12(b)(6) motion to dismiss); Stone v. Harry, 364 F.3d 912, 914 (8th Cir.2004) (pro se complaints are to be construed liberally, but must allege sufficient facts to support claims advanced); Frey v. City of Herculaneum, 44 F.3d 667, 672 (8th Cir.1995) (complaint fell short of meeting even liberal standard for notice pleading where it was entirely conclusory and gave no idea what acts individual defendants were accused of that could result in liability); see also Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir.2005) (court may affirm dismissal on any basis supported by record); Norwood, 409 F.3d at 903-04 (federal courts should abstain from hearing federal cases when there is ongoing state judicial proceeding which implicates important state interests, and when that proceeding affords adequate opportunity to raise federal questions presented). We also conclude that the district court did not abuse its discretion in denying the recusal motion. See Hooker v. Story, 159 F.3d 1139, 1140 (8th Cir.1998) (per curiam) (standard of review).
Accordingly, we affirm the judgment. We deny appellee Larry Maddox’s motion *717to strike appellants’ brief or dismiss the appeal.
. The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478035/
|
PER CURIAM.
Barbara Brundo appeals the district court’s1 order returning her submissions because they lacked a legal basis or otherwise violated Fed.R.Civ.P. 11, and because Brundo was barred from making further submissions by a prior court order. We find no error in the district court’s order. Accordingly, we affirm. See 8th Cir. R. 47A.
. The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478036/
|
MEMORANDUM **
Flavio Escobedo Gomez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we review de novo due process claims, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.
The BIA did not abuse its discretion in denying Escobedo Gomez’s second motion to reopen as untimely and numerically barred because it was filed over a year after the BIA’s August 2, 2005, final order, see 8 C.F.R. § 1003.2(c)(2), and equitable tolling is unavailable to Escobedo Gomez where he did not establish prejudice from the alleged ineffective assistance of counsel, see Iturribarria, 321 F.3d at 897, 899; see also Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir.2004), amended by 404 F.3d 1105 (9th Cir.2005) (order) (counsel’s “unfortunate immigration-law advice” was not ineffective assistance because it did not “pertain to the actual substance of the hearing” or “call the hearing’s fairness into question”).
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/8478039/
|
ORDER ***
The motion for voluntary dismissal of the petition for review is GRANTED. The petition for review is DISMISSED.
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/8478043/
|
MEMORANDUM **
Tan Giok Tjan, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence, Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir.2004), and we deny the petition for review.
Substantial record evidence supports the BIA’s conclusion that the mistreatment Tjan suffered while living in Indonesia did not rise to the level of past persecution. See Singh v. INS, 134 F.3d 962, 965-69 (9th Cir.1998) (repeated vandalism of Indo-Fijian’s property, with no physical injury, not persecution); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003) (harassment, threats, and one beating unconnected with any particular threat did not compel finding that ethnic Albanian suffered past persecution in Kosovo). *777Even if the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004), applies to Tjan, he has not demonstrated the requisite individualized risk of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1184-85 (9th Cir.2003). Thus, substantial evidence supports the BIA’s conclusion that Tjan did not establish a well-founded fear of future persecution. See Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir.2007) (en banc) (showing of individualized risk requires more than a general undifferentiated claim of the type of fears common to the religious group).
Because Tjan did not establish eligibility for asylum, it follows that he did not satisfy the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006). Substantial evidence also supports the BIA’s denial of CAT relief because Tjan failed to establish it is more likely than not that he will be tortured if returned to Indonesia. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003).
Lastly, contrary to Tjan’s contention, the agency’s decisions were supported by the record and sufficiently reasoned for us to review. See Lopez v. Ashcroft, 366 F.3d 799, 807 (9th Cir.2004) (agency does not have to write an exegesis on every contention).
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/8478029/
|
ORDER
Shana Sain owned a transportation company that partnered with Indiana Medicaid to provide services to eligible patients. Over a two-and-a-half-year period, Sain ov-erbilled for her services, defrauding the agency of nearly a quarter of a million dollars. She pleaded guilty to health-care fraud, 18 U.S.C. § 1347, and, in her plea agreement, stipulated to an offense level of 15 and waived the right to appeal her sentence as long as the district court sentenced her within or below the advisory guideline range for that offense level. Sain’s criminal-history category of IV produced a guidelines imprisonment range of 30 to 37 months, and the district court sentenced her to a 30-month prison term. Sain appeals nonetheless, and her appointed counsel seeks to withdraw under An-ders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he concludes that the appeal is frivolous. Sain did not respond to our invitation to comment on counsel’s motion. See Cir. R. 51(b). We limit our review to the potential issues discussed in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Sain does not wish to have her guilty plea set aside, so counsel properly omits any discussion of the voluntariness of her guilty plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002). The appeal waiver stands or falls with the plea, Nunez v. United States, 546 F.3d 450, 453 (7th Cir.2008); United States v. Whitlow, 287 F.3d 638, 640 (7th Cir.2002), and Sain’s waiver precludes her from challenging her within-guidelines sentence. Accordingly, we agree with counsel that any potential arguments on appeal would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478031/
|
ORDER
Ruben Galarza pleaded guilty to his role in a cocaine distribution conspiracy that moved 300 kilograms of cocaine every two weeks, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to 151 months’ imprisonment. Galarza filed a notice of appeal, but his appointed lawyer has asked to with*714draw because he has determined that any appeal would be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Galarza to respond to counsel’s submission, see Cir. R. 51(b), but he did not. We limit our review to the issues considered in counsel’s facially sufficient supporting brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel tells us that Galarza does not want his guilty plea vacated, and so he properly omits any discussion of the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel first considers whether Galarza might challenge the district court’s calculation of his recommended guidelines range. But any such challenge would be frivolous. The district court correctly calculated Ga-larza’s final offense level to be 34 (accounting for reductions for acceptance of responsibility and the “safety valve”) and his criminal history category to be I, resulting in a recommended imprisonment range of 151 to 188 months.
Counsel next considers whether Galarza might renew his argument that he should have received a three-level reduction for acceptance-of-responsibility (rather than two) because he pleaded guilty before trial. Noting that his plea on the eve of trial made that reduction unlikely, the district court correctly recognized that the further reduction would be appropriate only if the government had asked for it, and here it had not. See United States v. Deberry, 576 F.3d 708, 710 (7th Cir.2009), petition for cert, filed, (Oct. 30, 2009) (No. 09-7351). Any such challenge would therefore be frivolous.
Finally counsel considers whether Galarza might challenge the reasonableness of his sentence. The court sentenced him to the bottom of the suggested range, and a sentence within a properly calculated range is presumed reasonable. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Cano-Rodriguez, 552 F.3d 637, 639 (7th Cir.2009). Moreover, at sentencing the court considered Galarza’s argument that he should be sentenced similarly to his coconspirator who received a sentence of 47 months’ imprisonment. Although the court expressed sympathy with that argument, it concluded that a sentence at the low end of the guidelines was more appropriate because Galarza’s crime involved a “staggering” amount of drugs whose impact would be felt both in terms of gangland murders and kids becoming addicted. The district court weighed the appropriate factors under 18 U.S.C. § 3553(a), emphasizing that although a shorter sentence might have provided adequate deterrence, see 18 U.S.C. § 3553(a)(2)(B), the guidelines sentence would more adequately reflect the seriousness of the crime and promote respect for the law, id. § 3553(a)(2)(A). Because the court meaningfully considered the § 3553(a) factors, any argument challenging Galarza’s sentence would be frivolous. See, e.g., United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir.2008).
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478034/
|
PER CURIAM.
Barbara Brundo appeals the district court’s1 order returning her submissions because they lacked a legal basis or otherwise violated Fed.R.Civ.P. 11, and because Brundo was barred from making further submissions by a prior court order. We find no error in the district court’s order. Accordingly, we affirm. See 8th Cir. R. 47A.
. The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478038/
|
ORDER ***
The motion for voluntary dismissal of the petition for review is GRANTED. The petition for review is DISMISSED.
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/8478041/
|
MEMORANDUM **
Rosa Ramirez-Velasquez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her motion to reopen and rescind a prior deportation order and terminate removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106 (9th Cir.2006), and we review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008). We deny in part and dismiss in part the petition for review.
Because Ramirez-Velasquez failed to demonstrate a gross miscarriage of justice, she may not at this point collaterally attack her 1991 deportation order. See Hernandez-Almanza v. INS, 547 F.2d 100, 102-03 (9th Cir.1976). The agency therefore did not abuse its discretion in denying Ramirez-Velasquez’s motion to reopen. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (the BIA’s denial of a motion to reopen shall be reversed if it is “arbitrary, irrational or contrary to law”).
*772Contrary to Ramirez-Velasquez’s contention, the BIA did not impermissibly ignore her arguments regarding her motion to reopen.
To the extent that Ramirez-Velasquez challenges the agency’s decision not to exercise its sua sponte authority to reopen, we lack jurisdiction. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
PETITION FOR REVIEW DENIED in part; DISMISSED 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/8478059/
|
ON MOTION
ORDER
Patricia K. Zelenka moves without opposition for leave to file her reply brief and the joint appendix out of time and to reinstate her petition for review.
Upon consideration thereof,
IT IS ORDERED THAT:
The motions are granted. The mandate is recalled, the court’s dismissal order is vacated, and the petition for review is reinstated.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478046/
|
MEMORANDUM **
Shamsun Nahar Iqbal and her minor son, natives and citizens of Bangladesh, petition pro se for review of a Board of Immigration Appeals’ (“BIA”) decision denying her motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir.2008), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Iqbal’s challenge to an immigration judge’s April 19, 2001 decision to deny Iqbal asylum and related relief. See 8 U.S.C. § 1252(b)(1) (requiring petition for review to be filed within 30 days of final order of removal).
The BIA did not abuse its discretion in denying Iqbal’s motion to reopen as untimely and number-barred because it was Iqbal’s third motion to reopen and it was filed four years after the BIA’s final order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety days of final order of removal); 8 U.S.C. § 1229a(c)(7)(A) (a party may file only one motion to reopen), and Iqbal failed to establish changed circumstances in Bangladesh to qualify for the regulatory exception to the time and number limitations, see ToufigM, 538 F.3d at 996.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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/8478048/
|
ORDER
Pursuant to stipulation by the parties, and for good cause shown, this case is dismissed with prejudice. Each party shall bear their respective costs and attorneys’ fees. A certified copy of this order sent to the district court shall constitute the mandate.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478050/
|
MEMORANDUM **
Yan Jiang, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings, Telele v. Mtileasey, 533 F.3d 1044, 1051 (9th Cir.2008), and review de novo claims of due process violations, Lata v. INS, 204 F.3d 1241, 1244 (9th Cir.2000). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s determination that Jiang’s asylum application was untimely because that finding is based on disputed facts. See 8 U.S.C. § 1158(a)(3); cf. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (exercising jurisdiction to consider one-year bar where facts were undisputed). Accordingly, we dismiss Jiang’s asylum claim.
Substantial evidence supports the agency’s adverse credibility determination because Jiang testified inconsistently about when she began proselytizing, see Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (inconsistencies regarding matters that go to the heart of petitioner’s claim support an adverse credibility determination), and her explanation for the inconsistencies does not compel a contrary conclusion, see Lata, 204 F.3d at 1245. Accordingly, we deny Jiang’s withholding of removal claim. See Farah v. Ashcroft, 348 F.3d 1153,1156 (9th Cir.2003).
Jiang has failed to set forth any substantive argument regarding the agency’s denial of CAT relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not supported by argument are deemed waived).
Finally, we reject Jiang’s contention that the BIA violated her due process rights by engaging in fact-finding because it is belied by the record and because she did not establish prejudice. See Lata, 204 F.3d at 1246 (requiring error and prejudice to prevail on due process claim).
PETITION FOR REVIEW DISMISSED in part; 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/8478061/
|
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/8478045/
|
MEMORANDUM **
Shamsun Nahar Iqbal and her minor son, natives and citizens of Bangladesh, petition pro se for review of a Board of Immigration Appeals’ (“BIA”) decision denying her motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir.2008), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Iqbal’s challenge to an immigration judge’s April 19, 2001 decision to deny Iqbal asylum and related relief. See 8 U.S.C. § 1252(b)(1) (requiring petition for review to be filed within 30 days of final order of removal).
The BIA did not abuse its discretion in denying Iqbal’s motion to reopen as untimely and number-barred because it was Iqbal’s third motion to reopen and it was filed four years after the BIA’s final order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety days of final order of removal); 8 U.S.C. § 1229a(c)(7)(A) (a party may file only one motion to reopen), and Iqbal failed to establish changed circumstances in Bangladesh to qualify for the regulatory exception to the time and number limitations, see ToufigM, 538 F.3d at 996.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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/8478049/
|
MEMORANDUM **
Yan Jiang, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings, Telele v. Mtileasey, 533 F.3d 1044, 1051 (9th Cir.2008), and review de novo claims of due process violations, Lata v. INS, 204 F.3d 1241, 1244 (9th Cir.2000). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s determination that Jiang’s asylum application was untimely because that finding is based on disputed facts. See 8 U.S.C. § 1158(a)(3); cf. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (exercising jurisdiction to consider one-year bar where facts were undisputed). Accordingly, we dismiss Jiang’s asylum claim.
Substantial evidence supports the agency’s adverse credibility determination because Jiang testified inconsistently about when she began proselytizing, see Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (inconsistencies regarding matters that go to the heart of petitioner’s claim support an adverse credibility determination), and her explanation for the inconsistencies does not compel a contrary conclusion, see Lata, 204 F.3d at 1245. Accordingly, we deny Jiang’s withholding of removal claim. See Farah v. Ashcroft, 348 F.3d 1153,1156 (9th Cir.2003).
Jiang has failed to set forth any substantive argument regarding the agency’s denial of CAT relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not supported by argument are deemed waived).
Finally, we reject Jiang’s contention that the BIA violated her due process rights by engaging in fact-finding because it is belied by the record and because she did not establish prejudice. See Lata, 204 F.3d at 1246 (requiring error and prejudice to prevail on due process claim).
PETITION FOR REVIEW DISMISSED in part; 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/8478052/
|
MEMORANDUM **
Eka Haryaty Tantalis and her husband, Rony Agus, natives and citizens of Indonesia, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s decision denying their application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence and will uphold the agency’s decision unless the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We deny the petition for review.
Substantial evidence supports the agency’s determination that petitioners did not suffer past persecution because the rape Tantalis suffered was not on account of a protected ground, see Ochave v. INS, 254 F.3d 859, 865 (9th Cir.2001), Agus failed to establish that the government was unwilling or unable to control his persecutors with respect to the 1996 motorcycle incident, see Castro-Perez v. Gonzales, 409 F.3d 1069, 1071-72 (9th Cir.2005), and the remaining incidents did not rise to the level of persecution, see Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir.1995). Substantial evidence also supports the agency’s determination that petitioners did not show sufficient individualized risk to demonstrate a well-founded fear of future persecution. Cf Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004). Accordingly, their asylum claim fails.
Because petitioners failed to establish eligibility for asylum, it necessarily follows that they cannot meet the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provid*836ed by 9th Cir. R. 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478054/
|
PER CURIAM:
In this case, the district court, following a bench trial, found for plaintiff Home Depot on its claim for declaratory relief and against defendants Amore Construction and David Barron Land Development on their counterclaims for breach of contract, unjust enrichment, quantum meruit, and negligent misrepresentation. After hearing oral argument of counsel in defendants’ appeal, we agree with the district court, for the reasons stated in its disposi-*61tive order of December 15, 2008, that the defendants’ counterclaims lack merit.
AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478056/
|
ON MOTION
ORDER
Upon consideration of the appellant’s unopposed motion to dismiss its appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) All sides shall bear their own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478058/
|
*107ORDER
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/8478060/
|
ON MOTION
ORDER
Patricia K. Zelenka moves without opposition for leave to file her reply brief and the joint appendix out of time and to reinstate her petition for review.
Upon consideration thereof,
IT IS ORDERED THAT:
The motions are granted. The mandate is recalled, the court’s dismissal order is vacated, and the petition for review is reinstated.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478062/
|
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/8478071/
|
*110ON MOTION
PER CURIAM.
ORDER
The United States moves to transfer this appeal to the United States Court of Appeals for the Third Circuit. Joseph P. Schiaffino opposes. Schiaffino also moves for leave to proceed in forma pauperis.
Schiaffino filed a challenge to a federal tax lien in Pennsylvania state court. The case was removed to the United States District Court for the Eastern District of Pennsylvania and the district court dismissed his case for lack of jurisdiction. Schiaffino now seeks review by this court.
Pursuant to 28 U.S.C. § 1295(a)(2), this court lacks jurisdiction over Schiaffino’s appeal. This court’s jurisdiction over appeals of district court decisions is limited primarily to cases involving patents and certain suits against the United States not exceeding $10,000. Schiaffino should have filed his appeal in the United States Court of Appeals for the Third Circuit.
Accordingly,
IT IS ORDERED THAT:
The motion to transfer is granted. This case and the motion for leave to proceed in forma pauperis are transferred to the United States Court of Appeals for the Third Circuit.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478073/
|
ON MOTION
ORDER
Upon consideration of the parties’ joint motion to remand this case, Nobel Biocare v. Materialise, to the United States District Court for the Central District of California, case no. 07-CV-898, for further proceedings consistent with the settlement agreement reached by the parties, specifically to restore jurisdiction to the district court to grant the parties’ joint request to vacate its Rule 54(b) judgment and April 15, 2009 Order Granting Nobel’s Motion for Summary Judgment of noninfringement and dismiss the case,
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/8478075/
|
ORDER
A combined petition for panel rehearing and for rehearing en banc having been filed by the Appellant, and the petition for rehearing, having been referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc having been referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for panel rehearing be, and the same hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
The mandate of the court will issue on October 22, 2009.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478077/
|
ORDER
A combined petition for panel rehearing and for rehearing en banc having been filed by the Cross-Appellant, and a response thereto having been invited by the court and filed by the Appellant, and the petition for rehearing and response, having been referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc and response having been referred to the circuit judges who are in regular active service,
*112UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for panel rehearing be, and the same hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
The mandate of the court will issue on October 22, 2009.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478079/
|
ORDER
A combined petition for panel rehearing and for rehearing en banc having been filed by the Appellant, and a response thereto having been invited by the court and filed by the Appellee, and the petition for rehearing and response, having been referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc and response having been referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for panel rehearing be, and the same hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
The mandate of the court will issue on October 22, 2009.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478082/
|
ORDER
The appellant 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 notice of appeal 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/8478084/
|
ORDER
The appellant 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 notice of appeal 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/8478074/
|
ON MOTION
ORDER
Upon consideration of the parties’ joint motion to remand this case, Nobel Biocare v. Materialise, to the United States District Court for the Central District of California, case no. 07-CV-898, for further proceedings consistent with the settlement agreement reached by the parties, specifically to restore jurisdiction to the district court to grant the parties’ joint request to vacate its Rule 54(b) judgment and April 15, 2009 Order Granting Nobel’s Motion for Summary Judgment of noninfringement and dismiss the case,
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/8478076/
|
ORDER
A combined petition for panel rehearing and for rehearing en banc having been filed by the Appellant, and the petition for rehearing, having been referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc having been referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for panel rehearing be, and the same hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
The mandate of the court will issue on October 22, 2009.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478078/
|
ORDER
A combined petition for panel rehearing and for rehearing en banc having been filed by the Cross-Appellant, and a response thereto having been invited by the court and filed by the Appellant, and the petition for rehearing and response, having been referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc and response having been referred to the circuit judges who are in regular active service,
*112UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for panel rehearing be, and the same hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
The mandate of the court will issue on October 22, 2009.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478081/
|
ORDER
The appellant 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 notice of appeal 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/8478083/
|
ORDER
The appellant 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 notice of appeal 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/8478085/
|
ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, *114for failure to prosecute in accordance with the rules
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478087/
|
ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, 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/8478107/
|
ORDER
A combined petition for panel rehearing and for rehearing en banc having been filed by the Appellant, and the petition for rehearing, having been referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc having been referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for panel rehearing be, and the same hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
*118The mandate of the court will issue on October 28, 2009.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478109/
|
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/8478111/
|
ORDER
Petitioner having filed the required Statement Concerning Discrimination, it is,
ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Petitioner’s brief is due within 60 days from the date of filing of this order.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478113/
|
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/8478115/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478117/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478123/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478125/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478126/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34®. It is
ORDERED AND ADJUDGED that the district court’s order filed November 4, 2009, be affirmed. The district court did not abuse its discretion in dismissing appellant’s complaint on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir. 2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R.Civ.P. 8(a), and appellant’s complaint, consisting largely of numerous forms and documents, states no discernible claim or basis for jurisdiction.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478128/
|
*146
JUDGMENT
This case was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. The Court has determined that the issues presented occasion no need for oral argument. See D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the judgment of the district court be affirmed.
The district court properly dismissed Allen Wolfson’s Fifth Amendment claim against the Securities and Exchange Commission (SEC), the United States of America, and three private parties' — the law firm Holland & Hart LLP, and two individuals, Richard Clayton and David Broad-bent — as barred by issue preclusion. Appellant’s claim arises from an SEC action against his son, David Wolfson, who allegedly received a power of attorney over appellant’s assets when appellant was imprisoned. Wolfson v. United States, 336 Fed.Appx. 792, 794-95 (10th Cir.2009). Specifically, appellant alleges that certain assets transferred to a receiver following a settlement agreement between the SEC and his son belong to appellant, and were transferred without providing appellant with notice or a hearing in violation of his due process rights under the 5th Amendment. Appellant’s Br. at 10.
Appellant has already filed a materially identical claim in a Utah district court, similarly claiming that the form of notice employed by the SEC here, and in the very same proceedings, deprived him of his assets without due process of law. Wolfson v. United States, Nos. 2:06-CV-421, 2:06-CV-422, 2:06-CV-435, 2:06-CV-966, 2:06-CV-994, 2:07-CV-219, 2008 WL 4919262 (D.Utah Nov.17, 2008). The district court dismissed that claim. Id. at *2. Allen Wolfson appealed that dismissal, which the Tenth Circuit then affirmed, reasoning as follows:
At the core of due process are the requirements of notice and a meaningful opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The pleadings in the receivership action, together with Mr. Wolfson’s representations, demonstrate that these requisites have been satisfied. He does not contest the fact that his son, who by his own admission held power of attorney for him, received notice and had an opportunity to be heard prior to the seizures. See United States v. All Monies from Account No. PO-204,675.0, No. 97-1250, 1998 WL 769811, at *2-*3 (10th Cir. Oct.29, 1998) (holding that incarcerated claimant asserting beneficial interest in bank account received constitutionally adequate notice of pending forfeiture when notice was mailed to law firm that had power of attorney for claimant, and to bank that held the funds). In addition, Mr. Wolfson had the opportunity to be heard personally through a timely motion to intervene in the receivership action, which he forfeited by his untimely motions. Finally, the government has provided a post-deprivation procedure in which Mr. Wolfson can participate, by making a claim and disputing the receiver’s proposed disposition of receivership assets.
