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https://www.courtlistener.com/api/rest/v3/opinions/8479164/ | ON MOTION
LOURIE, Circuit Judge.
ORDER
The United States moves to affirm the judgment of the United States Court of Federal Claims in this case. William J. Salera opposes and moves to continue the stay of the briefing schedule and consolidate this case with several other cases. The United States replies.
The briefing schedules in this case and several other cases were stayed pending this court’s disposition of Easter v. United States, 2008-5187. This court recently issued a decision in Easter, affirming the judgment of the Court of Federal Claims that federal employees who are required to *25use government vehicles when driving between their homes and their places of work are not entitled to compensation for such travel time under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Easter v. United States, 575 F.3d 1332 (Fed.Cir.2009).
In Easter, we noted that the dispute in that case was “identical in all material respects to the dispute that was before this court less than three years ago in Adams v. United States, 471 F.3d 1321 (Fed.Cir.2006) and is similar to the dispute that was previously before this court in Bobo v. United States, 136 F.3d 1465 (Fed.Cir.1998).” Easter, 575 F.3d at 1333. We stated that “[t]he task in [Easier ] is therefore mainly to determine whether there is any reason for us to distinguish or depart from the Adams and Bobo decisions. We conclude that there is not, and we therefore affirm the decision of the Court of Federal Claims granting summary judgment in favor of the government.” Id.
Similarly, in this case, the Court of Federal Claims noted that Adams and Bobo controlled its disposition of the case, notwithstanding the plaintiffs disagreement with the holdings of those cases. Factually, this case is very similar to Easter. On appeal, counsel for the appellant makes the same arguments that he made in Easter. This case, like Easter, Adams, and Bobo, involves a federal employee seeking overtime pay for the time spent driving to and from work in a government-owned vehicle. The Court of Federal Claims in this case properly relied on Adams and held that overtime pay is not permitted for such an activity in this case.
Under the circumstances, we determine that affirmance of the judgment of the Court of Federal Claims is required by our precedent. See Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (“summary disposition is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion for affirmance is granted. The stay of the briefing schedule is lifted and the judgment of the Court of Federal Claims is affirmed.
(2) The motion to continue the stay of the briefing schedule and consolidate is denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479159/ | *21ON MOTION
LOURIE, Circuit Judge.
ORDER
The United States moves to affirm the judgment of the United States Court of Federal Claims in this case. Kerry R. Hamilton opposes and moves to continue the stay of the briefing schedule and consolidate this case with several other cases. The United States replies.
The briefing schedules in this case and several other cases were stayed pending this court’s disposition of Easter v. United States, 2008-5187. This court recently issued a decision in Easter, affirming the judgment of the Court of Federal Claims that federal employees who are required to use government vehicles when driving between their homes and their places of work are not entitled to compensation for such travel time under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Easter v. United States, 575 F.3d 1332 (Fed.Cir.2009).
In Easter, we noted that the dispute in that case was “identical in all material respects to the dispute that was before this court less than three years ago in Adams v. United States, 471 F.3d 1321 (Fed.Cir.2006) and is similar to the dispute that was previously before this court in Bobo v. United States, 136 F.3d 1465 (Fed.Cir.1998).” Easter, 575 F.3d at 1333. We stated that “[t]he task in [Easter] is therefore mainly to determine whether there is any reason for us to distinguish or depart from the Adams and Bobo decisions. We conclude that there is not, and we therefore affirm the decision of the Court of Federal Claims granting summary judgment in favor of the government.” Id.
Similarly, in this case, the Court of Federal Claims noted that Adams and Bobo controlled its disposition of the case, notwithstanding the plaintiffs disagreement with the holdings of those cases. Factually, this case is very similar to Easter. On appeal, counsel for the appellant makes the same arguments that he made in Easter. This case, like Easter, Adams, and Bobo, involves a federal employee seeking overtime pay for the time spent driving to and from work in a government-owned vehicle. The Court of Federal Claims in this case properly relied on Adams and Bobo and held that overtime pay is not permitted for such an activity in this case.
Under the circumstances, we determine that affirmance of the judgment of the Court of Federal Claims is required by our precedent. See Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (“summary disposition is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion for affirmance is granted. The stay of the briefing schedule is lifted and the judgment of the Court of Federal Claims is affirmed.
(2) The motion to continue the stay of the briefing schedule and consolidate is denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479161/ | ON MOTION
LOURIE, Circuit Judge.
ORDER
The United States moves to affirm the judgment of the United States Court of Federal Claims in this case. The appellants oppose and move to continue the stay of the briefing schedule and consolidate this case with several other cases. The United States replies.
The briefing schedules in this case and several other cases were stayed pending this court’s disposition of Easter v. United States, 2008-5187. This court recently issued a decision in Easter, affirming the judgment of the Court of Federal Claims that federal employees who are required to use government vehicles when driving between their homes and their places of work are not entitled to compensation for such travel time under the. Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Easter v. United States, 575 F.3d 1332 (Fed.Cir.2009).
In Easter, we noted that the dispute in that case was “identical in all material respects to the dispute that was before this court less than three years ago in Adams v. United States, 471 F.3d 1321 (Fed.Cir.2006) and is similar to the dispute that was previously before this court in Bobo v. United States, 136 F.3d 1465 (Fed.Cir.1998).” Easter, 575 F.3d at 1333. We stated that “[t]he task in [Easter ] is therefore mainly to determine whether there is any reason for us to distinguish or depart from the Adams and Bobo decisions. We conclude that there is not, and we therefore affirm the decision of the Court of Federal Claims granting summary judgment in favor of the government.” Id.
Similarly, in this case, the Court of Federal Claims noted that Adams and Bobo controlled its disposition of the case, notwithstanding the plaintiffs’ disagreement with the holdings of those cases. Factually, this case is very similar to Easter. On appeal, counsel for the appellants makes the same arguments that he made in Easter. This case, like Easter, Adams, and Bobo, involves federal employees seeking overtime pay for the time spent driving to and from work in government-owned vehicles. The Court of Federal Claims in this case properly relied on Adams and Bobo and held that overtime pay is not permitted for such an activity in this case.
Under the circumstances, we determine that affirmance of the judgment of the *23Court of Federal Claims is required by our precedent. See Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (“summary disposition is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion for affirmance is granted. The stay of the briefing schedule is lifted and the judgment of the Court of Federal Claims is affirmed.
(2) The motion to continue the stay of the briefing schedule and consolidate is denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479163/ | ON MOTION
LOURIE, Circuit Judge.
ORDER
The United States moves to affirm the judgment of the United States Court of Federal Claims in this case. The appellants oppose and move to continue the stay of the briefing schedule and consolidate this case with several other cases. The United States replies.
The briefing schedules in this case and several other cases were stayed pending this court’s disposition of Easter v. United States, 2008-5187. This court recently issued a decision in Easter, affirming the judgment of the Court of Federal Claims that federal employees who are required to use government vehicles when driving between their homes and their places of work are not entitled to compensation for such travel time under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Easter v. United States, 575 F.3d 1332 (Fed.Cir.2009).
In Easter, we noted that the dispute in that case was “identical in all material respects to the dispute that was before this court less than three years ago in Adams v. United States, 471 F.3d 1321 (Fed.Cir.2006) and is similar to the dispute that was previously before this court in Bobo v. United States, 136 F.3d 1465 (Fed.Cir.1998).” Easter, 575 F.3d at 1333. We stated that “[t]he task in [Easter ] is therefore mainly to determine whether there is any reason for us to distinguish or depart from the Adams and Bobo decisions. We conclude that there is not, and we therefore affirm the decision of the Court of Federal Claims granting summary judgment in favor of the government.” Id.
*24Similarly, in this case, the Court of Federal Claims noted that Adams and Bobo controlled its disposition of the case, notwithstanding the plaintiffs’ disagreement with the holdings of those cases. Factually, this case is very similar to Easter. On appeal, counsel for the appellants makes the same arguments that he made in Easter. This case, like Easter, Adams, and Bobo, involves federal employees seeking overtime pay for the time spent driving to and from work in government-owned vehicles. The Court of Federal Claims in this case properly relied on Adams and Bobo and held that overtime pay is not permitted for such an activity in this ease.
Under the circumstances, we determine that affirmance of the judgment of the Court of Federal Claims is required by our precedent. See Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (“summary disposition is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion for affirmance is granted. The stay of the briefing schedule is lifted and the judgment of the Court of Federal Claims is affirmed.
(2) The motion to continue the stay of the briefing schedule and consolidate is denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479165/ | ON MOTION
LOURIE, Circuit Judge.
ORDER
The United States moves to affirm the judgment of the United States Court of Federal Claims in this case. William J. Salera opposes and moves to continue the stay of the briefing schedule and consolidate this case with several other cases. The United States replies.
The briefing schedules in this case and several other cases were stayed pending this court’s disposition of Easter v. United States, 2008-5187. This court recently issued a decision in Easter, affirming the judgment of the Court of Federal Claims that federal employees who are required to *25use government vehicles when driving between their homes and their places of work are not entitled to compensation for such travel time under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Easter v. United States, 575 F.3d 1332 (Fed.Cir.2009).
In Easter, we noted that the dispute in that case was “identical in all material respects to the dispute that was before this court less than three years ago in Adams v. United States, 471 F.3d 1321 (Fed.Cir.2006) and is similar to the dispute that was previously before this court in Bobo v. United States, 136 F.3d 1465 (Fed.Cir.1998).” Easter, 575 F.3d at 1333. We stated that “[t]he task in [Easier ] is therefore mainly to determine whether there is any reason for us to distinguish or depart from the Adams and Bobo decisions. We conclude that there is not, and we therefore affirm the decision of the Court of Federal Claims granting summary judgment in favor of the government.” Id.
Similarly, in this case, the Court of Federal Claims noted that Adams and Bobo controlled its disposition of the case, notwithstanding the plaintiffs disagreement with the holdings of those cases. Factually, this case is very similar to Easter. On appeal, counsel for the appellant makes the same arguments that he made in Easter. This case, like Easter, Adams, and Bobo, involves a federal employee seeking overtime pay for the time spent driving to and from work in a government-owned vehicle. The Court of Federal Claims in this case properly relied on Adams and held that overtime pay is not permitted for such an activity in this case.
Under the circumstances, we determine that affirmance of the judgment of the Court of Federal Claims is required by our precedent. See Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (“summary disposition is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion for affirmance is granted. The stay of the briefing schedule is lifted and the judgment of the Court of Federal Claims is affirmed.
(2) The motion to continue the stay of the briefing schedule and consolidate is denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479166/ | *26ON MOTION
LOURIE, Circuit Judge.
ORDER
The United States moves to affirm the judgment of the United States Court of Federal Claims in this case. Susan C. Zennan opposes and moves to continue the stay of the briefing schedule and consolidate this case with several other cases. The United States replies.
The briefing schedules in this case and several other cases were stayed pending this court’s disposition of Easter v. United States, 2008-5187. This court recently issued a decision in Easter, affirming the judgment of the Court of Federal Claims that federal employees who are required to use government vehicles when driving between their homes and them places of work are not entitled to compensation for such travel time under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Easter v. United States, 575 F.3d 1332 (Fed.Cir.2009).
In Easter, we noted that the dispute in that case was “identical in all material respects to the dispute that was before this court less than three years ago in Adams v. United States, 471 F.3d 1321 (Fed.Cir.2006) and is similar to the dispute that was previously before this court in Bobo v. United States, 136 F.3d 1465 (Fed.Cir.1998).” Easter, 575 F.3d at 1333. We stated that “[t]he task in [Easter ] is therefore mainly to determine whether there is any reason for us to distinguish or depart from the Adams and Bobo decisions. We conclude that there is not, and we therefore affirm the decision of the Court of Federal Claims granting summary judgment in favor of the government.” Id.
Similarly, in this case, the Court of Federal Claims noted that Adams and Bobo controlled its disposition of the case, notwithstanding the plaintiffs disagreement with the holdings of those cases. Factually, this case is very similar to Easter. On appeal, counsel for the appellant makes the same arguments that he made in Easter. This case, like Easter, Adams, and Bobo, involves a federal employee seeking overtime pay for the time spent driving to and from work in a government-owned vehicle. The Court of Federal Claims in this case properly relied on Adams and held that overtime pay is not permitted for such an activity in this case.
Under the circumstances, we determine that affirmance of the judgnent of the Court of Federal Claims is required by our precedent. See Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (“summary disposition is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion for affirmance is granted. The stay of the briefing schedule is lifted and the judgment of the Court of Federal Claims is affirmed.
(2) The motion to continue the stay of the briefing schedule and consolidate is denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479168/ | 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/8479170/ | 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/8479173/ | SUMMARY ORDER
Plaintiffs-Appellants appeal from the district court’s opinion and order dismissing their complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.
We review de novo a district court’s dismissal for failure to state a claim. S. Cherry St., LLC v. Hennessee Group LLC, 573 F.3d 98, 103 (2d Cir.2009). We also assume all well-pleaded factual allegations are true and, applying that assumption, determine whether complainants are entitled to relief. Id. at 104; see also ECA, Local 131 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir.2009). “Any complaint alleging securities fraud must satisfy the heightened pleading requirements of the [Private Securities Litigation Reform Act (the “PSLRA”) ] and Fed.R.Civ.P. 9(b) by stating with particularity the circumstances constituting fraud.” Id. (citing Tellabs, Inc. v. Makor Issues & Rights, *85Ltd., 551 U.S. 308, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)). Even though “ ‘we normally draw reasonable inferences in the non-movant’s favor on a motion to dismiss,’ the PSLRA ‘establishes a more stringent rule for inferences involving scienter’ because the PSLRA requires particular allegations giving rise to a strong inference of scienter.” Id. (quoting Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 194 (2d Cir.2008)); see also Tellabs, 551 U.S. at 314, 127 S.Ct. 2499 (“To qualify as ‘strong •within the intendment of [the PSLRA], we hold, an inference of scienter must be more than merely plausible or reasonable — it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.”).
Section 10(b) of the Securities Exchange Act of 1934 makes it illegal “for any person, directly or indirectly, ... [t]o use or employ ... any manipulative or deceptive device” in connection with a sale or purchase of securities. 15 U.S.C. § 78j. Its corollary, Rule 10b-5, makes it illegal “[t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” 17 C.F.R. § 240.10b-5(b).
The appellants argue that Axonyx and the individual appellees violated § 10(b) and Rule 10b-5 by presenting artificially positive statements about the first Phase III trial of the Alzheimer’s drug Phense-rine. The purpose of these statements, appellants allege, was to inflate the stock price of Axonyx in order to profit Axonyx’s owners to the detriment of the stockholders. The district court determined, however, that appellants failed to allege sufficient specific facts to state a claim that appellees purposely misled investors regarding Phenserine and the likelihood it would be successful as a drug to treat Alzheimer’s. In particular, the complaint failed to raise a strong inference of scien-ter on the part of the defendants. We agree.
Although appellants argue that, rather than accepting the arguments as true, Judge Griesa dismissed the complaint because he was skeptical of them, his opinion states clearly that “the court will accept as true the allegations about defects in the Phase III trials.” The decisive point for Judge Griesa remained “that there [wa]s no sufficient pleading of scienter regarding the so-called defects” in the Phase III trial. As Judge Griesa noted throughout his decision, appellants rely on opinions of confidential witnesses to support their allegations, but they fail to offer any factual underpinnings for those opinions. Ultimately, Judge Griesa determined, and we agree, that any inference in the complaint of scienter is less compelling that any opposing inference that Axonyx’s trial of Phenserine was merely unsuccessful. See Tellabs, 551 U.S. at 314, 127 S.Ct. 2499.
After reviewing the issues on appeal and the record of proceedings below, we affirm for substantially the reasons articulated by the district court in its thoughtful and well-reasoned order and opinion.
Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479174/ | SUMMARY ORDER
Defendants-appellants Lee Blue and Ricky Blue (“defendants”) appeal from the District Court’s judgments dated December 12, 2008 and January 6, 2009, respectively.1 Both challenge only their *228sentences. We briefly recount the post-conviction procedural history of their cases, but we assume the parties’s familiarity with the remaining factual and procedural history.
Defendants were convicted of various crimes in 2002 related to their participation in a drug distribution enterprise. Ricky Blue was sentenced to a term of life imprisonment for engaging in a Continuing Criminal Enterprise in violation of 21 U.S.C. § 848. Lee Blue was sentenced to 228 months’ imprisonment for distributing 5 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). Both appealed to this Court, with Lee Blue challenging only his sentence and Ricky Blue challenging both his conviction and sentence. In a summary order dated June 1, 2005, we affirmed Ricky Blue’s conviction but, in light of the Supreme Court’s intervening decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we remanded both sentences for further proceedings pursuant to our opinion in United States v. Crosby, 397 F.3d 103 (2d Cir.2005). See United States v. Givens (Givens I), — Fed.Appx. -, 2005 WL 1317015 (2d Cir.2005).
On remand, the District Court determined that its original sentences would not “have been nontrivially different under the post -Booker [ ] regime,” Crosby, 397 F.3d at 119, and, accordingly, declined to vacate its original sentences. Defendants again appealed to this Court.
In a second summary order dated July 18, 2008, we concluded that the District Court erred in imposing a mandatory life sentence on Ricky Blue pursuant to 21 U.S.C. § 848(b) because “critical statutory factors” had been found by the judge, not the jury. United States v. Givens (Givens II),-Fed.Appx.-, 2008 WL 2796341, at *3 (2d Cir.2008). We therefore vacated Ricky Blue’s sentence and remanded for resentencing under 21 U.S.C. § 848(a).
We also remanded Lee Blue’s sentence in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and pursuant this Court’s decision in United States v. Regalado, 518 F.3d 143 (2d Cir.2008). Regalado adopted Crosby’s procedure of remanding sentences to allow the District Court (1) to consider whether it would have imposed a different sentence in light of intervening Supreme Court precedent, and, (2) if so, to vacate the original sentence and resentence the defendant. See Regalado, 518 F.3d at 149. Although we indicated that we were remanding Lee Blue’s sentence “pursuant to” Regalado, our summary order “vacated” his original sentence and remanded the case “for full re-sentencing.” Givens II, 2008 WL 2796341, at *1, *3. Thus, despite purporting to remand “pursuant to” Rega-lado, we did not, in fact, follow the procedure set forth in Regalado and Crosby.
On remand for the second time, the District Court resentenced Ricky Blue to 360 months’ imprisonment, which was at the high end of the sentencing range prescribed by the United States Sentencing Guidelines (“Guidelines”). At Lee Blue’s resentencing hearing, the District Court construed our (admittedly unclear) summary order as having vacated Lee Blue’s sentence, even though that was “somewhat at odds with the Regalado case.” Gov’t App. 33-34. At the conclusion of the proceedings the District Court stated as follows:
The Court having considered the Rega-lado decision and the sentencing factors set forth in 18 U.S.C. Section 3553 ... [a]nd its overall charge to impose a sen*229tence sufficient but not greater than necessary to comply with those requirements is vacating, to the extent it needs to, the original sentence, and is resen-tencing Mr. Leander Blue, Lee Blue, to 168 monthsf] incarceration.
Id. at 51. Despite resentencing Lee Blue, the District Court never ordered a new presentence investigative report (“PSR”) and did not give Lee Blue the opportunity to address the Court at his sentencing hearing.
I. Ricky Blue’s Sentence
On appeal Ricky Blue argues that his sentence was (1) substantively unreasonable in light of his advanced age and the sentences received by similarly situated co-defendants, and (2) procedurally unreasonable because the District Court did not fully appreciate its authority to impose a non-Guideline sentence for crack cocaine offenses.
We find no substantive error in the District Court’s decision to impose a sentence of 360 months’ imprisonment. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (noting that we will “set aside a district court’s substantive determination only in exceptional eases where the trial court’s decision cannot be located within the range of permissible decisions”); see also United States v. Rigas, 583 F.3d 108, 123 (2d Cir.2009) (explaining that substantive unreasonableness is akin to the “manifest-injustice,” and “shocks-the-conscienee” standards employed in other contexts). The District Court carefully considered the 18 U.S.C. § 3553 factors, including Ricky Blue’s age, but concluded that they did not warrant a lower sentence. With respect to disparity, the District Court noted that Ricky Blue’s most comparable co-defendant was Timothy Givens, and that Givens had actually received a greater sentence. Cf. United States v. Fernandez, 443 F.3d 19, 28 (2d Cir.2006) (“[W]e hold that ... a disparity between non-similarly situated co-defendants is not a valid basis for a claim of error under 18 U.S.C. § 3553(a)(6).”). We find no error in the District Court’s analysis and therefore conclude that Ricky Blue’s sentence is not substantively unreasonable.
We also find no procedural error in the District Court’s sentence. The District Court fully understood that, under Kimbrough, it could vary from the Guidelines because of the disparity between the recommended sentences for crack cocaine offenses and powder cocaine offenses. It concluded, however, that the crack-to-powder disparity had no impact on Ricky Blue’s sentence based on the large amount of powder cocaine that was also attributable to him.
In sum, Ricky Blue’s sentence is neither substantively nor procedurally unreasonable. Accordingly, we affirm the District Court’s judgement with respect to Ricky Blue.
II. Lee Blue’s Sentence
Lee Blue advances a number of arguments on appeal including (1) that his sentencing counsel was ineffective for failing to make certain objections to the Guidelines calculations at his resentencing, (2) that the District Court erred in determining the quantity of drugs attributable to him, and (3) that the District Court erred in not ordering a new PSR and in denying Lee Blue the opportunity to speak at his sentencing. We conclude that a remand is required for the District Court to conduct a full resentencing in accordance with our July 18, 2008 order.
As noted above, our July 18, 2008 summary order remanding Lee Blue’s case for further proceedings was far from clear. Ordinarily, when we remand a sentence *230pursuant to Regalado, the decision to vacate the original sentence is left to the District Court. See 518 F.3d at 149. In this case, however, we vacated the original sentence and remanded pursuant to Rega-lado. Moreover, we ordered a “full re-sentencing” for Lee Blue. See Givens II, 2008 WL 2796341, at *1, *3.
Although remands based on a “specific sentencing error” are not ordinarily subject to a full resentencing, “we must look to both the specific dictates of the remand order as well as the broader spirit of the mandate” to determine the proper scope of proceedings on remand. United States v. Quintierl, 306 F.3d 1217, 1227 (2d Cir.2002) (internal quotation marks omitted). Here, the remand order explicitly provided that Lee Blue’s sentence was vacated and required the District Court to conduct a “full re-sentencing.” Givens II, 2008 WL 2796341, at *1, *3 (emphasis added). Thus, despite the ordinary procedure called for by Regalado, we conclude that the District Court was required to comply with the specific terms our July 18, 2008 order and conduct a full resentencing of Lee Blue.
We therefore remand for a full resen-tencing in accordance with our July 18, 2008 order. Such resentencing shall be preceded by the preparation of a new PSR, see Fed.R.Crim.P. 32, and Lee Blue shall be given the opportunity to address the Court at the sentencing hearing, see Fed.R.Crim.P. 32(i)(4). In light of our decision to remand for a full resentencing we do not reach Lee Blue’s remaining arguments.
CONCLUSION
In accordance with the foregoing we AFFIRM the District Court’s judgment with respect to Ricky Blue. With respect to Lee Blue, we REMAND the cause for full resentencing consistent with this order.
. Although defendants' initial notices of appeal were not timely, the government has waived any objection to untimeliness. See *228United States v. Frias, 521 F.3d 229, 234 (2d Cir.2008) (holding that Fed. R.App. P. 4(b) is not jurisdictional and that the government may waive objection to an untimely appeal). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479177/ | OPINION
PER CURIAM.
Wallace Harden, proceeding pro se and in forma pauperis, sued various employees and officials of the Delaware Correctional Center and the State of Delaware. Screening Harden’s amended complaint pursuant to 28 U.S.C. § 1915A, the District Court dismissed the claims against most of the defendants as frivolous and for failure to state a claim. The only remaining claims were claims of retaliation against two defendants. After a considerable period of time for discovery, those two defendants moved for summary judgment. Initially, in response, Harden sought to amend his complaint and twice requested that counsel be appointed for him. When the District Court denied his requests, he responded to the defendants’ motion. The District Court then granted the defendants’ motion and entered judgment in their favor. Harden appeals.
*237We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the orders dismissing Harden’s claims and granting summary judgment is plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000); Abramson v. William Paterson College, 260 F.3d 265, 276 (3d Cir.2001). We review the . order denying leave to amend and the order denying the requests for appointment of counsel for abuse of discretion. See Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir.2004); Tabron v. Grace, 6 F.3d 147, 157-58 (3d Cir.1993). Upon review, we conclude that Harden’s appeal must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)® because it has no arguable basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
As the parties are familiar with the facts (which the District Court twice set forth at length), we will refer to them only as necessary to our analysis. We need not repeat all of the allegations to conclude, as the District Court did, that Harden did not state a claim under the statutes he mentioned at the beginning of his complaint, namely the Americans with Disabilities Act, the Civil Rights Act of 1991, or the Handicap Persons Employment Protection Act. And it is the absence of allegations against Defendants Attorney General Brady, Carl Danberg, K. Hazzard, and James Porter that supported the dismissal of claims against those defendants.
Furthermore, as the District Court concluded, Harden did not state a claim again Lisa Merson or Kenneth Milborne by alleging merely that they provided information to him. Nor did he state a claim against defendants Governor Minner, Commissioner Taylor, Warden Carroll, Deputy Warden Burris, Tommy Young, Jim Fritz, J. Lupinetti, Ron Drake, Sheryl Morris, H. Legates, Paul Downing, and Jay Wingle based on his theory of respon-deat-superior liability, see Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988), or otherwise. Harden also did not allege a constitutional violation through his claim of verbal abuse and harassment by Phillis Helper. See, e.g., Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.1987) (stating that not every unpleasant experience a prisoner faces, like verbal abuse or harassment, constitutes cruel and unusual punishment). In the absence of a constitutional violation, Harden’s related conspiracy claim against defendants Fritz, Young, Morris, Legates, Downing, and Wingle also failed. See Williams v. Fedor, 69 F.Supp.2d 649, 655 (M.D.Pa.1999) (quoting Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir.1999), to note the requirement of an actual violation of a protected right to state a cause of action).
At the summary judgment phase, Harden sought to renew some of his claims that the District Court dismissed on screening, but the District Court did not allow him to amend his complaint again. Leave to amend should be granted unless amendment is futile or inequitable. See Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir.2002). Undue delay, bad faith, and dilatory motive on the part of the plaintiff and prejudice to the defendant suggest inequity. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.2000). In this case, the proposed amendment was based on information Harden knew about before he filed his case but that he submitted after considerable delay (two-and-a-half years after the defendants’ answer) and after the defendants moved for summary judgment. The District Court did not abuse its discretion by denying the request to amend the already amended complaint in light of the delay and prejudice to the defendants in this case.
After the defendants filed their motion for summary judgment on the remaining retaliation claims, Harden also requested *238that counsel be appointed to represent him. To decide whether to appoint counsel, a court must, as a threshold manner, determine whether a claim has arguable merit in fact and law. See Tabron, 6 F.3d at 155. If a claim has some merit, then a court must evaluate additional factors. See id. at 156-57. The District Court did not abuse its discretion in denying Harden’s requests for counsel. The District Court identified and weighed the appropriate considerations. Furthermore, under the circumstances of this case, at the point that Harden sought counsel, his retaliation claims did not have arguable merit. The defendants’ motion for summary judgment was based in part on Harden’s own deposition testimony, which completely undermined his claim.
In light of the facts which the defendants presented (opposed by Harden only by the argument that he should have been represented by counsel at his deposition), the District Court properly granted summary judgment in favor of the defendants. To prevail, Harden had to prove that the conduct that led to the alleged retaliation was constitutionally protected. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001). He needed also to show that, at the hands of prison officials, he suffered some adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights. See id. He also had to prove that his constitutionally protected conduct served as a substantial or motivating factor for the adverse action. See id. The defendants could rebut by showing by a preponderance of the evidence that they would have taken the adverse action even in the absence of the protected activity. See id.
As the District Court concluded, even if Harden could meet his burden under the Rauser framework, the defendants presented unopposed facts (including Harden’s deposition testimony and letters he had written) to prove that they would have taken the adverse action anyway and terminated him from his employment with the prison food service. They provided evidence supporting their legitimate penological reasons for their action, namely that Harden violated orders, had problems with the kitchen staff, believed that staff and inmates were “out to get him,” and had difficulty accepting authority.
For the reasons given above, the District Court properly entered judgment in favor of the defendants. Because this appeal has no arguable basis in fact or law, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B)®. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479178/ | OPINION
PER CURIAM.
Appellant Pedro Rondon, a pro se prisoner, appeals from an order of the District Court granting summary judgment in favor of Defendants. For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.
In July 2007, Rondon commenced a civil rights action under 42 U.S.C. § 1983 in the United States District Court for the District of New Jersey against Defendants Passaic County Jail and Sheriff Jerry Speziale. Rondon claims that while he was temporarily imprisoned at the Passaic County Jail, from June 1998 until October 1998, Defendants failed to provide him with clean underwear, which caused him to contract a fungal infection in the area of his groin. He further claims that Defendants failed to provide him with proper medical care in order to treat the infection, causing permanent injury.
At the close of discovery, the parties filed cross-motions for summary judgment. Defendants argued that Rondon’s § 1983 claims were time-barred and should be dismissed on that basis. Upon review, the *240District Court concluded that Rondon’s claims were barred by the applicable statute of limitations and granted summary judgment in favor of Defendants. Rondon filed a timely appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a District Court’s grant of summary judgment de novo. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). Summary judgment is proper only if it appears “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Carrasca v. Pomeroy, 313 F.3d 828, 832-33 (3d Cir.2002). If a motion for summary judgment demonstrates that no genuine issue of material fact exists, the nonmoving party must set forth specific facts showing a genuine material issue for trial and may not rest upon the mere allegations or denials of its pleadings. Connors v. Fawn Mining Corp., 30 F.3d 483, 489 (3d Cir.1994).
We agree with the District Court’s analysis regarding the timeliness of Rondon’s claims. While 42 U.S.C. § 1983 does not set forth a limitations period, “federal courts must look to the statute of limitations governing analogous state causes of actions.” Urrutia v. Harrisburg County Police Dep’t, 91 F.3d 451, 457 n. 9 (3d Cir.1996). Here, as the District Court noted, the applicable statute of limitations is that governing personal injury claims in New Jersey. See Wallace v. Koto, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Therefore, Rondon had two years from the time his cause of action accrued in which to file his complaint. See N.J. Stat. Ann. § 2A:14-2. A § 1983 cause of action accrues on the date when a plaintiff knew or should have known his rights had been violated. See Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir.1991). Under this rule, “[t]he cause of action accrues even though the full extent of the injury is not then known or predictable.” Wallace, 549 U.S. at 391, 127 S.Ct. 1091.
Rondon contracted his infection during his June 1998 to October 1998 stay at Passaic County Jail. The first time that a doctor inspected and prescribed treatment for his infection was in October 1998, when he was transferred to a different facility. Thus, he knew, or had reason to know, of the existence of an infection by October 1998 at the latest. However, Rondon did not file a complaint until July 2007, when a physician informed him at that time that he would suffer permanent scarring in the infected area.
We agree with the District Court that while that information is regrettable, it does not change the date on which Ron-don’s claim accrued. As the District Court appropriately summarized, “[i]n October 1998, Rondon knew that he had an infection; that the infection was allegedly caused by dirty clothes issued to him; and that Passaic County Jail had not provided him with a physical examination ... [e]ven if Rondon misjudged the severity of his injury at the time, he did have enough medical information to know that he had sustained an injury.” (See Dist. Ct. Opinion at 6.) Accordingly, we agree with the District Court that Rondon’s claims are time-barred. Summary judgment was therefore appropriate.
As Rondon’s appeal presents no substantial question, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479180/ | OPINION
PER CURIAM.
Rasheed Nifas, a prisoner housed at the Fayette State Correctional Institution in Pennsylvania (“SCI-Fayette”), appeals from the order of the United States District Court for the Western District of Pennsylvania granting summary judgment for the defendants and dismissing his civil rights complaint alleging, among other things, his wrongful placement in administrative custody (“AC”) and on the restrict*243ed release list (“RRL”) in 2007 and 2008.1 Because we conclude that no substantial question is presented on appeal, we will summarily affirm. See LAR 27.4 and I.O.P. 10.6.
Nifas is serving a life sentence without eligibility for parole. During his first eight years in prison, Nifas received thirty-two misconducts and eleven orders directing his “separation” from two inmates and five staff (four of whom are females). He was transferred from SCI-Dallas to SCI-Fayette in May 2006 because of his harassment of three female staff there.
In September 2006, Nifas was placed in AC for three days pending investigation of Defendant Debra Mahlmeister’s complaint that he had given her an inappropriate inmate request slip. In October 2006, Ni-fas filed a grievance (No. 165820) against Mahlmeister. From November 2006 to August 2007, Nifas bounced in and out of the general population, with short-term placements in AC and disciplinary confinement.2 Immediately following his release from disciplinary custody in August 2007, and after a hearing, the prison placed Ni-fas in AC because he posed a risk to himself and others. The prison also sought a transfer to another facility. SCI-Fayette’s transfer petition was denied in January 2008. Thereafter, Secretary Beard approved the prison’s request to have Nifas placed on the RRL. Nifas’s RRL status began in April 2008.
Nifas’s Complaint, filed on June 16, 2008 (the date he signed the Complaint), alleged that the defendants retaliated against him for the grievance he filed in 2006 regarding defendant Mahlmeister. Specifically, he asserted that the defendants lodged three false misconduct charges for various infractions of prison rules and orchestrated his placement in AC and on the RRL at SCI-Fayette based on false allegations that he harassed female staff. He also claimed that the defendants denied him procedural due process, access to the courts while in AC, and privileges that similarly situated inmates had received in AC. He alleged further that his confinement in AC constituted cruel and unusual punishment because it exacerbated his documented serious psychiatric condition, and that the defendants wrongfully denied him the right to practice his Muslim religion in AC. He claimed violations of the First, Eighth and Fourteenth Amendments (Equal Protection and Due Process) and of the Religious Freedom Restoration Act (“RFRA”) and the Religious Land Use and Institutionalized Persons Act (“RLUI-PA”). He sought damages and an order directing the defendants to release him to a general population unit at SCI-Fayette.
Following discovery, the defendants filed a joint motion for summary judg*244ment, claiming that most of Nifas’s claims were not exhausted and that his claims were meritless in any event. Nifas responded and filed his own motion for summary judgment. The Magistrate Judge granted summary judgment for the defendants, holding that the access to the courts, retaliation, equal protection, and Eighth Amendment claims were both unexhausted and meritless and that Nifas failed to exhaust his First Amendment religious exercise and RFRA/RLUIPA claims. By order entered September 30, 2009, the Magistrate Judge granted summary judgment in the defendants’ favor and denied all pending motions, including Nifas’s summary judgment motion. On October 6, 2009, the Magistrate Judge denied Nifas’s motion for Rule 11 sanctions against the defendants. This timely appeal followed.3
Nifas argues that he exhausted his claims, listing all of the grievances he filed concerning his access to the courts, retaliation, equal protection, and procedural due process claims. (See “Memorandum in support of appeal,” at 2-4.)4 Assuming, arguendo, that these claims are exhausted, we agree with the Magistrate Judge’s reasoning and conclusion that the claims lack merit. The fact that Nifas’s civil rights complaint was delayed by 120 days does not amount to the kind of actual injury required to make out a denial of access to the courts claim. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Nifas’s history of misconducts and problems with female staff members both before and after he arrived at SCI-Fayette was more than sufficient to show that his placement in AC and on the RRL served a legitimate penological interest and that it would have occurred regardless of any retaliatory motive. See Rauser v. Horn, 241 F.3d 330, 334 (3d Cir.2001). Nifas’s retaliatory discipline claim fails because there is “some evidence” supporting the guilty findings for the three disciplinary charges brought against Nifas after he filed his grievance in October 2006. See Henderson v. Baird, 29 F.3d 464, 469 (8th Cir.1994) (stating that a finding of “some evidence” to support a prison disciplinary determination “checkmates” the prisoner’s retaliation claim). As for his procedural due process claim, confinement in AC for 178 days and a 90-day placement on the RRL does not amount to an “atypical and significant hardship” when compared to the ordinary incidents of prison life, and thus, Nifas has no protected liberty interest.5 See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Griffin v. Vaughn, 112 F.3d 703, 706 & n. 2 (3d Cir.1997). In any event, Nifas received all of the process he was due. Prior to the initiation of this lawsuit, the Program Review Committee (“PRC”) had conducted hearings regarding Nifas’s AC status on August 16, 2007, February 7 and April 10, 2008, and had reviewed his RRL status on April 10, 2008. Nifas’s equal protection claim also lacks merit. *245Nifas failed to demonstrate that the inmates who had submitted affidavits were similarly situated to him as there is no evidence that the inmates shared similar institutional histories.
The Magistrate Judge correctly determined that the Eighth Amendment claim is not exhausted. There is no grievance in this record, and Nifas does not point to any, in which he complained about the deleterious effect of his confinement in AC on his psychological condition. In any event, the claim was properly dismissed on its merits. As the Magistrate Judge observed, the “Individual Treatment Plan” for Nifas dated October 15, 2007, stated that he was in long-term placement in AC and listed treatment objectives while he was there. (See Defendants’ appd’x to summary judgment motion, Exh. 1 at 9.) Nothing in the Plan indicated that Nifas’s mental health would be seriously affected by such confinement. Thus, no reasonable juror could conclude from the record evidence that AC placement posed a substantial risk of serious harm to Nifas or that the defendants were deliberately indifferent to his psychological condition.
That leaves the religious exercise and RFRA/RLUIPA claims, which were dismissed for non-exhaustion. Proper exhaustion requires that an inmate proceed through all available steps in the administrative review process, and that the inmate do so in accordance with established deadlines and procedural rules so that the reviewing body can address the issues raised. See Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). An inmate cannot satisfy the PLRA by completing the prison grievance process during the pendency of the District Court proceeding. See e.g., Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir.2003) (holding that “the district court must look to the time of filing, not the time the district court is rendering its decision, to determine if exhaustion has occurred. If exhaustion was not completed at the time of filing, dismissal is mandatory”). It is clear from Nifas’s own representations and submissions that he filed a grievance regarding the denial of his right to practice his Muslim faith (Grievance No. 232345) on the day he filed his Complaint. Accordingly, because exhaustion was not completed by the commencement date of the lawsuit, the Magistrate Judge properly granted summary judgment and dismissed the religious exercise and RFRA/RLUIPA claims for failure to comply with 42 U.S.C. § 1997e(a). The dismissal of these claims, of course, is without prejudice.
For these reasons, we will summarily affirm the District Court’s judgment as modified to reflect the dismissal without prejudice of Nifas’s religious exercise and RFRA/RLUIPA claims.
. The RRL is a list of inmates who may only be released from AC status upon prior approval of the Secretary. An inmate may be placed on RRL "when he/she poses a threat to the secure operation of the facility and where a transfer to another facility or jurisdiction would not alleviate the security concern.” The Secretary must approve the designation of the inmate to the RRL. See DC-ADM 802, § l.B, p. 1-2 and § 4.B, p. 4-2.
. Notably, he was disciplined for possession of an 11-inch piece of steel in November 2006, for disobeying an order on July 13, 2007, and for threatening a female counselor on October 3, 2007. The prison placed Nifas in AC for about eleven days in June 2007, pending an investigation of a charge that he made two inappropriate comments to two female staff members. On July 13, 2007, he was back in AC pending investigation of another complaint by a different female staff member concerning an inappropriate comment Nifas made to her about a letter he wanted to send her. He attempted suicide in AC on July 13, the same day he was disciplined. Nifas requested a transfer to another facility in August 2007.
.We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Although Nifas argues that the Magistrate Judge lacked authority to enter judgment in his case, the record indicates otherwise. Pursuant to 28 U.S.C. § 636(c)(1), both Nifas and the defendants, on June 16 and December 10, 2008, respectively, voluntarily consented to have the Magistrate Judge conduct any and all further proceedings in the case, including trial and entry of final judgment.
. Nifas does not claim that he exhausted his Eighth Amendment, religious exercise and RFRA/RLUIPA claims.
. We express no opinion as to whether Nifas's continued confinement in AC and on the RRL after June 16, 2008, gives rise to a protected liberty interest. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479182/ | OPINION
PER CURIAM.
Angel Maria DeJesus, a federal inmate in Pennsylvania, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Western District of Pennsylvania, claiming that the Bureau of Prisons (BOP) erred in refusing to designate nunc pro tunc a state correctional facility for service of his federal sentence so that DeJesus “could gain credit against his federal sentence.” Ptn. at 2. The District Court adopted a Magistrate Judge’s Report and Recommendation and denied the petition. DeJe-sus timely filed this appeal. We have appellate jurisdiction under 28 U.S.C. § 1291. We will summarily affirm because this appeal presents “no substantial question.” 3d Cir. IOP Ch. 10.6 and L.A.R. 27.4.
The essential facts are not in dispute. On July 17, 2003, DeJesus was arrested in New York for a drug possession offense, and later sentenced by a New York court to 3 to 6 years in prison. On September 16, 2005, while serving the state sentence, DeJesus was indicted in the United States District Court for the Southern District of New York on a charge of illegal reentry after deportation. On September 29, 2005, pursuant to a writ of habeas corpus ad prosequendum, DeJesus was taken into federal custody for processing of the federal charge.1 On May 5, 2006, after entry of a guilty plea, the federal court imposed a sentence of 57 months in prison, to run concurrently with the state sentence. The BOP has run the federal sentence from its date of imposition (May 5, 2006).
On May 25, 2006, DeJesus was returned to state custody. He was then paroled from the state sentence on September 8, *2472006, and transferred to federal custody to complete serving the federal sentence. The record indicates that, with full good conduct time credit, DeJesus’ projected date to complete the federal sentence is June 26, 2010, at which time he will be released to the Bureau of Immigration and Customs Enforcement.
DeJesus claims that the BOP erred in refusing his request to credit his federal sentence for all the time that he served in state prison prior to imposition of the federal sentence (i.e., July 17, 2003, through September 29, 2005). He argues that nunc pro tunc designation of the state prison for service of the federal sentence is required to remedy the additional time that he claims to have spent in state custody due to the purported delay in bringing the federal prosecution for illegal reentry. Furthermore, he argues that he would have been eligible for parole on the state sentence on November 15, 2005, but that his ability to complete the requirements for parole were delayed when he was taken into federal custody on the writ in September 2005.
Distinguishing Barden v. Keohane, 921 F.2d 476 (3d Cir.1990), and the other cases relied upon by DeJesus, the Magistrate Judge found that the BOP did not err in refusing to afford “double credit” for time that DeJesus served in state custody prior to imposition of the federal sentence, as that time was credited to the state sentence. We agree.
When, as here, a federal district court expressly states that its sentence is to run concurrently with a state sentence,2 the BOP will deem the federal sentence to commence on the date imposed, see 18 U.S.C. § 3585(a), and it will designate the state institution as the place for service of the federal sentence. See 18 U.S.C. § 3621(b). The BOP properly followed that course here and began DeJesus’ federal sentence on its date of imposition, thereby allowing him to serve the state and federal sentences concurrently from May 5, 2006, forward. But DeJesus was not entitled to credit for time served in state custody prior to imposition of the federal sentence.
It is undisputed that all of DeJesus’ time served prior to imposition of the federal sentence was credited to his state sentence. Under 18 U.S.C. § 3585(b), the BOP may not grant prior custody credit for time credited to another sentence. See Rios v. Wiley, 201 F.3d 257, 274 (3d Cir.2000). Because DeJesus received credit on his state sentence, he cannot, as the Magistrate Judge fully explained, receive double credit.
DeJesus argues, nevertheless, that his situation is “exceptional” and warrants double credit under Willis v. United States, 438 F.2d 923 (5th Cir.1971), and Kayfez v. Gasele, 993 F.2d 1288 (7th Cir.1993). This Court has explained, however, that the reasoning in the “Willis/Kayfez line of cases” does not permit federal credit for time served “after the state sentence was imposed but before .the federal sentence was pronounced.” Rios, 201 F.3d at 273 n. 13. DeJesus has not shown that his situation presents any circumstance indicating that the BOP misapplied the controlling statutes in refusing to award double credit.
For these reasons, we will affirm the District Court’s judgment.
. A writ of habeas corpus ad prosequendum “merely 'loans’ the prisoner to federal author-¡ties." Rios v. Wiley, 201 F.3d 257, 275 (3d Cir.2000).
. The judgment in DeJesus’ federal case imposed a term of imprisonment of “57 months to run concurrent with the state sentence the defendant is currently serving.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479186/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Appellants Marsh & McLennan Companies, Inc., Marsh, Inc., Marsh USA Inc., Marsh USA Inc. (Connecticut), Mercer, Inc., Mercer Human Resource Consulting LLC, Mercer Human Resource Consulting of Texas, Inc., Seabury & Smith, Inc. (collectively “Marsh”) appeal from the final order and memorandum opinion of United States District Court for the District of New Jersey denying Marsh’s motion for a permanent injunction and granting Appel-*265lees’, Office Depot, Inc. (“Office Depot”), and Epix Holdings Corp., Epix I, Inc., and Epix II, Inc. (collectively “Epix”), motions to extend a class action “opt-out” deadline and to alter a judgment to exclude Appel-lees from the settlement class. For the reasons stated herein, we will affirm.
I.
We write exclusively for the parties who are familiar with the factual context and the legal history of the case. Therefore, we will set forth only those facts necessary to our analysis.
In 2004, several class action suits were filed against Mai’sh, other insurance brokers, and insurers for them participation in an alleged conspiracy that involved brokers bid rigging for insurance carriers in exchange for “contingent commissions,” or kickbacks. The class action suits were eventually consolidated into two dockets; the docket at issue in this appeal is In re Insurance Brokerage Antitrust Litigation, No. 04-5184, 2006 WL 2850607 (D.N.J. Oct. 3, 2006) (“MDL 1663”).
In MDL 1663, the District Court approved a class-wide settlement pursuant to Federal Rule of Civil Procedure 23(b)(3). In conjunction with the settlement approval, Marsh was required to send “opt-out” notices to all potential class members. These notices provided that potential class members would be included in the class action settlement unless they opted out of the class by the “opt-out” deadline. Both Office Depot and Epix failed to opt-out of the class prior to the deadline.
On February 17, 2009, the District Court issued a final judgment and order approving the class-wide settlement. Pursuant to this order, all members of the class released any and all claims against Marsh that could have been raised in the class action suit. As such, Marsh filed motions to enjoin Office Depot and Epix from pursuing their state court actions against Marsh. In response to Marsh’s motions to enjoin, Office Depot and Epix filed motions in the district court to extend the “opt-out” deadline and to modify the settlement class so that each could elect to be excluded from the class settlement.
The District Court concluded that Office Depot’s and Epix’s failure to meet the “opt-out” deadline was “excusable neglect.” The Court granted Appellees’ motions for an extension of the deadline and modification of the settlement class and denied Marsh’s motion to enjoin Appellees’ state court actions. This timely appeal followed.
II.
The District Court had jurisdiction over MDL 1663 pursuant to 28 U.S.C. §§ 1331, 1367. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 1292. This court reviews a “District Court’s modification of its own order establishing a deadline for abuse of discretion.” In re Cendant Corp. Prides Litig., 233 F.3d 188, 192 (3d Cir.2000). “We will not disturb an exercise of discretion ‘unless there is a definite and firm conviction that the court ... committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors.’ ” Id. (quoting Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir.1993)).
III.
The Supreme Court has recognized that, in certain circumstances, a party’s failure to comply with a filing deadline may be “excusable neglect.” Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In assessing what neglect is excusable, we are directed to consider four relevant factors: “(1) the danger *266of prejudice to the nonmovant; (2) the length of the delay and its potential effect on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith.” Id.; see also In re Orthopedic Bone Screw Prods. Liability Litig., 246 F.3d 315, 322-23 (3d Cir.2001). As the Supreme Court noted in Pioneer, “[in] determining what sorts of neglect will be excusable, we conclude that the determination is at the bottom an equitable one[.]” 507 U.S. at 395, 113 S.Ct. 1489.
Marsh contends that the District Court erred in finding that Appellees’ failure to meet the “opt-out” deadline was “excusable neglect.” Specifically, Marsh argues that the District Court erred by not giving dispositive weight to the supposedly “critical” third factor — the reason for delay. We disagree.
“In class actions, courts have equitable powers to manage the litigation in order to promote judicial economy and fairness to litigants.” De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 313 (3d Cir.2003). Where those equitable powers are exercised in the form of case management decisions in a complex class action, “district court discretion is at its greatest.” In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1210 (D.C.Cir.2003). In light of this deference to the District Court’s discretion, we believe that the District Court fairly and appropriately considered the relevant equitable factors. The Court noted that the prejudice to the nonmovant party was “minimal,” (Dist. Ct. Slip Op. at 7, 2009 WL 2255513); that “granting Epix and Office Depot’s motions will have little or no impact on future proceedings in MDL 1663[,]” (id. at 8); that Epix and Office Depot filed their motions “with all possible haste after receiving actual notice of the Settlement Agreement[,]” (id. at 9); and that the movants acted in good faith (id.). Consideration of these factors is properly an act of balancing; accordingly, we reject Marsh’s argument that any one factor is preeminent over the others. See In re O’Brien Envtl. Energy, Inc., 188 F.3d 116, 125 (3d Cir.1999) (“[T]he [Pioneer ] Court explicitly rejected the argument that excusable neglect applies only to those situations where the failure to comply is a result of circumstances beyond the [late filerjs control.”).
We therefore hold that the District Court exercised reasonable discretion in extending the “opt-out” deadline so that Office Depot and Epix could be excluded from the class settlement and thus pursue their state court litigation. In light of the deadline extension, and the subsequent removal of Office Depot and Epix from the settlement class, the District Court correctly denied Marsh’s motion for a permanent injunction barring Office Depot’s and Epix’s state court litigation.
IV.
For the foregoing reasons, we will affirm the order of the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479188/ | OPINION
SLOVITER, Circuit Judge.
Harry Berroa appeals his convictions of violating the Hobbs Act, 18 U.S.C. § 1951(a), and of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1). He also asserts that “the sentence [he received from the District Court] must be vacated.” Appellant’s Br. at 53. We will affirm in all respects.1
I.
In August 2006, Berroa and his half-brother, Jesse Dawson, entered a retail store in Philadelphia called the Appliance Factory armed with a handgun and demanded money from Frank Dush, the sole store employee. As Dush tried to escape, Berroa and Dawson tackled and beat him, discharged a firearm, took about $1,075 which Dush carried, and duct-taped Dush’s “whole body.” App. at 407.
Berroa and Dawson were apprehended that same day and thereafter charged with conspiracy to interfere with and interfering with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a) (the “Hobbs Act”), and knowingly using and carrying, and aiding and abetting in the use and carrying of, a firearm during and *269in relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1) (Count 3).2
After a trial in July 2007, the jury was unable to reach a verdict and the court declared a mistrial. Approximately two months later, Berroa was tried again for the same charges and was convicted by the jury on two of the three charges, but the District Court granted Berroa’s request for a new trial because it had erred in allowing the jury to have access to impermissible evidence.
After Dawson was captured, family members of both Berroa and Dawson retained two lawyers, Nino Tinari as counsel for Dawson and Eugene Tinari, his son, as counsel for Berroa. Dawson pled guilty and agreed to cooperate with the government.
Berroa maintained his innocence. He also sent the District Court at least two letters stating dissatisfaction with Eugene Tinari’s representation. Ten days before the third trial was to begin, the District Court held a pretrial conference at which Berroa responded in the negative when asked whether he was “ready to proceed with Mr. Tinari as [his] lawyer[.]” App. at 102. Berroa’s reluctance stemmed from disagreements with Tinari over whether and when to file motions challenging federal jurisdiction. Despite Berroa’s complaint that Tinari’s “heart just [wasn’t] into it,” App. at 111, the District Court said, “I don’t think Mr. Berroa has given me any good reasons ... not to proceed.” App. at 123.
The third jury convicted Berroa of violating the Hobbs Act and of using or carrying a firearm during and in relation to a crime of violence. He was sentenced to a total of 180 months — -fifty-four months for the Hobbs Act violation, 120 months for using a firearm during and in furtherance of a crime of violence, and six months for criminal contempt (arising from an outburst by Mr. Berroa during the trial). Berroa timely appealed.
II.
Berroa presses five principal challenges to his conviction and sentence, and makes two other claims which he concedes are foreclosed by binding precedent.
Berroa contends that the father-son relationship between his counsel and Dawson’s counsel led to a clear conflict of interest, and that, as a result, his conviction should be vacated and the matter remanded to the District Court. Berroa’s conflict of interest claim has two prongs, one being his assertion that the District Court should have inquired into a potential conflict and the other being that there was an actual conflict of interest. Considering first Berroa’s potential conflict of interest claim, Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), is dis-positive. In Mickens, the Court addressed precisely the same question at issue here: what remedy is available to the defendant “where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known.” Id. at 164, 122 S.Ct. 1237. The Court held that the defendant had no remedy for failure to inquire into the potential conflict of interest, id. at 170-73, 122 S.Ct. 1237, but that such a defendant would still have to show that an actual conflict of interest existed which adversely affected his counsel’s performance, id. at 174, 122 S.Ct. 1237 (“it was at least necessary, to void the conviction, for petitioner to establish that *270the conflict of interest adversely affected his counsel’s performance”).3 We thus reject Berroa’s contention that the District Court’s failure, sua sponte, to inquire into any potential conflict of interest entitles him to an automatic remand without the showing of any prejudice.
We are not in a position to decide Berroa’s claim of actual conflict. See generally Mickens, 535 U.S. at 171, 122 S.Ct. 1237 (defining “ ‘an actual conflict of interest’ ” as “a conflict that affected counsel’s performance”) (emphasis omitted). We have stated that such an issue is “better reserved for 28 U.S.C. § 2255 [habeas corpus] actions” rather than direct appeal, because “collateral review allows for adequate factual development of the claim.... ” United States v. Morena, 547 F.3d 191, 198 (3d Cir.2008). Berroa has “reserve[d] the right to pursue his conflict-of-interest claim via a § 2255 motion.... ” Appellant’s Reply Br. at 3 n.l.
Berroa next contends that his conviction must be reversed because the District Court violated his Sixth Amendment right to have the counsel of his choosing. He relies on the decision in United States v. Gonzalez-Lopez, where the Court held that a conviction must be reversed when it occurs after a trial in which the defendant was wrongfully denied his choice of counsel. 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). The Gonzalez-Lopez Court “accepted] th[e] premise” that the district court in that case erroneously denied respondent his choice of counsel. Id. There is no basis for a similar conclusion here.
In this case, Berroa’s request to change counsel came too late and was based on too little. “A last-minute request for substitution of counsel.... need not be granted unless ‘good cause’ is shown for the defendant’s dissatisfaction with his current attorney.” United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir.1995). “Good cause” is defined as “a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict with the attorney.” Id. (citing United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982)).
None of these existed here. As stated above, there was no evident conflict of interest at the pretrial conference and Berroa did not raise that issue until his appeal. Further, although Berroa complained three months before trial that he was “having grave difficulty contacting” Tinari, App. at 95, and two months before trial that Tinari was “not responding to [his] letters,” App. at 96, the record does not show a complete breakdown of communication. On the contrary, by the time of the pretrial conference, Berroa and Tinari had discussed their legal strategy, albeit taking different positions.
