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https://www.courtlistener.com/api/rest/v3/opinions/8478689/ | [UNPUBLISHED]
PER CURIAM.
Jeffrey B. Austin appeals the district court’s1 adverse judgment entered after a bench trial in this civil forfeiture action brought by the United States. After careful review, see United States v. $84,615 in U.S. Currency, 379 F.3d 496, 501 (8th Cir. 2004) (standard of review), we find no basis for reversal. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honoi'able Ortrie D. Smith, United States Disti'ict Judge for the Western District of Missouri. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478691/ | MEMORANDUM **
Juan Carlos Chavez-Anguiano appeals from his guilty-plea conviction and 51-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Chavez-Anguiano’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal. Accordingly, we affirm the district court’s judgment.
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)).
Counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED but REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478693/ | PER CURIAM:
Sara Valdez appeals from the district court’s grant of summary judgment in favor of Staples, Inc. in her retaliation claim, filed pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 628(d).1 We affirm.
Valdez, a 53-year-old woman, was terminated from her position as a part-time cashier at the Staples store in Rome, Georgia on April 18, 2006. She alleges that during a meeting with Tara Mayes, her store manager, Mayes called Valdez “nothing but an old bag”. Valdez contacted Bob Noon from Staples’s human resources department to report that Mayes had been loud and disruptive and had called her an “old bag.” Valdez admits that she did not expressly raise the issue of age discrimination in this conversation. Rebecca Ward, a colleague of Noon’s from human resources, was sent to the Rome store to investigate Valdez’s complaints about Mayes. Ward concluded that all of Valdez’s claims about Mayes were unsubstantiated and that Valdez’s behavior since the meeting had been disruptive and unprofessional. As a result, Ward recommended that Valdez be counseled for unprofessional behavior in the workplace.
Sometime thereafter, one of Valdez’s coworkers informed Mayes that she had seen Valdez filling out reward card applications using the phone book, in violation of Staples’s policies. When Mayes asked Valdez if she had, in fact, filled out applications in this manner without customer consent, Valdez admitted that she had done so, but asserted that she was only doing what Mayes had previously instructed her to do. Mayes contacted Ward who, after another investigation, determined that Valdez should be terminated for falsifying documents in violation of Staples’s ethics policy. Valdez was then terminated by Ward via telephone with Mayes and her assistant manager present.
We find no reversible error in the district court’s conclusion that Valdez failed to present sufficient evidence to create a genuine issue of material fact as to whether she was terminated because of her complaint regarding Mayes. After Valdez complained about Mayes’s “old bag” comment, Ward came to the Rome store and conducted an investigation, finding no merit to Valdez’s complaint. Although Valdez may be dissatisfied with the results of Ward’s investigation into Mayes’s comment, the evidence shows that an independent investigation into her claims was completed.
*973Further, after this investigation was completed, an independent report was made by one of Valdez’s coworkers that she falsified documents in violation of company policies, a claim which Valdez does not dispute. Ward conducted another investigation into Valdez’s claim that she had been instructed by Mayes to falsify documents and again found no merit in this claim Valdez’s intervening act of misconduct and the intervening investigation by the corporate office were sufficient to erode any causal connection created by the close temporal proximity between Mayes’ comment and the termination.
AFFIRMED.
. Valdez also brought a claim for age discrimination but later dismissed it voluntarily, with leave of the court. Accordingly, that claim is not presently before us. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478698/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves for summary affirmance of the United States Court of Appeals for Veterans Claims’ judgment in Sabbia v. Shinseki, 08-3638, 2009 WL 3416049 (Vet.App.2009), that dismissed Dominic Sabbia’s appeal to that court for lack of jurisdiction. We consider whether we have jurisdiction over Sabbia’s appeal to this court.
Sabbia filed a notice of appeal with the Court of Appeals for Veterans Claims, asserting that he was seeking review of a *76November 3, 2008 Board of Veterans’ Appeals decision. The Court of Appeals for Veterans Claims held that the Board had not issued a November 3, 2008 decision and that therefore it lacked jurisdiction over Sabbia’s appeal. 38 U.S.C. § 7266(a). 38 U.S.C. § 7266(a). Although that court had not entered judgment by the date that the court received Sabbia’s notice of appeal seeking review by this court, it treated the document as filed on the date that it entered judgment, i.e., December 1, 2009.
Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from decisions of the Court of Appeals for Veterans Claims. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). This court “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
The issue in this case is whether the Board of Veterans’ Appeals had issued any decision. That issue is a factual issue beyond this court’s jurisdiction. Thus, this appeal must be dismissed.
Accordingly,
IT IS ORDERED THAT:
(1) This appeal is dismissed for lack of jurisdiction.
(2) The Secretary’s motion for summary affirmance is denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478700/ | ORDER
ON MOTION
Upon consideration of the consent motion to voluntarily dismiss this appeal from Nilssen v. Universal Lighting, no. 3:04-CV-0080, 2006 WL 38909 (M.D.Tenn. 2006),
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/8478701/ | JUDGMENT
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. R. 34(j). It is
ORDERED and ADJUDGED that the judgment of the District Court be affirmed.
Responding to reports of gunshots, two police officers came upon Everette Hayes, naked, wielding a nine-millimeter Beretta pistol. Hayes was subsequently convicted of being a felon in possession of a firearm. Hayes challenged his conviction, arguing that his trial counsel was ineffective in failing to introduce cell phone records to corroborate his claim that he was carrying a cell phone rather than a gun during his encounter with the police. Hayes’ argument is unpersuasive: Two officers saw Hayes holding the gun, one officer testified to having been shot at by Hayes, and the police later recovered a gun from the scene. In light of that evidence, there was no “reasonable probability” that “the result of the proceeding would have been different” if Hayes’ counsel had sought to introduce his cell phone records. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
*106Pursuant 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. R. 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478704/ | JUDGMENT
PER CURIAM.
This cause was considered on the record from the United States District Court for the District of Columbia, and was briefed and argued by counsel. It is
ORDERED and ADJUDGED that the judgment of the District Court be vacated, and that the case be remanded for dismissal with leave to amend.
Frederick Plummer appeals from the district court’s dismissal of his pro se complaint for lack of jurisdiction. His complaint alleged that while he was incarcerated at the District of Columbia Jail, his cellmate threatened to kill him and spit in his face, and that Plummer feared that he had been infected with a disease. He claimed that the Department of Corrections negligently placed the “mentally unstable” prisoner in his cell and refused to provide medical attention until two days after the incident.
The defendants — the Mayor of the District of Columbia and the D.C. Department of Corrections — moved for dismissal, or, in the alternative, for summary judgment. The motion presented several grounds: Plummer had not exhausted his administrative remedies, he had not effected proper service, and he had not sued the proper parties. The district court dismissed the complaint, sua sponte, for lack of subject matter jurisdiction. The court’s memorandum opinion indicated that the complaint asserted “only a negligence claim, which arises under common law, not under federal law.” The dismissal was without prejudice, but was also without leave to amend. We appointed amicus curiae to present arguments on Plummer’s behalf.
Amicus argues that the complaint implicitly invoked the Eighth Amendment and thus the court’s federal question jurisdiction. But, as Amicus concedes, the complaint fails to allege at least one element of an Eighth Amendment claim: that the violation came as a result of a municipal policy or custom. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because the complaint does not state a claim on which relief can be granted, the district court was required to dismiss it under the Prison Litigation Reform Act, 28 U.S.C. § 1915A(b)(1), regardless of whether it raised the Eighth Amendment.
The only question is whether the district court should have given Plummer an opportunity to amend his complaint. Circuit precedent holds that a sua sponte dismissal of a complaint for failure to state a claim without leave to amend is error unless “the claimant cannot possibly win relief.” Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371, 377 (D.C.Cir.2000) (iquoting Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C.Cir.1998)). “This will be the case either when the facts alleged affirmatively preclude relief, or because, even though plaintiff makes clear that he has facts to add to his complaint, he would not have a claim upon which relief could be granted even with those facts.” Id. (internal quotations omitted). Plummer’s prospects may be dim, but his case does not fall within either category. While the allegations are incomplete, they do not contradict his Eighth Amendment theory, and Plummer has not yet had a chance to make clear what allegations he would add to his complaint. We therefore *108vacate the district court’s order dismissing the case without prejudice and remand for the district court to dismiss with leave to amend.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478705/ | OPINION
PER CURIAM.
Sixto Lizardo, a federal prisoner proceeding pro se, appeals an order of the United States District Court for the Eastern District of Pennsylvania dismissing his petition for a writ of audita querela. We will affirm the District Court’s order.
In 2000, after a jury trial, Lizardo was convicted of one count of conspiracy and three counts of distribution of cocaine. He was sentenced to 240 months in prison. We affirmed Lizardo’s conviction in 2002. See C.A. No. 01-2810. In 2005, Lizardo sought relief in District Court under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), asserting that the court, rather than a jury, determined the quantity of drugs involved in his crime. The District Court denied relief and we affirmed. See C.A. No. 05-4505. In 2007, Lizardo filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). We affirmed the District Court’s denial of relief. See C.A. No. 07-4795.
Lizardo then filed a petition for a writ of audita querela in District Court. Lizardo again asserted that his sentence was improperly imposed based on a drug amount determined by the court, not the jury. Lizardo stated that he is time-barred from *251filing a motion pursuant to 28 U.S.C. § 2255 and that a writ of audita querela is his only available avenue of relief. Noting our decision in Massey v. United States, 581 F.3d 172 (3d Cir.2009) (per curiam), the District Court dismissed the petition. This appeal followed.
In Massey, a federal prisoner filed a petition for a writ of audita querela seeking to challenge his sentence under Booker. The prisoner argued that the sentencing court might have imposed a shorter sentence if the court had not viewed the sentencing guidelines as mandatory. We held that the prisoner could not seek relief through a petition for a writ of audita querela because his claim was cognizable under § 2255. Massey, 581 F.3d at 174. We explained that the prisoner could not resort to a writ of audita querela based on his inability to satisfy the requirements for filing a § 2255 motion under the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”). Id. The same is true here. Lizardo’s claim is cognizable under § 2255. Lizardo may not seek relief through a petition for a writ of audita querela based on his inability to satisfy AEDPA’s gatekeeping requirements.
Accordingly, because this appeal does not present a substantial question, we will affirm the District Court’s order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478712/ | OPINION
PER CURIAM.
Thomas E. Noble indicates that he has filed complaints in the United States District Court for the Eastern District of Pennsylvania, docketed at 04-cv-05997 and 09-cv-05857, “and Many Other Civ. Nos. at the E.D. Pa. and at Other U.S. District Courts Under the 3rd Circuit’s Jurisdiction.” Noble has filed a petition for a writ of mandamus, asking this Court to transfer “records of E.D. Pa. No. 09-5857 and ALL related past cases, to either the Supreme Court of the United States, or to the Judicial Panel of Multi-District Litigation, for REASSIGNMENT to an impartial district court....” For the reasons that follow, we will deny the petition.
Mandamus is a drastic remedy available only in the most extraordinary circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). To obtain a writ of mandamus, a petitioner must satisfy three conditions. First, he must “have no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). Second, he must show that his right to the writ is “clear and indisputable.” Id. Third, the reviewing court must conclude that the writ is “appropriate under the circumstances.” Id.
Noble’s mandamus petition is essentially a request to change venue. The express terms in 28 U.S.C. § 1404(a) provide that a federal district court may transfer civil actions from one federal district court to another. While the Supreme Court has found that a federal court of appeals may effect a transfer by direct order where “unusual circumstances” require “extraordinary action,” see Koehnng Co. v. Hyde Constr. Co., 382 U.S. 362, 364-65, 86 S.Ct. 522, 15 L.Ed.2d 416 (1966), no such unusual circumstances appear based on Noble’s petition.1 We note that Noble’s case pending at 09-cv-05857 has been assigned to a judge outside of the Eastern District. See E.D. Pa. Civ. No. 09-cv-05857, docket no. 4 (certified copy of order *257designating and assigning The Honorable Mary Little Cooper of the District of New Jersey). To the extent that Noble may seek to disqualify Judge Cooper based on alleged bias and prejudice, the conclusory allegations of his petition do not establish that a reasonable person, with knowledge of all the facts, would conclude that the District Judge’s impartiality might reasonably be questioned. See 28 U.S.C. § 455(a); In re Kensington Int’l Ltd,., 353 F.3d 211, 220 (3d Cir.2003).2
Accordingly, we determine that Noble has not met his burden of showing that he has no other adequate means to obtain the relief he seeks or that his right to issuance of the writ is “clear and indisputable.” As a result, we shall deny his mandamus petition.3
. We further note that this court would not have jurisdiction to “transfer" cases that have already been closed.
. To the extent Noble is attempting to have this Court enforce an order allegedly entered by Judge Weiner in 2005, we deny his request. It appears that Noble is referring to an order entered at E.D. Civ. No. 04-cv-05997 at docket no. 6. However, that document does not order the Clerk to transfer his case out of the circuit; instead, it simply reflects Judge Weiner’s understanding that the “matter is currently in the process of being transferred to another Circuit.” It appears that instead, the matter was assigned to Judge Cooper. Noble did not appeal from the dismissal of that case, and he may not use mandamus as a substitute for an appeal. In re Briscoe, 448 F.3d 201, 212-13 (3d Cir.2006). In any event, the order entered in 04-cv-05997 would have no application to other cases filed by Noble.
. Noble’s motion for appointment of counsel is denied. Noble's motion to dismiss the Veterans Administration as a party to the appeal is denied as moot. Noble’s motion to strike his motion for emergency preliminary relief is denied as stated — the motion will remain on the docket — however, the motion is granted to the extent that no action will be taken on the motion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478714/ | OPINION OF THE COURT
PER CURIAM.
Abdul Brown appeals pro se from the District Court’s entry of summary judgment in favor of the defendants and its denial of his motion for relief from that judgment. For the following reasons, we will dismiss this appeal in part, reverse in part, and remand for further proceedings.
I.
Brown is a Pennsylvania state prisoner who alleges that he suffers from bi-polar disorder. In 2007, he filed suit pro se under 42 U.S.C. § 1983 against numerous Pennsylvania Department of Corrections personnel alleging multiple violations of his constitutional rights. Among other things, Brown alleges that defendants placed him in a restrictive Special Management Unit (“SMU”) without due process or a psychological screening and that such placement is exacerbating his mental illness, which defendants otherwise have failed to treat.
Brown also alleges that defendants have used excessive force and otherwise subjected him to cruel and unusual punish*259ment. For example, he alleges one incident in which certain defendants tasered and maced him while he was held in a restraint chair, which caused him to vomit and defecate on himself, then kept him in the chair for approximately eight hours with no bathroom break. Part of this incident was videotaped, and defendants apparently concede the tasering, macing and eight hours of continuous restraint, but Brown also alleges that defendants punched and kicked him while the video recorder was turned off.
Brown further alleges that defendants denied him food and spit tobacco in his food in retaliation for previous lawsuits, then, in retaliation for his grievance about the alleged tobacco spitting incident, spread a false rumor that he is a “snitch,” thus subjecting him to threats and assaults by other inmates. Brown sought declaratory, injunctive and monetary relief.
Defendants answered the complaint and later filed a motion for partial summary judgment, which the District Court denied.1 Following discovery, which Brown contends was inadequate, defendants filed a motion for summary judgment in full. Brown’s response initially was due to be filed by September 5, 2008. On July 30, 2008, Brown filed a motion to extend that deadline because, inter alia, he had been transferred from his state facility to a federal facility without his legal materials. The District Court granted his motion and extended the deadline for a response until November 5, 2008.
After that deadline passed, Brown filed a motion for a further extension, alleging now that he had been transferred from the federal facility back to his state facility without the legal materials that had been forwarded to him at the federal facility. The District Court granted that motion by order entered December 31, 2008, and extended the response deadline until January 30, 2009. In its order, the District Court cautioned that, “[i]f the response is not filed by January 30, 2009 a decision will be made without the benefit of a response by Plaintiff.” (Dist. Ct. Docket No. 75 at 2.)
On January 21, 2009, nine days before his response was due, Brown filed (1) an affidavit pursuant to Fed.R.Civ.P. 56(f) seeking additional discovery before a ruling on summary judgment, and (2) a motion for the appointment of counsel.2 In the affidavit, Brown asserted that he could support his claims with affidavits by fellow prisoners who had since been transferred out of the SMU, but that DOC policy forbade him from corresponding with them. (Dist. Ct. Docket No. 76.) He also asserted that defendants had refused to produce his psychological evaluations and information regarding his transfer to SMU (in particular, the petition setting forth the reasons for the transfer). (Id.)
The District Court never addressed Brown’s Rule 56(f) affidavit, but it ordered defendants to respond to the counsel motion. Defendants acknowledged that they had refused, on confidentiality grounds, to produce Brown’s own psychiatric evaluations and certain information regarding his transfer to SMU. They agreed, however, to produce a redacted version of the SMU transfer petition. The record does not disclose whether they ever did so. The District Court then denied Brown’s motion *260for counsel because it did not believe the production of any additional documents necessary. The District Court also wrote that, given the document defendants already had produced, Brown “will be able to adequately respond to any summary judgment motion.” (Feb. 9, 2009 “text-only” order on docket.) One month later, however, without addressing Brown’s other requests in his Rule 56(f) affidavit or receiving a response, the District Court granted defendants’ motion for summary judgment by memorandum order and judgment entered March 10, 2009.3
Any appeal was due to be filed by April 9, 2009, see Fed. R.App. P. 4(a)(1)(A), but Brown did not file one. On May 12, 2009, he filed a “motion for status of case” requesting a copy of the docket entries. On May 19, 2009, he filed a “brief in opposition nunc pro tunc” to defendants’ motion for summary judgment.4 The District Court sent Brown a copy of the docket entries that same day. Two days later, Brown filed both a motion requesting that the Court send him a copy of its summary judgment order and a motion that he characterized as a Fed.R.Civ.P. 59(e) motion to alter or amend the judgment. In these motions, Brown asserted that he had never received a copy of the summary judgment order and could prove as much through the prison’s legal mail log. He also argued that he had not filed his brief earlier because he believed that his Rule 56(f) affidavit put summary judgment “on hold.” The only substantive relief he requested was that the District Court consider his nunc pro tunc opposition to defendants’ motion for summary judgment. By “text-only” order entered on the docket on May 23, 2009 the District Court denied Brown’s motion for relief from the judgment. Brown appeals.5
II.
A. Appellate Jurisdiction
In his notice of appeal, Brown purports to appeal from both the District Court’s March 10 judgment and its May 23 order denying his motion for relief from that judgment. Brown, however, did not timely appeal from the March 10 judgment, so we lack jurisdiction to review it. See Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Accordingly, we will dismiss his appeal to the extent he seeks review of that judgment.6
*261The parties dispute whether we have jurisdiction to review the District Court’s May 23 order denying Brown’s putative Rule 59(e) motion. Defendants argue that we lack jurisdiction because Fed. R.App. P. 4(a)(4) permits an appeal only from the denial of a timely Rule 59(e) motion and that Brown’s Rule 59(e) motion was untimely because he did not file it within ten days of the District Court’s judgment.7 Defendants cite no authority for that contention. We need not address it, however, because we conclude that Brown’s motion, despite its caption, is properly construed as one under Fed. R.Civ.P. 60(b)(1)
We have repeatedly held that “the function of the motion, and not the caption, dictates which Rule is applicable.” United States v. Fiorelli, 337 F.3d 282, 287-88 (3d Cir.2003) (citing, inter alia, Smith v. Evans, 853 F.2d 155, 158 (3d Cir.1988)). A Rule 59(e) motion is a “ ‘device to relitigate the original issue’ decided by the District Court, and used to allege legal error.” Id. at 288 (citation omitted). A Rule 60(b)(1) motion, by contrast, permits relief from a judgment on the grounds of “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1).
In this case, Brown’s putative Rule 59(e) motion did not seek to relitigate any issue already decided by the District Court. Instead, Brown argued that the District Court should set aside its entry of summary judgment and consider his opposition brief and exhibits nunc pro tunc because he had a good excuse for not having filed them earlier. See White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445, 451-52,102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (holding that motion requiring an inquiry that is “separate from the decision on the merits” is not a Rule 59(e) motion). Brown did raise certain arguments that might be construed as legal issues properly raised under Rule 59(e), but the only substantive relief he requested was for the District Court to open the judgment and consider the nunc pro tunc opposition brief and exhibits that he filed after it had been entered. See First Nat’l Life Ins. Co. v. California Pac. Life Ins. Co., 876 F.2d 877, 882 (11th Cir.1989) (treating motion asking District Court to set aside summary judgment and consider subsequently filed affidavits as a Rule 60(b)(1) motion). Thus, as Brown now argues on appeal, his motion is properly characterized as one under Rule 60(b)(1). That motion was timely, see Fed.R.Civ.P. 60(c)(1), and Brown filed a timely notice of appeal from the District Court’s order denying that motion. Accordingly, we have jurisdiction to review it under 28 U.S.C. § 1291.
B. The Denial of Brown’s Rule 60(b)(1) Motion
We review the District Court’s denial of Brown’s Rule 60(b)(1) motion for abuse of discretion. See In re Cendant Corp. PRIDES Litig., 234 F.3d 166, 170 (3d Cir.2000). Under this standard, “ ‘we will not interfere with the District Court’s exercise of its discretion unless there is a definite and firm conviction that the court ... committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.’ ” Id. We believe that the District Court committed such an error here.
The District Court did not expressly treat Brown’s motion as one under Rule 60(b)(1), but it addressed the substance of his request and its analysis touched on the relevant considerations. “The test for ‘ex*262cusable neglect’ is equitable, and requires us to weigh the ‘totality of the circumstances.’ In particular, we consider [1] the danger of prejudice to the other party; [2] the length of the delay and its potential impact on judicial proceedings; [3] the reason for the delay — and whether it was within the movant’s control; and [4] whether the movant acted in good faith.” Nara v. Frank, 488 F.3d 187, 193-94 (3d Cir.2007) (citations omitted). In this case, Brown’s delay was not particularly long under the circumstances, and there is no indication that he failed to file a brief in bad faith or that defendants would be prejudiced by allowing him to file it now.
In addition, Brown gave a reasonable excuse for not filing his brief earlier than he did. Brown argued in his Rule 60(b)(1) motion that he had not filed his brief earlier because he had filed a Rule 56(f) affidavit and believed that the effect of that affidavit was to “put on hold granting summary judgement.” (Dist. Ct. Docket No. 90.) Brown filed his Rule 56(f) affidavit before his response deadline had passed. In his affidavit, he claimed to still require: (1) affidavits from prisoner witnesses with whom DOC policy prevented him from corresponding; (2) his psychiatric records; (3) documents relating to his transfer to SMU; and (4) the opportunity to take depositions. That filing gave the District Court three options: either to deny the motion for summary judgment, grant a continuance, or “issue any other just order.” Fed.R.Civ.P. 56(f). Thus, Brown’s explanation that he was awaiting a ruling on his Rule 56(f) affidavit before filing a brief is reasonable.8
None of the District Court’s reasons for rejecting Brown’s explanation withstands scrutiny. First, the District Court wrote that it had granted Brown two extensions to respond to defendants’ motion but that “[n]o response was ever received[.]” (May 23, 2009 “text-only” order on docket.) The District Court, however, never acknowledged Brown’s affidavit, which Rule 56(f) allows a party to file in opposition to a motion for summary judgment.
Second, the District Court wrote that Brown had had eight months to file a response and “blatantly disregarded numerous court orders to do so.” (Id.) Brown, however, did not “blatantly disregard numerous court orders.” At most, he disregarded one, and the District Court excused it. The only deadline that Brown let pass without a filing was the November 5, 2008 response deadline. Brown later filed a motion for relief from that deadline on the basis of a prison transfer, and the District Court granted the motion and extended the time for a response to January 30, 2009. Brown filed his Rule 56(f) affidavit nine days before that deadline.
Third, the District Court wrote that Brown “was advised that if he did not *263respond [by January 30, 2009] the [summary judgment] motion would be ruled on.” (Id.) The District Court is correct that it so advised Brown in its December 30, 2008 order granting him a final extension. Brown, however, filed his Rule 56(f) affidavit before that deadline, and his position that he was awaiting a ruling is reasonable. Moreover, the District Court later stated in ruling on Brown’s final counsel motion that Brown “will be able to adequately respond to any summary judgment motion,” thus appearing to contemplate a response after the January 30 deadline. (Feb. 9, 2009 “text-only” order on docket.) In addition, the defendants agreed to produce additional discovery after that deadline had passed. (Dist. Ct. Docket No. 80.) For these reasons too, Brown might reasonably have believed that summary judgment was “on hold.”
Finally, the District Court wrote that Brown had provided “no explanation for the long delay” in filing his brief. (May 23, 2009 “text-only” order on docket.) But Brown had: he had alleged two prison transfers (explanations the District Court previously accepted), an inability to obtain discovery from the defendants, and a period of waiting for a ruling on his Rule 56(f) affidavit followed by lack of notice of the District Court’s ruling for over two months.
For these reasons, we conclude that the District Court abused its discretion in denying Brown’s motion for relief from its entry of summary judgment. Accordingly, we will reverse the District Court’s order of May 23, 2009, and remand. On remand, the District Court is directed to grant Brown’s Rule 60(b) motion, consider his opposition brief, and conduct such other proceedings as may be required. We acknowledge the difficult task that the District Court has faced in managing this pro se litigation.9 In light of our ruling, the District Court may wish to revisit Brown’s request for the appointment of counsel.
. This order was entered by the District Court, but all other orders addressed herein were entered by a Magistrate Judge, who conducted proceedings with the parties' consent pursuant to 28 U.S.C. § 636(c). We will refer to the Magistrate Judge as the District Court throughout the remainder of this opinion.
. This was the last of multiple motions for the appointment of counsel that Brown filed. The District Court denied each of them without prejudice to Brown's ability to reassert later if future circumstances so warranted.
. As explained below, we do not presently have jurisdiction to review the District Court’s entry of summary judgment, and we thus express no opinion on the merits of that ruling. We note, however, that the ruling rests in part on Brown's failure to submit certain evidence in support of his claims. Our purely informational review suggests that Brown may have been able to do so if he were represented by counsel or if the District Court had allowed certain of the discovery he sought.
. Brown's brief raised legal arguments and made an evidentiary showing by attaching five affidavits from fellow prisoners as well as other evidence. Brown also argued, as he had asserted in his Rule 56(f) affidavit, that he had been unable to obtain sufficient discoveiy to respond to defendants’ motion.
. The May 23 order also denied a motion that Brown had filed seeking leave to correspond with other prisoners. Brown raises no issue regarding that ruling on appeal.