Wolfson v. United States, 336 Fed.Appx. 792, 794 (10th Cir.2009). The Tenth Circuit’s conclusion that appellant has received adequate process under the Fifth Amendment precludes him from relitigat-ing that issue here. United States v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984) (“Under the judicially developed doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involv*147ing a party to the prior litigation.”); Yamaha Corp. of America v. United States, 961 F.2d 245, 254 (D.C.Cir.1992) (describing standard for issue preclusion).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478130/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed July 31, 2009, be affirmed. Appellant challenges the actions or inaction of various Superior Court judges, who enjoy absolute immunity, see Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 682 (D.C.Cir. 2009), and whose decisions the district court lacks jurisdiction to review, see In re: Richardson, 83 F.3d 1513, 1515 (D.C.Cir.1996). To the extent appellant challenges the actions of others, his claims are similarly without merit.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478204/
|
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
C. Michael Willock and Gwendolyn E. Willock appeal the tax court’s order sustaining the Commissioner’s issuance of a notice of federal tax lien with respect to the Willoeks’ 2001 federal income tax liability. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the tax court. Willock v. Comm'r, Tax Ct. No. 07-22391, 2009 WL 2366151 (U.S.T.C. Aug. 14, 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/8478108/
|
ORDER
A combined petition for panel rehearing and for rehearing en banc having been filed by the Appellant, and the petition for rehearing, having been referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc having been referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for panel rehearing be, and the same hereby is, DENIED and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
*118The mandate of the court will issue on October 28, 2009.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478110/
|
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/8478116/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478118/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478122/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478124/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478129/
|
*146
JUDGMENT
This case was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. The Court has determined that the issues presented occasion no need for oral argument. See D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the judgment of the district court be affirmed.
The district court properly dismissed Allen Wolfson’s Fifth Amendment claim against the Securities and Exchange Commission (SEC), the United States of America, and three private parties' — the law firm Holland & Hart LLP, and two individuals, Richard Clayton and David Broad-bent — as barred by issue preclusion. Appellant’s claim arises from an SEC action against his son, David Wolfson, who allegedly received a power of attorney over appellant’s assets when appellant was imprisoned. Wolfson v. United States, 336 Fed.Appx. 792, 794-95 (10th Cir.2009). Specifically, appellant alleges that certain assets transferred to a receiver following a settlement agreement between the SEC and his son belong to appellant, and were transferred without providing appellant with notice or a hearing in violation of his due process rights under the 5th Amendment. Appellant’s Br. at 10.
Appellant has already filed a materially identical claim in a Utah district court, similarly claiming that the form of notice employed by the SEC here, and in the very same proceedings, deprived him of his assets without due process of law. Wolfson v. United States, Nos. 2:06-CV-421, 2:06-CV-422, 2:06-CV-435, 2:06-CV-966, 2:06-CV-994, 2:07-CV-219, 2008 WL 4919262 (D.Utah Nov.17, 2008). The district court dismissed that claim. Id. at *2. Allen Wolfson appealed that dismissal, which the Tenth Circuit then affirmed, reasoning as follows:
At the core of due process are the requirements of notice and a meaningful opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The pleadings in the receivership action, together with Mr. Wolfson’s representations, demonstrate that these requisites have been satisfied. He does not contest the fact that his son, who by his own admission held power of attorney for him, received notice and had an opportunity to be heard prior to the seizures. See United States v. All Monies from Account No. PO-204,675.0, No. 97-1250, 1998 WL 769811, at *2-*3 (10th Cir. Oct.29, 1998) (holding that incarcerated claimant asserting beneficial interest in bank account received constitutionally adequate notice of pending forfeiture when notice was mailed to law firm that had power of attorney for claimant, and to bank that held the funds). In addition, Mr. Wolfson had the opportunity to be heard personally through a timely motion to intervene in the receivership action, which he forfeited by his untimely motions. Finally, the government has provided a post-deprivation procedure in which Mr. Wolfson can participate, by making a claim and disputing the receiver’s proposed disposition of receivership assets.
Wolfson v. United States, 336 Fed.Appx. 792, 794 (10th Cir.2009). The Tenth Circuit’s conclusion that appellant has received adequate process under the Fifth Amendment precludes him from relitigat-ing that issue here. United States v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984) (“Under the judicially developed doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involv*147ing a party to the prior litigation.”); Yamaha Corp. of America v. United States, 961 F.2d 245, 254 (D.C.Cir.1992) (describing standard for issue preclusion).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478131/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed July 31, 2009, be affirmed. Appellant challenges the actions or inaction of various Superior Court judges, who enjoy absolute immunity, see Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 682 (D.C.Cir. 2009), and whose decisions the district court lacks jurisdiction to review, see In re: Richardson, 83 F.3d 1513, 1515 (D.C.Cir.1996). To the extent appellant challenges the actions of others, his claims are similarly without merit.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478133/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 340). It is
ORDERED AND ADJUDGED that the district court’s order filed October 30, 2009, be affirmed. The district court did not abuse its discretion in dismissing appellant’s complaint without prejudice on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The dismissal without prejudice allows appellant to file a new complaint that meets the requirements of Rule 8(a). See Ciralsky, 355 F.3d at 669-70.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478205/
|
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
C. Michael Willock and Gwendolyn E. Willock appeal the tax court’s order sustaining the Commissioner’s issuance of a notice of federal tax lien with respect to the Willoeks’ 2001 federal income tax liability. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the tax court. Willock v. Comm'r, Tax Ct. No. 07-22391, 2009 WL 2366151 (U.S.T.C. Aug. 14, 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/8478132/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 340). It is
ORDERED AND ADJUDGED that the district court’s order filed October 30, 2009, be affirmed. The district court did not abuse its discretion in dismissing appellant’s complaint without prejudice on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The dismissal without prejudice allows appellant to file a new complaint that meets the requirements of Rule 8(a). See Ciralsky, 355 F.3d at 669-70.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478134/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34Q). It is
ORDERED AND ADJUDGED that the district court’s judgment be affirmed. Appellant has not shown that the arbitrator’s failure to rule on appellant’s motion for recusal required vacatur of an arbitration award as set forth in the Federal Arbitration Act, 9 U.S.C. § 10(a), in light of the American Arbitration Association’s consideration of the merits of his requests for *149recusal and its ruling that the arbitrator “will be reaffirmed.” See Appx. at 69; American Arbitration Association, Commercial Arbitration Rules and Mediation Procedures, R-17(b) (providing that the Association’s decision whether an arbitrator should be disqualified “shall be conclusive”). To the extent appellant relies on 9 U.S.C. § 10(a)(3), the court need not consider the argument because he failed to raise it in district court. District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1078-79 (D.C.Cir.1984). Assuming without deciding that the “manifest disregard of the law” standard survives Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), appellant has not demonstrated that “(1) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether and (2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to the case.” LaPrade v. Kidder, Peabody & Co., 246 F.3d 702, 706 (D.C.Cir.2001).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478136/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed September 28, 2009, 2009 WL 3151309, be affirmed. The district court properly dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)®. See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after *150resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478138/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and appendices filed by the parties. See Fed. R.App. P. 34(a)(2); D.C. Cir. Rule 34(j). Upon consideration of the foregoing and the motion for appointment of counsel, it is
ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED AND ADJUDGED that the district court’s orders filed June 4, 2002, July 2, 2003, July 13, 2007, and July 2, 2008, be affirmed. In the June 4, 2002 order, the district court dismissed the retaliation claim because, at that time, appellant had not exhausted her administrative remedies as to that claim under the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 (2008) (“CAA”). See Halcomb v. Sergeant-at-Arms, 563 F.Supp.2d 228-48 (D.D.C.2008). Because the exhaustion requirement is jurisdictional, see Blackmon-Malloy v. U.S. Capitol Police Board, 575 F.3d 699, 705 (D.C.Cir.2009), the district court appropriately dismissed the claim. 2 U.S.C. §§ 1404, 1408(a) (employee may initiate civil action under the CAA only after completion of counseling and mediation).
In the July 2, 2003 order, the district court denied appellant’s motions for in-junctive relief related to her May 21, 2003 job termination. Because appellant had not exhausted her administrative remedies regarding her claim of retaliatory termination, the district court lacked jurisdiction to consider her request for injunctive relief as to that claim.
In the July 13, 2007 order, 2007 WL 2071684, the district court granted reconsideration of an April 2005 minute order, granting appellant’s motion for leave to file a brief seeking reversal of the decision of the Board of Directors of the Office of Compliance regarding her retaliatory termination complaint. Because the district court lacked subject matter jurisdiction to review the final decision of the Board of Directors, see 2 U.S.C. § 1407 (CAA confers exclusive jurisdiction over a decision of the Board of Directors of the Office of Compliance on the Federal Circuit), the *151district court properly granted the motion for reconsideration.
In the final order, filed March 28, 2008, the district court granted summary judgment for appellee and dismissed appellant’s discrimination and retaliation complaint. See Halcomb v. Sergeant-at-Arms, 563 F.Supp.2d 228-48 (D.D.C.2008). We affirm the grant of summary judgment because appellant has failed to produce evidence sufficient for a reasonable jury to find that appellee’s asserted non-diserimi-natory reasons were not the actual reasons for the actions she complained of, and that appellee intentionally discriminated or retaliated against her. See Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009).
With regard to appellant’s discrimination claim, to the extent the challenged actions amounted to adverse employment actions, appellee provided legitimate, nondiscriminatory reasons for the actions. For none of the claims did appellant produce sufficient evidence from which a reasonable jury could conclude the actions were made for a discriminatory reason. See Kersey v. WMATA, 586 F.3d 13, 16-17 (D.C.Cir.2009); Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir. 2008).
Similarly, with regard to appellant’s retaliation claim, to the extent the challenged actions amounted to adverse employment actions, appellant failed to produce any evidence to discredit appellee’s proffered legitimate, non-discriminatory explanations for the various controverted actions, or to allow a reasonable jury to conclude those actions were the product of retaliation. See Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir .2009).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478140/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). Upon consideration of the foregoing, the motion for appointment of counsel, and the motion to dismiss and the opposition thereto, it is
*152ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED AND ADJUDGED that the district court’s order filed July 9, 2009, be affirmed. The writ of audita querela is not available in cases within the ambit of 28 U.S.C. § 2255 and the writ of coram nobis. See United States v. Ayala, 894 F.2d 425, 428-29 (D.C.Cir.1990); In re Kennedy, No. 07-3048, unpublished order (D.C.Cir. July 27, 2007).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478142/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the District Court be affirmed.
Nwachuku was a scientist at the Environmental Protection Agency. She alleges that she was passed over for promotion as a result of discrimination based upon her race or upon her national origin and then fired in retaliation for EEO activity relating to her non-promotion. The district court granted summary judgment to the EPA on both claims. We affirm.
As to Nwachuku’s discrimination claim arising out of her non-promotion, only two promotions were available, for which 55 candidates were eligible. Nwachuku’s arguments fail to cast doubt upon her employer’s stated rationale for not promoting her — namely, her sometimes difficult relations with co-workers. Based on all of the evidence presented to the district court, no rational trier of fact could find that Nwa-chuku’s non-promotion was a result of unlawful discrimination.
Nwachuku’s retaliation claim is similarly untenable. To overcome summary judgment on a retaliation claim, an employee must produce sufficient evidence that “she engaged in protected activity, as a consequence of which her employer took a materially adverse action against her.” Weber *153v. Battista, 494 F.3d 179, 184 (D.C.Cir. 2007). Here, however, Nwachuku introduced insufficient evidence that the supervisor responsible for her termination exhibited any retaliatory behavior or animus against her. In light of all the evidence presented, no rational trier of fact could conclude that Nwachuku was terminated as retaliation for protected activity.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. R. 41(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478135/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34Q). It is
ORDERED AND ADJUDGED that the district court’s judgment be affirmed. Appellant has not shown that the arbitrator’s failure to rule on appellant’s motion for recusal required vacatur of an arbitration award as set forth in the Federal Arbitration Act, 9 U.S.C. § 10(a), in light of the American Arbitration Association’s consideration of the merits of his requests for *149recusal and its ruling that the arbitrator “will be reaffirmed.” See Appx. at 69; American Arbitration Association, Commercial Arbitration Rules and Mediation Procedures, R-17(b) (providing that the Association’s decision whether an arbitrator should be disqualified “shall be conclusive”). To the extent appellant relies on 9 U.S.C. § 10(a)(3), the court need not consider the argument because he failed to raise it in district court. District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1078-79 (D.C.Cir.1984). Assuming without deciding that the “manifest disregard of the law” standard survives Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), appellant has not demonstrated that “(1) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether and (2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to the case.” LaPrade v. Kidder, Peabody & Co., 246 F.3d 702, 706 (D.C.Cir.2001).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478137/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed September 28, 2009, 2009 WL 3151309, be affirmed. The district court properly dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)®. See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after *150resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478139/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and appendices filed by the parties. See Fed. R.App. P. 34(a)(2); D.C. Cir. Rule 34(j). Upon consideration of the foregoing and the motion for appointment of counsel, it is
ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED AND ADJUDGED that the district court’s orders filed June 4, 2002, July 2, 2003, July 13, 2007, and July 2, 2008, be affirmed. In the June 4, 2002 order, the district court dismissed the retaliation claim because, at that time, appellant had not exhausted her administrative remedies as to that claim under the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 (2008) (“CAA”). See Halcomb v. Sergeant-at-Arms, 563 F.Supp.2d 228-48 (D.D.C.2008). Because the exhaustion requirement is jurisdictional, see Blackmon-Malloy v. U.S. Capitol Police Board, 575 F.3d 699, 705 (D.C.Cir.2009), the district court appropriately dismissed the claim. 2 U.S.C. §§ 1404, 1408(a) (employee may initiate civil action under the CAA only after completion of counseling and mediation).
In the July 2, 2003 order, the district court denied appellant’s motions for in-junctive relief related to her May 21, 2003 job termination. Because appellant had not exhausted her administrative remedies regarding her claim of retaliatory termination, the district court lacked jurisdiction to consider her request for injunctive relief as to that claim.
In the July 13, 2007 order, 2007 WL 2071684, the district court granted reconsideration of an April 2005 minute order, granting appellant’s motion for leave to file a brief seeking reversal of the decision of the Board of Directors of the Office of Compliance regarding her retaliatory termination complaint. Because the district court lacked subject matter jurisdiction to review the final decision of the Board of Directors, see 2 U.S.C. § 1407 (CAA confers exclusive jurisdiction over a decision of the Board of Directors of the Office of Compliance on the Federal Circuit), the *151district court properly granted the motion for reconsideration.
In the final order, filed March 28, 2008, the district court granted summary judgment for appellee and dismissed appellant’s discrimination and retaliation complaint. See Halcomb v. Sergeant-at-Arms, 563 F.Supp.2d 228-48 (D.D.C.2008). We affirm the grant of summary judgment because appellant has failed to produce evidence sufficient for a reasonable jury to find that appellee’s asserted non-diserimi-natory reasons were not the actual reasons for the actions she complained of, and that appellee intentionally discriminated or retaliated against her. See Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009).
With regard to appellant’s discrimination claim, to the extent the challenged actions amounted to adverse employment actions, appellee provided legitimate, nondiscriminatory reasons for the actions. For none of the claims did appellant produce sufficient evidence from which a reasonable jury could conclude the actions were made for a discriminatory reason. See Kersey v. WMATA, 586 F.3d 13, 16-17 (D.C.Cir.2009); Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir. 2008).
Similarly, with regard to appellant’s retaliation claim, to the extent the challenged actions amounted to adverse employment actions, appellant failed to produce any evidence to discredit appellee’s proffered legitimate, non-discriminatory explanations for the various controverted actions, or to allow a reasonable jury to conclude those actions were the product of retaliation. See Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir .2009).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478141/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). Upon consideration of the foregoing, the motion for appointment of counsel, and the motion to dismiss and the opposition thereto, it is
*152ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED AND ADJUDGED that the district court’s order filed July 9, 2009, be affirmed. The writ of audita querela is not available in cases within the ambit of 28 U.S.C. § 2255 and the writ of coram nobis. See United States v. Ayala, 894 F.2d 425, 428-29 (D.C.Cir.1990); In re Kennedy, No. 07-3048, unpublished order (D.C.Cir. July 27, 2007).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478143/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the District Court be affirmed.
Nwachuku was a scientist at the Environmental Protection Agency. She alleges that she was passed over for promotion as a result of discrimination based upon her race or upon her national origin and then fired in retaliation for EEO activity relating to her non-promotion. The district court granted summary judgment to the EPA on both claims. We affirm.
As to Nwachuku’s discrimination claim arising out of her non-promotion, only two promotions were available, for which 55 candidates were eligible. Nwachuku’s arguments fail to cast doubt upon her employer’s stated rationale for not promoting her — namely, her sometimes difficult relations with co-workers. Based on all of the evidence presented to the district court, no rational trier of fact could find that Nwa-chuku’s non-promotion was a result of unlawful discrimination.
Nwachuku’s retaliation claim is similarly untenable. To overcome summary judgment on a retaliation claim, an employee must produce sufficient evidence that “she engaged in protected activity, as a consequence of which her employer took a materially adverse action against her.” Weber *153v. Battista, 494 F.3d 179, 184 (D.C.Cir. 2007). Here, however, Nwachuku introduced insufficient evidence that the supervisor responsible for her termination exhibited any retaliatory behavior or animus against her. In light of all the evidence presented, no rational trier of fact could conclude that Nwachuku was terminated as retaliation for protected activity.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. R. 41(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478145/
|
JUDGMENT
PER CURIAM.
Upon consideration of the record from the United States District Court for the District of Columbia and the briefs and arguments of the parties, it is
ORDERED AND ADJUDGED that the judgment of the district court be affirmed.
Appellant Farzad Darui appeals the district court’s denial of his Motion to Dismiss Superseding Indictment as Violative of the Double Jeopardy Clause. He claims that the district court should have granted the motion because at the end of his first trial the district court committed reversible error when it declared a mistrial unsupported by “manifest necessity” as required by Arizona v. Washington, 434 U.S. 497, 505-06, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Because there was no “manifest necessity” to the mistrial declaration, Darui argues, retrying him on the same charges would put him in double jeopardy in violation of the Fifth Amendment.
In Arizona v. Washington the Supreme Court concluded that a trial judge is allowed “broad discretion in deciding whether or not ‘manifest necessity justifies a discharge of the jury.” 434 U.S. at 509, 98 S.Ct. 824. Here, on the record before us, including the trial judge’s jury instructions, the trial judge’s communications with the jury during its deliberations, and the length of the jury’s deliberations, we conclude that the trial judge did not abuse his “broad discretion” in declaring a mistrial based on manifest necessity. We therefore affirm the district court’s denial of Darui’s motion.
Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en *154banc. See Fed R.App. P. 41(b); D.C.Cir. R. 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478144/
|
JUDGMENT
PER CURIAM.
Upon consideration of the record from the United States District Court for the District of Columbia and the briefs and arguments of the parties, it is
ORDERED AND ADJUDGED that the judgment of the district court be affirmed.
Appellant Farzad Darui appeals the district court’s denial of his Motion to Dismiss Superseding Indictment as Violative of the Double Jeopardy Clause. He claims that the district court should have granted the motion because at the end of his first trial the district court committed reversible error when it declared a mistrial unsupported by “manifest necessity” as required by Arizona v. Washington, 434 U.S. 497, 505-06, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). Because there was no “manifest necessity” to the mistrial declaration, Darui argues, retrying him on the same charges would put him in double jeopardy in violation of the Fifth Amendment.
In Arizona v. Washington the Supreme Court concluded that a trial judge is allowed “broad discretion in deciding whether or not ‘manifest necessity justifies a discharge of the jury.” 434 U.S. at 509, 98 S.Ct. 824. Here, on the record before us, including the trial judge’s jury instructions, the trial judge’s communications with the jury during its deliberations, and the length of the jury’s deliberations, we conclude that the trial judge did not abuse his “broad discretion” in declaring a mistrial based on manifest necessity. We therefore affirm the district court’s denial of Darui’s motion.
Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en *154banc. See Fed R.App. P. 41(b); D.C.Cir. R. 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478146/
|
JUDGMENT
PER CURIAM.
These consolidated appeals were considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s orders filed March 5, 2009, and March 24, 2009, be affirmed. The district court correctly dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. Hollister v. Soetoro, 601 F.Supp.2d 179 (D.D.C.2009). Moreover, the district court did not abuse its discretion in determining that counsel had violated Federal Rule of Civil Procedure 11(b)(2) and in imposing a reprimand as the sanction for his part in preparing, filing, and prosecuting a legally frivolous complaint. Hollister v. Soetoro, 258 F.R.D. 1 (D.D.C.2009). Appellants have provided no reasonable basis for questioning the impartiality of the district court judge. See Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478148/
|
JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court, and briefed and argued by counsel. The court has afforded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
Appellant Newett Ford appeals his conviction on one count of conspiracy to distribute and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846, and on two counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Ford principally challenges the sufficiency of the evidence supporting his conspiracy conviction. We conclude that the government presented ample evidence at trial upon which a “ ‘rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Arrington, 309 F.3d 40, 48 (D.C.Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Appellant’s subsidiary arguments also fail. The court did not act improperly in declining to conduct a pre-trial hearing regarding the conspiracy evidence, and instead permitting it to come in “subject to connection.” United States v. Gewin, 471 F.3d 197, 200-01 (D.C.Cir.2006); see United States v. Jackson, 627 F.2d 1198, 1218-19 (D.C.Cir.1980). And because there was ample evidence that the appellant was a member of the conspiracy, the claim that he was prejudiced by “other crimes” evidence is wrong in its factual premise: the evidence to which he objects was not about “other” crimes, but rather about crimes committed as part of the conspiracy for which he was responsible.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.Ajpp. P. 41(b); D.C. Cir. R. 41(a)(1).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478152/
|
SUMMARY ORDER
This cause came on to be heard on the record from the United States District Court for the Northern District of New *255York, and was submitted by plaintiff pro se and by counsel for defendants.