As to the “irreconcilable difference” consideration, Berroa’s disagreements with Tinari did not appear insuperable at the pretrial conference, as Tinari stated unequivocally that he could “effectively represent Mr. Berroa.” App. at 113-14. A dispute over strategy between a defendant and counsel is not by itself “good cause” for a last-minute substitution of counsel. Further, even though Tinari was reluctant to do so, he ultimately did file a pretrial motion challenging federal jurisdiction in accordance with Berroa’s wishes. Also, as this was Berroa’s third trial, the District Court’s concern for efficiency was legitimate. See Goldberg, 67 F.3d at 1098 (noting that district courts may consider the *271efficient administration of justice before substituting counsel) (citation omitted).
Berroa next asserts that there was insufficient evidence to establish that his robbery obstructed or affected interstate commerce. We must determine whether, viewing the evidence in the light most favorable to the Government, substantial evidence supports the jury’s guilty verdict. United States v. Urban, 404 F.3d 754, 762 (3d Cir.2005) (citation omitted).
The Hobbs Act extends federal jurisdiction to a robbery that “in any way or degree obstructs, delays, or affects [interstate] commerce.... ” 18 U.S.C. § 1951(a). Therefore, the evidence must show that the target of the robbery, the Appliance Factory, “engaged in interstate commerce.” Urban, 404 F.3d at 767. Despite Berroa’s efforts to convince us otherwise, the retail activities of the Appliance Factory were not “ ‘local in character.’ ” Appellant’s Br. at 40 (quoting United States v. McGuire, 178 F.3d 203, 212 (3d Cir.1999)). Rather, some of the Appliance Factory’s inventory had been purchased in New Jersey. Also, the robbery impacted the ordinary operations of the Appliance Factory by forcing the store to close for the remainder of the day on which the robbery occurred. See United States v. Jimenez-Torres, 435 F.3d 3, 8 (1st Cir.2006) (Government may demonstrate an effect on commerce by proving that a robbery resulted in the closing of a business). Such evidence is sufficient. See Urban, 404 F.3d at 766 (“ ‘[I]n any individual case, proof of a de minimis effect on interstate commerce is all that is required’ ... [a]nd, ... such a ‘de minimis effect’ in a[ ] Hobbs Act case need only be ‘potential.’ ” (quoting United States v. Clausen, 328 F.3d 708, 711 (3d Cir.2003) and United States v. Haywood, 363 F.3d 200, 209-10 (3d Cir.2004))).
We next address Berroa’s claim that his conviction must be reversed because the District Court admitted the testimony of an FBI agent that it was “very common” for “the FBI [to] investigate robberies of businesses in the City of Philadelphia....” App. at 474. Immediately after this statement, the District Court cautioned the jury that the agent’s testimony was “submitted just for background” and that the jurors “must decide this case based on the elements of the federal crime as [the District Court] ... define[s] it ... at the end of the case.” App. at 475.
Berroa argues that the agent’s testimony was inadmissible because its probative value was “ ‘substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.’ ” Appellant’s Br. at 48 (quoting Fed.R.Evid. 403). We owe the District Court “very substantial discretion” in its ruling on whether to admit testimony under Rule 403. United States v. Long, 574 F.2d 761, 767 (3d Cir.1978). A district court’s decision under Rule 403 will only be reversed if its analysis and conclusions are “arbitrary or irrational.” United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir.2000) (quotation and citation omitted).
Admitting the testimony was neither arbitrary nor irrational. The District Court found that the testimony was necessary to disabuse the jurors of the “suggestion that [Berroa] ha[d] been singled out or discriminated against” through prosecution in federal court. App. at 466. Although the probative value of this testimony was low, we cannot concur that it “could well have led the jury to believe that the federal government’s involvement, in and of itself, demonstrated” federal jurisdiction over Berroa’s robbery, particularly in light of the District Court’s limiting instruction. Appellant’s Br. at 51.
*272Finally, Berroa contends that the ten-year mandatory minimum sentence the District Court imposed under 18 U.S.C. § 924(c)(l)(A)(iii) was “constitutionally infirm” as neither the jury nor the court made an “express finding” that Berroa had discharged a firearm. Appellant’s Reply Br. at 28. Berroa correctly concedes that his claim that the jury had to find that Berroa discharged the firearm before the court could impose the ten-year mandatory minimum is foreclosed by binding precedent. See United States v. Williams, 464 F.3d 443, 449 (3d Cir.2006) (citing Harris v. United States, 536 U.S. 545, 568, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), for the proposition that district courts (as opposed to juries) may find that a firearm was discharged and sentence defendants to the ten-year mandatory minimum).
Nor can we accept Berroa’s claim that the “[District [Cjourt failed to render the finding of fact required before subjecting Mr. Berroa to a ten-year consecutive term.... ” Appellant’s Reply Br. at 26. Although the District Court referred to the crime as “an armed robbery,” it did not state at sentencing that the gun was discharged during the robbery. App. at 769. However, Berroa does not cite and we have not discovered authority supporting his assertion that an express finding on the record is required. Moreover, the District Court had ample support for its sentence from evidence adduced at trial and the PSR, which said “[Berroa] discharged the firearm into a refrigerator located in the store.” PSR ¶ 22. Berroa reviewed the PSR and did not dispute the finding that he had discharged a firearm during the robbery. See United States v. Siegel, 477 F.3d 87, 93-94 (3d Cir.2007) (holding that defendant adopted facts found in the PSR by not objecting). Under these circumstances, the District Court’s failure explicitly to state that Berroa discharged a firearm was not error.
III.
For these reasons, we will affirm the judgment and sentence of the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. After attending two preliminary hearings, Dawson failed to appear for a third. This resulted in a bench warrant for his arrest. He was a fugitive until he was apprehended in November 2007.
. Berroa misreads Mickens in arguing that "[a] failure to make inquiry into a potential conflict requires that conviction be vacated and the matter remanded for further proceedings.” Br. for Appellant at 28 (citing Mickens, 535 U.S. at 171-72, 122 S.Ct. 1237). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479190/ | OPINION
SMITH, Circuit Judge.
Appellant Josh Medina was convicted of several crimes in connection with a string of robberies. He now appeals the District Court’s denial of his motion for a new trial, Fed.R.Crim.P. 33, which was based on an alleged Brady violation, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The evidence Medina accuses the government of failing to disclose, certain statements made by his co-conspirators to the government during the investigation, was not material because Medina was able to elicit the same statements from the co-conspirators on cross-examination. Because the alleged Brady violation fails, we will affirm the District Court’s denial of Medina’s motion for a new trial.1
I.
Medina and five other individuals were charged with a string of robberies that took place in 2004.2 All defendants except Medina pled guilty to some or all of the robberies. Medina opted to proceed to trial and the government presented evidence against him suggesting that he drove the getaway car and acted as lookout for the robbery of a laundromat, and that his gun was used in that robbery. On July 19, 2007, a jury convicted Medina of (1) conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951, (2) Hobbs Act robbery, 18 U.S.C. § 1951 and § 2, and (3) possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c) and § 2.
On July 20, 2007, Medina moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.3 He argued that the government committed a Brady violation by withholding statements made to investigators by two of his co-conspirators, George Rivera and Jacqueline White, in which they denied their involvement in *274certain robberies. Rivera denied involvement in the robbery of a deli and White denied involvement in the robbery of a self-storage facility. Medina contended that these statements had significant impeachment value against another co-conspirator, David Roman, who testified at trial that Rivera was present at the deli robbery and that White was present at the self-storage facility robbery.
The District Court concluded that Medina’s motion lacked merit because he was not prejudiced by the non-disclosures. At trial, Medina repeatedly challenged the credibility of Rivera, Roman, and White and “[h]ad the government properly disclosed [Rivera and White’s statements] prior to trial, it [was] highly improbable that [Medina] could have called the witnesses’ credibility into greater question.” Accordingly, the District Court denied Medina’s motion. Medina now appeals that denial.
II.
The sole issue to be decided in this appeal is whether the District Court correctly denied Medina’s motion for a new trial based on an alleged Brady violation. “Ordinarily, we review a denial of a motion for a new trial under an abuse of discretion standard.” United States v. Joseph, 996 F.2d 36, 39 (3d Cir.1993). “However, when a Brady violation is alleged ... we review the district court’s legal conclusions on a de novo basis and its factual findings under the clearly erroneous standard.” Id.; United States v. Pelullo, 399 F.3d 197, 202 (3d Cir.2005); United States v. Hill, 976 F.2d 132, 134 (3d Cir.1992); United States v. Perdomo, 929 F.2d 967, 969 (3d Cir.1991).
To establish a violation under Brady, “a defendant must show that: (1) evidence was suppressed; (2) the suppressed evidence was favorable to the defense; and (3) the suppressed evidence was material either to guilt or to punishment.” Pelullo, 399 F.3d at 209 (internal quotation marks omitted). “Evidence is material if there is a reasonable probability that, had [the evidence] been disclosed, the result of the proceeding would have been different.” United States v. Perez, 280 F.3d 318, 348 (3d Cir.2002), cert. denied, 537 U.S. 859, 123 S.Ct. 231, 154 L.Ed.2d 98 (2002).
Even assuming that the first two requirements of a Brady violation were satisfied, Medina has not shown that Rivera and White’s statements were material to his guilt or punishment. See Pelullo, 399 F.3d at 209; see also Perez, 280 F.3d at 348. Medina argues that the contradictions between Rivera and White’s statements to the government and Roman’s testimony could have been used to show that one or more of these witnesses lied. This exact point, though, was made at trial.
On cross-examination by Medina’s counsel, White denied involvement in the self-storage facility robbery.4 Roman, however, testified that White was involved in that robbery.5 The same was true for Rivera — -Roman claimed Rivera was involved in the deli robbery, Rivera claimed *275he was not.6 During closing, Medina’s counsel attacked the credibility of all three witnesses. He pointed out that Rivera and Roman’s testimonies conflicted:
George Rivera. They’ve charged him with participating in the robbery of the Emerald Deli[.] And now you see a consistent pattern here of who’s willing to lie on the stand. I said, well, Mr. Rivera, didn’t you commit that with Evil Vargas and David Roman? He had the audacity to tell you no. Well, both can’t be true, because Roman’s saying he committed it with [Rivera.]
He also asserted that White’s testimony regarding the self-storage facility showed that either White or Roman were lying:
Jackie [White] is charged with robbing the Philly Self Storage. I asked her, I said, you robbed Philadelphia Self Storage with David Roman and Evil Vargas. I didn’t. I didn’t. Not me, that case is still under investigation. Well, didn’t David Roman say that, oh, it was Jackie [White] who robbed that with me? So, [the government’s] witness that [it] wants you to trust beyond a reasonable doubt, we know either Roman’s lying or she’s lying. I don’t know what story is true, but the fact that there is more than one story is a reasonable doubt.
Based on the record, we cannot say that the disclosure of Rivera and White’s statements to the government would have changed the result of the proceeding because Medina elicited similar statements from the two witnesses at trial. See Perez, 280 F.3d at 348. Medina was able to point out the inconsistencies between Rivera and White’s testimonies denying involvement in certain robberies and Roman’s testimony stating that the two were involved in those robberies without the statements Rivera and White made to the government. The jury was informed of those inconsistencies repeatedly by Medina’s counsel, yet still convicted Medina. “[T]he government ma[de] [the] Brady evidence available during the course of [the] trial in such a way that [Medina] [wa]s able effectively to use it[.]” United States v. Johnson, 816 F.2d 918, 924 (3d Cir.1987). Thus, “due process [wa]s not violated and Brady [wa]s not contravened.” Id. Medina used the inconsistencies between the co-conspirators’ testimonies to suggest that at least one of them was lying. The jury was simply not persuaded by that argument.7
*276III.
Even assuming that Rivera and White’s statements were improperly suppressed by the government, Medina has failed to show that there was a reasonable probability that the result of the proceeding would have been different had those statements been disclosed. Therefore, we will affirm the District Court’s denial of Medina’s motion for a new trial.
.The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
. Because we write only for the parties, we will presume knowledge of the record and recount the facts only briefly.
. Several months later, on November 8, 2007, Medina amended his motion for a new trial. For purposes of this opinion, all references to Medina’s motion are references to his amended motion.
. White testified as follows:
Q: Well, the Government has agreed to withdraw the charges for the Philadelphia Self-Storage, is that right?
A: Which they should cause I didn't do it.
. On cross-examination by Medina’s counsel, Roman testified as follows:
Q: And the Philly Self Storage, that was when Jacqueline White drove you and Evil to that place to rob and that was the day it was raining, correct?
A: Correct.
. On cross-examination by Medina’s counsel, Rivera testified that he was not involved in the deli robbery:
Q: The June 28th, 2004, robbery of Emerald Deli, you [were] charged with that, correct?
A: Yes.
Q: Okay. And, in fact, you took part in that, correct?
A: No.
On direct examination by the government, Roman contradicted Rivera's testimony:'
Q: Could you continue to explain what took place [during the deli robbery]?
A: This time my friend, we use his car this time. George Rivera. We call him Gono. I called him up, because we needed a driver. This time I went into the business with Eville Vargas to rob them and he drove the van.
. Medina's argument that the non-disclosure of Rivera and White's statements to the government prevented him from challenging the credibility of the government’s prosecution fails for the same reason. Medina successfully questioned the government’s prosecution at trial by challenging each co-conspirator's testimony and pointing out that some of the co-conspirators benefitted in their plea agreements by cooperating with the government. For example, during closing, Medina's counsel said:
I asked Agent Majarowitz, I said, is it fair to say, Agent Majarowitz, that all the information that they used to identify people who were involved in these robberies came from — and they said he was the — one of the first people in — came from your interviews with Jackie [White]? That's correct. What *276if there's misinformation than what's given? What if David Roman and someone else aren't telling the truth? David Roman is not telling the truth, because I don’t know which truth you're supposed to believe, did George Rivera help him or didn't he? Did Jackie Wright help him or didn’t s[he]? Because she said she didn't and he says she did. Is he involved or wasn't he?
Medina’s whole strategy at trial was to undermine witness credibility, which, in effect, questioned the credibility of the government's prosecution. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479194/ | OPINION
TASHIMA, Circuit Judge.
Brian Newmark appeals his conviction and sentence of 24 months’ imprisonment for a single count of wire fraud, under 18 U.S.C. § 1343. (App. 1-3.) We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we will affirm.
I.
Newmark owned and operated companies that performed advertising and marketing services for Barry Bohmueller, an estates attorney. (App. 611-12, 615-18, 631, 760.) Newmark employed Victoria Larson and hired an independent contractor, John Wight. (App. 548, 631-32, 759.) None of the three individuals has ever been an attorney. (App. 721.)
Larson placed a sales call to Arthur Walker and Thomas Walker (the “Walkers”), elderly, unmarried and childless brothers who lived together in a house they jointly owned and whose assets were valued in excess of $3.5 million. (App. 270-72, 325-37, 608-09, 721.) The Walkers requested estate planning services from Bohmueller’s firm. (App. 363-64.) They also signed “Consultation Request Forms,” asking Bohmueller to set up a “free, no-obligation consultation with a financial services representative who is also a licensed insurance agent.” (App. 362-63, 406-09.)
Wight delivered and explained the Boh-mueller-prepared documents to the Walkers. (App. 370-72.) The Walkers introduced Wight to neighbors as their lawyer, *281and Wight did not correct them. (App. 249, 309.) After the Walkers executed the documents, Wight, pursuant to Newmark’s companies’ business model, shifted to pitching them insurance-related and financial products. (App. 772-76.) Wight then discussed the Walkers’ investment objectives with Newmark, who recommended selling the Walkers charitable gift annuities. (App. 780-81, 785-86.)
Wight persuaded the Walkers to execute contracts to purchase six annuities using the bulk of their net worth. (App. 721, 819-23.) The purchase required the Walkers to liquidate and transfer assets that were being managed by Morgan Stanley. (App. 288-90.) A Morgan Stanley representative visited the Walkers’ home and convinced them to rescind their liquidation instructions because they did not need to purchase the annuities in order to accomplish their goals. (App. 292-93.)
After learning of the Morgan Stanley visit, Wight returned to the Walkers’ home with a portable fax machine. (App. 293-94, 622.) Wight conveyed information about the Morgan Stanley visit over the phone to Newmark, who composed two letters that were to be from Arthur and Thomas Walker, respectively, complaining about the Morgan Stanley visit. (App. 622, 1232.) Newmark faxed the letters to Wight, who had the Walkers sign them. (App. 622.) The letters were then faxed to Morgan Stanley’s Scranton, Pennsylvania, office. (Id.) A week later, Wight returned with two more letters complaining of Morgan Stanley’s failure to transfer the funds. (App. 624-25.) These letters were signed and faxed to Morgan Stanley’s New York City office. (Id.)
Morgan Stanley still having failed to comply with the Walkers’ request, New-mark called Morgan Stanley’s compliance department in New York City and spoke to Chris Zeyer about the firm’s failure to transfer the funds. (App. 460-64.) The same day, Newmark sent a fax to Zeyer, in which Newmark referred to the Walkers as “my clients.” (App. 468-69, 648-49.) The fax transmittal sheet had “Bohmueller Law Offices” letterhead, which Newmark later testified in a deposition he “must have made ... up.” (App. 648, 1239.) The fax also referred to “our attorney’s office” having contacted an individual at Morgan Stanley regarding the delayed transfer. (App. 471.) After the call, Zeyer completed a “verbal complaint form” from his handwritten notes, identifying Newmark as the Walkers’ attorney. (App. 462-65,481.)
Morgan Stanley eventually released the assets, enabling the Walkers to purchase the six annuities. Newmark’s company earned $230,408 in commission, from which it paid Wight $69,740. (App. 721.) Eventually, the Walkers came to feel unsatisfied with the annuities and retained an attorney, who sued Newmark, Wight, and others in federal court. (App. 547-51, 725.) The lawsuit settled. (App. 725.)
A Grand Jury indicted Newmark and Wight, charging them with mail and wire fraud, and charging Newmark with making a false declaration under oath (in connection with discovery responses he submitted in the civil suit). (App. 107-14.) The jury acquitted Wight of two counts and the District Court declared a mistrial as to his third. (App. 1224.) The jury convicted Newmark of three of his five counts. (App. 1224.) The District Court entered a judgment of acquittal on two of three counts for which the jury had convicted, leaving a conviction for a single count of wire fraud based on the fax Newmark transmitted to Zeyer. (App. 2.)
On appeal, Newmark argues that the evidence was insufficient to support conviction, that the district court erred in refusing to give an “ordinary prudence” jury *282instruction, and that the district court miscalculated “loss” for sentencing purposes. (Appellant’s Br. 17-19.)
II.
We exercise plenary review of the District Court’s denial of a motion for judgment of acquittal based on insufficient evidence. See United States v. Silveus, 542 F.3d 993, 1002 (3d Cir.2008). We must determine whether the evidence, viewed in the light most favorable to the government, would allow a rational trier of fact to convict. See United States v. Hart, 273 F.3d 363, 371 (3d Cir.2001) (internal citations and quotation marks omitted).
Newmark contends that the evidence failed to show that he knowingly and willfully devised or participated in the particular scheme to defraud alleged in the indictment. (Blue 17-18.) He argues that the scheme alleged in the indictment was to defraud the Walkers,1 and the only misrepresentations by Newmark were directed at Morgan Stanley, not the Walkers. (Id.; see also Blue 23.)
Newmark concedes that evidence showed the following: Newmark drafted and faxed letters to Wight for the Walkers to sign, telling Morgan Stanley to transfer the Walkers’ funds; Newmark made misrepresentations to Zeyer at Morgan Stanley; Newmark obtained an “enormous benefit” upon purchase of the annuities; Newmark, as owner and manager of his companies, held supervisory control over Wight. (Gray 6.) This evidence, although circumstantial, is sufficient for a rational trier of fact to have found beyond a reasonable doubt that Newmark knowingly and willfully devised or participated in the scheme to defraud. See United States v. Pearlstein, 576 F.2d 531, 541 (3d Cir.1978) (holding that requisite knowledge of fraudulent purpose can be demonstrated circumstantially).
Specifically, Newmark participated in the scheme when he drafted the letters necessary to transfer the Walkers’ assets and when he interacted with Zeyer at Morgan Stanley. See United States v. Olatunji, 872 F.2d 1161, 1168 (3d Cir.1989) (holding that misrepresentations need not be made to the ultimate victim for mail fraud). That Newmark “made up” a letterhead to misrepresent that he was an attorney — the same type of deception employed by Newmark’s paid associates— supports the inference that Newmark also “devised” the scheme, or at least knew of its fraudulent purpose. The jury could find further support in the fact that Newmark received a greater cut of the commission, cf. Pearlstein, 576 F.2d at 542 (noting that “relative lack of success enjoyed by” defendant salesmen compared with principals suggested they lacked knowledge of scheme’s fraudulent purpose), and held a position as owner and manager of the companies, cf. id. (noting that fact that defendant salesmen “held no positions of authority” and were never “involved in the management” of the company suggested they lacked knowledge of scheme’s fraudulent purpose).
Accordingly, we conclude that “there was substantial evidence adduced ... from which the jury reasonably could have inferred that [the defendant] knew of the fraudulent purpose of the ... enterprise and willfully participated therein.” See id. at 541. The District Court did not err in denying Newmark’s motion for a new trial.
III.
Newmark argues that the District Court plainly erred in not giving a jury *283instruction defining “scheme to defraud” as a scheme “reasonably calculated to deceive persons of ordinary prudence and comprehension.” See United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir.1995) (“The scheme [to defraud] ‘need not be fraudulent on its face but must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension.’ ” (quoting Pearlstein, 576 F.2d at 535)). He argues that the alleged error was “compounded” by the District Court’s instruction that “[i]t is immaterial that the alleged victims may have acted gullibly, carelessly, naively or negligently, which led to their being defrauded.” (App. 1191.) Because Newmark did not object at trial, we review the District Court’s refusal to give an “ordinary prudence” jury instruction for plain error. See United States v. Antico, 275 F.3d 245, 265 (3d Cir.2001).2
The Government’s argument that the materiality instruction3 adequately covers the “ordinary prudence” instruction, although supported by a district court case, see United States v. Zomber, 358 F.Supp.2d 442, 459 (E.D.Pa.2005), is unavailing. The materiality instruction concerns whether a reasonable person would consider a fact important, whereas the “ordinary prudence” instruction concerns whether a reasonable person would be deceived by a scheme. Moreover, because of the apparent tension between an instruction that a victim’s gullibility or negligence is no defense and an instruction that a scheme must be calculated to deceive a person of ordinary prudence and comprehension, there is some force to Newmark’s argument that the error was compounded by the district court’s inclusion of the former instruction.
Nonetheless, under the plain error standard, we conclude that the omission of the “ordinary prudence” instruction did not prejudice the jury’s deliberations. See United States v. Haywood, 363 F.3d 200, 207 (3d Cir.2004). Although there was evidence the Walkers signed documents that could be read to indicate that Wight was not an attorney, see App. 1229 (engagement letter stating delivery agent not licensed attorney); App. 1240-41 (consultation request form stating licensed insurance agent would provide consultation), this evidence was outweighed by the countervailing evidence that Wight affirmatively represented himself as an attorney.
Accordingly, we decline to exercise our discretion to conclude that the District Court committed plain error. See United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (holding that discretion should only be exercised where the error “seriously affects the fairness, integrity or public reputation of judicial proceedings” (alterations, citations, and quotation marks omitted)).
IV.
We exercise plenary review over the District Court’s interpretation of “loss” for purposes of United States Sentencing Guidelines (“U.S.S.G.”) § 2F1.1. See United States v. Badaracco, 954 F.2d 928, 936 (3d Cir.1992). “Loss” is defined as the value of the money, property, or services *284unlawfully taken. See Coyle, 63 F.3d at 1250. “[T]he loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information.” U.S.S.G. § 2F1.1 (2000), Commentary n.9.
The District Court calculated a loss of $900,000, based on the value of the securities at the time of their sale ($3.5 million), less the value of the annuity received in exchange ($2 million), less the tax benefits obtained by making a contribution of the difference ($600,000). (App. 55-56 (adopting PSR ¶¶ 22-25, 30-36).) Newmark argues that this calculation fails to account for the $316,000 in capital gains taxes the Walkers avoided and the non-monetary value to the Walkers of making a charitable contribution.4 (Blue 48-49.)
We conclude that the avoidance of capital gains taxes is too speculative to be considered value actually gained because it is not clear when, if at all, the Walkers would have sold their stocks. The non-monetary value is not properly considered because there is evidence that the Walkers did not want to make this type of charitable contribution. See United States v. Maurello, 76 F.3d 1304, 1311 (3d Cir.1996) (holding that clients who obtain satisfactory services have received something of value, while dissatisfied clients have not).5
Moreover, we conclude that any error was harmless. See United States v. Flores, 454 F.3d 149, 162 (3d Cir.2006) (holding that any error in imposing sentencing increases based upon loss calculation and other guidelines was harmless, where sentence imposed fell within the guidelines range that would have applied without the alleged errors). Here, as in Flores, the District Court applied the 18 U.S.C. § 3553(a) factors, rather than a specific departure or variance, to impose a sentence that fell below both the guidelines range the District Court calculated and the range that would be applicable without the alleged errors.6 Thus it is clear that any “error did not affect the district court’s selection of the sentence imposed.” United States v. Langford, 516 F.3d 205, 218 (3d Cir.2008) (noting that harmless error may exist in “unusual case[s],” like Flores, where the sentence was a discretionary sentence imposed “based on 3553(a)’s parsimony provision” rather than a specific variance or departure).
V.
For the reasons set forth, we will affirm the judgment of the District Court.
. The indictment charged that Defendants “knowingly devised and intended to devise a scheme to defraud [the Walkers], and to obtain money and property from [the Walkers] by means of false and fraudulent pretenses, representations, and promises.” (App. 108.)
. To succeed under plain error review, New-mark must show that (1) the court erred; (2) the error was plain; and (3) the error affected substantial rights, meaning that the error prejudiced the jury's verdict. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If all three elements are established, we may exercise our discretion to award relief. Id.
. "A material fact is a fact that would be of importance to a reasonable person in making a decision about a particular matter or transaction.” (App. 1184.)
. Newmark also argues that because the actual loss is "too complex and unusual to measure 'correctly,' ... the defendant's gain from the fraud is ... the only fair measure of 'loss.' ” See United States v. Yeaman, 194 F.3d 442, 456-57 (3d Cir.1999). The calculation method used in the Pre Sentence Investigation Report belies the notion that the actual loss is too complex to measure.
. Maurello was impliedly overruled by the Sentencing Commission in 2001. However, it is nonetheless instructive here because, for ex post facto reasons, the 2000 version of the Sentencing Guidelines applies.
.The District Court calculated a guidelines range of 30 to 37 months and, applying the Section 3553(a) factors, imposed a sentence of 24 months. (App. 61-67.) Taking into account the capital gains taxes allegedly avoided, the applicable range would have been 27 to 33 months. (Blue 48.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479196/ | OPINION OF THE COURT
STAPLETON, Circuit Judge:
Steven McDowell filed this civil action pursuant to 42 U.S.C. § 1983 and New Jersey state law, alleging that certain prison officials at Northern State Prison (collectively, “Defendants”)1 violated the First, Fourth, Eighth, and Fourteenth Amendments and Article One of the New Jersey Constitution. The events giving rise to the lawsuit occurred during and in the aftermath of a prisoner extraction in November of 2004.
The District Court granted summary judgment to Defendants on all of McDowell’s federal claims and dismissed his state constitutional claim without prejudice. McDowell only appeals the District Court’s order with respect to his Eighth Amendment excessive force and deliberate indifference claims. Because we write only for the benefit of the parties, we *290assume familiarity with the facts of this civil action and the proceedings in the District Court. We will reverse the judgment of the District Court and remand for further proceedings.
I.
McDowell is an inmate at Northern State Prison (“NSP”) in New Jersey, serving a twenty-year sentence for armed robbery and weapon offenses. In November 2004, he was housed in a security threat group management unit in Delta 300 East. At some point late at night on November 7 or in the early morning of November 8, 2004, McDowell and his cellmate, Carlos Cruz, were able to exit their cell. The parties dispute the circumstances of how the inmates got out of their cell. McDowell claims that Cruz was sick and seeking medical attention and that he was assisting Cruz when they were both locked out of their cell. Defendants assert that McDowell and Cruz pretended to need medical treatment, and that, once the cell door was opened so that one of them could be escorted to the infirmary, the two inmates left the cell and refused to submit to handcuffing or to return to their cell, as they were required to do. It is undisputed that McDowell and Cruz were not handcuffed and that they were able to walk around the fenced-in tier to the cells of other inmates.
Two teams of five officers each then arrived to perform extractions of McDowell and Cruz in order to return them to their cells.2 The officers on the extraction teams wore protective gear, including vests, pads, and helmets with face masks, and carried body shields for use in restraining the inmates. The extraction of McDowell was videotaped by an NSP official and by an inmate who had smuggled a video-recorder into prison, and both recordings are part of the record before us.
Before the extraction began, members of the extraction team used pepper spray in an attempt to subdue McDowell and Cruz. This effort, however, was unsuccessful because the inmates used plastic bags, which another inmate had given them, to shield their faces from the spray. The officers then began the extraction by entering the tier in which McDowell and Cruz were standing. McDowell and Cruz moved toward one of the teams of officers. The parties dispute the events that occurred thereafter.
McDowell testified in his deposition that he was pushed to the floor as soon as the officers converged on him. He claimed that he did not resist and the officers were able to handcuff him quickly. Nevertheless, they continued to punch or kick him after he was restrained. He also testified that he was repeatedly hit in the face with a nightstick and that an officer grabbed and twisted his testicles after he was on the ground. McDowell stated that the officers shackled his ankles so tightly that he lost circulation in his feet. He further testified that one officer exerted force on his wrist, in what he believed was an effort to break his hand. McDowell insisted that throughout the extraction he kept yelling that he was not resisting. He stated that after he was handcuffed and shackled, he was picked up and then walked into another part of the unit. According to him, his face was slammed into a wall and an officer choked him until he lost consciousness. McDowell stated that he was then re*291turned to his cell, and was denied clothing and medical treatment for his injuries for two weeks. As a result of the extraction, McDowell claims that he suffered cuts above his right eye, bruises on his skull, and an injury to his hand. He also claims that the incident left him with permanent injuries, including vision loss in his right eye, scarring above his eye, lumps on his skull, weakness in his hand, and that he now sometimes experiences dizziness. He also claims that he was emotionally damaged by the incident.
Defendants testified to a different version of events. The officers testified that McDowell approached the officers aggressively, resisted being handcuffed and shackled, and continued to struggle once he was on the floor. One officer testified that the officers ceased using force as soon as McDowell was restrained, and another testified that nightsticks were not used on McDowell during the extraction. Once McDowell was restrained, they contend that he was taken to a nearby hallway where he was given medical treatment. Defendants state that McDowell’s clothing was removed so that he could be searched for weapons and then showered to remove any remaining pepper spray. After this occurred, they assert that he was returned to his cell. Defendants claim that McDowell was not left naked in his cell for two weeks, but, instead, insist that their evidence shows that his personal property was returned to him the next day.
As a result of the extraction and the events following it, McDowell filed a pro se complaint in the United States District Court for the District of New Jersey. Counsel was appointed to represent McDowell. He sought declaratory and injunc-tive relief, compensatory damages, punitive damages, and attorneys’ fees and costs.
After discovery, Defendants filed a motion for summary judgment. After oral argument and supplemental briefing, the District Court granted summary judgment in favor of Defendants on all of McDowell’s federal claims and dismissed his state constitutional claim without prejudice. With respect to the Eighth Amendment excessive force and deliberate indifference claims at issue in this appeal, the Court determined that Defendants were entitled to qualified immunity because none of McDowell’s constitutional rights was violated. McDowell filed a timely notice of appeal.
On appeal, McDowell first argues that the District Court erred by concluding that the video evidence blatantly contradicted McDowell’s version of events and, therefore, deciding not to view the facts in the light most favorable to McDowell. Second, he contends that when the facts are viewed in the light most favorable to him, there is a genuine issue of material fact as to whether Defendants used excessive force during the extraction and whether Defendants acted with deliberate indifference in its aftermath.
II.
We exercise plenary review over a District Court’s decision to grant summary judgment. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009). Summary judgment is appropriate when the record establishes that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In making this determination, “[t]he evidence of the non-mov-ant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, in a case such as this one, where there are video recordings of *292the incident in question, we need not adopt the non-movant’s version of the facts if the recording “blatantly contradict[s]” the non-movant’s version “so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
III.
Government officials are protected by the doctrine of qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, — U.S.-, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). When deciding whether an official is entitled to qualified immunity, a court must determine if the facts alleged establish that the official violated a constitutional right of the plaintiff and if that constitutional right was clearly established at the time the officer acted. See id. at 815-16 (citing Saucier v. Katz, 533 U.S. 194, 200-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
A. Excessive Force
To recover on a claim of excessive force under the Eighth Amendment, a plaintiff must show that his treatment amounted to an “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Whether the use of force rises to such a level is determined by “whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (quoting Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973))). In resolving this question, a court must evaluate “(1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them; and (5) any efforts made to temper the severity of a forceful response.” Giles, 571 F.3d at 328. “Force that exceeds that which is reasonable and necessary under the circumstances is actionable.” Id.
Thus, we must evaluate whether McDowell has raised a genuine issue of material fact regarding his claim that the officers used force “maliciously and sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at 6, 112 S.Ct. 995. In making this determination, the District Court refused to accept McDowell’s version of events, as it is generally required to do when ruling on a motion for summary judgment, because it concluded that the videos of the extraction “ ‘blatantly contradicted]’ the story spun by McDowell.” McDowell v. Sherrer, No. 04-6089, 2008 WL 4542475, at *12 (D.N.J. Oct.7, 2008).
After carefully reviewing both of the videos in the record, we conclude that the District Court should have accepted McDowell’s version of events when ruling on this question because neither of the videos “blatantly contradicts]” McDowell’s account such that no reasonable jury could believe it. The videos do show that McDowell and Cruz were yelling and challenging the officers before the extraction began, and they also establish that the inmates used plastic bags to avoid pepper spray used by the officers. However, once the extraction begins, we are unable to determine from the videos whether McDowell is resisting the officers or to determine the amount of force used on him. We cannot *293make this determination because McDowell is forced to the ground early in the confrontation, and the view of his body is completely obstructed by the bodies of at least five officers while they handcuff and shackle him. After he was moved outside of the unit, McDowell claims that he was slammed against a wall and choked until he was rendered unconscious. Again, we are unable to conclude that the NSP video contradicts McDowell’s account because officers’ bodies block the view of the camera.3 Because the videos simply do not show what happened during these crucial moments, we do not believe they blatantly contradict McDowell’s account.
In fact, portions of the videos are consistent with McDowell’s account. In both videos, McDowell can be heard yelling “I am not resisting” when he is underneath the officers. Second, the video recorded by the inmate shows that an officer who was standing near McDowell’s body did have a nightstick in his hand — consistent with McDowell’s testimony that he was hit in the head repeatedly by nightsticks. Additionally, when McDowell is led away from the tier, his face is covered with blood, suggesting that he suffered an injury during the extraction. As McDowell is led off the tier floor, an officer has his arm around McDowell’s neck and McDowell is pressed against the wall. The officers thereafter lay McDowell to the ground, as if he is not able to stand on his own. These events are consistent with McDowell’s testimony that he was choked until he was unconscious.
Accordingly, we believe that the District Court erred when it concluded that the videos contradicted McDowell’s version of events and then refused to accept his testimony when ruling on the motion for summary judgment.
Accepting McDowell’s account, as we must in this posture, we conclude that he did raise a genuine issue of material fact on his excessive force claim. His testimony that he was restrained and not resisting directly contradicts that of Defendants, and resolution of this factual issue is material to deciding whether McDowell has established that his constitutional rights were violated. Certainly, Defendants had wide discretion in determining how to appropriately return the two inmates to their cells. See, e.g., Hudson, 503 U.S. at 6-7, 112 S.Ct. 995; Whitley, 475 U.S. at 320-22, 106 S.Ct. 1078. However, if McDowell is able to establish that Defendants punched, kicked, hit him in the head with nightsticks, and twisted his testicles, when he was restrained and not resisting, he will have established a violation of the Eighth Amendment. See Giles, 571 F.3d at 327. Similarly, if McDowell is able to establish that the officers choked him until he lost consciousness — when he was restrained, not resisting, and not presenting any threat to the officers — -he will have shown a violation of his constitutional rights. See id. Additionally, by 2004, “it was established that an officer may not ... use gratuitous force against an inmate who has been subdued.” See id. at 326.
Thus we conclude that the District Court erred by granting summary judgment to Defendants on McDowell’s Eighth Amendment excessive force claim.
B. Deliberate Indifference
Next, McDowell argues that the District Court erred by granting summary judgment on his Eight Amendment deliberate indifference claim because it improperly *294resolved disputed factual matters in favor of Defendants. We again agree that the District Court so erred.
As Defendants acknowledge, “prison officers are under a constitutional obligation to ‘ensure that inmates receive adequate clothing, shelter and medical care.’ ” Appellees’ Br. at 19 (quoting Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). In order to recover, a plaintiff alleging a violation of this obligation must show 1) that the deprivation alleged was “sufficiently serious,” such that it “result[ed] in the denial of the minimal civilized measure of life’s necessities” and 2) that prison officials “[knew] of and disregard[ed] an excessive risk to inmate health and safety.” See Farmer, 511 U.S. at 834, 837, 114 S.Ct. 1970 (internal quotations omitted). Here, McDowell alleged that prison officials acted with deliberate indifference to his health and safety when they removed his clothes as part of the extraction and did not return them for two weeks.4 His claim was supported by his own deposition testimony and that of his cellmate, Cruz. Defendants moved for summary judgment on this claim, arguing that prison records and the deposition testimony of a non-party prison official established that McDowell’s personal belongings were returned to him the day after the extraction.
The District Court granted summary judgment on this claim after concluding that McDowell had clothes the day after the extraction and was not deprived of clothing for approximately two weeks. In reaching this conclusion, the District Court apparently did not credit McDowell’s or Cruz’s testimony that they were left without clothing for two weeks. The Court relied on its own interpretation of arguably ambiguous testimony from a defense witness to support its conclusion.5 Even if we agreed with District Court’s interpretation of that witness’s testimony, however, it erred by acting as a finder of fact rather than accepting all inferences in favor of McDowell and then determining whether there was a genuine issue of material fact for trial.
In this appeal and in its summary judgment briefing, Defendants did not argue that the claimed deprivation of clothing for a two week period was not “sufficiently serious,” or that McDowell failed to present evidence tending to show that prison officials “[knew] of and diregard[ed] an excessive risk to inmate health and safety” created by the claimed deprivation of clothing for two weeks. See Farmer, 511 U.S. at 834, 837, 114 S.Ct. 1970. Moreover, because of its factual finding that McDowell received his clothes one day after the extraction, the District Court did not address these issues. For that reason, we express no opinion with respect to them.
IV.
For these reasons, we will reverse the District Court’s judgment with respect to McDowell’s Eighth Amendment claims and remand for further proceedings.
. The defendants that remain in the lawsuit are Administrator Lydell B. Sherrer, Sergeant Craig Sears, Sergeant David Abdus-Sabur, Senior Corrections Officer (“SCO”) Charlie Wallace, SCO Christopher Carson, SCO Dennis Robinson, SCO Marc Williams, SCO Domingo Rivera, SCO Brian Williams, SCO Kevin Searcy, SCO Arnaldo Belo, SCO Domingo Rivera, Sergeant Cesar De La Cruz, SCO Car-nell Carlrell, SCO Edward Bonet, SCO Ronald Tucker, and SCO Leonard Wheeler.
. When an inmate is outside of his cell under these circumstances, officers perform an "extraction” to return the inmate to his cell. During an extraction, teams of five officers work together to restrain and then secure an inmate's arms and legs. One officer uses a large body shield while the four other officers are responsible for securing each of the inmate's extremities. Here, there was one extraction team per inmate.
. The video recording made by the inmate ends after McDowell and Cruz are restrained and taken off the tier floor.
. Before us, McDowell has not claimed that he was deprived of medical care for a serious medical need for two weeks.
. The District Court did not rely on prison records to support its finding that McDowell received his clothes back on the day after the extraction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479199/ | *296OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant David L. Zagami’s attorney has filed a brief requesting to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant has received notice of his attorney’s motion, but has not filed a brief in opposition to counsel’s Anders brief. We find that no nonfrivolous issues for appeal exist, and as such, we affirm the District Court’s sentence and grant counsel’s Anders brief to withdraw from the representation.
I.
Because we write for the parties, we discuss only the facts relevant to our conclusion. In August 2004, Appellant was charged with one count of interstate transportation of a stolen vehicle in violation of 18 U.S.C. § 2312, one count of conspiracy to transport a stolen vehicle in violation of 18 U.S.C. § 371, and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
Following the entry of Zagami’s guilty plea on all counts, he was sentenced to forty months’ imprisonment and three years of supervised release. On or about April 17, 2007, Zagami was transferred to the Kintock Group Community Corrections Center (“KGCCC”) in Philadelphia, Pennsylvania. On June 30, 2007, Zagami escaped from KGCCC and was not located until he surrendered to authorities on July 9, 2007.
Zagami was charged with escape, in violation of 18 U.S.C. § 751(a). He pled guilty to the aforementioned charge. Pursuant to the plea agreement entered into by Zagami and the Government, Zagami agreed to waive his right to appeal, so long as his sentence did not exceed the statutory maximum and so long as the District Court did not depart upward from the Sentencing Guidelines range. Prior to the entry of the plea agreement, the Government and Zagami agreed that the applicable range of imprisonment was between fifteen and twenty-one months. He was sentenced to twenty-one months’ imprisonment followed by three years of supervised release for the escape charge.
II.
The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. § 3231, and this Court possesses jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
In Anders, 386 U.S. at 744, 87 S.Ct. 1396, the Supreme Court held that appointed counsel who conscientiously believes that there are no nonfrivolous grounds for an appeal must request permission to withdraw from the representation and submit a brief outlining any possible nonfrivolous arguments in support of the appeal. Counsel’s affirmative duties when submitting an Anders brief are “to satisfy the court that counsel has thoroughly examined the record in search of appealable issues,” and “to explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001) (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)).
Thus, our analysis for an Anders brief is twofold. First, we must consider “whether counsel adequately fulfilled the rule’s requirements,, and [second], whether an independent review of the record presents any nonfrivolous issues.” Youla, 241 F.3d. at 300. The latter inquiry is curtailed, however, “[w]here the Anders brief initially appears adequate on its face.” Id. at 301. In such cases, “the proper course is for the appellate court to be guided in reviewing the record by the Anders brief itself.” Id. (quotation marks and citation omitted). *297The instant brief appears adequate on its face. Zagami’s counsel identifies three possible issues for appeal: 1) whether the District Court erred in considering the Government’s recommendation that it impose a sentence at the upper end of the Guidelines range; 2) whether the District Court erred in allowing a United States Attorney, who had previously prosecuted Appellant in a separate matter, to prosecute Appellant again; and 3) whether the District Judge presiding over Appellant’s case abused his discretion in failing to recuse himself in light of Appellant’s assertions that the Judge had previously presided over an unrelated criminal matter involving Appellant. Zagami filed no pro se brief and has not drawn our attention to any additional issues. We therefore turn to the three matters raised in the Anders brief.
A. Impropriety of Appellant’s Sentence
The first issue identified by Zagami’s attorney is whether the Government was inappropriate and vindictive in arguing at sentencing that Zagami should be sentenced at the upper end of the Guidelines range. We agree with Zagami’s attorney that this claim is frivolous. “[A] prosecutor may prosecute with earnestness and vigor — indeed, he should do so.” United States v. Morena, 547 F.3d 191, 193 (3d Cir.2008) (quotations and citation omitted). It was not prosecutorial misconduct for the Government to have argued in favor of a Guidelines-range sentence. See id. at 194 (to rise to the level of prosecutorial misconduct, action must infect the proceedings with unfairness). The arguments raised by the Government, and the facts relied upon by the District Court in imposing the sentence, focused appropriately on the relevant 18 U.S.C. § 3553(a) considerations, including Zagami’s lengthy criminal history; his history of recidivism toward the same offenses, including escape; and the need to impose a sentence that promotes respect for the law. We therefore agree with Zagami’s appellate counsel that this issue is frivolous.
B. Disqualification of the Assistant United States Attorney
The second issue identified by Zagami’s attorney in his Anders brief is whether the fact that the Assistant United States Attorney handling the matter had previously prosecuted Zagami in an unrelated matter created a conflict of interest requiring the prosecutor’s disqualification. We agree with Zagami’s counsel that this issue is frivolous. Instances in which the courts have found it necessary to disqualify a particular United States Attorney are rare. As a District Court in our Circuit explained:
The disqualification of Government counsel is a “drastic measure and a court should hesitate to impose it except where necessary.” United States v. Bolden, 353 F.3d 870, 878 (10th Cir.2003) (citing Bullock v. Carver, 910 F.Supp. 551, 559 (D.Utah 1995)). Accordingly, Courts have allowed disqualification of government counsel only in limited circumstances. See, e.g., Young v. United States, 481 U.S. 787, 807, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) (actual conflict of interest because appointed prosecutor also represented another party); United States v. Heldt, 668 F.2d 1238, 1275 (D.C.Cir.1981) (bona fide allegations of bad faith performance of official duties by government counsel in a civil case); United States v. Prantil, 764 F.2d 548, 552-53 (9th Cir.1985) (prosecutor who will act as a witness at trial).
United States v. Vega, 317 F.Supp.2d 599, 602 (D.Vi.2004) (serial citation omitted). The Assistant United States Attorney in this case merely prosecuted Zagami for a prior, unrelated offense. There is no au*298thority to suggest that a prosecutor must disqualify himself under such circumstances, and we thus agree with Zagami’s counsel that this issue is frivolous.
C. Recusal of the District Court Judge
Finally, Zagami contends that the District Judge had presided over a prior criminal case and had “permitted that case [to] go forward ... [k]nowing that there was no substantial evidence ... [and] [u]nder a new [j]udge[,] the unsubstantiated charges that [h]e permitted were dropped.” (App. 2). Again, Zagami’s counsel is correct that this argument is frivolous. The Supreme Court has held that it is not improper for a judge to hear multiple cases involving the same defendant — “[i]t has long been regarded as normal and proper for a judge to ... sit in successive trials involving the same defendant.” Liteky v. United States, 510 U.S. 540, 551, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). There is no suggestion from the record that the two cases were related in any way, and we see nothing improper about the District Judge presiding over successive criminal matters involving the same defendant. Zagami’s counsel is correct that the District Judge did not abuse his discretion, and we therefore conclude that the final issue identified in counsel’s Anders brief is frivolous.
III.
For the foregoing reasons, we agree with counsel that no nonfrivolous issues for appeal exist in this case. Accordingly, we affirm the District Court’s judgment of conviction and sentence and grant counsel’s motion to withdraw. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479200/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant, Terrell Brice, pled guilty to distribution of cocaine and possession of a firearm by a convicted felon. The plea agreement allowed Brice to appeal his designation as a career offender. At sentencing, pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1, the District Court concluded that Brice was a career offender based on his prior convictions for simple assault and for possession of a controlled substance with intent to deliver. As a career offender, Brice faced an advisory Guidelines range of 262 to 327 months imprisonment. On appeal, Brice contends that after the Supreme Court’s recent decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), simple assault does not qualify as a crime of violence as that term is defined in the career offender Guideline, U.S.S.G. § 4B1.2(a). For the reasons that follow, we will vacate Brice’s sentence and remand for resentencing in accordance with this opinion and our recent prece-dential opinion in United States v. Johnson, 587 F.3d 203 (3d Cir.2009).1
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of the case.
Brice was charged in a three-count Indictment as follows: distribution of co*300caine, in violation of 21 U.S.C. § 841(a)(1) (Count One); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count Two); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Three). At his trial, the jury was unable to reach a unanimous verdict, and the District Court declared a mistrial. A second trial was scheduled, but before the retrial, Brice opted to plead guilty to Counts One and Three. In his plea agreement, Brice reserved the right to appeal his designation as a career offender.
Brice’s Presentence Report (“PSR”) listed three prior adult convictions: a 1999 conviction for simple assault, a 2000 conviction for possession of a controlled substance with intent to deliver, and a 2003 conviction for possession of a controlled substance and for flight from the police. The Probation Office concluded that two of these three offenses — the conviction for simple assault and the conviction for possession of a controlled substance with intent to deliver — served as predicate offenses for purposes of the career offender Guideline, U.S.S.G. § 4B1.1.2 As a career offender, Brice had an offense level of 34 and a criminal history category of VI, resulting in an advisory Guidelines range of 262 to 327 months imprisonment. Absent career offender status, Brice’s offense level would have been 24 and his criminal history category IV, resulting in an advisory Guidelines range of 77 to 96 months imprisonment.
At the sentencing hearing, Brice objected to his classification as a career offender, arguing that his conviction for simple assault did not qualify as a crime of violence for the purpose of designation as a career offender under the Sentencing Guidelines.3 In particular, Brice asserted that under the Supreme Court’s recent decision in Begay, simple assault was not a crime of violence as it was not “roughly similar, in kind as well as in degree of risk posed” to the crimes enumerated in the definition of a crime of violence.4 Begay, 128 S.Ct. at 1585, 128 S.Ct. 1581 (citations omitted). The District Court rejected this argument and ruled that simple assault qualified as a crime of violence under Begay and our pre-Begay case law. Brice, accordingly, was sentenced as a career offender. The *301District Court varied downward from the advisory Guidelines range of 262 to 327 months imprisonment and imposed a sentence of 180 months imprisonment.
II.
The outcome of the instant case is controlled by our recent precedential opinion in Johnson, in which we examined the precise question presented by Brice’s appeal. In Johnson, as in this case, the government conceded that if the simple assault had been committed recklessly, it would not be a crime of violence following Begay. Johnson, 587 F.3d at 209-10. (Gov’t Br. 21-22.) We held, however, that if the simple assault was knowing or intentional, it would “present a degree of risk similar to that presented by the enumerated crimes and also be similar in kind to those offenses” and thus would qualify as a crime of violence under the definition in the career offender Guideline, U.S.S.G. § 4B1.2(a)(2). Johnson, 587 F.3d at 211. Accordingly, we remanded for resentencing and instructed the district court to determine the mens rea for the simple assault offense to which Johnson pled guilty. Id. at 213. Under the categorical approach, such an inquiry is limited to the documents outlined by the Supreme Court in Shepard v. United States — “ ‘the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’ ” Id. at 208 (quoting Shepard, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).
In the instant case, the government argues that remand is appropriate to allow the District Court to ascertain the mens rea of Brice’s prior conviction for simple assault, if possible, from the limited universe of documents approved in Shepard. (Gov’t Br. 25-26.) The government further acknowledges that, as of the time that its brief was prepared, it possessed only the charging document for the simple assault conviction and admits that “[i]f this is the only available record pertinent to the inquiry, the government will have to concede that it cannot establish that Brice was necessarily convicted of a crime of violence predicate.” (Id. at 26, 125 S.Ct. 1254.) The government was seeking, however, to obtain the transcript of Brice’s simple assault bench trial. Under Shepard, on remand, the District Court can consider “a bench-trial judge’s formal rulings of law and findings of fact....” 544 U.S. at 20, 125 S.Ct. 1254. The approach advocated by the government is the correct one and is in accordance with our opinion in Johnson.
III.
For the foregoing reasons, we vacate the sentence imposed by the District Court and remand for resentencing in accordance with this opinion and with Johnson. The resentencing proceeding is limited to an inquiry into the mens rea characterizing Brice’s prior conviction for simple assault. If, upon examination of the documents permitted by Shepard, the District Court determines that the simple assault was committed intentionally or knowingly, the conviction may serve as a predicate offense for purposes of career offender status. If, however, the District Court finds that the simple assault was committed recklessly or if the District Court cannot conclusively determine the mens rea, Brice’s conviction for simple assault will not qualify as a crime of violence under U.S.S.G. § 4B1.2(a) and thus will not serve as a career offender predicate offense under § 4Bl.l(a).
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We exercise plenary review over a district court’s rulings on questions of law and over a district court's interpretation of the Sentencing Guidelines. United States v. Doe, 564 F.3d 305, 307 n. 2 (3d Cir.2009); United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). “Whether a particular crime constitutes a crime of violence is a question of law and the Court’s review is plenary.” United States v. Dorsey, 174 F.3d 331, 332 (3d Cir.1999).
. In relevant part, U.S.S.G. § 4B1.1 provides that "[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”
. In Pennsylvania, a person is guilty of simple assault if he:
(1) attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon; [or]
(3) attempts by physical menace to put another in fear of imminent serious bodily injury; or
(4)conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of an correctional institution, county jail or prison, detention facility or mental hospital during the course of an arrest or any search of the person.
.The term "crime of violence” is defined in U.S.S.G. § 4B 1.2(a) as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use, attempted use, or threatened use of physical force against the person of another, or ... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479202/ | OPINION
PER CURIAM.
Appellant Michael Sindram, proceeding pro se, appeals the order of the District Court dismissing his complaint with prejudice. For the following reasons, we will affirm.
On January 22, 2007, Sindram filed a complaint against Wendella P. Fox, Director of the United States Department of Education’s Philadelphia Office of Civil *303Rights (“OCR”) claiming violations of the United States Constitution and various federal laws, including the Freedom of Information Act (“FOIA”). Sindram alleges that he was discriminated against on the basis of age and disability while attending Columbia Union College, the University of Maryland, and Washington Bible College (“the schools”) at various times. He filed complaints with the OCR regarding the discrimination, and OCR opened an investigation. He asserts that the schools retaliated against him for filing the complaints, and complains that the OCR was aware of the retaliation, but that defendant took no action. Sindram filed a FOIA request, asking for documents relating to the OCR’s investigation. In January 2007, the OCR denied the request after a telephone conversation with Sindram in which he refused to specify what he was seeking or to pay a fee for provision of an additional seventy pages. The OCR also informed Sindram of his right to appeal the decision within thirty days. On April 10, 2007, the OCR released to Sindram 170 pages of documents relating to its investigation, subject to certain redactions for privacy pursuant to 5 U.S.C. § 552(b)(7)(C).
In October 2007, the District Court granted the defendant’s motion to dismiss with leave to amend certain claims.1 Sin-dram filed an amended complaint in November 2007, but did not include proof of a FOIA appeal or any response by OCR to any such appeal. Upon defendant’s motion, the District Court dismissed Sin-dram’s constitutional and FTCA claims with prejudice, but denied the motion to dismiss as to Sindram’s FOIA claim. The court ordered Sindram to produce within thirty days evidence of or a specific description of his exhaustion of his administrative remedies, warning that it would dismiss the claim with prejudice if he did not comply. The court also denied the motion as to Sindram’s claims under 42 U.S.C. § 1981 and the Age Discrimination Act of 1975, 42 U.S.C. § 6101 et seq. (“ADA”) because defendant had failed to brief the question of whether Sindram stated a claim for relief.