. Brown's allegation that he lacked notice of the judgment potentially states a basis for the District Court to reopen his time to appeal under Fed. R.App. P. 4(a)(6). Brown, however, did not seek that relief or even use the word "appeal” in any of his post-judgment motions, and it is clear that he sought only to proceed in the District Court. Thus, there is no basis to remand for the District Court to treat any of Brown's motions as a motion under Rule 4(a)(6). See United States v. Feu-ver, 236 F.3d 725, 728-29 (D.C.Cir.2001).
. Effective December 1, 2009, Rule 59(e) has been amended to permit the filing of a motion within 28 days after the entry of judgment.
. The District Court never addressed Brown's Rule 56(f) affidavit. The District Court later denied Brown’s subsequent request for counsel on the grounds that Brown's psychiatric records and the SMU transfer documents are irrelevant to his claims, but it did not address the remainder of the discovery Brown sought. The District Court's failure to address Brown’s Rule 56(f) affidavit is not directly before this Court for review, as it would be if Brown had timely appealed from the summary judgment ruling itself. We note, however, that there is ample authority in this Circuit that Rule 56(f) relief should be granted " ‘almost as a matter of course’ ” when relevant information is in the hands of the opposing party. E.g., San Filippo v. Bongiovanni, 30 F.3d 424, 432 (3d Cir.1994) (citation omitted). See also St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1314 (3d Cir.1994) (holding that District Court abused its discretion in entering summary judgment while Rule 56(0 motion still pending). Thus, regardless of the merits of Brown's Rule 56(0 affidavit, it would be difficult to characterize his belief that it put summary judgment “on hold” as unreasonable.
. Indeed, we recognize that, when the pro se litigant is incarcerated, particular problems may arise, as they have here, with transfers and other events that challenge both the litigants and the court in trying to maintain an appropriate schedule. Our decision in this case is based on the specific facts before us and does not imply that a district court is without broad discretion in managing its docket, including in deciding on how and when best to address a Rule 56(f) affidavit. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478717/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Plaintiff Alan Fromm was terminated from his employment as a court security officer following his medical disqualification for a hearing impairment in his right ear. Fromm appeals the District Court’s grant of summary judgment in favor of all defendants on his claims under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-12213, the Rehabilitation Act, 29 U.S.C. § 794, the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 955(a), and the procedural due process clause of the Fifth Amendment. For the reasons stated herein, we will affirm in part, reverse in part, and remand for further proceedings.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Alan Fromm was employed by MVM, Inc. (“MVM”) from February 1998 through October 2002, as a court security officer (“CSO”) at the federal courthouse in Williamsport, Pennsylvania. MVM provid*266ed security services for federal courts in the Third Circuit through its contract with the United States Marshals Service (“USMS”). The contract sets forth medical standards for individual CSOs and gives USMS “the right at all times to determine the suitability of any Contractor employee to serve as a CSO.” (App.107.) Under the contract, “[a]ny decision to continue a Contractor employee in a CSO capacity will be made solely by [USMS].” (Id.) Fromm, who has suffered from reduced hearing in his right ear, performed his duties as a CSO without the assistance of a hearing aid.
In 2002, USMS instituted a new medical requirement that CSOs had to possess certain hearing capacities without the use of a hearing aid. The new medical standards were developed by Dr. Richard Miller, Director of Law Enforcement Medical Programs, at the request of the Judicial Conference of the United States. Dr. Miller identified twenty-nine CSO job functions, six of which related to hearing: comprehending speech during face to face conversations, over the telephone, over the radio, and outside the range of sight; heai'ing sounds that require investigation; and determining the location of sound. According to Dr. Miller, each of the hearing functions must be met without the use of a hearing aid. However, if a CSO passes the hearing tests unaided, he may be permitted to wear a hearing aid on the job. In 2001, the Judicial Conference and USMS reviewed and adopted the Miller Report as the new medical standards for CSOs (the “CSO hearing standards”).
Pursuant to the CSO hearing standards, a government physician initially detez-mined on April 30, 2002, that Fromm was no longer medically qualified to serve as a CSO based on the reduced hearing in his right ear. Fromm took a second hearing test, and his results were reviewed by a new government physician on October 3, 2002, who also determined that Fromm was medically disqualified under the new CSO hearing standards. After USMS notified MVM of its disqualification determination, MVM terminated Fromm on October 17, 2002.
Under the terms of MVM’s contract with USMS, a CSO removed for failure to meet medical requirements is afforded no notice and hearing. Nonetheless, Fromm sent a letter requesting review of his termination to Steve Gottrich, MVM’s Senior Operations Coordinator, on October 23, 2002. Additionally, in November 2002, Fromm obtained a hearing aid and sent MVM the results of a hearing test that he took with his hearing aid. Fromm argued that the new test results demonstrated he could meet the hearing functions required of a CSO. MVM submitted the results of this test to the Marshals Service on December 3, 2002, and z*equested that the agency reconsider its decision to disqualify Fromm from working as a CSO. Gottrich contacted USMS by telephone and was informed that Fromm’s medical disqualification would not be reconsidered.
Fromm filed an administrative complaint against MVM with the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”) on November 19, 2002, alleging violations of the ADA and the PHRA.1 In August 2003, Fromm wrote to the EEOC seeking to amend his complaint to include the Marshals Service, the United States Department of Justice, and the United States Attorney Genei’al as respondents. The EEOC l-eplied that it lacked authoi'ity to investigate discrimination by *267federal entities and enclosed a form explaining the administrative procedures for such a complaint, which involved filing a complaint with the Equal Employment Office (“EEO”) for the appropriate federal defendant. Fromm never filed an administrative complaint under the Rehabilitation Act with the USMS’s EEO.
In June 2004, Fromm filed suit in the United States District Court for the Middle District of Pennsylvania against MVM, as well as the Director of USMS and the Attorney General of the United States (collectively the “Federal Defendants”), alleging his termination violated the ADA, the Rehabilitation Act, and the PHRA, as well as the substantive and procedural due process protections of the Fifth Amendment. Fromm v. MVM, Inc., 2006 WL 133540, at *1 (M.D.Pa. Jan.10, 2006). The District Court dismissed a number of the claims, but permitted Fromm to proceed to the merits against MVM under the ADA, Rehabilitation Act, and PHRA and against the Federal Defendants under the Rehabilitation Act and procedural due process. Id. These claims were all limited to his theory that he was discriminated against for a “regarded as” disability.2 Id.
Following discovery, MVM and the Federal Defendants each filed a motion for summary judgment on the remaining claims. Both motions were granted. The District Court reasoned that the Rehabilitation Act claims against all defendants failed because Fromm had failed to present sufficient evidence that he could perform the essential functions of the job, where one of those essential functions was unaided hearing in accordance with the CSO hearing standards. Id. at *4-6. Because the remaining disability claims against MVM under the ADA and PHRA were premised on USMS’s decision to disqualify Fromm, those claims were dismissed as well on the theory that MVM could not be liable for complying with USMS requirements if those requirements were not themselves unlawful. Id. at *6. Finally, the District Court held that the procedural due process claim failed because USMS provided Fromm sufficient process through the consideration of additional hearing tests. Id. at *7.
This timely appeal followed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.
In reviewing a district court’s grant of summary judgment, we apply the same test the district court applied. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir.2001). Summary judgment is proper when, viewing the evidence in the light most favorable to the non-moving party and drawing all inferences in that party’s favor, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 232; Fed.R.Civ.P. 56(c).
III.
On appeal, Fromm raises three principal arguments: (1) that he exhausted all administrative remedies known to him and *268should be excused from any further exhaustion requirements; (2) that his inability to appeal the basis for his termination deprived him of procedural due process; and (3) that letters submitted on his behalf by court officials demonstrating he had successfully performed his CSO position created a genuine issue of material fact as to whether unaided hearing was an “essential function” of the job. We will address these arguments in turn.
A. Administrative Exhaustion
A party filing a claim under § 501 of the Rehabilitation Act must first exhaust the administrative remedies established under Title VII of the Civil Rights Act of 1964. See 29 U.S.C. § 794a(a)(l) (incorporating Title VII “remedies, procedures, and rights” into the Rehabilitation Act). An individual who believes he has suffered a violation of the Rehabilitation Act must contact an agency’s EEO counselor within forty-five days of the complained of incident. 29 C.F.R. § 1614.105(a)(1). This contact sets into motion a chain of events which will lead to either an informal resolution of the claim or a dismissal by the EEO, at which point an employee may contact the EEOC and seek the right to sue in district court. 29 C.F.R. §§ 1614.106-.108.
Fromm does not contest that he has failed to avail himself of these required steps. Rather, he seems to argue that administrative exhaustion would have been futile because, as the USMS EEO counsel- or submitted to the Court, “EEO counselors are not qualified to review the substance of medical determinations.” (App. 212-13.) Thus, Fromm argues “there was no real EEO process available to [him] against the USMS.” (Fromm Br. 11.)
Although Fromm cites no law for his arguments, we held in Wilson v. MVM, Inc., 475 F.3d 166 (3d Cir.2007), that the Rehabilitation Act’s exhaustion requirements were prudential as opposed to jurisdictional and therefore subject to a futility exception where a party provides “a clear and positive showing” of futility. Id. at 175. Fromm offers no such showing here. While EEO counselors at USMS could not review the substance of medical determinations, they at least had the authority to investigate the reasons for a medical disqualification or correct any errors in the procedures used to evaluate Fromm’s hearing. To facilitate these ends, Fromm was specifically informed by the EEOC of the process for filing a Rehabilitation Act complaint against the Federal Defendants. His opinion that partaking of the available process would not have resulted in a favorable outcome does not excuse procedural non-compliance.
Accordingly, we hold that Fromm failed to exhaust his administrative remedies, and we will affirm the District Court’s order granting summary judgment to the Federal Defendants on the § 501 Rehabilitation Act claims.
B. Procedural Due Process
Fromm claims that MVM’s failure to provide a substantive appeal of his medical disqualification violated his right to procedural due process under the Fifth Amendment. We considered and rejected an identical argument in Wilson and accordingly will address it only briefly here. See 475 F.3d at 177-79.
As we have repeatedly noted, at a minimum, due process requires notice and a hearing. Id. at 178. However, the extent of the notice and hearing depends on balancing three interests: (1) the private interest at stake, (2) the risk of error in the procedure used compared with the degree of accuracy of additional procedures, and (3) the government’s interest. Id. (citing Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 *269(1976)). MVM notified Fromm that he was potentially subject to medical disqualification, provided a medical evaluation, and permitted Fromm to provide an additional evaluation from a physician of his choosing. We agree with the District Court that additional proceedings would not have increased the accuracy of the medical review. See id. at 179 (“A more rigorous process would not significantly enhance the accuracy of the medical qualification process.”).
We will therefore affirm the District Court’s grant of summary judgment on Fromm’s procedural due process claim.
C. Rehabilitation Act, ADA, and PHRA Claims Against MVM
An employee asserting a claim for disability discrimination must show (1) that he has a disability, (2) that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation by the employer, and (3) that he was terminated. Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996).3 The District Court granted summary judgment because it held that Fromm had failed to demonstrate he could perform the “essential functions” of the job — specifically that he could not meet the CSO hearing standards without the use of a hearing aid. Fromm argues on appeal that his past satisfactory performance of the CSO job functions without the use of a hearing aid while suffering from reduced hearing in his right ear creates a question of fact as to whether the unaided hearing standards are an “essential function” of the CSO position.
We agree with Fromm that, based on the record in this case, he has created a dispute of material fact over whether the unaided hearing requirements are an essential function of the CSO position such that summary judgment on that basis was improper. Fromm submitted deposition testimony of supervisors at MVM confirming Fromm’s satisfactory job performance, as well as his own testimony regarding his prior performance, and letters from various court officials attesting that he had successfully performed his CSO functions for a number of years with the use of a hearing aid. We have previously held that evidence of successful job performance may suffice to create a dispute of material fact over what constitutes an “essential function.” See Skerski v. Time Warner Cable Co., 257 F.3d 273 (3d Cir.2001). In Skerski, a cable installer was terminated for not climbing ladders as a the result of an anxiety disorder even though he had been performing the job for a number of years without climbing. Id. at 276-77. The district court granted summary judgment, concluding that climbing was an “essential function” of the cable installation position, based in part on the written job description of the cable installer position which included “repetitive ... pole climbing ... and ladder climbing.” Id. at 275, 277. We reversed, holding, “Skerski’s ability to perform as an installer technician for more than three years without climbing might lead a reasonable juror to infer that Skerski’s inability to climb had no adverse consequences for his employer, a factor that is relevant to determining what is an essential function.” Id. at 283.
USMS argued at oral argument that the unaided hearing standards are an essential function of the CSO position because they test a CSO’s ability to perform in emer*270gency situations where a hearing aid could malfunction or become dislodged. USMS points out that Fromm’s ability to perform in the ordinary course does not refute its position that he would be unable to perform in an emergency. While defining the scope of the essential function as “unaided hearing in the event of an emergency” may well change the summary judgment calculus, arguments are not evidence, and we find no support in the record for this position. USMS has presented no evidence that the hearing standards were intended for emergency situations, nor demonstrated that emergency situations are central or imperative to the CSO position. See 29 C.F.R. § 1630.2(n)(3)(iii) (“essential functions” under the ADA include consideration of “[t]he amount of time spent on the job performing the function”). And even if we accepted that the hearing standards themselves were imperative to an emergency situation, USMS has provided little beyond conjecture in support of its argument that those standards cannot be accommodated by a heai’ing aid. In fact, MVM has consistently maintained that it “did not believe that Fromm was unqualified tp continue working as a CSO because of his healing loss.” (MVM Br. at 8.) Accordingly, we hold that, under the evidence presented in this case, Fromm has created a dispute of material fact as to whether the unaided hearing standards are an “essential function” of the CSO position.
We turn then to another prong of the disability discrimination analysis — whether Fromm was “disabled” within the meaning of the applicable statutes. A claimant under the ADA and the Rehabilitation Act must prove that he has a physical impairment that limits a major life activity, has a record of such impairment, or is “regarded as” having such an impairment. 42 U.S.C. § 12102(2) (2008) (ADA); 29 U.S.C. § 705(20)(B) (2008) (Rehabilitation Act). Fromm alleges that MVM and the Federal Defendants “regarded” him as being impaired, meaning they “mistakenly believe[d] that [Fromm], has a physical impairment that substantially limits one or more major life activities” or “mistakenly believed that an actual, nonlimiting impairment substantially limits one or more major life activities.” Sutton, 527 U.S. at 489, 119 S.Ct. 2139.
As we held in Wilson, MVM, through its own conduct, did not “regard” Fromm as disabled within the meaning of the ADA:
The undisputed evidence shows that MVM did not consider the appellants in any way disabled and would have reinstated them immediately if the USMS would have determined the appellants were medically qualified. As a matter of law, MVM did not regard the appellants as impaired within the meaning of the ADA.
475 F.3d at 179. This conclusion, on identical relevant facts, absolves MVM of liability under the definition provided by 42 U.S.C. § 12112(b)(3), which forbids an employer from “utilizing standards, criteria, or methods of administration [ ] that have the effect of discrimination on the basis of disability.”
Fromm correctly notes, however, that the ADA imposes liability not only for an employer’s direct discriminatory standards, but for discrimination carried out via a contractual agreement with a third party. Section 12112(b)(2) defines illegal discrimination as “participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by this subchapter.” The purpose of this provision is to ensure that an employer “may not do through a contractual or other relationship what it is *271prohibited from doing directly.” 29 C.F.R. pt. 1630, App. § 1630.6.
If MVM, via its contract with USMS, has subjected Fromm to “discrimination prohibited by [the ADA],” it cannot rest on blind contractual compliance to escape liability for discrimination. See Holiday v. City of Chattanooga, 206 F.3d 637, 645 (6th Cir.2000) (“Employers do not escape their legal obligations under the ADA by contracting out certain hiring and personnel functions to third parties.”); cf. Powers v. Ala. Dept. of Educ., 854 F.2d 1285, 1294-95 (11th Cir.1988) (holding under Title VII that “an employer cannot delegate several aspects of its promotion procedure to another agency such as SPD and then escape liability if that agency develops discriminatory practices” and collecting cases).4
Thus, even though USMS is properly dismissed from the case due to Fromm’s failure to exhaust administrative remedies, the question of MVM’s liability turns on, inter alia, whether USMS engaged in “discrimination prohibited by [the ADA.]” Because various aspects of USMS’s allegedly discriminatory conduct, including the question of whether USMS “regarded” Fromm as disabled, were not argued before this Court and not considered by the District Court below, we will remand for further consideration of whether MVM is liable for “participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by [the ADA.]” 42 U.S.C. § 12112(b)(2).5
IV.
For the foregoing reasons, we will affirm summary judgment for the Federal Defendants, reverse summary judgment for MVM on Fromm’s ADA, RA, and PHRA claims, and remand for further proceedings consistent with this opinion.
. Fromm also filed a complaint under the Rehabilitation Act with the Department of Labor Office of Federal Contract Compliance Programs on or about July 7, 2003. This complaint was closed because Fromm had first filed with the EEOC.
. Under the ADA, an "individual with a disability” includes not only an individual who "has a physical or mental impairment which substantially limits one or more of such person’s major life activities,” but also an individual who "is regarded as having such an impairment.” 42 U.S.C. § 12102(3). The District Court correctly limited Fromm's theory to the latter "regarded as" disability because his hearing impairment is mitigated by corrective measures. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 487, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) superseded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008).
. In addressing the merits of Fromm's disability discrimination claims, we need not distinguish between the three applicable statutory schemes. We have previously held that the ADA and the Rehabilitation Act apply the same standard to determine liability, Antol v. Perry, 82 F.3d 1291, 1299 (3d Cir.1996), and that the ADA and PHRA are interpreted coextensively, Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999).
. The potential application of § 12112(b)(2) was not addressed by this Court in Wilson. Accordingly, though we agree with our dissenting colleague that Wilson presented “indistinguishable facts,” we are called in this instance to address a distinct legal argument: MVM's potential liability via its contract with USMS.
. We respectfully disagree with the dissent’s reliance on the Ninth Circuit decision in Walton v. U.S. Marshals Service, 492 F.3d 998 (9th Cir.2007). The court in Walton, relying on the Supreme Court decision in Sutton, held that disqualification under the USMS hearing standards cannot raise a dispute of material facts as to whether USMS regards that employee as disabled in a major life activity. Id. at 1007. Sutton, however, says only that an employer’s implementation of physical requirements alone does not suffice to support a claim of “regarded as” disability because many such qualifications, if not met, will not "rise to the level of an impairment.” 527 U.S. at 490, 119 S.Ct. 2139. The Court goes on to hold, "An employer runs afoul of the ADA when it makes an employment decision based on a physical or menial impairment, real or imagined, that is regarded as substantially limiting a major life activity.” Id. It would be premature, at this stage, for us to decide what the District Court has not: whether USMS believed that Fromm’s hearing loss constitutes an impairment "substantially limiting a major life activity.” Because this question goes to USMS's motivations and potential biases, it cannot be answered by resort to evidence of MVM’s willingness to employ Fromm. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478692/ | MEMORANDUM **
Juan Carlos Chavez-Anguiano appeals from his guilty-plea conviction and 51-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Chavez-Anguiano’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal. Accordingly, we affirm the district court’s judgment.
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)).
Counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED but REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478694/ | ORDER AND JUDGMENT*
DEANELL REECE TACHA, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Defendant-appellant Daniel Patrick Meredith was indicted in June 2008 for his participation in an elaborate credit card fraud scheme. He ultimately pleaded guilty to credit card fraud, possession of counterfeit identification, and identity theft. The district court sentenced him to 84 months’ imprisonment and ordered him to pay $141,270.62 in restitution. On appeal, Mr. Meredith challenges both the length of his imprisonment and the amount of restitution ordered by the district court. He contends the district court erred in enhancing his sentence based on its finding that he was a leader or organizer of criminal activity, and he argues that the district court improperly calculated the amount of restitution. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we AFFIRM.
I. BACKGROUND
In May 2008, Postal Inspector Kevin Korsick learned that Mr. Meredith had been arrested after presenting an altered credit card and Oregon identification card during a transaction at a Target store in Colorado. Already aware of other instances in which Mr. Meredith had been involved with the use of counterfeit state identification and altered credit cards, Inspector Korsick began investigating him. The investigation uncovered a fraudulent scheme spanning multiple states and involving several stolen identities.
Essentially, Mr. Meredith and his associates would steal mail in order to obtain credit cards, remove the original account numbers on the face of the cards, and replace them with new account numbers Mr. Meredith had generated using an algorithm which mimicked the process used by credit-card companies to create legitimate ■ account numbers. Mr. Meredith would then use a merchant identification number to test the counterfeit account numbers and associated credit limits. The *932magnetic strips on the backs of the cards were demagnetized to require merchants to manually key in the new account numbers, using the same process that Mr. Meredith had already used to test the cards. Because merchants often asked for photo identification when manually entering a credit card number, Mr. Meredith and his co-conspirators also manufactured counterfeit identification to accompany the fraudulent credit cards.
On June 18, 2008, a grand jury returned a twelve-count indictment against Mr. Meredith. Mr. Meredith enteréd into a plea agreement whereby he pleaded guilty to Count 1, fraud and related activity with a counterfeit credit card in violation of 18 U.S.C. § 1029(a)(1); Count 5, possession of counterfeit identification with intent to defraud in violation of 18 U.S.C. § 1028(a)(1) and (c)(8)(A); and Count 12, aggravated identify theft in violation of .18 U.S.C. § 1028A. The parties also agreed that Mr. Meredith’s total relevant conduct involved a loss of more than $120,000 but less than $200,000.
The Presentence Investigation Report (“PSR”) calculated Mr. Meredith’s advisory sentencing range under the United States Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”) at 70-87 months’ imprisonment for Counts 1 and 5. Furthermore, Count 12 carried a mandatory statutory sentence of 24 months to be served consecutively to his other sentence. See 18 U.S.C. § 1028A. Thus, the PSR recommended two concurrent terms of 70 months for Counts 1 and 5, and a consecutive sentence of 24 months for Count 12, resulting in a total sentence of 94 months. In addition, the PSR recommended that Mr. Meredith be ordered to pay a total of $141,270.62 in restitution.
Mr. Meredith filed written objections to the PSR’s calculation of his advisory Guidelines range. Primarily, he challenged the applicability of an offense level enhancement under U.S.S.G. § 8Bl.l(a) for his role as an organizer or leader of criminal activity. Without the enhancement, his advisory Guidelines range for Counts 1 and 5 would have been 57-71 months. Mr. Meredith also objected in writing to the PSR’s restitution recommendation, contending that the losses should have been apportioned among the members of the criminal enterprise.
At the sentencing hearing, Inspector Korsick testified on behalf of the government and in support of application of the leadership role enhancement. After hearing Inspector Korsick’s testimony, the district court agreed with the PSR author and the government that the leadership role enhancement applied. The court also granted the government’s motion for a 15% downward departure under U.S.S.G. § 5K1.1 because it found that Mr. Meredith had provided the government with substantial assistance in its investigation. Ultimately, the district court sentenced Mr. Meredith to 84 months’ imprisonment and ordered him to pay the full amount of restitution.
II. DISCUSSION
A. Mr. Meredith’s Role in the Offense Under § SBl.l(a) ■
In sentencing Mr. Meredith, the district court imposed a four-level enhancement for his leadership role in a criminal activity that involved five or more participants. See U.S.S.G. § 3Bl.l(a). Mr. Meredith contends the evidence was insufficient to support the district court’s application of the enhancement. “We review for clear error the district court’s finding that [a defendant] acted as a leader or organizer for purposes of § 3B1.1.” United States v. Wilfong, 475 F.3d 1214, 1218 (10th Cir.2007).
Section 3Bl.l(a) provides for a four-level increase of a defendant’s offense level if the district court finds that a defendant (1) *933was an organizer or leader (2) of a criminal activity that involved five or more participants or was otherwise extensive. U.S.S.G. § SBl.l(a); United States v. Egbert, 562 F.3d 1092, 1103 (10th Cir.2009). On appeal, Mr. Meredith appears to challenge only the first finding, arguing that the evidence showed he “possessed a particular knowledge or skill that others sought to learn from him,” but did not show that he was a leader or organizer. We disagree.
In determining whether the defendant was an organizer or leader of a criminal activity, the district court should consider:
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n. 4. More than one person might qualify as a leader or organizer, id., and the defendant need only have supervised one participant to meet the definition. Id. cmt. n. 2; see also United States v. Gallant, 537 F.3d 1202, 1241 (10th Cir.2008). “The government bears the burden of proving the facts necessary to support the enhancement by a preponderance of the evidence.” Egbert, 562 F.3d at 1103.
Here, the district court had ample evidence to support its finding that Mr. Meredith was a leader or organizer. Inspector Korsick testified that three members of the criminal enterprise identified Mr. Meredith as the leader or mastermind of the scheme. One accomplice stated that Mr. Meredith rented her a hotel room and “set her up,” providing her with payroll checks and fake identification so that she could attempt to collect on the checks and split the money with him. The same accomplice also told investigators that Mr. Meredith paid other individuals to steal mail. Another group member explained that Mr. Meredith recruited others to steal mail, that Mr. Meredith taught him how to alter credit cards, and that Mr. Meredith received a cut of the proceeds from those who participated in the scheme. The third accomplice stated that she also was recruited to pass counterfeit checks and conduct transactions using altered credit cards, but that Mr. Meredith never taught her enough for her to successfully mimic legitimate credit card numbers on her own.
While Mr. Meredith questions the reliability of these “unchallenged hearsay statements of indicted and unindicted participants,” he does not dispute that he told investigators he passed along only portions of his scam to others, but “never put everything out on the table” so that no one else understood the entire scheme. Instead, he gave the group members just enough information for them to successfully complete their role in the operation.
We find this evidence sufficient to support the district court’s application of the enhancement, and therefore hold that the district court did not err in calculating Mr. Meredith’s sentence.
B. Restitution
The district court ordered Mr. Meredith to pay a total of $141,270.62 in restitution to five financial institutions which suffered losses due to the fraudulent credit card scheme.1 Although Mr. Meredith objected to the loss amount in his written objections to the PSR, he failed to renew the objection at sentencing; there*934fore, we review the district court’s restitution order for plain error. United States v. Atencio, 476 F.3d 1099, 1106 (10th Cir.2007), overruled in part on other grounds by Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008) (“[F]ailure to object to a disputed fact at the sentencing hearing constitutes forfeiture, despite prior submission of a written objection.”). “We find plain error only when there is (1) error, (2) that is plain, (3) which affects substantial rights, and (4) which seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Romero, 491 F.3d 1173, 1178 (10th Cir.2007).