Plaintiff pro se Daniel Felder, a New York State prisoner who was represented by counsel at trial, appeals from a judgment of the United States District Court for the Northern District of New York entered following a jury trial before Randolph F. Treece, Magistrate Judge, on Felder’s claim against defendant Hum-phry, a corrections Sergeant, for retaliation in violation of Felder’s First Amendment right to file grievances. At the trial, conducted before the magistrate judge on consent of the parties, the jury returned a verdict in favor of Humphry. Prior to trial, the district court, David N. Hurd, District Judge, had granted partial summary judgment, dismissing all claims asserted by Felder against defendants Gary Filion, Lamar, and B. Lifford. On appeal, Felder argues that the district court erred in granting partial summary judgment; that at trial the court erred in admitting a certain document into evidence without allowing him to testify that the document was not a grievance; and that the jury’s verdict was against the preponderance of the evidence. For the reasons that follow, we reject Felder’s contentions. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.
Preliminarily, we note that although the notice of appeal originally filed by Felder stated only that it was a “notice of appeal from [the] verdict rendered against him in the above caption [sic ] matter by jury” at “[t]he trial ... against Lieutenant [sic ] Richard Humphrey [sic ],” Felder also filed in the district court a motion for permission to appeal from the court’s pretrial rulings granting summary judgment in favor of Filion, Lamar, and Lifford. As a final judgment had been entered and the motion was filed before the deadline for appeal from the judgment, Felder did not require permission to seek appellate review of the summary judgment rulings, and we exercise our discretion to treat his motion for permission to appeal as an amended notice of appeal that expanded the scope of his appeal to encompass the specified pretrial rulings. Cf. Smith v. Barry, 502 U.S. 244, 245, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992) (“a document intended to serve as an appellate brief may qualify as the notice of appeal required by Rule 3”); id. at 248, 112 S.Ct. 678 (“[W]hen papers are ‘technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.’ ” (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988))).
With respect to the merits of the summary judgment rulings, we review the district court’s decisions de novo in order to determine whether the court properly concluded that there were no genuine issues of material fact to be tried and that the moving parties were entitled to judgment as a matter of law. See, e.g., Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.), cert. denied, 540 U.S. 823, 124 S.Ct. 153, 157 L.Ed.2d 44 (2003). In determining whether there were genuine issues of material fact, we resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment was sought. See, e.g., Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003).
In challenging the granting of summary judgment, Felder contends principally that the district court improperly failed to consider his Eighth Amendment claims that Lifford confiscated his eyeglasses and verbally threatened him. The district court ruled that these claims were *256not properly before the court. “Our court may ... affirm the district court’s judgment on any ground appearing in the record, even if the ground is different from the one relied on by the district court,” ACEquip Ltd. v. American Engineering Corp., 315 F.3d 151, 155 (2d Cir.2003), and we conclude that, even if these claims were properly before the district court, they were meritless.
In order to substantiate an Eighth Amendment claim for medical indifference, a plaintiff must prove that the defendant was deliberately indifferent to a serious medical need. See Farmer v. Brennan, 511 U.S. 825, 834-35, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Such a claim has both objective and subjective elements. “Objectively, the alleged deprivation must be sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (internal quotation marks omitted); see, e.g., Koehl v. Dalsheim, 85 F.3d 86, 87-88 (2d Cir.1996) (plaintiff sufficiently stated an Eighth Amendment claim where he alleged that his glasses were necessary to ameliorate double vision and a loss of depth perception resulting from a head injury, and that the confiscation of his glasses resulted in a loss of vision, headaches, and injuries from falling or walking into objects). “Subjectively, the charged official must act with a sufficiently culpable state of mind,” meaning “something more than mere negligence,” and akin to criminal recklessness. Hathaway v. Coughlin, 99 F.3d at 553 (internal quotation marks omitted). “[Evidence that the risk was obvious or otherwise must have been known to a defendant is sufficient to permit a jury to conclude that the defendant was actually aware of it.” Brock v. Wright, 315 F.3d 158, 164 (2d Cir.2003).
Here, Felder failed to produce evidence from which a reasonable jury could conclude that either the objective or the subjective element was present. He did not produce evidence demonstrating that the deprivation of his eyeglasses caused him harm sufficiently serious to meet the above standard. Nor, since he states only that he told Lifford that he needed his glasses, and does not indicate that he had any further communication with Lifford about the glasses, did he demonstrate that Lif-ford was aware of any substantial risk of serious harm.
The allegation that Lifford threatened Felder verbally was not a sufficient basis for a claim of Eighth Amendment violation because Felder did not present evidence of any injury resulting from those threats. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986).
Insofar as Felder challenges the granting of summary judgment in favor of Fi-lion and Lamar, or in favor of Lifford as to claims other than the above Eighth Amendment claims, his brief on appeal shows no basis for reversal. He argues that
[i]t was an error on the lower court to grant summary judgment for the defendant ]s Mary Lamar, Brian Lifford, and Gary Fil[]ion, because as the original complaint shows that each of these defendant ]s violated plaintiffs constitutional right, whether on a micro or macro level, and this honorable court will be able to determine that from the record. ([ ] see original complaint.) It doesn’t take sifting through the record with a fine tooth comb to see these violations. All it takes is common sense of the applicable standards of law from the legal minds, held to uphold the hon- or and integrity of the constitution.
As Felder’s brief on appeal has pointed not to any evidence but only to his own plead*257ing, we cannot conclude that the district court erred in finding that there was no genuine issue of material fact to be tried as to these claims.
With respect to the conduct of the trial on Felder’s claim against Humphry for alleged retaliation in violation of Felder’s First Amendment right to file grievances, Felder contends that the court erred in admitting a document “to impeach the plaintiffs testimony that he never filed grievances after he filed his last grievance in Coxsackie” without affording him the opportunity to testify that the document was “not ... a grievance.” A trial court’s evidentiary rulings are reviewed only for abuse of discretion, see, e.g., United States v. King, 325 F.3d 110, 115 (2d Cir.), cert. denied, 540 U.S. 920, 124 S.Ct. 313, 157 L.Ed.2d 218 (2003); United States v. Khalil, 214 F.3d 111, 122 (2d Cir.), cert. denied, 531 U.S. 937, 121 S.Ct. 326, 148 L.Ed.2d 262 (2000); In re Martin-Trigona, 760 F.2d 1334, 1344 (2d Cir.1985) (evidentiary rulings are generally not to be disturbed unless “ ‘manifestly erroneous’ ” (quoting Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962))), and even an erroneous ruling is not ground for ordering a new trial or setting aside a jury verdict “[ujnless justice [so] requires,” Fed.R.Civ.P. 61. We see no basis for such relief here.
The document in question was an October 10, 2006 letter from Felder to the Department of Correctional Services Inspector General “RE: STAFF UN PROFESSIONAL CONDUCT/HARASSMENT.” Felder does not contest the authenticity of the document, describing it, in a supplemental submission to this Court, as “a letter that I wrote to the inspector generals [sic] office in Albany”; but he contends that he should have been allowed to testify that the document was not a grievance. We are unpersuaded. In the letter, after identifying himself as an inmate and law library worker at the Green-haven Correctional Facility, Felder stated, inter alia: “my programming is being stifled for an apparent reason that I can’t fully explain”; “[a]ecording to the 1st Amendment of the [U]nited States, I have a constitutional right to voice my grievance to you in a professional manner, not being afraid of any adverse action”; and “[pjlease note that this grievance is a formal complaint and preliminary letter to file suit with the Southern District Court of the United States for injunctive relief.” (Emphases added.) The letter speaks for itself, and we see no error or injustice in the trial court’s admission of the document without explanatory testimony.
Finally, Felder argues in his brief on appeal that “the jury err[ed] in voting in favor of the defendant,” in light of the “propanderanee [sic ] of the evidence.” The weight of the evidence, however, is a jury argument, not a ground for reversal on appeal. See, e.g., Ceraso v. Motiva Enterprises, LLC, 326 F.3d 303, 316-17 (2d Cir.2003); Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir.1993).
We have considered all of Felder’s contentions on this appeal and have found them to be without merit. The judgment of the district court is affirmed.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478154/
|
OPINION
PER CURIAM.
Daniel Oriakhi appeals the District Court’s order dismissing his civil rights complaint. For the reasons below, we will *272dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
The procedural history of this case and the details of Oriakhi’s claims are well known to the parties, set forth in the District Court’s thorough opinion, and need not be discussed at length. Briefly, Oria-khi alleged that prison officials kept him in segregation from April 2007 until October 2007 after he had a fight with a cellmate whom he believed had stolen his legal books. Oriakhi alleged that appellee Lan-gehennig did not inventory his personal effects and handcuffed him too tightly. He complained that while in segregation he did not receive legal mail related to a habeas case.
Because Oriakhi is proceeding in forma pauperis on this appeal, we must analyze his appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), we must dismiss an appeal if the action (i) is frivolous or malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary damages from a defendant with immunity. An action or appeal can be frivolous for either legal or factual reasons. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
We first address Oriakhi’s claim that his prolonged detention violated his rights to due process. In order to demonstrate a violation of the right to procedural due process, a litigant must show (1) that the state deprived him of a protected interest in life, liberty, or property; and (2) that the deprivation occurred without due process of law. Burns v. PA Dept. of Correction, 544 F.3d 279 (3d Cir.2008). In Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court held that in a prison setting, protected liberty interests are generally limited to freedom from restraint that “impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” We have held that exposure to the conditions of administrative custody, even for periods as long as 15 months, “falls within the expected parameters of the sentence imposed [on a prisoner] by a court of law.” Griffin v. Vaughn, 112 F.3d 703, 707 (3d Cir.1997). Here, Oriakhi was only in segregation for seven months. Thus, his allegations fail to state a claim for the denial of due process.
As for his claim that he was denied access to the courts, Oriakhi has not alleged any actual injury related to appellees’ alleged failure to deliver his legal mail. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). We agree with the District Court that his claim of retaliation is without merit and that appellees are immune from Oriakhi’s claim for the failure to inventory his property. See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). The District Court correctly declined jurisdiction over Oriakhi’s state law claims.
For the above reasons, as well as those set forth by the District Court, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478159/
|
OPINION
PER CURIAM.
Appellant James D. Schneller, proceeding pro se, appeals from the District Court’s dismissal of his action and denial of his post-judgment motions. For the reasons that follow, we will dismiss in part for lack of jurisdiction and otherwise summarily affirm the judgment of the District Court.
In 2006, Schneller filed a civil action against a number of defendants stemming from the death of his mother in 2002 and the subsequent administration of his parents’ estate.1 In an opinion and order entered on June 26, 2009, 2009 WL 1838354, the District Court dismissed all of his claims and order the case closed. On July 10, Schneller timely filed a motion for reconsideration which was denied on August 4, 2009. On August 11, Schneller filed a motion to “supplement the record,” followed by a motion for sanctions and costs on September 2. The District Court entered two orders denying Schneller’s post-judgment motions on September 8, 2009. On October 8, 2009, Schneller filed a six-page document entitled “Plaintiffs’ Motion for Leave to Appeal In Forma Pauperis” which detailed the errors allegedly made by the District Court in dismissing Appellant’s complaint and denying his post-judgment motions and requested leave to appeal in forma pauperis. The District Court granted him leave to appeal in forma pauperis on October 27, 2009, and Schneller filed a document entitled “Notice of Appeal” on December 2, 2009.2
Appellant seeks to appeal both the District Court’s dismissal of his action and its denial of his post-judgment motions. The District Court’s judgment dismissing the underlying action became final on August 4, 2009, when the District Court de*278nied Appellant’s timely-filed motion for reconsideration.3 See 28 U.S.C. § 1291 (vesting jurisdiction in courts of appeals over “final decisions” of the district courts); Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199-200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (holding that a final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment, and that a question remaining to be decided after entry of such a decision does not affect its finality). Because Schneller failed to file a notice of appeal within thirty days of entry of that order, we lack jurisdiction over the District Court’s June 26, 2009 opinion and order dismissing his action and its August 4, 2009 order denying his motion for reconsideration. See Fed. RApp. P. 4(a)(1); Bowles v. Russell, 551 U.S. 205, 213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (holding that the timely filing of a notice of appeal is a jurisdictional requirement).
However, the District Court’s September 8, 2009 denials of Appellant’s post-judgment motions are separately appeal-able. See Pennsylvania v. Flaherty, 983 F.2d 1267, 1276 (3d Cir.1993) (“Post-judgment orders are final for purposes of § 1291 and immediately appealable because the policy against piecemeal review is unlikely to be undermined.”). On October 8, 2009, Appellant filed a document entitled “Plaintiffs’ Motion for Leave to Appeal In Forma Pauperis” which specified those orders he wished to appeal, the grounds he wished to appeal them on, and the court he wished to appeal them to. The District Court should have treated this document as a notice of appeal. See Fed. RApp. P. 3(c)(1); Masquerade Novelty v. Unique Indus., 912 F.2d 663, 665 (3d Cir.1990) (explaining that “a party will be deemed to have complied with Rule 3(c) if it has, within the time provided to file an appeal, filed documents that ‘specify the party or parties taking the appeal; ... the judgment, order or part thereof appealed from; and ... the court to which the appeal is taken’ ”). Because this document was timely-filed with respect to the District Court’s denial of Appellant’s motions to supplement the record and for sanctions, we have jurisdiction to consider his appeal from those orders. See Fed. R.App. P. 4(a)(1); Flaherty, 983 F.2d at 1276.
In his motion to supplement the record, Schneller argued that he should have been permitted more time in which to respond to Appellees’ oppositions to his motion for reconsideration. Schneller relied on Rule 15(a) which, at the time he filed his motion, allowed a party 20 days in which to amend a pleading as a matter of course. See former Fed.R.Civ.P. 15(a) (amendment effective Dec. 1, 2009). A Rule 59(e) motion for reconsideration, however, is not a pleading. See Fed. R.Civ.P. 7(a). And, as Schneller appears to recognize, Judge Stengel’s procedures do not permit reply briefs to be filed as a matter of course, but only when leave to file them has been requested and granted. Thus, the District Court was under no obligation to permit Schneller to file a reply. Furthermore, there is no reason to believe Schneller’s reply to Appellees’ op*279positions would have affected the District Court’s decision. Schneller attached his proposed reply to his motion to supplement the record. Neither his original motion for reconsideration nor his proposed reply set forth any basis on which a motion for reconsideration could have been granted by the District Court.4
In his motion for sanctions and costs, Schneller argued that, pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927, Appellees should be sanctioned for filing frivolous and vexatious motions and pleadings for the purpose of causing unnecessary delay and increasing the cost of the litigation. While Schneller set forth the facts and legal arguments made by Appellees that he disagreed with, he did not provide any basis from which the District Court could have concluded that Appellees alleged those facts or made those arguments “for an improper purpose” or with the intent of “misleading the court.” Schneller’s motion for sanctions was not the proper vehicle for challenging these assertions and arguments — appeal was. Because Schneller failed to timely appeal from the District Court’s dismissal of his action and denial of his motion for reconsideration, we cannot consider these arguments at the present time.
Because Schneller’s appeal presents no substantial question, we will summarily affirm the orders of the District Court denying the requested relief. See 3d Cir. LAR 27.4; I.O.P. 10.6. Schneller’s appeal from the District Court’s dismissal of his action and denial of his motion for reconsideration is dismissed for lack of appellate jurisdiction. See Fed. R.App. P. 4(a)(1); Bowles, 551 U.S. at 213, 127 S.Ct. 2360.
. Schneller filed his complaint pro se. In it, he purported to represent other persons and entities. As a pro se litigant, Schneller may not represent parties other than himself. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir.1991) (holding that non-lawyer proceeding pro se could not represent his own children); 28 U.S.C. § 1654 (parties may proceed in federal court "personally or by counsel"). Accordingly, we will treat him as the sole Appellant in this appeal. See also Schneller v. Fox Subacute at Clara Burke, 317 Fed.Appx. 135, 137 n. 1 (3d Cir.2008).
. The document was dated November 6, 2009, but file-stamped December 2, 2009. In his response, Appellant argues that it was filed on November 10, 2009, but does not provide any support for this assertion. As we explain herein, whichever of these dates we use, the notice of appeal was untimely filed with respect to the dismissal of the action and denial of reconsideration.
. Because the motion for reconsideration was filed within ten business days of the District Court's entry of judgment, the lime to file a notice of appeal from the June 26, 2009 dismissal was tolled until the District Court denied the motion for reconsideration on August 4, 2009. See former Fed.R.Civ.P. 59(e) (amendment effective Dec. 1, 2009). Appellant’s subsequent motions to supplement the record and for sanctions do not fall within the subset of post-judgment motions which toll the time for filing a notice of appeal. See Fed. R.App. P. 4(a)(4)(A).
. In his motion for reconsideration, Schneller recognized that motions for reconsideration are sparingly granted and require either the presence of new evidence not previously available, an intervening change in the controlling law, or the need to correct a clear error of law or fact or to prevent manifest injustice. See Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). Nonetheless, his motion failed to allege that any of those circumstances were present. Rather, it speculated that the District Court “may have” misapprehended facts or misapplied law and that it "may have” erred in reaching certain conclusions, but did not present any specific legal issue which was clearly incorrectly decided or point to any new evidence or intervening change in the case law that would have supported reconsideration. Nor did his proposed reply satisfy any of these criteria.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478162/
|
OPINION
PER CURIAM.
Appellant Ronnie Morris seeks review of a final order by the United States District Court for the District of New Jersey entered on January 29, 2010, 2010 WL 342563, denying his petition for a writ of habeas corpus. Because the appeal does not present a substantial question, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I. Background
On August 19, 2009, the United States District Court for the Western District of New York sentenced Morris to a term of 12 months of imprisonment for two supervised release violations. His projected release date is May 15, 2010.
On January 20, 2010, Morris, who is incarcerated in New Jersey, filed an “emergency writ of mandamus” in the United States District Court for the District of New Jersey. In it, Morris claims that the Bureau of Prisons (“BOP”) erroneously calculated his sentence. The District Court construed Morris’s submission as a petition for a writ of habeas corpus and summarily denied the petition as mer-itless.1
Morris filed a timely pro se notice of appeal. He has moved to expedite the appeal.
II. Analysis
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We exercise plenary review over the District Court’s denial of the petition for a writ of habeas corpus. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 239 n. 3 (3d Cir.2005). We review the District Court’s factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007). We may summarily affirm if the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
Morris claims the BOP erroneously computed his sentence by failing to award him credit for a 36-day period of detention from August 19, 2009, through September 23, 2009. See 18 U.S.C. § 3585(b)(1).2 We *282have held that § 2241 provides the proper vehicle for a federal prisoner to challenge the “execution” of his sentence, including a challenge to his sentencing computation. See Woodall, 432 F.3d at 242; Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001). Accordingly, the District Court properly construed the claim as a petition for a writ of habeas corpus under 28 U.S.C. § 2241.
Based upon the BOP’s Sentence Monitoring Computation Data sheet, which Morris appended to his petition, the District Court found that the BOP awarded Morris credit pursuant to § 3585(b) for a period of detention from September 23, 2008, through November 20, 2008 (59 days) and for a period of detention from July 14, 2009, through August 18, 2009 (36 days). The District Court found that Morris commenced serving his 12-month sentence on August 19, 2009.
With regard to the disputed period from August 19, 2009, through September 23, 2009, the District Court found that “the BOP in fact gave Petitioner credit against his sentence for this period, insofar as the BOP calculates the 12-month sentence as commencing on August 19, 2009, the day it was imposed.” Having closely reviewed the record, we conclude that the District Court’s finding is not clearly erroneous. The District Court then correctly determined that Morris cannot be credited a second time for that period. See 18 U.S.C. § 3585(b); see also United States v. Wilson, 503 U.S. 329, 337, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (stating that Congress made clear in § 3585(b) that a prisoner can “not receive a double credit for his detention time.”). Accordingly, we conclude that the District Court properly denied the petition for a writ of habeas corpus.
III. Conclusion
Because there is no substantial question to be presented on appeal, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We deny as moot the motion to expedite the appeal.
. Ordinarily, we require federal prisoners to exhaust administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.1996). Morris alleges that the BOP did not respond to his attempts to exhaust his administrative remedies and further efforts would be futile because his claim will become moot by his May 15, 2010, release date. The District Court implicitly accepted Morris's arguments and reached the merits of his petition.
. Pursuant to § 3585(b)(1), a defendant "shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sen*282tence commences ... as a result of the offense for which the sentence was imposed.”
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478147/
|
JUDGMENT
PER CURIAM.
These consolidated appeals were considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s orders filed March 5, 2009, and March 24, 2009, be affirmed. The district court correctly dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. Hollister v. Soetoro, 601 F.Supp.2d 179 (D.D.C.2009). Moreover, the district court did not abuse its discretion in determining that counsel had violated Federal Rule of Civil Procedure 11(b)(2) and in imposing a reprimand as the sanction for his part in preparing, filing, and prosecuting a legally frivolous complaint. Hollister v. Soetoro, 258 F.R.D. 1 (D.D.C.2009). Appellants have provided no reasonable basis for questioning the impartiality of the district court judge. See Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478149/
|
JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court, and briefed and argued by counsel. The court has afforded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
Appellant Newett Ford appeals his conviction on one count of conspiracy to distribute and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846, and on two counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Ford principally challenges the sufficiency of the evidence supporting his conspiracy conviction. We conclude that the government presented ample evidence at trial upon which a “ ‘rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Arrington, 309 F.3d 40, 48 (D.C.Cir.2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Appellant’s subsidiary arguments also fail. The court did not act improperly in declining to conduct a pre-trial hearing regarding the conspiracy evidence, and instead permitting it to come in “subject to connection.” United States v. Gewin, 471 F.3d 197, 200-01 (D.C.Cir.2006); see United States v. Jackson, 627 F.2d 1198, 1218-19 (D.C.Cir.1980). And because there was ample evidence that the appellant was a member of the conspiracy, the claim that he was prejudiced by “other crimes” evidence is wrong in its factual premise: the evidence to which he objects was not about “other” crimes, but rather about crimes committed as part of the conspiracy for which he was responsible.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.Ajpp. P. 41(b); D.C. Cir. R. 41(a)(1).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478151/
|
SUMMARY ORDER
Plaintiff Frank R. Terreri appeals from the March 27, 2009 judgment of the District Court denying plaintiffs motion for judgment on the pleadings, granting defendant’s motion for judgment on the pleadings, and affirming the decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying plaintiffs application for disability benefits. On appeal plaintiff argues that the District Court erred in affirming the decision of the Administrative Law Judge (“ALJ”) because the ALJ failed to consider or explain his reasons for discrediting the opinion of Terreri’s treating physician, in violation of 20 C.F.R. § 404.1527(d)(2). We assume the parties’ familiarity with the facts and procedural history of the case.
We have reviewed each of plaintiffs claim and find it to be without merit. Substantially for the reasons stated by the District Court in its careful and thoughtful decision dated March 10, 2009, see Terreri v. Astiue, 07-CV-00277, 2009 WL 749860 (W.D.N.Y. March 18, 2009), the March 27, 2009 judgment of the District Court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478153/
|
SUMMARY ORDER
This cause came on to be heard on the record from the United States District Court for the Northern District of New *255York, and was submitted by plaintiff pro se and by counsel for defendants.