Sindram filed a “motion for appropriate and adequate relief,” to which defendant filed a response, along with a renewed motion to dismiss. The District Court granted the motion to dismiss the remaining claims with prejudice by order entered March 3, 2009. Sindram timely appealed.
I.
Our review of the District Court’s orders is plenary. See Santiago v. GMAC Mortg. Group, Inc., 417 F.3d 384, 386 (3d Cir.2005). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Carp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In deciding a motion to dismiss, a court must determine whether the complaint “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
II.
A. FOIA Claim
The District Court dismissed Sin-dram’s FOIA claim because he filed his *304response several days beyond the thirty-day deadline that the court had set. The District Court also determined that, even if it were to consider his response as timely, Sindram failed to provide evidence that he had exhausted his administrative remedies. In his brief to this Court, Sindram has, for the first time, attempted to provide such evidence. He has attached to his brief an April 14, 2007 letter titled “Appeal of Freedom of Information Act (FOIA) Request ‘response’...” In it, Sindram states: “FOIA requests ... remains [sic] pending and unacted upon ... When to receive copy of requested entitled afore-referenced documents as per operation of law [sic]?” It appears that the “appeal” is a request that the OCR act on his initial FOIA requests, rather than an appeal from the OCR’s January 2007 denial of his request or its April 10, 2007 decision to release certain documents. Moreover, the “appeal” was filed four months after Sin-dram filed suit. See Oglesby v. Department of Army, 920 F.2d 57, 65-66 (D.C.Cir.1990) (if an agency responds to a request at any time before the requester’s FOIA suit is filed, the requester must administratively appeal a denial and wait at least twenty working days for the agency to adjudicate that appeal before commencing litigation). In any event, even if the April 14, 2007 letter could be construed as a timely appeal of an OCR decision, the letter was not part of the record before the District Court, and we may not consider it. In re Capital Cities/ABC, Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir.1990).
B. 12 U.S.C. § 1981 Claim
Sindram argues that defendant’s failure to remedy the schools’ discriminatory acts violated § 1981. By its terms, § 1981 provides a private cause of action for discrimination by private actors and discrimination under color of state law. See § 1981(a), (c). Defendant, as an official of the Department of Education, was operating under color of federal law, and § 1981 does not protect against discrimination under color of federal law. See, e.g., Dotson v. Griesa, 398 F.3d 156, 162 (2d Cir.2005); Davis-Warren Auctioneers v. FDIC, 215 F.3d 1159, 1161 (10th Cir.2000); Davis v. U.S. Dept. of Justice, 204 F.3d 723, 725 (7th Cir.2000); Lee v. Hughes, 145 F.3d 1272, 1277 (11th cir. 1998). Accordingly, the District Court properly concluded that Sindram failed to state a cognizable claim under 42 U.S.C. § 1981.
C. Age Discrimination Act Claim
Sindram seeks damages and an injunction based upon defendant’s alleged violations of the ADA. The District Court concluded that the ADA does not permit a private cause of action against an employee of the Department of Education. Although we have not addressed the precise issue presented here in a precedential opinion, the two-step inquiry for determining whether a private right of action exists under a federal statute is clear; a court must ascertain “(1) whether Congress intended to create a personal right in the plaintiff; and (2) whether Congress intended to create a personal remedy for that plaintiff.” McGovern v. City of Phila., 554 F.3d 114, 116 (3d Cir.2009); see also Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (if a statute does not display congressional intent to create a private remedy, courts may not create one). To determine Congress’s intent, we examine “the text and structure of the statute; the existence or nonexistence of a comprehensive remedial scheme elsewhere in the same statute; the statute’s legislative history; and Congress’s explicit creation of private rights in *305similar statutes enacted during the same time period.” McGovern, 554 F.3d at 119.
The text of the ADA creates federal rights2, but does not include federal agencies or employees within its reach3, even after Congress expanded its scope with the Civil Rights Restoration Act of 1987. Congress also created a comprehensive remedial scheme that does not include a cause of action against a federal agency or its employees. See McGovern, 554 F.3d at 118 (“courts should not imply rights of action where Congress has already established a different remedial scheme”). The ADA’s enforcement mechanism includes federal agency oversight and a private cause of action for injunctive relief against a recipient of federal funds. See §§ 6103, 6104(a)-(c). Importantly, under § 6104(c), a court may enjoin a violation of the ADA, but not a federal agency’s failure to remedy such a violation, which is what Sindram would have us do. We agree with the District Court that Congress did not intend to create a private cause of action against a federal agency or its employees for failure to remedy an alleged violation of the ADA.
III.
For the foregoing reasons, we will affirm the District Court’s judgment.4 Sin-dram’s motion for mediation and the appointment of counsel is denied.
. The District Court gave Sindram leave to amend his FOIA claim provided that he demonstrated or alleged in good faith that he had exhausted his appeals. The court also recognized that the OCR had released 170 pages of documents relating to its investigation and that Sindram should not amend if those pages satisfied his request.
. "[N]o person in the United State shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.” 42 U.S.C. § 6102.
. "Program or activity” is defined to include state and local governments and instrumen-talities, colleges, universities, and certain corporations. Federal employees and agencies are not included in the definition. See 42 U.S.C. § 6107(4).
.For the reasons the District Court provided in the orders filed on October 31, 2007 and August 5, 2008, Sindram's remaining constitutional claims and claims under the Rehabilitation Act and the FTCA properly were dismissed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479204/ | OPINION
PER CURIAM.
Elliott Bailey appeals the District Court’s order dismissing his complaint for lack of subject-matter jurisdiction. For the reasons below, we will affirm.
In July 2008, Bailey filed a complaint alleging that in 2004, the City of Philadelphia and the Pension Board had refused to release money and benefits that he had earned during nineteen years of service. He argued that this was a violation of the Fourteenth Amendment. The City filed a motion to dismiss, arguing that Bailey had failed to state a claim because he only presented “a vague conclusion that his Fourteenth Amendment rights have been violated.” The District Court construed Bailey’s response as an amended complaint and denied the motion to dismiss as moot.
In his amended complaint, Bailey alleged that the Pension Board had denied his claim of a job-related injury but withheld his earned compensation. The City filed a motion to dismiss and again argued that Bailey had failed to state a claim because there were no allegations that would support a claim against the City. The District Court granted the motion to dismiss but allowed Bailey thirty days to amend his complaint. It noted that Bailey alleged only that the City owed him money and had not provided a factual basis for his claim.
Bailey then filed a second amended complaint stating that there was no mention of forfeiture of vacation and sick time when he was hired. He also asserted that no one contacted him to inform him that he had forfeited his benefits and he had not received notice in writing of the forfeiture. The City again filed a motion to dismiss, arguing that Bailey had failed to set forth a basis for federal jurisdiction. The City argued in the alternative that Bailey had failed to state a claim. The District Court determined that Bailey had not shown a basis for federal jurisdiction and granted the motion to dismiss. Bailey filed a notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s dismissal of Bailey’s complaint for lack of subject-matter jurisdiction is plenary. Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1280 (3d Cir.1993). A complaint by a pro se litigant is held to less stringent standards than one prepared by a lawyer. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Because Bailey invoked the Fourteenth Amendment and alleged that the City had deprived him of his property without due process, the District Court had subject-matter jurisdiction over his claims.
*307However, even viewing Bailey’s pleadings under the less stringent standards afforded to pro se litigants, we conclude that Bailey did not adequately allege a due process claim under the Fourteenth Amendment. Even after being given the opportunity to twice amend his complaint, Bailey failed to set forth sufficient facts to support a due process claim.
In order to demonstrate a violation of the right to procedural due process, a litigant must show (1) that the state deprived him of a protected interest in life, liberty, or property; and (2) that the deprivation occurred without due process of law. Burns v. PA Dept. of Correction, 544 F.3d 279 (3d Cir.2008). In addition, Bailey must have used any procedures available to challenge the deprivation, unless they were unavailable or inadequate. Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000). “A due process violation ‘is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process.’ If there is a process on the books that appears to provide due process, the plaintiff cannot skip that process and use the federal courts as a means to get back what he wants.” Id. (citation omitted). Bailey has not alleged that the City did not provide any process to challenge the denial of the benefits.
We agree "with the City that any amendment to the complaint would be futile. Claims brought pursuant to 42 U.S.C. § 1983 are subject to the state statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Pennsylvania, the statute of limitations for a personal injury action is two years. 42 Pa.C.S.A. § 5524. Bailey alleged that the City refused to pay him benefits in 2004, but he did not file his complaint until July 2008. Thus, his complaint was filed beyond the two-year statute of limitations for § 1983 claims.
For the above reasons, we will affirm the District Court’s May 26, 2009, order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479206/ | OPINION OF THE COURT
STAPLETON, Circuit Judge:
Juan Sanchez appeals the District Court’s denial of his motion for a modification of his sentence in light of the retroactive amendments to the crack cocaine Sentencing Guidelines. His attorney has moved to withdraw his representation under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We will grant the motion to withdraw and will affirm the District Court’s order.
This Court’s rules provide that “[w]here, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders.” 3d Cir. LAR 109.2(a). If we concur with trial counsel’s assessment, we “will grant [the] Anders motion, and dispose of the appeal without appointing new counsel.” Id. Accordingly, our “inquiry when counsel submits an Anders brief is thus twofold ... :(1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
Our review of the record has convinced us that trial counsel’s Anders brief is adequate and that there are no nonfrivolous grounds on which to challenge the District Court’s denial of Sanchez’s motion for a sentence reduction.
The District Court correctly held that Sanchez was ineligible for a sentence reduction under the retroactive amendments to the crack cocaine Sentencing Guidelines. While the amendments to U.S.S.G. § 2D1.1 lower the base offense *309level for most offenses involving crack cocaine, they do not apply here. Application Note 10 to U.S.S.G. § 2D1.1 provides in pertinent part that the two-level reduction “shall not apply” when “the [two]-level reduction results in a combined offense level that is less than the combined offense level that would apply ... if the offense involved only the other controlled substance(s) (ie., the controlled substances other than cocaine base).” U.S.S.G. § 2D1.1 cmt. n. 10(D)(ii)(II). Here, the District Court found that, if Sanchez’s Guidelines sentence were recalculated disregarding the crack cocaine, the marijuana equivalent drug weight would total 793.219 kilograms. That weight yields the same base offense level of 30 that was utilized at Sanchez’s original sentencing. Thus, a two-level reduction for Sanchez would result in a base offense level less than the offense level that would apply in the absence of any crack cocaine. We find no error.
Sanchez, in his supplemental pro se briefing before the District Court and this Court, seeks review of alleged errors occurring in his original sentencing and proceedings on his subsequent motion under 28 U.S.C. § 2255.1 However, as the District Court recognized, 18 U.S.C. § 3582(c)(2) only authorized it to apply Amendment 706. It did not allow the District Court to visit other sentencing issues. United States v. Mateo, 560 F.3d 152, 155-56 (3d Cir.2009).2
Because our independent review of the record fails to reveal any nonfrivolous grounds for appeal, we will grant counsel’s motion to withdraw and will affirm the judgment of the District Court. In addition, we certify that the issues presented in this appeal lack legal merit and thus that counsel is not required to file a petition for writ of certiorari with the Supreme Court. 3d Cir. LAR 109.2(b).
.Specifically, as set forth in his briefing, Sanchez tendered the following questions for review:
1. The threshold question before the Court is, did the District Court fail to correct a plain error in the application of the Sentencing Guideline in the first Section 2255 petition and abused its discretion in denying a section 2241 petition for the unlawful sentence imposed for Count III.
2. The District Court erred during the review of the first Section 2255 petition. The plain error was obvious under the law at the time of review and it affected the appellant's substantial rights.
3. The appellant entered a non stipulated guilty plea for Title 18 U.S.C. § 1028(a)(1). The punishment sub-section cannot be cross-referenced under 2X1.1 to apply 2D1.1 for Count III.
4.The sentence imposed was improperly grouped in violation of Fed. R. Cr. Proc. Rule 8(a) by the probation officer.
. Sanchez filed a motion in the District Court under 28 U.S.C. § 2241 and asserts that it provided the necessary authority to entertain his additional issues. However, a defendant can challenge a federal conviction or sentence under § 2241 only if a § 2255 motion is "inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). As the District Court found, Sanchez has not provided an acceptable explanation of why § 2255 is "inadequate” or "ineffective" here. See Cradle v. United States, 290 F.3d 536 (3d Cir.2002). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479208/ | OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Henry Wooding filed this civil action against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., alleging that he was injured during a surgical procedure at the Department of Veterans Affairs Medical Center in Pittsburgh, Pennsylvania. Wooding appeals the order of the District *311Court granting summary judgment to the United States.
Because we write only for the benefit of the parties, we assume familiarity with the facts of this civil action and the proceedings in the District Court. We will affirm essentially for the reasons stated by the District Court.
I.
In 2001, Wooding was referred to the orthopedic clinic at the Veterans Affairs Medical Center in Pittsburgh, Pennsylvania. There, he was treated by Dr. Peter Dirksmeier, an orthopedic surgeon. At all times relevant to this lawsuit, Dr. Dirk-smeier was an orthopedic spinal surgery fellow at the University of Pittsburgh Medical Center.1 As part of his medical treatment, Wooding and Dr. Dirksmeier discussed the possibility of surgery, including the risks and benefits of undergoing spinal surgery. Wooding claims that he inquired about Dr. Dirksmeier’s level of experience when he and Dr. Dirksmeier were discussing the possibility of surgery. According to Wooding, Dr. Dirksmeier’s answers gave him the impression that he had significant experience performing surgery. Wooding also alleges that Dr. Dirk-smeier did not inform him that he had only recently completed his residency. Wooding claims he would not have allowed Dr. Dirksmeier to operate on him, if he had been aware of his actual level of experience.
In July 2001, Wooding underwent surgery. He alleges that, during the surgery, “a surgical bite was taken, which punctured the dura ... resulting in the flow of cerebrospinal fluid.” [A 11] As a result of the surgery, Wooding claims that he experienced a loss of feeling from the chest to the feet and extreme pain in his neck and shoulders, among other injuries. In 2003, Wooding filed an administrative claim, claiming that he had been injured as a result of medical negligence and seeking $1,500,000 in damages. Two years later, he wrote a letter requesting that his claim be amended to add an informed consent claim and increase the damages sought to $2,500,000. The United States denied his claim, and Wooding filed this civil action.
Wooding’s complaint included two counts, but only Count One is at issue in this appeal.2 In Count One, Wooding alleged a cause of action under the doctrine of informed consent, claiming that he would not have consented to the surgery if he had been accurately informed of Dr. Dirksmeier’s experience and the risks of the surgery. However, Wooding subsequently renounced any claim based on a failure to inform him of the risks of the surgery in his response to a government motion for partial summary judgment. The District Court then allowed Wooding to proceed with Count One solely on a theory of misrepresentation.
Before the bench trial, the United States moved for summary judgment on the misrepresentation claim, arguing that summary judgment was appropriate because Wooding had not produced a medical expert who would testify that Wooding’s injuries were proximately caused by Dr. Dirksmeier’s alleged lack of experience performing surgeries. The District Court granted the Government’s motion, concluding that expert testimony was required to establish that Wooding’s injuries were *312caused by Dr. Dirksmeier’s alleged inexperience, not by the surgery itself. Wooding filed a timely appeal of that order.
II.
Under Pennsylvania law, a plaintiff alleging intentional misrepresentation must show “1) a representation, 2) which is material to the transaction at hand, 3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false, 4) with the intent of misleading another into relying on it, 5) justifiable reliance on the misrepresentation, and 6) resulting injury proximately caused by the reliance.” Porreco v. Parreco, 571 Pa. 61, 811 A.2d 566, 570 (2002); Bortz v. Noon, 556 Pa. 489, 729 A.2d 555, 560 (1999).3 The Supreme Court of Pennsylvania has recognized the potential viability of a claim of intentional misrepresentation in a case where a doctor misrepresents his qualifications to a patient. See Duttry v. Patterson, 565 Pa. 130, 771 A.2d 1255, 1259 (2001).4
Here, Wooding alleged that Dr. Dirksmeier and the Veterans Affairs Medical Center misrepresented Dr. Dirksmeier’s level of experience and gave Wooding the impression that he had more experience performing surgeries than he actually had. Accordingly, to make out a claim for intentional misrepresentation, Wooding was required to show that his injuries were proximately caused by his reliance on Dr. Dirksmeier’s alleged misrepresentations. See Bortz v. Noon, 729 A.2d at 560. Thus, in this case, Wooding must show that his injuries were caused by Dr. Dirksmeier’s alleged lack of experience, and not simply a result of the surgery. This requires expert testimony, because the causal link is not obvious to a lay person. Cf. Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 907 A.2d 1061, 1070-71 (2006) (recognizing that a plaintiff must produce a medical expert to testify as to causation in “all but the most self-evident medical malpractice actions”). Wooding concedes that the expert he has retained will only testify that the injuries were caused by the surgery, not by Dr. Dirksmeier’s alleged lack of experience. Accordingly, the District Court correctly granted summary judgment on his misrepresentation claim.
On appeal, Wooding argues that expert testimony on the issue of whether Dr. Dirksmeier’s alleged inexperience caused his injuries is unnecessary. Instead, he contends that he is only required to show that he would not have consented to an operation performed by Dr. Dirksmeier, if he were aware of his actual level of experience. Essentially, he is making an argument under the doctrine of informed consent. The Supreme Court of Pennsylvania foreclosed this possibility in Duttry, when it held that a doctor’s misrepresentations about his experience was irrelevant to an informed consent claim. See 771 A.2d at 1259. Therefore, Wooding’s argument fails, and the grant of summary judgment was appropriate.
Because we affirm the District Court’s decision, we need not address the Government’s alternative argument that Wooding’s amendment to his claim was untimely or Wooding’s request that we provide *313guidance on the type of damages that are available in this civil action.
III.
For these reasons, we will affirm the order of the District Court.
. Dr. Dirksmeier completed his residency in orthopedic surgery in 2000.
. Count Two alleged a cause of action based on "malpractice, negligence, and wrongful conduct.” The District Court granted summary judgment on Count Two in favor of the United States, and Wooding has not appealed that order.
. The parties agree that Pennsylvania law applies to Wooding's claim because all of the events relevant to the civil action occurred in the Commonwealth.
. A plaintiff may now assert such a claim under Pennsylvania's informed consent statute. See 40 Pa. Stat. Ann. § 1303.504(d)(2). The parties agree that this cause of action was not available when Wooding's injuries occurred. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479212/ | OPINION
BARRY, Circuit Judge.
Petitioner Shi Ci Yang seeks review of the order of the Board of Immigration Appeals (“BIA”) affirming the order of the Immigration Judge (“IJ”) denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will deny the petition.
I.
Because we write solely for the parties, we discuss only those facts relevant to our analysis.
In 1999 and again in 2000, Yang’s then-girlfriend, Lan Zhi Ling, became pregnant. On both occasions, she was subjected to forced abortions because she was underage. In 2001, Ling became pregnant a third time. This time, however, she was old enough to marry and legally have a child. Yang and Ling begged government officials to permit them to marry and, after paying an unspecified fine, they did so. Their son was born in May 2002.
In 2003, a female co-worker of Yang’s became pregnant. Yang assisted her in attempting to conceal the pregnancy and escape. When his efforts were uncovered, he was detained for nine hours and beaten. Specifically, he was tied up with rope, punched, kicked, and hit with a stick, actions that led to bleeding from his mouth, swelling of his eye, and bruising. He sought medical treatment. His employer fired him, and his village requested that he write a letter of self-criticism condemning his actions. Yang claims that government officials pursued and threatened him.
In 2004, Yang fled China and entered the United States. He sought asylum, withholding of removal, and relief under CAT. The IJ denied relief. Yang appealed the asylum and withholding of removal determinations, but did not challenge the CAT determination. The BIA affirmed.
II.
We have jurisdiction to review the BIA pursuant to 8 U.S.C. § 1252. Where, as here, the BIA does not merely adopt an IJ’s opinion but instead renders its own decision, we review the decision of the BIA. We review the BIA’s factual findings under the deferential substantial evidence standard. Wong v. Att’y Gen. of the United States, 539 F.3d 225, 230 (3d Cir.2008).
III.
“The Attorney General ‘may’ grant asylum to an alien who demonstrates that he/she is a refugee.... ” Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002) (quoting 8 U.S.C. § 1158(b)(1)). A refugee is a “person unable or unwilling to return to the country of that person’s nationality or habitual residence because of past persecu*329tion or because of a well-founded fear of future persecution on account of his [or her] race, religion, nationality, membership in a particular social group, or political opinion.” Id. at 271-72 (citing 8 U.S.C. § 1101 (a) (42) (A)). Persecution “must amount to more than generally harsh conditions shared by many other persons, but does include threats to life, confinement, torture, and economic restrictions so severe that they constitute a real threat to life or freedom.” Lin v. INS, 238 F.3d 239, 243-44 (3d Cir.2001) (quotations omitted).
Yang first contends that the forcible abortion of his first two children constitutes past persecution. However, where an asylum claim is premised on the enforcement of coercive population control programs, only those who themselves endured an abortion or sterilization are eligible for relief. Lin-Zheng v. Att’y Gen. of the United States, 557 F.3d 147, 157 (3d Cir.2009) (en banc). Yang, therefore, is ineligible for relief on this basis.
The only other alleged past persecution that Yang points to is the aftermath of his efforts to assist a co-worker evade a forced abortion. Specifically, Yang was: (1) dismissed from his employment; (2) detained for nine hours and beaten; and (3)asked to draft a letter of self-criticism. Those events are not persecution.
First, with respect to economic persecution, we have held that “the deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom may constitute persecution.... Such disadvantage might, for instance, involve the deprivation of liberty, food, housing, employment, and other essentials of life.” Li v. Att’y Gen. of the United States, 400 F.3d 157, 168 (3d Cir.2005) (quotation omitted). This is a high standard. For example, in Li, the petitioner: was fined more than a year and a halfs salary; blacklisted from any government employment and from most other forms of legitimate employment; lost health benefits, school tuition, and food rations; and had household furniture and appliances confiscated. Id. at 169. Yang’s plight pales in comparison. Although Yang lost his job, there is no evidence indicating that he was unable to obtain or was barred from obtaining other employment or subjected to other economic sanctions. Accordingly, he was not economically persecuted.
Second, the beating Yang endured during his nine hours of detention, although offensive and deplorable, is not persecution. In Jarbough v. Attorney General of the United States, for example, we held that there was no persecution where the petitioner was confined for more than two days and was threatened with wires and electrical cables, screamed at, cursed at, threatened, kicked, shoved, pushed, and prodded, resulting in bruising. 483 F.3d 184, 191 (3d Cir.2007). Because Yang’s purported persecution is no more severe than Jarbough’s, it does not merit relief. Third, and finally, the request that Yang draft a letter of self-criticism does not rise to the level of persecution.
Yang also cannot demonstrate a fear of future persecution. In his application for relief, Yang claims that if he returned to China he would be arrested and sent to prison. Those allegations, however, conflict with the Department of State’s observation that those who assist others in efforts to violate China’s one-child policy are subject to withholding of social services, higher tuition costs, job loss or demotion, loss of promotion opportunity, and administrative punishments, including the destruction of property. Accordingly, Yang cannot establish a well-founded fear of future persecution.
*330Because Yang cannot meet his burden of proof with respect to asylum, he is ineligible for withholding of removal. Wong, 539 F.3d at 236-37.
Finally, Yang did not challenge the IJ’s denial of CAT protection before the BIA and is barred from challenging that decision before us. 8 U.S.C. § 1252(d)(1).
IV.
We will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479214/ | OPINION
BARRY, Circuit Judge.
A.G., by and through her mother, filed for a due process hearing challenging, among other things, the Wissahickon School District’s (the “District”) provision of a free appropriate public education (“FAPE”) and its compliance with the Individuals with Disabilities Education Act’s (“IDEA”) mainstreaming requirement.1 The Pennsylvania Appeals Panel ordered the District to include A.G. in one regular, academic course and denied compensatory education. The District Court affirmed and, in a later order, denied A.G.’s application for attorneys’ fees. We will affirm both orders.
I.
A.G. is a non-verbal, highly distractible eighteen-year-old. She suffers from severe mental retardation, has static, non-progressive encephalopathy, vision problems, and developmental delays. She is unable to identify letters, numbers, or colors, cannot match items, and has difficulty dressing, undressing, eating, grasping a pencil, and brushing her teeth. She is not yet toilet trained.
The District proposed that A.G. be placed in a full-time life skills support class for the 2003-2004 school year, and provided for A.G.’s mainstreaming for school assemblies, lunch, homeroom, gym, and recess. That placement prompted A.G. to file an administrative action in Pennsylvania alleging, among other things, that: (1) she was denied a FAPE because the District failed to educate her in the least restrictive environment (“LRE”); and (2) that denial entitled her to compensatory education. The Hearing Officer concluded that because A.G. was not educated in the LRE, she was denied a FAPE, and directed that she be fully mainstreamed and awarded compensatory education. The Appeals Panel, however, ordered that A.G. need only be mainstreamed for lunch, recess, physical education, homeroom, music, art, and one academic class, and reversed the compensatory education order.
A.G. then filed an action in federal court seeking full mainstreaming and compensatory education. In light of the Supreme Court’s opinion in Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005), however, which shifted the burden of persuasion in IDEA cases, the District Court remanded the matter to the Hearing Officer. In 2006, the Hearing Officer again concluded that A.G. was not provided education in the LRE, and again ordered compensatory education and that A.G. be fully mainstreamed. The Appeals Panel once more disagreed. The Appeals Panel concluded that A.G. should be mainstreamed in at least one academic class and reversed the requirement of compensatory education.
The District Court affirmed, concluding that the District provided A.G. with a *333FAPE and that compensatory education was improper. In a separate order, the Court denied A.G.’s motion for attorneys’ fees related to the 2006 administrative proceedings.2
II.
Where a state has a two-tiered administrative structure, the federal court should begin its review with the appellate opinion. Carlisle Area Sch. v. Scott P., 62 F.3d 520, 528-29 (3d Cir.1995). A district court reviews the administrative determination under a modified de novo standard. L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir.2006). Factual findings are based on a preponderance of the evidence with “due weight” afforded to the agency’s determinations. Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir.2004).
We exercise plenary review over questions of law, but review a district court’s factual findings for clear error. Ramsey Bd. of Educ., 435 F.3d at 389 (quotation omitted). We review a district court’s denial of attorneys’ fees for abuse of discretion. Pardini v. Allegheny Intermediate Unit, 524 F.3d 419, 422 (3d Cir.2008).
III.
A.
The IDEA provides that school districts must to the “maximum extent appropriate” educate children with disabilities “with children who are not disabled.” 20 U.S.C. § 1412(a)(5)(A). Referred to as the IDEA’S mainstreaming component, the statute requires that a disabled child be placed in the LRE. See Ramsey Bd. of Educ., 435 F.3d at 390.
In Oberti v. Board of Education, we set forth a two-part test to determine whether a school district is complying with the mainstreaming requirement. 995 F.2d 1204, 1215 (3d Cir.1993). First, a “court must determine whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily.” Id. (quotation omitted). Second, if placement outside the regular classroom is necessary, then a “court must decide whether the school has mainstreamed the child to the maximum extent appropriate.” Id.
With respect to the first inquiry, Oberti required that a court consider:
(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class.
Id. at 1217-18.
The first factor calls upon us to determine whether the District considered the “whole range of supplemental aids and services,” including “efforts to modify the regular education program to accommodate” A.G. Id. at 1216. Mere token gestures are insufficient. Id. Here, the District implemented numerous supplemental aids and services, including: (1) modification of curriculum and materials; (2) modification of assignments to comport with A.G.’s Individualized Education Plan (“IEP”); (3) provision of a one-on-one aide; (4) additional interaction with the regular classroom teacher; (5) small group and one-on-one instruction; (6) consultation between *334special education and regular education teachers; (7) adapted equipment; and (8) extensive teacher-parent communication. The District Court concluded that the District provided substantial support in the form of supplemental aids and services. We agree.
Next, we compare the educational benefits A.G. would receive in a regular classroom (with supplementary aids and services) with the benefits she would receive in a special education class. In so doing, we are mindful of the unique benefits a special needs child may obtain from mainstreaming, such as the development of social and communication skills. Id. at 1216. Here, the record demonstrates that A.G. made little if any progress on her academic goals in her mainstreamed courses and received little educational benefit from her mainstreaming. Moreover, A.G. had minimal to no interaction with the regular education students. That lack of progress must be juxtaposed with the progress she made on life skills such as eating, navigating the school, acknowledging people, dressing, hand washing, toileting, and use of expressive language while enrolled in life skills curriculum.
Finally, we consider the effect of A.G.’s mainstreaming on the other students in the regular classroom. A.G. is prone to frequent, loud vocalizations that negatively impact her classmates. She distracts her peers by removing her shoes and socks, inappropriately clapping and grinding her teeth, having difficulty toileting, and, on occasion, inappropriately touching other students. Although not excessive nor dis-positive, those disruptions are notable.
Applying the Oberti factors, the District Court concluded that A.G. cannot be satisfactorily educated full-time in a regular classroom with supplementary aids and services. That conclusion was not clearly erroneous.
With that conclusion in place, we turn to the second step — determining whether the District has mainstreamed A.G. to the maximum extent possible. The Appeals Panel decision required that A.G. be mainstreamed for lunch, recess, physical education, homeroom, music, art, and one academic class. The District complied, and we agree with the District Court’s finding that A.G. is being educated in the LRE.
B.
Under the IDEA, “the denial of an appropriate education ... creates the right to compensatory education.” Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 250 (3d Cir.1999) Thus, the “right to compensatory education accrues when the school knows or should know that the student is receiving an inappropriate education.” Id.
Contrary to A.G.’s conflation of the two concepts, FAPE and LRE are distinguishable, a proposition supported by T.R. v. Kingwood Township Board of Education, 205 F.3d 572, 578 (3d Cir.2000). There, we affirmed the district court’s finding that the student received a FAPE, but vacated the district court’s holding that the student’s placement was the LRE. Id. at 575. T.R. demonstrates that a school district can provide a student a FAPE while failing to educate a student in the LRE.
Thus, for purposes of entitlement to compensatory education, the ultimate inquiry is two-fold: (1) did the school district provide the student with a FAPE and (2) if it failed to do so, when did the school district know of that failure?
A school district provides a FAPE by designing and administering an IEP “reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential.” Shore Reg’l High Sch. Bd. of Ed., *335381 F.3d at 198 (quotation omitted). Here, the District Court correctly found that the District provided A.G. with a meaningful educational benefit, as evidenced by the advances she made in life skills, such as hygiene, toileting, eating, navigating the school, and acknowledging people, and provided her with an IDEA compliant education. An award of compensatory education would have been improper. See Lauren W. v. DeFlaminis, 480 F.3d 259, 272-73 (3d Cir.2007).
IV.
Finally, we review the District Court’s denial of AG.’s motion for attorneys’ fees incurred with respect to the 2006 administrative proceedings.
The IDEA provides that a “court, in its discretion, may award reasonable attorneys’ fees ... to a the prevailing party.” 20 U.S.C. § 1415(i)(3)(B). To qualify as a prevailing party, a plaintiff must “succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” John T. v. Del. County Intermediate Unit, 318 F.3d 545, 555 (3d Cir.2003) (quotation omitted). The “touchstone” of the inquiry is “the material alteration of the legal relationship of the parties.” Id. (quotation omitted).
Here, A.G.’s federal complaint sought full mainstreaming and compensatory education. The federal action, however, achieved nothing more than was awarded by the Appeals Panel. Because A.G. was not a prevailing party, the District Court did not abuse its discretion in denying her motion for attorneys’ fees.
Y.
We will affirm the orders of the District Court.
. Integrating children with disabilities in regular classrooms is commonly known as "mainstreaming.
. The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479216/ | OPINION
SMITH, Circuit Judge.
Plaintiff Cortney Hassler filed this putative class action against Sovereign Bank because of overdraft fees charged to his checking account, challenging them as violating the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § § 56:8-1, et seq. (“NJCFA”), and New Jersey common law. For the reasons expressed below, we will affirm the judgment of the District Court, which dismissed this action.
I.
Hassler’s complaint recounts only two specific instances of Sovereign’s supposed unlawful practices. On August 28, 2008, Hassler had an available balance of $112.35. He made a $39.58 payment in the morning and made a $140.00 debit in the afternoon. Had the transactions been posted to the account in order of occurrence, he would have overdrawn his account only on the second transaction. However, Sovereign rearranged the debits so that the second transaction was posted first, resulting in two overdrafts. Sovereign assessed two overdraft fees in the amount of $33.00 each. Hassler similarly overdrew his account three days later, and the charges were posted in the same reverse-chronological order on the next business day, resulting in multiple overdraft fees.
The terms governing Hassler’s checking account and the use of his debit card are contained in an Account Agreement, two parts of which are relevant here. Section A is called “General Terms.” Section C is called “Electronic Banking.” In section A.7, entitled “Withdrawals,” the following paragraph was printed in bold:
We reserve the right to pay the withdrawals you make from your Account regardless of the method of withdrawal in any order we determine. This includes withdrawals made at an ATM or by computer, POS purchases, checks, pre-authorized payments and any other means we make available to you. The order in which you make withdrawals from your Account may not be the same as the order in which we post those transactions to your Account each business day. Generally, we post your payment transactions each business day in descending order, starting with the largest payment order that is presented for payment. This means, for example, that your $900 mortgage payment will be paid before the $100 purchase you made *343at the supermarket. The order in which we post your transactions may affect whether you incur fees for insufficient or unavailable funds.
In Section A.13, entitled “Overdrafts and Unavailable Funds,” the following paragraphs appear:
If you write a check or other order or otherwise request a withdrawal from your Account, such as by using an ATM or making a purchase using a Visa CheckCard or ATM Card, for more money than you have available for withdrawal from your Account, we may either permit you to withdraw the funds by complying with the payment order or we may refuse to honor the payment order. You may incur a fee for each payment order that is presented against your account when you do not have sufficient available funds.
We will not be liable to you if we choose to honor such a payment order. If we honor your payment order, you agree to pay us the amount of the overdraft immediately.
Finally, Section C.l, entitled “Electronic Banking Services,” contains a set of paragraphs marked “Sovereign Visa Check-Card or ATM Card,” which include the following:
You may use your Card at POS terminals displaying the logo of a network that is authorized to accept your Card to pay for purchases and to make cash withdrawals. POS terminals are often located at gas stations, supermarkets, drug stores and other retail merchants. You may also use your Visa CheckCard to pay for purchases at any merchant displaying the Visa or Visa debit symbol. When you make a purchase using your Card, the amount of your purchase is automatically deducted from your checking account.
Hassler argues that Sovereign’s reordering of the debits and withdrawals of his and all class members’ accounts violates the NJCFA, constitutes a breach of the covenant of good faith and fair dealing underlying them contracts, and constitutes unjust enrichment.
The District Court granted Sovereign’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Jurisdiction was proper under the Class Action Fairness Act, 28 U.S.C. § 1332(d), and this Court’s jurisdiction lies under § 1291. New Jersey law governs.
II.
Our review of the District Court’s grant of a motion to dismiss is plenary. Rodriguez v. Our Lady of Lourdes Medical Center, 552 F.3d 297, 302 (3d Cir.2008). A motion to dismiss for failure to state a claim should be granted “if, accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to the plaintiff, plaintiff is not entitled to relief.” Ballentine v. United States, 486 F.3d 806, 810 (3d Cir.2007). In addition to the allegations of the Complaint, the Court can also consider attachments to the Complaint and “other indisputably authentic documents underlying the plaintiffs claims.” Sentinel Trust Co. v. Univ. Bonding Ins. Co., 316 F.3d 213, 216 (3d Cir.2003). Here, that would include the Account Agreement.
A.
Hassler’s first claim is for violation of the NJCFA. To state a claim, a plaintiff must allege “1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between” the two. Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 964 A.2d 741, 749 (2009). Unlawful conduct includes “any unconscionable commercial practice, deception, fraud, false *344pretense, false promise, misrepresentation, or the knowing, [sic] concealment, suppression, or omission of any material fact with the intent that others rely upon such concealment, suppression or omission.” N.J. Stat. Ann. § 56:8-2. New Jersey defines the term “unconscionable business practice” as “the standard of conduct contemplating good faith, honesty in fact and observance of fair dealing.” Turf Lawnmower Repair, Inc. v. Bergen Record Corp., 139 N.J. 392, 655 A.2d 417, 429 (1995) (quotation, alteration, and ellipsis omitted). “To constitute consumer fraud ... the business practice in question must be ‘misleading’ and stand outside the norm of reasonable business practice in that it will victimize the average consumer....” Id.
Whether a practice itself is unfair is a classic jury question. However, where the claim is based on written statements, the court must make the legal determination of whether a practice can be said to be unfair in light of the written statements. See, e.g., Rosenberg v. Wash. Mut. Bank, FA, 369 N.J.Super. 456, 849 A.2d 566, 573 (2004) (affirming dismissal of NJCFA claim because actions taken by bank were clearly set forth in disclosure documents); N.J. Citizen Action v. Schering-Plough Corp., 367 N.J.Super. 8, 842 A.2d 174 (2003) (affirming dismissal if NJCFA claim because pharmaceutical advertisements were mere puffery). The terms of the Account Agreement here clearly explained the actions that Sovereign eventually undertook. Therefore, there is no jury question, but only the legal question of whether those terms and actions violate the NJCFA in light of having been explained in the Account Agreement.
This claim was properly dismissed. The Account Agreement explicitly provided for the reordering of charges of which Hassler complains. In Section A.7, Sovereign “reserve[d] the right to pay the withdrawals ... regardless of the method of withdrawal in any order [it] determine[d].” Sovereign clarified what this meant by repeating the same principle in the same paragraph using different words: “The order in which you make withdrawals from your Account may not be the same as the order in which we post those transactions to your Account each business day.” Sovereign specifically stated that “[generally, [it] post[s] ... payment transactions each business day in descending order, starting with the largest payment order that is presented for payment.” It also gave an example: “This means, for example, that your $900 mortgage payment will be paid before the $100 purchase you made at the supermarket.” Sovereign even warned Hassler that “[t]he order in which we post your transactions may affect whether you incur fees for insufficient or unavailable funds.” The Account Agreement also makes clear that attempting to charge an account beyond its available balance will not necessarily result in the charge being denied. Rather, Sovereign retained the right either to permit or refuse to honor the charge in Section A.13.
Hassler’s claim that he and others depended on Sovereign to ensure that charges were posted to their accounts in the chronological order in which the customer incurred them is undercut by Sovereign’s explicit reservation of the right to post charges in any order it determines and its notification that it generally posts charges in descending order of amount. His focus on one sentence — the “automatically” sentence, which comes from the section describing how a debit card works, not setting forth how charges are posted to the account and overdraft fees are imposed— without reference to the rest of the Account Agreement fails as matter of law.
*345B.
Hassler next argues that the District Court erred in dismissing his claim for breach of contract for violating the duty of good faith and fair dealing. Such a duty is contained in all contracts governed by New Jersey law. Seidenberg v. Summit Bank, 348 N.J.Super. 243, 791 A.2d 1068, 1074 (2002) (quoting Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 690 A.2d 575, 587 (1997)). Establishing this claim requires proof “sufficient to support a conclusion that the party alleged to have acted in bad faith has engaged in some conduct that denied the benefit of the bargain originally intended by the parties.” Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assoc., 182 N.J. 210, 864 A.2d 387, 396 (2005) (quotation omitted). A defendant may be held liable for breach of this duty even if its conduct does not violate the contract’s express terms if the plaintiff’s “reasonable expectations are destroyed when a defendant acts with ill motives and without any legitimate purpose.” Id. (citation omitted).
This claim also fails. Hassler does not allege any bad motive on the part of Sovereign. The allegations of the Complaint, boiled down, amount to: Sovereign re-ordered the charges, this resulted in overdraft fees, and this was unfair. The Complaint repeatedly asserts the unlawful nature of Sovereign’s acts, but is silent on its intention in doing so — other than simply seeking profit. “A good faith performance doctrine may be said to permit the exercise of discretion for any purpose — including ordinary business purposes — reasonably within the contemplation of the parties. It follows, then, that a contract thus would be breached by a failure to perform in good faith if a party uses its discretion for a reason outside the contemplated range — a reason beyond the risks assumed by the party claiming the breach.” Wilson v. Amerada Hess Corp., 168 N.J. 236, 773 A.2d 1121, 1127 (2001) (quotation omitted). Thus, “[wjith-out bad motive or intention, discretionary decisions that happen to result in economic disadvantage to the other party are of no legal significance.” Id. at 1130 (quotation omitted). As stated above in the NJCFA context, and below in the unjust enrichment context, the Account Agreement clearly explains that Sovereign may reorder charges. Hassler cannot ignore this language and argue that he could not have expected Sovereign’s rearrangement of the charges and his incurrence of overdraft fees in the manner described. This claim was properly dismissed.
C.
Hassler’s final claim is for unjust enrichment, which “rests on the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another.” Goldsmith v. Camden County Surrogate's Office, 408 N.J.Super. 376, 975 A.2d 459, 462 (2009) (quotation omitted). The claim requires proof that the defendant received a benefit and that retention of the benefit would be inequitable. Id. (quotation omitted). Satisfying the second prong of the test requires Hassler to demonstrate that Sovereign was “enriched ... beyond its contractual rights.” VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 641 A.2d 519, 526 (1994).
For the same reasons the NJCFA claim fails, this claim fails. The Account Agreement clearly reserved to Sovereign the right to post charges to the account each day in descending order of amount. Because such posting was not “beyond its contractual rights,” id., Sovereign’s collection of the overdraft fees did not “en*346rich[][it] beyond its contractual rights.” Id.1
III.
We will affirm the judgment of the District Court.
. Because all of Hassler's claims fail as a matter of New Jersey state law, we need not address Sovereign's preemption argument. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479222/ | OPINION
PER CURIAM.
Ruth Giovanna Valencia Procel seeks review of the Board of Immigration Appeals’ (“BIA”) final order dismissing her appeal of the Immigration Judge’s (“IJ”) denial of her application for withholding of removal and relief under the Convention Against Torture (“CAT”). We will deny the petition.
Procel is a native and citizen of Ecuador. She entered the United States on a B2 visa in 2001 and later returned to the United States on a second B2 visa in July 2003. Procel overstayed her second visa and was issued a Notice to Appear in April 2005. In April 2007, she filed an application seeking withholding of removal and protection under the CAT, claiming that she fears future persecution because, as a female living in Ecuador, she would be subject to gender-based violence.1
In March 2008, the IJ denied Procel’s application. Although he found her testimony to be credible, he concluded that the evidence she presented did not support a finding that she experienced past persecution, or would be subject to future persecution, on account of her gender. Procel appealed and, in an April 2009 decision, the BIA affirmed the IJ’s ruling. Procel filed a timely petition for review in this Court.
This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a). “[WJhen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). The BIA’s factual determinations are upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
In order to obtain withholding of removal, Procel bears the burden of establishing that she would “more likely than not” suffer persecution in Ecuador on account of her race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A); see also Wu v. Ashcroft, 393 F.3d 418, 423 (3d Cir.2005). This requires her to show a “clear probability” of persecution. INS v. Stevie, 467 U.S. 407, 429, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). In order to establish eligibility for withholding of removal based on past persecution, Procel must further demonstrate a sufficient “nexus” between the alleged persecution she suffered and a protected ground. See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir.2009). While she need not demonstrate that the protected ground was the exclusive motivation behind the persecution, she must provide some evidence of motive, whether *356direct or circumstantial. See Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir.2005).
For relief under the CAT, Procel must demonstrate that it is more likely than not that she would be tortured if removed to Ecuador. See 8 C.F.R. § 1208.16(c)(2). Under the relevant regulation, torture means “severe pain or suffering” inflicted at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. See 8 C.F.R. § 1208.18(a)(1).
At her administrative hearing, Procel testified that while she lived in Ecuador, on one occasion, while working at a hotel, she was propositioned by a male guest, and that the guest was asked to leave by her supervisor. On another occasion, she testified that she was robbed by three unknown men in a park. She further testified about an incident when she was robbed by unknown men, during which she was pushed to the ground and hit with a pistol. When asked by the IJ if she had reported any of the incidents to police, Procel stated that she had not.
We find that substantial evidence supports the BIA’s conclusion that Procel was unable to establish a sufficient nexus between the attacks she described and a protected ground. The evidence that Pro-cel presented does not support a finding that her attackers sought to harm her on account of her identifying characteristics. Rather, it appears that she was the victim of criminal acts not linked to any enumerated ground. At her administrative hearing, Procel admitted that her brother had also been the victim of a robbery, supporting the conclusion that the violence that Procel experienced stemmed from what appears to be a generalized crime problem in Ecuador. See Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir.2001) (mere generalized lawlessness and violence between diverse populations is not sufficient to grant asylum).
Moreover, even if Procel had been able to demonstrate a nexus, she did not show that authorities were unable or unwilling to investigate or control the attacks she endured. See Lie v. Ashcroft, 396 F.3d at 537-38 (stating “as with any claim of persecution, violence or other harm perpetrated by civilians ... does not constitute persecution unless such acts are ‘committed by the government or forces the government is either ‘unable or unwilling’ to control.’ ”). Procel did not give the police an opportunity to investigate her attackers, and she produced no evidence that they were unwilling to do so in her case.
Finally, the BIA did not err when it concluded that Procel did not establish a basis for relief under the CAT, as she did not demonstrate that it is more likely than not that she would be tortured if returned to Ecuador. Accordingly, we will deny the petition for review.
. Procel was ineligible for asylum because she did not file an application for such relief within one year of her arrival. See 8 U.S.C. § 1158(a)(2)(B). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479225/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
In 2007, a jury found Michael Curtis Reynolds guilty of multiple terrorism-related crimes, and the District Court sentenced him to 360 months of imprisonment, three years of supervised release, and a fine of $500. On appeal, Reynolds raises the following issues: (1) whether the evidence submitted at trial was sufficient to find him guilty of the five counts he was convicted of; (2) whether the “master” affidavit of probable cause for the search warrants contained a reckless or intentional material misstatement of fact; (3) whether perjured trial testimony was used to support the conviction; (4) whether the United States vindictively prosecuted Reynolds; and (5) whether Reynolds’s right to a speedy trial was violated. We will affirm the order of the District Court.
I.
Since we write only for the benefit of the parties, we state only the facts that are necessary as background. An FBI source, Shannon Rossmiller, discovered a message from October 25, 2005 that Reynolds posted on an on-line message board soliciting help for what appeared to be a terrorist plan. In early November 2005, after finding similar messages also posted by Reynolds, Rossmiller began direct communication with Reynolds through email correspondence. In his response to her initial email, Reynolds stated that his plan would cause the United States to bring its troops home. (Appellate Br. at 13, citing Tr. 124.) Over the course of the next month, Rossmiller communicated interest in Reynolds’s plans, Reynolds described the plans generally, and both parties discussed payment arrangements. Reynolds was arrested by an FBI tactical team on December 5, 2005 near Pocatello, Idaho, while he was attempting to retrieve reward money promised to him by an undercover FBI agent.
After his arrest, Special Agent Noone, of the FBI’s Scranton Resident Agency, informed Reynolds of his constitutional rights, and Reynolds waived those rights. Reynolds confessed that he believed he was communicating with an organization tied to al-Qaeda, but he denied being a *359terrorist. He claimed that he was attempting to gain information about al-Qae-da in order to turn it over to a private paramilitary organization with which he had been associated in the 1980s. He had not contacted anyone at the organization about his plan, nor had he communicated this idea to anyone else.
Illustrative operational plans for the attack were found on Reynolds’s computer. Reynolds’s plans for an explosive device were detailed and thorough. At the time of Reynolds’s arrest, a search warrant was executed at his rented storage unit, and an officer found a live hand grenade in the unit.
On December 20, 2005, a grand jury indicted Reynolds on two counts of possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d). Reynolds pleaded not guilty. His court-appointed attorney was then permitted to withdraw and substitute counsel was appointed by the court. On June 7, 2006, Reynolds’s second court-appointed counsel moved to withdraw. Over the next month, Reynolds filed 11 pro se motions, while the District Court appointed Reynolds’s third attorney on June 11, 2006.
On October 3, 2006, before a scheduled hearing date on Reynolds’s outstanding motions, the grand jury returned a six-count superseding indictment.1 Though Reynolds was represented by court-appointed counsel, he filed 23 pro se motions in the form of letter motions, writs, and complaints.2 On May 18, 2007, Reynolds’s counsel filed a motion to suppress evidence and a motion to dismiss the indictment for violation of the Speedy Trial Act. The court denied the suppression motion, and on July 2, 2007 issued a memorandum opinion rejecting the motion for violations of the Speedy Trial Act.
On July 9-12, 2007, Reynolds was tried by U.S. District Judge Kosik before a jury. The jury found Reynolds guilty of five of the six counts. Reynolds was acquitted of one count of possessing an unregistered destructive device. Reynolds prematurely filed his notice of appeal on July 23, 2007. On November 6, 2007, the District Court sentenced Reynolds to 360 months of imprisonment, three years of supervised release, and a fine of $500. We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and will address *360the issues raised by Reynolds as listed above.
II.
a.Sufficiency of Evidence
We engage in plenary review over a challenge to the sufficiency of evidence. United States v. Omoruyi, 260 F.3d 291 (3d Cir.2001). In conducting this review, the court “must sustain a jury’s verdict if a reasonable jury believing the government’s evidence could find beyond a reasonable doubt that the government proved all the elements of the offenses.” United States v. Rosario, 118 F.3d 160, 163 (3d Cir.1997) (internal citation and quotation marks omitted).. This “places a very heavy burden on the appellant.” Id. Review of sufficiency claims are “guided by strict principles of deference to a jury’s verdict.” Id.
Reynolds argues that the government’s claims are supported by insufficient evidence, because he did not own a computer monitor to enable him to send email prior to November 23, 2005. In addition, Reynolds asserts (erroneously) that because the government did not dispute this fact in its rebuttal argument, it must be accepted as true. Even if we were to find this to be persuasive, this would not establish that the evidence supporting the jury’s verdict was insufficient. The government proved that emails were sent from an email address Reynolds controlled, under an alias that Reynolds used, and were sent from Pennsylvania at a time that Reynolds admits he was located in the Middle District. Whether they were sent from Reynolds’s personal computer or from some other computer to which he had access, Reynolds’s assertion that his own computer had no monitor does not render the government’s evidence insufficient. The jury had an opportunity to consider this issue for itself at trial. Therefore, we find that Reynolds has failed to overcome the significant hurdle to overturning a conviction on the basis of a claim of insufficient evidence.
b.“Master” Affidavit and Probable Cause
Whether the “master” affidavit for probable cause for the relevant search warrant contained a misstatement of fact, and whether any such misstatement was intentionally or recklessly made, are factual questions to be resolved by the District Court in the first instance in response to a suppression motion raising such issues. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Such misstatements will lead to suppression of evidence only if they were material to the finding of probable cause. United States v. Brown, 3 F.3d 673, 678 n. 6 (3d Cir.1993). Materiality is a legal question subject to plenary review. United States v. Yusuf, 461 F.3d 374, 387-89 (3d Cir.2006).
Reynolds did not assert the existence of a specific misstatement of fact in the District Court. Thus, there is no factual determination by the District Court to review. Reynolds filed a motion to suppress the fruits of the search of his storage unit. However, he only asserted that the master affidavit did not establish probable cause, not that there was a misstatement of fact. (Mot. to Suppress Evidence, Doc. No. 179.) The issue is therefore reviewed only for plain error. Fed.R.Crim.P. 52(b). We find Reynolds’s argument unpersuasive. Reynolds fails to assert a misstatement, let alone a misstatement that was intentional or reckless and was material to finding probable cause.
c.Perjured Trial Testimony
In his brief, Reynolds alleges that certain individuals committed perjury during the trial. To establish a due process *361violation premised upon the government’s knowing use of perjured testimony, a Defendant must show that (1) a government witness committed perjury, (2) the Government knew or should have known of the perjury, (3) the perjured testimony went uncorrected, and (4) there is a reasonable likelihood that the false testimony could have affected the verdict. United States v. Hoffecker, 530 F.3d 137, 183 (3d Cir.2008).
Whether a witness’s testimony was false, and the government’s actual or imputed knowledge thereof, are factual questions to be determined by the District Court in the first instance. This Court will not overturn the findings unless such findings are unsupported by evidence. Government of the Virgin Islands v. Lima, 774 F.2d 1245, 1251 (3d Cir.1985). Outside of stating his innocence and testifying in his own defense in a manner inconsistent with the testimony of several government witnesses, Reynolds failed to preserve this issue in the District Court. As such, this inquiry is subject to review only for plain error. Fed.R.Crim.P. 52(b).
Reynolds’s perjury allegations are based on his claim that Kevin Reardon, his brother-in-law, lied. Specifically, Reynolds contends that Reardon planted the grenades in the storage unit and committed perjury by stating otherwise. No evidence was presented to establish Reynolds’s claim. Thus, he fails the first prong of the Hoffecker test, and has not even suggested that he could meet the second. Accordingly, we find that he has not met his burden on this issue.
d. Vindictive Prosecution
Reynolds did not allege that the government’s prosecution of him was vindictive in the District Court. Therefore, the issue is subject to review only for plain error. Fed.R.Crim.P. 52(b).
Prosecutorial vindictiveness may be found when the government penalizes a defendant for invoking legally protected rights. United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). There is no prosecutorial vindictiveness, however, where the prosecutor’s decision to prosecute is based on the usual determinative factors. United States v. Oliver, 787 F.2d 124, 126 (3d Cir.1986). Reynolds bears the burden of proving prosecutorial vindictiveness. United States v. Paramo, 998 F.2d 1212, 1220 (3d Cir.1993). He may meet his burden by either (1) using evidence of the prosecutor’s retaliatory motive to prove actual vindictiveness, or (2) proving facts that in certain circumstances give rise to a presumption of vindictiveness. Id. Courts will apply a presumption of vindictiveness only where there exists a “realistic likelihood of vindictiveness.” Id.
Reynolds fails to allege any facts that could support a finding of actual vindictiveness, or a presumption of vindictiveness other than that more serious charges were brought after the initial indictment. Reynolds’s original two-count indictment followed his arrest by just fifteen days. Nine-and-a-half months after the original indictment, and after a more thorough investigation, a more comprehensive indictment was issued. Moreover, Reynolds offers no evidence of the prosecution having an actual retaliatory motive. Thus, Reynolds has not sustained his burden for this claim as he has not established facts giving rise to a presumption of vindictiveness or evidence of an actual retaliatory motive.
e. Speedy Trial
Reynolds appeals the denial of a motion to dismiss the indictment, claiming a violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. Section 3161(h) of the Act permits the exclusion of periods of *362delay in the calculation of the seventy-day time limit for the commencement of trial. Properly excluded periods of delay include pretrial motions, from filing to their disposition, and any period of delay from a continuance provided there is an ends of justice reason given by the court.3
As the District Court’s memorandum opinion states, the speedy trial period began to run when Reynolds was arraigned on the original indictment on January 3, 2006. The eventual trial was held on July 9, 2007. Reynolds’s counsel filed a motion on January 12, 2006 to review his previous detention by a magistrate judge. On January 19, 2006, Reynolds’s counsel filed a motion to withdraw from the case due to irreconcilable differences. New counsel was appointed shortly thereafter. In March 2006, the bail motion was withdrawn, and the defense filed ex parte motions for discovery and authority to hire expert services. In May 2006, the second court-appointed attorney sought to withdraw due to irreconcilable differences. At this point, Reynolds also filed several pro se motions.