Under the Mandatory Victims Restitution Act (“MVRA”), a district court must impose restitution when sentencing a defendant convicted of an offense “in which an identifiable victim ... has suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A(a)(l), (c)(1)(B). The amount of restitution ordered by the court “must be based on actual loss.” United States v. Quarrell, 310 F.3d 664, 680 (10th Cir.2002). Furthermore, “a district court may not order restitution in an amount that exceeds the loss caused by the defendant’s conduct.” United States v. Smith, 156 F.3d 1046, 1057 (10th Cir.1998).
On appeal, Mr. Meredith does not contest the district court’s finding regarding the amount of actual loss suffered by the financial institutions; rather, he argues that he was improperly held liable for losses caused by other members of the criminal scheme. We are not persuaded.
Mr. Meredith’s argument that he is being held liable for losses properly attributable to other individuals is based on his belief that he should only be held liable for the losses caused by transactions in which he personally attempted to use an altered credit card or fraudulent identification. This characterization of responsibility ignores Mr. Meredith’s role in creating and organizing the scheme, altering and teaching others to alter credit cards, and creating fake identification for those who used the altered cards. In light of his role as an organizer, leader, and teacher, the district court properly held Mr. Meredith liable for all of the losses caused by the scheme. Moreover, the MVRA expressly contemplates situations in which multiple defendants have contributed to the loss of a victim, and it authorizes the court to either “make each defendant liable for payment of the full amount of restitution or [ ] apportion liability among the defendants to reflect the level of contribution to the victim’s loss....” 18 U.S.C. § 3664(h). Thus, we hold that the district court did not err in holding Mr. Meredith liable for all of the losses caused by the criminal scheme.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Mr. Meredith’s sentence and the district court’s restitution order.
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. Specifically, the district court ordered Mr. Meredith to pay restitution in the amounts of $58,900.02 to Citibank, $74,596.15 to United States Bank, $5,214.19 to Bank of America, *934$1,693.39 to Discover, and $866.87 to Capital One. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478697/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves for summary affirmance of the United States Court of Appeals for Veterans Claims’ judgment in Sabbia v. Shinseki, 08-3638, 2009 WL 3416049 (Vet.App.2009), that dismissed Dominic Sabbia’s appeal to that court for lack of jurisdiction. We consider whether we have jurisdiction over Sabbia’s appeal to this court.
Sabbia filed a notice of appeal with the Court of Appeals for Veterans Claims, asserting that he was seeking review of a *76November 3, 2008 Board of Veterans’ Appeals decision. The Court of Appeals for Veterans Claims held that the Board had not issued a November 3, 2008 decision and that therefore it lacked jurisdiction over Sabbia’s appeal. 38 U.S.C. § 7266(a). 38 U.S.C. § 7266(a). Although that court had not entered judgment by the date that the court received Sabbia’s notice of appeal seeking review by this court, it treated the document as filed on the date that it entered judgment, i.e., December 1, 2009.
Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from decisions of the Court of Appeals for Veterans Claims. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). This court “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
The issue in this case is whether the Board of Veterans’ Appeals had issued any decision. That issue is a factual issue beyond this court’s jurisdiction. Thus, this appeal must be dismissed.
Accordingly,
IT IS ORDERED THAT:
(1) This appeal is dismissed for lack of jurisdiction.
(2) The Secretary’s motion for summary affirmance is denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478699/ | ORDER
ON MOTION
Upon consideration of the consent motion to voluntarily dismiss this appeal from Nilssen v. Universal Lighting, no. 3:04-CV-0080, 2006 WL 38909 (M.D.Tenn. 2006),
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/8478706/ | OPINION
PER CURIAM.
Sixto Lizardo, a federal prisoner proceeding pro se, appeals an order of the United States District Court for the Eastern District of Pennsylvania dismissing his petition for a writ of audita querela. We will affirm the District Court’s order.
In 2000, after a jury trial, Lizardo was convicted of one count of conspiracy and three counts of distribution of cocaine. He was sentenced to 240 months in prison. We affirmed Lizardo’s conviction in 2002. See C.A. No. 01-2810. In 2005, Lizardo sought relief in District Court under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), asserting that the court, rather than a jury, determined the quantity of drugs involved in his crime. The District Court denied relief and we affirmed. See C.A. No. 05-4505. In 2007, Lizardo filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). We affirmed the District Court’s denial of relief. See C.A. No. 07-4795.
Lizardo then filed a petition for a writ of audita querela in District Court. Lizardo again asserted that his sentence was improperly imposed based on a drug amount determined by the court, not the jury. Lizardo stated that he is time-barred from *251filing a motion pursuant to 28 U.S.C. § 2255 and that a writ of audita querela is his only available avenue of relief. Noting our decision in Massey v. United States, 581 F.3d 172 (3d Cir.2009) (per curiam), the District Court dismissed the petition. This appeal followed.
In Massey, a federal prisoner filed a petition for a writ of audita querela seeking to challenge his sentence under Booker. The prisoner argued that the sentencing court might have imposed a shorter sentence if the court had not viewed the sentencing guidelines as mandatory. We held that the prisoner could not seek relief through a petition for a writ of audita querela because his claim was cognizable under § 2255. Massey, 581 F.3d at 174. We explained that the prisoner could not resort to a writ of audita querela based on his inability to satisfy the requirements for filing a § 2255 motion under the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”). Id. The same is true here. Lizardo’s claim is cognizable under § 2255. Lizardo may not seek relief through a petition for a writ of audita querela based on his inability to satisfy AEDPA’s gatekeeping requirements.
Accordingly, because this appeal does not present a substantial question, we will affirm the District Court’s order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478707/ | OPINION
PER CURIAM.
Ronald G. Dandar appeals the District Court’s October 28, 2009, orders denying his motions for a preliminary injunction. For the reasons below, we will affirm.
In February 2008, Dandar filed a petition pursuant to 28 U.S.C. § 2254. In June 2008, the Commonwealth filed a response arguing that the District Court *252lacked jurisdiction because the petition was second or successive. While the § 2254 petition was pending, Dandar filed several motions for injunctive relief.
On May 4, 2009, Dandar filed a motion for injunctive relief (docket entry # 40) in which he requested more time in the prison library. He then filed another motion (docket entry # 41) requesting the District Court to order prison officials to stop discriminating against him based on his handicap. The Magistrate Judge made an oral recommendation to deny the motions during a conference call. The District Court adopted the Oral Report and Recommendation and denied the motions (docket entry # 91). Dandar filed a notice of appeal which was docketed at C.A. No. 09-4381.
On May 22, 2009, Dandar filed a motion for injunctive relief (docket entry # 46) in which he complained that his Z code single-cell status was about to be rescinded. In a motion dated June 15, 2009, (docket entry # 50), Dandar complained that his Z code status had been rescinded and this violated his rights to due process. He also contended that he was denied use of handicapped cells and showers. The Magistrate Judge made an oral recommendation to deny the motions during a conference call. The District Court adopted the Oral Report and Recommendation and denied the motions (docket entry # 92). Dandar filed a notice of appeal which was docketed at C.A. No. 09-4382. He also filed a motion to consolidate the two appeals.
Dandar’s requests for injunctive relief challenge conditions of his confinement and are unrelated to his challenge to his criminal conviction. These claims can be properly raised in a complaint under 42 U.S.C. § 1983 after he has exhausted his administrative remedies. See Learner v. Fauver, 288 F.3d 532, 544 (3d Cir.2002) (“[Ujnless the claim would fall within the ‘core of habeas’ and require sooner release if resolved in the plaintiffs favor, a prison confinement action such as this is properly brought under § 1983.”); 42 U.S.C. § 1997e(a). Dandar cannot circumvent the filing fee requirements of 28 U.S.C. § 1915(b)(1) by filing these requests for injunctive relief within proceedings under § 2254. We note that Dandar has had three appeals or actions dismissed as frivolous, malicious, or for failure to state claim. See Dandar v. PA Board of Probation, 64 Fed.Appx. 850 (3d Cir.2003); Dandar v. PA Board of Probation, W.D.Pa. Civ. No. 00-cv-00327; and Dandar v. U.S. District Court, WJD.Pa. Civ. No. 00-cv-00186. Thus, he may not bring a civil action by proceeding in forma pawperis unless he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).
Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6. To the extent Dandar requests that the appeals be consolidated in his motion dated December 18, 2009, it is granted. In all other respects, the motion is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478709/ | OPINION
ROTH, Circuit Judge:
Omni Credit Alliance, Inc., brought suit seeking the return of $260,000 it paid to Kennedy Funding, Inc., in application and commitment fees for a loan that never closed. After a bench trial, the District Court ordered rescission of the loan agreement, finding that “both parties were engaging in subterfuge and chicanery” and *254had breached the implied covenant of good faith and fair dealing. Kennedy has timely appealed.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. §§ 1291. We review the District Court’s factual findings for clear error and its evidentiary rulings for abuse of discretion. See United States v. Igbonwa, 120 F.3d 437, 440 (3d Cir.1997); Affiliated Mfrs., Inc. v. Aluminum Co. of Am., 56 F.3d 521, 525-26 (3d Cir.1995). We assume the parties’ familiarity with the factual and procedural history, which we describe only as necessary to explain our decision. We will affirm.
Kennedy argues, first, that the District Court erred by imposing a covenant of good faith to its “pre-contract negotiations” with Omni. This argument does not help Kennedy because the District Court’s decision is supported by its findings regarding Kennedy’s post-commitment agreement behavior—to wit, its failure to negotiate a final deal in good faith by (1) merely “deflecting Omni’s collateral proposals and rejecting them with little explanation” and (2) declining to “take any reasonable steps to close the loan.” Given the highly deferential standard of review, we will not disturb these findings.
Second, Kennedy argues that the District Court’s factual findings and credibility determinations lacked support in the record and that the District Court improperly shifted the burden of proof. We disagree. The District Court found that the principals of both parties lacked credibility and based its specific factual findings on these credibility determinations.
Third, Kennedy argues that the District Court abused its discretion in excluding documentary evidence concerning a concurrent and parallel loan commitment agreement in which Omni was the lender. As Omni points out, however, the District Court permitted cross-examination about the parallel loan commitment transaction, and Kennedy is hard-pressed to show any prejudice associated with the exclusion, particularly given the collateral nature of the document. At most, then, exclusion was harmless error.
Finally, Kennedy argues that the District Court erred in ordering rescission because neither party had explicitly requested that remedy. Omni’s complaint, however, invoked the Court’s equitable jurisdiction through its general request for “other relief.” Under these circumstances, the District Court was within its discretion to impose rescission where, as here, “both parties were engaging in subterfuge and chicanery” and each was “trying to scam the other.”
Accordingly, we will affirm the judgment of the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478711/ | OPINION
PER CURIAM.
Thomas E. Noble indicates that he has filed complaints in the United States District Court for the Eastern District of Pennsylvania, docketed at 04-cv-05997 and 09-cv-05857, “and Many Other Civ. Nos. at the E.D. Pa. and at Other U.S. District Courts Under the 3rd Circuit’s Jurisdiction.” Noble has filed a petition for a writ of mandamus, asking this Court to transfer “records of E.D. Pa. No. 09-5857 and ALL related past cases, to either the Supreme Court of the United States, or to the Judicial Panel of Multi-District Litigation, for REASSIGNMENT to an impartial district court....” For the reasons that follow, we will deny the petition.
Mandamus is a drastic remedy available only in the most extraordinary circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). To obtain a writ of mandamus, a petitioner must satisfy three conditions. First, he must “have no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). Second, he must show that his right to the writ is “clear and indisputable.” Id. Third, the reviewing court must conclude that the writ is “appropriate under the circumstances.” Id.
Noble’s mandamus petition is essentially a request to change venue. The express terms in 28 U.S.C. § 1404(a) provide that a federal district court may transfer civil actions from one federal district court to another. While the Supreme Court has found that a federal court of appeals may effect a transfer by direct order where “unusual circumstances” require “extraordinary action,” see Koehnng Co. v. Hyde Constr. Co., 382 U.S. 362, 364-65, 86 S.Ct. 522, 15 L.Ed.2d 416 (1966), no such unusual circumstances appear based on Noble’s petition.1 We note that Noble’s case pending at 09-cv-05857 has been assigned to a judge outside of the Eastern District. See E.D. Pa. Civ. No. 09-cv-05857, docket no. 4 (certified copy of order *257designating and assigning The Honorable Mary Little Cooper of the District of New Jersey). To the extent that Noble may seek to disqualify Judge Cooper based on alleged bias and prejudice, the conclusory allegations of his petition do not establish that a reasonable person, with knowledge of all the facts, would conclude that the District Judge’s impartiality might reasonably be questioned. See 28 U.S.C. § 455(a); In re Kensington Int’l Ltd,., 353 F.3d 211, 220 (3d Cir.2003).2
Accordingly, we determine that Noble has not met his burden of showing that he has no other adequate means to obtain the relief he seeks or that his right to issuance of the writ is “clear and indisputable.” As a result, we shall deny his mandamus petition.3
. We further note that this court would not have jurisdiction to “transfer" cases that have already been closed.
. To the extent Noble is attempting to have this Court enforce an order allegedly entered by Judge Weiner in 2005, we deny his request. It appears that Noble is referring to an order entered at E.D. Civ. No. 04-cv-05997 at docket no. 6. However, that document does not order the Clerk to transfer his case out of the circuit; instead, it simply reflects Judge Weiner’s understanding that the “matter is currently in the process of being transferred to another Circuit.” It appears that instead, the matter was assigned to Judge Cooper. Noble did not appeal from the dismissal of that case, and he may not use mandamus as a substitute for an appeal. In re Briscoe, 448 F.3d 201, 212-13 (3d Cir.2006). In any event, the order entered in 04-cv-05997 would have no application to other cases filed by Noble.
. Noble’s motion for appointment of counsel is denied. Noble's motion to dismiss the Veterans Administration as a party to the appeal is denied as moot. Noble’s motion to strike his motion for emergency preliminary relief is denied as stated — the motion will remain on the docket — however, the motion is granted to the extent that no action will be taken on the motion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478713/ | OPINION OF THE COURT
PER CURIAM.
Abdul Brown appeals pro se from the District Court’s entry of summary judgment in favor of the defendants and its denial of his motion for relief from that judgment. For the following reasons, we will dismiss this appeal in part, reverse in part, and remand for further proceedings.
I.
Brown is a Pennsylvania state prisoner who alleges that he suffers from bi-polar disorder. In 2007, he filed suit pro se under 42 U.S.C. § 1983 against numerous Pennsylvania Department of Corrections personnel alleging multiple violations of his constitutional rights. Among other things, Brown alleges that defendants placed him in a restrictive Special Management Unit (“SMU”) without due process or a psychological screening and that such placement is exacerbating his mental illness, which defendants otherwise have failed to treat.
Brown also alleges that defendants have used excessive force and otherwise subjected him to cruel and unusual punish*259ment. For example, he alleges one incident in which certain defendants tasered and maced him while he was held in a restraint chair, which caused him to vomit and defecate on himself, then kept him in the chair for approximately eight hours with no bathroom break. Part of this incident was videotaped, and defendants apparently concede the tasering, macing and eight hours of continuous restraint, but Brown also alleges that defendants punched and kicked him while the video recorder was turned off.
Brown further alleges that defendants denied him food and spit tobacco in his food in retaliation for previous lawsuits, then, in retaliation for his grievance about the alleged tobacco spitting incident, spread a false rumor that he is a “snitch,” thus subjecting him to threats and assaults by other inmates. Brown sought declaratory, injunctive and monetary relief.
Defendants answered the complaint and later filed a motion for partial summary judgment, which the District Court denied.1 Following discovery, which Brown contends was inadequate, defendants filed a motion for summary judgment in full. Brown’s response initially was due to be filed by September 5, 2008. On July 30, 2008, Brown filed a motion to extend that deadline because, inter alia, he had been transferred from his state facility to a federal facility without his legal materials. The District Court granted his motion and extended the deadline for a response until November 5, 2008.
After that deadline passed, Brown filed a motion for a further extension, alleging now that he had been transferred from the federal facility back to his state facility without the legal materials that had been forwarded to him at the federal facility. The District Court granted that motion by order entered December 31, 2008, and extended the response deadline until January 30, 2009. In its order, the District Court cautioned that, “[i]f the response is not filed by January 30, 2009 a decision will be made without the benefit of a response by Plaintiff.” (Dist. Ct. Docket No. 75 at 2.)
On January 21, 2009, nine days before his response was due, Brown filed (1) an affidavit pursuant to Fed.R.Civ.P. 56(f) seeking additional discovery before a ruling on summary judgment, and (2) a motion for the appointment of counsel.2 In the affidavit, Brown asserted that he could support his claims with affidavits by fellow prisoners who had since been transferred out of the SMU, but that DOC policy forbade him from corresponding with them. (Dist. Ct. Docket No. 76.) He also asserted that defendants had refused to produce his psychological evaluations and information regarding his transfer to SMU (in particular, the petition setting forth the reasons for the transfer). (Id.)
The District Court never addressed Brown’s Rule 56(f) affidavit, but it ordered defendants to respond to the counsel motion. Defendants acknowledged that they had refused, on confidentiality grounds, to produce Brown’s own psychiatric evaluations and certain information regarding his transfer to SMU. They agreed, however, to produce a redacted version of the SMU transfer petition. The record does not disclose whether they ever did so. The District Court then denied Brown’s motion *260for counsel because it did not believe the production of any additional documents necessary. The District Court also wrote that, given the document defendants already had produced, Brown “will be able to adequately respond to any summary judgment motion.” (Feb. 9, 2009 “text-only” order on docket.) One month later, however, without addressing Brown’s other requests in his Rule 56(f) affidavit or receiving a response, the District Court granted defendants’ motion for summary judgment by memorandum order and judgment entered March 10, 2009.3
Any appeal was due to be filed by April 9, 2009, see Fed. R.App. P. 4(a)(1)(A), but Brown did not file one. On May 12, 2009, he filed a “motion for status of case” requesting a copy of the docket entries. On May 19, 2009, he filed a “brief in opposition nunc pro tunc” to defendants’ motion for summary judgment.4 The District Court sent Brown a copy of the docket entries that same day. Two days later, Brown filed both a motion requesting that the Court send him a copy of its summary judgment order and a motion that he characterized as a Fed.R.Civ.P. 59(e) motion to alter or amend the judgment. In these motions, Brown asserted that he had never received a copy of the summary judgment order and could prove as much through the prison’s legal mail log. He also argued that he had not filed his brief earlier because he believed that his Rule 56(f) affidavit put summary judgment “on hold.” The only substantive relief he requested was that the District Court consider his nunc pro tunc opposition to defendants’ motion for summary judgment. By “text-only” order entered on the docket on May 23, 2009 the District Court denied Brown’s motion for relief from the judgment. Brown appeals.5
II.
A. Appellate Jurisdiction
In his notice of appeal, Brown purports to appeal from both the District Court’s March 10 judgment and its May 23 order denying his motion for relief from that judgment. Brown, however, did not timely appeal from the March 10 judgment, so we lack jurisdiction to review it. See Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Accordingly, we will dismiss his appeal to the extent he seeks review of that judgment.6
*261The parties dispute whether we have jurisdiction to review the District Court’s May 23 order denying Brown’s putative Rule 59(e) motion. Defendants argue that we lack jurisdiction because Fed. R.App. P. 4(a)(4) permits an appeal only from the denial of a timely Rule 59(e) motion and that Brown’s Rule 59(e) motion was untimely because he did not file it within ten days of the District Court’s judgment.7 Defendants cite no authority for that contention. We need not address it, however, because we conclude that Brown’s motion, despite its caption, is properly construed as one under Fed. R.Civ.P. 60(b)(1)
We have repeatedly held that “the function of the motion, and not the caption, dictates which Rule is applicable.” United States v. Fiorelli, 337 F.3d 282, 287-88 (3d Cir.2003) (citing, inter alia, Smith v. Evans, 853 F.2d 155, 158 (3d Cir.1988)). A Rule 59(e) motion is a “ ‘device to relitigate the original issue’ decided by the District Court, and used to allege legal error.” Id. at 288 (citation omitted). A Rule 60(b)(1) motion, by contrast, permits relief from a judgment on the grounds of “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1).
In this case, Brown’s putative Rule 59(e) motion did not seek to relitigate any issue already decided by the District Court. Instead, Brown argued that the District Court should set aside its entry of summary judgment and consider his opposition brief and exhibits nunc pro tunc because he had a good excuse for not having filed them earlier. See White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445, 451-52,102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) (holding that motion requiring an inquiry that is “separate from the decision on the merits” is not a Rule 59(e) motion). Brown did raise certain arguments that might be construed as legal issues properly raised under Rule 59(e), but the only substantive relief he requested was for the District Court to open the judgment and consider the nunc pro tunc opposition brief and exhibits that he filed after it had been entered. See First Nat’l Life Ins. Co. v. California Pac. Life Ins. Co., 876 F.2d 877, 882 (11th Cir.1989) (treating motion asking District Court to set aside summary judgment and consider subsequently filed affidavits as a Rule 60(b)(1) motion). Thus, as Brown now argues on appeal, his motion is properly characterized as one under Rule 60(b)(1). That motion was timely, see Fed.R.Civ.P. 60(c)(1), and Brown filed a timely notice of appeal from the District Court’s order denying that motion. Accordingly, we have jurisdiction to review it under 28 U.S.C. § 1291.
B. The Denial of Brown’s Rule 60(b)(1) Motion
We review the District Court’s denial of Brown’s Rule 60(b)(1) motion for abuse of discretion. See In re Cendant Corp. PRIDES Litig., 234 F.3d 166, 170 (3d Cir.2000). Under this standard, “ ‘we will not interfere with the District Court’s exercise of its discretion unless there is a definite and firm conviction that the court ... committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.’ ” Id. We believe that the District Court committed such an error here.
The District Court did not expressly treat Brown’s motion as one under Rule 60(b)(1), but it addressed the substance of his request and its analysis touched on the relevant considerations. “The test for ‘ex*262cusable neglect’ is equitable, and requires us to weigh the ‘totality of the circumstances.’ In particular, we consider [1] the danger of prejudice to the other party; [2] the length of the delay and its potential impact on judicial proceedings; [3] the reason for the delay — and whether it was within the movant’s control; and [4] whether the movant acted in good faith.” Nara v. Frank, 488 F.3d 187, 193-94 (3d Cir.2007) (citations omitted). In this case, Brown’s delay was not particularly long under the circumstances, and there is no indication that he failed to file a brief in bad faith or that defendants would be prejudiced by allowing him to file it now.
In addition, Brown gave a reasonable excuse for not filing his brief earlier than he did. Brown argued in his Rule 60(b)(1) motion that he had not filed his brief earlier because he had filed a Rule 56(f) affidavit and believed that the effect of that affidavit was to “put on hold granting summary judgement.” (Dist. Ct. Docket No. 90.) Brown filed his Rule 56(f) affidavit before his response deadline had passed. In his affidavit, he claimed to still require: (1) affidavits from prisoner witnesses with whom DOC policy prevented him from corresponding; (2) his psychiatric records; (3) documents relating to his transfer to SMU; and (4) the opportunity to take depositions. That filing gave the District Court three options: either to deny the motion for summary judgment, grant a continuance, or “issue any other just order.” Fed.R.Civ.P. 56(f). Thus, Brown’s explanation that he was awaiting a ruling on his Rule 56(f) affidavit before filing a brief is reasonable.8
None of the District Court’s reasons for rejecting Brown’s explanation withstands scrutiny. First, the District Court wrote that it had granted Brown two extensions to respond to defendants’ motion but that “[n]o response was ever received[.]” (May 23, 2009 “text-only” order on docket.) The District Court, however, never acknowledged Brown’s affidavit, which Rule 56(f) allows a party to file in opposition to a motion for summary judgment.
Second, the District Court wrote that Brown had had eight months to file a response and “blatantly disregarded numerous court orders to do so.” (Id.) Brown, however, did not “blatantly disregard numerous court orders.” At most, he disregarded one, and the District Court excused it. The only deadline that Brown let pass without a filing was the November 5, 2008 response deadline. Brown later filed a motion for relief from that deadline on the basis of a prison transfer, and the District Court granted the motion and extended the time for a response to January 30, 2009. Brown filed his Rule 56(f) affidavit nine days before that deadline.
Third, the District Court wrote that Brown “was advised that if he did not *263respond [by January 30, 2009] the [summary judgment] motion would be ruled on.” (Id.) The District Court is correct that it so advised Brown in its December 30, 2008 order granting him a final extension. Brown, however, filed his Rule 56(f) affidavit before that deadline, and his position that he was awaiting a ruling is reasonable. Moreover, the District Court later stated in ruling on Brown’s final counsel motion that Brown “will be able to adequately respond to any summary judgment motion,” thus appearing to contemplate a response after the January 30 deadline. (Feb. 9, 2009 “text-only” order on docket.) In addition, the defendants agreed to produce additional discovery after that deadline had passed. (Dist. Ct. Docket No. 80.) For these reasons too, Brown might reasonably have believed that summary judgment was “on hold.”
Finally, the District Court wrote that Brown had provided “no explanation for the long delay” in filing his brief. (May 23, 2009 “text-only” order on docket.) But Brown had: he had alleged two prison transfers (explanations the District Court previously accepted), an inability to obtain discovery from the defendants, and a period of waiting for a ruling on his Rule 56(f) affidavit followed by lack of notice of the District Court’s ruling for over two months.
For these reasons, we conclude that the District Court abused its discretion in denying Brown’s motion for relief from its entry of summary judgment. Accordingly, we will reverse the District Court’s order of May 23, 2009, and remand. On remand, the District Court is directed to grant Brown’s Rule 60(b) motion, consider his opposition brief, and conduct such other proceedings as may be required. We acknowledge the difficult task that the District Court has faced in managing this pro se litigation.9 In light of our ruling, the District Court may wish to revisit Brown’s request for the appointment of counsel.
. This order was entered by the District Court, but all other orders addressed herein were entered by a Magistrate Judge, who conducted proceedings with the parties' consent pursuant to 28 U.S.C. § 636(c). We will refer to the Magistrate Judge as the District Court throughout the remainder of this opinion.
. This was the last of multiple motions for the appointment of counsel that Brown filed. The District Court denied each of them without prejudice to Brown's ability to reassert later if future circumstances so warranted.
. As explained below, we do not presently have jurisdiction to review the District Court’s entry of summary judgment, and we thus express no opinion on the merits of that ruling. We note, however, that the ruling rests in part on Brown's failure to submit certain evidence in support of his claims. Our purely informational review suggests that Brown may have been able to do so if he were represented by counsel or if the District Court had allowed certain of the discovery he sought.
. Brown's brief raised legal arguments and made an evidentiary showing by attaching five affidavits from fellow prisoners as well as other evidence. Brown also argued, as he had asserted in his Rule 56(f) affidavit, that he had been unable to obtain sufficient discoveiy to respond to defendants’ motion.