Plaintiff pro se Daniel Felder, a New York State prisoner who was represented by counsel at trial, appeals from a judgment of the United States District Court for the Northern District of New York entered following a jury trial before Randolph F. Treece, Magistrate Judge, on Felder’s claim against defendant Hum-phry, a corrections Sergeant, for retaliation in violation of Felder’s First Amendment right to file grievances. At the trial, conducted before the magistrate judge on consent of the parties, the jury returned a verdict in favor of Humphry. Prior to trial, the district court, David N. Hurd, District Judge, had granted partial summary judgment, dismissing all claims asserted by Felder against defendants Gary Filion, Lamar, and B. Lifford. On appeal, Felder argues that the district court erred in granting partial summary judgment; that at trial the court erred in admitting a certain document into evidence without allowing him to testify that the document was not a grievance; and that the jury’s verdict was against the preponderance of the evidence. For the reasons that follow, we reject Felder’s contentions. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.
Preliminarily, we note that although the notice of appeal originally filed by Felder stated only that it was a “notice of appeal from [the] verdict rendered against him in the above caption [sic ] matter by jury” at “[t]he trial ... against Lieutenant [sic ] Richard Humphrey [sic ],” Felder also filed in the district court a motion for permission to appeal from the court’s pretrial rulings granting summary judgment in favor of Filion, Lamar, and Lifford. As a final judgment had been entered and the motion was filed before the deadline for appeal from the judgment, Felder did not require permission to seek appellate review of the summary judgment rulings, and we exercise our discretion to treat his motion for permission to appeal as an amended notice of appeal that expanded the scope of his appeal to encompass the specified pretrial rulings. Cf. Smith v. Barry, 502 U.S. 244, 245, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992) (“a document intended to serve as an appellate brief may qualify as the notice of appeal required by Rule 3”); id. at 248, 112 S.Ct. 678 (“[W]hen papers are ‘technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.’ ” (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988))).
With respect to the merits of the summary judgment rulings, we review the district court’s decisions de novo in order to determine whether the court properly concluded that there were no genuine issues of material fact to be tried and that the moving parties were entitled to judgment as a matter of law. See, e.g., Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.), cert. denied, 540 U.S. 823, 124 S.Ct. 153, 157 L.Ed.2d 44 (2003). In determining whether there were genuine issues of material fact, we resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment was sought. See, e.g., Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003).
In challenging the granting of summary judgment, Felder contends principally that the district court improperly failed to consider his Eighth Amendment claims that Lifford confiscated his eyeglasses and verbally threatened him. The district court ruled that these claims were *256not properly before the court. “Our court may ... affirm the district court’s judgment on any ground appearing in the record, even if the ground is different from the one relied on by the district court,” ACEquip Ltd. v. American Engineering Corp., 315 F.3d 151, 155 (2d Cir.2003), and we conclude that, even if these claims were properly before the district court, they were meritless.
In order to substantiate an Eighth Amendment claim for medical indifference, a plaintiff must prove that the defendant was deliberately indifferent to a serious medical need. See Farmer v. Brennan, 511 U.S. 825, 834-35, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Such a claim has both objective and subjective elements. “Objectively, the alleged deprivation must be sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (internal quotation marks omitted); see, e.g., Koehl v. Dalsheim, 85 F.3d 86, 87-88 (2d Cir.1996) (plaintiff sufficiently stated an Eighth Amendment claim where he alleged that his glasses were necessary to ameliorate double vision and a loss of depth perception resulting from a head injury, and that the confiscation of his glasses resulted in a loss of vision, headaches, and injuries from falling or walking into objects). “Subjectively, the charged official must act with a sufficiently culpable state of mind,” meaning “something more than mere negligence,” and akin to criminal recklessness. Hathaway v. Coughlin, 99 F.3d at 553 (internal quotation marks omitted). “[Evidence that the risk was obvious or otherwise must have been known to a defendant is sufficient to permit a jury to conclude that the defendant was actually aware of it.” Brock v. Wright, 315 F.3d 158, 164 (2d Cir.2003).
Here, Felder failed to produce evidence from which a reasonable jury could conclude that either the objective or the subjective element was present. He did not produce evidence demonstrating that the deprivation of his eyeglasses caused him harm sufficiently serious to meet the above standard. Nor, since he states only that he told Lifford that he needed his glasses, and does not indicate that he had any further communication with Lifford about the glasses, did he demonstrate that Lif-ford was aware of any substantial risk of serious harm.
The allegation that Lifford threatened Felder verbally was not a sufficient basis for a claim of Eighth Amendment violation because Felder did not present evidence of any injury resulting from those threats. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986).
Insofar as Felder challenges the granting of summary judgment in favor of Fi-lion and Lamar, or in favor of Lifford as to claims other than the above Eighth Amendment claims, his brief on appeal shows no basis for reversal. He argues that
[i]t was an error on the lower court to grant summary judgment for the defendant ]s Mary Lamar, Brian Lifford, and Gary Fil[]ion, because as the original complaint shows that each of these defendant ]s violated plaintiffs constitutional right, whether on a micro or macro level, and this honorable court will be able to determine that from the record. ([ ] see original complaint.) It doesn’t take sifting through the record with a fine tooth comb to see these violations. All it takes is common sense of the applicable standards of law from the legal minds, held to uphold the hon- or and integrity of the constitution.
As Felder’s brief on appeal has pointed not to any evidence but only to his own plead*257ing, we cannot conclude that the district court erred in finding that there was no genuine issue of material fact to be tried as to these claims.
With respect to the conduct of the trial on Felder’s claim against Humphry for alleged retaliation in violation of Felder’s First Amendment right to file grievances, Felder contends that the court erred in admitting a document “to impeach the plaintiffs testimony that he never filed grievances after he filed his last grievance in Coxsackie” without affording him the opportunity to testify that the document was “not ... a grievance.” A trial court’s evidentiary rulings are reviewed only for abuse of discretion, see, e.g., United States v. King, 325 F.3d 110, 115 (2d Cir.), cert. denied, 540 U.S. 920, 124 S.Ct. 313, 157 L.Ed.2d 218 (2003); United States v. Khalil, 214 F.3d 111, 122 (2d Cir.), cert. denied, 531 U.S. 937, 121 S.Ct. 326, 148 L.Ed.2d 262 (2000); In re Martin-Trigona, 760 F.2d 1334, 1344 (2d Cir.1985) (evidentiary rulings are generally not to be disturbed unless “ ‘manifestly erroneous’ ” (quoting Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962))), and even an erroneous ruling is not ground for ordering a new trial or setting aside a jury verdict “[ujnless justice [so] requires,” Fed.R.Civ.P. 61. We see no basis for such relief here.
The document in question was an October 10, 2006 letter from Felder to the Department of Correctional Services Inspector General “RE: STAFF UN PROFESSIONAL CONDUCT/HARASSMENT.” Felder does not contest the authenticity of the document, describing it, in a supplemental submission to this Court, as “a letter that I wrote to the inspector generals [sic] office in Albany”; but he contends that he should have been allowed to testify that the document was not a grievance. We are unpersuaded. In the letter, after identifying himself as an inmate and law library worker at the Green-haven Correctional Facility, Felder stated, inter alia: “my programming is being stifled for an apparent reason that I can’t fully explain”; “[a]ecording to the 1st Amendment of the [U]nited States, I have a constitutional right to voice my grievance to you in a professional manner, not being afraid of any adverse action”; and “[pjlease note that this grievance is a formal complaint and preliminary letter to file suit with the Southern District Court of the United States for injunctive relief.” (Emphases added.) The letter speaks for itself, and we see no error or injustice in the trial court’s admission of the document without explanatory testimony.
Finally, Felder argues in his brief on appeal that “the jury err[ed] in voting in favor of the defendant,” in light of the “propanderanee [sic ] of the evidence.” The weight of the evidence, however, is a jury argument, not a ground for reversal on appeal. See, e.g., Ceraso v. Motiva Enterprises, LLC, 326 F.3d 303, 316-17 (2d Cir.2003); Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir.1993).
We have considered all of Felder’s contentions on this appeal and have found them to be without merit. The judgment of the district court is affirmed.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478155/
|
OPINION
PER CURIAM.
Daniel Oriakhi appeals the District Court’s order dismissing his civil rights complaint. For the reasons below, we will *272dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
The procedural history of this case and the details of Oriakhi’s claims are well known to the parties, set forth in the District Court’s thorough opinion, and need not be discussed at length. Briefly, Oria-khi alleged that prison officials kept him in segregation from April 2007 until October 2007 after he had a fight with a cellmate whom he believed had stolen his legal books. Oriakhi alleged that appellee Lan-gehennig did not inventory his personal effects and handcuffed him too tightly. He complained that while in segregation he did not receive legal mail related to a habeas case.
Because Oriakhi is proceeding in forma pauperis on this appeal, we must analyze his appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), we must dismiss an appeal if the action (i) is frivolous or malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary damages from a defendant with immunity. An action or appeal can be frivolous for either legal or factual reasons. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
We first address Oriakhi’s claim that his prolonged detention violated his rights to due process. In order to demonstrate a violation of the right to procedural due process, a litigant must show (1) that the state deprived him of a protected interest in life, liberty, or property; and (2) that the deprivation occurred without due process of law. Burns v. PA Dept. of Correction, 544 F.3d 279 (3d Cir.2008). In Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court held that in a prison setting, protected liberty interests are generally limited to freedom from restraint that “impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” We have held that exposure to the conditions of administrative custody, even for periods as long as 15 months, “falls within the expected parameters of the sentence imposed [on a prisoner] by a court of law.” Griffin v. Vaughn, 112 F.3d 703, 707 (3d Cir.1997). Here, Oriakhi was only in segregation for seven months. Thus, his allegations fail to state a claim for the denial of due process.
As for his claim that he was denied access to the courts, Oriakhi has not alleged any actual injury related to appellees’ alleged failure to deliver his legal mail. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). We agree with the District Court that his claim of retaliation is without merit and that appellees are immune from Oriakhi’s claim for the failure to inventory his property. See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). The District Court correctly declined jurisdiction over Oriakhi’s state law claims.
For the above reasons, as well as those set forth by the District Court, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478157/
|
OPINION
PER CURIAM.
Walter Duane White, a federal prisoner proceeding pro se, appeals from the District Court’s order granting the defendants’ motion for summary judgment. For the reasons that follow, we will summarily affirm the District Court’s order.
In July 2008, White commenced an action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), in the United States District Court for the Middle District of Pennsylvania. In the complaint, White claimed that he had been transferred to the United States Penitentiary at Lewisburg (“USP-Lewisburg”) in Lew-isburg, Pennsylvania from the Gilmer Federal Correctional Institution (“FCI-Gilmer”), in Glenville, West Virginia, in retaliation for complaining about allegedly inadequate medical care.1 He also alleged that the defendants failed to protect him from an assault by another inmate, fabricated an incident report which resulted in *274excessive sanctions, and denied him access to legal materials. White named as defendants four USP-Lewisburg officials.
.The defendants filed a motion to dismiss, or, in the alternative, for summary judgment on the ground that, with the exception of the retaliatory transfer claim, White had not exhausted his administrative remedies prior to commencing the present action. With respect to the retaliatory transfer claim, the defendants asserted that they did not have any personal involvement in the decision to transfer White. By order entered September 24, 2009, the District Court construed the defendants’ motion as solely seeking summary judgment, granted it with respect to the retaliatory transfer claim, and dismissed the remaining claims, without prejudice, for failure to exhaust administrative remedies. White appealed.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s order granting summary judgment. See DeHart v. Horn, 390 F.3d 262, 267 (3d Cir.2004). Summary judgment is proper where, viewing the evidence in the light most favorable to the nonmoving party and drawing all inferences in favor of that party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Kaucher v. County of Bucks, 455 F.3d 418, 422-23 (3d Cir.2006).
Under the Prison Litigation Reform Act of 1995 (the “PLRA”), a prisoner is required to pursue all avenues of relief available within the prison’s grievance system before bringing a federal civil rights action concerning prison conditions. See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). This “exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The Federal Bureau of Prisons (“BOP”) has established an administrative remedy procedure through which an inmate can seek formal review of any complaint regarding any aspect of his imprisonment. See 28 C.F.R. §§ 542.10-542.19. In order to exhaust an appeal under the administrative remedy process, an inmate must first present his complaints to prison staff informally. See 28 C.F.R. § 542.13. If unsuccessful, the inmate may file a formal administrative remedy request. See 28 C.F.R. § 542.14. If the inmate is unsatisfied with the response he receives from within the institution, he may file an appeal with the appropriate regional director. See 28 C.F.R. § 542.15. Finally, if the inmate is dissatisfied with the response of the regional director, he may file an appeal with Central Office’s general counsel. See 28 C.F.R. § 542.15(a).
Upon careful review of the record, we agree with the District Court that summary judgment was appropriate. In support of their summary judgment motion, the defendants submitted a declaration from the Supervisory Attorney at USP-Lewisburg. In the declaration, the Supervisory Attorney stated that a review of BOP records indicated that White had filed 14 requests for administrative relief regarding issues allegedly occurring at USP-Lewisburg. Only three of those requests, however, were appealed to the Central Office. Of those three exhausted requests, only one pertained to an issue raised in White’s complaint, namely, the allegedly retaliatory transfer.2 White as*275serted that he satisfied the exhaustion requirement because his administrative challenge to his transfer encompassed all of the allegedly unconstitutional conduct which subsequently occurred at USP-Lew-isburg. But the Supervisory Attorney’s declaration indicates that the pertinent grievance “concerned a request that [his] inmate custody classification be lowered so he could be transferred to an FCI, and included language complaining about his transfer from FCI-Gilmer.” We conclude that this satisfies the defendants’ burden of pleading and proving non-exhaustion. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.2002). To the extent White alleged that exhaustion would have been futile, we reject his claim. See Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir.2000).
We also agree that White’s retaliatory transfer claim lacks merit because he did not allege any facts to indicate that the defendants had personal involvement in his transfer. “A defendant in a civil rights action must have personal involvement in the alleged wrongs” to be liable. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). In this case, the defendants asserted that they had no part in the decision to transfer White. Indeed, the Supervisory Attorney’s declaration explains that “[institution staff do not have the authority to determine designations and transfers.” White concedes that the defendants “did not participate in” the transfer, but argues that the defendants are nonetheless liable because he told them upon arrival at USP-Lewisburg that his transfer was retaliatory. But the fact that the defendants may have been aware of the allegedly retaliatory transfer after it occurred does not justify the imposition of liability. See Bressi v. Ford, 575 F.3d 891, 899 n. 8 (9th Cir.2009) (holding that police officer was not liable under respondeat theory where officer “did not direct the arrest, nor did he know of it until after the fact.”).
For the foregoing reasons, we conclude that no substantial question is presented by this appeal. See I.O.P. 10.6. Accordingly, we will summarily affirm the District Court’s judgment. White’s “Motion to File Argument in Support of Appeal to Exceed (5) Five Pages” is granted. His motion for appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.1993).
. White is no longer incarcerated at USP-Lewisburg; he is presently confined at the Federal Correctional Institution in Butner, North Carolina.
. The other two exhausted administrative remedy requests concerned White's wish to *275be transferred to a medical center and his complaints about a May 22, 2008, disciplinary hearing. It is not clear whether that disciplinary hearing was the one which resulted in the allegedly excessive sanctions that White challenged in his complaint. Even if it was, however, there is still a failure to exhaust because White sought Central Office review of that grievance only after he filed his complaint. See Ahmed v. Dragovich, 297 F.3d 201, 209 & n. 9 (3d Cir.2002) (holding that administrative exhaustion must be completed prior to initiation of suit).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478158/
|
OPINION
PER CURIAM.
Appellant James D. Schneller, proceeding pro se, appeals from the District Court’s dismissal of his action and denial of his post-judgment motions. For the reasons that follow, we will dismiss in part for lack of jurisdiction and otherwise summarily affirm the judgment of the District Court.
In 2006, Schneller filed a civil action against a number of defendants stemming from the death of his mother in 2002 and the subsequent administration of his parents’ estate.1 In an opinion and order entered on June 26, 2009, 2009 WL 1838354, the District Court dismissed all of his claims and order the case closed. On July 10, Schneller timely filed a motion for reconsideration which was denied on August 4, 2009. On August 11, Schneller filed a motion to “supplement the record,” followed by a motion for sanctions and costs on September 2. The District Court entered two orders denying Schneller’s post-judgment motions on September 8, 2009. On October 8, 2009, Schneller filed a six-page document entitled “Plaintiffs’ Motion for Leave to Appeal In Forma Pauperis” which detailed the errors allegedly made by the District Court in dismissing Appellant’s complaint and denying his post-judgment motions and requested leave to appeal in forma pauperis. The District Court granted him leave to appeal in forma pauperis on October 27, 2009, and Schneller filed a document entitled “Notice of Appeal” on December 2, 2009.2
Appellant seeks to appeal both the District Court’s dismissal of his action and its denial of his post-judgment motions. The District Court’s judgment dismissing the underlying action became final on August 4, 2009, when the District Court de*278nied Appellant’s timely-filed motion for reconsideration.3 See 28 U.S.C. § 1291 (vesting jurisdiction in courts of appeals over “final decisions” of the district courts); Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199-200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (holding that a final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment, and that a question remaining to be decided after entry of such a decision does not affect its finality). Because Schneller failed to file a notice of appeal within thirty days of entry of that order, we lack jurisdiction over the District Court’s June 26, 2009 opinion and order dismissing his action and its August 4, 2009 order denying his motion for reconsideration. See Fed. RApp. P. 4(a)(1); Bowles v. Russell, 551 U.S. 205, 213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (holding that the timely filing of a notice of appeal is a jurisdictional requirement).
However, the District Court’s September 8, 2009 denials of Appellant’s post-judgment motions are separately appeal-able. See Pennsylvania v. Flaherty, 983 F.2d 1267, 1276 (3d Cir.1993) (“Post-judgment orders are final for purposes of § 1291 and immediately appealable because the policy against piecemeal review is unlikely to be undermined.”). On October 8, 2009, Appellant filed a document entitled “Plaintiffs’ Motion for Leave to Appeal In Forma Pauperis” which specified those orders he wished to appeal, the grounds he wished to appeal them on, and the court he wished to appeal them to. The District Court should have treated this document as a notice of appeal. See Fed. RApp. P. 3(c)(1); Masquerade Novelty v. Unique Indus., 912 F.2d 663, 665 (3d Cir.1990) (explaining that “a party will be deemed to have complied with Rule 3(c) if it has, within the time provided to file an appeal, filed documents that ‘specify the party or parties taking the appeal; ... the judgment, order or part thereof appealed from; and ... the court to which the appeal is taken’ ”). Because this document was timely-filed with respect to the District Court’s denial of Appellant’s motions to supplement the record and for sanctions, we have jurisdiction to consider his appeal from those orders. See Fed. R.App. P. 4(a)(1); Flaherty, 983 F.2d at 1276.
In his motion to supplement the record, Schneller argued that he should have been permitted more time in which to respond to Appellees’ oppositions to his motion for reconsideration. Schneller relied on Rule 15(a) which, at the time he filed his motion, allowed a party 20 days in which to amend a pleading as a matter of course. See former Fed.R.Civ.P. 15(a) (amendment effective Dec. 1, 2009). A Rule 59(e) motion for reconsideration, however, is not a pleading. See Fed. R.Civ.P. 7(a). And, as Schneller appears to recognize, Judge Stengel’s procedures do not permit reply briefs to be filed as a matter of course, but only when leave to file them has been requested and granted. Thus, the District Court was under no obligation to permit Schneller to file a reply. Furthermore, there is no reason to believe Schneller’s reply to Appellees’ op*279positions would have affected the District Court’s decision. Schneller attached his proposed reply to his motion to supplement the record. Neither his original motion for reconsideration nor his proposed reply set forth any basis on which a motion for reconsideration could have been granted by the District Court.4
In his motion for sanctions and costs, Schneller argued that, pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927, Appellees should be sanctioned for filing frivolous and vexatious motions and pleadings for the purpose of causing unnecessary delay and increasing the cost of the litigation. While Schneller set forth the facts and legal arguments made by Appellees that he disagreed with, he did not provide any basis from which the District Court could have concluded that Appellees alleged those facts or made those arguments “for an improper purpose” or with the intent of “misleading the court.” Schneller’s motion for sanctions was not the proper vehicle for challenging these assertions and arguments — appeal was. Because Schneller failed to timely appeal from the District Court’s dismissal of his action and denial of his motion for reconsideration, we cannot consider these arguments at the present time.
Because Schneller’s appeal presents no substantial question, we will summarily affirm the orders of the District Court denying the requested relief. See 3d Cir. LAR 27.4; I.O.P. 10.6. Schneller’s appeal from the District Court’s dismissal of his action and denial of his motion for reconsideration is dismissed for lack of appellate jurisdiction. See Fed. R.App. P. 4(a)(1); Bowles, 551 U.S. at 213, 127 S.Ct. 2360.
. Schneller filed his complaint pro se. In it, he purported to represent other persons and entities. As a pro se litigant, Schneller may not represent parties other than himself. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir.1991) (holding that non-lawyer proceeding pro se could not represent his own children); 28 U.S.C. § 1654 (parties may proceed in federal court "personally or by counsel"). Accordingly, we will treat him as the sole Appellant in this appeal. See also Schneller v. Fox Subacute at Clara Burke, 317 Fed.Appx. 135, 137 n. 1 (3d Cir.2008).
. The document was dated November 6, 2009, but file-stamped December 2, 2009. In his response, Appellant argues that it was filed on November 10, 2009, but does not provide any support for this assertion. As we explain herein, whichever of these dates we use, the notice of appeal was untimely filed with respect to the dismissal of the action and denial of reconsideration.
. Because the motion for reconsideration was filed within ten business days of the District Court's entry of judgment, the lime to file a notice of appeal from the June 26, 2009 dismissal was tolled until the District Court denied the motion for reconsideration on August 4, 2009. See former Fed.R.Civ.P. 59(e) (amendment effective Dec. 1, 2009). Appellant’s subsequent motions to supplement the record and for sanctions do not fall within the subset of post-judgment motions which toll the time for filing a notice of appeal. See Fed. R.App. P. 4(a)(4)(A).