On July 17, 2006, Reynolds’s third court-appointed attorney was assigned, and moved for discovery soon after. Throughout the remainder of the 2006 summer and into the fall, Reynolds filed numerous pro se motions despite having legal representation. The District Court found that there were outstanding motions for the entirety of this time frame except for the eight days between Reynolds’s arraignment and the motion to review his detention, and a period of nine days from March 14-28, 2006. United States v. Reynolds, No. 3:CR06-493, 2007 WL 1959302, at *4 (M.D.Pa. July 2, 2007).
On October 3, 2006, a superseding indictment containing four additional charges was returned. If a superseding indictment charges a new offense that did not have to be joined with the original indictment, then the subsequent indictment begins a new, independent speedy trial period. United States v. Lattany, 982 F.2d 866, 872 n. 7 (3d Cir.1992). On the same day as the issuance of the superseding indictment, the court ordered a competency exam for Reynolds. Pursuant to section 3161(h)(1)(F), the District Court properly excluded the time period Reynolds was committed for his competency exam, which began on October 11, 2006 and ended on January 5, 2007. Reynolds continued to file numerous pro se motions from October 2006 into April 2007. The District Court properly excluded these pro se motions in addition to other counseled defense motions for enlargements of time to file pretrial motions, defense motions for continuances of trial, and defense motions for pretrial relief from the time between Reynolds’s arraignment on the superseding indictment and the commencement of trial pursuant to section 3161(h)(1)(F). Therefore, the District Court stated that, at best, non-excluded time was minimal, and there was no violation of the Speedy Trial Act for the first or second indictment.
Additionally, prejudice or lack of prejudice to the defendant is also a factor to be contemplated. United States v. Taylor, 487 U.S. 326, 339-41, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988). We agree with the District Court’s finding that the non-ex-eludable delay was minimal, and it was not prejudicial to Reynolds.
*363III. Conclusion
For the foregoing reasons, we will affirm the Judgment and Commitment Order of the District Court.4
. Count 1: attempting to provide material support and resources to a foreign terrorist organization in violation of 18 U.S.C. § 2339B; Count 2: attempting to provide material support and resources to damage or destroy property used in commerce by means of fire or explosive, and to damage or attempt to damage an interstate gas pipeline, in violation of 18 U.S.C. § 2339A; Count 3: solicitation or inducement of another to damage or destroy property used in commerce by means of fire or explosive, and to damage or attempt to damage an interstate gas pipeline in violation of 18 U.S.C. § 373; Count 4; distribution through the internet of information demonstrating the making or use of an explosive or destructive device with the intent that the information be used to commit a federal crime of violence in violation of 18 U.S.C. § 842(p)(2); and Counts 5 and 6: two counts of possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d).
. Reynolds included in his statement of questions for appeal that the District Court refused to decide his pro se motions. However, he made no actual argument supporting his contention in the body of his brief. It is a well-established rule that the failure to argue an issue in an opening brief constitutes waiver of that issue on appeal. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005); see also Laborers’ Intern. Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir.1994) (citation omitted) ("An issue is waived unless a party raises it in its opening brief, and for those purposes 'a passing reference to an issue ... will not suffice to bring that issue before this court.’ ")
. See Bloate v. United States, — U.S. -, 130 S.Ct. 1345, 1350-52 & n. 7, 176 L.Ed.2d 54 (2010) (acknowledging that delay resulting from defendant's pretrial motion is automatically excluded under § 3161(h)(1)(D)).
. In addition to the arguments discussed, Reynolds raised additional arguments that we have considered, and which we also find to be meritless. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479227/ | OPINION OF THE COURT
PER CURIAM.
Faith Oladejo petitions for review of an order of the Board of Immigration Appeals (BIA), which denied his third motion to reopen his removal proceedings. We will grant the petition for review.
*364Oladejo, a native and citizen of Nigeria, entered the United States in 1989 without permission. About four years later, he filed an asylum claim, based on a fear of persecution because of his conversion from Islam to Christianity. On February 21, 2001, an Immigration Judge (IJ) found him removable as charged and denied relief, but granted voluntary departure. The Board of Immigration Appeals (BIA) dismissed his appeal on November 28, 2003.
Oladejo filed a motion to reopen in March 2005, claiming neither he nor counsel had received the BIA’s 2003 decision. On May 10, 2005, the BIA denied the motion as untimely, discounting the allegation that the decision had not been received. Oladejo, proceeding pro se, filed a second motion to reopen in February 2007, alleging that the time period for filing a motion to reopen should be equitably tolled because of the ineffectiveness of counsel.1 The BIA denied the second motion on June 25, 2007, noting that equitable tolling was unavailable because Oladejo had failed to exercise due diligence, since he had done nothing for about two years after learning that his first motion to reopen had been denied. Oladejo filed a motion for reconsideration of that decision, which the BIA denied on November 29, 2007. Proceeding with new counsel, Ola-dejo then filed a third motion to reopen on February 1, 2008. The BIA denied the third motion to reopen on March 11, 2008, noting that Oladejo had given more specific facts regarding the ineffectiveness of prior counsel, but that he had failed to attribute his delay to that ineffectiveness.2
On March 21, 2008, Oladejo filed a petition for review and motion for stay of removal in the United States Court of Appeals for the Fifth Circuit. That Court transferred the case to the United States Court of Appeals for the Second Circuit, which eventually transferred the case here.
The decision to deny a motion to reopen is within the Board’s discretion. See 8 C.F.R. § 1003.2(a); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001). The deadline for filing a motion to reopen may be equitably tolled by an ineffective assistance of counsel claim. See Borges v. Gonzales, 402 F.3d 398, 407 (3d Cir.2005). Oladejo relied on his first attorney’s advice to continue pursuing adjustment of status through his wife, who was a permanent resident. Oladejo’s church also filed a petition for Special Immigrant-Religious Worker on his behalf.3 Although Oladejo’s attorney eventually informed him of the BIA’s denial of his appeal in 2005, and attempted to reopen the proceedings, the attorney did not explain to Oladejo the consequences of that denial once the BIA denied the motion to reopen. Oladejo continued to diligently pursue his attempts to adjust his status, unaware that the denial of his motion to reopen would preclude adjustment. Oladejo only became aware of the consequences when he received a letter from the agency informing him that his application for permanent residence based on his wife’s petition was denied because of the removal order against him, at which time he again asked the Board to reopen.4 See Ghahremani v. Gonzales, *365498 F.3d 993, 999 (9th Cir.2007) (limitations period tolled until petitioner definitively learns of counsel’s unreasonable performance).
We hold that the Board erred in finding that Oladejo “fail[ed] to attribute the delay in pursuing reopening to ineffective assistance.” A.R. 2. Indeed, it was because his attorney failed to explain the process to him that he continued to pursue adjustment of status in vain, rather than moving again to reopen. We will therefore grant the petition for review and remand to the BIA for further proceedings. The Clerk is directed to issue the mandate forthwith.
. We note that Oladejo complied with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), in establishing his claim that counsel was ineffective.
. The BIA denied a motion for reconsideration of the March decision on May 2, 2008. That order is not at issue here.
. The church’s petition was approved on January 20, 2004.
. In his emergency motion to stay removal, which we granted on Feb. 19, 2010, Oladejo stated for the first time that his wife had since become an American citizen, and had filed an 1-130 Petition on his behalf. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479229/ | Affirmed in part, reversed in part, and remanded by unpublished opinion. Judge SHEDD wrote the opinion, in which Judge KING and Judge BAILEY joined.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Hilarie G. Scarbro, Administratrix of the Estate of Gary Eugene Rummer, appeals the judgment entered in favor of the defendants on her claims under 42 U.S.C. § 1983 for excessive force, inadequate medical care, and conspiracy to deprive Rummer of his constitutional rights. For the following reasons, we affirm in part, but we reverse the district court’s order granting summary judgment in favor of Defendant Deputy Billy Ray Hudson on the inadequate medical care claim, and we remand for further proceedings consistent with this opinion.
I.
A.
In reviewing the district court’s order granting summary judgment to the defendants, we view the facts in the light most favorable to the plaintiff. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Gary Eugene Rummer was arrested and incarcerated for failure to serve the community service portion of his sentence for driving under the influence of alcohol. A few days after he was incarcerated, Rummer began having delusions and summoned a guard. After learning of Rummer’s alcohol addiction, the guard determined that Rummer was suffering from delirium tremens (“DTs”) caused by alcohol withdrawal and moved him to a safekeeping cell for inmates who have medical or mental health issues or who are disruptive. Later that morning, Rummer was taken to the medical unit where Nurse Barfield examined him and treated him for DTs. Rummer was alert, oriented, and walking on his own.
Upon his return to the crowded safekeeping cell, Rummer was stumbling over the other inmates’ mats and bothering them. When the other inmates complained, Deputy Billy Ray Hudson was ordered to move Rummer to a padded cell. Officer Melody Grimes accompanied Hudson and guarded the door to the safekeeping cell.
Hudson entered the room in a “bum rush.” He approached Rummer and grabbed Rummer’s arm to handcuff him, but Rummer did not cooperate. At that point, Hudson took him to the concrete floor head-first from a standing position. Other inmates recalled Rummer’s head hitting the floor with a thud and then hearing Rummer give a “horrific” scream.
After the takedown, Rummer was bleeding from a scratch above his eye. Because Rummer could not walk on his own, the guards carried him to a padded cell where he laid moaning on the cell floor. A supervising officer then decided to call the medical unit, and after the medical staff refused to come to the cell, Hudson and two other officers lifted Rummer into a wheelchair and transported him to the medical unit.
Rummer’s condition had drastically changed since Nurse Barfield first treated him for DTs hours earlier. He was no longer lucid or talking coherently, his glasses were broken, and he had urinated on himself. When Nurse Barfield asked Hudson if Rummer had fallen, Hudson responded, “No, he did not fall,” and failed to inform her of the takedown events. *369Unaware of Rummer’s head injury, Nurse Barfield prescribed medication for DTs and recommended that Rummer be transferred to Central Prison, a larger facility where he could be monitored more closely.
Rummer was likely unconscious when he was transported to Central Prison. When Central Prison staff observed Rummer’s condition, they immediately sent him to Wake Medical Center. There, Rummer’s CAT scan revealed a large acute subdural hematoma. Rummer was pronounced dead after an unsuccessful operation. According to Rummer’s physician, the most important factor in treating this type of injury is the amount of time it takes for the injured person to receive treatment.
An autopsy revealed that Rummer died from blunt force head trauma and that he had also recently sustained a neck fracture and a bruised right eyebrow. His injuries and rapid deterioration are consistent with his being thrown to the ground from a standing position and hitting his head.
B.
After Rummer’s death, Scarbro filed an action against various members of the New Hanover County Sheriffs Department and the New Hanover County Health Department asserting claims of excessive force, inadequate medical care, conspiracy, and supervisor liability pursuant to 42 U.S.C. § 1983, and supplemental state law claims of medical negligence and wrongful death.1 The district court dismissed Searbro’s claims against most of the defendants2 and eventually granted summary judgment in favor of the remaining defendants, including Hudson.
II.
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We review the district court’s order granting summary judgment de novo. Jennings v. Univ. of North Carolina, 482 F.3d 686, 694 (4th Cir.2007) (en banc).3
A.
First, Scarbro argues that the district court erred in granting Hudson summary judgment on the excessive force claim. A pretrial detainee’s claim of excessive force is governed by the Due Process Clause of the Fourteenth Amendment. Orem v. Rephann, 523 F.3d 442, 446 (4th Cir.2008). To succeed on such a claim, the plaintiff must demonstrate that the defendant “inflicted unnecessary and wanton pain and suffering” upon the detainee. Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); Iko v. Shreve, 535 F.3d 225, 239 (4th Cir.2008). This determination turns on whether the force was applied “in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078 (internal quotation marks omitted); Wilkins v. Gaddy, — U.S.-, 130 *370S.Ct. 1175, - L.Ed.2d - (2010) (describing this as the “core judicial inquiry”). Moreover, we must accord due deference to an officer’s efforts to restrain a detainee when faced with a dynamic and potentially violent situation; otherwise, “we would give encouragement to insubordination in an environment which is already volatile enough.” Grayson v. Peed, 195 F.3d 692, 697 (4th Cir.1999).
To the extent that there are differences in the witnesses’ testimony regarding how the takedown occurred, there is no evidence suggesting that Hudson applied force in a malicious, wanton, or sadistic manner. When Hudson grabbed Rummer’s arm to handcuff him, Rummer did not cooperate; Hudson then took Rummer to the floor, which was covered by mats, and handcuffed him. During the take-down, the mats covering the floor apparently shifted, allowing Rummer’s head to hit the concrete floor. However, this is not evidence that Hudson’s purpose was malicious, sadistic or wanton. Therefore, we find that the evidence fails to establish that Hudson used excessive force in subduing Rummer. Accordingly, we affirm the district court’s order granting summary judgment to Hudson as to Searbro’s claim of excessive force.
B.
Searbro also argues that the district court erred in granting Hudson summary judgment as to her inadequate medical care claim. She challenges the district court’s finding that there is no genuine issue of material fact as to whether Hudson subjectively lmew of Rummer’s serious medical need.4
Searbro bears the burden of establishing that Hudson’s conduct constituted a constitutional violation. Henry v. Purnell, 501 F.3d 374, 377 n. 2 (4th Cir.2007). The rights of a pretrial detainee complaining of inadequate medical care under the Fourteenth Amendment “are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). To prevail on a claim of inadequate medical care, Searbro must produce evidence of acts or omissions sufficiently harmful to constitute deliberate indifference to the inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
First, Searbro must show that the injury was objectively serious. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Then, she must show that Hudson subjectively knew of Rummer’s serious medical need. Id. at 834-35, 114 S.Ct. 1970. A factfinder may infer that a prison official knew of a substantial risk of harm from the fact that the risk was obvious, id. at 842, 114 S.Ct. 1970, or from the fact that the inmate’s need for medical attention was “ ‘so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’ ” Iko, 535 F.3d at 241 (citation omitted). Finally, Searbro must show that Hudson acted with deliberate indifference to Rummer’s serious medical need. Farmer1, 511 U.S. at 835, 114 S.Ct. 1970. An officer can be held liable for deliberate indifference only where “the official knows of and disregards an excessive risk to inmate health or safety.” Id. at 837, 114 S.Ct. 1970; see Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir.2004) (citation omitted) *371(“[T]he evidence must show that the official in question subjectively recognized that his actions were ‘inappropriate in light of that risk.’ ”).
Turning to the facts at hand, we must first decide whether Rummer suffered from an objectively serious medical condition. Viewed in the light most favorable to Scarbro, Rummer hit the concrete floor head-first, screamed out in excruciating pain, and was bleeding above his eye. Rummer’s glasses were broken, he had urinated on himself, he was unable to speak coherently, and he was unable to walk. In view of this evidence, it is clear that Rummer had an objectively serious medical need after the takedown.
We now consider whether Hudson subjectively recognized Rummer’s serious medical need. After taking Rummer to the floor, Hudson observed that Rummer’s condition had seriously deteriorated. Because the substantial risk of harm to Rummer was so obvious, a jury could infer that Hudson knew that Rummer had a serious medical need. See Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Therefore, the district court erred in finding that Scarbro failed to provide sufficient evidence to show that Hudson knew that Rummer was at serious risk of head injury.
Finally, we turn to whether Hudson acted with deliberate indifference toward Rummer’s serious medical need. Nurse Barfield specifically asked Hudson if Rummer had fallen, and Hudson told her that he had not. Further, Hudson did not inform her how Rummer sustained his injuries or that he had used force against Rummer. Nurse Barfield’s question should have alerted Hudson to the importance of her knowing whether Rummer sustained any physical impact, whether or not his fall was caused by use of force. Nurse Barfield explained that if she had known about the takedown, she would have treated Rummer for a head injury (rather than for DTs) and immediately sent him to the Emergency Room. Evidence of Hudson’s misrepresentation of critical medical information requested by medical personnel is sufficient to raise a reasonable inference that he recognized that his response was inappropriate in light of Rummer’s serious medical need. See Parrish ex rel. Lee, 372 F.3d at 303. Therefore, we conclude that Scarbro provided sufficient evidence to raise a genuine issue of material fact as to whether Hudson was deliberately indifferent to Rummer’s serious medical need.
Having determined that there is sufficient evidence of a constitutional violation as to the inadequate medical care claim, we must now consider whether Hudson is entitled to qualified immunity. See Pearson v. Callahan, 555 U.S. ---, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009). Qualified immunity is resolved using a two-prong analysis: whether the plaintiff provided sufficient facts to make out a constitutional violation and whether the right at issue was clearly established at the time of the alleged violation. Id. Having found that Scarbro has met her burden as to the first prong, we must now determine whether Hudson’s alleged misconduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Hudson bears the burden proving that the right at issue here was not clearly established. Henry, 501 F.3d at 378.
A right is clearly established where it has been specifically identified so “as to leave no doubt that the challenged action was unconstitutional.” Swanson v. Powers, 937 F.2d 965, 969 (4th Cir.1991). “This is not to say that an official action is protected by qualified immunity unless the *372very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal quotation marks omitted). Thus, in determining whether a right was clearly established, the key issue is “whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 194-95, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
We have denied qualified immunity to an officer who transferred custody of a detainee to another officer without informing the officer that the detainee was suicidal. See Gordon v. Kidd, 971 F.2d 1087, 1096-97 (4th Cir.1992). The misconduct in the instant case is even more egregious than that in Gordon because Hudson misrepresented critical medical information that was specifically asked for by medical personnel, and a reasonable inference from this inquiry is that the requested information was necessary to properly treat Rummer’s injuries. Unlike Gordon, where the officer failed to offer information, Hudson affirmatively misrepresented relevant medical information. No reasonable officer could have believed, in light of clearly established law, that such a misrepresentation was lawful under these circumstances. Therefore, Hudson is not entitled to qualified immunity.
III.
For the foregoing reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
. Scarbro later filed another complaint that alleged essentially identical claims against different parties. These cases were thereafter consolidated.
. Scarbro subsequently filed a stipulation of dismissal as to her claims against other Health Department defendants.
.Scarbro raises five issues on appeal, but only two merit discussion. The plaintiff's remaining arguments on appeal are without merit. As to those issues, we affirm substantially on the reasoning of the district court. Scarbro v. New Hanover County, No. 7:03-CV-244-FL(1) (E.D.N.C. May 8, 2008).
. The district court also stated that Hudson is entitled to qualified immunity but, because it found no constitutional violation, it did not fully analyze Hudson's claim of qualified immunity. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479267/ | 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/8479169/ | 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/8479171/ | 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/8479172/ | SUMMARY ORDER
Plaintiffs-Appellants appeal from the district court’s opinion and order dismissing their complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.
We review de novo a district court’s dismissal for failure to state a claim. S. Cherry St., LLC v. Hennessee Group LLC, 573 F.3d 98, 103 (2d Cir.2009). We also assume all well-pleaded factual allegations are true and, applying that assumption, determine whether complainants are entitled to relief. Id. at 104; see also ECA, Local 131 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir.2009). “Any complaint alleging securities fraud must satisfy the heightened pleading requirements of the [Private Securities Litigation Reform Act (the “PSLRA”) ] and Fed.R.Civ.P. 9(b) by stating with particularity the circumstances constituting fraud.” Id. (citing Tellabs, Inc. v. Makor Issues & Rights, *85Ltd., 551 U.S. 308, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)). Even though “ ‘we normally draw reasonable inferences in the non-movant’s favor on a motion to dismiss,’ the PSLRA ‘establishes a more stringent rule for inferences involving scienter’ because the PSLRA requires particular allegations giving rise to a strong inference of scienter.” Id. (quoting Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 194 (2d Cir.2008)); see also Tellabs, 551 U.S. at 314, 127 S.Ct. 2499 (“To qualify as ‘strong •within the intendment of [the PSLRA], we hold, an inference of scienter must be more than merely plausible or reasonable — it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.”).
Section 10(b) of the Securities Exchange Act of 1934 makes it illegal “for any person, directly or indirectly, ... [t]o use or employ ... any manipulative or deceptive device” in connection with a sale or purchase of securities. 15 U.S.C. § 78j. Its corollary, Rule 10b-5, makes it illegal “[t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” 17 C.F.R. § 240.10b-5(b).
The appellants argue that Axonyx and the individual appellees violated § 10(b) and Rule 10b-5 by presenting artificially positive statements about the first Phase III trial of the Alzheimer’s drug Phense-rine. The purpose of these statements, appellants allege, was to inflate the stock price of Axonyx in order to profit Axonyx’s owners to the detriment of the stockholders. The district court determined, however, that appellants failed to allege sufficient specific facts to state a claim that appellees purposely misled investors regarding Phenserine and the likelihood it would be successful as a drug to treat Alzheimer’s. In particular, the complaint failed to raise a strong inference of scien-ter on the part of the defendants. We agree.
Although appellants argue that, rather than accepting the arguments as true, Judge Griesa dismissed the complaint because he was skeptical of them, his opinion states clearly that “the court will accept as true the allegations about defects in the Phase III trials.” The decisive point for Judge Griesa remained “that there [wa]s no sufficient pleading of scienter regarding the so-called defects” in the Phase III trial. As Judge Griesa noted throughout his decision, appellants rely on opinions of confidential witnesses to support their allegations, but they fail to offer any factual underpinnings for those opinions. Ultimately, Judge Griesa determined, and we agree, that any inference in the complaint of scienter is less compelling that any opposing inference that Axonyx’s trial of Phenserine was merely unsuccessful. See Tellabs, 551 U.S. at 314, 127 S.Ct. 2499.
After reviewing the issues on appeal and the record of proceedings below, we affirm for substantially the reasons articulated by the district court in its thoughtful and well-reasoned order and opinion.
Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479175/ | SUMMARY ORDER
Defendants-appellants Lee Blue and Ricky Blue (“defendants”) appeal from the District Court’s judgments dated December 12, 2008 and January 6, 2009, respectively.1 Both challenge only their *228sentences. We briefly recount the post-conviction procedural history of their cases, but we assume the parties’s familiarity with the remaining factual and procedural history.
Defendants were convicted of various crimes in 2002 related to their participation in a drug distribution enterprise. Ricky Blue was sentenced to a term of life imprisonment for engaging in a Continuing Criminal Enterprise in violation of 21 U.S.C. § 848. Lee Blue was sentenced to 228 months’ imprisonment for distributing 5 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1). Both appealed to this Court, with Lee Blue challenging only his sentence and Ricky Blue challenging both his conviction and sentence. In a summary order dated June 1, 2005, we affirmed Ricky Blue’s conviction but, in light of the Supreme Court’s intervening decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we remanded both sentences for further proceedings pursuant to our opinion in United States v. Crosby, 397 F.3d 103 (2d Cir.2005). See United States v. Givens (Givens I), — Fed.Appx. -, 2005 WL 1317015 (2d Cir.2005).
On remand, the District Court determined that its original sentences would not “have been nontrivially different under the post -Booker [ ] regime,” Crosby, 397 F.3d at 119, and, accordingly, declined to vacate its original sentences. Defendants again appealed to this Court.
In a second summary order dated July 18, 2008, we concluded that the District Court erred in imposing a mandatory life sentence on Ricky Blue pursuant to 21 U.S.C. § 848(b) because “critical statutory factors” had been found by the judge, not the jury. United States v. Givens (Givens II),-Fed.Appx.-, 2008 WL 2796341, at *3 (2d Cir.2008). We therefore vacated Ricky Blue’s sentence and remanded for resentencing under 21 U.S.C. § 848(a).
We also remanded Lee Blue’s sentence in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and pursuant this Court’s decision in United States v. Regalado, 518 F.3d 143 (2d Cir.2008). Regalado adopted Crosby’s procedure of remanding sentences to allow the District Court (1) to consider whether it would have imposed a different sentence in light of intervening Supreme Court precedent, and, (2) if so, to vacate the original sentence and resentence the defendant. See Regalado, 518 F.3d at 149. Although we indicated that we were remanding Lee Blue’s sentence “pursuant to” Regalado, our summary order “vacated” his original sentence and remanded the case “for full re-sentencing.” Givens II, 2008 WL 2796341, at *1, *3. Thus, despite purporting to remand “pursuant to” Rega-lado, we did not, in fact, follow the procedure set forth in Regalado and Crosby.
On remand for the second time, the District Court resentenced Ricky Blue to 360 months’ imprisonment, which was at the high end of the sentencing range prescribed by the United States Sentencing Guidelines (“Guidelines”). At Lee Blue’s resentencing hearing, the District Court construed our (admittedly unclear) summary order as having vacated Lee Blue’s sentence, even though that was “somewhat at odds with the Regalado case.” Gov’t App. 33-34. At the conclusion of the proceedings the District Court stated as follows:
The Court having considered the Rega-lado decision and the sentencing factors set forth in 18 U.S.C. Section 3553 ... [a]nd its overall charge to impose a sen*229tence sufficient but not greater than necessary to comply with those requirements is vacating, to the extent it needs to, the original sentence, and is resen-tencing Mr. Leander Blue, Lee Blue, to 168 monthsf] incarceration.
Id. at 51. Despite resentencing Lee Blue, the District Court never ordered a new presentence investigative report (“PSR”) and did not give Lee Blue the opportunity to address the Court at his sentencing hearing.
I. Ricky Blue’s Sentence
On appeal Ricky Blue argues that his sentence was (1) substantively unreasonable in light of his advanced age and the sentences received by similarly situated co-defendants, and (2) procedurally unreasonable because the District Court did not fully appreciate its authority to impose a non-Guideline sentence for crack cocaine offenses.
We find no substantive error in the District Court’s decision to impose a sentence of 360 months’ imprisonment. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (noting that we will “set aside a district court’s substantive determination only in exceptional eases where the trial court’s decision cannot be located within the range of permissible decisions”); see also United States v. Rigas, 583 F.3d 108, 123 (2d Cir.2009) (explaining that substantive unreasonableness is akin to the “manifest-injustice,” and “shocks-the-conscienee” standards employed in other contexts). The District Court carefully considered the 18 U.S.C. § 3553 factors, including Ricky Blue’s age, but concluded that they did not warrant a lower sentence. With respect to disparity, the District Court noted that Ricky Blue’s most comparable co-defendant was Timothy Givens, and that Givens had actually received a greater sentence. Cf. United States v. Fernandez, 443 F.3d 19, 28 (2d Cir.2006) (“[W]e hold that ... a disparity between non-similarly situated co-defendants is not a valid basis for a claim of error under 18 U.S.C. § 3553(a)(6).”). We find no error in the District Court’s analysis and therefore conclude that Ricky Blue’s sentence is not substantively unreasonable.
We also find no procedural error in the District Court’s sentence. The District Court fully understood that, under Kimbrough, it could vary from the Guidelines because of the disparity between the recommended sentences for crack cocaine offenses and powder cocaine offenses. It concluded, however, that the crack-to-powder disparity had no impact on Ricky Blue’s sentence based on the large amount of powder cocaine that was also attributable to him.
In sum, Ricky Blue’s sentence is neither substantively nor procedurally unreasonable. Accordingly, we affirm the District Court’s judgement with respect to Ricky Blue.
II. Lee Blue’s Sentence
Lee Blue advances a number of arguments on appeal including (1) that his sentencing counsel was ineffective for failing to make certain objections to the Guidelines calculations at his resentencing, (2) that the District Court erred in determining the quantity of drugs attributable to him, and (3) that the District Court erred in not ordering a new PSR and in denying Lee Blue the opportunity to speak at his sentencing. We conclude that a remand is required for the District Court to conduct a full resentencing in accordance with our July 18, 2008 order.
As noted above, our July 18, 2008 summary order remanding Lee Blue’s case for further proceedings was far from clear. Ordinarily, when we remand a sentence *230pursuant to Regalado, the decision to vacate the original sentence is left to the District Court. See 518 F.3d at 149. In this case, however, we vacated the original sentence and remanded pursuant to Rega-lado. Moreover, we ordered a “full re-sentencing” for Lee Blue. See Givens II, 2008 WL 2796341, at *1, *3.
Although remands based on a “specific sentencing error” are not ordinarily subject to a full resentencing, “we must look to both the specific dictates of the remand order as well as the broader spirit of the mandate” to determine the proper scope of proceedings on remand. United States v. Quintierl, 306 F.3d 1217, 1227 (2d Cir.2002) (internal quotation marks omitted). Here, the remand order explicitly provided that Lee Blue’s sentence was vacated and required the District Court to conduct a “full re-sentencing.” Givens II, 2008 WL 2796341, at *1, *3 (emphasis added). Thus, despite the ordinary procedure called for by Regalado, we conclude that the District Court was required to comply with the specific terms our July 18, 2008 order and conduct a full resentencing of Lee Blue.
We therefore remand for a full resen-tencing in accordance with our July 18, 2008 order. Such resentencing shall be preceded by the preparation of a new PSR, see Fed.R.Crim.P. 32, and Lee Blue shall be given the opportunity to address the Court at the sentencing hearing, see Fed.R.Crim.P. 32(i)(4). In light of our decision to remand for a full resentencing we do not reach Lee Blue’s remaining arguments.
CONCLUSION
In accordance with the foregoing we AFFIRM the District Court’s judgment with respect to Ricky Blue. With respect to Lee Blue, we REMAND the cause for full resentencing consistent with this order.
. Although defendants' initial notices of appeal were not timely, the government has waived any objection to untimeliness. See *228United States v. Frias, 521 F.3d 229, 234 (2d Cir.2008) (holding that Fed. R.App. P. 4(b) is not jurisdictional and that the government may waive objection to an untimely appeal). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479176/ | OPINION
PER CURIAM.
Wallace Harden, proceeding pro se and in forma pauperis, sued various employees and officials of the Delaware Correctional Center and the State of Delaware. Screening Harden’s amended complaint pursuant to 28 U.S.C. § 1915A, the District Court dismissed the claims against most of the defendants as frivolous and for failure to state a claim. The only remaining claims were claims of retaliation against two defendants. After a considerable period of time for discovery, those two defendants moved for summary judgment. Initially, in response, Harden sought to amend his complaint and twice requested that counsel be appointed for him. When the District Court denied his requests, he responded to the defendants’ motion. The District Court then granted the defendants’ motion and entered judgment in their favor. Harden appeals.
*237We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the orders dismissing Harden’s claims and granting summary judgment is plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000); Abramson v. William Paterson College, 260 F.3d 265, 276 (3d Cir.2001). We review the . order denying leave to amend and the order denying the requests for appointment of counsel for abuse of discretion. See Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir.2004); Tabron v. Grace, 6 F.3d 147, 157-58 (3d Cir.1993). Upon review, we conclude that Harden’s appeal must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)® because it has no arguable basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
As the parties are familiar with the facts (which the District Court twice set forth at length), we will refer to them only as necessary to our analysis. We need not repeat all of the allegations to conclude, as the District Court did, that Harden did not state a claim under the statutes he mentioned at the beginning of his complaint, namely the Americans with Disabilities Act, the Civil Rights Act of 1991, or the Handicap Persons Employment Protection Act. And it is the absence of allegations against Defendants Attorney General Brady, Carl Danberg, K. Hazzard, and James Porter that supported the dismissal of claims against those defendants.
Furthermore, as the District Court concluded, Harden did not state a claim again Lisa Merson or Kenneth Milborne by alleging merely that they provided information to him. Nor did he state a claim against defendants Governor Minner, Commissioner Taylor, Warden Carroll, Deputy Warden Burris, Tommy Young, Jim Fritz, J. Lupinetti, Ron Drake, Sheryl Morris, H. Legates, Paul Downing, and Jay Wingle based on his theory of respon-deat-superior liability, see Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988), or otherwise. Harden also did not allege a constitutional violation through his claim of verbal abuse and harassment by Phillis Helper. See, e.g., Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.1987) (stating that not every unpleasant experience a prisoner faces, like verbal abuse or harassment, constitutes cruel and unusual punishment). In the absence of a constitutional violation, Harden’s related conspiracy claim against defendants Fritz, Young, Morris, Legates, Downing, and Wingle also failed. See Williams v. Fedor, 69 F.Supp.2d 649, 655 (M.D.Pa.1999) (quoting Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir.1999), to note the requirement of an actual violation of a protected right to state a cause of action).
At the summary judgment phase, Harden sought to renew some of his claims that the District Court dismissed on screening, but the District Court did not allow him to amend his complaint again. Leave to amend should be granted unless amendment is futile or inequitable. See Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir.2002). Undue delay, bad faith, and dilatory motive on the part of the plaintiff and prejudice to the defendant suggest inequity. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.2000). In this case, the proposed amendment was based on information Harden knew about before he filed his case but that he submitted after considerable delay (two-and-a-half years after the defendants’ answer) and after the defendants moved for summary judgment. The District Court did not abuse its discretion by denying the request to amend the already amended complaint in light of the delay and prejudice to the defendants in this case.
After the defendants filed their motion for summary judgment on the remaining retaliation claims, Harden also requested *238that counsel be appointed to represent him. To decide whether to appoint counsel, a court must, as a threshold manner, determine whether a claim has arguable merit in fact and law. See Tabron, 6 F.3d at 155. If a claim has some merit, then a court must evaluate additional factors. See id. at 156-57. The District Court did not abuse its discretion in denying Harden’s requests for counsel. The District Court identified and weighed the appropriate considerations. Furthermore, under the circumstances of this case, at the point that Harden sought counsel, his retaliation claims did not have arguable merit. The defendants’ motion for summary judgment was based in part on Harden’s own deposition testimony, which completely undermined his claim.
In light of the facts which the defendants presented (opposed by Harden only by the argument that he should have been represented by counsel at his deposition), the District Court properly granted summary judgment in favor of the defendants. To prevail, Harden had to prove that the conduct that led to the alleged retaliation was constitutionally protected. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001). He needed also to show that, at the hands of prison officials, he suffered some adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights. See id. He also had to prove that his constitutionally protected conduct served as a substantial or motivating factor for the adverse action. See id. The defendants could rebut by showing by a preponderance of the evidence that they would have taken the adverse action even in the absence of the protected activity. See id.
As the District Court concluded, even if Harden could meet his burden under the Rauser framework, the defendants presented unopposed facts (including Harden’s deposition testimony and letters he had written) to prove that they would have taken the adverse action anyway and terminated him from his employment with the prison food service. They provided evidence supporting their legitimate penological reasons for their action, namely that Harden violated orders, had problems with the kitchen staff, believed that staff and inmates were “out to get him,” and had difficulty accepting authority.
For the reasons given above, the District Court properly entered judgment in favor of the defendants. Because this appeal has no arguable basis in fact or law, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B)®. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479179/ | OPINION
PER CURIAM.
Appellant Pedro Rondon, a pro se prisoner, appeals from an order of the District Court granting summary judgment in favor of Defendants. For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.
In July 2007, Rondon commenced a civil rights action under 42 U.S.C. § 1983 in the United States District Court for the District of New Jersey against Defendants Passaic County Jail and Sheriff Jerry Speziale. Rondon claims that while he was temporarily imprisoned at the Passaic County Jail, from June 1998 until October 1998, Defendants failed to provide him with clean underwear, which caused him to contract a fungal infection in the area of his groin. He further claims that Defendants failed to provide him with proper medical care in order to treat the infection, causing permanent injury.
At the close of discovery, the parties filed cross-motions for summary judgment. Defendants argued that Rondon’s § 1983 claims were time-barred and should be dismissed on that basis. Upon review, the *240District Court concluded that Rondon’s claims were barred by the applicable statute of limitations and granted summary judgment in favor of Defendants. Rondon filed a timely appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a District Court’s grant of summary judgment de novo. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). Summary judgment is proper only if it appears “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Carrasca v. Pomeroy, 313 F.3d 828, 832-33 (3d Cir.2002). If a motion for summary judgment demonstrates that no genuine issue of material fact exists, the nonmoving party must set forth specific facts showing a genuine material issue for trial and may not rest upon the mere allegations or denials of its pleadings. Connors v. Fawn Mining Corp., 30 F.3d 483, 489 (3d Cir.1994).
We agree with the District Court’s analysis regarding the timeliness of Rondon’s claims. While 42 U.S.C. § 1983 does not set forth a limitations period, “federal courts must look to the statute of limitations governing analogous state causes of actions.” Urrutia v. Harrisburg County Police Dep’t, 91 F.3d 451, 457 n. 9 (3d Cir.1996). Here, as the District Court noted, the applicable statute of limitations is that governing personal injury claims in New Jersey. See Wallace v. Koto, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Therefore, Rondon had two years from the time his cause of action accrued in which to file his complaint. See N.J. Stat. Ann. § 2A:14-2. A § 1983 cause of action accrues on the date when a plaintiff knew or should have known his rights had been violated. See Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir.1991). Under this rule, “[t]he cause of action accrues even though the full extent of the injury is not then known or predictable.” Wallace, 549 U.S. at 391, 127 S.Ct. 1091.
Rondon contracted his infection during his June 1998 to October 1998 stay at Passaic County Jail. The first time that a doctor inspected and prescribed treatment for his infection was in October 1998, when he was transferred to a different facility. Thus, he knew, or had reason to know, of the existence of an infection by October 1998 at the latest. However, Rondon did not file a complaint until July 2007, when a physician informed him at that time that he would suffer permanent scarring in the infected area.
We agree with the District Court that while that information is regrettable, it does not change the date on which Ron-don’s claim accrued. As the District Court appropriately summarized, “[i]n October 1998, Rondon knew that he had an infection; that the infection was allegedly caused by dirty clothes issued to him; and that Passaic County Jail had not provided him with a physical examination ... [e]ven if Rondon misjudged the severity of his injury at the time, he did have enough medical information to know that he had sustained an injury.” (See Dist. Ct. Opinion at 6.) Accordingly, we agree with the District Court that Rondon’s claims are time-barred. Summary judgment was therefore appropriate.
As Rondon’s appeal presents no substantial question, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479181/ | OPINION
PER CURIAM.
Rasheed Nifas, a prisoner housed at the Fayette State Correctional Institution in Pennsylvania (“SCI-Fayette”), appeals from the order of the United States District Court for the Western District of Pennsylvania granting summary judgment for the defendants and dismissing his civil rights complaint alleging, among other things, his wrongful placement in administrative custody (“AC”) and on the restrict*243ed release list (“RRL”) in 2007 and 2008.1 Because we conclude that no substantial question is presented on appeal, we will summarily affirm. See LAR 27.4 and I.O.P. 10.6.
Nifas is serving a life sentence without eligibility for parole. During his first eight years in prison, Nifas received thirty-two misconducts and eleven orders directing his “separation” from two inmates and five staff (four of whom are females). He was transferred from SCI-Dallas to SCI-Fayette in May 2006 because of his harassment of three female staff there.
In September 2006, Nifas was placed in AC for three days pending investigation of Defendant Debra Mahlmeister’s complaint that he had given her an inappropriate inmate request slip. In October 2006, Ni-fas filed a grievance (No. 165820) against Mahlmeister. From November 2006 to August 2007, Nifas bounced in and out of the general population, with short-term placements in AC and disciplinary confinement.2 Immediately following his release from disciplinary custody in August 2007, and after a hearing, the prison placed Ni-fas in AC because he posed a risk to himself and others. The prison also sought a transfer to another facility. SCI-Fayette’s transfer petition was denied in January 2008. Thereafter, Secretary Beard approved the prison’s request to have Nifas placed on the RRL. Nifas’s RRL status began in April 2008.
Nifas’s Complaint, filed on June 16, 2008 (the date he signed the Complaint), alleged that the defendants retaliated against him for the grievance he filed in 2006 regarding defendant Mahlmeister. Specifically, he asserted that the defendants lodged three false misconduct charges for various infractions of prison rules and orchestrated his placement in AC and on the RRL at SCI-Fayette based on false allegations that he harassed female staff. He also claimed that the defendants denied him procedural due process, access to the courts while in AC, and privileges that similarly situated inmates had received in AC. He alleged further that his confinement in AC constituted cruel and unusual punishment because it exacerbated his documented serious psychiatric condition, and that the defendants wrongfully denied him the right to practice his Muslim religion in AC. He claimed violations of the First, Eighth and Fourteenth Amendments (Equal Protection and Due Process) and of the Religious Freedom Restoration Act (“RFRA”) and the Religious Land Use and Institutionalized Persons Act (“RLUI-PA”). He sought damages and an order directing the defendants to release him to a general population unit at SCI-Fayette.
Following discovery, the defendants filed a joint motion for summary judg*244ment, claiming that most of Nifas’s claims were not exhausted and that his claims were meritless in any event. Nifas responded and filed his own motion for summary judgment. The Magistrate Judge granted summary judgment for the defendants, holding that the access to the courts, retaliation, equal protection, and Eighth Amendment claims were both unexhausted and meritless and that Nifas failed to exhaust his First Amendment religious exercise and RFRA/RLUIPA claims. By order entered September 30, 2009, the Magistrate Judge granted summary judgment in the defendants’ favor and denied all pending motions, including Nifas’s summary judgment motion. On October 6, 2009, the Magistrate Judge denied Nifas’s motion for Rule 11 sanctions against the defendants. This timely appeal followed.3
Nifas argues that he exhausted his claims, listing all of the grievances he filed concerning his access to the courts, retaliation, equal protection, and procedural due process claims. (See “Memorandum in support of appeal,” at 2-4.)4 Assuming, arguendo, that these claims are exhausted, we agree with the Magistrate Judge’s reasoning and conclusion that the claims lack merit. The fact that Nifas’s civil rights complaint was delayed by 120 days does not amount to the kind of actual injury required to make out a denial of access to the courts claim. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Nifas’s history of misconducts and problems with female staff members both before and after he arrived at SCI-Fayette was more than sufficient to show that his placement in AC and on the RRL served a legitimate penological interest and that it would have occurred regardless of any retaliatory motive. See Rauser v. Horn, 241 F.3d 330, 334 (3d Cir.2001). Nifas’s retaliatory discipline claim fails because there is “some evidence” supporting the guilty findings for the three disciplinary charges brought against Nifas after he filed his grievance in October 2006. See Henderson v. Baird, 29 F.3d 464, 469 (8th Cir.1994) (stating that a finding of “some evidence” to support a prison disciplinary determination “checkmates” the prisoner’s retaliation claim). As for his procedural due process claim, confinement in AC for 178 days and a 90-day placement on the RRL does not amount to an “atypical and significant hardship” when compared to the ordinary incidents of prison life, and thus, Nifas has no protected liberty interest.5 See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Griffin v. Vaughn, 112 F.3d 703, 706 & n. 2 (3d Cir.1997). In any event, Nifas received all of the process he was due. Prior to the initiation of this lawsuit, the Program Review Committee (“PRC”) had conducted hearings regarding Nifas’s AC status on August 16, 2007, February 7 and April 10, 2008, and had reviewed his RRL status on April 10, 2008. Nifas’s equal protection claim also lacks merit. *245Nifas failed to demonstrate that the inmates who had submitted affidavits were similarly situated to him as there is no evidence that the inmates shared similar institutional histories.
The Magistrate Judge correctly determined that the Eighth Amendment claim is not exhausted. There is no grievance in this record, and Nifas does not point to any, in which he complained about the deleterious effect of his confinement in AC on his psychological condition. In any event, the claim was properly dismissed on its merits. As the Magistrate Judge observed, the “Individual Treatment Plan” for Nifas dated October 15, 2007, stated that he was in long-term placement in AC and listed treatment objectives while he was there. (See Defendants’ appd’x to summary judgment motion, Exh. 1 at 9.) Nothing in the Plan indicated that Nifas’s mental health would be seriously affected by such confinement. Thus, no reasonable juror could conclude from the record evidence that AC placement posed a substantial risk of serious harm to Nifas or that the defendants were deliberately indifferent to his psychological condition.
That leaves the religious exercise and RFRA/RLUIPA claims, which were dismissed for non-exhaustion. Proper exhaustion requires that an inmate proceed through all available steps in the administrative review process, and that the inmate do so in accordance with established deadlines and procedural rules so that the reviewing body can address the issues raised. See Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). An inmate cannot satisfy the PLRA by completing the prison grievance process during the pendency of the District Court proceeding. See e.g., Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir.2003) (holding that “the district court must look to the time of filing, not the time the district court is rendering its decision, to determine if exhaustion has occurred. If exhaustion was not completed at the time of filing, dismissal is mandatory”). It is clear from Nifas’s own representations and submissions that he filed a grievance regarding the denial of his right to practice his Muslim faith (Grievance No. 232345) on the day he filed his Complaint. Accordingly, because exhaustion was not completed by the commencement date of the lawsuit, the Magistrate Judge properly granted summary judgment and dismissed the religious exercise and RFRA/RLUIPA claims for failure to comply with 42 U.S.C. § 1997e(a). The dismissal of these claims, of course, is without prejudice.
For these reasons, we will summarily affirm the District Court’s judgment as modified to reflect the dismissal without prejudice of Nifas’s religious exercise and RFRA/RLUIPA claims.
. The RRL is a list of inmates who may only be released from AC status upon prior approval of the Secretary. An inmate may be placed on RRL "when he/she poses a threat to the secure operation of the facility and where a transfer to another facility or jurisdiction would not alleviate the security concern.” The Secretary must approve the designation of the inmate to the RRL. See DC-ADM 802, § l.B, p. 1-2 and § 4.B, p. 4-2.
. Notably, he was disciplined for possession of an 11-inch piece of steel in November 2006, for disobeying an order on July 13, 2007, and for threatening a female counselor on October 3, 2007. The prison placed Nifas in AC for about eleven days in June 2007, pending an investigation of a charge that he made two inappropriate comments to two female staff members. On July 13, 2007, he was back in AC pending investigation of another complaint by a different female staff member concerning an inappropriate comment Nifas made to her about a letter he wanted to send her. He attempted suicide in AC on July 13, the same day he was disciplined. Nifas requested a transfer to another facility in August 2007.
.We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Although Nifas argues that the Magistrate Judge lacked authority to enter judgment in his case, the record indicates otherwise. Pursuant to 28 U.S.C. § 636(c)(1), both Nifas and the defendants, on June 16 and December 10, 2008, respectively, voluntarily consented to have the Magistrate Judge conduct any and all further proceedings in the case, including trial and entry of final judgment.
. Nifas does not claim that he exhausted his Eighth Amendment, religious exercise and RFRA/RLUIPA claims.
. We express no opinion as to whether Nifas's continued confinement in AC and on the RRL after June 16, 2008, gives rise to a protected liberty interest. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479183/ | OPINION
PER CURIAM.
Angel Maria DeJesus, a federal inmate in Pennsylvania, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Western District of Pennsylvania, claiming that the Bureau of Prisons (BOP) erred in refusing to designate nunc pro tunc a state correctional facility for service of his federal sentence so that DeJesus “could gain credit against his federal sentence.” Ptn. at 2. The District Court adopted a Magistrate Judge’s Report and Recommendation and denied the petition. DeJe-sus timely filed this appeal. We have appellate jurisdiction under 28 U.S.C. § 1291. We will summarily affirm because this appeal presents “no substantial question.” 3d Cir. IOP Ch. 10.6 and L.A.R. 27.4.
The essential facts are not in dispute. On July 17, 2003, DeJesus was arrested in New York for a drug possession offense, and later sentenced by a New York court to 3 to 6 years in prison. On September 16, 2005, while serving the state sentence, DeJesus was indicted in the United States District Court for the Southern District of New York on a charge of illegal reentry after deportation. On September 29, 2005, pursuant to a writ of habeas corpus ad prosequendum, DeJesus was taken into federal custody for processing of the federal charge.1 On May 5, 2006, after entry of a guilty plea, the federal court imposed a sentence of 57 months in prison, to run concurrently with the state sentence. The BOP has run the federal sentence from its date of imposition (May 5, 2006).
On May 25, 2006, DeJesus was returned to state custody. He was then paroled from the state sentence on September 8, *2472006, and transferred to federal custody to complete serving the federal sentence. The record indicates that, with full good conduct time credit, DeJesus’ projected date to complete the federal sentence is June 26, 2010, at which time he will be released to the Bureau of Immigration and Customs Enforcement.
DeJesus claims that the BOP erred in refusing his request to credit his federal sentence for all the time that he served in state prison prior to imposition of the federal sentence (i.e., July 17, 2003, through September 29, 2005). He argues that nunc pro tunc designation of the state prison for service of the federal sentence is required to remedy the additional time that he claims to have spent in state custody due to the purported delay in bringing the federal prosecution for illegal reentry. Furthermore, he argues that he would have been eligible for parole on the state sentence on November 15, 2005, but that his ability to complete the requirements for parole were delayed when he was taken into federal custody on the writ in September 2005.
Distinguishing Barden v. Keohane, 921 F.2d 476 (3d Cir.1990), and the other cases relied upon by DeJesus, the Magistrate Judge found that the BOP did not err in refusing to afford “double credit” for time that DeJesus served in state custody prior to imposition of the federal sentence, as that time was credited to the state sentence. We agree.
When, as here, a federal district court expressly states that its sentence is to run concurrently with a state sentence,2 the BOP will deem the federal sentence to commence on the date imposed, see 18 U.S.C. § 3585(a), and it will designate the state institution as the place for service of the federal sentence. See 18 U.S.C. § 3621(b). The BOP properly followed that course here and began DeJesus’ federal sentence on its date of imposition, thereby allowing him to serve the state and federal sentences concurrently from May 5, 2006, forward. But DeJesus was not entitled to credit for time served in state custody prior to imposition of the federal sentence.
It is undisputed that all of DeJesus’ time served prior to imposition of the federal sentence was credited to his state sentence. Under 18 U.S.C. § 3585(b), the BOP may not grant prior custody credit for time credited to another sentence. See Rios v. Wiley, 201 F.3d 257, 274 (3d Cir.2000). Because DeJesus received credit on his state sentence, he cannot, as the Magistrate Judge fully explained, receive double credit.
DeJesus argues, nevertheless, that his situation is “exceptional” and warrants double credit under Willis v. United States, 438 F.2d 923 (5th Cir.1971), and Kayfez v. Gasele, 993 F.2d 1288 (7th Cir.1993). This Court has explained, however, that the reasoning in the “Willis/Kayfez line of cases” does not permit federal credit for time served “after the state sentence was imposed but before .the federal sentence was pronounced.” Rios, 201 F.3d at 273 n. 13. DeJesus has not shown that his situation presents any circumstance indicating that the BOP misapplied the controlling statutes in refusing to award double credit.
For these reasons, we will affirm the District Court’s judgment.
. A writ of habeas corpus ad prosequendum “merely 'loans’ the prisoner to federal author-¡ties." Rios v. Wiley, 201 F.3d 257, 275 (3d Cir.2000).
. The judgment in DeJesus’ federal case imposed a term of imprisonment of “57 months to run concurrent with the state sentence the defendant is currently serving.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479185/ | OPINION
ROTH, Circuit Judge:
Ruth Koronthaly appeals from the District Court’s order granting defendant Procter & Gamble Company’s (“P & G”) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of standing and defendant L’Oreal USA, Inc.’s (“L’Oreal”) motion to dismiss pursuant to Rule 12(b)(6). We exercise plenary review over a grant of a motion to dismiss for lack of standing and review the factual elements underlying the standing determination for clear error. Goode v. City of Phila., 539 F.3d 311, 316 (3d Cir.2008). The burden of proving each standing element rests with the plaintiff. Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir.2005). We assume the parties’ familiarity with the factual and procedural history, which we describe only as necessary to explain our decision. We will affirm the District Court’s order.
Koronthaly purchased lipstick products manufactured, marketed, and distributed by appellees L’Oreal. and P & G. These lipstick products contain lead. The FDA does not regulate the presence of lead in lipstick, but Koronthaly asserts that the lipstick contains lead in far greater amounts than permitted in candy by the FDA. Neither the packaging nor the products themselves contained any indication that the lipstick contained any lead.
Koi-onthaly did not know when she purchased the products that they contained any lead, and when she learned of the lead content she immediately stopped using them. Moreover, had she known of the lead she would not have purchased the products.
In November 2007, Koronthaly filed a class action complaint in the District Court for the District of New Jersey. She invoked the District Court’s jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). After it was amended in March 2008, her complaint asserted claims for: (1) violation of the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1 et seq.; (2) breach of implied warranty under the New Jersey UCC; (3) breach of implied warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(1); (4) strict liability; (5) negligence per se; (6) unjust enrichment; and (7) injunctive relief.
*259L’Oreal and P & G filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(1), respectively. On July 25, 2008, the District Court granted those motions, finding that Koronthaly lacked standing to pursue the action. On October 24, 2008, the District Court denied Koron-thaly’s motion for reconsideration, and her motion for leave to file a second amended complaint. Koronthaly then filed a timely notice of appeal.
To prove constitutional standing, Koron-thaly must demonstrate (1) an injury-in-fact that is actual or imminent and concrete and particularized, not conjectural or hypothetical, (2) that is fairly traceable to the defendant’s challenged conduct, and (3) is likely to be redressed by a favorable judicial decision. Summers v. Earth Island Inst. — U.S.-, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009). In this case, standing founders on the first requirement, injury-in-fact.
Koronthaly’s argument that she was misled into purchasing unsafe lipstick products is belied by the FDA’s report finding that the lead levels in the Defendants’ lipsticks were not dangerous and therefore did not require warnings. Moreover, Koronthaly concedes that she has suffered no adverse health effects from using the lipsticks. Koronthaly therefore has asserted only a subjective allegation that the trace amounts of lead in the lipsticks are unacceptable to her, not an injury-in-fact sufficient to confer Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (injury-in-fact must be accompanied by “continuing, present adverse effects”) (citation omitted); Georgine v. Amchem Prods., Inc., 83 F.3d 610, 636 (3d Cir.1996) (Wellford, J., concurring) (“Fear and apprehension about a possible future physical or medical consequence ... is not enough to establish an injury in fact.”).
Furthermore, to the extent that Koronthaly contends that the injury-in-fact was the loss of her “benefit of the bargain,” she mistakenly relies on contract law. See Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315, 319-21 (5th Cir.2002) (plaintiff, whose only claim was that she “would like her money back” for having purchased a product that failed to make certain disclosures and allegedly was defective, did not have an injury-in-fact sufficient to create standing). Her lipstick purchases were not made pursuant to a contract, and therefore she could not have been denied the benefit of any bargain. Absent any allegation that she received a product that failed to work for its intended purpose or was worth objectively less than what one could reasonably expect, Koronthaly has not demonstrated a concrete injury-in-fact.
For the foregoing reasons, we will affirm the order of the District Court granting the Defendants’ motions to dismiss. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479187/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Appellants Marsh & McLennan Companies, Inc., Marsh, Inc., Marsh USA Inc., Marsh USA Inc. (Connecticut), Mercer, Inc., Mercer Human Resource Consulting LLC, Mercer Human Resource Consulting of Texas, Inc., Seabury & Smith, Inc. (collectively “Marsh”) appeal from the final order and memorandum opinion of United States District Court for the District of New Jersey denying Marsh’s motion for a permanent injunction and granting Appel-*265lees’, Office Depot, Inc. (“Office Depot”), and Epix Holdings Corp., Epix I, Inc., and Epix II, Inc. (collectively “Epix”), motions to extend a class action “opt-out” deadline and to alter a judgment to exclude Appel-lees from the settlement class. For the reasons stated herein, we will affirm.