. The May 23 order also denied a motion that Brown had filed seeking leave to correspond with other prisoners. Brown raises no issue regarding that ruling on appeal.
. Brown's allegation that he lacked notice of the judgment potentially states a basis for the District Court to reopen his time to appeal under Fed. R.App. P. 4(a)(6). Brown, however, did not seek that relief or even use the word "appeal” in any of his post-judgment motions, and it is clear that he sought only to proceed in the District Court. Thus, there is no basis to remand for the District Court to treat any of Brown's motions as a motion under Rule 4(a)(6). See United States v. Feu-ver, 236 F.3d 725, 728-29 (D.C.Cir.2001).
. Effective December 1, 2009, Rule 59(e) has been amended to permit the filing of a motion within 28 days after the entry of judgment.
. The District Court never addressed Brown's Rule 56(f) affidavit. The District Court later denied Brown’s subsequent request for counsel on the grounds that Brown's psychiatric records and the SMU transfer documents are irrelevant to his claims, but it did not address the remainder of the discovery Brown sought. The District Court's failure to address Brown’s Rule 56(f) affidavit is not directly before this Court for review, as it would be if Brown had timely appealed from the summary judgment ruling itself. We note, however, that there is ample authority in this Circuit that Rule 56(f) relief should be granted " ‘almost as a matter of course’ ” when relevant information is in the hands of the opposing party. E.g., San Filippo v. Bongiovanni, 30 F.3d 424, 432 (3d Cir.1994) (citation omitted). See also St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309, 1314 (3d Cir.1994) (holding that District Court abused its discretion in entering summary judgment while Rule 56(0 motion still pending). Thus, regardless of the merits of Brown's Rule 56(0 affidavit, it would be difficult to characterize his belief that it put summary judgment “on hold” as unreasonable.
. Indeed, we recognize that, when the pro se litigant is incarcerated, particular problems may arise, as they have here, with transfers and other events that challenge both the litigants and the court in trying to maintain an appropriate schedule. Our decision in this case is based on the specific facts before us and does not imply that a district court is without broad discretion in managing its docket, including in deciding on how and when best to address a Rule 56(f) affidavit. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478715/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Plaintiff Alan Fromm was terminated from his employment as a court security officer following his medical disqualification for a hearing impairment in his right ear. Fromm appeals the District Court’s grant of summary judgment in favor of all defendants on his claims under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-12213, the Rehabilitation Act, 29 U.S.C. § 794, the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 955(a), and the procedural due process clause of the Fifth Amendment. For the reasons stated herein, we will affirm in part, reverse in part, and remand for further proceedings.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Alan Fromm was employed by MVM, Inc. (“MVM”) from February 1998 through October 2002, as a court security officer (“CSO”) at the federal courthouse in Williamsport, Pennsylvania. MVM provid*266ed security services for federal courts in the Third Circuit through its contract with the United States Marshals Service (“USMS”). The contract sets forth medical standards for individual CSOs and gives USMS “the right at all times to determine the suitability of any Contractor employee to serve as a CSO.” (App.107.) Under the contract, “[a]ny decision to continue a Contractor employee in a CSO capacity will be made solely by [USMS].” (Id.) Fromm, who has suffered from reduced hearing in his right ear, performed his duties as a CSO without the assistance of a hearing aid.
In 2002, USMS instituted a new medical requirement that CSOs had to possess certain hearing capacities without the use of a hearing aid. The new medical standards were developed by Dr. Richard Miller, Director of Law Enforcement Medical Programs, at the request of the Judicial Conference of the United States. Dr. Miller identified twenty-nine CSO job functions, six of which related to hearing: comprehending speech during face to face conversations, over the telephone, over the radio, and outside the range of sight; heai'ing sounds that require investigation; and determining the location of sound. According to Dr. Miller, each of the hearing functions must be met without the use of a hearing aid. However, if a CSO passes the hearing tests unaided, he may be permitted to wear a hearing aid on the job. In 2001, the Judicial Conference and USMS reviewed and adopted the Miller Report as the new medical standards for CSOs (the “CSO hearing standards”).
Pursuant to the CSO hearing standards, a government physician initially detez-mined on April 30, 2002, that Fromm was no longer medically qualified to serve as a CSO based on the reduced hearing in his right ear. Fromm took a second hearing test, and his results were reviewed by a new government physician on October 3, 2002, who also determined that Fromm was medically disqualified under the new CSO hearing standards. After USMS notified MVM of its disqualification determination, MVM terminated Fromm on October 17, 2002.
Under the terms of MVM’s contract with USMS, a CSO removed for failure to meet medical requirements is afforded no notice and hearing. Nonetheless, Fromm sent a letter requesting review of his termination to Steve Gottrich, MVM’s Senior Operations Coordinator, on October 23, 2002. Additionally, in November 2002, Fromm obtained a hearing aid and sent MVM the results of a hearing test that he took with his hearing aid. Fromm argued that the new test results demonstrated he could meet the hearing functions required of a CSO. MVM submitted the results of this test to the Marshals Service on December 3, 2002, and z*equested that the agency reconsider its decision to disqualify Fromm from working as a CSO. Gottrich contacted USMS by telephone and was informed that Fromm’s medical disqualification would not be reconsidered.
Fromm filed an administrative complaint against MVM with the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”) on November 19, 2002, alleging violations of the ADA and the PHRA.1 In August 2003, Fromm wrote to the EEOC seeking to amend his complaint to include the Marshals Service, the United States Department of Justice, and the United States Attorney Genei’al as respondents. The EEOC l-eplied that it lacked authoi'ity to investigate discrimination by *267federal entities and enclosed a form explaining the administrative procedures for such a complaint, which involved filing a complaint with the Equal Employment Office (“EEO”) for the appropriate federal defendant. Fromm never filed an administrative complaint under the Rehabilitation Act with the USMS’s EEO.
In June 2004, Fromm filed suit in the United States District Court for the Middle District of Pennsylvania against MVM, as well as the Director of USMS and the Attorney General of the United States (collectively the “Federal Defendants”), alleging his termination violated the ADA, the Rehabilitation Act, and the PHRA, as well as the substantive and procedural due process protections of the Fifth Amendment. Fromm v. MVM, Inc., 2006 WL 133540, at *1 (M.D.Pa. Jan.10, 2006). The District Court dismissed a number of the claims, but permitted Fromm to proceed to the merits against MVM under the ADA, Rehabilitation Act, and PHRA and against the Federal Defendants under the Rehabilitation Act and procedural due process. Id. These claims were all limited to his theory that he was discriminated against for a “regarded as” disability.2 Id.
Following discovery, MVM and the Federal Defendants each filed a motion for summary judgment on the remaining claims. Both motions were granted. The District Court reasoned that the Rehabilitation Act claims against all defendants failed because Fromm had failed to present sufficient evidence that he could perform the essential functions of the job, where one of those essential functions was unaided hearing in accordance with the CSO hearing standards. Id. at *4-6. Because the remaining disability claims against MVM under the ADA and PHRA were premised on USMS’s decision to disqualify Fromm, those claims were dismissed as well on the theory that MVM could not be liable for complying with USMS requirements if those requirements were not themselves unlawful. Id. at *6. Finally, the District Court held that the procedural due process claim failed because USMS provided Fromm sufficient process through the consideration of additional hearing tests. Id. at *7.
This timely appeal followed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.
In reviewing a district court’s grant of summary judgment, we apply the same test the district court applied. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir.2001). Summary judgment is proper when, viewing the evidence in the light most favorable to the non-moving party and drawing all inferences in that party’s favor, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 232; Fed.R.Civ.P. 56(c).
III.
On appeal, Fromm raises three principal arguments: (1) that he exhausted all administrative remedies known to him and *268should be excused from any further exhaustion requirements; (2) that his inability to appeal the basis for his termination deprived him of procedural due process; and (3) that letters submitted on his behalf by court officials demonstrating he had successfully performed his CSO position created a genuine issue of material fact as to whether unaided hearing was an “essential function” of the job. We will address these arguments in turn.
A. Administrative Exhaustion
A party filing a claim under § 501 of the Rehabilitation Act must first exhaust the administrative remedies established under Title VII of the Civil Rights Act of 1964. See 29 U.S.C. § 794a(a)(l) (incorporating Title VII “remedies, procedures, and rights” into the Rehabilitation Act). An individual who believes he has suffered a violation of the Rehabilitation Act must contact an agency’s EEO counselor within forty-five days of the complained of incident. 29 C.F.R. § 1614.105(a)(1). This contact sets into motion a chain of events which will lead to either an informal resolution of the claim or a dismissal by the EEO, at which point an employee may contact the EEOC and seek the right to sue in district court. 29 C.F.R. §§ 1614.106-.108.
Fromm does not contest that he has failed to avail himself of these required steps. Rather, he seems to argue that administrative exhaustion would have been futile because, as the USMS EEO counsel- or submitted to the Court, “EEO counselors are not qualified to review the substance of medical determinations.” (App. 212-13.) Thus, Fromm argues “there was no real EEO process available to [him] against the USMS.” (Fromm Br. 11.)
Although Fromm cites no law for his arguments, we held in Wilson v. MVM, Inc., 475 F.3d 166 (3d Cir.2007), that the Rehabilitation Act’s exhaustion requirements were prudential as opposed to jurisdictional and therefore subject to a futility exception where a party provides “a clear and positive showing” of futility. Id. at 175. Fromm offers no such showing here. While EEO counselors at USMS could not review the substance of medical determinations, they at least had the authority to investigate the reasons for a medical disqualification or correct any errors in the procedures used to evaluate Fromm’s hearing. To facilitate these ends, Fromm was specifically informed by the EEOC of the process for filing a Rehabilitation Act complaint against the Federal Defendants. His opinion that partaking of the available process would not have resulted in a favorable outcome does not excuse procedural non-compliance.
Accordingly, we hold that Fromm failed to exhaust his administrative remedies, and we will affirm the District Court’s order granting summary judgment to the Federal Defendants on the § 501 Rehabilitation Act claims.
B. Procedural Due Process
Fromm claims that MVM’s failure to provide a substantive appeal of his medical disqualification violated his right to procedural due process under the Fifth Amendment. We considered and rejected an identical argument in Wilson and accordingly will address it only briefly here. See 475 F.3d at 177-79.
As we have repeatedly noted, at a minimum, due process requires notice and a hearing. Id. at 178. However, the extent of the notice and hearing depends on balancing three interests: (1) the private interest at stake, (2) the risk of error in the procedure used compared with the degree of accuracy of additional procedures, and (3) the government’s interest. Id. (citing Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 *269(1976)). MVM notified Fromm that he was potentially subject to medical disqualification, provided a medical evaluation, and permitted Fromm to provide an additional evaluation from a physician of his choosing. We agree with the District Court that additional proceedings would not have increased the accuracy of the medical review. See id. at 179 (“A more rigorous process would not significantly enhance the accuracy of the medical qualification process.”).
We will therefore affirm the District Court’s grant of summary judgment on Fromm’s procedural due process claim.
C. Rehabilitation Act, ADA, and PHRA Claims Against MVM
An employee asserting a claim for disability discrimination must show (1) that he has a disability, (2) that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation by the employer, and (3) that he was terminated. Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996).3 The District Court granted summary judgment because it held that Fromm had failed to demonstrate he could perform the “essential functions” of the job — specifically that he could not meet the CSO hearing standards without the use of a hearing aid. Fromm argues on appeal that his past satisfactory performance of the CSO job functions without the use of a hearing aid while suffering from reduced hearing in his right ear creates a question of fact as to whether the unaided hearing standards are an “essential function” of the CSO position.
We agree with Fromm that, based on the record in this case, he has created a dispute of material fact over whether the unaided hearing requirements are an essential function of the CSO position such that summary judgment on that basis was improper. Fromm submitted deposition testimony of supervisors at MVM confirming Fromm’s satisfactory job performance, as well as his own testimony regarding his prior performance, and letters from various court officials attesting that he had successfully performed his CSO functions for a number of years with the use of a hearing aid. We have previously held that evidence of successful job performance may suffice to create a dispute of material fact over what constitutes an “essential function.” See Skerski v. Time Warner Cable Co., 257 F.3d 273 (3d Cir.2001). In Skerski, a cable installer was terminated for not climbing ladders as a the result of an anxiety disorder even though he had been performing the job for a number of years without climbing. Id. at 276-77. The district court granted summary judgment, concluding that climbing was an “essential function” of the cable installation position, based in part on the written job description of the cable installer position which included “repetitive ... pole climbing ... and ladder climbing.” Id. at 275, 277. We reversed, holding, “Skerski’s ability to perform as an installer technician for more than three years without climbing might lead a reasonable juror to infer that Skerski’s inability to climb had no adverse consequences for his employer, a factor that is relevant to determining what is an essential function.” Id. at 283.
USMS argued at oral argument that the unaided hearing standards are an essential function of the CSO position because they test a CSO’s ability to perform in emer*270gency situations where a hearing aid could malfunction or become dislodged. USMS points out that Fromm’s ability to perform in the ordinary course does not refute its position that he would be unable to perform in an emergency. While defining the scope of the essential function as “unaided hearing in the event of an emergency” may well change the summary judgment calculus, arguments are not evidence, and we find no support in the record for this position. USMS has presented no evidence that the hearing standards were intended for emergency situations, nor demonstrated that emergency situations are central or imperative to the CSO position. See 29 C.F.R. § 1630.2(n)(3)(iii) (“essential functions” under the ADA include consideration of “[t]he amount of time spent on the job performing the function”). And even if we accepted that the hearing standards themselves were imperative to an emergency situation, USMS has provided little beyond conjecture in support of its argument that those standards cannot be accommodated by a heai’ing aid. In fact, MVM has consistently maintained that it “did not believe that Fromm was unqualified tp continue working as a CSO because of his healing loss.” (MVM Br. at 8.) Accordingly, we hold that, under the evidence presented in this case, Fromm has created a dispute of material fact as to whether the unaided hearing standards are an “essential function” of the CSO position.
We turn then to another prong of the disability discrimination analysis — whether Fromm was “disabled” within the meaning of the applicable statutes. A claimant under the ADA and the Rehabilitation Act must prove that he has a physical impairment that limits a major life activity, has a record of such impairment, or is “regarded as” having such an impairment. 42 U.S.C. § 12102(2) (2008) (ADA); 29 U.S.C. § 705(20)(B) (2008) (Rehabilitation Act). Fromm alleges that MVM and the Federal Defendants “regarded” him as being impaired, meaning they “mistakenly believe[d] that [Fromm], has a physical impairment that substantially limits one or more major life activities” or “mistakenly believed that an actual, nonlimiting impairment substantially limits one or more major life activities.” Sutton, 527 U.S. at 489, 119 S.Ct. 2139.
As we held in Wilson, MVM, through its own conduct, did not “regard” Fromm as disabled within the meaning of the ADA:
The undisputed evidence shows that MVM did not consider the appellants in any way disabled and would have reinstated them immediately if the USMS would have determined the appellants were medically qualified. As a matter of law, MVM did not regard the appellants as impaired within the meaning of the ADA.
475 F.3d at 179. This conclusion, on identical relevant facts, absolves MVM of liability under the definition provided by 42 U.S.C. § 12112(b)(3), which forbids an employer from “utilizing standards, criteria, or methods of administration [ ] that have the effect of discrimination on the basis of disability.”
Fromm correctly notes, however, that the ADA imposes liability not only for an employer’s direct discriminatory standards, but for discrimination carried out via a contractual agreement with a third party. Section 12112(b)(2) defines illegal discrimination as “participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by this subchapter.” The purpose of this provision is to ensure that an employer “may not do through a contractual or other relationship what it is *271prohibited from doing directly.” 29 C.F.R. pt. 1630, App. § 1630.6.
If MVM, via its contract with USMS, has subjected Fromm to “discrimination prohibited by [the ADA],” it cannot rest on blind contractual compliance to escape liability for discrimination. See Holiday v. City of Chattanooga, 206 F.3d 637, 645 (6th Cir.2000) (“Employers do not escape their legal obligations under the ADA by contracting out certain hiring and personnel functions to third parties.”); cf. Powers v. Ala. Dept. of Educ., 854 F.2d 1285, 1294-95 (11th Cir.1988) (holding under Title VII that “an employer cannot delegate several aspects of its promotion procedure to another agency such as SPD and then escape liability if that agency develops discriminatory practices” and collecting cases).4
Thus, even though USMS is properly dismissed from the case due to Fromm’s failure to exhaust administrative remedies, the question of MVM’s liability turns on, inter alia, whether USMS engaged in “discrimination prohibited by [the ADA.]” Because various aspects of USMS’s allegedly discriminatory conduct, including the question of whether USMS “regarded” Fromm as disabled, were not argued before this Court and not considered by the District Court below, we will remand for further consideration of whether MVM is liable for “participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by [the ADA.]” 42 U.S.C. § 12112(b)(2).5
IV.
For the foregoing reasons, we will affirm summary judgment for the Federal Defendants, reverse summary judgment for MVM on Fromm’s ADA, RA, and PHRA claims, and remand for further proceedings consistent with this opinion.
. Fromm also filed a complaint under the Rehabilitation Act with the Department of Labor Office of Federal Contract Compliance Programs on or about July 7, 2003. This complaint was closed because Fromm had first filed with the EEOC.
. Under the ADA, an "individual with a disability” includes not only an individual who "has a physical or mental impairment which substantially limits one or more of such person’s major life activities,” but also an individual who "is regarded as having such an impairment.” 42 U.S.C. § 12102(3). The District Court correctly limited Fromm's theory to the latter "regarded as" disability because his hearing impairment is mitigated by corrective measures. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 487, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) superseded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008).
. In addressing the merits of Fromm's disability discrimination claims, we need not distinguish between the three applicable statutory schemes. We have previously held that the ADA and the Rehabilitation Act apply the same standard to determine liability, Antol v. Perry, 82 F.3d 1291, 1299 (3d Cir.1996), and that the ADA and PHRA are interpreted coextensively, Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999).
. The potential application of § 12112(b)(2) was not addressed by this Court in Wilson. Accordingly, though we agree with our dissenting colleague that Wilson presented “indistinguishable facts,” we are called in this instance to address a distinct legal argument: MVM's potential liability via its contract with USMS.
. We respectfully disagree with the dissent’s reliance on the Ninth Circuit decision in Walton v. U.S. Marshals Service, 492 F.3d 998 (9th Cir.2007). The court in Walton, relying on the Supreme Court decision in Sutton, held that disqualification under the USMS hearing standards cannot raise a dispute of material facts as to whether USMS regards that employee as disabled in a major life activity. Id. at 1007. Sutton, however, says only that an employer’s implementation of physical requirements alone does not suffice to support a claim of “regarded as” disability because many such qualifications, if not met, will not "rise to the level of an impairment.” 527 U.S. at 490, 119 S.Ct. 2139. The Court goes on to hold, "An employer runs afoul of the ADA when it makes an employment decision based on a physical or menial impairment, real or imagined, that is regarded as substantially limiting a major life activity.” Id. It would be premature, at this stage, for us to decide what the District Court has not: whether USMS believed that Fromm’s hearing loss constitutes an impairment "substantially limiting a major life activity.” Because this question goes to USMS's motivations and potential biases, it cannot be answered by resort to evidence of MVM’s willingness to employ Fromm. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478767/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Morer Lee appeals the district court’s order dismissing his civil complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Lee v. Mallory, No. 1:09-cv-02868-RDB, 2009 WL 3806774 (D.Md. Nov. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before *365the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478769/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Breon Montez Sanders appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. *367§ 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we deny Sanders’ motion for appointment of counsel and affirm for the reasons stated by the district court. United States v. Sanders, No. 5:05-cr-00026-F-2 (E.D.N.C. July 17, 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/8478771/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Hill appeals the district court’s order denying his 18 U.S.C. § 3582 (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Hill, No. 3:03-cr-00059-REP (E.D.Va. July 22, 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/8478773/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Davis appeals the district court’s order denying his motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Davis, No. 4:04-cr-00039-H-1 (E.D.N.C. Aug. 20, 2009). We deny Davis’s motion for review of Government fraud. 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/8478775/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy G. Asemani, a frequent filer, appeals the district court’s order granting summary judgment to the Defendants on Asemani’s action under 42 U.S.C. § 1983 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Asemani v. Chronister, No. 1:09-cv-00238-RDB, 2009 WL 3100589 (D.Md. Sept. 21, 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/8478777/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy Scott Rader appeals the district court’s order denying his 18 U.S.C. § 3582 *413(2006) motion for a reduction in sentencing. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Rader, No. 1:04-cr-00071-jpj-l, 2009 WL 3667075 (W.D.Va. Nov. 4, 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/8478779/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roderick Black appeals the district court’s order denying Black’s motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Black, No. 2:94-cr-00015-BO-9 (E.D.N.C. filed Dec. 17, 2009; entered Dec. 18, 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/8478781/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clyde Dial, Jr. appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Dial, No. 7:02-cr-00090-F-1 (E.D.N.C. Feb. 9, 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/8478768/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Breon Montez Sanders appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. *367§ 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we deny Sanders’ motion for appointment of counsel and affirm for the reasons stated by the district court. United States v. Sanders, No. 5:05-cr-00026-F-2 (E.D.N.C. July 17, 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/8478770/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Hill appeals the district court’s order denying his 18 U.S.C. § 3582 (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Hill, No. 3:03-cr-00059-REP (E.D.Va. July 22, 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/8478774/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy G. Asemani, a frequent filer, appeals the district court’s order granting summary judgment to the Defendants on Asemani’s action under 42 U.S.C. § 1983 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Asemani v. Chronister, No. 1:09-cv-00238-RDB, 2009 WL 3100589 (D.Md. Sept. 21, 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/8478776/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy Scott Rader appeals the district court’s order denying his 18 U.S.C. § 3582 *413(2006) motion for a reduction in sentencing. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Rader, No. 1:04-cr-00071-jpj-l, 2009 WL 3667075 (W.D.Va. Nov. 4, 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/8478778/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roderick Black appeals the district court’s order denying Black’s motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Black, No. 2:94-cr-00015-BO-9 (E.D.N.C. filed Dec. 17, 2009; entered Dec. 18, 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/8478780/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clyde Dial, Jr. appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Dial, No. 7:02-cr-00090-F-1 (E.D.N.C. Feb. 9, 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/8478997/ | 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, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478783/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chauncey A. Williams appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Williams v. Huffman, No. 7:09-cv-00222-sgw-mfu, 2009 WL 3367062 (W.D.Va. Oct. 16, 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/8478784/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cliff Bernard Randall appeals the district court’s order granting Randall’s 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Randall, No. 4:06-cr-00583-TLW-9 (D.S.C. filed Oct. 7, 2009, entered Oct. 8, 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/8478786/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hector Reinat appeals the district court’s order granting his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the judgment of the district court. See United States v. Reinat, No. 1:05-cr-00126-2 (S.D.W.Va. July 8, 2009). We dispense with oral argument because the facts and legal contentions are *447adequately 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/8478788/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Pack appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find that this appeal is frivolous. Accordingly, we dismiss the appeal for the reasons stated by the district court. See Pack v. Baltimore City Police Dep’t, No. 1:09-cv-03233-CCB (D.Md. Dec. 22, 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.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478791/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard Akwasi Acheampong, a native and citizen of Ghana, petitions for review of an order of the Board of Immigration Appeals (Board) denying relief from removal. We have reviewed the administrative record and Acheampong’s claims and agree with the agency decision that he is removable for having been convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii) (2006). We accordingly deny the petition for review. See In re: Acheampong (B.I.A. May 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.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478795/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Charles Burgess appeals the district court’s order denying relief on his 28 *450U.S.C § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Burgess v. United States, No. 1:09-cv-00451-GCM, 2010 WL 92441 (W.D.N.C. filed Jan. 6 & Jan. 13, 2010). 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/8478796/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald James Hurlbert appeals the district comb’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. Hurlbert v. Lloyd, No. 9:09-cv-00241-PMD, 2009 WL 4363210 (D.S.C. Dec. 2, 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/8478798/ | PER CURIAM: *
Diego Emilio Moreno-Gomez (Moreno), federal prisoner # 14193-069, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition challenging his conviction for possession with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States and conspiracy to possess with intent to distribute five kilograms or more of cocaine while on board a vessel subject to the jurisdiction of the United States. Moreno argues that the district court erred in determining that he was unable to challenge his federal conviction under § 2241 and dismissing his petition for want of jurisdiction.
“A section 2241 petition that seeks to challenge the validity of a federal sentence must either be dismissed or construed as a section 2255 motion.” Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir.2000). There is no merit to Moreno’s assertions that his claims of jurisdictional defect or actual innocence are independently cognizable under § 2241. See § 2255(a); Pack, 218 F.3d at 452. Moreno has also not shown that his claim of actual innocence provides an exception to the requirement that a petitioner first satisfy the savings clause of § 2255(e) in order to challenge his conviction and sentence in a § 2241 petition.
Accordingly, Moreno must meet the requirements of the savings clause of § 2255(e) to raise his claims under § 2241. See Kinder v. Purdy, 222 F.3d 209, 212 (5th Cir.2000). Moreno bears the burden of demonstrating that “the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his detention.” § 2255(e); see also Pack, 218 F.3d at 452. *466Moreno must demonstrate that he was convicted of a nonexistent offense by virtue of a recently-decided, retroactively applicable Supreme Court decision. Cf. Reyes-Requena v. United States, 243 F.3d 893, 904-06 (5th Cir.2001). As he has not done so, the district court did not err in concluding that Moreno could not bring his claims under § 2241. See Pack, 218 F.3d at 453.
The district court also did not err in dismissing Moreno’s petition for want of jurisdiction. Although Moreno’s claims could have been raised in a § 2255 motion, see id. at 451, the district court lacked jurisdiction to consider his claims under § 2255 as it was not the court that sentenced him. See id.
Moreno nonetheless argues that the district court should have transferred his petition to a district in which jurisdiction would have been proper. Moreno has not suggested why the interest of justice would be served by transfer instead of dismissal. See 28 U.S.C. § 1631.
Moreno also argues that the district court failed to give him advance notice that it intended to construe his § 2241 petition as a § 2255 motion. Even if the district court construed his § 2241 petition as a § 2255 motion without providing advance notice, there is no reversible error because Moreno’s pleading will not be considered a § 2255 motion for purposes of the second or successive restrictions of § 2255(h). See Castro v. United States, 540 U.S. 375, 383, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003).