. In his motion for reconsideration, Schneller recognized that motions for reconsideration are sparingly granted and require either the presence of new evidence not previously available, an intervening change in the controlling law, or the need to correct a clear error of law or fact or to prevent manifest injustice. See Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). Nonetheless, his motion failed to allege that any of those circumstances were present. Rather, it speculated that the District Court “may have” misapprehended facts or misapplied law and that it "may have” erred in reaching certain conclusions, but did not present any specific legal issue which was clearly incorrectly decided or point to any new evidence or intervening change in the case law that would have supported reconsideration. Nor did his proposed reply satisfy any of these criteria.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478160/
|
OPINION
PER CURIAM.
Michael Shemonsky appeals pro se from the District Court’s November 19, 2009 order. We will summarily affirm.
In February 1993, the District Court ordered that Shemonsky be permanently enjoined from filing in the Eastern District of Pennsylvania any further pleadings or documents relating to this case without prior approval of the court. In November 2009, Shemonsky submitted a “Motion to Transfer to the Bankruptcy Court.” The District noted that the motion was “almost incomprehensible and plainly frivolous,” and did not allow Shemonsky to file the motion because he did not first seek the court’s permission. His appeal from the 1993 order was dismissed for lack of jurisdiction, and we affirmed the subsequent dismissal of a 60(b) motion that he filed in violation of that order. See Shemonsky v. Resolution Trust Corp., 132 Fed.Appx. 424 (3d Cir.2005).
The District Court’s refusal to file She-monsky’s motion was proper. Because no “substantial question” is presented by this appeal, we will affirm the order of the District Court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478163/
|
OPINION
PER CURIAM.
Appellant Ronnie Morris seeks review of a final order by the United States District Court for the District of New Jersey entered on January 29, 2010, 2010 WL 342563, denying his petition for a writ of habeas corpus. Because the appeal does not present a substantial question, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I. Background
On August 19, 2009, the United States District Court for the Western District of New York sentenced Morris to a term of 12 months of imprisonment for two supervised release violations. His projected release date is May 15, 2010.
On January 20, 2010, Morris, who is incarcerated in New Jersey, filed an “emergency writ of mandamus” in the United States District Court for the District of New Jersey. In it, Morris claims that the Bureau of Prisons (“BOP”) erroneously calculated his sentence. The District Court construed Morris’s submission as a petition for a writ of habeas corpus and summarily denied the petition as mer-itless.1
Morris filed a timely pro se notice of appeal. He has moved to expedite the appeal.
II. Analysis
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We exercise plenary review over the District Court’s denial of the petition for a writ of habeas corpus. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 239 n. 3 (3d Cir.2005). We review the District Court’s factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007). We may summarily affirm if the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
Morris claims the BOP erroneously computed his sentence by failing to award him credit for a 36-day period of detention from August 19, 2009, through September 23, 2009. See 18 U.S.C. § 3585(b)(1).2 We *282have held that § 2241 provides the proper vehicle for a federal prisoner to challenge the “execution” of his sentence, including a challenge to his sentencing computation. See Woodall, 432 F.3d at 242; Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001). Accordingly, the District Court properly construed the claim as a petition for a writ of habeas corpus under 28 U.S.C. § 2241.
Based upon the BOP’s Sentence Monitoring Computation Data sheet, which Morris appended to his petition, the District Court found that the BOP awarded Morris credit pursuant to § 3585(b) for a period of detention from September 23, 2008, through November 20, 2008 (59 days) and for a period of detention from July 14, 2009, through August 18, 2009 (36 days). The District Court found that Morris commenced serving his 12-month sentence on August 19, 2009.
With regard to the disputed period from August 19, 2009, through September 23, 2009, the District Court found that “the BOP in fact gave Petitioner credit against his sentence for this period, insofar as the BOP calculates the 12-month sentence as commencing on August 19, 2009, the day it was imposed.” Having closely reviewed the record, we conclude that the District Court’s finding is not clearly erroneous. The District Court then correctly determined that Morris cannot be credited a second time for that period. See 18 U.S.C. § 3585(b); see also United States v. Wilson, 503 U.S. 329, 337, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (stating that Congress made clear in § 3585(b) that a prisoner can “not receive a double credit for his detention time.”). Accordingly, we conclude that the District Court properly denied the petition for a writ of habeas corpus.
III. Conclusion
Because there is no substantial question to be presented on appeal, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We deny as moot the motion to expedite the appeal.
. Ordinarily, we require federal prisoners to exhaust administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.1996). Morris alleges that the BOP did not respond to his attempts to exhaust his administrative remedies and further efforts would be futile because his claim will become moot by his May 15, 2010, release date. The District Court implicitly accepted Morris's arguments and reached the merits of his petition.
. Pursuant to § 3585(b)(1), a defendant "shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sen*282tence commences ... as a result of the offense for which the sentence was imposed.”
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478166/
|
SLOVITER, Circuit Judge.
Appellant Teague Conaway1 (hereinafter “T.C.”) appeals the District Court’s grant of summary judgment in favor of defendant doctors and medical institutions. We will affirm.2
I.
T.C. was born with a life-threatening congenital heart defect, hypoplastic left heart syndrome. The standard treatment for this condition is a multi-stage process, involving three open-heart surgeries over a period of years. The objective of these surgeries is to alter the physiology of the patient such that the left side of the heart is bypassed so that the right side of the heart does the work of the underdeveloped left side. The first and second stages of the process were accomplished without incident by Dr. William Norwood.
In 2002, Drs. Norwood and John Murphy began a modification of the standard procedure traditionally used to accomplish the third stage of the treatment. Instead of a third open-heart surgery, the doctors decided that the third stage could be accomplished less invasively by using cardiac catheterization. Drs. Norwood and Murphy intended to connect veins and arteries in T.C.’s heart using a Cheatham Platinum covered stent (“CP stent”) via catheteriza*287tion. The CP stent was not approved by the FDA for general use, but Dr. Murphy obtained FDA approval under the “compassionate use” exception for use of the CP stent in twenty patients. R. at 7.
Soon after Dr. Murphy performed the alternative procedure on December 4, 2003, T.C. began to experience adverse symptoms, was treated briefly at A.I. du-Pont Hospital, and then transferred to Christiana Care Hospital and later Children’s Hospital of Philadelphia (CHOP) at the request of his family. At CHOP, T.C. was under the care of Dr. Jack Rychik, who diagnosed him with pleural effusions and ascites. Effusions are “collections of fluid ... that exist between tissue planes within the body,” which in this case developed around the lungs. R. at 9. Ascites is a condition by which effusions build up within the abdomen. Both conditions were caused by an obstruction, also known as a thrombus, within the CP stent. According to Dr. Rychik, such symptoms are “not a rare or unusual phenomenon” for a patient to develop after undergoing either the CP stent procedure that was used in this case or a third open-heart surgery. R. at 9.
Dr. Thomas Spray, also at CHOP, performed a “fontan takedown,” which reversed the third procedure after Dr. Ry-chik determined this to be the best course of treatment for T.C.’s obstruction. After this operation, T.C. “had a relatively rapid recovery” and has been “doing very well” since. R. at 10.
Due to his development of “severe as-cites and protein losing enteropathy necessitating ... additional surgery,” T.C. sued defendants alleging, inter alia, medical negligence, lack of informed consent, and fraud. Appellant’s Br. at 21. The District Court granted defendants’ summary judgment motion on all counts and subsequently denied T.C.’s motion for reconsideration.
II.
We exercise plenary review over the District Court’s grant of summary judgment. If there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, we affirm the District Court’s ruling. Fed. R.Civ.P. 56(c)(2). In our review, we must view the facts in the light most favorable to the nonmoving party, T.C. in this case. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000). The District Court determined that Delaware law governs this action, and neither party disputes this ruling.
At the outset, we dispose of T.C.’s fraud claim. T.C.’s brief raises only the negligence and informed consent claims in its “Statement of Issues” section. Although one heading in T.C.’s brief appears to contest the dismissal of his fraud claim, the brief does not discuss the fraud claim any further. Such casual mention of an issue is insufficient to preserve it for consideration by this court. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993).
We turn to T.C.’s negligence and informed consent claims. The Delaware Health Care Act, 18 Del. C. § 6801, et seq. governs medical malpractice actions brought under Delaware law. In all but exceptional circumstances not present here, the Act requires the plaintiff in such actions to present expert testimony “as to the alleged deviation from the applicable standard of care in the specific circumstances of the ease and as to the causation of the alleged personal injury....” 18 Del. C. § 6853(e). Expert medical testimony as to the applicable standard of care, the deviation from that standard, and the causal link between the deviation and the alleged injury is “an essential element of a plaintiffs medical malpractice case and, as such, is an element on which he or she *288bears the burden of proof.” Burkhart v. Davies, 602 A.2d 56, 59 (Del.1991).
The Informed Consent Statute, 18 Del. C. § 6852, is found under the “Medical Negligence” chapter of the Delaware Code. Consequently, the requirement that the plaintiff present expert testimony as to causation in all medical malpractice actions extends to informed consent claims. See Valentine v. Mark, 2004 WL 2419131, *3 (Del.Super.2004) (“[A]n informed consent action still requires expert testimony as to causation.... Section 6852 cannot ... be used as a backdoor around the requirement that causation in medical negligence cases be supported by expert testimony.”). Therefore, the survival of both T.C.’s negligence and informed consent claims requires expert testimony showing that defendants’ negligence was the “but for” cause of T.C.’s alleged injuries. See Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991) (rejecting the “substantial factor” test in favor of the “but for” test of proximate causation). However, the Act does not require the use of “magic words” or impose a burden on medical experts to “couch their opinions in legal terms.” Green v. Weiner, 766 A.2d 492, 495 (Del. 2001). The court must evaluate the “proffered testimony as a whole” to determine if it meets the statutory requirements. Barriocanal v. Gibbs, 697 A.2d 1169, 1173 (Del.1997).
T.C. has not presented expert testimony to establish that any acts of negligence by the defendants were the “but for” cause of any harm T.C. suffered. Rather, there is uncontroverted evidence that the symptoms T.C. experienced, pleural effusions and ascites, are common side-effects of the standard open-heart surgery procedure as well as the alternative procedure he underwent. Although T.C. proffers multiple statements by Dr. Weber that he contends satisfy his burden under § 6853(e), the proffered statements in fact clarify that Dr. Weber does not know what caused the obstruction in the CP stent. All of the expert testimony that T.C. cites establishes a causal connection between the obstruction and plaintiffs symptoms. None, however, draws a causal connection between the defendants’ deviation from the applicable standard of care and T.C.’s complained of symptoms. We agree with the District Court that without expert testimony as to this essential link in the causal chain, plaintiff has failed to meet the requirements of § 6853(e).
III.
For the above-stated reasons, the judgment of the District Court will be affirmed.
. Appellant Conaway is referred to both as "Teague” and "Teagh” in various documents. The District Court adopted the former spelling because that is what appeared in the complaint. We do the same.
. The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478168/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
This case arises out of two contracts: a contract for the construction of four barges by HBC Barges, LLC (“HBC”) for Cashman Equipment Corporation (“Cash-man”), and a performance bond agreement between United States Fire Insurance Company (“U.S. Fire”) and HBC, which made U.S. Fire jointly and severally liable to Cashman for the performance of the contract. HBC failed to comply with aspects of the construction contract. Cash-man filed suit against HBC and U.S. Fire and was awarded liquidated damages and, following a bench trial before the Magistrate Judge, non-liquidated damages. These cross-appeals followed. We will affirm in part and reverse in part.
I.
On August 23, 2002, Cashman, a Massachusetts corporation, entered into a contract (the “Contract”) with HBC, a Pennsylvania company, under which HBC would construct four barges for Cashman for a total contract price of $1,128,604. In light of the fact that steel corrodes when exposed to salt water, the Contract required HBC to “[p]aint entire Interior and Exterior with two coats of epoxy 12 to 14 mils DFT.”1 (J.A. 716.) The Contract also provided that HBC would incur liquidated damages if it failed to deliver the barges to Cashman by December 30, 2002. Finally, the Contract expressly stated that it was to be construed under Massachusetts law.
HBC and U.S. Fire entered into a performance bond agreement (the “Bond Agreement”) in connection with the Contract. The Bond Agreement provided that HBC and U.S. Fire “jointly and severally, bind themselves ... to ... [Cashman] for the performance of the Construction Contract, which is incorporated herein by reference.” (J.A. 718.) U.S. Fire’s exposure under the Bond Agreement was capped at $1,128,604. Under the Bond Agreement, in the event of an uncured default by HBC, U.S. Fire was required to perform and complete the Contract; if U.S. Fire failed to do so, the Bond Agreement authorized Cashman to “enforce any remedy available to [it].” (J.A. 718.)
HBC’s performance under the Contract was deficient in two respects. First, the barges were not delivered on time, triggering the Contract’s liquidated damages clause. Second, HBC did not comply with aspects of the Contract’s painting specifications — the interior coating of the barges received only one coat averaging approximately five to seven mils in thickness, and the coating was not applied evenly, with some areas of the barges’ interiors having had no epoxy applied at all. Within a year *291of the belated delivery of the barges, Cash-man informed HBC of peeling epoxy and other “paint issues” on all four barges, (J.A. 700), and after HBC failed to take corrective actions, Cashman issued a notice to HBC and U.S. Fire declaring HBC’s default on the Contract. U.S. Fire failed to step in to cure HBC’s default, and Cashman filed suit against HBC and U.S. Fire.2
After discovery, Cashman and U.S. Fire filed cross-motions for summary judgment. The District Court, addressing the choice of law issues in the case, held that the Contract was governed by Massachusetts law on account of its choice of law clause, and that the Bond Agreement between HBC and U.S. Fire was governed by the law of Pennsylvania, the state with the closest ties to that Agreement. The District Court granted Cashman’s motion for partial summary judgment as to liquidated damages based upon HBC’s late delivery of the barges, finding HBC and U.S. Fire jointly and severally liable for $100,000. The Court further held that Cashman was owed prejudgment interest on its claim for liquidated damages, which the Court calculated at the twelve percent rate supplied by Massachusetts law, awarding $47,733 in prejudgment interest.3
Following a bench trial on non-liquidated damages, the Magistrate Judge found in Cashman’s favor and entered judgment on the remaining portion of the bond amount. The Magistrate Judge found that HBC had not applied sufficient epoxy and that HBC’s poor workmanship had caused the coating system to break down; as a consequence of HBC’s breach, the Magistrate Judge found, the useful service lives of the vessels had been diminished by at least ten years. The Magistrate Judge concluded that the cost to repair these damages was well in excess of the $1,028,604 remaining on the face amount of the bond and awarded the remainder of the bond amount in non-liquidated damages, rejecting U.S. Fire’s argument that this sum was so disproportionate to the lost value as to constitute economic waste. Applying the District Court’s holding that Pennsylvania law governed Cashman’s claim under the Bond Agreement, the Magistrate Judge applied Pennsylvania’s six percent interest rate, awarding $175,003 in prejudgment interest.
II.4
A.
We address the choice of law questions at the outset. U.S. Fire contends that the District Court erred in applying Massachusetts law to calculate prejudgment interest for liquidated damages, and Cashman challenges the determination that Pennsylvania law applied to its claim arising under the Bond Agreement. We *292agree with Cashman that Massachusetts law applies to the entirety of its claims against U.S. Fire.
Under the doctrine established by Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), “a federal court sitting in diversity must apply the law of the forum state to questions that are ‘substantive’ but must use federal rules to govern ‘procedural’ matters.” Yohannon v. Keene Corp., 924 F.2d 1255, 1265 (3d Cir.1991). Since a state’s conflict of law rules are substantive, a federal court exercising diversity jurisdiction must apply the conflict of law rules of the state in which it sits to determine which state’s laws govern each of the issues in a case. See Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).
The District Court correctly held that the choice of law clause in the Cashman-HBC Contract is enforceable under Pennsylvania law. See Gay v. CreditInform, 511 F.3d 369, 389 (3d Cir.2007). More problematic is the District Court’s holding that Cashman’s claims arising under the Bond Agreement are subject to Pennsylvania law. In reaching this conclusion, the District Court looked to the factors Pennsylvania courts consider in making choice of law determinations in the absence of an effective choice by the parties. However, in rendering this determination, the District Court overlooked the impact of the Contract’s choice of law provision upon the interpretation of the Bond Agreement.
Although the Pennsylvania Supreme Court has not addressed the impact of a choice of law clause in a principal contract upon a suretyship contract containing no choice of law clause, the Restatement (Second) of Conflict of Laws contains a provision directly on point. It provides:
The validity of a contract of suretyship and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the law governing the principal obligation which the contract of suretyship was intended to secure, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.
Restatement (Second) Conflict of Laws § 194 (emphasis added).
At least one federal court applying Pennsylvania law has relied upon this provision of the Restatement in determining which state’s law governs a suretyship agreement with no choice of law clause, see CBS, Inc. v. Film Corp. of America, 545 F.Supp. 1382, 1386 (E.D.Pa.1982), as have courts in numerous other jurisdictions.5 While Pennsylvania’s Supreme Court has yet to weigh in on this issue, the logic of the Restatement’s rule is persuasive, and we predict that when the Pennsylvania Supreme Court takes up the matter, it will follow the majority of jurisdictions and adopt the Restatement rule. First, as the comments to Section 194 explain, “[i]n the *293nature of things, the two contracts will usually be closely related and have many common elements,” Restatement (Second) Conflict of Laws § 194, cmt. b, which strongly suggests that the two contracts should be interpreted under the same state’s laws. Moreover, “[s]uch a conclusion is likewise dictated by considerations of practicality and convenience. In addition, the contract of suretyship can often be considered accessory, or subsidiary, to the principal obligation,” id., further indicating the logic behind the Restatement rule.
In arguing that Pennsylvania courts would not endorse the Restatement rule, U.S. Fire draws our attention to Pennsylvania cases setting forth the unremarkable proposition that “the obligation of a bond cannot be extended beyond the plain import of the words used.” Peter J. Mascaro Co. v. Milonas, 401 Pa. 632, 166 A.2d 15, 17 (1960) (citation omitted). Such a proposition would be relevant if the Bond Agreement itself contained a choice of law clause. However, the Restatement’s rule speaks to circumstances where there is no “plain import of the words used,” id., because the words of the suretyship agreement are silent as to the choice of law. See Restatement (Second) Conflict of Laws § 194 (setting forth the rule to apply “in the absence of an effective choice of law by the parties”). The Restatement rule is thus distinguishable from the Pennsylvania cases cited by U.S. Fire, which do not bear directly upon the question before us.
In the absence of any decision by the Pennsylvania Supreme Court to the contrary, and in light of the logic of the Restatement rule, we predict that the Pennsylvania Supreme Court would embrace the Restatement on this point. Applying Section 194 to the Bond Agreement, it is apparent that Massachusetts law should govern the interpretation of the Bond Agreement, including “the rights created thereby.” See id.6 The Bond Agreement is silent as to which state’s law should apply to it, which means that “the law governing the principal obligation which the contract of suretyship was intended to secure” likewise governs the Bond Agreement. The Massachusetts prejudgment interest rate is twelve percent, see Peabody N.E., Inc. v. Town of Marshfield, 426 Mass. 436, 445, 689 N.E.2d 774 (Mass.1998), and the Magistrate Judge’s application of Pennsylvania’s six percent rate was thus in error.
U.S. Fire’s final argument to the contrary is unavailing. U.S. Fire draws our attention to our decision in Yohannon v. Keene Corp., wherein we addressed the choice of law implications of Pennsylvania Rule of Civil Procedure 238, which provides for delay damages in certain tort actions. In assessing whether Pennsylvania courts would enforce Rule 238 or another jurisdiction’s delay damages rule when faced with a choice of law decision, *294we predicted in Yohannon that Pennsylvania’s Supreme Court would hold that Pennsylvania courts must always enforce Rule 238, rather than another jurisdiction’s delay damages rule. See Yohannon, 924 F.2d at 1267. Yohannon’s holding rested on the unique fact that the Pennsylvania Supreme Court has consistently — and controversially 7 — “insisted that the imposition of delay damages under Rule 238 is a matter of procedure.” Id. at 1266 (citations omitted).
U.S. Fire’s reliance on Yohannon in this matter is misplaced, on account of the simple fact that Rule 238 is a tort rule that has no application to contract cases such as this one. The Pennsylvania Supreme Court recently held in no uncertain terms that Rule 238 applies only to certain tort actions, expressly stating that “Rule 238 delay damages are not available in a breach of contract action.” Touloumes v. E.S.C. Inc., 587 Pa. 287, 298, 899 A.2d 343 (Pa.2006). The Court made clear that a separate category of prejudgment interest, unrelated to Rule 238, applies in contract-based claims:
[PJaramount is the fact that in a breach of contract action, pre-judgment interest is the appropriate vehicle to secure monies for the delay of relief. Thus, the purpose for which Rule 238 was promulgated was already recognized by the legal right to pre-judgment interest in contract actions.
Id at 297-98 (citations omitted). Unlike the Pennsylvania Supreme Court’s “steadfast” insistence that Rule 238 is a matter of procedure, not substance, Yohannon, 924 F.2d at 1266, there is nothing to suggest that the distinct “legal right to prejudgment interest in contract actions” would be characterized as a matter of procedural law. Touloumes, 587 Pa. at 298.
In sum, we conclude that Cashman’s entitlement to prejudgment interest under the Bond Agreement is governed by Massachusetts law. We will reverse the lower courts’ decisions to the contrary and remand in order for the District Court to correctly calculate prejudgment interest at the twelve percent rate supplied by Massachusetts law.
B.
We next address U.S. Fire’s contention that the Magistrate Judge erred in concluding that it would not constitute economic waste to award non-liquidated damages to Cashman in the amount of $1,028,604. U.S. Fire argues that the Magistrate Judge’s non-liquidated damages award is inconsistent with the economic waste doctrine because it awards an amount of damages equal to the original purchase price of the barges, when there is evidence suggesting that the barges have actually increased in value, notwithstanding the painting defects. We do not agree.
Under Massachusetts law,8 “[t]he basic principle of contract damages is that the *295aggrieved party should be put in as good a position as if the other party had fully performed.” Quinn Bros., Inc. v. Wecker, 414 Mass. 815, 817, 611 N.E.2d 234 (Mass. 1993) (citation omitted). In the case of construction contracts in which the contractor’s performance is incomplete or defective, “damages generally will be based on the market price of completing or correcting the performance.” Id. (internal quotations and citations omitted). The comments to Section 348 of the Restatement (Second) of Contracts explain the rationale behind permitting the non-breaching party to prove damages through demonstrating the cost of repairing the breaching party’s defective work:
Sometimes, especially if the performance is defective as distinguished from incomplete, it may not be possible to prove the loss in value to the injured party with reasonable certainty. In that case he can usually recover damages based on the cost to remedy the defects. Even if this gives him a recovery somewhat in excess of the loss in value to him, it is better that he receive a small windfall than that he be undercompen-sated by being limited to the resulting diminution in the market price of his property.