I.
We write exclusively for the parties who are familiar with the factual context and the legal history of the case. Therefore, we will set forth only those facts necessary to our analysis.
In 2004, several class action suits were filed against Mai’sh, other insurance brokers, and insurers for them participation in an alleged conspiracy that involved brokers bid rigging for insurance carriers in exchange for “contingent commissions,” or kickbacks. The class action suits were eventually consolidated into two dockets; the docket at issue in this appeal is In re Insurance Brokerage Antitrust Litigation, No. 04-5184, 2006 WL 2850607 (D.N.J. Oct. 3, 2006) (“MDL 1663”).
In MDL 1663, the District Court approved a class-wide settlement pursuant to Federal Rule of Civil Procedure 23(b)(3). In conjunction with the settlement approval, Marsh was required to send “opt-out” notices to all potential class members. These notices provided that potential class members would be included in the class action settlement unless they opted out of the class by the “opt-out” deadline. Both Office Depot and Epix failed to opt-out of the class prior to the deadline.
On February 17, 2009, the District Court issued a final judgment and order approving the class-wide settlement. Pursuant to this order, all members of the class released any and all claims against Marsh that could have been raised in the class action suit. As such, Marsh filed motions to enjoin Office Depot and Epix from pursuing their state court actions against Marsh. In response to Marsh’s motions to enjoin, Office Depot and Epix filed motions in the district court to extend the “opt-out” deadline and to modify the settlement class so that each could elect to be excluded from the class settlement.
The District Court concluded that Office Depot’s and Epix’s failure to meet the “opt-out” deadline was “excusable neglect.” The Court granted Appellees’ motions for an extension of the deadline and modification of the settlement class and denied Marsh’s motion to enjoin Appellees’ state court actions. This timely appeal followed.
II.
The District Court had jurisdiction over MDL 1663 pursuant to 28 U.S.C. §§ 1331, 1367. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 1292. This court reviews a “District Court’s modification of its own order establishing a deadline for abuse of discretion.” In re Cendant Corp. Prides Litig., 233 F.3d 188, 192 (3d Cir.2000). “We will not disturb an exercise of discretion ‘unless there is a definite and firm conviction that the court ... committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors.’ ” Id. (quoting Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir.1993)).
III.
The Supreme Court has recognized that, in certain circumstances, a party’s failure to comply with a filing deadline may be “excusable neglect.” Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In assessing what neglect is excusable, we are directed to consider four relevant factors: “(1) the danger *266of prejudice to the nonmovant; (2) the length of the delay and its potential effect on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith.” Id.; see also In re Orthopedic Bone Screw Prods. Liability Litig., 246 F.3d 315, 322-23 (3d Cir.2001). As the Supreme Court noted in Pioneer, “[in] determining what sorts of neglect will be excusable, we conclude that the determination is at the bottom an equitable one[.]” 507 U.S. at 395, 113 S.Ct. 1489.
Marsh contends that the District Court erred in finding that Appellees’ failure to meet the “opt-out” deadline was “excusable neglect.” Specifically, Marsh argues that the District Court erred by not giving dispositive weight to the supposedly “critical” third factor — the reason for delay. We disagree.
“In class actions, courts have equitable powers to manage the litigation in order to promote judicial economy and fairness to litigants.” De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 313 (3d Cir.2003). Where those equitable powers are exercised in the form of case management decisions in a complex class action, “district court discretion is at its greatest.” In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1210 (D.C.Cir.2003). In light of this deference to the District Court’s discretion, we believe that the District Court fairly and appropriately considered the relevant equitable factors. The Court noted that the prejudice to the nonmovant party was “minimal,” (Dist. Ct. Slip Op. at 7, 2009 WL 2255513); that “granting Epix and Office Depot’s motions will have little or no impact on future proceedings in MDL 1663[,]” (id. at 8); that Epix and Office Depot filed their motions “with all possible haste after receiving actual notice of the Settlement Agreement[,]” (id. at 9); and that the movants acted in good faith (id.). Consideration of these factors is properly an act of balancing; accordingly, we reject Marsh’s argument that any one factor is preeminent over the others. See In re O’Brien Envtl. Energy, Inc., 188 F.3d 116, 125 (3d Cir.1999) (“[T]he [Pioneer ] Court explicitly rejected the argument that excusable neglect applies only to those situations where the failure to comply is a result of circumstances beyond the [late filerjs control.”).
We therefore hold that the District Court exercised reasonable discretion in extending the “opt-out” deadline so that Office Depot and Epix could be excluded from the class settlement and thus pursue their state court litigation. In light of the deadline extension, and the subsequent removal of Office Depot and Epix from the settlement class, the District Court correctly denied Marsh’s motion for a permanent injunction barring Office Depot’s and Epix’s state court litigation.
IV.
For the foregoing reasons, we will affirm the order of the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479189/ | OPINION
SLOVITER, Circuit Judge.
Harry Berroa appeals his convictions of violating the Hobbs Act, 18 U.S.C. § 1951(a), and of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1). He also asserts that “the sentence [he received from the District Court] must be vacated.” Appellant’s Br. at 53. We will affirm in all respects.1
I.
In August 2006, Berroa and his half-brother, Jesse Dawson, entered a retail store in Philadelphia called the Appliance Factory armed with a handgun and demanded money from Frank Dush, the sole store employee. As Dush tried to escape, Berroa and Dawson tackled and beat him, discharged a firearm, took about $1,075 which Dush carried, and duct-taped Dush’s “whole body.” App. at 407.
Berroa and Dawson were apprehended that same day and thereafter charged with conspiracy to interfere with and interfering with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a) (the “Hobbs Act”), and knowingly using and carrying, and aiding and abetting in the use and carrying of, a firearm during and *269in relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1) (Count 3).2
After a trial in July 2007, the jury was unable to reach a verdict and the court declared a mistrial. Approximately two months later, Berroa was tried again for the same charges and was convicted by the jury on two of the three charges, but the District Court granted Berroa’s request for a new trial because it had erred in allowing the jury to have access to impermissible evidence.
After Dawson was captured, family members of both Berroa and Dawson retained two lawyers, Nino Tinari as counsel for Dawson and Eugene Tinari, his son, as counsel for Berroa. Dawson pled guilty and agreed to cooperate with the government.
Berroa maintained his innocence. He also sent the District Court at least two letters stating dissatisfaction with Eugene Tinari’s representation. Ten days before the third trial was to begin, the District Court held a pretrial conference at which Berroa responded in the negative when asked whether he was “ready to proceed with Mr. Tinari as [his] lawyer[.]” App. at 102. Berroa’s reluctance stemmed from disagreements with Tinari over whether and when to file motions challenging federal jurisdiction. Despite Berroa’s complaint that Tinari’s “heart just [wasn’t] into it,” App. at 111, the District Court said, “I don’t think Mr. Berroa has given me any good reasons ... not to proceed.” App. at 123.
The third jury convicted Berroa of violating the Hobbs Act and of using or carrying a firearm during and in relation to a crime of violence. He was sentenced to a total of 180 months — -fifty-four months for the Hobbs Act violation, 120 months for using a firearm during and in furtherance of a crime of violence, and six months for criminal contempt (arising from an outburst by Mr. Berroa during the trial). Berroa timely appealed.
II.
Berroa presses five principal challenges to his conviction and sentence, and makes two other claims which he concedes are foreclosed by binding precedent.
Berroa contends that the father-son relationship between his counsel and Dawson’s counsel led to a clear conflict of interest, and that, as a result, his conviction should be vacated and the matter remanded to the District Court. Berroa’s conflict of interest claim has two prongs, one being his assertion that the District Court should have inquired into a potential conflict and the other being that there was an actual conflict of interest. Considering first Berroa’s potential conflict of interest claim, Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), is dis-positive. In Mickens, the Court addressed precisely the same question at issue here: what remedy is available to the defendant “where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known.” Id. at 164, 122 S.Ct. 1237. The Court held that the defendant had no remedy for failure to inquire into the potential conflict of interest, id. at 170-73, 122 S.Ct. 1237, but that such a defendant would still have to show that an actual conflict of interest existed which adversely affected his counsel’s performance, id. at 174, 122 S.Ct. 1237 (“it was at least necessary, to void the conviction, for petitioner to establish that *270the conflict of interest adversely affected his counsel’s performance”).3 We thus reject Berroa’s contention that the District Court’s failure, sua sponte, to inquire into any potential conflict of interest entitles him to an automatic remand without the showing of any prejudice.
We are not in a position to decide Berroa’s claim of actual conflict. See generally Mickens, 535 U.S. at 171, 122 S.Ct. 1237 (defining “ ‘an actual conflict of interest’ ” as “a conflict that affected counsel’s performance”) (emphasis omitted). We have stated that such an issue is “better reserved for 28 U.S.C. § 2255 [habeas corpus] actions” rather than direct appeal, because “collateral review allows for adequate factual development of the claim.... ” United States v. Morena, 547 F.3d 191, 198 (3d Cir.2008). Berroa has “reserve[d] the right to pursue his conflict-of-interest claim via a § 2255 motion.... ” Appellant’s Reply Br. at 3 n.l.
Berroa next contends that his conviction must be reversed because the District Court violated his Sixth Amendment right to have the counsel of his choosing. He relies on the decision in United States v. Gonzalez-Lopez, where the Court held that a conviction must be reversed when it occurs after a trial in which the defendant was wrongfully denied his choice of counsel. 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). The Gonzalez-Lopez Court “accepted] th[e] premise” that the district court in that case erroneously denied respondent his choice of counsel. Id. There is no basis for a similar conclusion here.
In this case, Berroa’s request to change counsel came too late and was based on too little. “A last-minute request for substitution of counsel.... need not be granted unless ‘good cause’ is shown for the defendant’s dissatisfaction with his current attorney.” United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir.1995). “Good cause” is defined as “a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict with the attorney.” Id. (citing United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982)).
None of these existed here. As stated above, there was no evident conflict of interest at the pretrial conference and Berroa did not raise that issue until his appeal. Further, although Berroa complained three months before trial that he was “having grave difficulty contacting” Tinari, App. at 95, and two months before trial that Tinari was “not responding to [his] letters,” App. at 96, the record does not show a complete breakdown of communication. On the contrary, by the time of the pretrial conference, Berroa and Tinari had discussed their legal strategy, albeit taking different positions.
As to the “irreconcilable difference” consideration, Berroa’s disagreements with Tinari did not appear insuperable at the pretrial conference, as Tinari stated unequivocally that he could “effectively represent Mr. Berroa.” App. at 113-14. A dispute over strategy between a defendant and counsel is not by itself “good cause” for a last-minute substitution of counsel. Further, even though Tinari was reluctant to do so, he ultimately did file a pretrial motion challenging federal jurisdiction in accordance with Berroa’s wishes. Also, as this was Berroa’s third trial, the District Court’s concern for efficiency was legitimate. See Goldberg, 67 F.3d at 1098 (noting that district courts may consider the *271efficient administration of justice before substituting counsel) (citation omitted).
Berroa next asserts that there was insufficient evidence to establish that his robbery obstructed or affected interstate commerce. We must determine whether, viewing the evidence in the light most favorable to the Government, substantial evidence supports the jury’s guilty verdict. United States v. Urban, 404 F.3d 754, 762 (3d Cir.2005) (citation omitted).
The Hobbs Act extends federal jurisdiction to a robbery that “in any way or degree obstructs, delays, or affects [interstate] commerce.... ” 18 U.S.C. § 1951(a). Therefore, the evidence must show that the target of the robbery, the Appliance Factory, “engaged in interstate commerce.” Urban, 404 F.3d at 767. Despite Berroa’s efforts to convince us otherwise, the retail activities of the Appliance Factory were not “ ‘local in character.’ ” Appellant’s Br. at 40 (quoting United States v. McGuire, 178 F.3d 203, 212 (3d Cir.1999)). Rather, some of the Appliance Factory’s inventory had been purchased in New Jersey. Also, the robbery impacted the ordinary operations of the Appliance Factory by forcing the store to close for the remainder of the day on which the robbery occurred. See United States v. Jimenez-Torres, 435 F.3d 3, 8 (1st Cir.2006) (Government may demonstrate an effect on commerce by proving that a robbery resulted in the closing of a business). Such evidence is sufficient. See Urban, 404 F.3d at 766 (“ ‘[I]n any individual case, proof of a de minimis effect on interstate commerce is all that is required’ ... [a]nd, ... such a ‘de minimis effect’ in a[ ] Hobbs Act case need only be ‘potential.’ ” (quoting United States v. Clausen, 328 F.3d 708, 711 (3d Cir.2003) and United States v. Haywood, 363 F.3d 200, 209-10 (3d Cir.2004))).
We next address Berroa’s claim that his conviction must be reversed because the District Court admitted the testimony of an FBI agent that it was “very common” for “the FBI [to] investigate robberies of businesses in the City of Philadelphia....” App. at 474. Immediately after this statement, the District Court cautioned the jury that the agent’s testimony was “submitted just for background” and that the jurors “must decide this case based on the elements of the federal crime as [the District Court] ... define[s] it ... at the end of the case.” App. at 475.
Berroa argues that the agent’s testimony was inadmissible because its probative value was “ ‘substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.’ ” Appellant’s Br. at 48 (quoting Fed.R.Evid. 403). We owe the District Court “very substantial discretion” in its ruling on whether to admit testimony under Rule 403. United States v. Long, 574 F.2d 761, 767 (3d Cir.1978). A district court’s decision under Rule 403 will only be reversed if its analysis and conclusions are “arbitrary or irrational.” United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir.2000) (quotation and citation omitted).
Admitting the testimony was neither arbitrary nor irrational. The District Court found that the testimony was necessary to disabuse the jurors of the “suggestion that [Berroa] ha[d] been singled out or discriminated against” through prosecution in federal court. App. at 466. Although the probative value of this testimony was low, we cannot concur that it “could well have led the jury to believe that the federal government’s involvement, in and of itself, demonstrated” federal jurisdiction over Berroa’s robbery, particularly in light of the District Court’s limiting instruction. Appellant’s Br. at 51.
*272Finally, Berroa contends that the ten-year mandatory minimum sentence the District Court imposed under 18 U.S.C. § 924(c)(l)(A)(iii) was “constitutionally infirm” as neither the jury nor the court made an “express finding” that Berroa had discharged a firearm. Appellant’s Reply Br. at 28. Berroa correctly concedes that his claim that the jury had to find that Berroa discharged the firearm before the court could impose the ten-year mandatory minimum is foreclosed by binding precedent. See United States v. Williams, 464 F.3d 443, 449 (3d Cir.2006) (citing Harris v. United States, 536 U.S. 545, 568, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), for the proposition that district courts (as opposed to juries) may find that a firearm was discharged and sentence defendants to the ten-year mandatory minimum).
Nor can we accept Berroa’s claim that the “[District [Cjourt failed to render the finding of fact required before subjecting Mr. Berroa to a ten-year consecutive term.... ” Appellant’s Reply Br. at 26. Although the District Court referred to the crime as “an armed robbery,” it did not state at sentencing that the gun was discharged during the robbery. App. at 769. However, Berroa does not cite and we have not discovered authority supporting his assertion that an express finding on the record is required. Moreover, the District Court had ample support for its sentence from evidence adduced at trial and the PSR, which said “[Berroa] discharged the firearm into a refrigerator located in the store.” PSR ¶ 22. Berroa reviewed the PSR and did not dispute the finding that he had discharged a firearm during the robbery. See United States v. Siegel, 477 F.3d 87, 93-94 (3d Cir.2007) (holding that defendant adopted facts found in the PSR by not objecting). Under these circumstances, the District Court’s failure explicitly to state that Berroa discharged a firearm was not error.
III.
For these reasons, we will affirm the judgment and sentence of the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. After attending two preliminary hearings, Dawson failed to appear for a third. This resulted in a bench warrant for his arrest. He was a fugitive until he was apprehended in November 2007.
. Berroa misreads Mickens in arguing that "[a] failure to make inquiry into a potential conflict requires that conviction be vacated and the matter remanded for further proceedings.” Br. for Appellant at 28 (citing Mickens, 535 U.S. at 171-72, 122 S.Ct. 1237). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479191/ | OPINION
SMITH, Circuit Judge.
Appellant Josh Medina was convicted of several crimes in connection with a string of robberies. He now appeals the District Court’s denial of his motion for a new trial, Fed.R.Crim.P. 33, which was based on an alleged Brady violation, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The evidence Medina accuses the government of failing to disclose, certain statements made by his co-conspirators to the government during the investigation, was not material because Medina was able to elicit the same statements from the co-conspirators on cross-examination. Because the alleged Brady violation fails, we will affirm the District Court’s denial of Medina’s motion for a new trial.1
I.
Medina and five other individuals were charged with a string of robberies that took place in 2004.2 All defendants except Medina pled guilty to some or all of the robberies. Medina opted to proceed to trial and the government presented evidence against him suggesting that he drove the getaway car and acted as lookout for the robbery of a laundromat, and that his gun was used in that robbery. On July 19, 2007, a jury convicted Medina of (1) conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951, (2) Hobbs Act robbery, 18 U.S.C. § 1951 and § 2, and (3) possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c) and § 2.
On July 20, 2007, Medina moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.3 He argued that the government committed a Brady violation by withholding statements made to investigators by two of his co-conspirators, George Rivera and Jacqueline White, in which they denied their involvement in *274certain robberies. Rivera denied involvement in the robbery of a deli and White denied involvement in the robbery of a self-storage facility. Medina contended that these statements had significant impeachment value against another co-conspirator, David Roman, who testified at trial that Rivera was present at the deli robbery and that White was present at the self-storage facility robbery.
The District Court concluded that Medina’s motion lacked merit because he was not prejudiced by the non-disclosures. At trial, Medina repeatedly challenged the credibility of Rivera, Roman, and White and “[h]ad the government properly disclosed [Rivera and White’s statements] prior to trial, it [was] highly improbable that [Medina] could have called the witnesses’ credibility into greater question.” Accordingly, the District Court denied Medina’s motion. Medina now appeals that denial.
II.
The sole issue to be decided in this appeal is whether the District Court correctly denied Medina’s motion for a new trial based on an alleged Brady violation. “Ordinarily, we review a denial of a motion for a new trial under an abuse of discretion standard.” United States v. Joseph, 996 F.2d 36, 39 (3d Cir.1993). “However, when a Brady violation is alleged ... we review the district court’s legal conclusions on a de novo basis and its factual findings under the clearly erroneous standard.” Id.; United States v. Pelullo, 399 F.3d 197, 202 (3d Cir.2005); United States v. Hill, 976 F.2d 132, 134 (3d Cir.1992); United States v. Perdomo, 929 F.2d 967, 969 (3d Cir.1991).
To establish a violation under Brady, “a defendant must show that: (1) evidence was suppressed; (2) the suppressed evidence was favorable to the defense; and (3) the suppressed evidence was material either to guilt or to punishment.” Pelullo, 399 F.3d at 209 (internal quotation marks omitted). “Evidence is material if there is a reasonable probability that, had [the evidence] been disclosed, the result of the proceeding would have been different.” United States v. Perez, 280 F.3d 318, 348 (3d Cir.2002), cert. denied, 537 U.S. 859, 123 S.Ct. 231, 154 L.Ed.2d 98 (2002).
Even assuming that the first two requirements of a Brady violation were satisfied, Medina has not shown that Rivera and White’s statements were material to his guilt or punishment. See Pelullo, 399 F.3d at 209; see also Perez, 280 F.3d at 348. Medina argues that the contradictions between Rivera and White’s statements to the government and Roman’s testimony could have been used to show that one or more of these witnesses lied. This exact point, though, was made at trial.
On cross-examination by Medina’s counsel, White denied involvement in the self-storage facility robbery.4 Roman, however, testified that White was involved in that robbery.5 The same was true for Rivera — -Roman claimed Rivera was involved in the deli robbery, Rivera claimed *275he was not.6 During closing, Medina’s counsel attacked the credibility of all three witnesses. He pointed out that Rivera and Roman’s testimonies conflicted:
George Rivera. They’ve charged him with participating in the robbery of the Emerald Deli[.] And now you see a consistent pattern here of who’s willing to lie on the stand. I said, well, Mr. Rivera, didn’t you commit that with Evil Vargas and David Roman? He had the audacity to tell you no. Well, both can’t be true, because Roman’s saying he committed it with [Rivera.]
He also asserted that White’s testimony regarding the self-storage facility showed that either White or Roman were lying:
Jackie [White] is charged with robbing the Philly Self Storage. I asked her, I said, you robbed Philadelphia Self Storage with David Roman and Evil Vargas. I didn’t. I didn’t. Not me, that case is still under investigation. Well, didn’t David Roman say that, oh, it was Jackie [White] who robbed that with me? So, [the government’s] witness that [it] wants you to trust beyond a reasonable doubt, we know either Roman’s lying or she’s lying. I don’t know what story is true, but the fact that there is more than one story is a reasonable doubt.
Based on the record, we cannot say that the disclosure of Rivera and White’s statements to the government would have changed the result of the proceeding because Medina elicited similar statements from the two witnesses at trial. See Perez, 280 F.3d at 348. Medina was able to point out the inconsistencies between Rivera and White’s testimonies denying involvement in certain robberies and Roman’s testimony stating that the two were involved in those robberies without the statements Rivera and White made to the government. The jury was informed of those inconsistencies repeatedly by Medina’s counsel, yet still convicted Medina. “[T]he government ma[de] [the] Brady evidence available during the course of [the] trial in such a way that [Medina] [wa]s able effectively to use it[.]” United States v. Johnson, 816 F.2d 918, 924 (3d Cir.1987). Thus, “due process [wa]s not violated and Brady [wa]s not contravened.” Id. Medina used the inconsistencies between the co-conspirators’ testimonies to suggest that at least one of them was lying. The jury was simply not persuaded by that argument.7
*276III.
Even assuming that Rivera and White’s statements were improperly suppressed by the government, Medina has failed to show that there was a reasonable probability that the result of the proceeding would have been different had those statements been disclosed. Therefore, we will affirm the District Court’s denial of Medina’s motion for a new trial.
.The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
. Because we write only for the parties, we will presume knowledge of the record and recount the facts only briefly.
. Several months later, on November 8, 2007, Medina amended his motion for a new trial. For purposes of this opinion, all references to Medina’s motion are references to his amended motion.
. White testified as follows:
Q: Well, the Government has agreed to withdraw the charges for the Philadelphia Self-Storage, is that right?
A: Which they should cause I didn't do it.
. On cross-examination by Medina’s counsel, Roman testified as follows:
Q: And the Philly Self Storage, that was when Jacqueline White drove you and Evil to that place to rob and that was the day it was raining, correct?
A: Correct.
. On cross-examination by Medina’s counsel, Rivera testified that he was not involved in the deli robbery:
Q: The June 28th, 2004, robbery of Emerald Deli, you [were] charged with that, correct?
A: Yes.
Q: Okay. And, in fact, you took part in that, correct?
A: No.
On direct examination by the government, Roman contradicted Rivera's testimony:'
Q: Could you continue to explain what took place [during the deli robbery]?
A: This time my friend, we use his car this time. George Rivera. We call him Gono. I called him up, because we needed a driver. This time I went into the business with Eville Vargas to rob them and he drove the van.
. Medina's argument that the non-disclosure of Rivera and White's statements to the government prevented him from challenging the credibility of the government’s prosecution fails for the same reason. Medina successfully questioned the government’s prosecution at trial by challenging each co-conspirator's testimony and pointing out that some of the co-conspirators benefitted in their plea agreements by cooperating with the government. For example, during closing, Medina's counsel said:
I asked Agent Majarowitz, I said, is it fair to say, Agent Majarowitz, that all the information that they used to identify people who were involved in these robberies came from — and they said he was the — one of the first people in — came from your interviews with Jackie [White]? That's correct. What *276if there's misinformation than what's given? What if David Roman and someone else aren't telling the truth? David Roman is not telling the truth, because I don’t know which truth you're supposed to believe, did George Rivera help him or didn't he? Did Jackie Wright help him or didn’t s[he]? Because she said she didn't and he says she did. Is he involved or wasn't he?
Medina’s whole strategy at trial was to undermine witness credibility, which, in effect, questioned the credibility of the government's prosecution. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479192/ | OPINION
PER CURIAM.
En Tong Qiu petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will deny the petition.
I.
Qiu is a citizen of China who entered the United States in 2004 without having been admitted or paroled. Qiu concedes remov-ability on that basis, but he seeks asylum, statutory withholding of removal and relief under the Convention Against Torture (“CAT”) on the grounds that he suffered past mistreatment and fears mistreatment in the future for his resistance to China’s family planning policies.
Qiu testified before the Immigration Judge (“IJ”) that his mother was forcibly sterilized and his family was fined because he was the family’s fourth child. He also testified that his girlfriend became pregnant and that authorities forced her to have an abortion. When he learned that authorities had taken her to the hospital, he went there and discovered that the abortion had been performed. He then pushed aside a member of the “cadres” who was guarding his girlfriend’s room and took her home.
At the time, Qiu was working at his village’s Government Committee office, which housed the local branch of the family planning committee. He testified that he performed janitorial services and other odd jobs, but also occasionally served as a guard. When he returned to work after his girlfriend’s abortion, he learned that two women he was guarding had been detained for forcible sterilization or insertion of an IUD device, and he was so angered by his girlfriend’s abortion that he set them free. He then went into hiding, and heard from his mother that the “cadres” had come to his house several times in search of him to “hold him responsible” for that action. Shortly thereafter, he came to the United States.
The IJ found Qiu credible in all respects relevant to our disposition but denied relief. The IJ explained that neither Qiu’s mother’s sterilization and family fine nor his girlfriend’s forced abortion constituted past persecution of Qiu. The IJ did not reach the issues of whether Qiu had a well-founded fear of future persecution for purposes of asylum or had shown that future persecution was more likely than not for purposes of withholding. Instead, he concluded that Qiu was ineligible for those forms of relief because he had “assisted, or otherwise participated in the persecution” of others. 8 U.S.C. §§ 1158(b)(2)(A)(i) (asylum) and 1281(b)(3)(B)(i) (withholding).
On appeal, the BIA agreed that Qiu was ineligible for asylum and withholding because he participated in persecution. The BIA also concluded that, even if Qiu were not barred from relief for that reason, he had otherwise failed to show eligibility for relief because he had shown neither past persecution nor a well-founded fear of future persecution. Finally, the BIA concluded that Qiu had not shown it more likely than not that he would be tortured on return. Qiu petitions for review.1
*278II.
The parties devote the majority of their briefs to the BIA’s conclusion that Qiu is ineligible for asylum and withholding of removal because he assisted in the persecution of others. We need not address that issue, however, because the BIA’s alternative grounds for denying relief are supported by substantial evidence and Qiu’s arguments to the contrary are unavailing.
First, Qiu argues that he was entitled to a presumption of eligibility for asylum because he suffered past persecution in the form of his mother’s forcible sterilization and his girlfriend’s forcible abortion. This argument lacks merit. We recently held that the persecution even of an alien’s spouse under China’s family planning policies does not constitute persecution of the alien, see Lin-Zheng v. Att’y Gen., 557 F.3d 147, 148-49 (3d Cir.2009) (en banc), and we previously held the same with respect to an alien’s parents, see Wang v. Gonzales, 405 F.3d 134, 142-43 (3d Cir.2005), and an alien’s unmarried girlfriend or fiancée, see Chen v. Ashcroft, 381 F.3d 221, 222-23 (3d Cir.2004).2 Qiu also asserts that he suffered past persecution because his family was fined for having four children. The BIA did not specifically mention that assertion, but the IJ found that the family’s fine did not present a cognizable claim for asylum (IJ Dec. at 14), the BIA agreed that Qiu had failed to show past persecution in general, and Qiu neither argues that the BIA erred in not addressing this claim more specifically nor cites any evidence of record that might compel the conclusion that his family’s fine amounted to the persecution of him. See Wang, 405 F.3d at 143-44.
Second, Qiu challenges the BIA’s conclusion that he failed to establish a well-founded fear of persecution. The BIA assumed that Qiu’s scuffle with a family planning official and release of two women could constitute a statutorily protected ground. See 8 U.S.C. § 1101(a)(42)(B) (equating “resistance to a coercive population control program” with political opinion for immigration purposes). It concluded, however, that his fear of persecution was speculative because the record contains no evidence that Chinese officials are still interested in him five years after those event or would persecute him because of them on return. (BIA Dec. at 3.) Qiu cites no evidence of record that might compel a contrary conclusion, and our review of the record has revealed none.
Finally, Qiu challenges the BIA’s conclusions that he was not entitled to withholding of removal or relief under CAT. Because Qiu failed to establish a well-founded fear of persecution, however, he necessarily failed to meet the higher burden applicable to withholding of removal. See Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 348-49 (3d Cir.2008). With regard to CAT, Qiu asserts that “various” reports document the fact that “torture and ill treatment by the authorities in China was not eradicated and in fact is practiced.” One again, however, he cites no record evidence compelling the conclusion that he personally faces probable torture on return. See id. at 349. Accordingly, the petition for review will be denied.
. We have jurisdiction under 8 U.S.C. § 1252(a)(1). "Because the BIA issued its own decision, we review that decision, and not that of the IJ." Sheriff v. Att'y Gen., 587 *278F.3d 584, 588 (3d Cir.2009). "Under the substantial evidence standard, the BIA’s determinations ‘must be upheld unless the evidence not only supports a contrary conclusion, but compels it.’ ” Id. (citations omitted).
. We note our displeasure with Qiu’s failure to acknowledge this dispositive authority, which is particularly troubling in light of the BIA's reliance on Chen in its opinion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479195/ | OPINION
TASHIMA, Circuit Judge.
Brian Newmark appeals his conviction and sentence of 24 months’ imprisonment for a single count of wire fraud, under 18 U.S.C. § 1343. (App. 1-3.) We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we will affirm.
I.
Newmark owned and operated companies that performed advertising and marketing services for Barry Bohmueller, an estates attorney. (App. 611-12, 615-18, 631, 760.) Newmark employed Victoria Larson and hired an independent contractor, John Wight. (App. 548, 631-32, 759.) None of the three individuals has ever been an attorney. (App. 721.)
Larson placed a sales call to Arthur Walker and Thomas Walker (the “Walkers”), elderly, unmarried and childless brothers who lived together in a house they jointly owned and whose assets were valued in excess of $3.5 million. (App. 270-72, 325-37, 608-09, 721.) The Walkers requested estate planning services from Bohmueller’s firm. (App. 363-64.) They also signed “Consultation Request Forms,” asking Bohmueller to set up a “free, no-obligation consultation with a financial services representative who is also a licensed insurance agent.” (App. 362-63, 406-09.)
Wight delivered and explained the Boh-mueller-prepared documents to the Walkers. (App. 370-72.) The Walkers introduced Wight to neighbors as their lawyer, *281and Wight did not correct them. (App. 249, 309.) After the Walkers executed the documents, Wight, pursuant to Newmark’s companies’ business model, shifted to pitching them insurance-related and financial products. (App. 772-76.) Wight then discussed the Walkers’ investment objectives with Newmark, who recommended selling the Walkers charitable gift annuities. (App. 780-81, 785-86.)
Wight persuaded the Walkers to execute contracts to purchase six annuities using the bulk of their net worth. (App. 721, 819-23.) The purchase required the Walkers to liquidate and transfer assets that were being managed by Morgan Stanley. (App. 288-90.) A Morgan Stanley representative visited the Walkers’ home and convinced them to rescind their liquidation instructions because they did not need to purchase the annuities in order to accomplish their goals. (App. 292-93.)
After learning of the Morgan Stanley visit, Wight returned to the Walkers’ home with a portable fax machine. (App. 293-94, 622.) Wight conveyed information about the Morgan Stanley visit over the phone to Newmark, who composed two letters that were to be from Arthur and Thomas Walker, respectively, complaining about the Morgan Stanley visit. (App. 622, 1232.) Newmark faxed the letters to Wight, who had the Walkers sign them. (App. 622.) The letters were then faxed to Morgan Stanley’s Scranton, Pennsylvania, office. (Id.) A week later, Wight returned with two more letters complaining of Morgan Stanley’s failure to transfer the funds. (App. 624-25.) These letters were signed and faxed to Morgan Stanley’s New York City office. (Id.)
Morgan Stanley still having failed to comply with the Walkers’ request, New-mark called Morgan Stanley’s compliance department in New York City and spoke to Chris Zeyer about the firm’s failure to transfer the funds. (App. 460-64.) The same day, Newmark sent a fax to Zeyer, in which Newmark referred to the Walkers as “my clients.” (App. 468-69, 648-49.) The fax transmittal sheet had “Bohmueller Law Offices” letterhead, which Newmark later testified in a deposition he “must have made ... up.” (App. 648, 1239.) The fax also referred to “our attorney’s office” having contacted an individual at Morgan Stanley regarding the delayed transfer. (App. 471.) After the call, Zeyer completed a “verbal complaint form” from his handwritten notes, identifying Newmark as the Walkers’ attorney. (App. 462-65,481.)
Morgan Stanley eventually released the assets, enabling the Walkers to purchase the six annuities. Newmark’s company earned $230,408 in commission, from which it paid Wight $69,740. (App. 721.) Eventually, the Walkers came to feel unsatisfied with the annuities and retained an attorney, who sued Newmark, Wight, and others in federal court. (App. 547-51, 725.) The lawsuit settled. (App. 725.)
A Grand Jury indicted Newmark and Wight, charging them with mail and wire fraud, and charging Newmark with making a false declaration under oath (in connection with discovery responses he submitted in the civil suit). (App. 107-14.) The jury acquitted Wight of two counts and the District Court declared a mistrial as to his third. (App. 1224.) The jury convicted Newmark of three of his five counts. (App. 1224.) The District Court entered a judgment of acquittal on two of three counts for which the jury had convicted, leaving a conviction for a single count of wire fraud based on the fax Newmark transmitted to Zeyer. (App. 2.)
On appeal, Newmark argues that the evidence was insufficient to support conviction, that the district court erred in refusing to give an “ordinary prudence” jury *282instruction, and that the district court miscalculated “loss” for sentencing purposes. (Appellant’s Br. 17-19.)
II.
We exercise plenary review of the District Court’s denial of a motion for judgment of acquittal based on insufficient evidence. See United States v. Silveus, 542 F.3d 993, 1002 (3d Cir.2008). We must determine whether the evidence, viewed in the light most favorable to the government, would allow a rational trier of fact to convict. See United States v. Hart, 273 F.3d 363, 371 (3d Cir.2001) (internal citations and quotation marks omitted).
Newmark contends that the evidence failed to show that he knowingly and willfully devised or participated in the particular scheme to defraud alleged in the indictment. (Blue 17-18.) He argues that the scheme alleged in the indictment was to defraud the Walkers,1 and the only misrepresentations by Newmark were directed at Morgan Stanley, not the Walkers. (Id.; see also Blue 23.)
Newmark concedes that evidence showed the following: Newmark drafted and faxed letters to Wight for the Walkers to sign, telling Morgan Stanley to transfer the Walkers’ funds; Newmark made misrepresentations to Zeyer at Morgan Stanley; Newmark obtained an “enormous benefit” upon purchase of the annuities; Newmark, as owner and manager of his companies, held supervisory control over Wight. (Gray 6.) This evidence, although circumstantial, is sufficient for a rational trier of fact to have found beyond a reasonable doubt that Newmark knowingly and willfully devised or participated in the scheme to defraud. See United States v. Pearlstein, 576 F.2d 531, 541 (3d Cir.1978) (holding that requisite knowledge of fraudulent purpose can be demonstrated circumstantially).
Specifically, Newmark participated in the scheme when he drafted the letters necessary to transfer the Walkers’ assets and when he interacted with Zeyer at Morgan Stanley. See United States v. Olatunji, 872 F.2d 1161, 1168 (3d Cir.1989) (holding that misrepresentations need not be made to the ultimate victim for mail fraud). That Newmark “made up” a letterhead to misrepresent that he was an attorney — the same type of deception employed by Newmark’s paid associates— supports the inference that Newmark also “devised” the scheme, or at least knew of its fraudulent purpose. The jury could find further support in the fact that Newmark received a greater cut of the commission, cf. Pearlstein, 576 F.2d at 542 (noting that “relative lack of success enjoyed by” defendant salesmen compared with principals suggested they lacked knowledge of scheme’s fraudulent purpose), and held a position as owner and manager of the companies, cf. id. (noting that fact that defendant salesmen “held no positions of authority” and were never “involved in the management” of the company suggested they lacked knowledge of scheme’s fraudulent purpose).
Accordingly, we conclude that “there was substantial evidence adduced ... from which the jury reasonably could have inferred that [the defendant] knew of the fraudulent purpose of the ... enterprise and willfully participated therein.” See id. at 541. The District Court did not err in denying Newmark’s motion for a new trial.
III.
Newmark argues that the District Court plainly erred in not giving a jury *283instruction defining “scheme to defraud” as a scheme “reasonably calculated to deceive persons of ordinary prudence and comprehension.” See United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir.1995) (“The scheme [to defraud] ‘need not be fraudulent on its face but must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension.’ ” (quoting Pearlstein, 576 F.2d at 535)). He argues that the alleged error was “compounded” by the District Court’s instruction that “[i]t is immaterial that the alleged victims may have acted gullibly, carelessly, naively or negligently, which led to their being defrauded.” (App. 1191.) Because Newmark did not object at trial, we review the District Court’s refusal to give an “ordinary prudence” jury instruction for plain error. See United States v. Antico, 275 F.3d 245, 265 (3d Cir.2001).2
The Government’s argument that the materiality instruction3 adequately covers the “ordinary prudence” instruction, although supported by a district court case, see United States v. Zomber, 358 F.Supp.2d 442, 459 (E.D.Pa.2005), is unavailing. The materiality instruction concerns whether a reasonable person would consider a fact important, whereas the “ordinary prudence” instruction concerns whether a reasonable person would be deceived by a scheme. Moreover, because of the apparent tension between an instruction that a victim’s gullibility or negligence is no defense and an instruction that a scheme must be calculated to deceive a person of ordinary prudence and comprehension, there is some force to Newmark’s argument that the error was compounded by the district court’s inclusion of the former instruction.
Nonetheless, under the plain error standard, we conclude that the omission of the “ordinary prudence” instruction did not prejudice the jury’s deliberations. See United States v. Haywood, 363 F.3d 200, 207 (3d Cir.2004). Although there was evidence the Walkers signed documents that could be read to indicate that Wight was not an attorney, see App. 1229 (engagement letter stating delivery agent not licensed attorney); App. 1240-41 (consultation request form stating licensed insurance agent would provide consultation), this evidence was outweighed by the countervailing evidence that Wight affirmatively represented himself as an attorney.
Accordingly, we decline to exercise our discretion to conclude that the District Court committed plain error. See United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (holding that discretion should only be exercised where the error “seriously affects the fairness, integrity or public reputation of judicial proceedings” (alterations, citations, and quotation marks omitted)).
IV.
We exercise plenary review over the District Court’s interpretation of “loss” for purposes of United States Sentencing Guidelines (“U.S.S.G.”) § 2F1.1. See United States v. Badaracco, 954 F.2d 928, 936 (3d Cir.1992). “Loss” is defined as the value of the money, property, or services *284unlawfully taken. See Coyle, 63 F.3d at 1250. “[T]he loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information.” U.S.S.G. § 2F1.1 (2000), Commentary n.9.
The District Court calculated a loss of $900,000, based on the value of the securities at the time of their sale ($3.5 million), less the value of the annuity received in exchange ($2 million), less the tax benefits obtained by making a contribution of the difference ($600,000). (App. 55-56 (adopting PSR ¶¶ 22-25, 30-36).) Newmark argues that this calculation fails to account for the $316,000 in capital gains taxes the Walkers avoided and the non-monetary value to the Walkers of making a charitable contribution.4 (Blue 48-49.)
We conclude that the avoidance of capital gains taxes is too speculative to be considered value actually gained because it is not clear when, if at all, the Walkers would have sold their stocks. The non-monetary value is not properly considered because there is evidence that the Walkers did not want to make this type of charitable contribution. See United States v. Maurello, 76 F.3d 1304, 1311 (3d Cir.1996) (holding that clients who obtain satisfactory services have received something of value, while dissatisfied clients have not).5
Moreover, we conclude that any error was harmless. See United States v. Flores, 454 F.3d 149, 162 (3d Cir.2006) (holding that any error in imposing sentencing increases based upon loss calculation and other guidelines was harmless, where sentence imposed fell within the guidelines range that would have applied without the alleged errors). Here, as in Flores, the District Court applied the 18 U.S.C. § 3553(a) factors, rather than a specific departure or variance, to impose a sentence that fell below both the guidelines range the District Court calculated and the range that would be applicable without the alleged errors.6 Thus it is clear that any “error did not affect the district court’s selection of the sentence imposed.” United States v. Langford, 516 F.3d 205, 218 (3d Cir.2008) (noting that harmless error may exist in “unusual case[s],” like Flores, where the sentence was a discretionary sentence imposed “based on 3553(a)’s parsimony provision” rather than a specific variance or departure).
V.
For the reasons set forth, we will affirm the judgment of the District Court.
. The indictment charged that Defendants “knowingly devised and intended to devise a scheme to defraud [the Walkers], and to obtain money and property from [the Walkers] by means of false and fraudulent pretenses, representations, and promises.” (App. 108.)
. To succeed under plain error review, New-mark must show that (1) the court erred; (2) the error was plain; and (3) the error affected substantial rights, meaning that the error prejudiced the jury's verdict. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If all three elements are established, we may exercise our discretion to award relief. Id.
. "A material fact is a fact that would be of importance to a reasonable person in making a decision about a particular matter or transaction.” (App. 1184.)
. Newmark also argues that because the actual loss is "too complex and unusual to measure 'correctly,' ... the defendant's gain from the fraud is ... the only fair measure of 'loss.' ” See United States v. Yeaman, 194 F.3d 442, 456-57 (3d Cir.1999). The calculation method used in the Pre Sentence Investigation Report belies the notion that the actual loss is too complex to measure.
. Maurello was impliedly overruled by the Sentencing Commission in 2001. However, it is nonetheless instructive here because, for ex post facto reasons, the 2000 version of the Sentencing Guidelines applies.
.The District Court calculated a guidelines range of 30 to 37 months and, applying the Section 3553(a) factors, imposed a sentence of 24 months. (App. 61-67.) Taking into account the capital gains taxes allegedly avoided, the applicable range would have been 27 to 33 months. (Blue 48.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479197/ | OPINION OF THE COURT
STAPLETON, Circuit Judge:
Steven McDowell filed this civil action pursuant to 42 U.S.C. § 1983 and New Jersey state law, alleging that certain prison officials at Northern State Prison (collectively, “Defendants”)1 violated the First, Fourth, Eighth, and Fourteenth Amendments and Article One of the New Jersey Constitution. The events giving rise to the lawsuit occurred during and in the aftermath of a prisoner extraction in November of 2004.
The District Court granted summary judgment to Defendants on all of McDowell’s federal claims and dismissed his state constitutional claim without prejudice. McDowell only appeals the District Court’s order with respect to his Eighth Amendment excessive force and deliberate indifference claims. Because we write only for the benefit of the parties, we *290assume familiarity with the facts of this civil action and the proceedings in the District Court. We will reverse the judgment of the District Court and remand for further proceedings.
I.
McDowell is an inmate at Northern State Prison (“NSP”) in New Jersey, serving a twenty-year sentence for armed robbery and weapon offenses. In November 2004, he was housed in a security threat group management unit in Delta 300 East. At some point late at night on November 7 or in the early morning of November 8, 2004, McDowell and his cellmate, Carlos Cruz, were able to exit their cell. The parties dispute the circumstances of how the inmates got out of their cell. McDowell claims that Cruz was sick and seeking medical attention and that he was assisting Cruz when they were both locked out of their cell. Defendants assert that McDowell and Cruz pretended to need medical treatment, and that, once the cell door was opened so that one of them could be escorted to the infirmary, the two inmates left the cell and refused to submit to handcuffing or to return to their cell, as they were required to do. It is undisputed that McDowell and Cruz were not handcuffed and that they were able to walk around the fenced-in tier to the cells of other inmates.
Two teams of five officers each then arrived to perform extractions of McDowell and Cruz in order to return them to their cells.2 The officers on the extraction teams wore protective gear, including vests, pads, and helmets with face masks, and carried body shields for use in restraining the inmates. The extraction of McDowell was videotaped by an NSP official and by an inmate who had smuggled a video-recorder into prison, and both recordings are part of the record before us.
Before the extraction began, members of the extraction team used pepper spray in an attempt to subdue McDowell and Cruz. This effort, however, was unsuccessful because the inmates used plastic bags, which another inmate had given them, to shield their faces from the spray. The officers then began the extraction by entering the tier in which McDowell and Cruz were standing. McDowell and Cruz moved toward one of the teams of officers. The parties dispute the events that occurred thereafter.
McDowell testified in his deposition that he was pushed to the floor as soon as the officers converged on him. He claimed that he did not resist and the officers were able to handcuff him quickly. Nevertheless, they continued to punch or kick him after he was restrained. He also testified that he was repeatedly hit in the face with a nightstick and that an officer grabbed and twisted his testicles after he was on the ground. McDowell stated that the officers shackled his ankles so tightly that he lost circulation in his feet. He further testified that one officer exerted force on his wrist, in what he believed was an effort to break his hand. McDowell insisted that throughout the extraction he kept yelling that he was not resisting. He stated that after he was handcuffed and shackled, he was picked up and then walked into another part of the unit. According to him, his face was slammed into a wall and an officer choked him until he lost consciousness. McDowell stated that he was then re*291turned to his cell, and was denied clothing and medical treatment for his injuries for two weeks. As a result of the extraction, McDowell claims that he suffered cuts above his right eye, bruises on his skull, and an injury to his hand. He also claims that the incident left him with permanent injuries, including vision loss in his right eye, scarring above his eye, lumps on his skull, weakness in his hand, and that he now sometimes experiences dizziness. He also claims that he was emotionally damaged by the incident.
Defendants testified to a different version of events. The officers testified that McDowell approached the officers aggressively, resisted being handcuffed and shackled, and continued to struggle once he was on the floor. One officer testified that the officers ceased using force as soon as McDowell was restrained, and another testified that nightsticks were not used on McDowell during the extraction. Once McDowell was restrained, they contend that he was taken to a nearby hallway where he was given medical treatment. Defendants state that McDowell’s clothing was removed so that he could be searched for weapons and then showered to remove any remaining pepper spray. After this occurred, they assert that he was returned to his cell. Defendants claim that McDowell was not left naked in his cell for two weeks, but, instead, insist that their evidence shows that his personal property was returned to him the next day.
As a result of the extraction and the events following it, McDowell filed a pro se complaint in the United States District Court for the District of New Jersey. Counsel was appointed to represent McDowell. He sought declaratory and injunc-tive relief, compensatory damages, punitive damages, and attorneys’ fees and costs.
After discovery, Defendants filed a motion for summary judgment. After oral argument and supplemental briefing, the District Court granted summary judgment in favor of Defendants on all of McDowell’s federal claims and dismissed his state constitutional claim without prejudice. With respect to the Eighth Amendment excessive force and deliberate indifference claims at issue in this appeal, the Court determined that Defendants were entitled to qualified immunity because none of McDowell’s constitutional rights was violated. McDowell filed a timely notice of appeal.
On appeal, McDowell first argues that the District Court erred by concluding that the video evidence blatantly contradicted McDowell’s version of events and, therefore, deciding not to view the facts in the light most favorable to McDowell. Second, he contends that when the facts are viewed in the light most favorable to him, there is a genuine issue of material fact as to whether Defendants used excessive force during the extraction and whether Defendants acted with deliberate indifference in its aftermath.
II.
We exercise plenary review over a District Court’s decision to grant summary judgment. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009). Summary judgment is appropriate when the record establishes that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In making this determination, “[t]he evidence of the non-mov-ant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, in a case such as this one, where there are video recordings of *292the incident in question, we need not adopt the non-movant’s version of the facts if the recording “blatantly contradict[s]” the non-movant’s version “so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
III.
Government officials are protected by the doctrine of qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, — U.S.-, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). When deciding whether an official is entitled to qualified immunity, a court must determine if the facts alleged establish that the official violated a constitutional right of the plaintiff and if that constitutional right was clearly established at the time the officer acted. See id. at 815-16 (citing Saucier v. Katz, 533 U.S. 194, 200-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
A. Excessive Force
To recover on a claim of excessive force under the Eighth Amendment, a plaintiff must show that his treatment amounted to an “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Whether the use of force rises to such a level is determined by “whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (quoting Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973))). In resolving this question, a court must evaluate “(1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them; and (5) any efforts made to temper the severity of a forceful response.” Giles, 571 F.3d at 328. “Force that exceeds that which is reasonable and necessary under the circumstances is actionable.” Id.
Thus, we must evaluate whether McDowell has raised a genuine issue of material fact regarding his claim that the officers used force “maliciously and sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at 6, 112 S.Ct. 995. In making this determination, the District Court refused to accept McDowell’s version of events, as it is generally required to do when ruling on a motion for summary judgment, because it concluded that the videos of the extraction “ ‘blatantly contradicted]’ the story spun by McDowell.” McDowell v. Sherrer, No. 04-6089, 2008 WL 4542475, at *12 (D.N.J. Oct.7, 2008).
After carefully reviewing both of the videos in the record, we conclude that the District Court should have accepted McDowell’s version of events when ruling on this question because neither of the videos “blatantly contradicts]” McDowell’s account such that no reasonable jury could believe it. The videos do show that McDowell and Cruz were yelling and challenging the officers before the extraction began, and they also establish that the inmates used plastic bags to avoid pepper spray used by the officers. However, once the extraction begins, we are unable to determine from the videos whether McDowell is resisting the officers or to determine the amount of force used on him. We cannot *293make this determination because McDowell is forced to the ground early in the confrontation, and the view of his body is completely obstructed by the bodies of at least five officers while they handcuff and shackle him. After he was moved outside of the unit, McDowell claims that he was slammed against a wall and choked until he was rendered unconscious. Again, we are unable to conclude that the NSP video contradicts McDowell’s account because officers’ bodies block the view of the camera.3 Because the videos simply do not show what happened during these crucial moments, we do not believe they blatantly contradict McDowell’s account.
In fact, portions of the videos are consistent with McDowell’s account. In both videos, McDowell can be heard yelling “I am not resisting” when he is underneath the officers. Second, the video recorded by the inmate shows that an officer who was standing near McDowell’s body did have a nightstick in his hand — consistent with McDowell’s testimony that he was hit in the head repeatedly by nightsticks. Additionally, when McDowell is led away from the tier, his face is covered with blood, suggesting that he suffered an injury during the extraction. As McDowell is led off the tier floor, an officer has his arm around McDowell’s neck and McDowell is pressed against the wall. The officers thereafter lay McDowell to the ground, as if he is not able to stand on his own. These events are consistent with McDowell’s testimony that he was choked until he was unconscious.
Accordingly, we believe that the District Court erred when it concluded that the videos contradicted McDowell’s version of events and then refused to accept his testimony when ruling on the motion for summary judgment.
Accepting McDowell’s account, as we must in this posture, we conclude that he did raise a genuine issue of material fact on his excessive force claim. His testimony that he was restrained and not resisting directly contradicts that of Defendants, and resolution of this factual issue is material to deciding whether McDowell has established that his constitutional rights were violated. Certainly, Defendants had wide discretion in determining how to appropriately return the two inmates to their cells. See, e.g., Hudson, 503 U.S. at 6-7, 112 S.Ct. 995; Whitley, 475 U.S. at 320-22, 106 S.Ct. 1078. However, if McDowell is able to establish that Defendants punched, kicked, hit him in the head with nightsticks, and twisted his testicles, when he was restrained and not resisting, he will have established a violation of the Eighth Amendment. See Giles, 571 F.3d at 327. Similarly, if McDowell is able to establish that the officers choked him until he lost consciousness — when he was restrained, not resisting, and not presenting any threat to the officers — -he will have shown a violation of his constitutional rights. See id. Additionally, by 2004, “it was established that an officer may not ... use gratuitous force against an inmate who has been subdued.” See id. at 326.
Thus we conclude that the District Court erred by granting summary judgment to Defendants on McDowell’s Eighth Amendment excessive force claim.
B. Deliberate Indifference
Next, McDowell argues that the District Court erred by granting summary judgment on his Eight Amendment deliberate indifference claim because it improperly *294resolved disputed factual matters in favor of Defendants. We again agree that the District Court so erred.
As Defendants acknowledge, “prison officers are under a constitutional obligation to ‘ensure that inmates receive adequate clothing, shelter and medical care.’ ” Appellees’ Br. at 19 (quoting Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). In order to recover, a plaintiff alleging a violation of this obligation must show 1) that the deprivation alleged was “sufficiently serious,” such that it “result[ed] in the denial of the minimal civilized measure of life’s necessities” and 2) that prison officials “[knew] of and disregard[ed] an excessive risk to inmate health and safety.” See Farmer, 511 U.S. at 834, 837, 114 S.Ct. 1970 (internal quotations omitted). Here, McDowell alleged that prison officials acted with deliberate indifference to his health and safety when they removed his clothes as part of the extraction and did not return them for two weeks.4 His claim was supported by his own deposition testimony and that of his cellmate, Cruz. Defendants moved for summary judgment on this claim, arguing that prison records and the deposition testimony of a non-party prison official established that McDowell’s personal belongings were returned to him the day after the extraction.
The District Court granted summary judgment on this claim after concluding that McDowell had clothes the day after the extraction and was not deprived of clothing for approximately two weeks. In reaching this conclusion, the District Court apparently did not credit McDowell’s or Cruz’s testimony that they were left without clothing for two weeks. The Court relied on its own interpretation of arguably ambiguous testimony from a defense witness to support its conclusion.5 Even if we agreed with District Court’s interpretation of that witness’s testimony, however, it erred by acting as a finder of fact rather than accepting all inferences in favor of McDowell and then determining whether there was a genuine issue of material fact for trial.
In this appeal and in its summary judgment briefing, Defendants did not argue that the claimed deprivation of clothing for a two week period was not “sufficiently serious,” or that McDowell failed to present evidence tending to show that prison officials “[knew] of and diregard[ed] an excessive risk to inmate health and safety” created by the claimed deprivation of clothing for two weeks. See Farmer, 511 U.S. at 834, 837, 114 S.Ct. 1970. Moreover, because of its factual finding that McDowell received his clothes one day after the extraction, the District Court did not address these issues. For that reason, we express no opinion with respect to them.
IV.
For these reasons, we will reverse the District Court’s judgment with respect to McDowell’s Eighth Amendment claims and remand for further proceedings.
. The defendants that remain in the lawsuit are Administrator Lydell B. Sherrer, Sergeant Craig Sears, Sergeant David Abdus-Sabur, Senior Corrections Officer (“SCO”) Charlie Wallace, SCO Christopher Carson, SCO Dennis Robinson, SCO Marc Williams, SCO Domingo Rivera, SCO Brian Williams, SCO Kevin Searcy, SCO Arnaldo Belo, SCO Domingo Rivera, Sergeant Cesar De La Cruz, SCO Car-nell Carlrell, SCO Edward Bonet, SCO Ronald Tucker, and SCO Leonard Wheeler.