The judgment of the district court is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478785/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cliff Bernard Randall appeals the district court’s order granting Randall’s 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Randall, No. 4:06-cr-00583-TLW-9 (D.S.C. filed Oct. 7, 2009, entered Oct. 8, 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/8478789/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Pack appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find that this appeal is frivolous. Accordingly, we dismiss the appeal for the reasons stated by the district court. See Pack v. Baltimore City Police Dep’t, No. 1:09-cv-03233-CCB (D.Md. Dec. 22, 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.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478790/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard Akwasi Acheampong, a native and citizen of Ghana, petitions for review of an order of the Board of Immigration Appeals (Board) denying relief from removal. We have reviewed the administrative record and Acheampong’s claims and agree with the agency decision that he is removable for having been convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii) (2006). We accordingly deny the petition for review. See In re: Acheampong (B.I.A. May 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.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478793/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Princibe Laguerre appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief without prejudice 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. La-guerre v. Gay, No. 3:09-cv-01864-PMD, 2009 WL 4042690 (D.S.C. filed Nov. 19, 2009; entered Nov. 20, 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/8478794/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Charles Burgess appeals the district court’s order denying relief on his 28 *450U.S.C § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Burgess v. United States, No. 1:09-cv-00451-GCM, 2010 WL 92441 (W.D.N.C. filed Jan. 6 & Jan. 13, 2010). 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/8478799/ | PER CURIAM: *
The attorney appointed to represent David F. McIntyre has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). McIntyre has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsi*468bilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under ble limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478801/ | PER CURIAM: *
Efren Hernandez-Isidro appeals his guilty plea conviction and sentence for being found in the United States unlawfully following deportation. He argues that the case should be remanded to the district court to conform the written judgment to the oral pronouncement of sentence by including the district court’s recommendation that his sentence run concurrently with any pending state charges.
After the parties’ briefs were filed, the district court entered an amended judgment that includes the concurrent sentencing recommendation. Accordingly, we dismiss the appeal as moot. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).
APPEAL DISMISSED.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5tii Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478804/ | ORDER
In this action under Title VII of the Civil Rights Act of 1964, Margaret Wilson claims that Kautex, her former employer, subjected her to a hostile work environment, fired her because of her sex and race, and retaliated against her because she engaged in statutorily protected activity. See 42 U.S.C. §§ 2000e-2(a)(l), 2000e-3(a). Both parties moved for summary judgment, but because Wilson did not submit a statement of material facts supported by appropriate citation, which is required by Local Rule 56.1, the district court accepted the facts asserted by Kau-tex. After conducting a thorough analysis of Wilson’s claims, the district court granted Kautex’s motion for summary judgment.
Wilson argues on appeal that summary judgment was inappropriate because material facts remain disputed and because a jury is required to make any credibility determinations. She repeats many of the allegations that she failed to support with citation to competent evidence before the district court. But the district court had previously reminded the parties that they were required to comply with Local Rule 56.1, and Kautex had notified Wilson that it planned to move for summary judgment and explained what she would have to do in response. See Timms v. Frank, 953 F.2d 281, 285 (7th Cir.1992). So strictly enforcing Local Rule 56.1 was well within the district court’s discretion, see Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 359-60 (7th Cir.2009), even though Wilson is a pro se litigant, see Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir.2001).
Nor do we see any error in the district court’s well-reasoned analysis of Wilson’s claims. We too accept the facts asserted by Kautex and view them in the light most favorable to Wilson. See Cady v. Sheah-an, 467 F.3d 1057, 1061 (7th Cir.2006). Kautex hired Wilson, who is African American, to work as the administrative assistant to Eldon Fuller, the vice president of operations at Kautex’s facility in Avilla, Indiana. Fuller was Wilson’s direct supervisor, but Russ Fatum, the human resources business partner at the Avilla facility, was responsible for training Wilson and assigning some of her work.
During Wilson’s first week on the job in April 2005, Fatum asked her to clean and organize a supply closet that had fallen into disarray. Later that same week, Fa-tum instructed Wilson to attend an offsite meeting and, because she was not familiar with Avilla, asked her to ride with a male employee who knew the way. Wilson was offended by both directives.
Then in May, according to her complaint, Wilson complained about her new job to Sara Broschay, a human resources employee at Kautex’s corporate headquarters in Michigan. When pressed at her *665deposition for details about this and other later complaints to Broschay, Wilson recalled that she had told Broschay she was being treated unfairly because she was required to submit her expense reports on paper instead of through the electronic system used by her coworkers. In fact, however, Hollman explained that he initially asked Wilson to submit paper reports “to ensure she understood the process” and delayed granting her access to the electronic system because she kept making mistakes. Fuller and Fatum never knew about Wilson’s conversations with Bros-chay, and there is no evidence that Bros-chay took Wilson’s complaints seriously.
In the weeks that followed, Fuller assigned Wilson to order supplies for the Avilla facility, but she had difficulty learning Kautex’s electronic ordering program. When Bryan Hollman, the controller at the Avilla facility, refused to approve her deficient order requests, Wilson accused him of “abusing” his power to make her job “as difficult as possible” and told other employees to submit their supply orders directly to him instead. Occasionally the facility ran out of supplies because Wilson had not ordered sufficient quantities, and other times she used unauthorized vendors without permission. Fuller asked Fatum to provide “guidance” to Wilson, so Fatum sent her an encouraging e-mail with advice on using the computer system. Hollman also offered Wilson further training.
Throughout this time Wilson had trouble working with other Kautex employees. At times she refused to accept assignments from Fatum and insisted that he first talk to Fuller. She also sparred with Hollman when he denied her deficient order requests. Other coworkers complained to Fuller and Fatum that Wilson was “rude, disrespectful, and uncooperative.” Fuller discussed these complaints with her in June 2005 and again in August. Although Wilson told Fuller that her coworkers did not like her, she did not say or imply that their antipathy had anything to do with her sex or race.
In August Fuller and Hollman denied Wilson’s request to be reimbursed for cell phone expenses because her job did not require a cell phone. Later that month Fatum discovered that Wilson had, of her own accord, rewarded other employees with gift certificates. Fuller and Fatum reminded Wilson that she was permitted to give out these “recognition awards” only with Fuller’s authorization. Fuller and Fatum also discovered that Wilson had worked overtime without permission and reminded her that Fuller had to authorize all overtime hours.
A series of incidents in November and December 2005 resulted in Wilson being fired. Wilson asked Fatum if she could purchase a DVD player for the facility; he said no, but she purchased one anyway. Then an employee from another facility complained to Fuller that, when she asked Wilson to reserve a conference room in Avilla, Wilson was rude and unprofessional. And after that Wilson bought three tickets to Kautex’s holiday party even though each employee was permitted to bring only one guest. When Wilson learned that she could not bring two guests, she berated Sheryl Ritchie, who was organizing the party, and demanded a refund for all three tickets. Ritchie complained to Fatum about Wilson’s tirade.
Fuller and Fatum told Wilson on November 29 that her performance was unacceptable and that she would be fired if she did not improve. In particular they cited her “poor treatment of other employees,” her difficulties ordering supplies, and her refusal to take orders from Fatum. But just a few days after that warning, Wilson had yet another confrontation with a coworker, gave away more “recognition awards” without Fuller’s authorization, and once again worked overtime without *666permission. Fuller fired Wilson on December 6 after learning about these incidents. Fatum wrote Wilson on December 7 to explain that she had been fired because of her “violation of company rules relating to payroll practices (unauthorized overtime), unauthorized purchases, unauthorized issuance of company property (recognition awards) and your general poor demeanor.”
In support of her claim of a hostile work environment, Wilson asserts that she experienced ten incidents of harassment motivated by her sex or race. She explains in her appellate brief that the white, male employees who attended weekly management meetings with her belittled her by making inappropriate jokes and that once, when she was making coffee, Hollinan walked by and quipped, “Coffee, tea or me?” She also alleges that on one occasion Fatum and other white employees refused to eat lunch with her, that Fuller asked her to wear “tight fitted blue jeans and sexy tops,” and that an unknown Kautex employee tampered with her ear. But there is no evidence in the record to substantiate these five incidents.
As for the other five incidents, Wilson’s effort to characterize them as harassment is frivolous. Wilson complains about being assigned to clean the supply closet and told to share a ride to an offsite meeting with a male employee she did not know. But Fatum asked Wilson to clean the closet because that was one of the tasks she was hired to perform and asked her to share a ride to the offsite meeting so she would not have to navigate an unfamiliar city. Wilson also complains that she was not allowed to bring more than one guest to the holiday party, but no Kautex employee was allowed to bring more than one guest. And although Wilson complains that she was not issued a company cell phone and that the troubles she had with Kautex’s computer systems were a result of racial harassment, her job did not require her to have a cell phone, and Fuller, Fatum, and Hollinan all offered her support and encouragement as she struggled to master Kautex’s computer systems. Not only are these complaints trivial, but they have nothing to do with Wilson’s sex or race.
Wilson’s claim that she was fired because of a discriminatory motive is similarly flawed. She produced no evidence that Kautex fired her because of her sex or race. See Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 781 (7th Cir. 2007); Sylvester v. SOS Children’s Vills. Ill., Inc., 453 F.3d 900, 902-04 (7th Cir.2006). Nor did she fare any better under the indirect method. Wilson did not establish a prima facie case of discrimination because she produced no evidence that she was meeting Kautex’s legitimate expectations. See Dear v. Shinseki, 578 F.3d 605, 610 (7th Cir.2009). To the contrary, the record reveals that Wilson was unable to perform her assigned duties and all the while was breaking company rules and mistreating her coworkers.
Wilson’s retaliation claim was also doomed. She alleged that Fuller asked her to stop attending weekly management meetings and later fired her because she complained to Broschay about the Avilla facility’s discriminatory practices. But there is no evidence in the record that Wilson ever spoke to Broschay. In any event, because it is undisputed that Fuller and Fatum never knew about Wilson’s complaints, their decision to fire her could not have been made in retaliation for those complaints. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 668-69 (7th Cir.2006).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478808/ | ORDER
Steven Villa was sentenced to 120 months in prison, the statutory minimum, for distributing more than 50 grams of crack cocaine. On appeal he asserts that the disparity between the amount of drugs required to trigger the statutory minimum sentences for crack offenses as compared to powder cocaine offenses violates the equal protection branch of the Fifth Amendment’s due process clause and results in excessive punishment under the Eighth Amendment. We affirm.
Villa pled guilty to distributing more than 50 grams of crack in violation of 21 U.S.C. § 841(a)(1). At sentencing the district court applied a base offense level of 32 for relevant conduct including distribution of 396.9 grams of crack, see U.S.S.G. § 2Dl.l(c)(4), and subtracted three levels for acceptance of responsibility, see § 3E1.1, producing a total offense level of 29. For Villa’s criminal history category of III, the guideline range would have been 108 to 135 months’ imprisonment, except that the statutory mandatory minimum sentence of 120 months, see 21 U.S.C. § 841 (b)(1)(A)(iii), raised the bottom of the range to 120 months. The court sentenced him to that minimum.
*669It is well known that the sentencing provisions of 21 U.S.C. § 841(b) treat one gram of cocaine base or crack as equivalent to 100 grams of powder cocaine. On appeal Villa argues that a “national consensus has developed rejecting the crack-powder disparity.” Villa relies on Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), as well as various secondary legal materials, to argue that the crack/powder sentencing disparity lacks a rational basis. See, e.g., id. at 97, 128 S.Ct. 558 (noting that the sentencing commission “determined that the crack/powder sentencing disparity is generally unwarranted”); U.S. Sentencing Comm’n, Report to Congress: Cocaine and Federal Sentencing Policy 8 (2007) (concluding that “the Commission maintains its consistently held position that the 100-to-l drug quantity ratio significantly undermines the various congressional objectives set forth in the Sentencing Reform Act”); Restoring Fairness to Federal Sentencing: Addressing the Crack-Poivder Disparity; Before the Subcomm. on Crime and Drugs of the S. Comm, on the Judiciary, 111th Cong. 6 (2009) (statement of Lanny Breuer, Assistant Att’y Gen., Criminal Division, United States Department of Justice) (“The legislative history does not provide definitive evidence for the rationale behind the adoption of the 100-to-l ratio.”). Such debate about legislative proposals does not provide a foundation for declaring existing legislation unconstitutional. The way for any such emerging consensus to change the law is for Congress to enact new legislation, not for judges to read tea leaves to try to predict what Congress might do.*
As Villa concedes, we have repeatedly rejected constitutional challenges to the different statutory mínimums for crack and powder cocaine. See United States v. Taylor, 522 F.3d 781, 736 (7th Cir.2008) (rejecting equal protection challenge); United States v. Trice, 484 F.3d 470, 476 (7th Cir.2007) (same); United States v. Westbrook, 125 F.3d 996, 1010 (7th Cir.1997) (rejecting unspecified challenge); United States v. Baker, 78 F.3d 1241, 1248 (7th Cir.1996) (rejecting equal protection and Eighth Amendment challenges); United States v. Smith, 34 F.3d 514, 525 (7th Cir.1994) (rejecting Eighth Amendment challenge); United States v. Lawrence, 951 F.2d 751, 754-55 (7th Cir.1991) (rejecting equal protection and substantive due process challenges). Kimbrough did not affect these holdings, for it held only that the Sentencing Guidelines, including those portions that mirror the statutory 100-to-1 ratio, are in fact only advisory. 552 U.S. at 108-10, 128 S.Ct. 558. Kimbrough did not call into question the constitutionality of the statutory sentencing provisions.
Villa has preserved his arguments for further review, but we see no persuasive basis in the ongoing policy debate for revisiting these earlier constitutional holdings. We do not mean to suggest that we endorse the current 100-to-l ratio in section 841(b) as sound policy. Those policy judgments are not part of our responsibilities. We hold only that the current statute passes muster under the Eighth Amendment and the equal protection *670branch of the Fifth Amendment’s due process clause.
AFFIRMED.
For example, Villa relies upon legislative proposals that would eliminate any reference to cocaine base from the relevant statutes, so that cocaine powder and crack cocaine would be treated identically. On March 11, 2010, after oral argument, the United States Senate Judiciary Committee unanimously approved proposed legislation that would raise the threshold for the ten-year mandatory minimum sentence from 50 grams of crack to 280 grams. See S. 1789. If Villa were charged with the entire 396 grams of crack for which he was held responsible in the sentencing guideline calculation, the current version of S. 1789 would not help Villa at all. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478810/ | ORDER
Nickolas Laumann is a Wisconsin inmate who sued prison guards, medical employees, and administrators under 42 U.S.C. § 1983, claiming that they were deliberately indifferent to a serious medical condition. The district court granted the defendants’ motion for summary judgment, reasoning that, even though they could not cure Laumann’s condition, they did not ignore it. We affirm the judgment.
The first sign that Laumann was ill came around 2:00 a.m. on June 25, 2006, when he vomited blood and complained of chest pain and difficulty breathing. He says that the guard on duty ignored his pleas to be taken to the infirmary. When a different guard came on shift around 6:00 a.m., Laumann renewed his pleas to be taken to the infirmary. So the guard sent him to a nurse who was dispensing medication to other prisoners, but she said she could not help. A short while later Laumann was permitted to speak by telephone to Kathy Lemens, a registered nurse. He described his symptoms, and Lemens told him she would arrive around 8:00 a.m. and attend to him then. Once she examined him, she decided to move him to the infirmary for observation. She gave him Advil and Pepto-Bismol and instructed him to stay hydrated. The next day, Laumann reported that he was no longer vomiting and asked to return to his cell.
Apparently Laumann’s symptoms returned on July 5. The prison’s nursing supervisor told him she would schedule an appointment with Richard Heidorn, a prison physician. Laumann was transferred back to the infirmary cell on July 13 after he began vomiting within minutes of eating any food. Dr. Heidorn examined him for the first time on July 14 and, suspecting a kidney stone, told Laumann he would follow up with him three days later. Lau-mann continued to vomit after every meal, *671and his weight dropped by nine pounds over those three days. So Dr. Heidorn sent him to the emergency room at a local hospital, where Laumann was diagnosed with a case of gastritis, an inflammation of the stomach lining. The hospital prescribed medication and recommended seeing a gastrointestinal specialist.
Laumann’s symptoms persisted, so a week later Dr. Heidorn scheduled an appointment with a gastrointestinal specialist at an outside clinic. The specialist performed two tests that revealed that Lau-mann was suffering from achalasia, a disorder in which the lower esophageal sphincter fails to relax during swallowing. Dr. Heidorn responded by instructing Laumann to drink a nutritional energy supplement at every meal and prescribing oral nitrates; he also ordered nurses to monitor his vital signs once a week.
But Laumann continued to vomit blood and lose weight. So Dr. Heidorn ordered an upper gastrointestinal endoscopy, which was performed at an outside clinic on October 5. Laumann also underwent a balloon-dilation procedure and received a bo-tox injection at the same clinic on October 25. After reviewing the results from each of these procedures, Dr. Heidorn prescribed the medications and diets recommended by the outside clinic. Throughout this time Laumann complained to several prison administrators about the treatment he was receiving. On December 1, 2006, he was transferred to a different prison.
Laumann’s complaint names as defendants Dr. Heidorn, five nurses, the prison’s medical director, and several administrators. In his complaint Laumann also mentioned as “John Doe” defendants the two guards and the nurse he first complained to on June 25, but none of these persons was served with process. The district court granted the defendants’ motion for summary judgment, reasoning that Dr. Heidorn and the other medical personnel took Laumann’s “condition seriously and treated him attentively.” Laumann’s disagreement with the course of treatment he received, the district court explained, was insufficient to make out a claim of deliberate indifference. As for the prison administrators, the district court determined that they were not deliberately indifferent when they concluded that the treatment meted out by medical personnel was adequate.
On appeal Laumann argues that the district court erred in granting summary judgment for the defendants because his condition was never cured. But Laumann presented no evidence that the response of Dr. Heidorn and the defendant nurses was such a departure from accepted professional practice that a reasonable factfinder could infer indifference. See Duckworth v. Ahmad, 532 F.3d 675, 682 (7th Cir.2008); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir.2001); Estate of Cole ex rel. Pardue v. Fromm, 94 F.3d 254, 261-62 (7th Cir.1996). In fact the record shows the opposite. Once it became clear that Laumann’s symptoms were serious, Dr. Heidorn sent him to outside experts who successfully diagnosed his achalasia. The disease has no known cure, see Mayo Clinic, Achalasia, http://www.mayoclinic. org/achalasia/ (last visited Apr. 14, 2010), but Laumann received all the recommended nonsurgieal treatments, including oral nitrates, a botox injection, and a balloon dilation, see Mayo Clinic, Achalasia Treatment, http://www.mayoclinic.org/ achalasia/treatmenthtml (last visited Apr. 14, 2010). So the treating doctor and nurses were far from deliberately indifferent to Laumann’s condition, and it follows that the defendant administrators could not be liable for deferring to the judgment of medical personnel. See Hayes v. Snyder, 546 F.3d 516, 527-28 (7th Cir.2008); Johnson v. Doughty, 433 F.3d 1001, 1012 (7th Cir.2006); Greeno v. Daley, 414 F.3d 645, 655-56 (7th Cir.2005).
*672Laumann also argues that the district court erred by granting summary judgment before he had a chance to amend his complaint to add as defendants the three “John Does.” There is no evidence in the record that the unnamed guards and nurse could have done anything to assist Laumann before he was permitted to speak with Nurse Lemens. More importantly, however, Laumann never filed a motion under Federal Rule of Civil Procedure 56(f) explaining why it would be premature to rule on the defendants’ motion for summary judgment. See Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th Cir.2006); King v. Cooke, 26 F.3d 720, 726 (7th Cir.1994); DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir.1993) (requiring pro se litigant to follow Rule 56(f)). Laumann had identified all these prison employees fairly early in the game, and though he filed a document captioned “Amended Information” that he apparently thought would amend his complaint to add additional defendants, the district court never acted on that submission. Laumann did not make another attempt; instead he continued to demand that the defendants give him photographs of each guard on duty the morning of June 25 and insisted that he could not amend his complaint until the photographs were in his possession. A pro se prisoner may be excused from his initial inability to name his adversaries, but at some point he must discover their identities and have them served. Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 789 (7th Cir.1995). Laumann had more than ample opportunity.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478812/ | *677ORDER
A jury found Maurice Tucker guilty of distributing, and attempting to distribute, crack cocaine. See 21 U.S.C. §§ 841(a)(1), 846. The district court sentenced Tucker to a total of 240 months’ imprisonment. Tucker appeals his convictions and sentence, but his appointed counsel has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Tucker opposes counsel’s motion. See Cir. R. 51(b). We review only the potential issues identified by counsel in her facially adequate brief and by Tucker in his response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel considers challenging the sufficiency of the evidence underlying Tucker’s convictions but concludes that the evidence is overwhelming. At trial the jury found that Tucker had distributed 5 or more grams of crack on February 22, 2005, and attempted to distribute 50 or more grams on March 14. An informant, Amy Dunlap, testified that she worked with law-enforcement officers to set up three controlled buys from Tucker in Kankakee, Illinois: She purchased 3.2 grams of crack from him on January 26 and 5.4 grams on February 22, and she arranged to meet him on March 14 for another purchase. Video and audio recordings captured Tucker’s sale on February 22, and police overheard his telephone conversations with Dunlap to set up the March 14 sale. Two other government witnesses, James Hill and Da-taun Artis, testified that they were together on March 14 when Tucker phoned and asked Hill to deliver two ounces of crack to Dunlap. Hill and Artis picked up the crack at an address provided by Tucker and were on their way to meet Dunlap when police stopped their car. The officers found 12.4 grams of crack in the center console and another 53.1 grams in Hill’s waistband.
We would uphold the guilty verdicts if any rational jury could have found the elements of the charged crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Moore, 572 F.3d 334, 337 (7th Cir.2009). Counsel considers arguing that Dunlap, Hill, and Artis all lied to obtain reduced sentences, and indeed all of them conceded that they were motivated to cooperate with investigators or prosecutors to gain concessions for themselves or, in Dunlap’s case, for her flaneé. But as counsel recognizes, we would not disturb the jury’s credibility findings even if the testimony at issue were uncorroborated, see United States v. Beaver, 515 F.3d 730, 739 (7th Cir.2008), and a sufficiency argument would be particularly frivolous in this instance, where recordings and surveillance corroborated the cooperating witnesses.
Counsel also considers whether Tucker could argue that the district court erred in denying his motions to exclude evidence or postpone the trial because of disclosures the government made on the eve of the trial, which began on April 10, 2006. On April 3 the government tendered law-enforcement reports in compliance with the Jencks Act, 18 U.S.C. § 3500, and disclosed as impeachment evidence the prior convictions of Dunlap and Hill, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). On April 6, the government tendered more Jencks material (prior statements of witnesses) and impeachment evidence (Hill’s and Artis’s cooperation agreements, which had been executed that day). Trial counsel argued that the timing of the disclosures violated Federal Rule of Criminal Procedure 16(a)(1)(E)© and (ii), and asked either that the materials be excluded under Rule *67816(d)(2)(C) or that the trial be postponed to give Tucker more time to prepare. Appellate counsel recognizes, however, that the government’s disclosures were early, not tardy. Rule 16 does not compel the government to disclose prior statements by any witness except an expert; nor does the rule require disclosure of impeachment evidence. See Degen v. United States, 517 U.S. 820, 825, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996); United States v. Underwood, 174 F.3d 850, 853 (7th Cir.1999); United States v. Cerro, 775 F.2d 908, 915 (7th Cir.1985). The Jencks Act governs disclosure of witness statements and compels disclosure only after a witness has testified on direct examination. 18 U.S.C. § 3500; United States v. Bagley, 473 U.S. 667, 670 n. 2, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); United States v. Morris, 957 F.2d 1391, 1400 (7th Cir.1992). And impeachment evidence need only be disclosed sufficiently in advance of cross-examination for the defendant to make effective use of that information. See United States v. O’Hara, 301 F.3d 563, 569 (7th Cir.2002). Tucker had a week to review fewer than 50 pages of records, including cooperation agreements for Hill and Artis that were executed the same day the government made them available to him. Defense counsel effectively used the disputed materials at trial, and any argument that the timing of the disclosures hampered Tucker’s defense would be frivolous.
Finally, counsel questions whether Tucker could challenge his prison sentence. The attempted sale on March 14 involved more than 50 grams of crack, and Tucker already had a felony conviction for a drug offense. He thus faced a mandatory term of 20 years, which is what the district court imposed. See 21 U.S.C. § 841(b)(1)(A)(iii); United States v. White, 519 F.3d 342, 346 (7th Cir.2008). The only bases for imposing a sentence below a statutory minimum are 18 U.S.C. § 3553(e) and § 3553(f), and, as counsel acknowledges, neither applies to this case. The district court could not have given Tucker a lower sentence. See United States v. Cooper, 461 F.3d 850, 856 (7th Cir.2006).
Tucker himself argues that his indictment fails “to properly state or charge a known federal crime or offense” under 21 U.S.C. § 841(a)(1). Because he did not challenge the indictment in the district court, we would not find it defective unless it is so obviously deficient that it cannot reasonably be construed as charging a crime. United States v. Castaldi, 547 F.3d 699, 703 (7th Cir.2008). The indictment alleges that Tucker distributed and attempted to distribute “a mixture or substance containing cocaine base (crack),” but in Tucker’s view, crack cannot be a contained in a “mixture or substance” because it is a finished product, ready for use. This contention is frivolous.
Tucker also argues that his trial counsel was ineffective at sentencing for failing to address a purported recommendation in the presentence investigation report that he be sentenced as a career offender based on a misdemeanor for simple possession of cannabis. See U.S.S.G. § 4B1.1. But neither the probation officer nor the district court thought that Tucker was a career offender; he received a longer sentence, mandated by statute, because of the drug quantity and his prior felony drug conviction. Tucker’s belief that he was sentenced as a career offender is mistaken.
Accordingly, we GRANT counsel’s motion and DISMISS Tucker’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478821/ | ORDER
David Lindsay pleaded guilty to conspiring to distribute in excess of 500 grams of methamphetamine and possessing with intent to distribute at least 5 grams of methamphetamine, see 21 U.S.C. §§ 841(a)(1), 846, and was sentenced to 204 months’ imprisonment. In the plea agreement he waived his right to appeal his conviction and sentence. He filed a notice of appeal, but his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot identify any non-frivolous argument to pursue. Lindsay did not accept our invitation to respond to his lawyer’s submissions, see Cir. R. 51(b), so we limit our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Lindsay does not seek to have his guilty plea set aside, so counsel rightly omits a discussion of the plea’s voluntariness or the plea colloquy. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).
Counsel considers whether Lindsay could challenge the reasonableness of his agreed-upon sentence, but properly con-*692eludes that such a challenge would be foreclosed by the appeal waiver. Because the guilty plea stands, so does the waiver. See Nunez v. United States, 546 F.3d 450, 453 (7th Cir.2008).