Restatement (Second) of Contracts § 348, cmt. c.
“Sometimes, however, such a large part of the cost to remedy the defects consists of the cost to undo what has been improperly done that the cost to remedy the defects will be clearly disproportionate to the probable loss in value to the injured party.” Id. As the Restatement explains, a party suing for breach of a construction contract may be awarded damages based upon the cost to repair the defective work, unless such repairs would lead to unreasonable economic waste:
If a breach results in defective or unfinished construction and the loss in value to the injured party is not proved with sufficient certainty, he may recover damages based on[:]
(a) the diminution in the market price of the property caused by the breach, or
(b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him.
Id. at § 348(2).
The Supreme Judicial Court of Massachusetts has endorsed the economic waste doctrine. See, e.g., Ficara v. Belleau, 331 Mass. 80, 81, 117 N.E.2d 287 (Mass.1954). That court has not, however, expressly weighed in on a question implicated by U.S. Fire’s appeal — namely, who bears the burden of proof as to the proportionality between the cost of repairs and the difference in value between the work constructed and the work contracted for. The vast majority of authorities that have considered the question, however, concur with Professor Corbin that “[without question, the contract breaker should pay the cost of construction and completion in accordance with the contract unless the contractor proves affirmatively and convincingly that such construction and completion would involve an unreasonable economic waste.” 11 Corbin on Contracts § 60.1 (2005) (emphasis added).9
*296We predict that the Supreme Judicial Court of Massachusetts would endorse this rule if the question presented itself, because the rule is consistent with that state’s laws on contract damages and burdens of proof. Under Massachusetts law, the “basic principle of contract damages is that the aggrieved party should be put in as good a position as if the other party had fully performed,” which in construction contract cases means that damages are “based on the market price of completing or correcting the performance.” Quinn Bros., 414 Mass. at 817. It is the breaching contractor who stands to benefit from a deviation from this general principle under the economic waste doctrine. Cf. Andrulis v. Levin Const. Corp., 331 Md. 354, 628 A.2d 197, 208 (1993); P.G. Lake, Inc. v. Sheffield, 438 S.W.2d 952, 956 (Tex.Civ. App.1969) (“[t]he minimization of damages is a defensive matter,” and “[i]f the defendant desires to avail himself of such defense, the burden rests upon him to raise such issue by pleadings and proof’). The Supreme Judicial Court of Massachusetts has in no way suggested that the rule requiring the party asserting an affirmative defense to bear the “burden of establishing the facts necessary to support it,” Carpenter v. Carpenter, 73 Mass.App.Ct. 732, 901 N.E.2d 694, 699 (2009), would operate differently in the economic waste context. We conclude that the burden of proving that the cost of curing a construction defect is disproportionate to the probable loss in value rests with the contract breaker.
We further conclude that the Magistrate Judge’s determination that U.S. Fire failed to sustain its burden of proof as to disproportionality was not in error. The Magistrate Judge’s finding that HBC breached the terms of the Contract’s painting specifications, and that the resultant deterioration of the barges has caused injury to Cashman, are amply supported by the record. See Giles, 571 F.3d at 322. The evidence credited by the Magistrate Judge, particularly the testimony of Dr. Stoltz, was more than sufficient to show that the paint was applied at a lesser thickness than called for and in an un-workmanlike manner, and that the deterioration that resulted from HBC’s deficient work decreased the useful lives of the bai-ges by at least ten years.10 There was, in addition, ample evidence in the record of “the market price of completing or correcting the performance” in order to remedy HBC’s deficient construction. Quinn Bros., 414 Mass, at 817 (citation omitted). The parties presented three experts’ estimates of the cost to cure, which ranged from $1,979,992 at the low end to $3,941,234 at the upper end. As the Magistrate Judge concluded, “[t]he salient point is that all of these estimates are significantly greater than the $1,028,604.00 available face amount of the Bond which is the upward limit of U.S. Fire’s liability.” (J.A. 52.)
With Cashman having shown that HBC failed to correctly perform under the Contract and having adduced evidence of the price of correcting HBC’s deficient performance, see Quinn Bros., 414 Mass. at 817, the burden shifted to U.S. Fire to “prove[ ] affirmatively and convincingly that such construction and completion would involve an unreasonable economic waste.” 11 Corbin on Contracts § 60.1. One court has lucidly set forth a defen*297dant’s burden of proof in the following terms:
[OJnce [the plaintiff] presented sufficient proof ... on the cost-of-repairs measure, the burden shifted to [the defendant] to produce evidence showing (a) either that repairing the1 defects was unreasonable because it would have involved more destruction of quality workmanship than would have been warranted considering the value likely to be added to the [property] by making the repairs, or (b) that the repair costs would have been disproportionate to the probable increase in value to [plaintiff] resulting from proper construction, so that difference in value would have been the proper measure of damages. Either approach would have required proof regarding the value of the [property] as defectively constructed and its value if constructed without defect as the contract contemplated.
Pennington, 929 S.W.2d at 175 (emphasis added); see also Andrulis, 628 A.2d at 207.
The only evidence in the record concerning the value of the barges is the reports and deposition testimony of Mr. Collyer, a marine surveyor. Collyer first inspected the barges upon their delivery in 2003 and early 2004, and he estimated their collective market value at that time to be $1,650,000. Collyer subsequently appraised three of the barges in March 2006 — well after Cashman had informed HBC and U.S. Fire that the barges’ coating systems were failing' — and found, with little mention of the painting failures and the deterioration other examiners observed, that those three barges had actually increased in value by $25,000 each. Relying entirely upon Collyer’s valuations, U.S. Fire argues that Cashman has suffered no damages because the barges are presently worth more than Cashman paid for them, and that requiring U.S. Fire to pay the cost of repairs would therefore amount to economic waste.
The Magistrate Judge did not find Col-lyer’s valuations credible, and we cannot say that this determination was clearly erroneous. The Magistrate Judge explained in clear terms that he found Col-lyer’s appraisals to be internally inconsistent, and inconsistent with other evidence he had credited, and that Collyer’s opinions were therefore entitled to “only minimal weight.” (J.A. 30.) Specifically, the Magistrate Judge noted that within the same appraisal of a vessel, Collyer would identify “major paint failures” in a barge, but at the same time would describe the barge as having “good coatings.” (J.A. 30.) With regard to inconsistencies between Collyer’s appraisals and other evidence, the Magistrate Judge found that Collyer gave short shrift to the state and impact of the deterioration, particularly in light of Dr. Stoltz’s testimony (which the Magistrate Judge credited) concerning the impact of the failed coating system on the life span of the barges. U.S. Fire’s own expert witness, Dr. Senkowski, took note of these same inconsistencies and “questioned] the credibility of Mr. Collyer as a competent coatings inspector.” (J.A. 30.) Our review of the Magistrate Judge’s factual findings is for clear error. We cannot say that the Magistrate Judge’s rejection of Collyer’s valuations was “completely devoid of minimum evidentiary support displaying some hue of credibility.” Giles, 571 F.3d at 322. As the finder of fact, the Magistrate Judge was within his right to reject as unpersuasive Collyer’s evaluations, which were internally inconsistent and inconsistent with more credible evidence concerning the deterioration of the barges.
Nor was the Magistrate Judge obligated to accept Collyer’s appraisals simply because there was no other evidence as to *298the value of the barges. Indeed, even if Collyer’s opinions had not been contradicted by other evidence in the record, the Magistrate Judge would have been within his right not to credit evidence he found unpersuasive. See United States v. Saka, 339 F.2d 541, 543 (3d Cir.1964); see also, e.g., United States v. Sandoval-Mendoza, 472 F.3d 645, 649 (9th Cir.2006) (“Uncon-tradicted testimony is not necessarily undisputed evidence.”); Aron v. United States, 291 F.3d 708, 717 (11th Cir.2002). The Magistrate Judge gave a rational explanation for discrediting Collyer’s conclusions, and we certainly cannot characterize his fact finding as clearly erroneous. In short, U.S. Fire had the burden to prove affirmatively and convincingly that the cost of repairs would amount to economic waste, and the only evidence as to valuation was legitimately discredited by the Magistrate Judge. We will affirm the award of non-liquidated damages.11
III.
For the foregoing reasons, we affirm the District Court’s award of liquidated and non-liquidated damages. We vacate the award of prejudgment interest and remand for further proceedings consistent with this opinion.
. A ''mil” is a measurement equal to one-thousandth of an inch, and "DFT” stands for "dry film thickness.”
. HBC filed for bankruptcy, and the District Court held that Cashman could only proceed for damages against U.S. Fire.
. In its cross-motion for summary judgment on non-liquidated damages, U.S. Fire conceded that HBC had breached the terms of the Contract's painting provision, but argued that Cashman had failed to prove that it had sustained damages. The District Court rejected this argument, holding that factual disputes precluded the entry of summary judgment in U.S. Fire’s favor.
.The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the Magistrate Judge's factual findings for clear error. See Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009). We have plenary review over the District Court's and Magistrate Judge's application of the law to the facts. See Holmes v. Millcreek Tp. School Dist., 205 F.3d 583, 589 (3d Cir.2000).
. See, e.g., American State Bank v. U.S. Fidelity & Guaranty Co., 331 F.2d 479, 483 (7th Cir.1964); Socony-Vacuum Oil Co. v. Continental Cas. Co., 219 F.2d 645, 647 (2d Cir.1955); In re Commercial Money Center, Inc., Equipment Lease Litigation, 603 F.Supp.2d 1095, 1104 n. 8 (N.D.Ohio 2009); Ermer v. Case Corp., No. 01-338, 2002 WL 1796438, at *2 (D.Neb. Aug.05, 2002); Marshall Contractors, Inc. v. Peerless Ins. Co., 827 F.Supp. 91, 94 (D.R.I.1993); In re Technology for Energy Corp., 88 B.R. 182, 186 (E.D.Tenn.1988); Phoenix Arbor Plaza, Ltd. v. Dauderman, 163 Ariz. 27, 785 P.2d 1215, 1217 (1989); Johnson v. Ronamy Consumer Credit Cotp., 515 A.2d 682, 687 (Del. 1986); Philip Carey Co. v. Maryland Casualty Co., 201 Iowa 1063, 206 N.W. 808, 811 (Iowa 1926).
. The Restatement rule recognizes that the law governing the principal obligation may not apply to the suretyship agreement if “with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties.” Restatement (Second) Conflict of Laws § 194. While this clause might seem, on first blush, to call for an assessment of each state's connections to the parties and issues in the case, the comments to the Restatement make clear that such a determination is unnecessary under the circumstances presented in this appeal. "A sufficient relationship to justify application of the law governing the principal obligation ... exist[s] if the state whose local law governs the [principal] obligation was ... [either] the state where the [third-party beneficiary] ... relied upon the surety’s promise” or the "state of domicil” of either the beneficiary (Cashman) or the surety (U.S. Fire). Id.., cmt. c. Both of these conditions are clearly satisfied here.
. In Yohannon, we noted that the Pennsylvania Supreme Court's designation of Rule 238 as procedural has been the subject of “strong dissents and concurrences arguing that Rule 238 is not authorized by Article 5, § 10 of the Pennsylvania Constitution because it affects the substantive law of damages." Yohannon, 924 F.2d at 1266.
. As we have explained, Massachusetts law governs Cashman’s claim against U.S. Fire arising under the Bond Agreement. See Restatement (Second) Conflict of Laws § 194. While the Magistrate Judge assessed Cash-man's claim for non-liquidated damages under Pennsylvania law, the high courts of both Massachusetts and Pennsylvania have endorsed the economic waste doctrine, and there is no meaningful difference between the two jurisdictions' laws on this point. The Magistrate Judge's determination may thus be upheld, notwithstanding the erroneous application of Pennsylvania law.
. See, e.g., John Thurmond & Associates, Inc. v. Kennedy, 284 Ga. 469, 471, 668 S.E.2d 666 (Ga.2008); Panorama Village v. Golden Rule Roofing, 102 Wash.App. 422, 10 P.3d 417, 422 (2000); Pennington v. Rhodes, 929 S.W.2d 169, 175-76 (Ark.1996); Andrulis v. Levin Const. Corp., 331 Md. 354, 628 A.2d 197, 208 (1993); Moss v. Speck, 209 Neb. 46, 48-49, 306 N.W.2d 156 (Neb.1981); Stangl v. Todd, 554 P.2d 1316, 1320 (Utah 1976); P.G. Lake, *296Inc. v. Sheffield, 438 S.W.2d 952, 956 (Tex. Civ.App.1969); Shell v. Schmidt, 164 Cal.App.2d 350, 330 P.2d 817, 823 (1958).
. Indeed, even Dr. Senkowski, U.S. Fire's expert, conceded that fifty-eight percent of the interior coating of the barges had “failed to the point where they no longer are protecting the steel surface.” (j.A. 325.)
. We are unconvinced by U.S. Fire’s contention that in awarding liquidated damages, the District Court overlooked the fact that HBC and Cashman entered into a second contract which functioned as an accord and satisfaction that discharged FIBC's liability for liquidated damages under the original construction Contract. The only evidence of this second contract are a few sentences in the affidavit of HBC's former CEO. Under the best evidence rule, this statement was inadmissible, and it thus does not undermine the District Court's liquidated damage award. See Fed.R.Evid. 1002 (‘‘[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required....").
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478171/
|
OPINION
PER CURIAM.
Appellant James D. Sehneller, proceeding pro se, appeals from the District Court’s dismissal of his action and denial of his post-judgment motions. For the reasons that follow, we will dismiss in part for lack of jurisdiction and otherwise summarily affirm the judgment of the District Court.
Sehneller initiated the underlying civil action in the United States District Court for the Eastern District of Pennsylvania in 2008.1 In it, he primarily alleged that defendants committed medical and legal malpractice in rendering negligent services to his parents at the ends of their lives. By opinion and order entered on June 26, 2009, the District Court dismissed all of his claims and ordered the case closed. On July 10, Sehneller timely filed a motion for reconsideration which was denied on August 6, 2009. On August 11, Sehneller filed a motion to “supplement the record,” followed by a motion for sanctions and costs on September 1. The District Court denied Schneller’s motion to supplement the record on September 4, 2009, and denied his motion for sanctions and costs on September 9, 2009. On October 8, 2009, Sehneller filed a six-page document entitled “Plaintiffs’ Motion for Leave to Appeal In Forma Pauperis” which detailed the errors allegedly made by the District Court in dismissing Appellant’s complaint and denying his post-judgment motions and requested leave to appeal in forma pauperis. The District Court granted him *300leave to appeal informa pauperis on October 27, 2009, and Sehneller filed a document entitled “Notice of Appeal” on November 10, 2009.
Appellant seeks to appeal both the District Court’s dismissal of his action and its denial of his post-judgment motions. The District Court’s judgment dismissing the underlying action became final on August 6, 2009, when the District Court denied Appellant’s timely-filed motion for reconsideration.2 See 28 U.S.C. § 1291 (vesting jurisdiction in courts of appeals over “final decisions” of the district courts); Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199-200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (holding that a final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment, and that a question remaining to be decided after entry of such a decision does not affect its finality). Because Sehneller failed to file a notice of appeal within thirty days of entry of that order, we lack jurisdiction over the District Court’s June 26, 2009 opinion and order dismissing his action and its August 6, 2009 order denying his motion for reconsideration. See Fed. R.App. P. 4(a)(1); Bowles v. Russell, 551 U.S. 205, 213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (holding that the timely filing of a notice of appeal is a jurisdictional requirement).
The District Court’s denials of Appellant’s post-judgment motions are separately appealable. See Pennsylvania v. Flaherty, 983 F.2d 1267, 1276 (3d Cir.1993) (“Post-judgment orders are final for purposes of § 1291 and immediately appeal-able because the policy against piecemeal review is unlikely to be undermined.”). The Court denied Schneller’s motion to supplement the record by order entered September 4, 2009. Because he failed to file a notice of appeal within thirty days of that denial, we also lack jurisdiction over his appeal with respect to that order. See Fed. R.App. P. 4(a)(1); Bowles, 551 U.S. at 213, 127 S.Ct. 2360. However, Schneller’s motion for sanctions was not denied until September 9, 2009. On October 8, 2009, Sehneller filed a document entitled “Plaintiffs’ Motion for Leave to Appeal In Forma Pauperis” which specified those orders he wished to appeal, the grounds he wished to appeal them on, and the court he wished to appeal them to. The District Court should have treated this document as a notice of appeal. See Fed. R.App. P. 3(c)(1); Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 665 (3d Cir.1990) (explaining that “a party will be deemed to have complied with Rule 3(c) if it has, within the time provided to file an appeal, filed documents that ‘specify the party or parties taking the appeal; ... the judgment, order or part thereof appealed from; and ... the court to which the appeal is taken’ ”). Because this document was timely-filed with respect to the District Court’s denial of Appellant’s motions for sanctions, we retain jurisdiction over his appeal from that order. See Fed. R.App. P. 4(a)(1); Flaherty, 983 F.2d at 1276.
In his motion for sanctions and costs, Sehneller argued that pursuant to Federal Rule of Civil Procedure 11 and 28 U.S.C. § 1927, Appellees should be sanctioned for filing frivolous and vexatious motions and pleadings for the purpose of causing unnecessary delay and increasing the cost of the litigation. While Sehneller set forth *301the facts and legal arguments made by Appellees that he disagreed with, he did not provide any basis from which the District Court could have concluded that Ap-pellees alleged those facts or made those arguments “for an improper purpose” or with the intent of “misleading the court.” Schneller’s motion for sanctions was not the proper vehicle for challenging these assertions and arguments — appeal was. Because Schneller failed to timely appeal from the District Court’s dismissal of his action and denial of his motion for reconsideration, we cannot consider these arguments at the present time.
Because Schneller’s appeal presents no substantial question, we will summarily affirm the orders of the District Court denying the requested relief. See 3d Cir. LAR 27.4; I.O.P. 10.6. Schneller’s appeal from the District Court’s dismissal of his action, denial of his motion for reconsideration, and denial of his motion to supplement the record is dismissed for lack of appellate jurisdiction. See Fed. R.App. P. 4(a)(1); Bowles, 551 U.S. at 213, 127 S.Ct. 2360.
. Sehneller filed his complaint pro se. In it, he purported to represent other persons and entities. As a pro se litigant, Sehneller may not represent parties other than himself. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir.1991) (holding that non-lawyer proceeding pro se could not represent his own children); 28 U.S.C. § 1654 (parties may proceed in federal court "personally or by counsel”). Accordingly, we will treat him as the sole Appellant in this appeal. See also Schneller v. Fox Subacute at Clara Burke, 317 F. App’x 135, 137 n. 1 (3d Cir.2008).
. Because the motion for reconsideration was filed within ten business days of the District Court's entry of judgment, the time to file a notice of appeal from the June 26, 2009 dismissal was tolled until the District Court denied the motion for reconsideration on August 4, 2009. See former Fed.R.Civ.P. 59(e) (amendment effective Dec. 1, 2009). Appellant's subsequent motions to supplement the record and for sanctions do not fall within the subset of post-judgment motions which toll the time for filing a notice of appeal. See Fed. R.App. P. 4(a)(4)(A).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478173/
|
OPINION OF THE COURT
FISHER, Circuit Judge.
Steven W. Robinson (“Robinson”) appeals from an order of the District Court granting a motion for summary judgment in favor of defendant, Matthews International Corporation (“Matthews”), holding that Matthews did not violate Robinson’s rights under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. For the reasons stated herein, we will affirm the judgment of the District Court.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of the case. Therefore, we will set forth only those facts necessary to our analysis.
The York Group, Inc. (“York Group”) hired Robinson as the Bronze Segment Controller at its Kingwood, West Virginia plant on January 3, 2000, and he continued in this capacity when the York Group was acquired by Matthews. Robinson was subsequently promoted to the operations controller position for Matthews’s casket division in Pittsburgh, PA, and was supervised by David Beck (“Beck”). At the completion of Robinson’s first year as operations controller, Beck administered Robinson’s performance evaluation for the fiscal year 2003. Robinson’s overall performance was rated, under Matthews’s performance rating system, in the “competent (meets standard)” range.
In September 2003, Beck was promoted within Matthews, and Jonathan Maurer (“Maurer”) took over as Robinson’s immediate supervisor. Maurer, however, left Matthews after only six months; thereafter, Robinson reported to Joseph Bartolac-ci (“Bartolacci”). In his 2004 fiscal year performance evaluation, Bartolacci rated Robinson’s overall performance as “adequate (below standard)” and noted that Robinson did not demonstrate the expected leadership levels on the business plan, the annual business review, and during monthly forecast meetings.
For financial reasons, in early summer 2004, Matthews decided to consolidate the responsibilities of the financial controller, the manager of financial analysis, and the operations controller, which was Robinson’s position, into a single “division controller” position and to liquidate the other positions. On November 5, 2004, Bartolac-ci met with Robinson and informed him that his position was being eliminated, effective at the end of the year, and that he was not being considered for the newly created division controller position. At this meeting, Bartolacci extended an offer to Robinson for the wood plant controller position at Matthews’s plant in York, Pennsylvania. The wood plant controller position would have constituted a demotion for Robinson, whereby his responsibilities would have been reduced and his annual pay cut. Robinson declined the offered position and continued work in his current position until he was terminated by Matthews on January 31, 2005. Robinson was fifty-one years of age at the time of his termination.
Steven Nicola (“Nicola”), the Matthews official responsible for filling the division controller position, believed, based in part on the opinions of other Matthews officials, *303that Robinson did not possess sufficient leadership, initiative, or analytical skills necessary for the new position. The division controller position was ultimately offered to, and accepted by Jim Kenna (“Kenna”). Kenna was thirty-six years old at the time he was hired and held a bachelor’s degree in accounting. Kenna’s qualifications included general accounting and operations experience, as well as experience performing audits. Robinson, on the other hand, had earned a Masters of Business Administration degree with double specializations in finance and management. He had experience in the payroll and accounting departments of other companies, as well as experience as a bronze segment controller and casket division operations controller for Matthews.
Following his termination, Robinson filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that he was discriminated against based on his age. Before the EEOC, Robinson contended that he was not given the opportunity to apply for the division controller position, that the position ultimately went to the younger Kenna, and that this constituted age discrimination in violation of the ADEA. The EEOC subsequently issued Robinson a right to sue letter.
On November 13, 2006, Robinson filed the instant lawsuit alleging age discrimination under the ADEA, sex discrimination under Title VII, constructive discharge under both statutes, and several related common law claims. Matthews filed a motion for summary judgment on all counts, and, on March 20, 2009, the District Court granted the motion. Robinson filed a timely notice of appeal. Robinson’s age discrimination claim under the ADEA is the only one before us in this appeal.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review of a grant of summary judgment is plenary. Gardner v. State Farm Fire & Gas. Co., 544 F.3d 553, 557 (3d Cir.2008). In conducting our review, we must view the underlying facts and all reasonable inferences in the light most favorable to the party opposing the motion. Fasold v. Justice, 409 F.3d 178, 180 (3d Cir.2005). Summary judgment is only proper when there is no genuine dispute as to material facts, and the moving party is entitled to judgment as a matter of law. Id. at 183.