. When an inmate is outside of his cell under these circumstances, officers perform an "extraction” to return the inmate to his cell. During an extraction, teams of five officers work together to restrain and then secure an inmate's arms and legs. One officer uses a large body shield while the four other officers are responsible for securing each of the inmate's extremities. Here, there was one extraction team per inmate.
. The video recording made by the inmate ends after McDowell and Cruz are restrained and taken off the tier floor.
. Before us, McDowell has not claimed that he was deprived of medical care for a serious medical need for two weeks.
. The District Court did not rely on prison records to support its finding that McDowell received his clothes back on the day after the extraction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479198/ | *296OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant David L. Zagami’s attorney has filed a brief requesting to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant has received notice of his attorney’s motion, but has not filed a brief in opposition to counsel’s Anders brief. We find that no nonfrivolous issues for appeal exist, and as such, we affirm the District Court’s sentence and grant counsel’s Anders brief to withdraw from the representation.
I.
Because we write for the parties, we discuss only the facts relevant to our conclusion. In August 2004, Appellant was charged with one count of interstate transportation of a stolen vehicle in violation of 18 U.S.C. § 2312, one count of conspiracy to transport a stolen vehicle in violation of 18 U.S.C. § 371, and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
Following the entry of Zagami’s guilty plea on all counts, he was sentenced to forty months’ imprisonment and three years of supervised release. On or about April 17, 2007, Zagami was transferred to the Kintock Group Community Corrections Center (“KGCCC”) in Philadelphia, Pennsylvania. On June 30, 2007, Zagami escaped from KGCCC and was not located until he surrendered to authorities on July 9, 2007.
Zagami was charged with escape, in violation of 18 U.S.C. § 751(a). He pled guilty to the aforementioned charge. Pursuant to the plea agreement entered into by Zagami and the Government, Zagami agreed to waive his right to appeal, so long as his sentence did not exceed the statutory maximum and so long as the District Court did not depart upward from the Sentencing Guidelines range. Prior to the entry of the plea agreement, the Government and Zagami agreed that the applicable range of imprisonment was between fifteen and twenty-one months. He was sentenced to twenty-one months’ imprisonment followed by three years of supervised release for the escape charge.
II.
The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. § 3231, and this Court possesses jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
In Anders, 386 U.S. at 744, 87 S.Ct. 1396, the Supreme Court held that appointed counsel who conscientiously believes that there are no nonfrivolous grounds for an appeal must request permission to withdraw from the representation and submit a brief outlining any possible nonfrivolous arguments in support of the appeal. Counsel’s affirmative duties when submitting an Anders brief are “to satisfy the court that counsel has thoroughly examined the record in search of appealable issues,” and “to explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001) (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)).
Thus, our analysis for an Anders brief is twofold. First, we must consider “whether counsel adequately fulfilled the rule’s requirements,, and [second], whether an independent review of the record presents any nonfrivolous issues.” Youla, 241 F.3d. at 300. The latter inquiry is curtailed, however, “[w]here the Anders brief initially appears adequate on its face.” Id. at 301. In such cases, “the proper course is for the appellate court to be guided in reviewing the record by the Anders brief itself.” Id. (quotation marks and citation omitted). *297The instant brief appears adequate on its face. Zagami’s counsel identifies three possible issues for appeal: 1) whether the District Court erred in considering the Government’s recommendation that it impose a sentence at the upper end of the Guidelines range; 2) whether the District Court erred in allowing a United States Attorney, who had previously prosecuted Appellant in a separate matter, to prosecute Appellant again; and 3) whether the District Judge presiding over Appellant’s case abused his discretion in failing to recuse himself in light of Appellant’s assertions that the Judge had previously presided over an unrelated criminal matter involving Appellant. Zagami filed no pro se brief and has not drawn our attention to any additional issues. We therefore turn to the three matters raised in the Anders brief.
A. Impropriety of Appellant’s Sentence
The first issue identified by Zagami’s attorney is whether the Government was inappropriate and vindictive in arguing at sentencing that Zagami should be sentenced at the upper end of the Guidelines range. We agree with Zagami’s attorney that this claim is frivolous. “[A] prosecutor may prosecute with earnestness and vigor — indeed, he should do so.” United States v. Morena, 547 F.3d 191, 193 (3d Cir.2008) (quotations and citation omitted). It was not prosecutorial misconduct for the Government to have argued in favor of a Guidelines-range sentence. See id. at 194 (to rise to the level of prosecutorial misconduct, action must infect the proceedings with unfairness). The arguments raised by the Government, and the facts relied upon by the District Court in imposing the sentence, focused appropriately on the relevant 18 U.S.C. § 3553(a) considerations, including Zagami’s lengthy criminal history; his history of recidivism toward the same offenses, including escape; and the need to impose a sentence that promotes respect for the law. We therefore agree with Zagami’s appellate counsel that this issue is frivolous.
B. Disqualification of the Assistant United States Attorney
The second issue identified by Zagami’s attorney in his Anders brief is whether the fact that the Assistant United States Attorney handling the matter had previously prosecuted Zagami in an unrelated matter created a conflict of interest requiring the prosecutor’s disqualification. We agree with Zagami’s counsel that this issue is frivolous. Instances in which the courts have found it necessary to disqualify a particular United States Attorney are rare. As a District Court in our Circuit explained:
The disqualification of Government counsel is a “drastic measure and a court should hesitate to impose it except where necessary.” United States v. Bolden, 353 F.3d 870, 878 (10th Cir.2003) (citing Bullock v. Carver, 910 F.Supp. 551, 559 (D.Utah 1995)). Accordingly, Courts have allowed disqualification of government counsel only in limited circumstances. See, e.g., Young v. United States, 481 U.S. 787, 807, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) (actual conflict of interest because appointed prosecutor also represented another party); United States v. Heldt, 668 F.2d 1238, 1275 (D.C.Cir.1981) (bona fide allegations of bad faith performance of official duties by government counsel in a civil case); United States v. Prantil, 764 F.2d 548, 552-53 (9th Cir.1985) (prosecutor who will act as a witness at trial).
United States v. Vega, 317 F.Supp.2d 599, 602 (D.Vi.2004) (serial citation omitted). The Assistant United States Attorney in this case merely prosecuted Zagami for a prior, unrelated offense. There is no au*298thority to suggest that a prosecutor must disqualify himself under such circumstances, and we thus agree with Zagami’s counsel that this issue is frivolous.
C. Recusal of the District Court Judge
Finally, Zagami contends that the District Judge had presided over a prior criminal case and had “permitted that case [to] go forward ... [k]nowing that there was no substantial evidence ... [and] [u]nder a new [j]udge[,] the unsubstantiated charges that [h]e permitted were dropped.” (App. 2). Again, Zagami’s counsel is correct that this argument is frivolous. The Supreme Court has held that it is not improper for a judge to hear multiple cases involving the same defendant — “[i]t has long been regarded as normal and proper for a judge to ... sit in successive trials involving the same defendant.” Liteky v. United States, 510 U.S. 540, 551, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). There is no suggestion from the record that the two cases were related in any way, and we see nothing improper about the District Judge presiding over successive criminal matters involving the same defendant. Zagami’s counsel is correct that the District Judge did not abuse his discretion, and we therefore conclude that the final issue identified in counsel’s Anders brief is frivolous.
III.
For the foregoing reasons, we agree with counsel that no nonfrivolous issues for appeal exist in this case. Accordingly, we affirm the District Court’s judgment of conviction and sentence and grant counsel’s motion to withdraw. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479209/ | OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Henry Wooding filed this civil action against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., alleging that he was injured during a surgical procedure at the Department of Veterans Affairs Medical Center in Pittsburgh, Pennsylvania. Wooding appeals the order of the District *311Court granting summary judgment to the United States.
Because we write only for the benefit of the parties, we assume familiarity with the facts of this civil action and the proceedings in the District Court. We will affirm essentially for the reasons stated by the District Court.
I.
In 2001, Wooding was referred to the orthopedic clinic at the Veterans Affairs Medical Center in Pittsburgh, Pennsylvania. There, he was treated by Dr. Peter Dirksmeier, an orthopedic surgeon. At all times relevant to this lawsuit, Dr. Dirk-smeier was an orthopedic spinal surgery fellow at the University of Pittsburgh Medical Center.1 As part of his medical treatment, Wooding and Dr. Dirksmeier discussed the possibility of surgery, including the risks and benefits of undergoing spinal surgery. Wooding claims that he inquired about Dr. Dirksmeier’s level of experience when he and Dr. Dirksmeier were discussing the possibility of surgery. According to Wooding, Dr. Dirksmeier’s answers gave him the impression that he had significant experience performing surgery. Wooding also alleges that Dr. Dirk-smeier did not inform him that he had only recently completed his residency. Wooding claims he would not have allowed Dr. Dirksmeier to operate on him, if he had been aware of his actual level of experience.
In July 2001, Wooding underwent surgery. He alleges that, during the surgery, “a surgical bite was taken, which punctured the dura ... resulting in the flow of cerebrospinal fluid.” [A 11] As a result of the surgery, Wooding claims that he experienced a loss of feeling from the chest to the feet and extreme pain in his neck and shoulders, among other injuries. In 2003, Wooding filed an administrative claim, claiming that he had been injured as a result of medical negligence and seeking $1,500,000 in damages. Two years later, he wrote a letter requesting that his claim be amended to add an informed consent claim and increase the damages sought to $2,500,000. The United States denied his claim, and Wooding filed this civil action.
Wooding’s complaint included two counts, but only Count One is at issue in this appeal.2 In Count One, Wooding alleged a cause of action under the doctrine of informed consent, claiming that he would not have consented to the surgery if he had been accurately informed of Dr. Dirksmeier’s experience and the risks of the surgery. However, Wooding subsequently renounced any claim based on a failure to inform him of the risks of the surgery in his response to a government motion for partial summary judgment. The District Court then allowed Wooding to proceed with Count One solely on a theory of misrepresentation.
Before the bench trial, the United States moved for summary judgment on the misrepresentation claim, arguing that summary judgment was appropriate because Wooding had not produced a medical expert who would testify that Wooding’s injuries were proximately caused by Dr. Dirksmeier’s alleged lack of experience performing surgeries. The District Court granted the Government’s motion, concluding that expert testimony was required to establish that Wooding’s injuries were *312caused by Dr. Dirksmeier’s alleged inexperience, not by the surgery itself. Wooding filed a timely appeal of that order.
II.
Under Pennsylvania law, a plaintiff alleging intentional misrepresentation must show “1) a representation, 2) which is material to the transaction at hand, 3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false, 4) with the intent of misleading another into relying on it, 5) justifiable reliance on the misrepresentation, and 6) resulting injury proximately caused by the reliance.” Porreco v. Parreco, 571 Pa. 61, 811 A.2d 566, 570 (2002); Bortz v. Noon, 556 Pa. 489, 729 A.2d 555, 560 (1999).3 The Supreme Court of Pennsylvania has recognized the potential viability of a claim of intentional misrepresentation in a case where a doctor misrepresents his qualifications to a patient. See Duttry v. Patterson, 565 Pa. 130, 771 A.2d 1255, 1259 (2001).4
Here, Wooding alleged that Dr. Dirksmeier and the Veterans Affairs Medical Center misrepresented Dr. Dirksmeier’s level of experience and gave Wooding the impression that he had more experience performing surgeries than he actually had. Accordingly, to make out a claim for intentional misrepresentation, Wooding was required to show that his injuries were proximately caused by his reliance on Dr. Dirksmeier’s alleged misrepresentations. See Bortz v. Noon, 729 A.2d at 560. Thus, in this case, Wooding must show that his injuries were caused by Dr. Dirksmeier’s alleged lack of experience, and not simply a result of the surgery. This requires expert testimony, because the causal link is not obvious to a lay person. Cf. Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 907 A.2d 1061, 1070-71 (2006) (recognizing that a plaintiff must produce a medical expert to testify as to causation in “all but the most self-evident medical malpractice actions”). Wooding concedes that the expert he has retained will only testify that the injuries were caused by the surgery, not by Dr. Dirksmeier’s alleged lack of experience. Accordingly, the District Court correctly granted summary judgment on his misrepresentation claim.
On appeal, Wooding argues that expert testimony on the issue of whether Dr. Dirksmeier’s alleged inexperience caused his injuries is unnecessary. Instead, he contends that he is only required to show that he would not have consented to an operation performed by Dr. Dirksmeier, if he were aware of his actual level of experience. Essentially, he is making an argument under the doctrine of informed consent. The Supreme Court of Pennsylvania foreclosed this possibility in Duttry, when it held that a doctor’s misrepresentations about his experience was irrelevant to an informed consent claim. See 771 A.2d at 1259. Therefore, Wooding’s argument fails, and the grant of summary judgment was appropriate.
Because we affirm the District Court’s decision, we need not address the Government’s alternative argument that Wooding’s amendment to his claim was untimely or Wooding’s request that we provide *313guidance on the type of damages that are available in this civil action.
III.
For these reasons, we will affirm the order of the District Court.
. Dr. Dirksmeier completed his residency in orthopedic surgery in 2000.
. Count Two alleged a cause of action based on "malpractice, negligence, and wrongful conduct.” The District Court granted summary judgment on Count Two in favor of the United States, and Wooding has not appealed that order.
. The parties agree that Pennsylvania law applies to Wooding's claim because all of the events relevant to the civil action occurred in the Commonwealth.
. A plaintiff may now assert such a claim under Pennsylvania's informed consent statute. See 40 Pa. Stat. Ann. § 1303.504(d)(2). The parties agree that this cause of action was not available when Wooding's injuries occurred. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479213/ | OPINION
BARRY, Circuit Judge.
Petitioner Shi Ci Yang seeks review of the order of the Board of Immigration Appeals (“BIA”) affirming the order of the Immigration Judge (“IJ”) denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will deny the petition.
I.
Because we write solely for the parties, we discuss only those facts relevant to our analysis.
In 1999 and again in 2000, Yang’s then-girlfriend, Lan Zhi Ling, became pregnant. On both occasions, she was subjected to forced abortions because she was underage. In 2001, Ling became pregnant a third time. This time, however, she was old enough to marry and legally have a child. Yang and Ling begged government officials to permit them to marry and, after paying an unspecified fine, they did so. Their son was born in May 2002.
In 2003, a female co-worker of Yang’s became pregnant. Yang assisted her in attempting to conceal the pregnancy and escape. When his efforts were uncovered, he was detained for nine hours and beaten. Specifically, he was tied up with rope, punched, kicked, and hit with a stick, actions that led to bleeding from his mouth, swelling of his eye, and bruising. He sought medical treatment. His employer fired him, and his village requested that he write a letter of self-criticism condemning his actions. Yang claims that government officials pursued and threatened him.
In 2004, Yang fled China and entered the United States. He sought asylum, withholding of removal, and relief under CAT. The IJ denied relief. Yang appealed the asylum and withholding of removal determinations, but did not challenge the CAT determination. The BIA affirmed.
II.
We have jurisdiction to review the BIA pursuant to 8 U.S.C. § 1252. Where, as here, the BIA does not merely adopt an IJ’s opinion but instead renders its own decision, we review the decision of the BIA. We review the BIA’s factual findings under the deferential substantial evidence standard. Wong v. Att’y Gen. of the United States, 539 F.3d 225, 230 (3d Cir.2008).
III.
“The Attorney General ‘may’ grant asylum to an alien who demonstrates that he/she is a refugee.... ” Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002) (quoting 8 U.S.C. § 1158(b)(1)). A refugee is a “person unable or unwilling to return to the country of that person’s nationality or habitual residence because of past persecu*329tion or because of a well-founded fear of future persecution on account of his [or her] race, religion, nationality, membership in a particular social group, or political opinion.” Id. at 271-72 (citing 8 U.S.C. § 1101 (a) (42) (A)). Persecution “must amount to more than generally harsh conditions shared by many other persons, but does include threats to life, confinement, torture, and economic restrictions so severe that they constitute a real threat to life or freedom.” Lin v. INS, 238 F.3d 239, 243-44 (3d Cir.2001) (quotations omitted).
Yang first contends that the forcible abortion of his first two children constitutes past persecution. However, where an asylum claim is premised on the enforcement of coercive population control programs, only those who themselves endured an abortion or sterilization are eligible for relief. Lin-Zheng v. Att’y Gen. of the United States, 557 F.3d 147, 157 (3d Cir.2009) (en banc). Yang, therefore, is ineligible for relief on this basis.
The only other alleged past persecution that Yang points to is the aftermath of his efforts to assist a co-worker evade a forced abortion. Specifically, Yang was: (1) dismissed from his employment; (2) detained for nine hours and beaten; and (3)asked to draft a letter of self-criticism. Those events are not persecution.
First, with respect to economic persecution, we have held that “the deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom may constitute persecution.... Such disadvantage might, for instance, involve the deprivation of liberty, food, housing, employment, and other essentials of life.” Li v. Att’y Gen. of the United States, 400 F.3d 157, 168 (3d Cir.2005) (quotation omitted). This is a high standard. For example, in Li, the petitioner: was fined more than a year and a halfs salary; blacklisted from any government employment and from most other forms of legitimate employment; lost health benefits, school tuition, and food rations; and had household furniture and appliances confiscated. Id. at 169. Yang’s plight pales in comparison. Although Yang lost his job, there is no evidence indicating that he was unable to obtain or was barred from obtaining other employment or subjected to other economic sanctions. Accordingly, he was not economically persecuted.
Second, the beating Yang endured during his nine hours of detention, although offensive and deplorable, is not persecution. In Jarbough v. Attorney General of the United States, for example, we held that there was no persecution where the petitioner was confined for more than two days and was threatened with wires and electrical cables, screamed at, cursed at, threatened, kicked, shoved, pushed, and prodded, resulting in bruising. 483 F.3d 184, 191 (3d Cir.2007). Because Yang’s purported persecution is no more severe than Jarbough’s, it does not merit relief. Third, and finally, the request that Yang draft a letter of self-criticism does not rise to the level of persecution.
Yang also cannot demonstrate a fear of future persecution. In his application for relief, Yang claims that if he returned to China he would be arrested and sent to prison. Those allegations, however, conflict with the Department of State’s observation that those who assist others in efforts to violate China’s one-child policy are subject to withholding of social services, higher tuition costs, job loss or demotion, loss of promotion opportunity, and administrative punishments, including the destruction of property. Accordingly, Yang cannot establish a well-founded fear of future persecution.
*330Because Yang cannot meet his burden of proof with respect to asylum, he is ineligible for withholding of removal. Wong, 539 F.3d at 236-37.
Finally, Yang did not challenge the IJ’s denial of CAT protection before the BIA and is barred from challenging that decision before us. 8 U.S.C. § 1252(d)(1).
IV.
We will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479215/ | OPINION
BARRY, Circuit Judge.
A.G., by and through her mother, filed for a due process hearing challenging, among other things, the Wissahickon School District’s (the “District”) provision of a free appropriate public education (“FAPE”) and its compliance with the Individuals with Disabilities Education Act’s (“IDEA”) mainstreaming requirement.1 The Pennsylvania Appeals Panel ordered the District to include A.G. in one regular, academic course and denied compensatory education. The District Court affirmed and, in a later order, denied A.G.’s application for attorneys’ fees. We will affirm both orders.
I.
A.G. is a non-verbal, highly distractible eighteen-year-old. She suffers from severe mental retardation, has static, non-progressive encephalopathy, vision problems, and developmental delays. She is unable to identify letters, numbers, or colors, cannot match items, and has difficulty dressing, undressing, eating, grasping a pencil, and brushing her teeth. She is not yet toilet trained.
The District proposed that A.G. be placed in a full-time life skills support class for the 2003-2004 school year, and provided for A.G.’s mainstreaming for school assemblies, lunch, homeroom, gym, and recess. That placement prompted A.G. to file an administrative action in Pennsylvania alleging, among other things, that: (1) she was denied a FAPE because the District failed to educate her in the least restrictive environment (“LRE”); and (2) that denial entitled her to compensatory education. The Hearing Officer concluded that because A.G. was not educated in the LRE, she was denied a FAPE, and directed that she be fully mainstreamed and awarded compensatory education. The Appeals Panel, however, ordered that A.G. need only be mainstreamed for lunch, recess, physical education, homeroom, music, art, and one academic class, and reversed the compensatory education order.
A.G. then filed an action in federal court seeking full mainstreaming and compensatory education. In light of the Supreme Court’s opinion in Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005), however, which shifted the burden of persuasion in IDEA cases, the District Court remanded the matter to the Hearing Officer. In 2006, the Hearing Officer again concluded that A.G. was not provided education in the LRE, and again ordered compensatory education and that A.G. be fully mainstreamed. The Appeals Panel once more disagreed. The Appeals Panel concluded that A.G. should be mainstreamed in at least one academic class and reversed the requirement of compensatory education.
The District Court affirmed, concluding that the District provided A.G. with a *333FAPE and that compensatory education was improper. In a separate order, the Court denied A.G.’s motion for attorneys’ fees related to the 2006 administrative proceedings.2
II.
Where a state has a two-tiered administrative structure, the federal court should begin its review with the appellate opinion. Carlisle Area Sch. v. Scott P., 62 F.3d 520, 528-29 (3d Cir.1995). A district court reviews the administrative determination under a modified de novo standard. L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir.2006). Factual findings are based on a preponderance of the evidence with “due weight” afforded to the agency’s determinations. Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir.2004).
We exercise plenary review over questions of law, but review a district court’s factual findings for clear error. Ramsey Bd. of Educ., 435 F.3d at 389 (quotation omitted). We review a district court’s denial of attorneys’ fees for abuse of discretion. Pardini v. Allegheny Intermediate Unit, 524 F.3d 419, 422 (3d Cir.2008).
III.
A.
The IDEA provides that school districts must to the “maximum extent appropriate” educate children with disabilities “with children who are not disabled.” 20 U.S.C. § 1412(a)(5)(A). Referred to as the IDEA’S mainstreaming component, the statute requires that a disabled child be placed in the LRE. See Ramsey Bd. of Educ., 435 F.3d at 390.
In Oberti v. Board of Education, we set forth a two-part test to determine whether a school district is complying with the mainstreaming requirement. 995 F.2d 1204, 1215 (3d Cir.1993). First, a “court must determine whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily.” Id. (quotation omitted). Second, if placement outside the regular classroom is necessary, then a “court must decide whether the school has mainstreamed the child to the maximum extent appropriate.” Id.
With respect to the first inquiry, Oberti required that a court consider:
(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class.
Id. at 1217-18.
The first factor calls upon us to determine whether the District considered the “whole range of supplemental aids and services,” including “efforts to modify the regular education program to accommodate” A.G. Id. at 1216. Mere token gestures are insufficient. Id. Here, the District implemented numerous supplemental aids and services, including: (1) modification of curriculum and materials; (2) modification of assignments to comport with A.G.’s Individualized Education Plan (“IEP”); (3) provision of a one-on-one aide; (4) additional interaction with the regular classroom teacher; (5) small group and one-on-one instruction; (6) consultation between *334special education and regular education teachers; (7) adapted equipment; and (8) extensive teacher-parent communication. The District Court concluded that the District provided substantial support in the form of supplemental aids and services. We agree.
Next, we compare the educational benefits A.G. would receive in a regular classroom (with supplementary aids and services) with the benefits she would receive in a special education class. In so doing, we are mindful of the unique benefits a special needs child may obtain from mainstreaming, such as the development of social and communication skills. Id. at 1216. Here, the record demonstrates that A.G. made little if any progress on her academic goals in her mainstreamed courses and received little educational benefit from her mainstreaming. Moreover, A.G. had minimal to no interaction with the regular education students. That lack of progress must be juxtaposed with the progress she made on life skills such as eating, navigating the school, acknowledging people, dressing, hand washing, toileting, and use of expressive language while enrolled in life skills curriculum.
Finally, we consider the effect of A.G.’s mainstreaming on the other students in the regular classroom. A.G. is prone to frequent, loud vocalizations that negatively impact her classmates. She distracts her peers by removing her shoes and socks, inappropriately clapping and grinding her teeth, having difficulty toileting, and, on occasion, inappropriately touching other students. Although not excessive nor dis-positive, those disruptions are notable.
Applying the Oberti factors, the District Court concluded that A.G. cannot be satisfactorily educated full-time in a regular classroom with supplementary aids and services. That conclusion was not clearly erroneous.
With that conclusion in place, we turn to the second step — determining whether the District has mainstreamed A.G. to the maximum extent possible. The Appeals Panel decision required that A.G. be mainstreamed for lunch, recess, physical education, homeroom, music, art, and one academic class. The District complied, and we agree with the District Court’s finding that A.G. is being educated in the LRE.
B.
Under the IDEA, “the denial of an appropriate education ... creates the right to compensatory education.” Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 250 (3d Cir.1999) Thus, the “right to compensatory education accrues when the school knows or should know that the student is receiving an inappropriate education.” Id.
Contrary to A.G.’s conflation of the two concepts, FAPE and LRE are distinguishable, a proposition supported by T.R. v. Kingwood Township Board of Education, 205 F.3d 572, 578 (3d Cir.2000). There, we affirmed the district court’s finding that the student received a FAPE, but vacated the district court’s holding that the student’s placement was the LRE. Id. at 575. T.R. demonstrates that a school district can provide a student a FAPE while failing to educate a student in the LRE.
Thus, for purposes of entitlement to compensatory education, the ultimate inquiry is two-fold: (1) did the school district provide the student with a FAPE and (2) if it failed to do so, when did the school district know of that failure?
A school district provides a FAPE by designing and administering an IEP “reasonably calculated to enable the child to receive meaningful educational benefits in light of the student’s intellectual potential.” Shore Reg’l High Sch. Bd. of Ed., *335381 F.3d at 198 (quotation omitted). Here, the District Court correctly found that the District provided A.G. with a meaningful educational benefit, as evidenced by the advances she made in life skills, such as hygiene, toileting, eating, navigating the school, and acknowledging people, and provided her with an IDEA compliant education. An award of compensatory education would have been improper. See Lauren W. v. DeFlaminis, 480 F.3d 259, 272-73 (3d Cir.2007).
IV.
Finally, we review the District Court’s denial of AG.’s motion for attorneys’ fees incurred with respect to the 2006 administrative proceedings.
The IDEA provides that a “court, in its discretion, may award reasonable attorneys’ fees ... to a the prevailing party.” 20 U.S.C. § 1415(i)(3)(B). To qualify as a prevailing party, a plaintiff must “succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” John T. v. Del. County Intermediate Unit, 318 F.3d 545, 555 (3d Cir.2003) (quotation omitted). The “touchstone” of the inquiry is “the material alteration of the legal relationship of the parties.” Id. (quotation omitted).
Here, A.G.’s federal complaint sought full mainstreaming and compensatory education. The federal action, however, achieved nothing more than was awarded by the Appeals Panel. Because A.G. was not a prevailing party, the District Court did not abuse its discretion in denying her motion for attorneys’ fees.
Y.
We will affirm the orders of the District Court.
. Integrating children with disabilities in regular classrooms is commonly known as "mainstreaming.
. The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479218/ | OPINION OF THE COURT
NYGAARD, Circuit Judge.
This appeal arises from the January 18, 2008 judgment of the District Court resolving a dispute over title to a strip of land bordering on, and land beneath, a lake in Pennsylvania. Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the judgment of the District Court.
Both parties, appellants Lori Dring and Nancy Asaro (“Dring”), and appellee Ariel Land Owners, Inc., assert chains of title which allegedly give them rights to the same strip of land bordering a lake. Ariel’s ownership of the lake is also at issue. This case is unique and complex because of attenuated chains of title. Additionally, the property lines depend to some degree on the water line of the lake, which fluctuates seasonally between 1423.5 feet to 1425.9 feet above sea level by operation of a man-made dam at the end of the lake.
I.
Dring first claims that the District Court was compelled to grant a Rule 52(c) motion to dismiss the case at the close of Ariel’s case-in-chief. Dring argues that Ariel did not provide sufficient evidence to describe and prove the boundaries of the land claimed. Rule 52(c) clearly gives the court broad discretion on the timing of its judgment. We disagree that the District Court was under any such compulsion to rule before it heard all of the evidence from both parties. Given the complexity of this case and the intricate analysis of evidence required here, the District Court was well within its discretion to deny the Rule 52 motion to dismiss at the close of Ariel’s case-in-chief.
Similarly, we do not find any merit in Dring’s assertion that the District Court was required to insert two of its factual findings into the judgment that it issued. Dring initially complains that the judgment should have stated that Ariel did not own the lake by deed. The issue at bar, however, was title to the lake. The District Court found that Ariel’s ownership of the lake could not be established by record title, but could be found on the basis of adverse possession. Accordingly, the Court rendered judgment, stating: “Judgment be and hereby is entered in favor of Ariel Land Owners, Inc. and against Lori Dring and Nancy Asaro as to title by adverse possession of Lake Ariel and Mud Pond to a level of 1423.5 feet above sea *349level.” This language definitively resolves the issue at bar. Therefore the District Court properly denied Dring’s Motion seeking emendation of the judgment.
Similarly, Dring complains that the judgment should specifically detail the low water level as 1423.5 feet above sea level, and the high water level as 1425.9 feet above sea level. The judgment states:
Judgment be and hereby is entered in favor of Lori Dring and Nancy Asaro and against Ariel Land Owners, Inc. as to record title of the South Strip of 2.4 feet, the difference between the natural water level of Lake Ariel and Mud Pond, and the high water mark of same.
The judgment also concludes: “Judgment be and hereby is entered in favor of Ariel Land Owners, Inc. and against Lori Dring and Nancy Asaro as to a prescriptive easement in the South Strip of 2.4 feet to a level of 1425.9 feet above sea level.” We find these statements to be sufficiently clear. The District Court did not err in denying Dring’s motion to reconsider.
Next, Dring challenges the District Court’s ruling that gave ownership of the land under the lake to Ariel on the basis of adverse possession. They claim that, since a prior settlement reduced the claims at trial to Count I of the amended complaint, the District Court was limited to the issue of whether the deed proffered by Ariel was proof of their ownership of the land underneath the lake. Their characterization of Count I is simply incorrect.
Although Ariel explicitly noted its possession of a deed that, it maintained, proved its ownership, Ariel also contended that it has been “in actual possession of and has exercised dominion and control over the entire body of water commonly known as Lake Ariel and Mud Pond....” Moreover, in Count I, Ariel sought an order giving it “fee simple title to the property,” and it also requested “such other and further orders as are necessary for the granting of proper relief to [Ariel] herein be made as the case may require or as the court may deem proper.” As Dring concedes in the brief, “a court is not limited to granting relief to a party solely on the basis of theories of recovery set forth in the pleadings.” We find that Count I was sufficiently broad to place Dring on notice that adverse possession was a possible means by which Ariel would assert title to the land under the lake in Count I. The District Court properly considered and rendered judgment on this basis.
Dring also challenges the substance of the District Court’s adverse possession ruling. The District Court concluded that, since 1964, Ariel maintained actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land under the lake. The District Court cited primarily to undisputed evidence that, throughout this time, Ariel controlled the water level of the lake by operating a dam that seasonally raised and lowered the water by roughly 2.4 feet. The District Court also took note of evidence that Ariel had the reputation among residents at the lake of being the owner of the lake. The District Court rejected this evidence as proof of its ownership of the strip of land that was seasonally flooded, but stated that the testimony was convincing on the issue that Ariel controlled the water level “legitimately.” We do not find any error in either finding.1
*350Moreover, Dring has not produced, nor did our own research reveal any controlling state precedent on point that would undermine the District Court’s legal conclusion on adverse possession. Dring’s reference to Costello v. Harris, 162 Pa. 397, 29 A. 874 (1894) is misplaced. This case actually supports the District Court’s finding that Ariel did not own the disputed strip of land, but that it did have a prescriptive easement by virtue of the seasonal flooding. Costello is silent on whether the continuous control of the water level of a lake constitutes evidence of adverse possession of the land beneath the lake.2 For these reasons, we find that the District Court properly concluded that Ariel held title to the land under the lake by adverse possession.
Petitioner next challenges the District Court’s ruling that a body of water referred to as “Mud Pond” was distinct from Lake Ariel. As a factual matter, the District Court concluded that their assertion of a separate body of water is unsupported in any of the relevant deeds in the chains of title submitted by the parties. Moreover, our review of the record makes it obvious that the District Court employed considerable effort in culling through a wide array of evidence, including an on-site boat tour.
Although the classification of a body of water is a mixed question of fact and law, the weight of the decision on this issue is factual. Accordingly, we give great deference to the District Court’s conclusion in this regard. We have not found any evidence that would lead us to conclude that the District Court misperceived the record or improperly applied the law in reaching its judgment, and on this basis we conclude that the District Court did not err.
Finally, with regard to an easement held by Dring to the lake, the District Court properly concluded that record evidence is simply insufficient to support such a claim.
II.
With regard to Ariel’s cross appeals, we do not find any merit in then-assertions. The District Court properly concluded that Ariel’s ownership of land underneath the lake did not extend beyond the lowest water level of 1423.5 feet. We do not find any evidence to compel a different factual conclusion from that reached by the District Court concerning the lack of proof of ownership of this strip of land in the chains of title presented to the court. Additionally, as we noted earlier, Pennsylvania precedent makes it clear that occasional intentional flooding of certain property is not, of itself, sufficient to establish ownership of that property. Costello, 162 Pa. 397, 29 A. 874. We also cannot stretch the reputational evidence to suffice as proof of ownership. For these reasons, we do not find any error in the District Court’s decision.
We also agree with the District Court that, beginning with the deed to Joel Jones, dated January 21, 1862, it is clear *351that the strip of land that is the subject of the present litigation was reserved to Edward W. Weston, and that ownership of this strip can be traced to the deed held by Dring and Asaro. Accordingly, the District Court did not err in concluding that Dring and Asaro hold, by record deed, title to the disputed strip of land between the high and low water marks of the lake.
III.
For the reasons stated above, we will affirm the judgment of the District Court.
. Dring and Asaro point to testimony by Ariel's lake manager that his activity dated only to 1989, and also to his statements that Ariel did not ever believe it owned the body of water known as "Mud Pond.” However, the record demonstrated Ariel’s control of the water level for seventy-six years. Moreover, the District Court's ruling that Lake Ariel and Mud Pond were one body of water eliminates *350the significance of testimony focused upon that portion of the lake.
. Similarly, Dring and Asaro's reference to Miller v. Lutheran Conference & Camp Ass'n, 331 Pa. 241, 200 A. 646 (1938); Camp Chicopee v. Eden, 303 Pa. 150, 154 A. 305 (1931); Shaffer v. Baylor’s Lake Ass’n, 392 Pa. 493, 141 A.2d 583 (1958); and Loughran v. Matylewicz, 367 Pa. 593, 81 A.2d 879 (1951) are unavailing because all of them focus upon fact patterns of "occasional use” of property. While Flickinger v. Huston, 291 Pa.Super. 4, 435 A.2d 190 (1981) involves more than occasional use, it is distinguished by its focus upon landed property. Continuous control of the water level of an entire lake is qualitatively distinct. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479223/ | OPINION
PER CURIAM.
Ruth Giovanna Valencia Procel seeks review of the Board of Immigration Appeals’ (“BIA”) final order dismissing her appeal of the Immigration Judge’s (“IJ”) denial of her application for withholding of removal and relief under the Convention Against Torture (“CAT”). We will deny the petition.
Procel is a native and citizen of Ecuador. She entered the United States on a B2 visa in 2001 and later returned to the United States on a second B2 visa in July 2003. Procel overstayed her second visa and was issued a Notice to Appear in April 2005. In April 2007, she filed an application seeking withholding of removal and protection under the CAT, claiming that she fears future persecution because, as a female living in Ecuador, she would be subject to gender-based violence.1
In March 2008, the IJ denied Procel’s application. Although he found her testimony to be credible, he concluded that the evidence she presented did not support a finding that she experienced past persecution, or would be subject to future persecution, on account of her gender. Procel appealed and, in an April 2009 decision, the BIA affirmed the IJ’s ruling. Procel filed a timely petition for review in this Court.
This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a). “[WJhen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). The BIA’s factual determinations are upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
In order to obtain withholding of removal, Procel bears the burden of establishing that she would “more likely than not” suffer persecution in Ecuador on account of her race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A); see also Wu v. Ashcroft, 393 F.3d 418, 423 (3d Cir.2005). This requires her to show a “clear probability” of persecution. INS v. Stevie, 467 U.S. 407, 429, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). In order to establish eligibility for withholding of removal based on past persecution, Procel must further demonstrate a sufficient “nexus” between the alleged persecution she suffered and a protected ground. See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir.2009). While she need not demonstrate that the protected ground was the exclusive motivation behind the persecution, she must provide some evidence of motive, whether *356direct or circumstantial. See Lie v. Ashcroft, 396 F.3d 530, 535 (3d Cir.2005).
For relief under the CAT, Procel must demonstrate that it is more likely than not that she would be tortured if removed to Ecuador. See 8 C.F.R. § 1208.16(c)(2). Under the relevant regulation, torture means “severe pain or suffering” inflicted at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. See 8 C.F.R. § 1208.18(a)(1).
At her administrative hearing, Procel testified that while she lived in Ecuador, on one occasion, while working at a hotel, she was propositioned by a male guest, and that the guest was asked to leave by her supervisor. On another occasion, she testified that she was robbed by three unknown men in a park. She further testified about an incident when she was robbed by unknown men, during which she was pushed to the ground and hit with a pistol. When asked by the IJ if she had reported any of the incidents to police, Procel stated that she had not.
We find that substantial evidence supports the BIA’s conclusion that Procel was unable to establish a sufficient nexus between the attacks she described and a protected ground. The evidence that Pro-cel presented does not support a finding that her attackers sought to harm her on account of her identifying characteristics. Rather, it appears that she was the victim of criminal acts not linked to any enumerated ground. At her administrative hearing, Procel admitted that her brother had also been the victim of a robbery, supporting the conclusion that the violence that Procel experienced stemmed from what appears to be a generalized crime problem in Ecuador. See Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir.2001) (mere generalized lawlessness and violence between diverse populations is not sufficient to grant asylum).
Moreover, even if Procel had been able to demonstrate a nexus, she did not show that authorities were unable or unwilling to investigate or control the attacks she endured. See Lie v. Ashcroft, 396 F.3d at 537-38 (stating “as with any claim of persecution, violence or other harm perpetrated by civilians ... does not constitute persecution unless such acts are ‘committed by the government or forces the government is either ‘unable or unwilling’ to control.’ ”). Procel did not give the police an opportunity to investigate her attackers, and she produced no evidence that they were unwilling to do so in her case.
Finally, the BIA did not err when it concluded that Procel did not establish a basis for relief under the CAT, as she did not demonstrate that it is more likely than not that she would be tortured if returned to Ecuador. Accordingly, we will deny the petition for review.
. Procel was ineligible for asylum because she did not file an application for such relief within one year of her arrival. See 8 U.S.C. § 1158(a)(2)(B). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479224/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
In 2007, a jury found Michael Curtis Reynolds guilty of multiple terrorism-related crimes, and the District Court sentenced him to 360 months of imprisonment, three years of supervised release, and a fine of $500. On appeal, Reynolds raises the following issues: (1) whether the evidence submitted at trial was sufficient to find him guilty of the five counts he was convicted of; (2) whether the “master” affidavit of probable cause for the search warrants contained a reckless or intentional material misstatement of fact; (3) whether perjured trial testimony was used to support the conviction; (4) whether the United States vindictively prosecuted Reynolds; and (5) whether Reynolds’s right to a speedy trial was violated. We will affirm the order of the District Court.
I.
Since we write only for the benefit of the parties, we state only the facts that are necessary as background. An FBI source, Shannon Rossmiller, discovered a message from October 25, 2005 that Reynolds posted on an on-line message board soliciting help for what appeared to be a terrorist plan. In early November 2005, after finding similar messages also posted by Reynolds, Rossmiller began direct communication with Reynolds through email correspondence. In his response to her initial email, Reynolds stated that his plan would cause the United States to bring its troops home. (Appellate Br. at 13, citing Tr. 124.) Over the course of the next month, Rossmiller communicated interest in Reynolds’s plans, Reynolds described the plans generally, and both parties discussed payment arrangements. Reynolds was arrested by an FBI tactical team on December 5, 2005 near Pocatello, Idaho, while he was attempting to retrieve reward money promised to him by an undercover FBI agent.
After his arrest, Special Agent Noone, of the FBI’s Scranton Resident Agency, informed Reynolds of his constitutional rights, and Reynolds waived those rights. Reynolds confessed that he believed he was communicating with an organization tied to al-Qaeda, but he denied being a *359terrorist. He claimed that he was attempting to gain information about al-Qae-da in order to turn it over to a private paramilitary organization with which he had been associated in the 1980s. He had not contacted anyone at the organization about his plan, nor had he communicated this idea to anyone else.
Illustrative operational plans for the attack were found on Reynolds’s computer. Reynolds’s plans for an explosive device were detailed and thorough. At the time of Reynolds’s arrest, a search warrant was executed at his rented storage unit, and an officer found a live hand grenade in the unit.
On December 20, 2005, a grand jury indicted Reynolds on two counts of possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d). Reynolds pleaded not guilty. His court-appointed attorney was then permitted to withdraw and substitute counsel was appointed by the court. On June 7, 2006, Reynolds’s second court-appointed counsel moved to withdraw. Over the next month, Reynolds filed 11 pro se motions, while the District Court appointed Reynolds’s third attorney on June 11, 2006.
On October 3, 2006, before a scheduled hearing date on Reynolds’s outstanding motions, the grand jury returned a six-count superseding indictment.1 Though Reynolds was represented by court-appointed counsel, he filed 23 pro se motions in the form of letter motions, writs, and complaints.2 On May 18, 2007, Reynolds’s counsel filed a motion to suppress evidence and a motion to dismiss the indictment for violation of the Speedy Trial Act. The court denied the suppression motion, and on July 2, 2007 issued a memorandum opinion rejecting the motion for violations of the Speedy Trial Act.
On July 9-12, 2007, Reynolds was tried by U.S. District Judge Kosik before a jury. The jury found Reynolds guilty of five of the six counts. Reynolds was acquitted of one count of possessing an unregistered destructive device. Reynolds prematurely filed his notice of appeal on July 23, 2007. On November 6, 2007, the District Court sentenced Reynolds to 360 months of imprisonment, three years of supervised release, and a fine of $500. We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and will address *360the issues raised by Reynolds as listed above.
II.
a.Sufficiency of Evidence
We engage in plenary review over a challenge to the sufficiency of evidence. United States v. Omoruyi, 260 F.3d 291 (3d Cir.2001). In conducting this review, the court “must sustain a jury’s verdict if a reasonable jury believing the government’s evidence could find beyond a reasonable doubt that the government proved all the elements of the offenses.” United States v. Rosario, 118 F.3d 160, 163 (3d Cir.1997) (internal citation and quotation marks omitted).. This “places a very heavy burden on the appellant.” Id. Review of sufficiency claims are “guided by strict principles of deference to a jury’s verdict.” Id.
Reynolds argues that the government’s claims are supported by insufficient evidence, because he did not own a computer monitor to enable him to send email prior to November 23, 2005. In addition, Reynolds asserts (erroneously) that because the government did not dispute this fact in its rebuttal argument, it must be accepted as true. Even if we were to find this to be persuasive, this would not establish that the evidence supporting the jury’s verdict was insufficient. The government proved that emails were sent from an email address Reynolds controlled, under an alias that Reynolds used, and were sent from Pennsylvania at a time that Reynolds admits he was located in the Middle District. Whether they were sent from Reynolds’s personal computer or from some other computer to which he had access, Reynolds’s assertion that his own computer had no monitor does not render the government’s evidence insufficient. The jury had an opportunity to consider this issue for itself at trial. Therefore, we find that Reynolds has failed to overcome the significant hurdle to overturning a conviction on the basis of a claim of insufficient evidence.
b.“Master” Affidavit and Probable Cause
Whether the “master” affidavit for probable cause for the relevant search warrant contained a misstatement of fact, and whether any such misstatement was intentionally or recklessly made, are factual questions to be resolved by the District Court in the first instance in response to a suppression motion raising such issues. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Such misstatements will lead to suppression of evidence only if they were material to the finding of probable cause. United States v. Brown, 3 F.3d 673, 678 n. 6 (3d Cir.1993). Materiality is a legal question subject to plenary review. United States v. Yusuf, 461 F.3d 374, 387-89 (3d Cir.2006).
Reynolds did not assert the existence of a specific misstatement of fact in the District Court. Thus, there is no factual determination by the District Court to review. Reynolds filed a motion to suppress the fruits of the search of his storage unit. However, he only asserted that the master affidavit did not establish probable cause, not that there was a misstatement of fact. (Mot. to Suppress Evidence, Doc. No. 179.) The issue is therefore reviewed only for plain error. Fed.R.Crim.P. 52(b). We find Reynolds’s argument unpersuasive. Reynolds fails to assert a misstatement, let alone a misstatement that was intentional or reckless and was material to finding probable cause.
c.Perjured Trial Testimony
In his brief, Reynolds alleges that certain individuals committed perjury during the trial. To establish a due process *361violation premised upon the government’s knowing use of perjured testimony, a Defendant must show that (1) a government witness committed perjury, (2) the Government knew or should have known of the perjury, (3) the perjured testimony went uncorrected, and (4) there is a reasonable likelihood that the false testimony could have affected the verdict. United States v. Hoffecker, 530 F.3d 137, 183 (3d Cir.2008).
Whether a witness’s testimony was false, and the government’s actual or imputed knowledge thereof, are factual questions to be determined by the District Court in the first instance. This Court will not overturn the findings unless such findings are unsupported by evidence. Government of the Virgin Islands v. Lima, 774 F.2d 1245, 1251 (3d Cir.1985). Outside of stating his innocence and testifying in his own defense in a manner inconsistent with the testimony of several government witnesses, Reynolds failed to preserve this issue in the District Court. As such, this inquiry is subject to review only for plain error. Fed.R.Crim.P. 52(b).
Reynolds’s perjury allegations are based on his claim that Kevin Reardon, his brother-in-law, lied. Specifically, Reynolds contends that Reardon planted the grenades in the storage unit and committed perjury by stating otherwise. No evidence was presented to establish Reynolds’s claim. Thus, he fails the first prong of the Hoffecker test, and has not even suggested that he could meet the second. Accordingly, we find that he has not met his burden on this issue.
d. Vindictive Prosecution
Reynolds did not allege that the government’s prosecution of him was vindictive in the District Court. Therefore, the issue is subject to review only for plain error. Fed.R.Crim.P. 52(b).
Prosecutorial vindictiveness may be found when the government penalizes a defendant for invoking legally protected rights. United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). There is no prosecutorial vindictiveness, however, where the prosecutor’s decision to prosecute is based on the usual determinative factors. United States v. Oliver, 787 F.2d 124, 126 (3d Cir.1986). Reynolds bears the burden of proving prosecutorial vindictiveness. United States v. Paramo, 998 F.2d 1212, 1220 (3d Cir.1993). He may meet his burden by either (1) using evidence of the prosecutor’s retaliatory motive to prove actual vindictiveness, or (2) proving facts that in certain circumstances give rise to a presumption of vindictiveness. Id. Courts will apply a presumption of vindictiveness only where there exists a “realistic likelihood of vindictiveness.” Id.
Reynolds fails to allege any facts that could support a finding of actual vindictiveness, or a presumption of vindictiveness other than that more serious charges were brought after the initial indictment. Reynolds’s original two-count indictment followed his arrest by just fifteen days. Nine-and-a-half months after the original indictment, and after a more thorough investigation, a more comprehensive indictment was issued. Moreover, Reynolds offers no evidence of the prosecution having an actual retaliatory motive. Thus, Reynolds has not sustained his burden for this claim as he has not established facts giving rise to a presumption of vindictiveness or evidence of an actual retaliatory motive.
e. Speedy Trial
Reynolds appeals the denial of a motion to dismiss the indictment, claiming a violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. Section 3161(h) of the Act permits the exclusion of periods of *362delay in the calculation of the seventy-day time limit for the commencement of trial. Properly excluded periods of delay include pretrial motions, from filing to their disposition, and any period of delay from a continuance provided there is an ends of justice reason given by the court.3
As the District Court’s memorandum opinion states, the speedy trial period began to run when Reynolds was arraigned on the original indictment on January 3, 2006. The eventual trial was held on July 9, 2007. Reynolds’s counsel filed a motion on January 12, 2006 to review his previous detention by a magistrate judge. On January 19, 2006, Reynolds’s counsel filed a motion to withdraw from the case due to irreconcilable differences. New counsel was appointed shortly thereafter. In March 2006, the bail motion was withdrawn, and the defense filed ex parte motions for discovery and authority to hire expert services. In May 2006, the second court-appointed attorney sought to withdraw due to irreconcilable differences. At this point, Reynolds also filed several pro se motions.
On July 17, 2006, Reynolds’s third court-appointed attorney was assigned, and moved for discovery soon after. Throughout the remainder of the 2006 summer and into the fall, Reynolds filed numerous pro se motions despite having legal representation. The District Court found that there were outstanding motions for the entirety of this time frame except for the eight days between Reynolds’s arraignment and the motion to review his detention, and a period of nine days from March 14-28, 2006. United States v. Reynolds, No. 3:CR06-493, 2007 WL 1959302, at *4 (M.D.Pa. July 2, 2007).
On October 3, 2006, a superseding indictment containing four additional charges was returned. If a superseding indictment charges a new offense that did not have to be joined with the original indictment, then the subsequent indictment begins a new, independent speedy trial period. United States v. Lattany, 982 F.2d 866, 872 n. 7 (3d Cir.1992). On the same day as the issuance of the superseding indictment, the court ordered a competency exam for Reynolds. Pursuant to section 3161(h)(1)(F), the District Court properly excluded the time period Reynolds was committed for his competency exam, which began on October 11, 2006 and ended on January 5, 2007. Reynolds continued to file numerous pro se motions from October 2006 into April 2007. The District Court properly excluded these pro se motions in addition to other counseled defense motions for enlargements of time to file pretrial motions, defense motions for continuances of trial, and defense motions for pretrial relief from the time between Reynolds’s arraignment on the superseding indictment and the commencement of trial pursuant to section 3161(h)(1)(F). Therefore, the District Court stated that, at best, non-excluded time was minimal, and there was no violation of the Speedy Trial Act for the first or second indictment.
Additionally, prejudice or lack of prejudice to the defendant is also a factor to be contemplated. United States v. Taylor, 487 U.S. 326, 339-41, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988). We agree with the District Court’s finding that the non-ex-eludable delay was minimal, and it was not prejudicial to Reynolds.
*363III. Conclusion
For the foregoing reasons, we will affirm the Judgment and Commitment Order of the District Court.4
. Count 1: attempting to provide material support and resources to a foreign terrorist organization in violation of 18 U.S.C. § 2339B; Count 2: attempting to provide material support and resources to damage or destroy property used in commerce by means of fire or explosive, and to damage or attempt to damage an interstate gas pipeline, in violation of 18 U.S.C. § 2339A; Count 3: solicitation or inducement of another to damage or destroy property used in commerce by means of fire or explosive, and to damage or attempt to damage an interstate gas pipeline in violation of 18 U.S.C. § 373; Count 4; distribution through the internet of information demonstrating the making or use of an explosive or destructive device with the intent that the information be used to commit a federal crime of violence in violation of 18 U.S.C. § 842(p)(2); and Counts 5 and 6: two counts of possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d).
. Reynolds included in his statement of questions for appeal that the District Court refused to decide his pro se motions. However, he made no actual argument supporting his contention in the body of his brief. It is a well-established rule that the failure to argue an issue in an opening brief constitutes waiver of that issue on appeal. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005); see also Laborers’ Intern. Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir.1994) (citation omitted) ("An issue is waived unless a party raises it in its opening brief, and for those purposes 'a passing reference to an issue ... will not suffice to bring that issue before this court.’ ")
. See Bloate v. United States, — U.S. -, 130 S.Ct. 1345, 1350-52 & n. 7, 176 L.Ed.2d 54 (2010) (acknowledging that delay resulting from defendant's pretrial motion is automatically excluded under § 3161(h)(1)(D)).
. In addition to the arguments discussed, Reynolds raised additional arguments that we have considered, and which we also find to be meritless. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479226/ | OPINION OF THE COURT
PER CURIAM.
Faith Oladejo petitions for review of an order of the Board of Immigration Appeals (BIA), which denied his third motion to reopen his removal proceedings. We will grant the petition for review.
*364Oladejo, a native and citizen of Nigeria, entered the United States in 1989 without permission. About four years later, he filed an asylum claim, based on a fear of persecution because of his conversion from Islam to Christianity. On February 21, 2001, an Immigration Judge (IJ) found him removable as charged and denied relief, but granted voluntary departure. The Board of Immigration Appeals (BIA) dismissed his appeal on November 28, 2003.
Oladejo filed a motion to reopen in March 2005, claiming neither he nor counsel had received the BIA’s 2003 decision. On May 10, 2005, the BIA denied the motion as untimely, discounting the allegation that the decision had not been received. Oladejo, proceeding pro se, filed a second motion to reopen in February 2007, alleging that the time period for filing a motion to reopen should be equitably tolled because of the ineffectiveness of counsel.1 The BIA denied the second motion on June 25, 2007, noting that equitable tolling was unavailable because Oladejo had failed to exercise due diligence, since he had done nothing for about two years after learning that his first motion to reopen had been denied. Oladejo filed a motion for reconsideration of that decision, which the BIA denied on November 29, 2007. Proceeding with new counsel, Ola-dejo then filed a third motion to reopen on February 1, 2008. The BIA denied the third motion to reopen on March 11, 2008, noting that Oladejo had given more specific facts regarding the ineffectiveness of prior counsel, but that he had failed to attribute his delay to that ineffectiveness.2
On March 21, 2008, Oladejo filed a petition for review and motion for stay of removal in the United States Court of Appeals for the Fifth Circuit. That Court transferred the case to the United States Court of Appeals for the Second Circuit, which eventually transferred the case here.
The decision to deny a motion to reopen is within the Board’s discretion. See 8 C.F.R. § 1003.2(a); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001). The deadline for filing a motion to reopen may be equitably tolled by an ineffective assistance of counsel claim. See Borges v. Gonzales, 402 F.3d 398, 407 (3d Cir.2005). Oladejo relied on his first attorney’s advice to continue pursuing adjustment of status through his wife, who was a permanent resident. Oladejo’s church also filed a petition for Special Immigrant-Religious Worker on his behalf.3 Although Oladejo’s attorney eventually informed him of the BIA’s denial of his appeal in 2005, and attempted to reopen the proceedings, the attorney did not explain to Oladejo the consequences of that denial once the BIA denied the motion to reopen. Oladejo continued to diligently pursue his attempts to adjust his status, unaware that the denial of his motion to reopen would preclude adjustment. Oladejo only became aware of the consequences when he received a letter from the agency informing him that his application for permanent residence based on his wife’s petition was denied because of the removal order against him, at which time he again asked the Board to reopen.4 See Ghahremani v. Gonzales, *365498 F.3d 993, 999 (9th Cir.2007) (limitations period tolled until petitioner definitively learns of counsel’s unreasonable performance).