Finally, counsel correctly points out that any challenge to the effectiveness of his representation in the district court should be explored in a collateral proceeding so that a more complete record can be developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
For the foregoing reasons, we GRANT counsel’s motion to withdraw and DISMISS Lindsay’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478802/ | PER CURIAM: *
Efren Hernandez-Isidro appeals his guilty plea conviction and sentence for being found in the United States unlawfully following deportation. He argues that the case should be remanded to the district court to conform the written judgment to the oral pronouncement of sentence by including the district court’s recommendation that his sentence run concurrently with any pending state charges.
After the parties’ briefs were filed, the district court entered an amended judgment that includes the concurrent sentencing recommendation. Accordingly, we dismiss the appeal as moot. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).
APPEAL DISMISSED.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5tii Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478803/ | ORDER
In this action under Title VII of the Civil Rights Act of 1964, Margaret Wilson claims that Kautex, her former employer, subjected her to a hostile work environment, fired her because of her sex and race, and retaliated against her because she engaged in statutorily protected activity. See 42 U.S.C. §§ 2000e-2(a)(l), 2000e-3(a). Both parties moved for summary judgment, but because Wilson did not submit a statement of material facts supported by appropriate citation, which is required by Local Rule 56.1, the district court accepted the facts asserted by Kau-tex. After conducting a thorough analysis of Wilson’s claims, the district court granted Kautex’s motion for summary judgment.
Wilson argues on appeal that summary judgment was inappropriate because material facts remain disputed and because a jury is required to make any credibility determinations. She repeats many of the allegations that she failed to support with citation to competent evidence before the district court. But the district court had previously reminded the parties that they were required to comply with Local Rule 56.1, and Kautex had notified Wilson that it planned to move for summary judgment and explained what she would have to do in response. See Timms v. Frank, 953 F.2d 281, 285 (7th Cir.1992). So strictly enforcing Local Rule 56.1 was well within the district court’s discretion, see Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 359-60 (7th Cir.2009), even though Wilson is a pro se litigant, see Greer v. Bd. of Educ., 267 F.3d 723, 727 (7th Cir.2001).
Nor do we see any error in the district court’s well-reasoned analysis of Wilson’s claims. We too accept the facts asserted by Kautex and view them in the light most favorable to Wilson. See Cady v. Sheah-an, 467 F.3d 1057, 1061 (7th Cir.2006). Kautex hired Wilson, who is African American, to work as the administrative assistant to Eldon Fuller, the vice president of operations at Kautex’s facility in Avilla, Indiana. Fuller was Wilson’s direct supervisor, but Russ Fatum, the human resources business partner at the Avilla facility, was responsible for training Wilson and assigning some of her work.
During Wilson’s first week on the job in April 2005, Fatum asked her to clean and organize a supply closet that had fallen into disarray. Later that same week, Fa-tum instructed Wilson to attend an offsite meeting and, because she was not familiar with Avilla, asked her to ride with a male employee who knew the way. Wilson was offended by both directives.
Then in May, according to her complaint, Wilson complained about her new job to Sara Broschay, a human resources employee at Kautex’s corporate headquarters in Michigan. When pressed at her *665deposition for details about this and other later complaints to Broschay, Wilson recalled that she had told Broschay she was being treated unfairly because she was required to submit her expense reports on paper instead of through the electronic system used by her coworkers. In fact, however, Hollman explained that he initially asked Wilson to submit paper reports “to ensure she understood the process” and delayed granting her access to the electronic system because she kept making mistakes. Fuller and Fatum never knew about Wilson’s conversations with Bros-chay, and there is no evidence that Bros-chay took Wilson’s complaints seriously.
In the weeks that followed, Fuller assigned Wilson to order supplies for the Avilla facility, but she had difficulty learning Kautex’s electronic ordering program. When Bryan Hollman, the controller at the Avilla facility, refused to approve her deficient order requests, Wilson accused him of “abusing” his power to make her job “as difficult as possible” and told other employees to submit their supply orders directly to him instead. Occasionally the facility ran out of supplies because Wilson had not ordered sufficient quantities, and other times she used unauthorized vendors without permission. Fuller asked Fatum to provide “guidance” to Wilson, so Fatum sent her an encouraging e-mail with advice on using the computer system. Hollman also offered Wilson further training.
Throughout this time Wilson had trouble working with other Kautex employees. At times she refused to accept assignments from Fatum and insisted that he first talk to Fuller. She also sparred with Hollman when he denied her deficient order requests. Other coworkers complained to Fuller and Fatum that Wilson was “rude, disrespectful, and uncooperative.” Fuller discussed these complaints with her in June 2005 and again in August. Although Wilson told Fuller that her coworkers did not like her, she did not say or imply that their antipathy had anything to do with her sex or race.
In August Fuller and Hollman denied Wilson’s request to be reimbursed for cell phone expenses because her job did not require a cell phone. Later that month Fatum discovered that Wilson had, of her own accord, rewarded other employees with gift certificates. Fuller and Fatum reminded Wilson that she was permitted to give out these “recognition awards” only with Fuller’s authorization. Fuller and Fatum also discovered that Wilson had worked overtime without permission and reminded her that Fuller had to authorize all overtime hours.
A series of incidents in November and December 2005 resulted in Wilson being fired. Wilson asked Fatum if she could purchase a DVD player for the facility; he said no, but she purchased one anyway. Then an employee from another facility complained to Fuller that, when she asked Wilson to reserve a conference room in Avilla, Wilson was rude and unprofessional. And after that Wilson bought three tickets to Kautex’s holiday party even though each employee was permitted to bring only one guest. When Wilson learned that she could not bring two guests, she berated Sheryl Ritchie, who was organizing the party, and demanded a refund for all three tickets. Ritchie complained to Fatum about Wilson’s tirade.
Fuller and Fatum told Wilson on November 29 that her performance was unacceptable and that she would be fired if she did not improve. In particular they cited her “poor treatment of other employees,” her difficulties ordering supplies, and her refusal to take orders from Fatum. But just a few days after that warning, Wilson had yet another confrontation with a coworker, gave away more “recognition awards” without Fuller’s authorization, and once again worked overtime without *666permission. Fuller fired Wilson on December 6 after learning about these incidents. Fatum wrote Wilson on December 7 to explain that she had been fired because of her “violation of company rules relating to payroll practices (unauthorized overtime), unauthorized purchases, unauthorized issuance of company property (recognition awards) and your general poor demeanor.”
In support of her claim of a hostile work environment, Wilson asserts that she experienced ten incidents of harassment motivated by her sex or race. She explains in her appellate brief that the white, male employees who attended weekly management meetings with her belittled her by making inappropriate jokes and that once, when she was making coffee, Hollinan walked by and quipped, “Coffee, tea or me?” She also alleges that on one occasion Fatum and other white employees refused to eat lunch with her, that Fuller asked her to wear “tight fitted blue jeans and sexy tops,” and that an unknown Kautex employee tampered with her ear. But there is no evidence in the record to substantiate these five incidents.
As for the other five incidents, Wilson’s effort to characterize them as harassment is frivolous. Wilson complains about being assigned to clean the supply closet and told to share a ride to an offsite meeting with a male employee she did not know. But Fatum asked Wilson to clean the closet because that was one of the tasks she was hired to perform and asked her to share a ride to the offsite meeting so she would not have to navigate an unfamiliar city. Wilson also complains that she was not allowed to bring more than one guest to the holiday party, but no Kautex employee was allowed to bring more than one guest. And although Wilson complains that she was not issued a company cell phone and that the troubles she had with Kautex’s computer systems were a result of racial harassment, her job did not require her to have a cell phone, and Fuller, Fatum, and Hollinan all offered her support and encouragement as she struggled to master Kautex’s computer systems. Not only are these complaints trivial, but they have nothing to do with Wilson’s sex or race.
Wilson’s claim that she was fired because of a discriminatory motive is similarly flawed. She produced no evidence that Kautex fired her because of her sex or race. See Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 781 (7th Cir. 2007); Sylvester v. SOS Children’s Vills. Ill., Inc., 453 F.3d 900, 902-04 (7th Cir.2006). Nor did she fare any better under the indirect method. Wilson did not establish a prima facie case of discrimination because she produced no evidence that she was meeting Kautex’s legitimate expectations. See Dear v. Shinseki, 578 F.3d 605, 610 (7th Cir.2009). To the contrary, the record reveals that Wilson was unable to perform her assigned duties and all the while was breaking company rules and mistreating her coworkers.
Wilson’s retaliation claim was also doomed. She alleged that Fuller asked her to stop attending weekly management meetings and later fired her because she complained to Broschay about the Avilla facility’s discriminatory practices. But there is no evidence in the record that Wilson ever spoke to Broschay. In any event, because it is undisputed that Fuller and Fatum never knew about Wilson’s complaints, their decision to fire her could not have been made in retaliation for those complaints. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 668-69 (7th Cir.2006).
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478805/ | ORDER
Everett Lowe is serving a 65-year prison sentence in Illinois for attempted first-degree murder. Lowe had entered a police station with a gun and tried to shoot an officer in the head, but the weapon jammed. The trial court issued a mittimus (an order directing jailers to carry out the judgment) identifying the statutory citation for first-degree murder but not for the crime of attempt, and although the mitti-mus was amended to include the missing citation, Lowe has long insisted that he was wrongly convicted of murder instead of attempted murder. He sought collateral relief in state and federal court on the basis of this theory, and when those efforts failed, Lowe filed this civil-rights action claiming that prosecutors, defense lawyers, appellate judges, and others have conspired to keep his unlawful imprisonment under wraps. He seeks hundreds of millions of dollars and a declaration that his rights were violated. The district court dismissed Lowe’s complaint on initial screening under 28 U.S.C. § 1915A.
That ruling was appropriate. The state trial court accurately pronounced judgment against Lowe for attempted, first-degree murder but left out of the mittimus a citation to the attempt statute. That clerical error was promptly corrected as allowed by Illinois law, see People v. Patona, 184 Ill.2d 260, 234 Ill.Dec. 801, 703 N.E.2d 901, 910 (1998); People v. Wright, 337 Ill.App.3d 759, 272 Ill.Dec. 684, 787 N.E.2d 870, 872-73 (2003), and Lowe’s fanciful allegations of improprieties committed in the name of covering up his wrongful imprisonment are facially implausible. See Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Before this appeal Lowe had already incurred three strikes under 28 U.S.C. § 1915(g), forcing him to prepay the appellate fees. This appeal is his fourth strike.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478811/ | *677ORDER
A jury found Maurice Tucker guilty of distributing, and attempting to distribute, crack cocaine. See 21 U.S.C. §§ 841(a)(1), 846. The district court sentenced Tucker to a total of 240 months’ imprisonment. Tucker appeals his convictions and sentence, but his appointed counsel has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Tucker opposes counsel’s motion. See Cir. R. 51(b). We review only the potential issues identified by counsel in her facially adequate brief and by Tucker in his response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel considers challenging the sufficiency of the evidence underlying Tucker’s convictions but concludes that the evidence is overwhelming. At trial the jury found that Tucker had distributed 5 or more grams of crack on February 22, 2005, and attempted to distribute 50 or more grams on March 14. An informant, Amy Dunlap, testified that she worked with law-enforcement officers to set up three controlled buys from Tucker in Kankakee, Illinois: She purchased 3.2 grams of crack from him on January 26 and 5.4 grams on February 22, and she arranged to meet him on March 14 for another purchase. Video and audio recordings captured Tucker’s sale on February 22, and police overheard his telephone conversations with Dunlap to set up the March 14 sale. Two other government witnesses, James Hill and Da-taun Artis, testified that they were together on March 14 when Tucker phoned and asked Hill to deliver two ounces of crack to Dunlap. Hill and Artis picked up the crack at an address provided by Tucker and were on their way to meet Dunlap when police stopped their car. The officers found 12.4 grams of crack in the center console and another 53.1 grams in Hill’s waistband.
We would uphold the guilty verdicts if any rational jury could have found the elements of the charged crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Moore, 572 F.3d 334, 337 (7th Cir.2009). Counsel considers arguing that Dunlap, Hill, and Artis all lied to obtain reduced sentences, and indeed all of them conceded that they were motivated to cooperate with investigators or prosecutors to gain concessions for themselves or, in Dunlap’s case, for her flaneé. But as counsel recognizes, we would not disturb the jury’s credibility findings even if the testimony at issue were uncorroborated, see United States v. Beaver, 515 F.3d 730, 739 (7th Cir.2008), and a sufficiency argument would be particularly frivolous in this instance, where recordings and surveillance corroborated the cooperating witnesses.
Counsel also considers whether Tucker could argue that the district court erred in denying his motions to exclude evidence or postpone the trial because of disclosures the government made on the eve of the trial, which began on April 10, 2006. On April 3 the government tendered law-enforcement reports in compliance with the Jencks Act, 18 U.S.C. § 3500, and disclosed as impeachment evidence the prior convictions of Dunlap and Hill, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). On April 6, the government tendered more Jencks material (prior statements of witnesses) and impeachment evidence (Hill’s and Artis’s cooperation agreements, which had been executed that day). Trial counsel argued that the timing of the disclosures violated Federal Rule of Criminal Procedure 16(a)(1)(E)© and (ii), and asked either that the materials be excluded under Rule *67816(d)(2)(C) or that the trial be postponed to give Tucker more time to prepare. Appellate counsel recognizes, however, that the government’s disclosures were early, not tardy. Rule 16 does not compel the government to disclose prior statements by any witness except an expert; nor does the rule require disclosure of impeachment evidence. See Degen v. United States, 517 U.S. 820, 825, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996); United States v. Underwood, 174 F.3d 850, 853 (7th Cir.1999); United States v. Cerro, 775 F.2d 908, 915 (7th Cir.1985). The Jencks Act governs disclosure of witness statements and compels disclosure only after a witness has testified on direct examination. 18 U.S.C. § 3500; United States v. Bagley, 473 U.S. 667, 670 n. 2, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); United States v. Morris, 957 F.2d 1391, 1400 (7th Cir.1992). And impeachment evidence need only be disclosed sufficiently in advance of cross-examination for the defendant to make effective use of that information. See United States v. O’Hara, 301 F.3d 563, 569 (7th Cir.2002). Tucker had a week to review fewer than 50 pages of records, including cooperation agreements for Hill and Artis that were executed the same day the government made them available to him. Defense counsel effectively used the disputed materials at trial, and any argument that the timing of the disclosures hampered Tucker’s defense would be frivolous.
Finally, counsel questions whether Tucker could challenge his prison sentence. The attempted sale on March 14 involved more than 50 grams of crack, and Tucker already had a felony conviction for a drug offense. He thus faced a mandatory term of 20 years, which is what the district court imposed. See 21 U.S.C. § 841(b)(1)(A)(iii); United States v. White, 519 F.3d 342, 346 (7th Cir.2008). The only bases for imposing a sentence below a statutory minimum are 18 U.S.C. § 3553(e) and § 3553(f), and, as counsel acknowledges, neither applies to this case. The district court could not have given Tucker a lower sentence. See United States v. Cooper, 461 F.3d 850, 856 (7th Cir.2006).
Tucker himself argues that his indictment fails “to properly state or charge a known federal crime or offense” under 21 U.S.C. § 841(a)(1). Because he did not challenge the indictment in the district court, we would not find it defective unless it is so obviously deficient that it cannot reasonably be construed as charging a crime. United States v. Castaldi, 547 F.3d 699, 703 (7th Cir.2008). The indictment alleges that Tucker distributed and attempted to distribute “a mixture or substance containing cocaine base (crack),” but in Tucker’s view, crack cannot be a contained in a “mixture or substance” because it is a finished product, ready for use. This contention is frivolous.
Tucker also argues that his trial counsel was ineffective at sentencing for failing to address a purported recommendation in the presentence investigation report that he be sentenced as a career offender based on a misdemeanor for simple possession of cannabis. See U.S.S.G. § 4B1.1. But neither the probation officer nor the district court thought that Tucker was a career offender; he received a longer sentence, mandated by statute, because of the drug quantity and his prior felony drug conviction. Tucker’s belief that he was sentenced as a career offender is mistaken.
Accordingly, we GRANT counsel’s motion and DISMISS Tucker’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478813/ | ORDER
Leroy Sharp pleaded guilty to distributing between 5 and 20 grams of crack cocaine. See 21 U.S.C. § 841(a)(1). Sharp conceded at sentencing that he qualified as a career offender based on his three prior convictions for drug offenses and a crime of violence, see U.S.S.G. § 4B1.1, and he was sentenced below the applicable guidelines range to 240 months’ imprisonment. Sharp filed a timely appeal, but his appointed counsel has moved to withdraw because he cannot identify any nonfrivo-lous argument to pursue on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Sharp to respond to counsel’s motion, but he declined to do so. See Cir. R. 51(b). Because counsel’s brief is facially adequate, we limit our review to the potential issues he has identified. United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel begins by telling us that Sharp does not wish to withdraw his plea, and thus he properly refrains from discussing possible challenges to the voluntary nature of the plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
The only other argument counsel considers is whether Sharp could challenge the reasonableness of his below-guidelines sentence. The district court correctly calculated Sharp’s guidelines range as 262 to 327 months (assigning a base offense level of 37, a three-level reduction for acceptance of responsibility, and a criminal history category of VI) and sentenced him to 240 months. We would presume that a sentence falling within the properly calculated guidelines range is reasonable, Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir.2008), and we have never declared a below-range sentence to be unreasonable, see United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008). The district court also properly considered the sentencing factors in 18 U.S.C. § 3553(a), focusing on Sharp’s extensive criminal history, the danger he posed to the community, his propensity for violence and dishonesty, his lack of respect for the law, and his consistent efforts to avoid responsibility for his actions. The court acknowledged that Sharp’s most recent offense involved only a small amount of drugs, but determined that a sentence of 20 years was necessary to protect the public and serve as a suffi*680cient deterrent. Accordingly, we agree with counsel that it would be frivolous to argue that Sharp’s sentence was unreasonable.
We therefore GRANT the motion to withdraw and DISMISS Sharp’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478815/ | ORDER
Francisca Paiz-Vargas, a citizen of Guatemala, entered the United States without authorization in 1998 and then in 2003 applied for asylum and withholding of removal. Four unidentified men, possibly gang members, had battered and tried to rape Paiz-Vargas on a Guatemalan street in 1995, and she allegedly fears more violence in the future. An Immigration Judge denied relief, and the Board of Immigration Appeals affirmed. Paiz-Vargas petitions for review of that decision.
The IJ concluded that Paiz-Vargas’s asylum application was time-barred because she filed it outside the statutory one-year window and had not established extraordinary circumstances to excuse her tardiness. See 8 U.S.C. § 1158(a)(2)(B), (D); Ishitiaq v. Holder, 578 F.3d 712, 715 (7th Cir.2009). The IJ also concluded that the alleged persecution and Paiz-Vargas’s fear are traceable to generalized criminal activity in Guatemala, not to targeting based on a protected ground like membership in a particular social group. See 8 U.S.C. §§ 1101(a)(42)(A), 1231(b)(3)(A). The Board issued a decision essentially reiterating the IJ’s rationale. We review the IJ’s order as supplemented by the Board’s reasoning. See Juarez v. Holder, 599 F.3d 560, 564 (7th Cir.2010); Niam v. Ashcroft, 354 F.3d 652, 655-56 (7th Cir. 2004).
Paiz-Vargas’s petition for review does not address the timeliness of her asylum application, so we evaluate only the denial of withholding of removal. She had to show either that she was persecuted on account of a protected ground, which would trigger a rebuttable presumption of future persecution, or that she more likely than not would be persecuted on account of a protected ground in the future. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b)(1), (2); Ishitiaq, 578 F.3d at 717. We will overturn the Board’s decision only if the record compels the conclusion that Paiz-Vargas is entitled to relief. See Ogayonne v. Mukasey, 530 F.3d 514, 519 (7th Cir.2008).
Paiz-Vargas argues that she was and will be persecuted for her membership in a social group comprised of “women who are victims of sex crimes.” (She also tells us that she was targeted because of her Mayan ancestry, but that is a new contention that was not included in her application for relief or presented to the immigration courts.) Yet Paiz-Vargas gives us no reason to disagree with the Board’s conclusions that this is not a particular social group and that Paiz-Vargas is a victim of rampant crime that affects all women in *683Guatemala “in a relatively undifferentiated way.” See Ahmed v. Ashcroft, 348 F.3d 611, 619 (7th Cir.2003); Kharkhan v. Ashcroft, 336 F.3d 601, 605 (7th Cir.2003).
DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478817/ | ORDER
An acrimonious divorce in 1998 has spawned this and seven prior lawsuits by John Davit against parties he sees as connected to his ex-wife and the divorce proceedings. See, e.g., Davit v. Davit, 173 Fed.Appx. 515 (7th Cir.2006) (unpublished). This time Davit claims that his former spouse, her lawyer, a police officer, and the State’s Attorney in DuPage County, Illinois, conspired to get him convicted on trumped-up criminal charges. Davit had been arrested after scuffling with police on his ex-wife’s driveway; the officers were enforcing an order of protection that prohibited Davit from being at the residence. A state jury found him guilty of *684violating an order of protection, 720 ILCS 5/12-30, and resisting a peace officer, 720 ILCS 5/31-1, but the Appellate Court of Illinois reversed the first of these convictions. Over a dissent the court reasoned that the order of protection was unenforceable because, read literally, it forbade Davit from entering the “household of premises” instead of the “household or premises.” This windfall from a typo has Davit claiming that his arrest and prosecution for being on the driveway were part of a malicious plot to punish him for opposing his ex-wife in the divorce proceedings, for being a Democrat (Davit professes certainty that the defendants are all Republicans), and for exposing “corruption” with his slew of unsuccessful lawsuits.
The district court screened Davit’s complaint prior to service, see 28 U.S.C. § 1915(e)(2)(B); Rowe v. Shake, 196 F.3d 778, 783 (7th Cir.1999), and concluded that it fails to state a claim. We agree. Davit’s claims under 42 U.S.C. § 1983, racketeering laws, see 18 U.S.C. § 1962, and Illinois common law have no plausible basis in fact. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868 (2009); Cooney v. Rossiter, 583 F.3d 967, 970-71 (7th Cir.2009). The complaint, like this appeal, is frivolous, and we now warn Davit that his pursuit of additional frivolous appeals will lead to sanctions under Federal Rule of Appellate Procedure 38.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478824/ | PER CURIAM.
M.C. West appeals the district court’s1 dismissal of her complaint without prejudice for lack of subject matter jurisdiction. Having carefully reviewed the record de novo, see Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir.2005), we find no basis for reversal. Accordingly, we affirm the district court’s judgment. See 8th Cir. R. 47B.
. The Honorable Susan Webber Wright, United States District Judge for the Eastern Dis-tricl of Arkansas. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478818/ | ORDER
An acrimonious divorce in 1998 has spawned this and seven prior lawsuits by John Davit against parties he sees as connected to his ex-wife and the divorce proceedings. See, e.g., Davit v. Davit, 173 Fed.Appx. 515 (7th Cir.2006) (unpublished). This time Davit claims that his former spouse, her lawyer, a police officer, and the State’s Attorney in DuPage County, Illinois, conspired to get him convicted on trumped-up criminal charges. Davit had been arrested after scuffling with police on his ex-wife’s driveway; the officers were enforcing an order of protection that prohibited Davit from being at the residence. A state jury found him guilty of *684violating an order of protection, 720 ILCS 5/12-30, and resisting a peace officer, 720 ILCS 5/31-1, but the Appellate Court of Illinois reversed the first of these convictions. Over a dissent the court reasoned that the order of protection was unenforceable because, read literally, it forbade Davit from entering the “household of premises” instead of the “household or premises.” This windfall from a typo has Davit claiming that his arrest and prosecution for being on the driveway were part of a malicious plot to punish him for opposing his ex-wife in the divorce proceedings, for being a Democrat (Davit professes certainty that the defendants are all Republicans), and for exposing “corruption” with his slew of unsuccessful lawsuits.
The district court screened Davit’s complaint prior to service, see 28 U.S.C. § 1915(e)(2)(B); Rowe v. Shake, 196 F.3d 778, 783 (7th Cir.1999), and concluded that it fails to state a claim. We agree. Davit’s claims under 42 U.S.C. § 1983, racketeering laws, see 18 U.S.C. § 1962, and Illinois common law have no plausible basis in fact. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868 (2009); Cooney v. Rossiter, 583 F.3d 967, 970-71 (7th Cir.2009). The complaint, like this appeal, is frivolous, and we now warn Davit that his pursuit of additional frivolous appeals will lead to sanctions under Federal Rule of Appellate Procedure 38.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478820/ | ORDER
Barbara Suide applied for disability insurance benefits and supplemental security income in December 2003. She claimed at the time that she had been disabled after October 2000 due to bilateral carpal tunnel syndrome, arthritis, and “trigger finger” (an inflamed tendon and tendon sheath of a finger). But the case changed substantially by the time an administrative law judge conducted a hearing in December 2007. By then Suide had suffered two strokes and had filed a second application for benefits that added several more medical conditions to her list of disabling impairments. The ALJ concluded that Suide was impaired by carpal tunnel, trigger finger, stroke, migraines, and obesity but that she was still able to perform some light or sedentary work. On judicial review, the district court affirmed. On appeal Suide argues principally that (1) the ALJ’s assessment of her residual functional capacity was flawed because it did not account for all of her impairments and (2) the ALJ should not have discredited the opinions of her treating physician. Although substantial evidence supports the ALJ’s determination that Suide was not disabled before her first stroke, the record is insufficient to sustain the ALJ’s findings about her residual functional capacity determination after her strokes. We therefore remand the case to the Commissioner for further proceedings to determine whether Suide qualifies for benefits after her stroke in December 2006.
When she applied for disability insurance benefits and supplemental security income in December 2003, Suide was 37 years old and had worked previously as a mail clerk and K-Mart cashier. In support of her claim, Suide submitted evidence of right-hand carpal tunnel syndrome and trigger finger, which required two surgeries to alleviate her pain and to remove part of a tendon from her right hand. She continued to complain of pain, tenderness, and stiffness in her hands and was later diagnosed with left carpal tunnel syndrome. Her diagnosing doctor instructed her to wear a wrist brace when necessary, but the doctor also noted that some of Suide’s complaints were atypical of carpal tunnel, such as numbness in isolated fingers, and that it was unusual for Suide to have still a full range of motion and normal electromyography. Suide also submitted evidence that she had a third surgery to remove a cyst from her right hand in October 2004. The treatments for her hands and wrists appear to have been successful, and her doctors noted improvements in her grip strength and an absence of pain, numbness, and tingling.