III.
Recognizing that it is often difficult for a plaintiff to prove illegal discrimination through direct evidence, the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), constructed a framework under which a plaintiff may show that an adverse employment action was simply a pretext for discrimination. The McDonnell Douglas framework establishes a system whereby burdens of proof are allocated in employment discrimination suits. The plaintiff must carry the initial burden of establishing a prima facie case of unlawful discrimination. Id. at 802. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for taking the challenged action. Id. If the employer can articulate such a reason, then the burden shifts back to the plaintiff to show that the defendant’s reason was a pretext for discrimination. Id. at 804. The ultimate burden of persuasion that the employer intentionally discriminated against the plaintiff “remains at all times with the plaintiff.” Texas Dept. of *304Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 10 89, 67 L.Ed.2d 207 (1981).
In order to establish a prima facie case of age discrimination for failure to promote, the plaintiff must establish that: (1) he is age forty or older; (2) he applied for and is qualified for the job; (3) despite his qualifications he was rejected; and (4) the employer ultimately filled the position with someone sufficiently younger to permit an inference of age discrimination. Barber v. CSX Distrib. Servs., 68 F.3d 694, 698 (3d Cir.1995). The District Court held that Robinson established a prima facie case, and Matthews does not contest that finding in this appeal. Therefore, for our purposes, Robinson has met the burden of establishing a prima facie case under the ADEA.
The burden then shifts to Matthews to provide evidence that Robinson was rejected, or Kenna was preferred, for the division controller position for reasons that are legitimate and nondiscriminatory. Burdine, 450 U.S. at 254, 101 S.Ct. 1089. This burden is deemed satisfied if the employer introduces evidence that, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the challenged employment decision. The employer is not required to prove that this nondiscriminatory reason actually motivated the action in order to shift the burden back to the plaintiff. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). Matthews maintains that Robinson was performing below expectations in his current position and that he lacked the leadership ability, initiative, and analytical skills necessary to perform as division controller. Taken as true, these reasons would certainly be legitimate grounds not to promote Robinson. We conclude that Matthews has met its burden, and thus the burden of showing pretext shifts to Robinson.
The standard for determining pretext was set forth by this Court in Fuentes. In order for a plaintiff to defeat summary judgment, the plaintiff must either (i) discredit the proffered reasons, either circumstantially or directly, or (ii) adduce evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. Fuentes, 32 F.3d at 764. A successful showing of pretext must “allow the factfinder reasonably to infer that each of the employer’s proffered nondiscriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action.” Id. A plaintiff may not establish pretext by simply showing that the employer’s decision was wrong or mistaken because the main issue is whether the employer acted in a discriminatory manner. Id. at 765.
Robinson’s assertions center on the first prong of the Fuentes test: an attempt to discredit Matthews’s claim that the true reason for not promoting Robinson was that his performance did not warrant the promotion. Robinson makes five arguments to discredit Matthews’s proffered reasons, and we will consider each of them in turn.
First, Robinson argues that his performance evaluations do not support Matthews’s assertion that his performance was below expectations. He states that his performance ratings in fiscal year 2003 of “competent (meets standard)” and in fiscal year 2004 of “adequate (below standard)” are indicative of good performance. Robinson also cites the individual categories in his performance evaluations where he scored well as evidence of good performance. Ultimately, however, Robinson’s own view of his performance is irrelevant; instead, what matters is the perception of the employer. Billet v. CIGNA Corp., 940 *305F.2d 812, 825 (3d Cir.1991) rev’d on other grounds. The comments from Robinson’s supervisors, combined with the downward trajectory of his performance evaluations, belie Robinson’s assertions. Matthews has clearly laid out that an “adequate” review equates with “below standard” performance. Based on the performance evaluation alone, Matthews’s decision not to promote Robinson because his ratings demonstrated only “adequate” performance was a reasonable one, and we may not second guess this business decision. Ezold v. Wolf, Block, Schorr & Solis-Cohen, 988 F.2d 509, 527 (3d Cir.1992).
Robinson’s second argument is that Matthews should have considered the difficult circumstances under which he assumed the operations controller position when reviewing his performance. Specifically, Robinson claims that his predecessor left the position before he could be adequately trained for the new position. It follows logically that any difficulties stemming from learning a new job would be ironed out in the first year, and that evidence of these early difficulties would be shown by an improvement, not a decline, in performance as those difficulties dissipate. However, Robinson’s scores on his performance evaluations actually declined from fiscal year 2003, when he was rated as “competent (meets standard),” to fiscal year 2004, when he was rated as “adequate (below standard).” This decline in performance following his first year in the position actually supports Matthews’s nondiscriminatory reasons for terminating Robinson.
Robinson next argues that Matthews’s failure to inform him of any problems with his performance is evidence of discriminatory pretext. While Robinson may not have been contacted routinely regarding the level of his performance, his annual evaluations indicated that he was not performing at an above average level and that his performance was not improving. However, even if no notice had been given, lack of information about performance problems does not constitute evidence of pretext. Hague v. Thompson Distrib. Co., 436 F.3d 816, 827 (7th Cir.2006).
The fourth argument Robinson advances is that pretext has been established by certain inconsistencies in the testimony of those in charge of hiring the division controller. Specifically, Robinson notes that Beck stated that he had no part in the division controller hiring process while Bartolacci and Nicola stated that Beck did have some input in the process. Robinson makes no allegation, however, that the inconsistencies in the testimony cited were evidence of discriminatory animus. In order to carry the burden of showing pretext, a plaintiffs evidence must allow a factfinder “reasonably to infer that each of the employer’s proffered non-discriminatory reasons ... was either a post hoc fabrication or otherwise did not actually motivate the employment action.” Fuentes, 32 F.3d at 764. Inconsistencies over whether Beck had any part in the hiring of the division controller cannot give rise to an inference that Matthews’s decision not to promote Robinson was motivated by considerations other than his performance. These inconsistencies are not evidence that could permit a factfinder to conclude that Matthews’s stated reason was “unworthy of credence.” Id. at 765.
Robinson finally argues that he is more experienced than Kenna. Robinson does indeed have more experience working in the field and a higher level of education than Kenna, but this is not necessarily evidence of pretext. In attempting to discredit the employer’s proffered reason, a plaintiff “cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is wheth*306er discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” Id. The decision to hire Kenna for the division controller position was ultimately a business decision, and simply because Robinson thinks he is more qualified for the division controller job does not entitle him to the position nor show discriminatory animus on the part of Matthews.
Since Robinson cannot point to evidence discrediting Matthews’s proffered legitimate reason for failing to promoting him, he cannot satisfy the first prong of the Fuentes analysis. Therefore, Robinson has failed to satisfy his burden of production under the McDonnell Douglas framework, and this failure entitles Matthews to judgment as a matter of law.
IV.
For all the foregoing reasons, we will affirm the District Court’s order for summary judgment in favor of Matthews.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478175/
|
OPINION OF THE COURT
DIAMOND, District Judge.
Christopher Renda challenges two special conditions of supervised release imposed following his conviction for possession of firearms by a convicted felon. 18 U.S.C. § 922(g)(1). For the reasons that follow, we affirm.
I.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II.
We ordinarily review the imposition of special conditions of supervised release for abuse of discretion. See United States v. Crandon, 173 F.3d 122, 127 (3d Cir.1999). When no objection is made before the district court, however, “review is for plain error.” United States v. Warren, 186 F.3d 358, 362 (3d Cir.1999).
III.
Because we write primarily for the Parties, we will summarize only those facts pertinent to our analysis.
Renda was arrested following an investigation conducted by the Bureau of Alcohol, Tobacco, and Firearms (“ATF”). (PSR ¶ 3,7.) ATF agents interviewed Ken Fink, Renda’s former employer, who stated that Renda “had made threatening remarks about various local officials and judges who had handled prior cases involving Renda.” (PSR ¶ 7.) Fink told ATF agents that “on one occasion, while [Fink] and Renda were driving together, Renda pointed out a residence which Renda said belonged to a York County judge and indicated that he wanted to put a bomb under the judge’s vehicle.” (Id.) Authorities subsequently identified the Judge as Sheryl Dorney of the York County Common Pleas Court. (App. at 30, 36.) The agents executed a search warrant for Renda’s home where they found smokeless powder, fuses, and hundreds of rounds of live ammunition. (PSR ¶9.) Agents also found books “re-lat[ed] to bomb-making, improvised devices, firearms, and firearms silencers.” (PSR ¶ 8.)
On December 22, 2008, Renda pled guilty to one count of possession of a firearm by a convicted felon. 18 U.S.C. § 922(g)(1). At sentencing, Renda objected to the threat description in the Presen-tence Report, and “categorically denie[d] making any threat to harm anyone.” (App. at 31.) The prosecutor acknowledged that because the Government could not corroborate Fink’s account of Renda’s threats, it would not seek any sentencing enhancements based on those threats. (Id. at 33.) The prosecutor maintained, however, that “[t]he [PSR] is accurate and complete in that it notes those allegations are what caused us out of a concern for the safety of judicial officers in York County and other public officials to commence this investigation....” (Id.)
The District Court overruled Renda’s objection to the PSR, stating that
*308this is part of the story, the whole picture here, and I’m not going to remove them from the presentence report. I will, however, state in light of [the prosecutor’s] statement that they should not be credited by the Bureau of Prisons for the purposes of determining punishment or appropriate institution or any of the other matters that might be involved in referring to them. (Id. at 34).
The District Court was familiar with Renda, having presided over his trial for weapons and drug offenses “in the early 80’s.” (App. at 42.) In imposing sentence, the Court discussed why a sentence of incarceration was necessary despite Ren-da’s advanced age (74) and poor health:
I feel bad for Mr. Renda and his several problems, but perhaps his health problems can be effectively addressed by the institution to which he will go. In light of his history I do have a concern about recidivism and I also think because of that history a punishment is appropriate, and so I am going to indicate in my, that in my opinion the guideline range here is a reasonable one and appropriate one. In light of his age and his health, I will sentence him at the bottom of that range. Mr. Renda as we have said has been in trouble many times over the years, and while he seems to have protected the guns as much as possible, just the mere fact that he had them, with his record, was a dumb thing to do.
(Id. at 42-43.) The District Court imposed a sentence within the advisory Guidelines range — fifteen months imprisonment and two years of supervised release with special conditions, including:
The defendant shall be placed on home detention with electronic monitoring during the period of supervised release, as directed by the probation officer. During this time, the defendant shall remain at his place of residence except for employment, education, religious activities, treatment, necessary shopping, or other activities pre-approved by the probation officer. The defendant shall comply with the rules of the location monitoring program, and shall maintain a telephone without any special features at his place of residence. Payment of the daily cost of location monitoring is waived; and The defendant shall [have] no contact or attempted contact with Judge Sheryl Dorney.
(Id. at 6.)
Although Renda did not object to these special conditions, he asks us to strike them as unreasonable.
IV.
Because Renda did not object below, we review his sentence for plain error. See United States v. Pruden, 398 F.3d 241, 248 (3d Cir.2005). To meet this standard, “[t]here must be an error that is plain and that affects substantial rights.’” United States v. Evans, 155 F.3d 245, 251 (3d Cir.1998) (internal quotation marks and citation omitted). We will vacate a sentence only “if the plain error affecting substantial rights also seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 251 (internal quotation marks and citations omitted).
Pursuant to 18 U.S.C. § 3583, a sentencing judge may impose special conditions of supervised release, as long as the conditions are “reasonably related to the sentencing factors set forth in § 3553(a), the nature and circumstances of the offense and the history and characteristics of the defendant, and must involve no greater deprivation of liberty than is reasonably necessary to afford adequate deterrence, to protect the public from future crimes, and to rehabilitate the defendant.” United States v. Mizwa, 345 Fed.Appx. 834, *309836 (3d Cir.2009); 18 U.S.C. § 3553(a); 18 U.S.C. § 3583(d). Accordingly, “[c]ondi-tions of supervised release must be supported by some evidence that the condition imposed is tangibly related to the circumstances of the offense, the history of the defendant, the need for general deterrence, or similar concerns.” United States v. Voelker, 489 F.3d 139, 144 (3d Cir.2007).
The District Court did not make separate findings regarding the special conditions imposed, undoubtedly because Renda did not object to them. The record nonetheless amply demonstrates the reasons for the conditions. See id. (“Where a sentencing court fails to adequately explain its reasons for imposing a condition of supervised release or the condition’s relationship to the applicable sentencing factors, we may nevertheless affirm the condition if we can ‘ascertain any viable basis for the ... restriction in the record before the District Court ... on our own.’ ”) (citing Warren, 186 F.3d at 367).
Renda’s criminal history goes back to 1953, and includes three convictions for weapons-related offenses, including possession of pipe bombs. (PSR ¶ 24-28.) At the time of the pipe bomb incident, Renda also possessed a 9mm machine gun, a silencer, two pistols, and two 22 caliber silencers. (PSR ¶ 27.) When they searched his home in 2008, ATF agents found a small arsenal, including bomb-making materials. Mr. Fink said that Renda had threatened “various local officials and judges who had handled prior cases involving Renda,” and wanted to bomb the car of a judge determined to be Sheryl Dorney. The record further confirms that as a York County Assistant District Attorney, Ms. Dorney had prosecuted Renda, who subsequently appeared before Dorney after she became a Judge. (App. at 35.) At sentencing, Judge Dorney stated that over the thirty years she had dealt with Renda, she had learned that he “does not obey court orders ... [h]e does not obey the law.” (Id.) Judge Dorney asked the Court to impose supervised release conditions that included electronic monitoring and prohibiting Renda from coming within a mile of her home. (Id. at 36.) The Government reiterated that request. (Id. at 36-37.)
The Court did not bar Renda from the area around Judge Dorney’s home. Rather the Court narrowed the restriction, prohibiting Renda from having any contact with Judge Dorney. Although the electronic monitoring and home confinement are obviously restrictive, Renda may leave his residence for “employment, education, religious activities, treatment, necessary shopping, or other activities pre-approved by the probation officer.” (App. at 6.)
In these circumstances, we cannot say that the District Court committed plain error. On the contrary, the record amply demonstrates that the imposition of special conditions is “tangibly related to the circumstances of the offense [and] the history of the defendant.” Voelker, 489 F.3d at 144. Moreover, the conditions “impose no greater deprivation of liberty than is reasonably necessary” in the circumstances presented. 18 U.S.C. § 3583(d)(2).
V.
For the reasons stated, we will affirm the sentence imposed by the District Court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478177/
|
OPINION
SLOVITER, Circuit Judge.
John Van Salisbury appeals a $152,500 penalty assessed by the United States Department of Commerce, National Oceanic and Atmospheric Administration (“NOAA”), for civil violations of the Mag-nuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act”), 16 U.S.C. §§ 1801-1882. The District Court affirmed the assessment on cross motions for summary judgment. Van Salisbury claims the assessment was excessive and disproportionate to the wrongdoing, in violation of the Eighth Amendment Excessive Fines Clause. We will affirm.1
I.
Because we write primarily for the parties, our recitation of the facts is brief. Van Salisbury, a licensed New Jersey lob-sterman, owns arid operates the commercial fishing vessel Major Expense. In August 2004, after numerous complaints that Van Salisbury tampered with, damaged, and stole lobsters and fishing gear owned by other lobstermen, NOAA special agents opened an investigation and planned a sting operation; they placed 40 uniquely marked lobsters in traps adjacent to Van Salisbury’s. A search of the Major Expense revealed five uniquely marked lobsters in Van Salisbury’s catch.
NOAA brought an administrative action against Van Salisbury under the Magnu-son-Stevens Act for penalties and sanctions. Following a two-day hearing, a NOAA administrative law judge determined that Van Salisbury violated 16 U.S.C. §§ 1857(l)(K)(i) (prohibiting removal of and damage to protected fishing gear) and 1857(l)(K)(ii) (prohibiting theft of fish from protected fishing gear). The administrative law judge assessed a civil penalty of $152,500. Van Salisbury brought an action in the District Court under 16 U.S.C. § 1858(b) for judicial review; the District Court affirmed the assessment on cross motions for summary judgment.
The sole issue on appeal is whether the assessment was excessive in violation of the Eighth Amendment to the United States Constitution.2
II.
“Our review of a district court’s grant of summary judgment in favor of an administrative agency is de novo. ” Allegheny Def. Project, Inc. v. United States Forest Serv., 423 F.3d 215, 229 (3d Cir.2005). An agency’s determination will not be reversed unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance "with law.” 5 U.S.C. § 706(2)(A).
The Eighth Amendment to the United States Constitution provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST, amend. VIII. A monetary assessment imposed as *312punishment is a “fine” within the meaning of the Excessive Fines Clause. See, e.g., United States v. Bajakajian, 524 U.S. 321, 327-34, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (punitive forfeiture subject to Excessive Fines Clause scrutiny). Fines, like punitive forfeitures, are unconstitutionally excessive if “grossly disproportional to the gravity of a defendant’s offense.” Id. at 334, 118 S.Ct. 2028. An evaluation of proportionality must take into account legislative “judgments about the appropriate punishment for an offense....” Id. at 336, 118 S.Ct. 2028.
Van Salisbury violated the Magnuson-Stevens Act twice; each violation was punishable in August 2004, when the violations occurred, by a civil penalty of $120,000. 16 U.S.C. § 1858(a); Civil Monetary Penalties; Adjustment for Inflation, 65 Fed. Reg. 65260 (2000) (codified at 15 C.F.R. § 6.4). The administrative law judge assessed a penalty of $152,500 for both violations, a substantial amount but well below the statutory maximum. Applying Baja-kajian, the administrative law judge considered that Van Salisbury’s “acts were not accidental or unintentional” and that his prior citation for removing lobster traps rendered him “acutely aware of the proscriptions concerning fishing gear and lobsters.” Supp. App. at 19. In assessing the gravity of Van Salisbury’s offenses, the administrative law judge considered other factors, including economic harm to other lobstermen and documented potential for violent conflicts at sea. We conclude the civil penalty was not excessive; the agency’s assessment was proper.
III.
For the reasons stated above, we will affirm the District Court’s ruling.
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
. Van Salisbury frames his argument as one of due process, but relies on Eighth Amendment jurisprudence, which is applicable.
Van Salisbury also makes a conclusory allegation that the District Court denied due process by granting summary judgment without a hearing. This allegation is unaccompanied by argument and is otherwise without merit. See, e.g., AD/SAT v. Associated Press, 181 F.3d 216, 226 (2d Cir.1999) ("a district court's decision whether to permit oral argument [on motions for summary judgment] rests within its discretion”).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478181/
|
OPINION
PER CURIAM.
Yong Ho Liu, a native and citizen of the People’s Republic of China, entered the United States at or near Miami, Florida, in September 2002, without a valid immigrant visa, and applied for entry as an immigrant. The Government charged him as removable. Liu conceded the charge, but applied for asylum, withholding, and protection under the Convention Against Torture (“CAT”) based on his and his wife’s experiences with China’s population control policies.
The Immigration Judge (“IJ”) denied his applications on the basis of an adverse credibility determination. Liu appealed to the Board of Immigration Appeals (“BIA”), challenging the credibility finding and raising a due process claim (which we will discuss below). The BIA dismissed his appeal. Liu presents a petition for review.
We have jurisdiction over Liu’s petition for review pursuant to 8 U.S.C. § 1252(a). We review the decisions of the IJ and the BIA. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings, including adverse credibility determinations, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). We evaluate whether a credibility determination was “appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony ... in view of the background evidence of country conditions.” Chen, 376 F.3d at 223. We afford an adverse credibility finding substantial deference, so long as the finding is supported by sufficient, cogent reasons. See Butt, 429 F.3d at 434. Because the adverse credibility determination in this case was supported by sufficient, cogent reasons, we will deny the petition for review.
First, there is a significant inconsistency between Liu’s initial account of the basis for his claim for relief from removal in his airport interview and his subsequent accounts of the same incident. We recognize that we have cautioned against putting too much weight on the airport interview, especially when the IJ and BIA are without information about how the interview was conducted. See, e.g., Chen, 376 F.3d at 223-24. However, discrepancies between an airport interview and a petitioner’s testimony that go to the heart of the claim may support an adverse credibility determination. See id.
In this case, at his airport interview, Liu stated that the incidents on which his applications for relief were largely based, namely the forced sterilization of his wife and forced abortion while she was pregnant, occurred two years ago before his arrival in the United States. Then, in his *317credible fear interview, Liu stated that the forced abortion and sterilization took place when his wife was pregnant with their fourth child, about one year before his arrival in the United States. Later, in his application and during his testimony, he claimed that the events occurred in 1994, which would be eight years before his arrival in the United States. We conclude that the variously reported times for such a significant event at the heart of his claim support the adverse credibility determination in this case.
We note that Liu testified that he had been nervous and that he did not understand the questions because he was interviewed in Mandarin at the airport, but his explanation does not change our determination. Liu’s answers in the interview were responsive to the questions asked, and he verified before the IJ that other answers were correct. He also stated during the airport interview that he understood the questions in Mandarin.
Furthermore, during Liu’s testimony, his attorney had to ask him several times to explain what happened to his wife before Liu described the forced abortion in addition to the forced sterilization. Before his attorney asked specifically “what happened to the baby,” Liu only reported his wife’s sterilization.
Also, at best, the documentary evidence, such as the picture purporting to be of Liu’s wife bearing a scar consistent with a sterilization procedure, supports Liu’s claim that his wife was sterilized. However, it does not necessarily support Liu’s claim that his wife was involuntarily sterilized. Moreover, the inconsistencies between the documentary evidence and the testimony support the adverse credibility determination. Specifically, when the Government investigated the documents that Liu submitted in support of his claim, the birth control operation certificate was found to be counterfeit (a separately submitted fine receipt was found to be authentic, but Liu’s payment of an unplanned birth fine alone does not amount to past persecution in this case). The certificate had a counterfeit stamp and bore the name of a doctor never employed by the hospital. (Moreover, the certificate, even if it had been found to be authentic, also only supports a claim that Liu’s wife was sterilized; abortion, another option on the document, was not marked off.)