We hold that the Board erred in finding that Oladejo “fail[ed] to attribute the delay in pursuing reopening to ineffective assistance.” A.R. 2. Indeed, it was because his attorney failed to explain the process to him that he continued to pursue adjustment of status in vain, rather than moving again to reopen. We will therefore grant the petition for review and remand to the BIA for further proceedings. The Clerk is directed to issue the mandate forthwith.
. We note that Oladejo complied with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), in establishing his claim that counsel was ineffective.
. The BIA denied a motion for reconsideration of the March decision on May 2, 2008. That order is not at issue here.
. The church’s petition was approved on January 20, 2004.
. In his emergency motion to stay removal, which we granted on Feb. 19, 2010, Oladejo stated for the first time that his wife had since become an American citizen, and had filed an 1-130 Petition on his behalf. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479228/ | Affirmed in part, reversed in part, and remanded by unpublished opinion. Judge SHEDD wrote the opinion, in which Judge KING and Judge BAILEY joined.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Hilarie G. Scarbro, Administratrix of the Estate of Gary Eugene Rummer, appeals the judgment entered in favor of the defendants on her claims under 42 U.S.C. § 1983 for excessive force, inadequate medical care, and conspiracy to deprive Rummer of his constitutional rights. For the following reasons, we affirm in part, but we reverse the district court’s order granting summary judgment in favor of Defendant Deputy Billy Ray Hudson on the inadequate medical care claim, and we remand for further proceedings consistent with this opinion.
I.
A.
In reviewing the district court’s order granting summary judgment to the defendants, we view the facts in the light most favorable to the plaintiff. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Gary Eugene Rummer was arrested and incarcerated for failure to serve the community service portion of his sentence for driving under the influence of alcohol. A few days after he was incarcerated, Rummer began having delusions and summoned a guard. After learning of Rummer’s alcohol addiction, the guard determined that Rummer was suffering from delirium tremens (“DTs”) caused by alcohol withdrawal and moved him to a safekeeping cell for inmates who have medical or mental health issues or who are disruptive. Later that morning, Rummer was taken to the medical unit where Nurse Barfield examined him and treated him for DTs. Rummer was alert, oriented, and walking on his own.
Upon his return to the crowded safekeeping cell, Rummer was stumbling over the other inmates’ mats and bothering them. When the other inmates complained, Deputy Billy Ray Hudson was ordered to move Rummer to a padded cell. Officer Melody Grimes accompanied Hudson and guarded the door to the safekeeping cell.
Hudson entered the room in a “bum rush.” He approached Rummer and grabbed Rummer’s arm to handcuff him, but Rummer did not cooperate. At that point, Hudson took him to the concrete floor head-first from a standing position. Other inmates recalled Rummer’s head hitting the floor with a thud and then hearing Rummer give a “horrific” scream.
After the takedown, Rummer was bleeding from a scratch above his eye. Because Rummer could not walk on his own, the guards carried him to a padded cell where he laid moaning on the cell floor. A supervising officer then decided to call the medical unit, and after the medical staff refused to come to the cell, Hudson and two other officers lifted Rummer into a wheelchair and transported him to the medical unit.
Rummer’s condition had drastically changed since Nurse Barfield first treated him for DTs hours earlier. He was no longer lucid or talking coherently, his glasses were broken, and he had urinated on himself. When Nurse Barfield asked Hudson if Rummer had fallen, Hudson responded, “No, he did not fall,” and failed to inform her of the takedown events. *369Unaware of Rummer’s head injury, Nurse Barfield prescribed medication for DTs and recommended that Rummer be transferred to Central Prison, a larger facility where he could be monitored more closely.
Rummer was likely unconscious when he was transported to Central Prison. When Central Prison staff observed Rummer’s condition, they immediately sent him to Wake Medical Center. There, Rummer’s CAT scan revealed a large acute subdural hematoma. Rummer was pronounced dead after an unsuccessful operation. According to Rummer’s physician, the most important factor in treating this type of injury is the amount of time it takes for the injured person to receive treatment.
An autopsy revealed that Rummer died from blunt force head trauma and that he had also recently sustained a neck fracture and a bruised right eyebrow. His injuries and rapid deterioration are consistent with his being thrown to the ground from a standing position and hitting his head.
B.
After Rummer’s death, Scarbro filed an action against various members of the New Hanover County Sheriffs Department and the New Hanover County Health Department asserting claims of excessive force, inadequate medical care, conspiracy, and supervisor liability pursuant to 42 U.S.C. § 1983, and supplemental state law claims of medical negligence and wrongful death.1 The district court dismissed Searbro’s claims against most of the defendants2 and eventually granted summary judgment in favor of the remaining defendants, including Hudson.
II.
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We review the district court’s order granting summary judgment de novo. Jennings v. Univ. of North Carolina, 482 F.3d 686, 694 (4th Cir.2007) (en banc).3
A.
First, Scarbro argues that the district court erred in granting Hudson summary judgment on the excessive force claim. A pretrial detainee’s claim of excessive force is governed by the Due Process Clause of the Fourteenth Amendment. Orem v. Rephann, 523 F.3d 442, 446 (4th Cir.2008). To succeed on such a claim, the plaintiff must demonstrate that the defendant “inflicted unnecessary and wanton pain and suffering” upon the detainee. Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); Iko v. Shreve, 535 F.3d 225, 239 (4th Cir.2008). This determination turns on whether the force was applied “in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078 (internal quotation marks omitted); Wilkins v. Gaddy, — U.S.-, 130 *370S.Ct. 1175, - L.Ed.2d - (2010) (describing this as the “core judicial inquiry”). Moreover, we must accord due deference to an officer’s efforts to restrain a detainee when faced with a dynamic and potentially violent situation; otherwise, “we would give encouragement to insubordination in an environment which is already volatile enough.” Grayson v. Peed, 195 F.3d 692, 697 (4th Cir.1999).
To the extent that there are differences in the witnesses’ testimony regarding how the takedown occurred, there is no evidence suggesting that Hudson applied force in a malicious, wanton, or sadistic manner. When Hudson grabbed Rummer’s arm to handcuff him, Rummer did not cooperate; Hudson then took Rummer to the floor, which was covered by mats, and handcuffed him. During the take-down, the mats covering the floor apparently shifted, allowing Rummer’s head to hit the concrete floor. However, this is not evidence that Hudson’s purpose was malicious, sadistic or wanton. Therefore, we find that the evidence fails to establish that Hudson used excessive force in subduing Rummer. Accordingly, we affirm the district court’s order granting summary judgment to Hudson as to Searbro’s claim of excessive force.
B.
Searbro also argues that the district court erred in granting Hudson summary judgment as to her inadequate medical care claim. She challenges the district court’s finding that there is no genuine issue of material fact as to whether Hudson subjectively lmew of Rummer’s serious medical need.4
Searbro bears the burden of establishing that Hudson’s conduct constituted a constitutional violation. Henry v. Purnell, 501 F.3d 374, 377 n. 2 (4th Cir.2007). The rights of a pretrial detainee complaining of inadequate medical care under the Fourteenth Amendment “are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). To prevail on a claim of inadequate medical care, Searbro must produce evidence of acts or omissions sufficiently harmful to constitute deliberate indifference to the inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
First, Searbro must show that the injury was objectively serious. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Then, she must show that Hudson subjectively knew of Rummer’s serious medical need. Id. at 834-35, 114 S.Ct. 1970. A factfinder may infer that a prison official knew of a substantial risk of harm from the fact that the risk was obvious, id. at 842, 114 S.Ct. 1970, or from the fact that the inmate’s need for medical attention was “ ‘so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’ ” Iko, 535 F.3d at 241 (citation omitted). Finally, Searbro must show that Hudson acted with deliberate indifference to Rummer’s serious medical need. Farmer1, 511 U.S. at 835, 114 S.Ct. 1970. An officer can be held liable for deliberate indifference only where “the official knows of and disregards an excessive risk to inmate health or safety.” Id. at 837, 114 S.Ct. 1970; see Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir.2004) (citation omitted) *371(“[T]he evidence must show that the official in question subjectively recognized that his actions were ‘inappropriate in light of that risk.’ ”).
Turning to the facts at hand, we must first decide whether Rummer suffered from an objectively serious medical condition. Viewed in the light most favorable to Scarbro, Rummer hit the concrete floor head-first, screamed out in excruciating pain, and was bleeding above his eye. Rummer’s glasses were broken, he had urinated on himself, he was unable to speak coherently, and he was unable to walk. In view of this evidence, it is clear that Rummer had an objectively serious medical need after the takedown.
We now consider whether Hudson subjectively recognized Rummer’s serious medical need. After taking Rummer to the floor, Hudson observed that Rummer’s condition had seriously deteriorated. Because the substantial risk of harm to Rummer was so obvious, a jury could infer that Hudson knew that Rummer had a serious medical need. See Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Therefore, the district court erred in finding that Scarbro failed to provide sufficient evidence to show that Hudson knew that Rummer was at serious risk of head injury.
Finally, we turn to whether Hudson acted with deliberate indifference toward Rummer’s serious medical need. Nurse Barfield specifically asked Hudson if Rummer had fallen, and Hudson told her that he had not. Further, Hudson did not inform her how Rummer sustained his injuries or that he had used force against Rummer. Nurse Barfield’s question should have alerted Hudson to the importance of her knowing whether Rummer sustained any physical impact, whether or not his fall was caused by use of force. Nurse Barfield explained that if she had known about the takedown, she would have treated Rummer for a head injury (rather than for DTs) and immediately sent him to the Emergency Room. Evidence of Hudson’s misrepresentation of critical medical information requested by medical personnel is sufficient to raise a reasonable inference that he recognized that his response was inappropriate in light of Rummer’s serious medical need. See Parrish ex rel. Lee, 372 F.3d at 303. Therefore, we conclude that Scarbro provided sufficient evidence to raise a genuine issue of material fact as to whether Hudson was deliberately indifferent to Rummer’s serious medical need.
Having determined that there is sufficient evidence of a constitutional violation as to the inadequate medical care claim, we must now consider whether Hudson is entitled to qualified immunity. See Pearson v. Callahan, 555 U.S. ---, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009). Qualified immunity is resolved using a two-prong analysis: whether the plaintiff provided sufficient facts to make out a constitutional violation and whether the right at issue was clearly established at the time of the alleged violation. Id. Having found that Scarbro has met her burden as to the first prong, we must now determine whether Hudson’s alleged misconduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Hudson bears the burden proving that the right at issue here was not clearly established. Henry, 501 F.3d at 378.
A right is clearly established where it has been specifically identified so “as to leave no doubt that the challenged action was unconstitutional.” Swanson v. Powers, 937 F.2d 965, 969 (4th Cir.1991). “This is not to say that an official action is protected by qualified immunity unless the *372very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal quotation marks omitted). Thus, in determining whether a right was clearly established, the key issue is “whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 194-95, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
We have denied qualified immunity to an officer who transferred custody of a detainee to another officer without informing the officer that the detainee was suicidal. See Gordon v. Kidd, 971 F.2d 1087, 1096-97 (4th Cir.1992). The misconduct in the instant case is even more egregious than that in Gordon because Hudson misrepresented critical medical information that was specifically asked for by medical personnel, and a reasonable inference from this inquiry is that the requested information was necessary to properly treat Rummer’s injuries. Unlike Gordon, where the officer failed to offer information, Hudson affirmatively misrepresented relevant medical information. No reasonable officer could have believed, in light of clearly established law, that such a misrepresentation was lawful under these circumstances. Therefore, Hudson is not entitled to qualified immunity.
III.
For the foregoing reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
. Scarbro later filed another complaint that alleged essentially identical claims against different parties. These cases were thereafter consolidated.
. Scarbro subsequently filed a stipulation of dismissal as to her claims against other Health Department defendants.
.Scarbro raises five issues on appeal, but only two merit discussion. The plaintiff's remaining arguments on appeal are without merit. As to those issues, we affirm substantially on the reasoning of the district court. Scarbro v. New Hanover County, No. 7:03-CV-244-FL(1) (E.D.N.C. May 8, 2008).
. The district court also stated that Hudson is entitled to qualified immunity but, because it found no constitutional violation, it did not fully analyze Hudson's claim of qualified immunity. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479231/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Icilma Burroughs appeals the district court’s order granting ScottMadden’s motion to dismiss Burroughs’ complaint alleging claims of employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e — 2000e-17 (2006) and 42 U.S.C. § 1981 (2006) and negligent and intentional infliction of emotional distress. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Burroughs v. ScottMadden, Inc., No. 5:07-cv-00193-F (E.D.N.C. Apr. 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/8479269/ | 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/8479232/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Peggy Pledger appeals the district court’s order granting Mayview Convalescent Home, Inc., summary judgment on her claims alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006) (“Title VII”), 42 U.S.C. § 1981 (2006), and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 to 634 (2006), as well as her Title VII retaliation claim. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. Pledger v. Mayview Convalescent Home, Inc., No. 5:07-cv-00235-F, 2009 WL 1010428 (E.D.N.C. Apr. 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479235/ | PER CURIAM: **
At issue in this maritime-shipping dispute is whether the district court erred in determining liability and damages for cold-rolled steel coils and steel pipes shipped on the MEDI TRADER from Eastern Europe to Houston and New Orleans. Western Bulk challenges: the district court’s finding the coils were undamaged when loaded onto the MEDI TRADER, but damaged when unloaded; its damages assessment; and its finding Western Bulk was the sole Carriage of Goods by Sea Act (COGSA) carrier — and therefore the sole party liable for damages — with respect to TradeArbed, Inc. (the coils’ owner), and Freemak Industries, Inc. (the pipes’ owner). AFFIRMED.
I.
Western Bulk was the last in a chain of time charterers of the MEDI TRADER, tracing back to her owner, Seafarers Shipping, Inc. Seafarers was a party to this action, but, post-trial, was dismissed without prejudice, as discussed infra.
A.
The cargo at issue for TradeArbed and Freemak is described in turn. The primary disputes concern TradeArbed.
*4661.
In December 2002, TradeArbed entered into a charter party with Western Bulk to ship hot-rolled and cold-rolled steel coils on the MEDI TRADER, from Bourgas, Bulgaria, to New Orleans. TradeArbed later became Arcelor Trading (they are referred to as TradeArbed). (Although it does not affect this analysis, there were two charter parties signed on 5 December 2002. Western Bulk negotiated one with TradeArbed; the other, with Arcelor Trading. The latter exists to reflect the above-noted merger. The charter parties refer only to “Hot Rolled Coils”, but the parties understood this term covered cold-rolled coils as well.)
TradeArbed’s coils were loaded onto the MEDI TRADER in January 2003. The moisture-sensitive cold-rolled coils were shipped in the usual protective wrappings; the non-moisture-sensitive hot-rolled coils were not wrapped. TradeArbed’s damages at issue concern only the cold-rolled coils.
Three bills of lading (numbers six-eight) covered the cold-rolled coils, and each noted tears, dents, and minor rust on some of the wrappings. Otherwise, the bills were clean.
TradeArbed’s coils were stowed in holds one, three, and five. After loading in Bourgas, hold one contained cold-rolled coils covered by bill six, along with Tra-deArbed’s bill-nine cold-rolled coils and another shipper’s galvanized-rolled coils (also moisture-sensitive, the galvanized-rolled coils were wrapped similar to cold-rolled coils); hold three contained cold-rolled coils covered by bill seven, along with some of TradeArbed’s hot-rolled coils and another shipper’s galvanized-rolled coils; and hold five contained cold-rolled coils covered by bills seven and eight, along with more of TradeArbed’s hot-rolled coils.
Holds two and four were filled with other shippers’ cargo. Cargo was added to holds one and three at a subsequent port, before ocean transit to the United States.
Evidence was presented at trial regarding the existence of condensation in the holds, which can cause rust on moisture-sensitive cold-rolled coils. The moisture was claimed to have entered the holds from either or both of two principal sources.
First, it could have entered with non-moisture-sensitive cargo, like the hot-rolled coils, which, prior to loading, were stored in the open air and were covered with snow during loading. During loading, the MEDI TRADER’S chief mate objected to stowing wet hot-rolled coils in the same hold with moisture-sensitive cold-rolled coils.
Second, moisture could have entered when, at a subsequent port, cargo was loaded into the holds during rainfall. This was also over the chief mate’s protests.
After discharging some of her cargo in Houston, including Freemak’s pipes, the MEDI TRADER proceeded to New Orleans, where her remaining cargo, including the cold-rolled coils, was unloaded; those coils were still in wrappers. In both Houston and New Orleans, a number of surveyors inspected the cargo and the holds.
Surveyors agreed hold three contained “tide marks” — evidence of standing water in the hold. In the three holds containing the coils at issue, surveyors also found “drip-down condensation” resulting from water condensing at the top of the hold and dripping onto the cargo. Surveyors generally agreed this was fresh-water, as opposed to salt-water, condensation, and attributed it to the moisture introduced during loading. It was also noted that some coils were dripping water during unloading in New Orleans.
*467TradeArbed’s cold-rolled coils were loaded from the MEDI TRADER onto barges for shipment to their final destinations up the Mississippi River. They were not unwrapped until they reached those destinations.
The original buyer of the bills-seven and -eight coils rejected them as unfit, citing heavy rust. Another round of surveys generally attributed the rust to moisture encountered in ocean transit. Tra-deArbed sold those coils to the original buyer at a depreciated value. Surveys approved of the new sale price as “fair, reasonable, [and] representative of] conditions viewed”.
The bill-six coils were rejected based on damage caused by rust and oil emulsification within the coils. More so than with the bills-seven and -eight coils, evidence conflicted on whether the bill-six coils were damaged in ocean transit. The original buyer of those coils rejected them, but TradeArbed reached agreement with a different buyer to purchase them at a depreciated value. Surveys described the new bill-six sale price as “representat[ative of] conditions viewed, ... fair, reasonable, and ... recommended as the best disposition in the matter....”
2.
For the same voyage on the MEDI TRADER, Freemak also chartered, from Western Bulk, space to ship its steel pipes. They were loaded in December 2002 in Odessa, Ukraine. Upon unloading them in Houston, it was discovered they had been crushed by rebar. As it did at trial, Western Bulk concedes the pipes were damaged during the ocean transit.
B.
TradeArbed and Freemak filed an action for damages against: the MEDI TRADER, in rem; her owner (Seafarers); her manager (Victoria Ship Management, Inc.); and her charterer (Western Bulk). The district court consolidated the action with one filed earlier by Cargill Ferrous International, another shipper with cargo on the MEDI TRADER during the voyage at issue. Seafarers and Victoria filed a cross claim and a third-party complaint against Western Bulk, seeking indemnification for damage to the cargo.
The district court bifurcated the trial, separating “the cargo quantum claims from the issues of liability between [Western Bulk] and Seafarers”. Cargill Ferrous Int'l v. M/V MEDI TRADER, 513 F.Supp.2d 609, 612 (E.D.La.2007). The second part of the bifurcated trial has yet to occur.
After a bench trial on the claimed cargo damage, the district court found Western Bulk liable, inter alia, to TradeArbed for $787,222.44 for the bill-six through bill-eight coils; and, to Freemak for $256,814.22 for the pipes. MEDI TRADER, 513 F.Supp.2d at 625-26. (A significant portion of the district court’s opinion was devoted to Cargill’s claims, and Cargill was awarded damages of, inter alia, $264,452.67. Cargill settled its claims.) Western Bulk’s motions for reconsideration and for a new trial were denied.
On 20 October 2008, an omnibus order: dismissed without prejudice claims that settled after trial (not at issue in this appeal); and, consistent with its earlier opinion, awarded judgment for Tra-deArbed and Freemak against Western Bulk.
II.
For this admiralty bench trial, the district court heard no testimony; only documentary evidence was presented. The court’s legal conclusions are reviewed de novo; its findings of fact, only for clear error. E.g., Sabah Shipyard Sdn. Bhd. v. M/V HARBEL TAPPER, 178 F.3d 400, *468404 (5th Cir.1999) (citing Nerco Oil & Gas, Inc. v. Otto Candies, Inc., 74 F.3d 667, 668 (5th Cir.1996)). Benchtrial fact findings, “whether based on oral or other evidence, must not be set aside unless clearly erroneous .... ” Fed R. Civ. P. 52(a)(6). Restated, this standard is applied even though the district court made no credibility determinations based on oral testimony and based them only on “documentary evidence or inferences from other facts”. Pacific Employers Ins. Co. v. M/V GLORIA, 767 F.2d 229, 235 (5th Cir.1985) (quoting Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).
Western Bulk contends: TradeArbed failed to prove its prima facie case for damage to cargo; the district court applied an improper method to calculate damages and, in the alternative, erred by not applying COGSA’s $500-per-package damage limitation; and this was an instance of common, not private, carriage, and, consequently, Western Bulk is not the only party liable as a COGSA carrier.
A.
Regarding the claimed cargo damage, Western Bulk contends TradeArbed failed to prove two essential elements of its COGSA prima facie case: Western Bulk’s receipt of the cargo in good condition; and its delivery in damaged condition. See Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir.1995). Each element is addressed in turn.
1.
Regarding good condition on receipt, Western Bulk asserts: the coils did not have clean bills of lading; and TradeArbed failed, in the absence of such bills, to prove good condition by other means. In that regard, Western Bulk contends Tra-deArbed failed to offer any proof of the coils’ condition on receipt because it failed to show their condition inside their wrappings.
Clean bills of lading are prima facie evidence of good condition on receipt. Steel Coils, Inc. v. M/V LAKE MARION, 331 F.3d 422, 426 (5th Cir.2003). As noted, the bills were not entirely clean. MEDI TRADER, 513 F.Supp.2d at 625-26. In such a situation, the district court must look to other evidence to determine good condition, such as mate’s receipts and surveys from the loading port. See LAKE MARION, 331 F.3d at 427.
As noted, Western Bulk contends Tra-deArbed failed to meet a “considerable burden of going further to prove actual condition”, because it did not present evidence of the coils’ condition inside their wrappings. See United States v. Lykes Bros. Steamship Co., 511 F.2d 218, 223 (5th Cir.1975) (quoting Compagnie De Navigation v. Mondial United Corp., 316 F.2d 163, 170 (5th Cir.1963)); see also Caemint Food, Inc. v. Brasileiro, 647 F.2d 347, 352 (2d Cir.1981). Our court has, however, expressly distinguished the “considerable burden” placed on shippers of the wrapped perishable goods in Western Bulk’s cited cases from the burden placed on shippers of wrapped steel coils. See LAKE MARION, 331 F.3d at 429.
In LAKE MARION, the owner of cold-rolled steel coils sued for damages allegedly incurred during maritime transit. Id. at 425. After a bench trial, the district court awarded damages. Id.
As Western Bulk does here, in LAKE MARION it was contended on appeal: “the bill of lading notation that the condition of these coils was unknown fatally undermined Steel Coils’s attempt to prove a prima facie case of good condition” at loading. Id. at 428. Our court disagreed, holding:
The evidence at trial shows that, had the cold rolled ... coils been damaged by *469rust, their outer -wrappers would have revealed it. Because the wrappers had no indication of rust, and the moisture on the outside of the wrappers was not dripping down into the coils, it was not clearly erroneous for the district court to conclude that the cold rolled ... coils were in an undamaged state prior to loading.
Id. at 429; see also Couthino, Caro & Co. v. M/V SAVA 849 F.2d 166, 168 (5th Cir.1988) (affirming district court’s finding, based on witness’ testimony, that steel coils were undamaged at loading despite “numerous exceptions noting rust and packaging damage” on bills of lading).
In the instant action, the district court relied on the pre-load surveys and other evidence introduced at trial to find whether the cargo was in good condition at loading. The court ruled: “while the bills of lading were claused to note some defects in packaging and the load survey also demonstrates this, it is the Court’s conclusion after viewing the photographs that[, at loading,] any rust on the coils themselves was on the hot rolled coils”, not the cold-rolled coils. MEDI TRADER, 513 F.Supp.2d at 626. Therefore, for the cold-rolled coils, the district court found Tra-deArbed proved the undamaged-at-loading element of its prima facie case. Id.
TradeArbed was not required to do more. See LAKE MARION, 331 F.3d at 429. The district court did not clearly err in finding the cold-rolled coils’ undamaged condition at loading. See GLORIA, 767 F.2d at 235 (stating that, “ ‘[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous' ... even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts’ ” (quoting Anderson, 470 U.S. at 574, 105 S.Ct. 1504)).
2.
Likewise, Western Bulk asserts Tra-deArbed failed to prove the coils were damaged on delivery, maintaining it failed to present any evidence of the coils’ condition because they were not unwrapped in New Orleans, but remained packaged until they reached their upriver destinations. According to Western Bulk, the light atmospheric rust on the coils’ wrappings at discharge in New Orleans does not explain the heavier fresh-water rust discovered on the coils when unwrapped over a month later. Western Bulk also suggests the coils could have been damaged in storage after reaching those destinations.
In LAKE MARION, as here, it was contended: “the steel coils rusted on the way from the ship to their ultimate inland destinations”. 331 F.3d at 429. LAKE MARION ruled such contentions were “belied by a wealth of evidence relied upon by the district court”, including a quoted survey that stated the surveyor’s opinion as to the cause of the damage. Id. Accordingly, this issue turns on whether evidence in the record precludes holding clearly erroneous the finding that the coils were damaged in ocean transit.
The district court considered two separate. groups of coils, and held: “Tra-deArbed/Arcelor has carried its burden of proof to demonstrate that the [bills-seven and -eight] coils were unloaded in a damaged condition as they were rusted”, and the bill-six coils were “also damaged as a result of incompatible cargo being stowed together”. MEDI TRADER, 513 F.Supp.2d at 626.
a.
Regarding the bills-seven and -eight coils, Western Bulk maintains the district court improperly relied on six surveys— three in New Orleans, and three at the upriver destinations — cited to support its *470finding that those coils were rusted during ocean carriage. Western Bulk contends: the upriver surveys do not prove damage at unloading in New Orleans; and the earlier New Orleans surveys do not show rust on the coils because they were not unwrapped.
For the coils shipped in hold three, surveys reported “rust tide mark” and “heavy drip down”, resulting from “ship’s sweat and cargo sweat in the cargo hold due to the lack of proper ventilation and from faulty stowage”. One New Orleans surveyor, inspecting the three holds that contained TradeArbed’s coils, concluded: “the heavier rust to various degrees noted on the cargo in each hold was due to sweat ... caused as a result of improper ventilation aboard the ocean carrier [and] improper stowage aboard the ocean carrier”. The coils were found to have been subject to “severe sweat conditions prior to loading the barges” for the upriver journey. As one survey explained: “Stowage of hot rolled steel cargo in the same cargo compartment as moisture sensitive cargo is improper stowage. Ventilation of the cargo was impeded and therefore improper....”
These surveys support the district court’s finding that the bills-seven and - eight coils were damaged when unloaded in New Orleans; therefore, the court did not clearly err when it credited them.
b.
As noted, after the bill-six coils’ original buyer rejected them, TradeArbed reached an agreement with another buyer to sell those coils at a discount based on “rust/oil emulsification only”. The district court found these coils were “primarily damaged by oil emulsification” resulting from “a combination of oil and water from the high humidity in the cargo holds”. MEDI TRADER, 513 F.Supp.2d at 626. As also noted, the district court attributed this damage to “incompatible cargo being stowed together”. Id.
Surveys conflicted as to the bill-six coils’ conditions, and opinions conflicted on the cause of damage. Evidence showed moisture in hold one. A number of the bill-six coils’ wrappings were torn, punctured, or otherwise damaged, thereby creating holes through which this moisture could reach the coils and cause emulsification and rust. “[M]oderate/heavy oxidation/rust” on the bill-six coils was found at discharge in New Orleans.
In short, some evidence suggested the damage did not occur during ocean transit. Nevertheless, the district court did not clearly err when it credited contrary evidence and found the bill-six coils were damaged at unloading.
B.
Accordingly, the district court did not clearly err when it found TradeArbed proved its COGSA prima facie case that the goods were damaged during ocean transit. Therefore, the contested damages are addressed next. In challenging the district court’s method of calculating them, Western Bulk presents two alternative claims: TradeArbed failed to satisfy its initial burden to prove a prima facie case of damages; and, in the alternative, the court erred by denying Western Bulk the benefit of COGSA’s $500-per-package damage limitation.
1.
Western Bulk contends: because Tra-deArbed failed to prove the coils’ sound market value at discharge in New Orleans, in both their damaged and undamaged states, the district court should have denied all recovery. Using the coils’ subsequent upriver value to determine damages, Western Bulk asserts, is contrary to our *471precedent requiring damages to be calculated using market value at discharge.
As for the cargo covered by bills-seven and -eight, the district court stated only that “the damages suffered were $574,542.83”, and cited a survey describing that this amount was calculated by subtracting the discounted price for the damaged coils from the original price. MEDI TRADER, 513 F.Supp.2d at 626. The distinct court resolved the bill-six coils’ damages similarly, finding “damages [were] $212,679.61 after mitigation of damages by TradeArbed/Arcelor through acceptance [of] reasonable depreciation”, and cited a survey providing the relevant calculation. Id. These calculations were not improper under our precedent.
COGSA does not mandate one method of calculating damages, but instead provides a general principle: “In no event shall the carrier be liable for more than the amount of damage actually sustained”. COGSA, § 4(5), 46 U.S.C. § 30701 note. Our court typically applies the traditional “market value rule” to calculate COGSA damages. See BP N. Am. Petroleum v. SOLAR ST, 250 F.3d 307, 312 (5th Cir.2001). As the Supreme Court has recognized, however, there are occasions when it is necessary to use other methods. See Ill. Cent. R.R. Co. v. Crail, 281 U.S. 57, 64-65, 50 S.Ct. 180, 74 L.Ed. 699 (1930) (“The test of market value is at best but a convenient means of getting at the loss suffered. It may be discarded and other more accurate means resorted to, if, for special reasons, it is not exact or otherwise not applicable.”).
In F.J. Walker Ltd. v. M/V LEMON-CORE our court held: where the carrier is responsible for damages, it “is in no position to complain that the damaged parties can not establish precisely the loss it caused”. 561 F.2d 1138, 1147 (5th Cir.1977) (citing Daniels Towing Svc., Inc. v. Nat Harrison Assoc., Inc., 432 F.2d 103, 105-06 (5th Cir.1970)). The LEMON-CORE district court “was faced with establishing damages by one of two methods, both of which were inexact”. Id. at 1147. After noting the “primary object in awarding damages is to indemnify plaintiff for the loss sustained by reason of the carrier’s fault”, LEMONCORE made clear that inability to prove exact damages is not fatal to a shipper’s case. See id. at 1146-47 (quoting Interstate Steel Corp. v. S.S. Crystal Gem, 317 F.Supp. 112, 121 (S.D.N.Y.1970)) (holding that where damages are unclear or difficult to prove, “the court should use the best indication it can obtain rather than deny any recovery”).
Restated, uncertainty does not preclude recovery. Id; see also Saul Sorkin, Goods in TRANSIT § 11.03 n. 27 (2009) (“Uncertainty in ascertaining damages does not mean that plaintiff is precluded from i’e-eovering.” (citing C. Itoh & Co. v. Hellenic Lines, Ltd., 470 F.Supp. 594, 598 (S.D.N.Y.1979))). “In such a situation the district court has a discretion to choose the method it considers best.” LEMONCORE, 561 F.2d at 1147 (citing Ill. Cent., 281 U.S. 57, 50 S.Ct. 180; Santiago v. Sea-Land Svc., Inc., 366 F.Supp. 1309, 1314-15 (D.P.R.1973)).
LEMONCORE ultimately approved a method of calculating damages similar to the market-value method urged by Western Bulk; but, in this instance, it is the general COGSA-damages principles LEM-ONCORE expresses that are persuasive. In the light of such principles, the district court did not err by not requiring at-discharge market value. Obviously, because of the nature of transporting cold-rolled coils, TradeArbed could not discover the extent of the damage to them until they were unwrapped; and, because their ultimate destinations were upriver, they were not unwrapped until more than a month after they were discharged from *472the MEDI TRADER (and thereby discharged from Western Bulk’s control).
TradeArbed’s evidence regarding bills-seven and -eight cargo included: invoices (which can be used to determine market value, see Emmco Ins. Co. v. Wallenius Caribbean Line, S.A., 492 F.2d 508, 514 (5th Cir.1974)) and sale confirmations for the coils corresponding with sale contracts entered both before and after discharge (both for the same price, $18.83 cwt); evidence of the price for which the coils were sold at salvage ($11.80 cwt); and an expert opinion that the salvage price was “fair, reasonable, [and] represents conditions” of the damaged coils as viewed during the survey. The evidence regarding the bill-six coils was similar, with a contract price of $21 cwt and a salvage price of $11.60 cwt.
The salvage-sale agreements, which Tra-deArbed entered after its original buyers complained that the coils were damaged, were necessarily non-existent at discharge because TradeArbed did not know, and could not have known, of the damage, or its extent, at that time. These agreements contemplated the percentages of coils damaged and were otherwise specific to the status of each set of coils. TradeArbed could not have produced evidence of the at-discharge “market price” of this certain number of coils containing this certain number of various defects. Western Bulk provides no reason to find clearly erroneous the district court’s finding TradeArbed presented sufficient evidence to determine actual damages.
Western Bulk relies on SOLAR ST, which concerns damages for oil sold at a discount after being negligently contaminated by its carrier. That case, however, is distinct in several ways from the instant matter. For example, unlike the SOLAR ST district court, see 250 F.3d at 315, the district court here was not presented with evidence it could have used to apply the market value rule. As another example, the district court’s damage determination in this instance did not implicate concerns that using a subsequent value would make the carrier a “guarantor of the ups and downs of commodity prices”. See Holden v. SS KENDALL FISH, 395 F.2d 910, 913 (5th Cir.1968); see also SOLAR ST, 250 F.3d at 312-15. As a final example, for the bills-seven and -eight coils, evidence showed the market relevant to this transaction — ie., the value of the undamaged goods vis-a-vis TradeArbed and the buyers — did not fluctuate between discharge and re-sale.
2.
For its alternative damages contention — that the district court should have applied COGSA’s $500-per-paekage limitation — Western Bulk maintains: either the charter party is the contract of carriage, and COGSA is thereby incorporated; or, the bills of lading are the contracts of carriage, and COGSA applies of its own force. The COGSA package limitation provides, in relevant part:
Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package ... unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.
By agreement between the carrier, master, or agent of the carrier, and the shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided, That such maximum shall not be less than the figure above named. In no event shall the carrier be *473liable for more than the amount of damage actually sustained.
46 U.S.C. § 30701, note § 4(5).
Western Bulk asserts the charter party it negotiated with TradeArbed required that COGSA be incorporated in all bills of lading, and suggests this gave the requisite notice and opportunity for TradeArbed to declare a higher value. See generally Brown & Root, Inc. v. M/V PEISANDER, 648 F.2d 415, 420-25 (5th Cir.1981) (discussing fair-opportunity doctrine). Further, Western Bulk contends TradeArbed, a sophisticated shipper, is not the type party the fair-opportunity doctrine is designed to protect.
The district court held: “COGSA, with the exception of the limit of recovery, applies to these contracts of carriage”, ruling that “neither [the charter parties] nor the bills of lading evidence a fair opportunity to declare a higher value for the shipment so as to invoke the ... package limitation because mere incorporation of [COGSA] into the bills of lading through the charter party is insufficient notice”. MEDI TRADER, 513 F.Supp.2d at 625.
Contrary to Western Bulk’s position, to invoke the package limitation, it is necessary to provide further evidence beyond incorporation of COGSA into the contract of carriage, such as the carrier’s giving the shipper a choice of rates and valuations. See SAVA, 849 F.2d at 171 n. 6 (“[W]e have not held ... that the mere incorporation of COGSA into a bill of lading constitutes prima facie evidence of fair opportunity”.). The carrier bears an initial burden of showing it offered the shipper a fair opportunity to avoid the limitation. Id. at 169. A prima facie case of fair opportunity can be made by introducing, e.g., evidence of a published tariff that “very carefully gave Shipper a choice of valuations by a choice of precisely definable freight rates”. PEISANDER, 648 F.2d at 424; see also Wuerttembergische & Badische Versicherungs-Aktiengesellschaft v. M/V STUTTGART EXPRESS, 711 F.2d 621, 622 (5th Cir.1983) (applying PEISANDER to invoke COGSA package limitation and emphasizing existence of tariff that “clearly gave the shipper a choice of valuations”).
The district court did not clearly err in finding: that Western Bulk did not provide TradeArbed sufficient notice of a fair opportunity to declare a higher value; and that, therefore, the package limitation did not apply.
C.
Finally, Western Bulk challenges the district court’s awarding damages before the second stage of the bifurcated trial. The award was based on the district court’s ruling Western Bulk was the only COGSA carrier of TradeArbed’s coils and Freemak’s pipes. Western Bulk contends: the district court should have treated its carriage of cargo on the MEDI TRADER as common, not private; and the bills of lading, not the charter parties, constituted the applicable contracts of carriage. If carriage were common, Seafarers (the MEDI TRADER’S owner) would also be a COGSA carrier liable for damage to the cargo.
1.
Charter parties are the contracts of carriage in private carriage, but bills of lading are such contracts in common carriage. See Thomas J. Sohoenbaum, Admiralty and Maritime Law § 11-6 (2004). The district court’s deciding Western Bulk was the sole COGSA carrier of the cold-rolled coils and, therefore, the only party liable for damages to them, flowed from its ruling the charter party, not the bills of lading, was the relevant contract of carriage between TradeArbed and Western Bulk. Western Bulk was the only charterer to sign this *474charter party, and our precedent “requires privity of contract of carriage before liability under COGSA arises”. Thyssen Steel Co. v. M/V KAVO YERAKAS, 50 F.3d 1349, 1353 (5th Cir.1995).
The issue turns, therefore, on whether the district court erred when it found the applicable contract of carriage to be the charter party, not the bills of lading (signed not only by Western Bulk, but also by an agent of Seafarers, the MEDI TRADER’S owner). See MEDI TRADER, 513 F.Supp.2d at 624-25. Western Bulk maintains the MEDI TRADER was engaged in common carriage because it carried more than one shipper’s cargo.
In Thyssen, Inc. v. NOBILITY MV, 421 F.3d 295 (5th Cir.2005), as here, the district court found a voyage charter, not the bills of lading, was the contract of carriage, id. at 304, where the ship also “carried other cargo ... on behalf of another cargo shipper”, id. at 297. As here, the bills of lading specifically incorporated the charter. Id. at 307. Reviewing for clear error, our court affirmed the district court’s finding the ship “was engaged in private carriage”, id., and denied the contention that “multiple shipping defeats any indication of private carriage that a bill of lading incorporating the terms of the voyage charter may connote”, id. at 305.
Pursuant to NOBILITY, the district court did not err in deciding the MEDI TRADER was engaged in private carriage with respect to TradeArbed’s coils, with the charter party, not the bills of lading, being the applicable contract of carriage. Therefore, Western Bulk, as the only charterer that signed the charter party, was the only party in privity with TradeArbed. Because, as noted, our precedent requires privity for COGSA carrier liability, Western Bulk was the only COG-SA carrier; no COGSA liability allocation remains to be resolved at the second stage of the bifurcated trial. Accordingly, the district court did not err in awarding damages against only Western Bulk for Tra-deArbed’s coils.
2.
Western Bulk also contends the district court erred because it did not reserve allocation of liability for damages to Free-mak’s pipes for the second part of the bifurcated trial, asserting the district court should have only determined the amount of damages. Western Bulk claims its failure to introduce evidence as to the cause of the pipes’ damages was in reliance on the bifurcation order separating “cargo quantum claims” from “issues of liability”.
This claim, as with the coils, turns on whether Western Bulk was the only COGSA carrier for the pipes. For the same reasons the charter party between Tra-deArbed and Western Bulk constitutes the contract of carriage between those parties, the district court ruled: “The private carriage agreement ... between Western Bulk and Freemak is the controlling contract of carriage” for the pipes. MEDI TRADER, 513 F.Supp.2d at 624.
As with the TradeArbed bills of lading, the Freemak bills expressly incorporated the relevant charter party. Nothing about the Freemak charter party suggests or compels a conclusion inconsistent with our earlier holding as to TradeArbed. For the reasons provided supra, the district court did not err in deciding the charter party, rather than the bills of lading, was the contract of carriage; and, in concluding Western Bulk was the sole carrier of Free-mak’s pipes.
Because the district court did not err in determining Western Bulk to be the sole carrier for the pipes, its awarding damages against Western Bulk is not inconsistent with the bifurcation order. As the sole COGSA carrier, Western Bulk is solely responsible for the COGSA damages. *475This result does not mean, as Western Bulk asserts, that the district court treated Western Bulk’s admission that the pipes were damaged as tantamount to an admission of liability. Rather, the court’s ruling that Western Bulk was the sole carrier simply precluded consideration of the further question of how to allocate liability among the carriers, which would have been considered at the second stage of the bifurcated trial.
III.
For the foregoing reasons, the judgment is AFFIRMED.
Pursuant to 5th Cre. 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/8479236/ | PER CURIAM: *
Gilberto Iruegas appeals the dismissal with prejudice of his 42 U.S.C. § 1983 suit alleging deliberate indifference to his health, safety, and serious medical needs, against various security and medical employees of the Texas Department of Criminal Justice (“Defendants”). The magistrate judge dismissed Iruegas’s suit as frivolous after holding a Spears hearing. (Spears v. McCotter, 766 F.2d 179 (5th Cir.1985), overruled on other grounds, Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)). Irue-gas argues that because he had retained counsel, the Spears hearing should not have been conducted. Iruegas also argues that the magistrate judge erroneously *515failed to allow cross-examination or properly identify and authenticate any documents, and that Iruegas’s testimony established a prima facie case of deliberate indifference.
Because 28 U.S.C. § 1915A(a) requires screening of all informa pauperis suits by a prisoner against government officials and § 1915(e)(2)(B) mandates dismissal of frivolous in forma pauperis suits, the magistrate judge did not err by conducting a Spears hearing despite Iruegas’s retention of counsel. Additionally, because Defendants did not introduce any witnesses or documents at the Spears hearing, Irue-gas’s argument that the magistrate judge committed reversible error by failing to allow cross-examination or to properly identify and authenticate any documents entirely lacks merit. Finally, because Iruegas’s complaint lacks an arguable basis in either law or fact, we affirm the magistrate judge’s dismissal of his § 1983 suit as frivolous.
I. FACTUAL AND PROCEDURAL HISTORY
While confined as an administrative segregation inmate, Iruegas slipped as he walked from the shower to his cell and fell down approximately ten stairs. Texas Department of Criminal Justice (“TDCJ”) policy requires that two officers escort administrative segregation inmates from the shower to their cells, with one holding the inmate’s arm. Only one TDCJ officer escorted Iruegas on this occasion, however, and did not hold his arm. Iruegas suffered cuts and bruises to his back, neck, shoulder, head, forearm, and leg.
Although TDCJ regulations require officers to call the medical department immediately in the event of an accident, officers ordered Iruegas to return to his cell despite his request for medical treatment. Later that day, however, he received medical attention from Dr. Adel Nafrawi, consisting of X-rays and non-prescription pain relievers. The X-rays revealed that Irue-gas had not broken any bones. Dr. Naf-rawi did not clean his cuts.
The next day, Iruegas saw Debora Caldwell, a physician’s assistant, who told him that despite his bruises, there was nothing wrong with him and that the pain would subside in time. Iruegas requested that Caldwell order an MRI, but she refused. For the remainder of his time as an inmate, Iruegas repeatedly asked TDCJ medical staff for an MRI, to no avail.1 Despite trying several different non-prescription pain relievers, Iruegas testified that he remained in pain and experienced difficulty lifting his arms over his head and bending or squatting.
Iruegas sought administrative relief and then filed a pro se, infama pauperis civil rights complaint in the Dallas Division of the Northern District of Texas raising allegations that Defendants acted with deliberate indifference to his health and safety, and to his serious medical needs. The case was transferred to the Abilene Division, and then transferred again to the docket of a magistrate judge with instructions to conduct a Spears hearing for screening pursuant to 28 U.S.C. §§ 1915 and 1915A. Iruegas subsequently waived his right to proceed before a district judge.
The magistrate judge characterized Iruegas’s action as a § 1983 suit and scheduled a Spears hearing. Prior to his Spears hearing, Iruegas retained counsel. Iruegas’s counsel appeared on his behalf at the hearing, and although neither Defen*516dants nor their counsel appeared, an employee of the prison system was present. This employee offered no testimony and did not attempt to introduce any evidence. Iruegas testified, but offered no other evidence to support his claims.
The magistrate judge dismissed Irue-gas’s claims with prejudice, finding that he failed to state a cognizable constitutional claim for deliberate indifference as to any Defendant. To the extent that Iruegas directed his claims against Defendants in their official capacity, the magistrate judge also dismissed them with prejudice, finding the claims barred by sovereign immunity.2 Iruegas timely appealed.
II. DISCUSSION
We review de novo the magistrate judge’s dismissal of Iruegas’s in forma pauperis complaint as frivolous under 28 U.S.C. § 1915A. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005). On appeal, Iruegas advances three arguments: (1) Iruegas had retained counsel before his Spears hearing, and therefore the magistrate judge should not have conducted it; (2) the magistrate judge did not swear in witnesses, allow cross-examination, or identify and authenticate documents at the Spears hearing; and (3) his testimony established a prima facie case for his claims. Not one of these assertions has merit.
A. Propriety of the Spears Hearing
The district court instructed the magistrate judge to conduct a Spears hearing to consider Iruegas’s complaint. The magistrate judge acknowledged that 28 U.S.C § 1915(e)(2) instructs the court to dismiss any frivolous or malicious in forma pau-peris claims, while § 1915A mandates screening all prisoner civil complaints that seek redress from an officer or employee of a governmental entity. He thus found Iruegas’s civil rights action subject to both provisions.
On appeal, Iruegas admits that Spears hearings are designed to determine whether in forma pauperis complaints should be dismissed as frivolous. See, e.g., Moore v. Carwell, 168 F.3d 234, 235 (5th Cir.1999) (citing Spears, 766 F.2d 179). Iruegas cites no authority for the argument that his retention of counsel defeats the screening process necessitated by in forma pauperis complaints and statutorily-required for complaints by prisoners against government officials. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A. Having found none ourselves, we find that his argument lacks merit.
Likewise, Iruegas’s argument that the magistrate judge erred by not swearing in witnesses, allowing cross-examination, or identifying and authenticating exhibits entirely lacks merit. Defendants did not introduce a single witness for cross-examination purposes, nor did they try to introduce a single exhibit. Instead, the magistrate judge heard testimony from Iruegas, and on the basis of his uncontested statement, found that Iruegas had failed to state any cognizable constitutional claim for deliberate indifference. We find no error in the way in which the magistrate judge conducted Iruegas’s Spears hearing.
B. Prima Facie Deliberate Indifference Claims
On appeal, Iruegas argues that his uncontested Spears hearing testimony established a prima facie case for his claims. Specifically, Iruegas alleges deliberate indifference in violation of the Eighth Amendment because Defendants: (1) negligently violated their own policy when escorting him from the showers; (2) delayed *517seeking medical treatment after Ms fall; and (3) continuously ignored his serious medical needs. The magistrate judge dismissed these claims as frivolous, and we find that the dismissal was proper.
Iruegas alleges that Defendants negligently violated TDCJ policy when only one officer escorted him from the shower without holding his arm. To prove deliberate indifference, we have held that, “[a]t a minimum, the plaintiff must show that prison officials acted with a conscious or callous indifference,” and that “[m]ere negligence ... [or] neglect” will not suffice. Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir.1979). Because nothing in Iruegas’s allegations or testimony suggests that anything other than negligence on the part of Defendants led to his fall, he has failed to state a cognizable constitutional claim on this ground.
Iruegas also alleges that Defendants negligently failed to seek medical treatment for him immediately after his fall, in violation of TDCJ policy. We have held that “delay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference, which results in substantial harm.” Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.1993). Additionally, “[djeliberate indifference is more than mere negligence in failing to supply medical treatment.” Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir.2001). Because Iruegas has not alleged any additional harm based on the delay in his treatment or anything other than negligence in Defendants’ violation of TDCJ’s policy, we find that he has failed to state a cognizable constitutional claim on this ground.
Finally, Iruegas alleges that Defendants’ failure to clean out his cuts, order an MRI, or provide him with more effective pain medication gives rise to a claim of deliberate indifference. We have held that to show deliberate indifference to serious medical needs, a plaintiff must demonstrate that a defendant “ ‘refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.’ ” Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir.2001) (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.1985)). Additionally, “[unsuccessful medical treatment does not give rise to a § 1983 cause of action.... Nor does [m]ere negligence, neglect or medical malpractice.” Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991) (internal citations and quotation marks omitted). Because Defendant’s failure to clean Irue-gas’s cuts, order an MRI after X-rays revealed no broken bones, or prescribe Iruegas stronger pain medication did not “ ‘unnecessarily] and wanton[ly] inflict[ ] ... pain repugnant to the conscience of mankind,’ ” we find that Iruegas has failed to state a cognizable claim on this ground. Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir.2009) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997)).
III. CONCLUSION
Iruegas has failed to demonstrate any error in the fact that the magistrate judge held a Spears hearing or in the way in which the magistrate judge conducted it. Additionally, Iruegas has failed to state a cognizable deliberate indifference claim that would support his § 1983 suit. We therefore affirm the magistrate judge’s dismissal with prejudice of Iruegas’s claims.
AFFIRMED.
Pursuant to 5rrt Cut. 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 5tu Cm. R. 47.5.4.
. After filing his complaint, but before it was transferred, Iruegas notified the district court that he had been released from TDCJ custody. After the magistrate judge scheduled his Spears hearing, Iruegas notified the court that he had been re-incarcerated for violating the terms of his probation.
. Iruegas does not appeal the magistrate judge’s dismissal on this ground. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479241/ | ORDER
Navor Fragozo-Soto pleaded guilty to being in the United States without permission after being deported. See 8 U.S.C. § 1326(a). He appeals, but his appointed lawyer believes the case is frivolous and seeks leave to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Fragozo-Soto did not respond to counsel’s motion. See Cir. R. 51(b). The lawyer’s supporting brief is facially adequate, so we confine our review to the potential issues she has identified. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Fragozo-Soto first entered the United States from Mexico in 1982. He was deported twice in 1996 and again in 2003, and by the time of the third removal he had incurred three felony convictions in Arizona. Fragozo-Soto was arrested in Wisconsin in March 2009 after committing a traffic violation, which brought him to the attention of immigration authorities.
At sentencing Fragozo-Soto objected to the probation officer’s conclusion that he commenced the § 1326(a) violation in 2003. The probation officer detailed employment and arrest records evidencing a continuous presence in the United States at least since October 2003. But at sentencing defense counsel told the district court that her client had returned to Mexico in late 2005 and did not cross the border again until January 2006. Fragozo-Soto did not submit any evidence to support the lawyer’s representation, and yet the government responded that it could not disprove counsel’s statement. So the district court concluded that Fragozo-Soto had last entered the United States illegally — and thus commenced this § 1326(a) violation — in January 2006, not October 2003.
In addition Fragozo-Soto personally disputed two criminal-history points that were assessed by the probation officer under U.S.S.G. § 4Al.l(b) for a 1993 felony conviction in Arizona for attempting to sell cocaine. Fragozo-Soto initially had received three years’ probation, but in March 1996 his probation was revoked. After that he served three months in prison before his probation was reinstated. Fragozo-Soto wanted his lawyer to argue that the conviction was too old to count for criminal-history points because it was incurred more than 10 years before January 2006, which, according to the district court, was when he commenced this offense. See *662U.S.S.G. § 4A1.2(e)(2). Defense counsel informed the court, however, that she disagreed with the position Fragozo-Soto wanted her to advocate, and the district court overruled the objection. The court reasoned that the conviction was countable because the term of probation ultimately ran through 1999, less than 10 years before January 2006.
In light of that ruling, the district court assigned Fragozo-Soto eight criminal-history points, which placed him in a criminal-history category of IV. The court then adopted the probation officer’s recommended offense level of 13, which yielded a guidelines imprisonment range of 24 to 30 months. The district court imposed a term of 24 months.
On appeal Fragozo-Soto does not wish to challenge his guilty plea, so counsel properly refrains from examining the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). According to counsel there are two potential issues: whether it was error to give Fragozo-Soto two criminal-history points for his 1993 conviction and whether 24 months is a reasonable sentence. Both contentions, says counsel, would be frivolous. As for the two criminal-history points, counsel agrees with the district court that the extension of Fragozo-Soto’s probation into 1999 means that the sentence falls within 10 years of when he commenced the § 1326(a) violation in January 2006.
But counsel is mistaken. When, as here, an adult sentence of imprisonment of at least 60 days but not more than 13 months is imposed on revocation of a term of probation, application of the 10-year reach of § 4Al.l(b) is based on the date the sentence was originally imposed, not the date the sentence expires. U.S.S.G. § 4A1.1 cmt. n. 2; id. §§ 4A1.2(e), (k)(2)(B)(iii); United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir.2006). Because this sentence was originally imposed in 1993, more than 10 years before January 2006, counsel could argue that Fragozo-Soto should not have received criminal-history points. And if he had not received those two points, his criminal-history category would have been III, and his imprisonment range would have dropped to 18 to 24 months.
Nonetheless we agree with counsel’s conclusion that an appeal based on this issue would be frivolous. We may put aside that defense counsel (the same lawyer represents Fragozo-Soto in this court) overlooked the argument at sentencing and thus forfeited the claim. See United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir.2005); United States v. Richardson, 238 F.3d 837, 841 (7th Cir.2001). The greater hurdle for Fragozo-Soto is that he could not benefit from resentenc-ing because his offense level was miscalculated in his favor and would be revised upward on remand. A violation of § 1326(a) produces a base offense level of 8, see U.S.S.G. § 2L1.2(a), which is increased by the greatest of several specific offense characteristics, see id. § 2L1.2(b)(l). Even if Fragozo-Soto’s 1993 conviction should not have counted in his criminal-history calculation, that offense still should have increased his offense level by 12 because it is a felony drug-trafficking crime for which he received a sentence of 13 months or less. See id. § 2L1.2(b)(l)(B); United States v. Olmos-Esparza, 484 F.3d 1111, 1114 (9th Cir.2007); United States v. Torres-Duenas, 461 F.3d 1178, 1181-82 (10th Cir.2006); United States v. Camacho-Ibarquen, 410 F.3d 1307, 1311-15 (11th Cir.2005); United States v. Gonzalez, 112 F.3d 1325, 1330-31 (7th Cir.1997). Yet instead of a 12-level increase, the probation officer recommended, and the district court imposed, an 8-level increase under § 2L1.2(b)(l)(C) for *663a different, non-drug conviction that qualified as an aggravated felony. After factoring in a 3-level reduction for acceptance of responsibility, Fragozo-Soto’s total offense level should have been 17, not 13. So even with a corrected criminal-history category of III, his imprisonment range of 30 to 37 months would exceed the range of 24 to 30 months calculated by the district court. And since the court emphasized Fragozo-Soto’s “blatant disregard” for the immigration laws and gave no hint that it was inclined to sentence him below the guidelines range, we would conclude that the error in calculating the criminal-history category is harmless. See United States v. Abbas, 560 F.3d 660, 667 (7th Cir.2009); United States v. Anderson, 517 F.3d 953, 965-66 (7th Cir.2008).