Suide’s initial application for benefits also referenced complaints of knee pain and stiffness. X-rays taken in January 2003 showed signs of degenerative arthritis — a diagnosis that was consistently noted in her medical records until 2007, when a rheumatologist determined that lupus might be the real cause of her joint pain. *686Although at the hearing Suide testified about the extent of her knee pain and its significant limitation on her mobility, there is little documenting the effects of her pain or her treatment plan other than occasional notations of her pain complaints in the medical reports and the fact that she took glucosamine and over-the-counter pain medications. In addition, the record includes a few notations of Suide’s height and weight measurements, suggesting that she qualifies as “obese,” but there is no medical evidence that her weight complicated her joint pain. She did not mention her weight in either her first or second applications for benefits, nor did she bring up the subject before the ALJ.
In April 2004, several months after Suide applied for benefits, a state-agency physician assessed her residual functional capacity. The doctor, B. Rock Oh, concluded that Suide could lift up to 50 pounds occasionally and 25 pounds frequently. He also concluded that she could stand, walk, or sit each for approximately six hours per day. Dr. Oh opined that Suide’s grip strength was decreased in both hands, which inhibited manipulation as well as constant handling and fingering.
Suide had been woi’king for several months babysitting her neighbor’s children when she learned that the Social Security Administration denied her claim and her request for reconsideration in 2004. The SSA determined that Suide’s carpal tunnel, trigger finger, and arthritis did not limit her ability to work. Suide requested a hearing before an ALJ, which was eventually scheduled for December 11, 2007, after being rescheduled several times due to Suide’s failure to appear. Meanwhile, Suide stopped babysitting when the family moved away in mid-2004, but she went back to work as a K-Mart cashier in May 2006.
Suide was still working at K-Mart when she suffered a stroke in December 2006 — a year before her hearing and shortly before her insured status expired at the end of that year. She was taken to the emergency room where doctors noted severe face droop, left-side motor weakness, and slurred speech. Hospital doctors suspected, however, that Suide was exaggerating her sensory motor deficits, making it difficult to assess her condition. Suide tested positive for cocaine, and the hospital doctors noted cocaine abuse as a secondary diagnosis and as a possible cause of her stroke. Suide later explained at the hearing that she had used the drug for the first and last time approximately five days before her stroke.
Suide did not return to work, and she began physical therapy in February 2007. Progress notes from her therapists show that her left-side weakness caused balance problems and difficulty walking. Suide reported to her physical therapist that she was unable to walk even one block without significant pain. One therapist observed that Suide was not at risk of falling due to her pain but was walking with a significant limp, and she suffered from decreased balance and coordination.
In March 2007 a second state-agency consultant, Dr. Linda Palacci, examined Suide. Dr. Palacci’s examination encompassed a limited physical examination, a review of Suide’s medical records, and a discussion of her symptoms, but no formal RFC evaluation. Dr. Palacci noted that Suide complained of left leg weakness, and that she was wearing an ankle brace and walking with a cane to help with her foot drag. Suide reported morning stiffness lasting longer than an hour and that her symptoms worsened with activities such as stair climbing. Dr. Palacci concluded that Suide had normal range of motion in her knees, ankles, hips, shoulders, elbows, wrists, and fingers, and that her grip strength was good in both hands. Dr. Palacci noted that Suide still walked with a *687slight limp and could walk only 10 feet without assistance, but that she was able to squat and stand heel to toe.
The physical therapy helped, though, and Suide was making progress toward her goals when she suffered two more setbacks. In April 2007 she was admitted to the emergency room after experiencing a sudden onset of uncontrolled shaking in her right hand and difficulty talking, which the doctors diagnosed as a minor stroke. The result of a CT-scan of her head was normal, and a neurological examination showed some right-side weakness right after the stroke, but the record does not show what, if any, long-term effects she experienced. In May 2007 her condition was exacerbated by a fall that injured her right hip. Although Suide had been using a cane, her physical therapist instructed her to switch to a walker after her fall to relieve the pain and pressure on her hip. By the end of her physical therapy that same month, Suide had partially met her goals of demonstrating improved strength, but the physical therapist noted that she had not met her goal of walking unassisted without a limp for one block without experiencing significant pain.
At the hearing before the ALJ, Suide testified that from January through September 2007 she also had made monthly visits to Dr. Orris, an attending physician at Stroger Hospital’s Fantus Clinic in Chicago. Given the structure of the clinic, Suide concedes that Dr. Orris himself may not have examined her during each visit, but she insists that he was her treating-physician and the doctor overseeing and coordinating her post-stroke medical care. Treatment records from Dr. Orris are sparse, and there is documentation of just one office visit — in May 2007 — that occurred prior to Suide’s hearing. The remainder of Dr. Orris’s treatment record consists of two documents listing him as the treating physician on referrals and a physical-capacities evaluation that was created by Suide’s attorney and completed by Dr. Orris in December 2007, after the hearing. During the May examination, Dr. Orris opined that Suide suffers from rheumatoid arthritis and residual transient weakness from her 2006 stroke. He also diagnosed “probable migraine syndrome possibly triggered by stress.” In the post-hearing physical-capacities evaluation (completed three months after Suide’s last reported visit in September), Dr. Orris concluded that — in an eight-hour day— Suide could sit for two hours at a time (but only four hours total), stand for one hour at a time (two hours total), and walk a total of one hour. He also opined that she could never lift or carry more than ten pounds, and could lift or carry less weight only occasionally. Dr. Orris found that Suide could not use her left hand for repetitive action involving simple grasping, pushing or pulling, or either hand for fine manipulation. While Suide occasionally could bend, squat, crawl, climb, or reach, she could never use either of her feet for repetitive movements, such as pushing leg controls. Dr. Orris concluded that Suide had achieved “maximum medical improvement” and that she was unable to perform a full-time job on a sustained basis. The evaluation form also asked, “How long have you been treating this patient?” to which Dr. Orris responded “1 month.”
Suide also testified that she was unable to work because her joints caused her pain that lasted all day. She also acknowledged that she had not had any treatment for her hand pain since her last surgery in 2004 and was without a treating physician between 2003 and 2007, when she began seeing Dr. Orris. She acknowledged that she was not taking any pain medications, but explained that her hand pain persisted and in the mornings she self-treated these symptoms by massaging her hands for 20 minutes. She explained that Dr. Orris had also recently diagnosed her with migraine *688syndrome based on the severe headaches she experiences two to three times per month. When these headaches occur, she said, she addresses them with Valium and sleep. The ALJ asked Suide about the effects of her pain on her daily activities, and she explained that she gets a lot of help from her family. She also testified that it hurts for her to grip a mop or a broom, that she can sit or stand for only five to ten minutes before she has to change positions or lean on something for support, and that her knee and hip pain prevent her from walking more than half a block before stopping. During the hearing Suide said that she was in pain and requested a break to stand.
The ALJ and Suide’s counsel posed hypothetical questions to a vocational expert, who testified that someone with Suide’s age, work history, and impairments still could perform the light work of a file clerk, an information clerk, or an assembly position and similar sedentary positions. The vocational expert determined that these jobs would be available if the employee needed to take breaks to stand every 30 to 45 minutes. Counsel further inquired what jobs an individual could perform if she needed to recline for 15 to 30 minutes a day, use both hands to lift more than ten pounds, lean after five to ten minutes of standing, and take a break after walking no more than half a block. In response the vocational expert testified that any individual who needed to recline at times throughout the work day would be unable to work.
The ALJ performed the requisite five-step analysis, see 20 C.F.R. § 404.1520, concluding that (1) Suide had not engaged in gainful work since October 2000; (2) her carpal tunnel, trigger finger, stroke, migraines, and obesity constituted severe impairments; (3) none of these impairments individually or in combination met a listing in 20 C.F.R. pt. 404, subpt. P, app.l that would lead to an automatic finding of disability; (4) Suide had the residual functional capacity to perform a reduced range of light or sedentary jobs that involve no lifting or carrying more than 20 pounds occasionally or 10 pounds frequently; no pushing or pulling more than 20 pounds occasionally or 10 pounds frequently; only occasional stooping, kneeling, crouching, crawling, or ramp/stair climbing; and at which “[s]he would be distracted only rarely by symptoms, to the extent that she was off task and not productive, outside break time”; and (5) Suide was not disabled because a person of her age, education, work experience, and RFC could perform a significant number of jobs in the national economy.
In making this determination, the ALJ did not give significant weight to Dr. Orris’s evaluation because, according to Dr. Orris’s own post-hearing report, he had been treating Suide for just one month and because “the objective findings do not support [his] restrictive limitations.” The ALJ also discredited the residual functional capacity assessment that Dr. Oh completed in April 2004 because Suide’s later strokes had significantly changed her medical condition and further limited her abilities. Regarding Suide’s post-stroke condition, however, the ALJ found: “Though the claimant may have been unable to stand and walk for prolonged periods immediately after her stroke, she underwent physical therapy and her weakness did not persist at that level for 12 consecutive months or more” and that her weakness had improved to the point where “she should be able, in a typical work day with normal breaks, to stand and walk for at least six hours.” The ALJ found that the record did not support Suide’s statements regarding the severity and effects of her conditions. For example, the ALJ concluded that there was insufficient evidence that Suide experienced “migraine headaches at a frequency or severity which *689would preclude or even significantly interfere with competitive employment.” The ALJ also dismissed Suide’s rheumatoid arthritis and lupus diagnoses, reasoning that the “record does not contain the objective findings leading to the diagnosis of rheumatoid arthritis,” there was no “meaningful workup” of her lupus, nor did Suide complain of symptoms attributed to this condition. The district court upheld the ALJ’s denial of benefits, and this appeal followed.
On appeal Suide argues that the ALJ erred in discrediting Dr. Orris’s opinion because her own testimony and her medical records demonstrate that Dr. Orris had been treating her for much longer than one month, and that his post-hearing evaluation was consistent with other findings in the record. She also contends that the ALJ’s residual functional capacity finding was flawed because it did not sufficiently account for her hand impairments, migraines, and obesity. In response, the Commissioner argues that the ALJ’s decision is supported by substantial evidence and that Suide’s statements are the only evidence of a longer treatment relationship with Dr. Orris. Moreover, the Commissioner contends that the ALJ properly considered her hand impairments, migraines, and obesity but found that none of these conditions sufficiently limited her ability to work. This court reviews an ALJ’s legal determinations de novo, Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007), but reviews factual determinations deferentially, upholding any decision that is supported by substantial evidence, Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.2008).
Because Dr. Orris concluded that Suide was no longer able to work, the weight given to his opinions may be decisive in this case. Both parties focus their arguments on the soundness of the ALJ’s decision to discount his reports. The opinions of treating physicians are generally entitled to greater weight than those of examining physicians, and opinions of examining physicians are entitled to greater weight than those of non-examining physicians. 20 C.F.R. § 416.927(d)(1) — (2). As long as a treating physician’s opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and is “not inconsistent with other substantial evidence” in the case record, the ALJ should give it controlling weight. Id.; S.S.R. 96-2p; see Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir.2008). According to Suide, the ALJ erred in dismissing Dr. Orris’s physical-capacities evaluation from December 2007 because that evaluation was consistent with other post-stroke reports. Moreover, Suide argues that the ALJ should have realized that the “one month” span of treatment described by Dr. Orris in his post-hearing report was a mistake and that her testimony in conjunction with the handful of pages in the record referring to Dr. Orris sufficiently called attention to the discrepancy. Citing cases describing an ALJ’s obligation to develop the record, Suide argues that, before reaching a decision, the ALJ was required to request further documentation to resolve this record conflict. In response, the Commissioner counters that the sparse medical records are not what one would expect from the treating relationship Suide described; aside from the December 2007 evaluation, the records are limited to the one visit in May 2007 plus the appearance of his name on the referrals. And those referrals, the Commissioner insists, imply only that “his final authorization was necessary for requests made by other doctors” at the clinic. The Commissioner also asserts that there is substantial evidence to show that Suide had significantly improved after physical therapy to a point where she was not as restricted as Orris suggested.
But it is not the ALJ’s evaluation of Dr. Orris’s reports that requires a remand in *690this case. Even assuming that Dr. Orris’s opinions did not deserve greater weight, it is the evidentiary deficit left by the ALJ’s rejection of his reports — not the decision itself — that is troubling. The rest of the record simply does not support the parameters included in the ALJ’s residual functional capacity determination, such as an ability to “stand or walk for six hours” in a typical work day. Without Dr. Orris’s opinions, Dr. Palacci’s evaluation and the notes from Suide’s physical-therapy sessions and her visits to other specialists are all that remain of the post-stroke medical records. The ALJ, however, did not discuss what weight was given to any of these reports. See Craft v. Astrue, 539 F.3d 668, 676 (7th Cir.2008). More important, Dr. Palacci’s assessment was made before Suide suffered a second stroke and more injuries from a fall — two events that may have changed Suide’s condition significantly. In addition, Dr. Palacci’s evaluation did not include a functional assessment of Suide’s abilities, nor did she opine about any limitations Suide’s impairments may have caused, so her report could not be used to support specific limitations included in Suide’s residual functional capacity. Regarding the physical-therapy reports, the therapist noted that, although Suide had improved and her strength was within functional limits by the time of her last visit in late May 2007, she still walked with a limp and the assistance of a cane, had “decreased balance/coordination,” and “difficulty with activities of daily living.” It is unclear, therefore, how the ALJ concluded that Suide could stand or walk for six hours a day. See Barrett v. Barnhart, 355 F.3d 1065, 1066-67 (7th Cir.2004) (finding reversible error when ALJ determined that claimant could stand for two hours because there was no medical evidence to support such a conclusion).
When an ALJ denies benefits, she must build an “accurate and logical bridge from the evidence to her conclusion,” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.2000), and she is not allowed to “play doctor” by using her own lay opinions to fill eviden-tiary gaps in the record, see Blokes v. Barnhart, 331 F.3d 565, 570 (7th Cir.2003). Although Suide shares the blame for failing to clarify the record discrepancy regarding the length of Dr. Orris’s treatment, it was the ALJ’s responsibility to recognize the need for further medical evaluations of Suide’s conditions before making her residual functional capacity and disability determinations. See Golem-biewski v. Barnhart, 322 F.3d 912, 918 (7th Cir.2003) (remanding where ALJ ignored new medical issue but should have sought more information); Smith v. Apfel, 231 F.3d 433, 437 (7th Cir.2000) (remanding where ALJ discounted severity of claimant’s arthritis without ordering updated x-rays); Murphy v. Astrue, 496 F.3d 630, 635 (7th Cir.2007) (remanding where ALJ failed to obtain additional records needed for medical expert to provide full and fair evaluation of impairments). The ALJ’s assessment of Suide’s post-stroke residual functional capacity is not supported by substantial evidence, and thus that determination cannot stand. 42 U.S.C. § 405(g); Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir.2005).
Although a remand is necessary, we reverse the ALJ’s decision only in part. As the parties noted and the ALJ explained, Suide’s condition significantly deteriorated after her stroke in December 2006, and this date marked a dividing line in her claim. Suide properly conceded during oral argument that the ALJ’s denial of benefits was reasonable and well supported for her condition up to the time of the first stroke. We agree that the record supports the ALJ’s denial of her disability claim from her alleged onset date of October 2000 through the date of her first stroke. Therefore, we affirm in part, re*691verse in part, and remand for further proceedings to determine whether Suide qualifies for benefits after December 2006. Because we conclude that the ALJ’s residual functional capacity determination was flawed, we do not need to address Suide’s related arguments regarding the ALJ’s assessment of her hand impairments, her migraines, and her obesity and whether these conditions, either individually or in the aggregate, warranted the inclusion of additional limitations in her residual functional capacity. On remand, the ALJ should give fresh consideration to the evidence of all of Suide’s medical conditions as they relate to her disability claim beginning in December 2006. Suide should also have an opportunity to submit any additional documentation relating to Dr. Orris’s treatment that can clarify the nature and extent of his treating relationship.
Accordingly we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478822/ | ORDER
David Lindsay pleaded guilty to conspiring to distribute in excess of 500 grams of methamphetamine and possessing with intent to distribute at least 5 grams of methamphetamine, see 21 U.S.C. §§ 841(a)(1), 846, and was sentenced to 204 months’ imprisonment. In the plea agreement he waived his right to appeal his conviction and sentence. He filed a notice of appeal, but his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot identify any non-frivolous argument to pursue. Lindsay did not accept our invitation to respond to his lawyer’s submissions, see Cir. R. 51(b), so we limit our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Lindsay does not seek to have his guilty plea set aside, so counsel rightly omits a discussion of the plea’s voluntariness or the plea colloquy. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).
Counsel considers whether Lindsay could challenge the reasonableness of his agreed-upon sentence, but properly con-*692eludes that such a challenge would be foreclosed by the appeal waiver. Because the guilty plea stands, so does the waiver. See Nunez v. United States, 546 F.3d 450, 453 (7th Cir.2008).
Finally, counsel correctly points out that any challenge to the effectiveness of his representation in the district court should be explored in a collateral proceeding so that a more complete record can be developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
For the foregoing reasons, we GRANT counsel’s motion to withdraw and DISMISS Lindsay’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478829/ | PER CURIAM.
Douglas Coleman appeals the district court’s1 adverse grant of motions to dismiss and for summary judgment in his 42 U.S.C. § 1983 action. Following careful de novo review of the record, we find no basis for reversal. Accordingly, we affirm. See 8th Cir. R. 47B. We also deny Coleman’s pending motion.
. The Honorable Donovan W. Frank, United Stales District Judge for the District of Minnesota, adopting the report and recommendations of the Honorable Raymond L. Erickson, United States Magistrate Judge for the District of Minnesota. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478831/ | MEMORANDUM *
Eugene Little Coyote is the former President of the Northern Cheyenne Tribe. He was removed from office by the Tribal Council during an allegedly uncon*717stitutional special session. Following his ouster the Tribal Trial Court and Tribal Constitutional Court issued contradictory decisions regarding the validity of his removal. Subsequently, Edward Parisian, Rocky Mountain Regional Director for the Department of the Interior, Bureau of Indian Affairs (“BIA”), approved budget resolutions and recognized the Vice President, Rick Wolfname, as the interim President of the Northern Cheyenne Tribe (the “Parisian Decision”). Parisian explained in his decision that he was prompted to act by the need to resolve the impasse threatening the ability of the Tribe to perform basic governmental functions.
Little Coyote sued the BIA in federal district court seeking an injunction preventing implementation of the Parisian Decision and preventing the BIA from withdrawing its recognition of Little Coyote as the President of the Northern Cheyenne Tribe. During the pendency of this litigation, the Northern Cheyenne Tribe held a presidential election in which Little Coyote ran and was defeated. The BIA argued that the intervening presidential election rendered Little Coyote’s suit moot because the court could no longer grant any effective relief to his claims. The district court agreed and dismissed the case for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1). We agree.
“[A] case is moot ... when one or both of the parties plainly lacks a continuing interest in the outcome of the litigation.” Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1135 (9th Cir.2005) (en banc) (citation and internal quotation marks omitted). “The basic question is whether there exists a present controversy as to which effective relief can be granted.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir.2007) (quoting Vill. of Gambell v. Babbitt, 999 F.2d 403, 406 (9th Cir.1993)).
Little Coyote concedes that the tribal presidential election was valid and that he cannot be returned to the office of President. He nonetheless argues that the election did not moot this litigation because he has claims for back salary and attorney fees against the Tribe and the Parisian Decision might preclude him from prevailing on those claims. Such an allegation is purely speculative. Furthermore, the claims are not alleged in the complaint and we decline to construe the complaint to encompass hypothetical claims that may or may not be brought against the Tribe in the future. Indeed, the Northern Cheyenne Tribe is not even a party to this case.
Little Coyote’s claims do not fall within the capable of repetition yet evading review exception to the mootness doctrine because there is no reasonable expectation that he will be subject to the same injury again. Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir.1994). The district court was, therefore, unable to grant Little Coyote any effective relief and the dismissal under Rule 12(b)(1) was proper.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478998/ | 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, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478828/ | PER CURIAM.
Roger Collins appeals the sentence imposed by the district court1 upon revoking his supervised release, arguing that (1) the court erred in finding that he possessed methamphetamine with intent to distribute, a Grade A violation of his supervised release; and (2) the revocation sentence is unreasonable. Upon careful review, we conclude that testimony presented at the revocation hearing supports the district court’s finding that Collins intended to distribute the methamphetamine at issue, see United States v. Ralph, 480 F.3d 888, 890 (8th Cir.2007) (district court’s fact findings as to whether violation occurred are reviewed for clear error); and as to the revocation sentence, the district court considered proper sentencing factors and we conclude that the revocation sentence is not unreasonable, see United States v. Tyson, 413 F.3d 824, 825 (8th Cir.2005) (per curiam) (standard of review).
Accordingly, we affirm.
. The Honorable Nanette K. Laughrey, United States District Judge for tire Western District of Missouri. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478830/ | PER CURIAM.
Douglas Coleman appeals the district court’s1 adverse grant of motions to dismiss and for summary judgment in his 42 U.S.C. § 1983 action. Following careful de novo review of the record, we find no basis for reversal. Accordingly, we affirm. See 8th Cir. R. 47B. We also deny Coleman’s pending motion.
. The Honorable Donovan W. Frank, United Stales District Judge for the District of Minnesota, adopting the report and recommendations of the Honorable Raymond L. Erickson, United States Magistrate Judge for the District of Minnesota. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478832/ | MEMORANDUM *
Eugene Little Coyote is the former President of the Northern Cheyenne Tribe. He was removed from office by the Tribal Council during an allegedly uncon*717stitutional special session. Following his ouster the Tribal Trial Court and Tribal Constitutional Court issued contradictory decisions regarding the validity of his removal. Subsequently, Edward Parisian, Rocky Mountain Regional Director for the Department of the Interior, Bureau of Indian Affairs (“BIA”), approved budget resolutions and recognized the Vice President, Rick Wolfname, as the interim President of the Northern Cheyenne Tribe (the “Parisian Decision”). Parisian explained in his decision that he was prompted to act by the need to resolve the impasse threatening the ability of the Tribe to perform basic governmental functions.
Little Coyote sued the BIA in federal district court seeking an injunction preventing implementation of the Parisian Decision and preventing the BIA from withdrawing its recognition of Little Coyote as the President of the Northern Cheyenne Tribe. During the pendency of this litigation, the Northern Cheyenne Tribe held a presidential election in which Little Coyote ran and was defeated. The BIA argued that the intervening presidential election rendered Little Coyote’s suit moot because the court could no longer grant any effective relief to his claims. The district court agreed and dismissed the case for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1). We agree.
“[A] case is moot ... when one or both of the parties plainly lacks a continuing interest in the outcome of the litigation.” Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1135 (9th Cir.2005) (en banc) (citation and internal quotation marks omitted). “The basic question is whether there exists a present controversy as to which effective relief can be granted.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir.2007) (quoting Vill. of Gambell v. Babbitt, 999 F.2d 403, 406 (9th Cir.1993)).
Little Coyote concedes that the tribal presidential election was valid and that he cannot be returned to the office of President. He nonetheless argues that the election did not moot this litigation because he has claims for back salary and attorney fees against the Tribe and the Parisian Decision might preclude him from prevailing on those claims. Such an allegation is purely speculative. Furthermore, the claims are not alleged in the complaint and we decline to construe the complaint to encompass hypothetical claims that may or may not be brought against the Tribe in the future. Indeed, the Northern Cheyenne Tribe is not even a party to this case.
Little Coyote’s claims do not fall within the capable of repetition yet evading review exception to the mootness doctrine because there is no reasonable expectation that he will be subject to the same injury again. Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir.1994). The district court was, therefore, unable to grant Little Coyote any effective relief and the dismissal under Rule 12(b)(1) was proper.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478836/ | MEMORANDUM **
Mario Rene Discua-Castillo, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008), except to the extent that deference is owed to the BIA’s determination of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We review factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006). We deny the petition for review.
The record does not compel the conclusion that Discua-Castillo established extraordinary circumstances excusing the untimely filing of his asylum application. See 8 C.F.R. § 1208.4(a)(5); Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam). Accordingly, Discua-Castil-lo’s asylum claim fails. In addition, we reject Discua-Castillo’s contention that the BIA’s determination violated due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for due process violation).
We reject Discua-Castillo’s claim that he is eligible for withholding of removal on account of his anti-gang political opinion, or based on his membership in a particular social group, namely Hondurans actively opposed to gangs. See Santos-Lemus v. Mukasey, 542 F.3d 738, 745-47 (9th Cir.2008). In addition, substantial evidence supports the BIA’s finding that DiscuaCastillo failed to establish gang members targeted him and his family on account of their familial relationship. See INS v. Elias-Zacarias, 502 U.S. 478, 482-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
Accordingly, because Discua-Castillo failed to demonstrate that he was persecuted or that he fears persecution on account of a protected ground, we deny the petition as to his withholding of removal claim. See Santos-Lemus, 542 F.3d at 748.
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/8478839/ | MEMORANDUM *
We have jurisdiction to review the decision of the Bankruptcy Appellate Panel under 28 U.S.C. § 158, and we affirm.
In a memorandum disposition to be filed simultaneously with this disposition, All-Tex, Inc. v. Branford Partners, LLC, No. 08-60052, we have concluded that Bran-ford Partners, LLC, properly could avoid All-Tex, Inc.’s alleged liens and interests in the property. Given that decision, All-Tex no longer had standing to challenge the disbursement of the sale proceeds and its appeal was moot. See Foster v. Carson, 347 F.3d 742, 745 (9th Cir.2003); Retail Clerks Welfare Trust v. McCarty (In re Van de Kamp’s Dutch Bakeries), 908 F.2d 517, 519 (9th Cir.1990).
Judge Canby would affirm on the ground that the Debtor in Possession did not abuse its discretion in implicitly concluding that the All-Tex priority claim was valueless and not worth pursuing on behalf of the estate.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478841/ | MEMORANDUM **
Leonel Ovidio Valdez-Estrada, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000), and we also review de novo other questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008), except to the extent that deference is owed to the BIA’s determination of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We review factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006). We grant in part and deny in part the petition for review.
The record does not compel the conclusion that extraordinary circumstances excused the untimely filing of Valdez-Estrada’s asylum application. See 8 C.F.R. § 1208.4(a)(5); Toj-Culpatan v. Holder, 588 F.3d 638, 639-41 (9th Cir.2009) (per curiam). Accordingly, we deny the petition as to Valdez-Estrada’s asylum claim. Valdez-Estrada’s due process claim fails because he cannot show that the proceedings were “fundamentally unfair” in a manner which prejudiced him by causing him to file an untimely asylum application. See Colmenar, 210 F.3d at 971; see also Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring a showing of prejudice to prevail on a due process challenge).