Liu protests that the IJ and the BIA improperly, and in violation of his right to due process, considered the results of the investigation of his documents. The Federal Rules of Evidence do not apply in immigration proceedings; however, evidence must be probative and used in a fundamentally fair manner to satisfy concerns of due process. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003). In Ezeagwuna, on which Liu relies,1 we were troubled by, and repudiated, “multiple hearsay of the most troubling kind.” See id. at 406. However, the evidence and the circumstances surrounding the presentation of the evidence in this case is distinguishable from the circumstances in Eze-agwuna. First, unlike in Ezeagwuna, see id., the petitioner had ample time to consider the results of the investigation; the report was presented to Liu almost two years in advance of his hearing. Second, unlike in Ezeagwuna, see id. at 406-08, the investigator directly communicated with the local officials who provided information for the report, and the investigator explained how she conducted the inquiry. Through her involvement, she could evaluate the credibility of the immediately pre*318ceding declarants, also unlike the speaker in Ezeagwuna, see id. at 406. In short, under the circumstances of this case, there were sufficient indicia of reliability and trustworthiness such that Liu’s due process rights were not violated by the admission of the report into evidence or the agency’s reliance on it.
In conclusion, there were inconsistencies between Liu’s testimony and his earlier accounts of his and his wife’s experiences in China, inconsistencies between his testimony and the documentary evidence, and evidence that Liu submitted counterfeit documents. Accordingly, there are sufficient, cogent reasons for the adverse credibility finding in this case, and the evidence in the record does not compel a conclusion contrary to that reached by the agency. We therefore will deny the petition for review.
. Although Liu also relies on Joseph v. Attorney Gen. of the United States, we did not address the due process issue in that case. See 421 F.3d 224, 234 n. 18 (3d Cir.2005).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478185/
|
OPINION
PER CURIAM.
Appellant Suresh Badrinauth appeals from the District Court’s April 2, 2008 order, as amended by its April 7, 2008 order, denying in part Defendants’ motion for summary judgment without prejudice. He further appeals from the District Court’s May 7, 2009 order granting Defendants’ renewed motion for summary judgment. We will affirm both rulings.
I.
In 1996, Badrinauth began employment with Nathan & Lewis Company (“NL”). In 2002, NL was acquired by Defendant Metropolitan Life Insurance Company (“MetLife”), and Badrinauth became an employee of MetLife until he was discharged from the company in June 2003. At some point between December 2001 and January 2002, Badrinauth met with Defendant Virgel Aquino1 and a member of MetLife’s human resources department to discuss the transition of employees from NL to MetLife. At that time, Badrinauth was offered, and he accepted, a position as a Cashiering Manager in the BDRC. He reported directly to Robert Costello, who reported to Aquino.
Badrinauth alleges that in or around May 2002, he became aware that MetLife was not paying its employees overtime pay at the required rate. Badrinauth alleges that he raised the issue with Robert Costello on two occasions — in May 2002 and February 2003. He also alleges that he threatened to inform the Department of Labor (“DOL”) about the issue, but that he never reported the alleged violations to the DOL or any other agency. MetLife avers that it became independently aware of the concerns raised by certain employees regarding the calculation of overtime pay and issued supplemental payments to the affected employees.
Around May 2002, Badrinauth, along with his fiancée, opened a personal broker*322age account with MetLife. In or around June 2003, during a routine review of employee accounts, Aquino noticed that Ba-drinauth had a negative balance in the account. Aquino also noticed other irregularities with the account. As a result of Aquino’s findings, MetLife commenced a formal investigation. The investigation revealed that Badrinauth had changed, without authorization, the address on the account from his fiancée’s home address to his own home address. Badrinauth then made a series of withdrawals from the account even though he was required to obtain written approval from his fiancée before doing so. Badrinauth’s fiancée testified at her deposition that she was not aware of all of the withdrawals that Badri-nauth made from the account. MetLife’s investigation also revealed that in February 2003 and May 2003, Badrinauth made several improper securities transactions involving the account.
In June 2003, Badrinauth met with Met-Life investigators as well as Aquino. When asked about the February 2003 and May 2003 transactions, Badrinauth admitted that he made the transactions and that he also circumvented proper procedure for requesting a change of address. Badri-nauth claimed, however, that his fiancée had authorized the withdrawals. At the conclusion of the meeting, Aquino suspended Badrinauth’s employment pending the conclusion of MetLife’s investigation. On June 30, 2003, Aquino terminated Badri-nauth’s employment due to Badrinauth’s ethical and policy violations.
Following his termination, Badrinauth brought a civil action in the District Court against MetLife and Aquino. In his February 2006 amended complaint, Badri-nauth raised state and federal claims of racial discrimination and a hostile work environment as well as a state law claim of wrongful termination against MetLife.2 Badrinauth also asserted a claim of defamation against both MetLife and Aquino. In March 2007, MetLife and Aquino moved for summary judgment on all of Badri-nauth’s claims. Soon thereafter, Badri-nauth withdrew his claims of discrimination and a hostile work environment.
In an April 2008 decision,3 the District Court dismissed Badrinauth’s defamation claim against MetLife and Aquino, but denied, without prejudice, MetLife’s motion for summary judgment on Badrinauth’s wrongful termination claim. In denying MetLife’s motion as to that claim, the District Court instructed MetLife that it could renew its motion after the New Jersey Supreme Court rendered a decision in Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 961 A.2d 1167 (2008), a case which the District Court expected would provide guidance on a legal question at issue in Badrinauth’s case. Following the New Jersey Supreme Court’s ruling in Tantag-lia, MetLife renewed its summary judgment motion seeking dismissal of Badri-nauth’s claim for wrongful termination. In a May 7, 2009 decision, the District Court granted MetLife’s renewed motion for summary judgment, dismissing Badri-nauth’s only remaining claim. Badrinauth filed a timely appeal.4
*323II.
We have jurisdiction over the appeal under 28 U.S.C. § 1291 and exercise plenary review over the District Court’s decision to grant summary judgment. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005). Summary judgment is appropriate when the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(e). A court reviewing a summary judgment motion must evaluate the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Brewer v. Quaker State Oil Ref. Carp., 72 F.3d 326, 330 (3d Cir.1995). However, a party opposing summary judgment “must present more than just ‘bare assertions, conclusory allegations or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.2005).
As an initial matter, we conclude that the District Court appropriately denied, without prejudice, Defendants’ motion for summary judgment on Badrinauth’s claim of wrongful termination. Despite Badrinauth’s claim that the ruling improperly gave MetLife a second “nip at the apple,” the District Court’s ruling did not address the merits of his wrongful termination claim. Instead, as mentioned earlier, the District Court wished to wait until the New Jersey Supreme Court rendered a decision in Tartaglia before reviewing the grounds upon which MetLife sought dismissal of Badrinauth’s claim.
We further conclude that the District Court properly granted MetLife’s renewed motion for summary judgment on Badrinauth’s claim for wrongful termination. As mentioned, in Pierce, the New Jersey Supreme Court recognized a common law cause of action for wrongful termination when an employee is discharged contrary to a clear mandate of public policy. 417 A.2d at 512. Badrinauth claimed that he was wrongfully terminated in retaliation for identifying MetLife’s alleged failure to pay adequate overtime, and informing management that he would report the same to the DOL.
MetLife argued that Badrinauth’s Pierce claim should be dismissed because: (a) he failed to fulfill the reporting requirement set forth in Tartaglia;5 and (b) he failed to establish a causal connection between his alleged reporting of MetLife’s overtime pay practices and his discharge from the company. Upon review of the record, the District Court concluded that there is a genuine issue of fact whether Badrinauth satisfied the reporting requirement set forth in Tartaglia.6 Accordingly, the Court concluded that MetLife was not *324entitled to summary judgment on that basis. However, as to MetLife’s argument that Badrinauth cannot establish a causal connection between his discharge and his alleged reporting of the overtime pay irregularities, the District Court agreed with MetLife that Badrinauth was wholly unable to establish causation.
Contrary to Badrinauth’s assertion, his Pierce claim cannot survive summary judgment simply because he may be able to satisfy the reporting requirement prescribed by Tartaglia. He must also, inter alia, “show that he was in fact discharged in retaliation for taking action in opposition to corporate action which violates a clear mandate of public policy.” See House v. Carter-Wallace, Inc., 232 N.J.Super. 42, 556 A.2d 353, 359 (1989). The District Court correctly determined that Badrinauth was unable to set forth any evidence suggesting he was discharged in retaliation for his alleged reporting of improper overtime pay practices. Conversely, there is overwhelming evidence suggesting that Badrinauth was discharged for violating company policy regarding his brokerage account.
Moreover, as the District Court aptly noted, there is a nearly four-month gap between Badrinauth’s threatened notification to the DOL and his discharge. A claim for wrongful termination under Pierce may be dismissed on grounds that the lack of temporal proximity between the protected activity and the adverse employment action belies a causal connection. Id. Summary judgment was therefore appropriate.
Accordingly, we will affirm the District Court’s rulings.
. During the period of Badrinauth's employment with MetLife, Aquino was the Chief Operating Officer of a Broker Dealer Resource Center ("BDRC”) in New Jersey, which was operated by MetLife.
.Badrinauth raised the claim pursuant to the New Jersey Supreme Court’s ruling in Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 417 A.2d 505, 512 (1980), which recognized a common law cause of action for wrongful discharge when an employee is discharged "contrary to a clear mandate of public policy.”
. As noted earlier, the District Court amended its April 2, 2008 order in an order entered on April 8, 2008. The amended order clarified that Badrinauth previously withdrew his claims alleging racial discrimination and a hostile work environment.
. Badrinauth challenges the District Court's April 2008 order only with respect to the *323Court's decision to deny, without prejudice, MetLife's motion for summary judgment on Badrinauth's wrongful termination claim. Accordingly, he has waived review of the District Court's summary judgment in that same order as to his defamation claim. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993) (an issue is waived unless a party raises it in its opening brief).
. In Tartaglia, the New Jersey Supreme Court determined that it is not necessary for a plaintiff to file an external complaint of a violation of public policy with an outside agency in order to sustain a cause of action for wrongful discharge. 961 A.2d at 1184. Instead, notification to upper management of such a violation may be sufficient. Id.
. MetLife argues that the record entirely contradicts the District Court's determination that Badrinauth may have informed senior management about his concerns. Because we affirm the District Court's ruling on other grounds, we decline to review this aspect of the District Court’s ruling.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478188/
|
OPINION
PER CURIAM.
Willie Shuman filed this pro se petition for a writ of mandamus pursuant to 28 U.S.C. § 1651 seeking an order compelling the District Court to act upon his motion for a default judgment. For the reason that follows, we will deny the petition.
In May 2009, Shuman filed a prisoner civil rights suit under 42 U.S.C. § 1983 in the United States District Court for the District of New Jersey. On July 28, 2009, the District Court ordered the defendant to file a responsive pleading within the time specified by Rule 12 of the Federal Rules of Civil Procedure. In a brief document dated that same day (July 28, 2009), Shuman asked the court to withdraw his complaint because it was “taking too long for this court to protect my rights.” The District Court granted Shuman’s request on August 10, 2009 and dismissed the case.
Despite the fact that his case had been dismissed, Shuman wrote to the court in November 2009 requesting that a default judgment be entered against the defendant because he had failed to file a timely responsive pleading. In January 2010, Shu-man filed this mandamus petition seeking to have this Court order the District Court to enter a default judgment. About a week later, Shuman filed a motion asking the District Court to reopen his case.
Mandamus is a drastic remedy available only in the most extraordinary of circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005). To demonstrate that mandamus is appropriate, a petitioner must establish that he has a “clear and indisputable” right to the issuance of the writ and that he has “no other adequate means” to obtain the relief desired. Madden v. Myers, 102 F.3d *32774, 79 (3d Cir.1996). Here, Shuman has failed to show that he has a “clear and indisputable” right to entry of default judgment for the simple fact that there is no matter pending in which to enter such a judgment. His case was dismissed months ago — at his request. Accordingly, we will deny Shuman’s petition for a writ of mandamus.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478190/
|
OPINION
PER CURIAM.
Zhenguo Huang petitions for review of the Board of Immigration Appeals’ (“BIA”) February 20, 2009 decision denying his motion to reopen his removal proceedings. For the reasons that follow, we will deny the petition.
I.
Huang, a native and citizen of the People’s Republic of China, entered the United States in October 2004. A few days after his arrival, he was placed in removal proceedings for having entered the United States without being admitted or paroled. *328He conceded removability and, in September 2005, applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In support of his application, he argued that he feared returning to China because, in 2003, he got into an altercation with village officials when they came to his house to forcibly abort his mother’s pregnancy. After a hearing on the merits, the Immigration Judge (“IJ”) denied Huang’s application in June 2006. The BIA affirmed on appeal in May 2008, and Huang did not petition this Court to review the BIA’s decision.
In September 2008, more than ninety days after the BIA’s decision, Huang moved the BIA to reopen his removal proceedings based on a new claim for relief.1 He alleged that, in 2007, he began practicing Falun Gong and participating in protests and rallies in support of Falun Gong. He claimed that visitors from China saw him participating in a Falun Gong demonstration in New York City and later informed officials in his home village in China. In the summer of 2008, the Village Committee from his village issued a warning notice to his parents, ordering Huang to stop practicing Falun Gong and return to China to “accept punishment.” (Admin Rec. at 47.)
In February 2009, the BIA denied Huang’s motion to reopen. The BIA, which assumed without deciding that Huang’s motion was timely, held that he had failed to make a prima facie showing that he was entitled to relief. The BIA concluded that the warning notice’s reference to “punishment” was vague, and that the other materials submitted by Huang-failed to “provide any reasonably specific information that this particular respondent would suffer any harm that would rise to the level of persecution or torture upon his repatriation.” (BIA Decision at 2.) The BIA also noted that Huang had failed to demonstrate that the Village Committee had authority to discipline individuals suspected of practicing Falun Gong. Huang now petitions this Court to review this most recent BIA decision.2
II.
In a motion to reopen, an alien must make a prima facie showing that he is entitled to asylum or similar relief. See Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir.2004); Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002). That is, he must “produce objective evidence showing a reasonable likelihood that he can establish [that he is entitled to relief].” Sevoian, 290 F.3d at 175 (internal quotation marks and citation omitted). When the BIA concludes that an alien has failed to make a prima facie showing, we review the BIA’s findings of fact for substantial evidence and the BIA’s ultimate decision to deny the motion to reopen for abuse of discretion. Id. at 174. Under the substantial evidence standard, we must uphold the BIA’s factual findings, including conclusions regarding evidence of persecution, “ ‘unless the evidence not only supports a contrary conclusion, but compels it.’ ” Wong v. Att’y Gen. of U.S., 539 F.3d 225, 230 (3d Cir.2008) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001)). Under the abuse of discretion standard, we must uphold the BIA’s ultimate decision unless it is “ ‘arbitrary, irrational, or contrary to law.’ ” Sevoian, 290 F.3d at 174 (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994)).
*329The BIA did not abuse its discretion in denying Huang’s motion to reopen. The substantial evidence supports the BIA’s finding that the materials submitted in support of the motion failed to “provide any reasonably specific indication that this particular respondent would suffer any harm that would rise to the level of persecution or torture upon his repatriation.” The Village Committee’s warning notice stated merely that Huang would face “punishment” and that he would be arrested if he did not return to China to accept such punishment. Moreover, although Huang’s mother’s affidavit averred that he would be “jailed,” she did not provide any detail indicating that the Chinese government’s alleged future conduct would rise to the level of persecution or torture. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (stating that “the concept of persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional”).
Although the U.S. State Department’s 2007 Profile on China referenced reports that some Falun Gong practitioners have been “confined in reeducation-through-labor camps and high-security psychiatric hospitals for the criminally insane,” (Admin. Rec. at 68), the record here does not suggest, let alone compel, a finding that Huang himself might suffer such a fate. Indeed, as the BIA observed, there is doubt as to whether the Village Committee would even have the authority to punish him. An appendix to the Profile concerning China’s family planning policies described a villagers’ committee as “an autonomous society composed of villagers” that “does not have the right to make decisions on family planning disposition.” (Id. at 119.) Huang did not establish that a villagers’ committee should be viewed differently here.
In light of the above, we will deny Huang’s petition for review.
. Huang's counsel requested that the BIA construe the motion as timely filed, averring that the delay in filing the motion was due to an error made by his assistant.
. We have jurisdiction over Huang's petition pursuant to 8 U.S.C. § 1252(a)(1).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478192/
|
OPINION
PER CURIAM.
Ralph Lysaire, a citizen of Haiti, became a lawful permanent resident of the United States in 1990. In 2004, he was convicted in New Jersey of conspiracy to distribute cocaine. In 2007, the Government charged Lysaire as removable for having committed an aggravated felony because of his drug trafficking crime. Conceding remov-ability, Lysaire sought relief from removal under the Convention Against Torture (“CAT”).
The Immigration Judge (“IJ”) denied Lysaire’s application. Lysaire appealed to the Board of Immigration Appeals (“BIA”) and also moved the BIA to remand the matter to the IJ for consideration of new evidence. The BIA dismissed the appeal, concluding that Lysaire did not establish his CAT claim. However, the BIA granted the motion to remand for the IJ to consider Lysaire’s additional evidence. On remand, the IJ considered reports of country conditions, statements of family members, Lysaire’s medical (including psychiatric) history, his criminal history, and testimony and documentary evidence from an expert witness, Michelle Karshan. The IJ again denied the CAT claim. The BIA dismissed Lysaire’s new appeal, holding that he had not shown that it was more likely than not that he would be tortured in Haiti.
Lysaire presents a petition for review, which the Government moves to dismiss for lack of jurisdiction. Because the basis for Lysaire’s removal is his conviction for an aggravated felony, the Court’s jurisdiction is limited by the REAL ID Act; however, the Court retains jurisdiction over constitutional claims and questions of law. See Pierre v. Attorney Gen. of the United States, 528 F.3d 180, 184 (3d Cir.2008) (en banc) (citing 8 U.S.C. *331§ 1252(a)(2)(C)-(D)); see also Silva-Rengifo v. Attorney Gen. of the United States, 473 F.3d 58, 63 (3d Cir.2007) (citing Kamara v. Attorney Gen. of the United States, 420 F.3d 202, 210-11 (3d Cir.2005), for the proposition that the “jurisdictional grant regarding appeals by aggravated felons extends not just to legal determinations but also to application of law to facts”). As the Government contends, we cannot revisit the factual findings in the record.1 However, through the two main arguments Lysaire details, he presents the legal question whether the BIA erred in concluding that he did not meet his burden to show his eligibility for CAT relief. Accordingly, we have jurisdiction over his petition. See, e.g., Pierre, 528 F.3d at 184.
Deferral of removal under CAT is mandatory if an alien can show that it is more likely than not that he or she will be tortured. See Pierre, 528 F.3d at 186 (citing 8 C.F.R. § 208.17(a)). An act is torture if it is inflicted, by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity, for obtaining information or a confession, for punishment, for intimidation or coercion, or for any reason based on discrimination of any kind. See id. at 189. The imprisonment of criminal deportees in Haiti in objectively deplorable brutal and harsh conditions generally does not constitute torture. See id. However, if authorities place an individual in such conditions in order to cause severe pain and suffering, such an act may rise to the level of torture if the other CAT requirements are met. See id. at 190.
Lysaire was not entitled to CAT relief merely because he is subject to detention as a criminal deportee on his return to Haiti, even though the conditions of detention in Haitian prisons are terrible. See Pierre, 528 F.3d at 189. However, Lysaire also claimed, as he notes on appeal, that he would face torture in prison because of his mental illness. As the IJ noted, Lysaire presented evidence of intermittent psychiatric episodes and psychological problems. (In the record are diagnoses of paranoid schizophrenia and polydrug dependence. See, e.g., R. 546. Although he had been treated with medicine in the past, Lysaire was not taking medicine when he appeared before the IJ. R. 439.) Nonetheless, Ly-saire did not meet the standard for CAT relief under prevailing law.
In addition to describing the conditions in Haiti and Haitian prisons generally, Ly-saire’s expert, Karshan, explained that mentally ill criminal deportees are held without food, water, medical care, or necessary medicines. R. 73, 87. There is no suicide watch system or empathy for those with mental illnesses. R. 73, 87-88. If a mentally ill prisoner brings medicine with him, he is left to self-medicate and is vulnerable to theft of his medicine. R. at 88. These conditions, while objectionable, are like those faced by all detainees; they are not targeted to Lysaire, as a person with a mental illness, in particular. Cf. Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir.2008) (holding that the conditions of the Mexican mental health system, which were created by “officials’ historical gross negligence and misunderstanding of the nature of psychiatric illness,” do not amount to torture).
Karshan also testified that Lysaire will be tortured by prison officials — for example, they will withhold his medication when they realize he needs it, “so they can elicit money from his family in exchange for his *332eventual release.” R. 220. Karshan stated that prison officials would think Lysaire and his family have money because they are from the United States. R. 219. (Most of Lysaire’s family came to the United States; his mother remains in Haiti, but Lysaire says that he is not in touch with her.) However, as the BIA concluded, based on Karshan’s testimony, any mistreatment would not be to discriminate, punish, or intimidate. It would be extortion for pecuniary gain.
Karshan also noted that mental illness is not accepted in Haitian culture and is sometimes attributed to voodoo. R. 90. She stated that other prisoners and prison staff discriminate against the mentally ill because they believe the afflicted are under a curse or a spell. R. 90. Lysaire continues to press that his mental illness and resulting behaviors will make him a target for abuse in detention. However, as the BIA noted, the 2007 Country Report on Human Rights Practice in the record (beginning on page 234), does not mention discrimination against the mentally ill (although it mentions the lack of food, water, sanitation, etc., in the overcrowded prisons). Given the Country Report and Karshan’s lack of testimony about how Ly-saire specifically would singled out for torture, the BIA did not err in concluding that Lysaire did not meet the requirements for CAT relief.
For these reasons, we deny the motion to dismiss and grant the motion to strike the extra-record evidence, and we will deny the petition for review.
. Furthermore, we cannot consider the new evidence that Lysaire seeks to submit. See 8 U.S.C. § 1252(b)(4); see also Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir.2004). Accordingly, we grant the Government's motion to strike the extra-record evidence.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8478194/
|
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Joe Sturkey appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Sturkey v. Ozmint, No. 8:07-cv-01502-MBS, 2009 WL 649569 (D.S.C. Mar. 11, 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/8478196/
|
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Alvarez appeals the district court’s orders granting his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence and denying his motion to proceed in forma pauperis on appeal pursuant to 28 U.S.C. § 1915(c)(3) (2006). We have reviewed the record and find no reversible *339error.* Accordingly, we affirm for the reasons stated by the district court. United States v. Alvarez, No. 1:95-cr-00072-6 (S.D. W. Va. May 11, 2009; June 1, 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.
We note that Alvarez has been permitted to proceed in forma pauperis on appeal, rendering moot his challenge to the district court’s denial of his motion to proceed on appeal in forma pauperis.
|
01-04-2023
|
11-05-2022
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.