We reject Valdez-Estrada’s claim that he is eligible for withholding of removal based upon his anti-gang political opinion or his religious beliefs. See Barrios v. Holder, 581 F.3d 849, 855-56 (9th Cir.2009) (rejecting claim that petitioner was persecuted on account of an anti-gang political opinion); Parussimova v. Mukasey, 555 F.3d 734, 740-41 (9th Cir.2009) (a protected ground must be “at least one central reason” for persecution). However, *861because the BIA failed to address Valdez-Estrada’s contention that his membership in the Casa Resurrecion Siloe group constitutes membership in a particular social group such that he can establish a nexus to a protected ground, we grant the petition for review as to Valdez-Estrada’s withholding of removal claim, and remand for the BIA to address the issue in the first instance. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005) (BIA is “not free to ignore arguments raised by a petitioner”); see also Gonzales v. Thomas, 547 U.S. 183, 186-87, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam) (remanding for the BIA to decide .in the first instance whether a group constitutes a “particular social group”).
Substantial evidence supports the agency’s finding that Valdez-Estrada failed to demonstrate it is more likely than not he would be tortured by or at the instigation of or with the consent or acquiescence of a public official if returned to Guatemala, and therefore we deny the petition as to Valdez-Estrada’s CAT claim. See Santos-Lemus v. Mtikasey, 542 F.3d 738, 747-48 (9th Cir.2008).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478856/ | 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 340. It is
ORDERED AND ADJUDGED that the district court’s order issued December 30, 2009, be affirmed. The district court prop*97erly dismissed the appellant’s complaint as frivolous. The complaint contains factual allegations that are so implausible as to be “fantastic or delusional.” See Neitzke v. Williams, 490 U.S. 319, 328, 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 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/8478835/ | MEMORANDUM **
Mario Rene Discua-Castillo, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008), except to the extent that deference is owed to the BIA’s determination of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We review factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006). We deny the petition for review.
The record does not compel the conclusion that Discua-Castillo established extraordinary circumstances excusing the untimely filing of his asylum application. See 8 C.F.R. § 1208.4(a)(5); Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam). Accordingly, Discua-Castil-lo’s asylum claim fails. In addition, we reject Discua-Castillo’s contention that the BIA’s determination violated due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for due process violation).
We reject Discua-Castillo’s claim that he is eligible for withholding of removal on account of his anti-gang political opinion, or based on his membership in a particular social group, namely Hondurans actively opposed to gangs. See Santos-Lemus v. Mukasey, 542 F.3d 738, 745-47 (9th Cir.2008). In addition, substantial evidence supports the BIA’s finding that DiscuaCastillo failed to establish gang members targeted him and his family on account of their familial relationship. See INS v. Elias-Zacarias, 502 U.S. 478, 482-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
Accordingly, because Discua-Castillo failed to demonstrate that he was persecuted or that he fears persecution on account of a protected ground, we deny the petition as to his withholding of removal claim. See Santos-Lemus, 542 F.3d at 748.
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/8478842/ | MEMORANDUM **
In these consolidated petitions, Nektar Zakaryan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing without opinion her appeal from an immigration judge’s (“IJ”) decision denying her motion to reopen proceedings conducted in absentia and the BIA order denying her motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of motions to reopen and to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and review de novo questions of law, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petitions for review.
The IJ did not abuse her discretion in denying Zakaryan’s motion to reopen because written notice of the hearing was mailed to her counsel of record, see 8 U.S.C. §§ 1229(a)(2), 1229a(b)(5)(A),(C), and the evidence submitted with the motion to reopen failed to establish Zakaryan acted with the due diligence required to warrant tolling of the 180-day filing deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available to petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances).
The BIA did not abuse its discretion in denying Zakaryan’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s July 3, 2007, order. See 8 C.F.R. § 1003.2(b).
PETITIONS 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/8478845/ | PER CURIAM:
After careful review of the record and briefs of the parties, as well as having had the benefit of oral argument, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478849/ | PER CURIAM:
After careful review of the record and briefs of the parties, as well as having had the benefit of oral argument, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478850/ | 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/8478853/ | 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/8478855/ | 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 340. It is
ORDERED AND ADJUDGED that the district court’s order issued December 30, 2009, be affirmed. The district court properly dismissed the appellant’s complaint as frivolous. The complaint contains factual allegations that are so implausible as to be “fantastic or delusional.” See Neitzke v. Williams, 490 U.S. 319, 328, 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 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/8478843/ | MEMORANDUM **
In these consolidated petitions, Nektar Zakaryan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing without opinion her appeal from an immigration judge’s (“IJ”) decision denying her motion to reopen proceedings conducted in absentia and the BIA order denying her motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of motions to reopen and to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and review de novo questions of law, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petitions for review.
The IJ did not abuse her discretion in denying Zakaryan’s motion to reopen because written notice of the hearing was mailed to her counsel of record, see 8 U.S.C. §§ 1229(a)(2), 1229a(b)(5)(A),(C), and the evidence submitted with the motion to reopen failed to establish Zakaryan acted with the due diligence required to warrant tolling of the 180-day filing deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available to petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances).
The BIA did not abuse its discretion in denying Zakaryan’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s July 3, 2007, order. See 8 C.F.R. § 1003.2(b).
PETITIONS 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/8478847/ | PER CURIAM:
After careful review of the record and briefs of the parties, as well as having had the benefit of oral argument, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478848/ | PER CURIAM:
After careful review of the record and briefs of the parties, as well as having had the benefit of oral argument, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478851/ | 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/8478852/ | 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/8478854/ | 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 340. It is
ORDERED AND ADJUDGED that the district court’s order issued December 30, 2009, be affirmed. The district court properly dismissed the appellant’s complaint as frivolous. The complaint contains factual allegations that are so implausible as to be “fantastic or delusional.” See Neitzke v. Williams, 490 U.S. 319, 328, 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 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/8478857/ | 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 340. It is
ORDERED AND ADJUDGED that the district court’s order issued December 30, 2009, be affirmed. The district court prop*97erly dismissed the appellant’s complaint as frivolous. The complaint contains factual allegations that are so implausible as to be “fantastic or delusional.” See Neitzke v. Williams, 490 U.S. 319, 328, 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 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/8478858/ | SUMMARY ORDER
Defendant Brian Pearl appeals from a November 20, 2008 order of the District Court convicting him, upon his plea of guilty, of violating the conditions of his supervised release, revoking his supervised release, and sentencing him to fourteen months’ imprisonment.
In response to an order entered by this Court on February 17, 2010, both parties have filed letter briefs asserting that Peaii was released from prison on October 21, 2009. As Pearl is no longer in prison and is not serving a term of supervised release, his appeal is moot. See, e.g., Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).
Accordingly, we dismiss Pearl’s appeal as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478863/ | SUMMARY ORDER
Appellant Mark Francis appeals from a judgment dismissing his appeal of a bankruptcy court order. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
We affirm for substantially the reasons stated in the district court’s opinion. See Francis v. Nw. Airlines Corp., No. 08-Civ-6616 (SHS) (S.D.N.Y. Dec. 19, 2008).
Finding no merit in Cook’s remaining arguments, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478865/ | OPINION
PER CURIAM.
Irwin and Pearl Jacobowitz appeal from the District Court’s order dismissing their complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Appellee M & T Mortgage Corporation (“M & T”) moves for summary action. For the following reasons, we will grant the motion and summarily affirm the District Court’s order.
I.
The Jacobowitzes owned a home in Hawley, Pennsylvania. In 1999, the Jaco-bowitzes entered into a mortgage agreement with M & T to secure a loan on the property. Several years later, M & T commenced foreclosure proceedings against them which ultimately resulted in the sale of their home at a July 18, 2008 sheriffs sale.
On July 13, 2009, the Jacobowitzes filed a complaint in the United States District Court for the Middle District of Pennsylvania. In the complaint, the Jacobowitzes alleged that M & T had: (1) violated their due process rights during the state-court foreclosure proceedings; (2) violated the Truth in Lending Act (“TILA”), 15 U.S.C. § 1501, et seq., by failing to disclose certain terms of their mortgage; and (3) engaged in fraudulent and deceptive mortgage practices in violation of the Pennsylvania Unfair Trade Practices Act and Consumer Protection Law, 73 Pa. Cons.Stat. § 201-1, et seq. The complaint also named as defendants Weichert Realtors, who had allegedly “presented a buyer” for the property at the sheriffs sale, and two unidentified defendants, John and Jane Doe.
The matter was referred to a Magistrate Judge, who recommended that the complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). The Magistrate Judge *227also suggested that it was not necessary to give the Jacobowitzes an opportunity to amend the complaint before dismissing it because amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). The Jacobowitzes were invited to respond to the Magistrate Judge’s Report and Recommendation, but did not do so. By order entered October 5, 2009, the District Court adopted the Report and Recommendation and dismissed the complaint. This appeal followed.1
M & T has filed a motion for summary affirmance of the District Court’s order. After a careful review of the record, we conclude that the appeal presents “no substantial question” under Third Circuit LAR 27.4 and I.O.P. 10.6. Therefore, we will grant M & T’s motion.
II.
A. Due Process Claims Against M & T
In their complaint, the Jacobow-itzes raised several due process claims against M & T pursuant to 42 U.S.C. § 1983. In order to state a valid claim pursuant to § 1983 against M & T, a private corporation, the Jacobowitzes were required to show not only that M & T violated their federal rights, but also that it did so while acting under color of state law. See Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.1995). The complaint does not, however, contain any allegations suggesting that M & T was acting under color of state law in effectuating the foreclosure judgment. Therefore, the Magistrate Judge correctly concluded that M & T was not a proper defendant under 42 U.S.C. § 1983, and the District Court’s dismissal of the Jacobowitzes’s due process claims was proper.
B. TILA Claims Against M & T
The District Court’s dismissal of the Jacobowitzes’s TILA claims was likewise proper. In the complaint, the Jaco-bowitzes alleged that M & T violated 15 U.S.C. §§ 1638(a), 1632(a), and 1605 by failing to disclose: (1) that their annual percentage rate would fluctuate more than once per year; (2) that they would be charged additional fees and costs without notice; and (3) the correct amount of their mortgage payment. As a result of these violations, the Jacobowitzes alleged, they were entitled to both rescission and money damages.
First, the Magistrate Judge correctly concluded that the Jacobowitzes’s claim for rescission was precluded by the Rooker-Feldman doctrine. The Rooker-Feldman doctrine, which precludes lower federal courts from exercising appellate jurisdiction over final state-court judgments, is implicated when, “in order to grant the federal plaintiff the relief sought, the federal court must determine that the state court judgment was erroneously entered or must take action that would render that judgment ineffectual.” FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir.1996). Here, the Magistrate Judge found that the Jacobow-itzes’s claim for rescission was inextricably intertwined with the Court of Common Pleas’ foreclosure judgment because granting rescission would negate the foreclosure judgment. We agree, as a favorable decision for the Jacobowitzes in the District Court would prevent the Court of Common Pleas from enforcing its order to foreclose the mortgage. See In re Madera, 586 F.3d 228 (3d Cir.2009) (holding that Rook-er-Feldman doctrine barred mortgagors’ TILA claims for rescission of mortgage, given that favorable judgment on rescis*228sion claims would necessarily negate state-court foreclosure judgment).2
We also agree with the Magistrate Judge that the Jacobowitzes’s claim for damages under the TILA was time-barred. Pursuant to 15 U.S.C. § 1640(e), TILA claims for money damages must be brought within one year of the date of the mortgage, unless they are brought as a defense to an action to collect the debt. Id.; see also Ramadan v. Chase Manhattan Corp., 156 F.3d 499, 500-01 (3d Cir.1998). The mortgage at issue here was entered into in 1999, approximately ten years before the Jacobowitzes commenced this action, and this action is not an action to collect a debt. Therefore, the District Court correctly concluded that the Jacobowitzes’s TILA claim for damages was untimely.
C.Claims Against Weichert Realtors and John and Jane Doe
Next, we see no error in the Magistrate Judge’s decision to dismiss Weichert Realtors from the case. As the Magistrate Judge explained, the only reference made in the complaint to Weichert Realtors is in the “Parties” section, where the Jacobow-itzes state solely that Weichert Realtors was the real estate agency that presented a buyer for their property, presumably at the sheriffs sale. Without any other allegations of wrongdoing, the complaint could not be read to state a claim against this defendant. Therefore, the District Court’s dismissal of this defendant was proper.
The District Court also properly dismissed the Jacobowitzes’s claims against John and Jane Doe, as the complaint does not contain any allegations whatsoever against these unidentified parties.
D. Opportunity to Amend the Complaint
On appeal, the Jacobowitzes also argue that the District Court erred in dismissing their complaint without first giving them a chance to amend it. In making this argument, however, the Jaco-bowitzes fail to identify what specific allegations they would have made had they been given an opportunity, nor do they explain how those allegations would have saved their complaint. Furthermore, we note that the Jacobowitzes were given ten days to file objections to the Magistrate Judge’s Report and Recommendation, but declined to do so. Under these circumstances, we cannot conclude that the District Court abused its discretion by dismissing the complaint without providing the Jacobowitzes with an opportunity to amend it.
E. State-law Claims Against M &T
Finally, we see no error in the District Court’s decision to decline to exercise supplemental jurisdiction over the Jaco-bowitzes’s claims under the Pennsylvania Unfair Trade Practices Act and Consumer Protection Law, 73 Pa. Cons.Stat. § 201-1, et seq., as this Court has made clear that, “where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendant state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.” Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.1995) (emphasis in original). Given that, in this case, the *229District Court agreed with the Magistrate Judge’s recommendation to dismiss all of the federal claims over which it had jurisdiction, and there were no other particular considerations of fairness brought to its attention, the District Court acted within its discretion in declining to exercise supplemental jurisdiction over the Jacobow-itzes’s state law claims.
III.
For the reasons set forth above, we will grant M & T’s motion for summary action and summarily affirm the District Court’s order. See Third Cir. LAR 27.4 and I.O.P. 10.6.
. We have jurisdiction over this appeal pursu-antto 28 U.S.C. § 1291.
. To the extent that the complaint contained a free-standing request to vacate the state-court foreclosure judgment, as well as a related order entered in the Jacobowitzes’s bankruptcy case, the Magistrate Judge correctly concluded that any such request would be precluded by the Rooker-Feldman doctrine. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478867/ | OPINION
PER CURIAM.
John Humphries, proceeding pro se, appeals an order of the United States District Court for the Western District of Pennsylvania denying his petition for a writ of error coram nobis and motion for transcripts. We will affirm the District Court’s order.
In 1996, Humphries pleaded guilty in federal court to conspiracy to distribute and possess with intent to distribute oxy-codone. He was sentenced to a term of 92 months in prison and 36 months of supervised release. Humphries did not file a direct appeal. Humphries was released from federal custody in 2002.
In 2009, Humphries challenged his conviction and sentence under the All Writs Act, 28 U.S.C. § 1651, by filing a petition for a writ of error coram nobis in District Court. Humphries claimed that his trial counsel was ineffective for, among other things, instructing him to make a deal with the prosecution that was not included in his plea agreement. He also claimed that the trial court erred by accepting his plea and failing to hold an evidentiary hearing on the voluntariness of his plea. Hum-phries further claimed that there was insufficient evidence supporting the factual basis for his plea and that his due process rights were violated. Humphries also filed a motion seeking the transcripts from his criminal proceedings. The District Court denied Humphries’ coram nobis petition *230and denied his motion for transcripts as moot. This appeal followed.
As recognized by the District Court, “co-ram nobis has traditionally been used to attack convictions with continuing consequences when the petitioner is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” United States v. Baptiste, 223 F.3d 188, 189 (3d Cir.2000). It is an extraordinary remedy and a court’s jurisdiction to grant relief is of limited scope. Id. Use of the writ is appropriate to correct errors for which there was no remedy available at the time of trial and where valid reasons exist for failing to seek relief sooner. United States v. Stoneman, 870 F.2d 102, 106 (3d Cir.1989). In addition, the error must go to the jurisdiction of the trial court and render the criminal proceedings invalid. Id.
We agree with the District Court that Humphries did not establish valid reasons for failing to seek relief sooner. The facts supporting Humphries’ claims were known during his criminal proceedings, but Hum-phries did not file a direct appeal and it appears he did not file a motion pursuant to 28 U.S.C. § 2255. Because Humphries had remedies available at the time of his conviction, coram nobis relief is unavailable. See also United States v. Osser, 864 F.2d 1056, 1061-62 (3d Cir.1988) (concluding issue raised in coram nobis petition that could have been raised on direct appeal was waived). We also agree with the District Court that the errors that Hum-phries alleges are not of a fundamental character as they primarily challenge the voluntariness of his plea and do not implicate the trial court’s jurisdiction.1 Although Humphries argues that he would be able to establish that constitutional violations occurred in his case if the District Court had granted his motion for transcripts, the District Court did not err in denying Humphries’ motion where coram nobis relief was properly denied.
Accordingly, because this appeal does not present a substantial question, we will affirm the District Court’s order.
. Based on these conclusions, we need not address the District Court’s additional finding that Humphries failed to show that he is suffering from continuing consequences from his conviction. We assume without deciding that Humphries continues to suffer adverse consequences even though he is no longer in custody. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478859/ | SUMMARY ORDER
Defendant Brian Pearl appeals from a November 20, 2008 order of the District Court convicting him, upon his plea of guilty, of violating the conditions of his supervised release, revoking his supervised release, and sentencing him to fourteen months’ imprisonment.
In response to an order entered by this Court on February 17, 2010, both parties have filed letter briefs asserting that Peaii was released from prison on October 21, 2009. As Pearl is no longer in prison and is not serving a term of supervised release, his appeal is moot. See, e.g., Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).
Accordingly, we dismiss Pearl’s appeal as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478861/ | SUMMARY ORDER
Appellant Michelle Coe, pro se, appeals from the judgment of the district court dismissing her appeal from a bankruptcy court order denying her motion for reconsideration. In bankruptcy court, Appellant sought reconsideration of an order denying her motion to lift an automatic stay and of two separate orders expunging *189her claims (Claim 10885 and Claim 12512) against Appellee Refco, Inc. She then sought reconsideration of the order denying her motion to reconsider the motion to lift the automatic stay. The bankruptcy court denied the motions on the grounds that (1) the motion to lift the stay was moot, and (2) Appellant did not meet her burden of proving that the expungement orders should be reconsidered on the basis of her alleged non-receipt of Appellee’s omnibus objections to her claims.
As an initial matter, we note that the district court’s review was limited to the orders entered by the bankruptcy court on July 31, 2007, and August 10, 2007, because Appellant’s request for a decision on her motion to lift the automatic stay, construed by the bankruptcy court as a motion for reconsideration of the orders disallowing her claims, did not toll the time to appeal from those orders because it was not filed within ten days of the order expunging Claim 12512 entered by the bankruptcy court in April 2007. See Fed. R. Bankr.P. 8002.* We assume the parties’ familiarity with the facts and procedural history.
Upon review of the record and case law, the district court correctly found that the bankruptcy court did not abuse its discretion in denying Appellant’s motions for reconsideration. This Court’s review of the orders of the district courts in their capacity as appellate courts in bankruptcy cases is plenary. In re First Cent. Fin. Corp. v. Ochs, 877 F.3d 209, 212 (2d Cir. 2004); see also Fed.R.Civ.P. 52(a); In re Ionosphere Clubs, Inc., 922 F.2d 984, 988 (2d Cir.1990) (noting that, in reviewing an appeal from the bankruptcy court to the district court, this Court conducts the same review over the district court’s decision as that court exercised over the bankruptcy court’s decision).
Bankruptcy Rule 9024 provides that reconsideration motions in the bankruptcy court are governed by Rule 60 of the Federal Rules of Civil Procedure. Fed. R. Bankr.P. 9024. Rule 60 provided:
On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
Fed.R.Civ.P. 60(b). Because Appellant’s appeal to the district court concerned the bankruptcy court’s orders denying her motions for reconsideration, this Court reviews each of those decisions for abuse of discretion. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998); Devlin v. Transp. *190Commc’ns Int’l Union, 175 F.3d 121, 131—32 (2d Cir.1999). “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Transaero, 162 F.3d at 729 (internal quotation marks omitted).
In this case, the bankruptcy court did not abuse its discretion in determining that Appellant failed to satisfy Rule 60(b). As the bankruptcy court properly determined, Appellant made only unsubstantiated allegations that she did not receive Appellee’s objections to her claims. Even if Appellant had alleged to the bankruptcy court, as she does to this Court, that on March 6, 2007, she moved from one address in Miami to another but subsequently was unable to receive forwarded mail at her new address because the owner of the property rejected her mail and directed that it be returned, and as a result she never received Appellee’s omnibus motion to disallow certain claims, including Claim 12512, her allegations are unsupported by any affidavits or other evidence. Appellant therefore failed to meet her burden under Rule 60(b).
We have considered all of Appellant’s remaining arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.
Rule 8002 was amended effective December 1, 2009, to provide that a motion for reconsideration filed pursuant to Bankruptcy Rule 9024 within 14 days after the entry of judgment, rather than 10 days, tolls the time to appeal. The earlier time limit applies in this case because the relevant proceedings in the bankruptcy court took place in 2007. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478862/ | SUMMARY ORDER
Appellant Mark Francis appeals from a judgment dismissing his appeal of a bankruptcy court order. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
We affirm for substantially the reasons stated in the district court’s opinion. See Francis v. Nw. Airlines Corp., No. 08-Civ-6616 (SHS) (S.D.N.Y. Dec. 19, 2008).
Finding no merit in Cook’s remaining arguments, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478866/ | OPINION
PER CURIAM.
John Humphries, proceeding pro se, appeals an order of the United States District Court for the Western District of Pennsylvania denying his petition for a writ of error coram nobis and motion for transcripts. We will affirm the District Court’s order.
In 1996, Humphries pleaded guilty in federal court to conspiracy to distribute and possess with intent to distribute oxy-codone. He was sentenced to a term of 92 months in prison and 36 months of supervised release. Humphries did not file a direct appeal. Humphries was released from federal custody in 2002.
In 2009, Humphries challenged his conviction and sentence under the All Writs Act, 28 U.S.C. § 1651, by filing a petition for a writ of error coram nobis in District Court. Humphries claimed that his trial counsel was ineffective for, among other things, instructing him to make a deal with the prosecution that was not included in his plea agreement. He also claimed that the trial court erred by accepting his plea and failing to hold an evidentiary hearing on the voluntariness of his plea. Hum-phries further claimed that there was insufficient evidence supporting the factual basis for his plea and that his due process rights were violated. Humphries also filed a motion seeking the transcripts from his criminal proceedings. The District Court denied Humphries’ coram nobis petition *230and denied his motion for transcripts as moot. This appeal followed.
As recognized by the District Court, “co-ram nobis has traditionally been used to attack convictions with continuing consequences when the petitioner is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” United States v. Baptiste, 223 F.3d 188, 189 (3d Cir.2000). It is an extraordinary remedy and a court’s jurisdiction to grant relief is of limited scope. Id. Use of the writ is appropriate to correct errors for which there was no remedy available at the time of trial and where valid reasons exist for failing to seek relief sooner. United States v. Stoneman, 870 F.2d 102, 106 (3d Cir.1989). In addition, the error must go to the jurisdiction of the trial court and render the criminal proceedings invalid. Id.
We agree with the District Court that Humphries did not establish valid reasons for failing to seek relief sooner. The facts supporting Humphries’ claims were known during his criminal proceedings, but Hum-phries did not file a direct appeal and it appears he did not file a motion pursuant to 28 U.S.C. § 2255. Because Humphries had remedies available at the time of his conviction, coram nobis relief is unavailable. See also United States v. Osser, 864 F.2d 1056, 1061-62 (3d Cir.1988) (concluding issue raised in coram nobis petition that could have been raised on direct appeal was waived). We also agree with the District Court that the errors that Hum-phries alleges are not of a fundamental character as they primarily challenge the voluntariness of his plea and do not implicate the trial court’s jurisdiction.1 Although Humphries argues that he would be able to establish that constitutional violations occurred in his case if the District Court had granted his motion for transcripts, the District Court did not err in denying Humphries’ motion where coram nobis relief was properly denied.
Accordingly, because this appeal does not present a substantial question, we will affirm the District Court’s order.
. Based on these conclusions, we need not address the District Court’s additional finding that Humphries failed to show that he is suffering from continuing consequences from his conviction. We assume without deciding that Humphries continues to suffer adverse consequences even though he is no longer in custody. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478868/ | OPINION
ROTH, Circuit Judge:
Mary Beth Byrne appeals from the District Court’s grant of summary judgment in favor of her former employer, Monmouth County Department of Health Care Facilities, and her former supervisors, ll-ene Van Duyne and Robyn Snyder, on her claims arising under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1 et seq. We exercise plenary review, construing the evidence in the light most favorable to Byrne. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir.2000). We assume the parties’ familiarity with the factual and procedural history, which we describe only as necessary to explain our decision. We will affirm.
As an initial matter, Ms. Byrne’s certification — which she cites as the only source of material factual disputes — fails *234to meet the requirements of Federal Rule of Civil Procedure 56(e). An opponent of summary judgment cannot rely upon unsupported assertions, conclusory allegations, or mere suspicions to create a disputed issue. See Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989); see also Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (“The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint ... with conclusory allegations of an affidavit”). Ms. Byrne’s certification was unsworn and was not supported by any of the documentation or factual testimony gathered during the discovery process. Summary judgment was thus appropriate for this reason alone.
Even were we to consider Ms. Byrne’s certification, however, she has not made a prima facie case of failure to accommodate under the statutes.1 It is undisputed that Defendants met all but one accommodation recommended by Ms. Byrne’s physicians. Defendants permitted Ms. Byrne to have a self-paced workload, to make personal phone calls during her breaks, to move about freely in her workplace to prevent leg cramping, and to be absent from work, in accordance with county policy, to visit her doctors.2 Defendants provided close supervision of Ms. Byrne and provided further instructions and confirmation as necessary. The only recommended accommodation not followed was a request for longer or more frequent breaks, an accommodation that was unreasonable given the County’s contractual obligations to its employees. Despite Defendants’ (and the Court’s) repeated requests, Ms. Byrne has never suggested what further specific accommodations would have permitted her to perform the functions of her job. Put simply, there was nothing more Defendants reasonably could have done. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir.1999).
Accordingly, we will affirm the judgment of the District Court.
. Ms. Byrne has apparently abandoned her discrimination, harassment, and retaliation claims for purposes of this appeal. In any event, we agree with the District Court that she failed to raise a material factual dispute with respect to these theories, as well.
. To the extent Ms. Byrne wanted to be able to leave work frequently without advance notice — -in violation of County policy — so that she could see her doctors, such an accommodation was not requested, and if it had been requested, it would have been unreasonable as a matter of law. | 01-04-2023 | 11-05-2022 |
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