Moreover, we would be skeptical about the district court’s conclusion that the § 1326(a) offence commenced in January 2006 rather than October 2003. The drug conviction was incurred in November 1993, and thus it would count under the 10-year rule if we accept the probation officer’s view that the § 1326(a) violation commenced in October 2003. Fragozo-Soto’s contention that he left the United States in 2005 and returned in January 2006 rests entirely on counsel’s statement at sentencing and finds no evidentiary support in the record. A defense attorney’s representation is not evidence, see United States v. Diaz, 533 F.3d 574, 578 (7th Cir.2008); United States v. Swanson, 483 F.3d 509, 513 (7th Cir.2007), so, in fact, the probation officer’s evidence and conclusion was unre-butted, see United States v. Mays, 593 F.3d 603, 608 (7th Cir.2010) (explaining that more than “a bare assertion of inaccuracy” is necessary for defendant to meet his burden of establishing that presentence report is inaccurate or unreliable); United States v. Heckel, 570 F.3d 791, 795-96 (7th Cir.2009) (explaining that objection to pre-sentence report must create “real doubt” about report’s reliability before government will “have the burden of independently demonstrating the accuracy of the information”).
And even if Fragozo-Soto had produced sufficient evidence that he left the United States in late 2005 and returned in January 2006, it is an open question whether the time he spent in this country between his 2003 reentry and his return to Mexico in 2005 might nevertheless be relevant conduct to this offense. See United States v. Lopez-Flores, 275 F.3d 661, 663 (7th Cir.2001). Fragozo-Soto received a traffic ticket in Arizona in November 2005 and was fined in mid-December, so at most he spent a few weeks outside the United States before returning in January 2006. And that brief period was his only absence from the United States over the past 6’A years. “It would be passing odd” if Fragozo-Soto could simply take a brief holiday in Mexico with no intention of staying there and thus avoid any repercussions arising from the prior time he spent illegally in the United States. See id.
Finally, we agree with counsel that challenging the reasonableness of Fragozo-Soto’s prison sentence would be frivolous. As we explained above, we would likely find that his 24-month sentence was below his properly calculated guidelines range. We do not think he could overcome the presumption of reasonableness that attaches to a below-guidelines sentence. See United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009).
We GRANT counsel’s motion to withdraw and DISMISS Fragozo-Soto’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479243/ | CERTIFICATION OF QUESTIONS OF STATE LAW
MONROE G. McKAY, Circuit Judge.
The United States Court of Appeals for the Tenth Circuit submits this request to the Kansas Supreme Court to exercise its discretion to accept the following certified questions of Kansas law pursuant to 10th Cir. R. 27.1 and Kan. Stat. Ann. § 60-3201. The answer to these questions may be determinative of this case now pending in this court, and it appears that there is no controlling precedent in the Kansas Supreme Court.
The Questions
1. In a standard pollution exclusion clause in a liability insurance contract, is the definition of a “pollutant” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste” ambiguous, either because the definition is so broad as to cover virtually any substance, or because it is susceptible of more than one construction and a reasonably prudent insured would not understand the term to cover commonly used products (such as when a farmer uses a common fertilizer on its fields and a nearby party is injured by exposure to the fertilizer)?
2. If the definition of a ‘pollutant’ in the exclusion clause is ambiguous, and must, therefore, be construed in a light most favorable to the insured, is a mist of anhydrous ammonia fertilizer released from a plow during farm fertilizing operations nonetheless a ‘pollutant’ under the exclusion clause, such that the liability claim for injuries caused by exposure to that mist is not covered?
The Kansas Supreme Court may reformulate the questions.
I. Procedural and Factual Background.
A. Denial of Coverage. The facts are uncontroverted. Plaintiff Union Insurance Company (Union) provided a Farm owners-Ranch owners insurance policy to Irsik G&B Farms, Inc. (Irsik Farms) from September 2005 to September 2006. Defendant Karla Mendoza filed a personal injury *798lawsuit against Irsik Farms and its employee, Bradley Irsik, alleging that they caused her bodily injury by exposing her to a mist of anhydrous ammonia fertilizer on July 14, 2006. Anhydrous ammonia fertilizer places nitrogen into the soil, and is commonly used as a fertilizer. Relying on a pollution exclusion provision in its insurance policy, Union denied coverage for the Mendoza lawsuit. Mendoza obtained a consent judgment from the Irsik defendants for one million dollars, in exchange for a covenant not to execute upon the judgment against them. Union filed an action in the United States District Court for the District of Kansas seeking a declaratory judgment that the liability policy did not cover the Mendoza judgment. The Irsik defendants were voluntarily dismissed from the declaratory action.
B. Underlying Claim. On the day Mendoza was injured, an Irsik Farms employee was applying anhydrous ammonia fertilizer on an Irsik Farms’ field next to where Mendoza was working on road construction. The employee asked Bradley Irsik for help because the fertilizer was not coming out evenly. The fertilizer was stored in a tank on the back of a tractor; it was applied to the soil by flowing through piping from the tank to several holes on shanks on the tractor’s plow and then into the soil. Irsik raised the plow out of the soil to see if the lines were plugged, and looked at the plow to see if vapors were coming out of the tubes. He then held the hydraulic switch down for about three seconds, releasing the anhydrous ammonia into the air. At the time, Mendoza was loading a road sign on the nearby road when a mist of the anhydrous ammonia fertilizer engulfed her. She testified that she could not breathe; her eyes, lungs and throat were burning; and she required medical attention.
C. Policy Language. Union’s policy of insurance to Irsik Farms includes coverage for personal injury liability. The personal liability coverage contains an exclusion, however, for personal injury caused by a ‘pollutant.’ In an endorsement entitled “Farmer’s Comprehensive Personal Liability Insurance,” the liability coverage states:
If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage caused by an “occurrence” to which this coverage applies, we will:
a. pay up to our limit of liability for the damages for which the “Insured” is legally liable; and
b. provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages resulting from the “occurrence” equals our limit of liability.
(Aplt. App., Vol., I, at 68; R. Doc. 36, Ex. H, at 1, 08-CV-1096-MLB (D. Kan.) (hereafter “D. Ct. R.”).
The “Exclusions” clause in the Personal Liability endorsement states in relevant part:
... Personal Liability and ... Medical Payments to Others do not apply to bodily injury or property damage:
j. (1) arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:
(a) at or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to you, or any “Insured”. :!{ í¡í ‡
(d) at or from any premises, site or location on which you, or any “Insured” or any contractors or subcontractors *799working directly or indirectly on your’s or any “Insured’s” behalf are performing operations:
(i) If the pollutants are brought on or to the premises, site or location in connection with such operations by you, or any “Insured”....
* * * *
Pollutants mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
CThis exclusion does not apply to property damage caused by accidental drift of vapors, fumes, or toxic chemicals as a result of spraying operations.)
(Aplt. App., Vol. I, at 69-71; D. Ct. R., Doc. 36, at 2-4).
D. District Court Ruling. The district court granted Union’s motion for summary judgment, ruling Irsik’s accidental disbursing of anhydrous ammonia was excluded from coverage by the pollution exclusion. It ruled that the language of the pollution exclusion clause and its definition of a ‘pollutant’ are not ambiguous, and that anhydrous ammonia, while useful as a fertilizer in farming operation, is a pollutant. Aplt. App., Vol. II, at 345, 347; D. Ct. R., Doc. 41, at 9, 11. It concluded that “a pollutant under the insurance policy is any irritating or contaminating substance, which may be a solid, liquid, gaseous or thermal substance.” Aplt. App., Vol. II, at 342; D. Ct. R., Doc. 41, at 6. Citing to dictionary definitions, it concluded that an “irritant is a source of irritation, especially physical irritation,” and that “[t]o contaminate means to make impure or unclean by contact or mixture.” Aplt. App., Vol. II, at 342 — 43; D. Ct. R., Doc. 41, at 6-7 (internal quotations omitted). Mendoza has appealed to the Tenth Circuit on the issue of whether Union is liable to her, under its insurance policy covering Irsik Farms, for the consent judgment against the Irsik defendants for her injuries resulting from being sprayed with anhydrous ammonia fertilizer.
II. The Parties’ Positions.
Union argues that anhydrous ammonia is a ‘pollutant’ under the terms of the pollution exclusion clause, and thus is excluded from coverage. Union presented evidence that anhydrous ammonia has known hazardous effects, including respiratory tract, skin and eye burns, and contains one or more components listed as a hazardous air pollutant under the Clean Air Act. It asserts that Mendoza’s injuries of burning in her eyes, throat, lungs and skin further establish that anhydrous ammonia fertilizer is an irritant. Thus, Union argues the anhydrous ammonia is clearly an ‘irritant’ and ‘contaminant’ and, thus, falls within the policy’s definition of a ‘pollutant.’
Mendoza argues that the anhydrous ammonia was being used, as it commonly is, as a fertilizer, and that under these circumstances, it is not a ‘pollutant.’ She contends that the pollution exclusion is ambiguous because any substance could conceivably meet the definition of a ‘pollutant’ under the exclusion. She notes that the definition of a ‘pollutant’ does not define the terms ‘irritant’ or ‘contaminant’ and read literally, are virtually boundless, because there is no substance or chemical in existence that does not irritate or contaminate some person or property. She contends the terms ‘irritant’ and ‘contaminant,’ do not have a plain, ordinary meaning. She further argues that, particularly in a farm owner’s insurance policy, a reasonably prudent insured farmer would not understand the exclusion clause’s definition of a ‘pollutant’ to cover a commonly used farm fertilizer. Thus, she argues that coverage exists because the exclusion *800must be interpreted narrowly and in a light most favorable to the insured.
III. Kansas Rules of Insurance Contract Construction.
Under Kansas law, an insurer bears the burden of proving that coverage is excluded. Shelter Mut. Ins. Co. v. Williams ex rel. Williams, 248 Kan. 17, 804 P.2d 1374, 1383 (1991). When interpreting insurance contracts, and exclusion clauses in particular, Kansas applies the following rules of construction:
Because the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language; otherwise, the policy will be liberally construed in favor of the insured. If an insurance policy’s language is clear and unambiguous, it must be taken in its plain, ordinary, and popular sense. In such case, there is no need for judicial interpretation or the application of rules of liberal construction. The court shall not make another contract for the parties and must enforce the contract as made.
However, where the terms of an insurance policy are ambiguous or uncertain,' conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail.
To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. Whether a written instrument is ambiguous is a question of law to be decided by the courts. Courts should not strain to create an ambiguity where, in common sense, there is not one. The test in determining whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean.
Am. Family Mut. Ins. Co. v. Wilkins, 285 Kan. 1054, 179 P.3d 1104, 1109-10 (2008) (quotation marks and bracketed material omitted).
IV. Conflicting Interpretations of this Pollution Exclusion Clause.
Different courts interpreting this same definition of a ‘pollutant’ in liability exclusion clauses have reached different conclusions as to the term’s meaning and as to whether the term is ambiguous under Kansas law. In 1992, a federal district court decision held that this pollution exclusion clause was so broad and imprecise as to be ambiguous. Westchester Fire Ins. Co. v. City of Pittsburg, 794 F.Supp. 353, 355 (D.Kan.1992). The court ruled that the definition of ‘pollutants’ did little to clarify its meaning because under its terms, “[a]ny substance could conceivably be an ‘irritant or containment’ under the right circumstances.” Id. Construing the provision narrowly, the court ruled that “the term ‘pollutants’ contemplates a substance that is particularly harmful or toxic to persons or the environment generally, and not merely those substances harmful to particular persons or property due to special circumstances.” Id. A year later, another federal court also held the definition of “pollutants” in this exclusion clause was ambiguous because it did not define the terms ‘irritant’ or ‘contaminant.’ Regent Ins. Co. v. Holmes, 835 F.Supp. 579, 581 (D.Kan.1993). It held that these terms “admit of no natural or ordinary interpretation ... because it is unclear whether they refer to substances which *801ordinarily irritate or contaminate, substances which have in fact irritated or contaminated under these particular circumstances, ... or both.” Id. at 582. It agreed with Westchester Fire that any substance could conceivably be an irritant or contaminant, and thus, the exclusion clause failed to use “the type of clear and precise language necessary to exclude coverage otherwise provided for in the policy.” Id.
Another federal district court, however, construing the same definition of pollutants in an exclusion clause held that, under the facts of its case, the exclusion was not ambiguous. City of Salina v. Md. Cas. Co., 856 F.Supp. 1467, 1477 (D.Kan.1994). In contrast to Westchester Fire Ins., which considered whether the insecticide malathion was a pollutant, the City of Salina court ruled that “there can be no reasonable doubt that alkaline wastewater with a pH of 12 constitutes the type of alkali that would be considered an ‘irritant’ or ‘contaminant,’ ” noting that the definition of ‘pollutants’ specifically lists alkalis. Id. In 1995, the Kansas Court of Appeals held that no ambiguity arose from the pollution exclusion clause language itself, and that while gasoline in a storage tank is not a pollutant, once it escapes or leaks from an underground storage tank and contaminates a neighboring property, it becomes a ‘pollutant’ within the policy’s definition. Crescent Oil Co. v. Federated Mut. Ins. Co., 20 Kan.App.2d 428, 888 P.2d 869, 871-73 (1995). In 2001, the Kansas Court of Appeals followed Crescent Oil, holding that the exclusion clause was not ambiguous, and that liquid cement cleaner is a pollutant when it leaks out of a drum, causing damage. Atl. Ave. Assocs. v. Cent. Solutions, Inc., 29 Kan.App.2d 169, 24 P.3d 188, 191-92 (2001).
Nationally, the question of how to interpret this pollution exclusion clause is similarly divided. As the Ninth Circuit recently noted, “[t]he scope of the total pollution exclusion has been- repeatedly litigated, spawning conflicting judicial decisions throughout the country ... [and tjhere exists not just a split of authority, but an absolute fragmentation of authority.” Apana v. TIG Ins. Co., 574 F.3d 679, 682 (9th Cir.2009) (citation, quotation and parenthetical marks omitted). In an exhaustive recitation of the various court interpretations of this pollution exclusion clause, the Ninth Circuit concluded that:
Most State courts fall roughly into one of two broad camps. Some courts apply the exclusion literally because they find the terms to be clear and unambiguous. Other courts have limited the exclusion to situations involving traditional environmental pollution, either because they find the terms of the exclusion to be ambiguous or because they find that the exclusion contradicts policyholders’ reasonable expectations.
Id. at 682 (citations and paragraph formatting omitted).
V. Reasons for Certification.
Kansas law provides that:
[t]he Kansas supreme court may answer questions of law certified to it by ... a court of appeals of the United States ... if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state.
Kan. Stat. Ann. § 60-3201; see also 10th Cir. R. 27.1(A)(1) (stating that this court may “certify a question arising under state law to that state’s highest court according to that state’s rules”). We have held that we will only certify questions of state law that are “both unsettled’ and dispositive.” *802Anaconda Minerals Co. v. Stoller Chem. Co., 990 F.2d 1175, 1177 (10th Cir.1993).
There are several reasons for certification. The question presented is a state-law issue, and it has not been addressed by the Kansas Supreme Court. There are no disputed fact issues, and the questions presented are pure questions of state law. Further, we recognize the importance of allowing the Kansas Supreme Court to decide questions of state law and policy, and thus define state law. More specifically, the question of how to interpret a standard pollution exclusion clause is a matter of exceptional importance for state insurers and insureds.
Although the interpretation of a pollution exclusion clause has been considered by two Kansas Court of Appeals decisions, these decisions differ from earlier interpretations of Kansas law by two federal district courts. We recognize that the answer to a certified question “must be based on Kansas precedent rather than federal rulings interpreting Kansas law.” Am. Family Mut., 179 P.3d at 1109. The Kansas decisions appear, however, to be fact-specific and based on the specific nature of the presented circumstances. See Crescent Oil Co., 888 P.2d at 871-73 (holding that gasoline is not a pollutant when stored in a storage tank, but is a pollutant once it escapes or leaks from the storage tank); Atl. Ave. Assocs., 24 P.3d at 191-92 (holding that liquid cement cleaner is a pollutant when it leaks out of a drum). In light of the nationwide split of authority interpreting this standard pollution exclusion clause, and the conflicting rulings under Kansas law on the central question of whether its definition of a ‘pollutant’ is ambiguous, we conclude that, in the absence of controlling authority from the Kansas Supreme Court, the answer to that question, and to the more specific question of whether Kansas would interpret the term ‘pollutant’ to exclude coverage of anhydrous ammonia used as a fertilizer in a farm owner’s insurance policy, are sufficiently unsettled and dispositive that certification is warranted.
We therefore CERTIFY these questions of Kansas state law to the Kansas Supreme Court. We greatly appreciate the consideration of this request.
The clerk of this court shall submit to the Kansas Supreme Court a certified copy of this order, together with copies of the briefs filed in this court, and copies of the District Court's Memorandum and Order. The clerk of this court shall also transmit a copy of this certification order to counsel for all parties to these proceedings in this court, and to the Clerk of the United States District Court for the District of Kansas, attention case no. 08-CV-1096-MLB. Costs of certification shall be paid as provided by Kan. Stat. Ann. § 60-3205. If the Kansas Supreme Court agrees to accept the certified questions, any further proceedings shall be governed by the appellate rules and statutes governing litigants before that court. Kan. Stat. Ann. § 60-3206.
This appeal is ABATED pending resolution of the questions certified herein. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479246/ | ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, and to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479248/ | ORDER
On October 19, 2009, the court issued a letter allowing Tywanna Gardner (“Gardner”) 21 days to notify this court if she had dismissed her petition for review before the Board. Gardner has failed to respond within the time allowed.
Accordingly,
IT IS ORDERED THAT:
(1) This appeal is dismissed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479250/ | ON MOTION
ORDER
Upon consideration of the parties’ joint motion to voluntarily dismiss this appeal from Miller v. Department of the Interior, FMCS No. 08-51296-3,
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/8479251/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479253/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
*956ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479256/ | *957Judgment
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/8479259/ | 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/8479263/ | 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/8479266/ | 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/8479270/ | 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/8479273/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
*987ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479233/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Peggy Pledger appeals the district court’s order granting Mayview Convalescent Home, Inc., summary judgment on her claims alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006) (“Title VII”), 42 U.S.C. § 1981 (2006), and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 to 634 (2006), as well as her Title VII retaliation claim. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. Pledger v. Mayview Convalescent Home, Inc., No. 5:07-cv-00235-F, 2009 WL 1010428 (E.D.N.C. Apr. 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479234/ | PER CURIAM: **
At issue in this maritime-shipping dispute is whether the district court erred in determining liability and damages for cold-rolled steel coils and steel pipes shipped on the MEDI TRADER from Eastern Europe to Houston and New Orleans. Western Bulk challenges: the district court’s finding the coils were undamaged when loaded onto the MEDI TRADER, but damaged when unloaded; its damages assessment; and its finding Western Bulk was the sole Carriage of Goods by Sea Act (COGSA) carrier — and therefore the sole party liable for damages — with respect to TradeArbed, Inc. (the coils’ owner), and Freemak Industries, Inc. (the pipes’ owner). AFFIRMED.
I.
Western Bulk was the last in a chain of time charterers of the MEDI TRADER, tracing back to her owner, Seafarers Shipping, Inc. Seafarers was a party to this action, but, post-trial, was dismissed without prejudice, as discussed infra.
A.
The cargo at issue for TradeArbed and Freemak is described in turn. The primary disputes concern TradeArbed.
*4661.
In December 2002, TradeArbed entered into a charter party with Western Bulk to ship hot-rolled and cold-rolled steel coils on the MEDI TRADER, from Bourgas, Bulgaria, to New Orleans. TradeArbed later became Arcelor Trading (they are referred to as TradeArbed). (Although it does not affect this analysis, there were two charter parties signed on 5 December 2002. Western Bulk negotiated one with TradeArbed; the other, with Arcelor Trading. The latter exists to reflect the above-noted merger. The charter parties refer only to “Hot Rolled Coils”, but the parties understood this term covered cold-rolled coils as well.)
TradeArbed’s coils were loaded onto the MEDI TRADER in January 2003. The moisture-sensitive cold-rolled coils were shipped in the usual protective wrappings; the non-moisture-sensitive hot-rolled coils were not wrapped. TradeArbed’s damages at issue concern only the cold-rolled coils.
Three bills of lading (numbers six-eight) covered the cold-rolled coils, and each noted tears, dents, and minor rust on some of the wrappings. Otherwise, the bills were clean.
TradeArbed’s coils were stowed in holds one, three, and five. After loading in Bourgas, hold one contained cold-rolled coils covered by bill six, along with Tra-deArbed’s bill-nine cold-rolled coils and another shipper’s galvanized-rolled coils (also moisture-sensitive, the galvanized-rolled coils were wrapped similar to cold-rolled coils); hold three contained cold-rolled coils covered by bill seven, along with some of TradeArbed’s hot-rolled coils and another shipper’s galvanized-rolled coils; and hold five contained cold-rolled coils covered by bills seven and eight, along with more of TradeArbed’s hot-rolled coils.
Holds two and four were filled with other shippers’ cargo. Cargo was added to holds one and three at a subsequent port, before ocean transit to the United States.
Evidence was presented at trial regarding the existence of condensation in the holds, which can cause rust on moisture-sensitive cold-rolled coils. The moisture was claimed to have entered the holds from either or both of two principal sources.
First, it could have entered with non-moisture-sensitive cargo, like the hot-rolled coils, which, prior to loading, were stored in the open air and were covered with snow during loading. During loading, the MEDI TRADER’S chief mate objected to stowing wet hot-rolled coils in the same hold with moisture-sensitive cold-rolled coils.
Second, moisture could have entered when, at a subsequent port, cargo was loaded into the holds during rainfall. This was also over the chief mate’s protests.
After discharging some of her cargo in Houston, including Freemak’s pipes, the MEDI TRADER proceeded to New Orleans, where her remaining cargo, including the cold-rolled coils, was unloaded; those coils were still in wrappers. In both Houston and New Orleans, a number of surveyors inspected the cargo and the holds.
Surveyors agreed hold three contained “tide marks” — evidence of standing water in the hold. In the three holds containing the coils at issue, surveyors also found “drip-down condensation” resulting from water condensing at the top of the hold and dripping onto the cargo. Surveyors generally agreed this was fresh-water, as opposed to salt-water, condensation, and attributed it to the moisture introduced during loading. It was also noted that some coils were dripping water during unloading in New Orleans.
*467TradeArbed’s cold-rolled coils were loaded from the MEDI TRADER onto barges for shipment to their final destinations up the Mississippi River. They were not unwrapped until they reached those destinations.
The original buyer of the bills-seven and -eight coils rejected them as unfit, citing heavy rust. Another round of surveys generally attributed the rust to moisture encountered in ocean transit. Tra-deArbed sold those coils to the original buyer at a depreciated value. Surveys approved of the new sale price as “fair, reasonable, [and] representative of] conditions viewed”.
The bill-six coils were rejected based on damage caused by rust and oil emulsification within the coils. More so than with the bills-seven and -eight coils, evidence conflicted on whether the bill-six coils were damaged in ocean transit. The original buyer of those coils rejected them, but TradeArbed reached agreement with a different buyer to purchase them at a depreciated value. Surveys described the new bill-six sale price as “representat[ative of] conditions viewed, ... fair, reasonable, and ... recommended as the best disposition in the matter....”
2.
For the same voyage on the MEDI TRADER, Freemak also chartered, from Western Bulk, space to ship its steel pipes. They were loaded in December 2002 in Odessa, Ukraine. Upon unloading them in Houston, it was discovered they had been crushed by rebar. As it did at trial, Western Bulk concedes the pipes were damaged during the ocean transit.
B.
TradeArbed and Freemak filed an action for damages against: the MEDI TRADER, in rem; her owner (Seafarers); her manager (Victoria Ship Management, Inc.); and her charterer (Western Bulk). The district court consolidated the action with one filed earlier by Cargill Ferrous International, another shipper with cargo on the MEDI TRADER during the voyage at issue. Seafarers and Victoria filed a cross claim and a third-party complaint against Western Bulk, seeking indemnification for damage to the cargo.
The district court bifurcated the trial, separating “the cargo quantum claims from the issues of liability between [Western Bulk] and Seafarers”. Cargill Ferrous Int'l v. M/V MEDI TRADER, 513 F.Supp.2d 609, 612 (E.D.La.2007). The second part of the bifurcated trial has yet to occur.
After a bench trial on the claimed cargo damage, the district court found Western Bulk liable, inter alia, to TradeArbed for $787,222.44 for the bill-six through bill-eight coils; and, to Freemak for $256,814.22 for the pipes. MEDI TRADER, 513 F.Supp.2d at 625-26. (A significant portion of the district court’s opinion was devoted to Cargill’s claims, and Cargill was awarded damages of, inter alia, $264,452.67. Cargill settled its claims.) Western Bulk’s motions for reconsideration and for a new trial were denied.
On 20 October 2008, an omnibus order: dismissed without prejudice claims that settled after trial (not at issue in this appeal); and, consistent with its earlier opinion, awarded judgment for Tra-deArbed and Freemak against Western Bulk.
II.
For this admiralty bench trial, the district court heard no testimony; only documentary evidence was presented. The court’s legal conclusions are reviewed de novo; its findings of fact, only for clear error. E.g., Sabah Shipyard Sdn. Bhd. v. M/V HARBEL TAPPER, 178 F.3d 400, *468404 (5th Cir.1999) (citing Nerco Oil & Gas, Inc. v. Otto Candies, Inc., 74 F.3d 667, 668 (5th Cir.1996)). Benchtrial fact findings, “whether based on oral or other evidence, must not be set aside unless clearly erroneous .... ” Fed R. Civ. P. 52(a)(6). Restated, this standard is applied even though the district court made no credibility determinations based on oral testimony and based them only on “documentary evidence or inferences from other facts”. Pacific Employers Ins. Co. v. M/V GLORIA, 767 F.2d 229, 235 (5th Cir.1985) (quoting Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).
Western Bulk contends: TradeArbed failed to prove its prima facie case for damage to cargo; the district court applied an improper method to calculate damages and, in the alternative, erred by not applying COGSA’s $500-per-package damage limitation; and this was an instance of common, not private, carriage, and, consequently, Western Bulk is not the only party liable as a COGSA carrier.
A.
Regarding the claimed cargo damage, Western Bulk contends TradeArbed failed to prove two essential elements of its COGSA prima facie case: Western Bulk’s receipt of the cargo in good condition; and its delivery in damaged condition. See Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir.1995). Each element is addressed in turn.
1.
Regarding good condition on receipt, Western Bulk asserts: the coils did not have clean bills of lading; and TradeArbed failed, in the absence of such bills, to prove good condition by other means. In that regard, Western Bulk contends Tra-deArbed failed to offer any proof of the coils’ condition on receipt because it failed to show their condition inside their wrappings.
Clean bills of lading are prima facie evidence of good condition on receipt. Steel Coils, Inc. v. M/V LAKE MARION, 331 F.3d 422, 426 (5th Cir.2003). As noted, the bills were not entirely clean. MEDI TRADER, 513 F.Supp.2d at 625-26. In such a situation, the district court must look to other evidence to determine good condition, such as mate’s receipts and surveys from the loading port. See LAKE MARION, 331 F.3d at 427.
As noted, Western Bulk contends Tra-deArbed failed to meet a “considerable burden of going further to prove actual condition”, because it did not present evidence of the coils’ condition inside their wrappings. See United States v. Lykes Bros. Steamship Co., 511 F.2d 218, 223 (5th Cir.1975) (quoting Compagnie De Navigation v. Mondial United Corp., 316 F.2d 163, 170 (5th Cir.1963)); see also Caemint Food, Inc. v. Brasileiro, 647 F.2d 347, 352 (2d Cir.1981). Our court has, however, expressly distinguished the “considerable burden” placed on shippers of the wrapped perishable goods in Western Bulk’s cited cases from the burden placed on shippers of wrapped steel coils. See LAKE MARION, 331 F.3d at 429.
In LAKE MARION, the owner of cold-rolled steel coils sued for damages allegedly incurred during maritime transit. Id. at 425. After a bench trial, the district court awarded damages. Id.
As Western Bulk does here, in LAKE MARION it was contended on appeal: “the bill of lading notation that the condition of these coils was unknown fatally undermined Steel Coils’s attempt to prove a prima facie case of good condition” at loading. Id. at 428. Our court disagreed, holding:
The evidence at trial shows that, had the cold rolled ... coils been damaged by *469rust, their outer -wrappers would have revealed it. Because the wrappers had no indication of rust, and the moisture on the outside of the wrappers was not dripping down into the coils, it was not clearly erroneous for the district court to conclude that the cold rolled ... coils were in an undamaged state prior to loading.
Id. at 429; see also Couthino, Caro & Co. v. M/V SAVA 849 F.2d 166, 168 (5th Cir.1988) (affirming district court’s finding, based on witness’ testimony, that steel coils were undamaged at loading despite “numerous exceptions noting rust and packaging damage” on bills of lading).
In the instant action, the district court relied on the pre-load surveys and other evidence introduced at trial to find whether the cargo was in good condition at loading. The court ruled: “while the bills of lading were claused to note some defects in packaging and the load survey also demonstrates this, it is the Court’s conclusion after viewing the photographs that[, at loading,] any rust on the coils themselves was on the hot rolled coils”, not the cold-rolled coils. MEDI TRADER, 513 F.Supp.2d at 626. Therefore, for the cold-rolled coils, the district court found Tra-deArbed proved the undamaged-at-loading element of its prima facie case. Id.
TradeArbed was not required to do more. See LAKE MARION, 331 F.3d at 429. The district court did not clearly err in finding the cold-rolled coils’ undamaged condition at loading. See GLORIA, 767 F.2d at 235 (stating that, “ ‘[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous' ... even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts’ ” (quoting Anderson, 470 U.S. at 574, 105 S.Ct. 1504)).
2.
Likewise, Western Bulk asserts Tra-deArbed failed to prove the coils were damaged on delivery, maintaining it failed to present any evidence of the coils’ condition because they were not unwrapped in New Orleans, but remained packaged until they reached their upriver destinations. According to Western Bulk, the light atmospheric rust on the coils’ wrappings at discharge in New Orleans does not explain the heavier fresh-water rust discovered on the coils when unwrapped over a month later. Western Bulk also suggests the coils could have been damaged in storage after reaching those destinations.
In LAKE MARION, as here, it was contended: “the steel coils rusted on the way from the ship to their ultimate inland destinations”. 331 F.3d at 429. LAKE MARION ruled such contentions were “belied by a wealth of evidence relied upon by the district court”, including a quoted survey that stated the surveyor’s opinion as to the cause of the damage. Id. Accordingly, this issue turns on whether evidence in the record precludes holding clearly erroneous the finding that the coils were damaged in ocean transit.
The district court considered two separate. groups of coils, and held: “Tra-deArbed/Arcelor has carried its burden of proof to demonstrate that the [bills-seven and -eight] coils were unloaded in a damaged condition as they were rusted”, and the bill-six coils were “also damaged as a result of incompatible cargo being stowed together”. MEDI TRADER, 513 F.Supp.2d at 626.
a.
Regarding the bills-seven and -eight coils, Western Bulk maintains the district court improperly relied on six surveys— three in New Orleans, and three at the upriver destinations — cited to support its *470finding that those coils were rusted during ocean carriage. Western Bulk contends: the upriver surveys do not prove damage at unloading in New Orleans; and the earlier New Orleans surveys do not show rust on the coils because they were not unwrapped.
For the coils shipped in hold three, surveys reported “rust tide mark” and “heavy drip down”, resulting from “ship’s sweat and cargo sweat in the cargo hold due to the lack of proper ventilation and from faulty stowage”. One New Orleans surveyor, inspecting the three holds that contained TradeArbed’s coils, concluded: “the heavier rust to various degrees noted on the cargo in each hold was due to sweat ... caused as a result of improper ventilation aboard the ocean carrier [and] improper stowage aboard the ocean carrier”. The coils were found to have been subject to “severe sweat conditions prior to loading the barges” for the upriver journey. As one survey explained: “Stowage of hot rolled steel cargo in the same cargo compartment as moisture sensitive cargo is improper stowage. Ventilation of the cargo was impeded and therefore improper....”
These surveys support the district court’s finding that the bills-seven and - eight coils were damaged when unloaded in New Orleans; therefore, the court did not clearly err when it credited them.
b.
As noted, after the bill-six coils’ original buyer rejected them, TradeArbed reached an agreement with another buyer to sell those coils at a discount based on “rust/oil emulsification only”. The district court found these coils were “primarily damaged by oil emulsification” resulting from “a combination of oil and water from the high humidity in the cargo holds”. MEDI TRADER, 513 F.Supp.2d at 626. As also noted, the district court attributed this damage to “incompatible cargo being stowed together”. Id.
Surveys conflicted as to the bill-six coils’ conditions, and opinions conflicted on the cause of damage. Evidence showed moisture in hold one. A number of the bill-six coils’ wrappings were torn, punctured, or otherwise damaged, thereby creating holes through which this moisture could reach the coils and cause emulsification and rust. “[M]oderate/heavy oxidation/rust” on the bill-six coils was found at discharge in New Orleans.
In short, some evidence suggested the damage did not occur during ocean transit. Nevertheless, the district court did not clearly err when it credited contrary evidence and found the bill-six coils were damaged at unloading.
B.
Accordingly, the district court did not clearly err when it found TradeArbed proved its COGSA prima facie case that the goods were damaged during ocean transit. Therefore, the contested damages are addressed next. In challenging the district court’s method of calculating them, Western Bulk presents two alternative claims: TradeArbed failed to satisfy its initial burden to prove a prima facie case of damages; and, in the alternative, the court erred by denying Western Bulk the benefit of COGSA’s $500-per-package damage limitation.
1.
Western Bulk contends: because Tra-deArbed failed to prove the coils’ sound market value at discharge in New Orleans, in both their damaged and undamaged states, the district court should have denied all recovery. Using the coils’ subsequent upriver value to determine damages, Western Bulk asserts, is contrary to our *471precedent requiring damages to be calculated using market value at discharge.
As for the cargo covered by bills-seven and -eight, the district court stated only that “the damages suffered were $574,542.83”, and cited a survey describing that this amount was calculated by subtracting the discounted price for the damaged coils from the original price. MEDI TRADER, 513 F.Supp.2d at 626. The distinct court resolved the bill-six coils’ damages similarly, finding “damages [were] $212,679.61 after mitigation of damages by TradeArbed/Arcelor through acceptance [of] reasonable depreciation”, and cited a survey providing the relevant calculation. Id. These calculations were not improper under our precedent.
COGSA does not mandate one method of calculating damages, but instead provides a general principle: “In no event shall the carrier be liable for more than the amount of damage actually sustained”. COGSA, § 4(5), 46 U.S.C. § 30701 note. Our court typically applies the traditional “market value rule” to calculate COGSA damages. See BP N. Am. Petroleum v. SOLAR ST, 250 F.3d 307, 312 (5th Cir.2001). As the Supreme Court has recognized, however, there are occasions when it is necessary to use other methods. See Ill. Cent. R.R. Co. v. Crail, 281 U.S. 57, 64-65, 50 S.Ct. 180, 74 L.Ed. 699 (1930) (“The test of market value is at best but a convenient means of getting at the loss suffered. It may be discarded and other more accurate means resorted to, if, for special reasons, it is not exact or otherwise not applicable.”).
In F.J. Walker Ltd. v. M/V LEMON-CORE our court held: where the carrier is responsible for damages, it “is in no position to complain that the damaged parties can not establish precisely the loss it caused”. 561 F.2d 1138, 1147 (5th Cir.1977) (citing Daniels Towing Svc., Inc. v. Nat Harrison Assoc., Inc., 432 F.2d 103, 105-06 (5th Cir.1970)). The LEMON-CORE district court “was faced with establishing damages by one of two methods, both of which were inexact”. Id. at 1147. After noting the “primary object in awarding damages is to indemnify plaintiff for the loss sustained by reason of the carrier’s fault”, LEMONCORE made clear that inability to prove exact damages is not fatal to a shipper’s case. See id. at 1146-47 (quoting Interstate Steel Corp. v. S.S. Crystal Gem, 317 F.Supp. 112, 121 (S.D.N.Y.1970)) (holding that where damages are unclear or difficult to prove, “the court should use the best indication it can obtain rather than deny any recovery”).
Restated, uncertainty does not preclude recovery. Id; see also Saul Sorkin, Goods in TRANSIT § 11.03 n. 27 (2009) (“Uncertainty in ascertaining damages does not mean that plaintiff is precluded from i’e-eovering.” (citing C. Itoh & Co. v. Hellenic Lines, Ltd., 470 F.Supp. 594, 598 (S.D.N.Y.1979))). “In such a situation the district court has a discretion to choose the method it considers best.” LEMONCORE, 561 F.2d at 1147 (citing Ill. Cent., 281 U.S. 57, 50 S.Ct. 180; Santiago v. Sea-Land Svc., Inc., 366 F.Supp. 1309, 1314-15 (D.P.R.1973)).
LEMONCORE ultimately approved a method of calculating damages similar to the market-value method urged by Western Bulk; but, in this instance, it is the general COGSA-damages principles LEM-ONCORE expresses that are persuasive. In the light of such principles, the district court did not err by not requiring at-discharge market value. Obviously, because of the nature of transporting cold-rolled coils, TradeArbed could not discover the extent of the damage to them until they were unwrapped; and, because their ultimate destinations were upriver, they were not unwrapped until more than a month after they were discharged from *472the MEDI TRADER (and thereby discharged from Western Bulk’s control).
TradeArbed’s evidence regarding bills-seven and -eight cargo included: invoices (which can be used to determine market value, see Emmco Ins. Co. v. Wallenius Caribbean Line, S.A., 492 F.2d 508, 514 (5th Cir.1974)) and sale confirmations for the coils corresponding with sale contracts entered both before and after discharge (both for the same price, $18.83 cwt); evidence of the price for which the coils were sold at salvage ($11.80 cwt); and an expert opinion that the salvage price was “fair, reasonable, [and] represents conditions” of the damaged coils as viewed during the survey. The evidence regarding the bill-six coils was similar, with a contract price of $21 cwt and a salvage price of $11.60 cwt.
The salvage-sale agreements, which Tra-deArbed entered after its original buyers complained that the coils were damaged, were necessarily non-existent at discharge because TradeArbed did not know, and could not have known, of the damage, or its extent, at that time. These agreements contemplated the percentages of coils damaged and were otherwise specific to the status of each set of coils. TradeArbed could not have produced evidence of the at-discharge “market price” of this certain number of coils containing this certain number of various defects. Western Bulk provides no reason to find clearly erroneous the district court’s finding TradeArbed presented sufficient evidence to determine actual damages.
Western Bulk relies on SOLAR ST, which concerns damages for oil sold at a discount after being negligently contaminated by its carrier. That case, however, is distinct in several ways from the instant matter. For example, unlike the SOLAR ST district court, see 250 F.3d at 315, the district court here was not presented with evidence it could have used to apply the market value rule. As another example, the district court’s damage determination in this instance did not implicate concerns that using a subsequent value would make the carrier a “guarantor of the ups and downs of commodity prices”. See Holden v. SS KENDALL FISH, 395 F.2d 910, 913 (5th Cir.1968); see also SOLAR ST, 250 F.3d at 312-15. As a final example, for the bills-seven and -eight coils, evidence showed the market relevant to this transaction — ie., the value of the undamaged goods vis-a-vis TradeArbed and the buyers — did not fluctuate between discharge and re-sale.
2.
For its alternative damages contention — that the district court should have applied COGSA’s $500-per-paekage limitation — Western Bulk maintains: either the charter party is the contract of carriage, and COGSA is thereby incorporated; or, the bills of lading are the contracts of carriage, and COGSA applies of its own force. The COGSA package limitation provides, in relevant part:
Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package ... unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.
By agreement between the carrier, master, or agent of the carrier, and the shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided, That such maximum shall not be less than the figure above named. In no event shall the carrier be *473liable for more than the amount of damage actually sustained.
46 U.S.C. § 30701, note § 4(5).
Western Bulk asserts the charter party it negotiated with TradeArbed required that COGSA be incorporated in all bills of lading, and suggests this gave the requisite notice and opportunity for TradeArbed to declare a higher value. See generally Brown & Root, Inc. v. M/V PEISANDER, 648 F.2d 415, 420-25 (5th Cir.1981) (discussing fair-opportunity doctrine). Further, Western Bulk contends TradeArbed, a sophisticated shipper, is not the type party the fair-opportunity doctrine is designed to protect.
The district court held: “COGSA, with the exception of the limit of recovery, applies to these contracts of carriage”, ruling that “neither [the charter parties] nor the bills of lading evidence a fair opportunity to declare a higher value for the shipment so as to invoke the ... package limitation because mere incorporation of [COGSA] into the bills of lading through the charter party is insufficient notice”. MEDI TRADER, 513 F.Supp.2d at 625.
Contrary to Western Bulk’s position, to invoke the package limitation, it is necessary to provide further evidence beyond incorporation of COGSA into the contract of carriage, such as the carrier’s giving the shipper a choice of rates and valuations. See SAVA, 849 F.2d at 171 n. 6 (“[W]e have not held ... that the mere incorporation of COGSA into a bill of lading constitutes prima facie evidence of fair opportunity”.). The carrier bears an initial burden of showing it offered the shipper a fair opportunity to avoid the limitation. Id. at 169. A prima facie case of fair opportunity can be made by introducing, e.g., evidence of a published tariff that “very carefully gave Shipper a choice of valuations by a choice of precisely definable freight rates”. PEISANDER, 648 F.2d at 424; see also Wuerttembergische & Badische Versicherungs-Aktiengesellschaft v. M/V STUTTGART EXPRESS, 711 F.2d 621, 622 (5th Cir.1983) (applying PEISANDER to invoke COGSA package limitation and emphasizing existence of tariff that “clearly gave the shipper a choice of valuations”).
The district court did not clearly err in finding: that Western Bulk did not provide TradeArbed sufficient notice of a fair opportunity to declare a higher value; and that, therefore, the package limitation did not apply.
C.
Finally, Western Bulk challenges the district court’s awarding damages before the second stage of the bifurcated trial. The award was based on the district court’s ruling Western Bulk was the only COGSA carrier of TradeArbed’s coils and Freemak’s pipes. Western Bulk contends: the district court should have treated its carriage of cargo on the MEDI TRADER as common, not private; and the bills of lading, not the charter parties, constituted the applicable contracts of carriage. If carriage were common, Seafarers (the MEDI TRADER’S owner) would also be a COGSA carrier liable for damage to the cargo.
1.
Charter parties are the contracts of carriage in private carriage, but bills of lading are such contracts in common carriage. See Thomas J. Sohoenbaum, Admiralty and Maritime Law § 11-6 (2004). The district court’s deciding Western Bulk was the sole COGSA carrier of the cold-rolled coils and, therefore, the only party liable for damages to them, flowed from its ruling the charter party, not the bills of lading, was the relevant contract of carriage between TradeArbed and Western Bulk. Western Bulk was the only charterer to sign this *474charter party, and our precedent “requires privity of contract of carriage before liability under COGSA arises”. Thyssen Steel Co. v. M/V KAVO YERAKAS, 50 F.3d 1349, 1353 (5th Cir.1995).
The issue turns, therefore, on whether the district court erred when it found the applicable contract of carriage to be the charter party, not the bills of lading (signed not only by Western Bulk, but also by an agent of Seafarers, the MEDI TRADER’S owner). See MEDI TRADER, 513 F.Supp.2d at 624-25. Western Bulk maintains the MEDI TRADER was engaged in common carriage because it carried more than one shipper’s cargo.
In Thyssen, Inc. v. NOBILITY MV, 421 F.3d 295 (5th Cir.2005), as here, the district court found a voyage charter, not the bills of lading, was the contract of carriage, id. at 304, where the ship also “carried other cargo ... on behalf of another cargo shipper”, id. at 297. As here, the bills of lading specifically incorporated the charter. Id. at 307. Reviewing for clear error, our court affirmed the district court’s finding the ship “was engaged in private carriage”, id., and denied the contention that “multiple shipping defeats any indication of private carriage that a bill of lading incorporating the terms of the voyage charter may connote”, id. at 305.
Pursuant to NOBILITY, the district court did not err in deciding the MEDI TRADER was engaged in private carriage with respect to TradeArbed’s coils, with the charter party, not the bills of lading, being the applicable contract of carriage. Therefore, Western Bulk, as the only charterer that signed the charter party, was the only party in privity with TradeArbed. Because, as noted, our precedent requires privity for COGSA carrier liability, Western Bulk was the only COG-SA carrier; no COGSA liability allocation remains to be resolved at the second stage of the bifurcated trial. Accordingly, the district court did not err in awarding damages against only Western Bulk for Tra-deArbed’s coils.
2.
Western Bulk also contends the district court erred because it did not reserve allocation of liability for damages to Free-mak’s pipes for the second part of the bifurcated trial, asserting the district court should have only determined the amount of damages. Western Bulk claims its failure to introduce evidence as to the cause of the pipes’ damages was in reliance on the bifurcation order separating “cargo quantum claims” from “issues of liability”.
This claim, as with the coils, turns on whether Western Bulk was the only COGSA carrier for the pipes. For the same reasons the charter party between Tra-deArbed and Western Bulk constitutes the contract of carriage between those parties, the district court ruled: “The private carriage agreement ... between Western Bulk and Freemak is the controlling contract of carriage” for the pipes. MEDI TRADER, 513 F.Supp.2d at 624.
As with the TradeArbed bills of lading, the Freemak bills expressly incorporated the relevant charter party. Nothing about the Freemak charter party suggests or compels a conclusion inconsistent with our earlier holding as to TradeArbed. For the reasons provided supra, the district court did not err in deciding the charter party, rather than the bills of lading, was the contract of carriage; and, in concluding Western Bulk was the sole carrier of Free-mak’s pipes.
Because the district court did not err in determining Western Bulk to be the sole carrier for the pipes, its awarding damages against Western Bulk is not inconsistent with the bifurcation order. As the sole COGSA carrier, Western Bulk is solely responsible for the COGSA damages. *475This result does not mean, as Western Bulk asserts, that the district court treated Western Bulk’s admission that the pipes were damaged as tantamount to an admission of liability. Rather, the court’s ruling that Western Bulk was the sole carrier simply precluded consideration of the further question of how to allocate liability among the carriers, which would have been considered at the second stage of the bifurcated trial.
III.
For the foregoing reasons, the judgment is AFFIRMED.
Pursuant to 5th Cre. 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/8479238/ | PER CURIAM: *
Kenrick Cicero petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of an immigration judge’s finding that he did not obtain derivative citizenship as a result of his father’s naturalization. A nationality claim is a question of law that we review de novo. Marquez-Marquez v. Gonzales, 455 F.3d 548, 554 (5th Cir.2006). “Petitioner has the burden of proving that he qualifies for naturalization, and he must do so in the face of the Supreme Court’s mandate that we resolve all doubts in favor of the United States and against those seeking citizenship.” Bustamante-Barrera v. Gonzales, 447 F.3d 388, 394-95 (5th Cir.2006).
Relying on the provisions of former 8 U.S.C. § 1432, Cicero argues that he was in the custody of his father in 1980 when his father became a naturalized citizen. Former section 1432 requires in relevant part that the child of divorced parents, such as Cicero, have been in the sole legal custody of the naturalized parent. See Bustamante-Barrera, 447 F.3d at 395-96.
Cicero’s parents’ divorce decree awarded custody of Cicero to his mother. Although Cicero argues that other evidence shows that his parents agreed that he would be in his father’s custody, there is no evidence that his father ever obtained the required sole legal custody of him. See Bustamante-Barrera, 447 F.3d at 395-96; see also Nehme v. I.N.S., 252 F.3d *558415, 426 (5th Cir.2001)(interpreting phrase “legal separation” in the same statute). As Cicero has not shown that he was in the sole legal custody of his father, he has not shown that he obtained derivative citizenship under § 1432. See Bustamante-Barrera, 447 F.3d at 395-96.
Cicero’s petition for review is DENIED. Cicero’s motions for appointment of counsel and for release on bond pending the disposition of his petition for review also are DENIED.
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/8479240/ | ORDER
Police officers in Nebraska discovered 900 pounds of marijuana in an SUV during a traffic stop in September 2006. The driver agreed to cooperate with the DEA and delivered his cargo to Reginald Bick-ham, a marijuana distributor in Milwaukee, Wisconsin. Bickham was arrested and fingered people below him in the distribution chain, including the defendant, Dwayne Toliver, who was arrested in May 2007. The other participants pleaded guilty, but Toliver insisted that Bickham had falsely accused him to curry favor with prosecutors. A jury rejected this defense and found Toliver guilty of conspiracy to distribute marijuana, 21 U.S.C. §§ 846, 841(a)(1). The drug quantity and his criminal history triggered a 10-year statutory minimum, see id. § 841(b)(l)(B)(viii), which the district court imposed. Toliver filed a notice of appeal, but his appointed lawyers move to withdraw because they cannot find a nonfrivolous issue to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Toliver opposes counsel’s submission. See CIR. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief and Toliver’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
At trial Bickham testified that he was a small-time distributor until late 2004 when a willing source started fronting him large amounts of marijuana. Initially he received 20-pound shipments from this supplier, but over time the weight increased until reaching the 900 pounds intercepted by police. Bickham did not sell directly to users but instead fronted the drug to dealers who employed their own distributors or sold it themselves. He explained that Toliver, whom he knew only as “Big Baby,” owned the car wash he patronized and sold small amounts of marijuana for him as early as 2]6 to 3 years before the Nebraska seizure. As his drug business grew, Bickham continued, he needed a safe place to transfer the marijuana from the supplier’s car to his, and Toliver let him use the car wash. After that, said Bickham, he began giving Toliver more marijuana to sell, ranging from 5 to 100 pounds. Bick-ham added that Toliver was always present when marijuana was being unloaded at the car wash. Another man, Bickham’s longtime friend Rahjee Shabazz, was also present on occasion. Bickham stopped using the car wash in 2005 but continued fronting marijuana to Toliver until the next year when he failed to pay for 15 pounds worth about $10,000. At that point, said Bickham, he ended all contact with Toliver. Bickham’s cell phone records for 2006 corroborate that he and To-liver conversed more than 170 times in January and February before the calls ceased.
Before his arrest Bickham had been using notebooks and scraps of paper to track his drug business. He gave these ledgers to investigators and explained at trial that he started keeping records when his operation became too big to track mentally. In his ledgers he recorded the weight of the marijuana and the amount of money paid or owed by his customers, who were identified only by initials or nicknames. Their real names were often unknown to him. Bickham testified that Toliver’s transactions were listed under “Big Baby” or “Wash” — the latter a nickname referring to his car wash but that Bickham never used when speaking with Toliver.
*657Shabazz, Bickham’s Mend, also pleaded guilty and testified for the government. He knew Toliver only as “Big Baby” and first met him when Bickham was using the car wash to unload marijuana. Bickham would call Toliver when a shipment arrived, and Toliver would let them into the car wash to unload and weigh the drugs. Bickham fronted part of those shipments to Shabazz and Toliver. Shabazz testified that investigators showed him Bickham’s ledgers and asked if he was the customer identified as “Rha.” He told the jury he assumed that “Rha” was short for Rahjee even though Bickham never called him by that nickname. Shabazz confirmed that the numbers in the ledgers were consistent with amounts of drugs Bickham had fronted him and the money he owed in return. Shabazz also confirmed that the directory copied from his cell phone by police after an unrelated arrest in 2005 included Toliver’s number stored under “Big Baby.”
Four other buyers of Bickham’s marijuana likewise pleaded guilty and testified for the government. One of them knew Toliver socially, but otherwise none was aware that he was buying from Bickham, and neither did they know any of Bick-ham’s other customers. All four, though, recognized in Bickham’s ledgers their own transactions with him.
Toliver took the stand and denied selling drugs. He said he met Bickham in 2005 when Bickham started coming to his car wash 2 or 3 times a week with up to 15 different vehicles. Toliver insisted that he uses the nickname “Man,” which is what Bickham called him, not “Big Baby” or “Wash.” Toliver also acknowledged that Bickham telephoned him frequently, but always concerning his cars. And he in turn called Bickham, he continued, because Bickham had a habit of being late to retrieve his cars. Toliver testified that Bick-ham quit coming to his car wash early in 2006 but did not tell him why.
Other than his own denials, Toliver’s defense relied on cross-examination of the government’s witnesses and his fiancee’s testimony that she never saw him with large quantities of drugs. Defense counsel questioned Bickham about his motivation for testifying and implied that he was lying about Toliver to evade a 10-year statutory minimum and an even-higher imprisonment range under the guidelines. Counsel questioned why Bickham had used two different names for Toliver in his ledgers, but the nicknames of other customers did not vary. Counsel elicited that it took Bickham months to provide enough information for investigators to begin identifying the customers in his ledger entries, and Bickham agreed that he was under pressure “to put a name with every one of those nicknames.” Bickham countered, however, that even at the time of trial there were still a number of ledger entrants who remained unidentified and at large.
In this court both counsel and Toliver consider whether Toliver could tease a nonMvolous issue from the differing dates of the conspiracy alleged in the indictment and proven at trial. The indictment alleges a conspiracy beginning in January 2006 and continuing until the date of Biekham’s arrest in September 2006, but the evidence at trial showed that Toliver and Bickham had engaged in drug transactions beginning in 2005 and continuing through February 2006. Toliver proposes to argue that the government actually proved two conspiracies — one in 2005 involving Bick-ham and Shabazz using the car wash to unload drugs and the other beginning in January or February 2006 — and thus the lack of a multiple-conspiracy jury instruction sullies his conviction. And counsel also examine whether Toliver could argue that the differing time frames led to a constructive amendment of the indictment, *658a fatal variance, or proof insufficient to convict.
All of these contentions would be frivolous. First, the very suggestion that the evidence established two separate marijuana conspiracies would doom the possibility of a constructive amendment: the indictment charges a drug conspiracy, and a constructive amendment, by definition, cannot occur unless the evidence and the jury instructions allowed conviction for an entirely different crime from what the indictment alleges. See United States v. Ratliff-White, 493 F.3d 812, 820 (7th Cir.2007); United States v. Trennell, 290 F.3d 881, 888 (7th Cir.2002); United States v. Johnson, 248 F.3d 655, 665 (7th Cir.2001). The beginning and ending dates of a conspiracy are not elements of the offense, so proof of different dates could never raise the specter of conviction for a different crime. See United States v. Hatten-Lubick, 525 F.3d 575, 581 (7th Cir.2008); United States v. Spaeni, 60 F.3d 313, 315-16 (7th Cir.1995); United States v. Jackson, 935 F.2d 832, 844 (7th Cir.1991). Moreover, on this record we would be compelled to conclude that a rational jury could have found that Toliver knew about and agreed to participate in Bickham’s marijuana business within the dates alleged in the indictment, thus also dooming any claim of variance or insufficient evidence. See United States v. Haynes, 582 F.3d 686, 698 (7th Cir.2009) (discussing variance); United States v. Dean, 574 F.3d 836, 842 (7th Cir.2009) (same); United States v. Longstreet, 567 F.3d 911, 918-19 (7th Cir.) (discussing sufficiency of the evidence), cert. denied, — U.S. -, 130 S.Ct. 652, 175 L.Ed.2d 497 (2009); United States v. Harris, 585 F.3d 394, 402 (7th Cir.2009) (same). Bickham’s testimony established that Toliver knowingly helped him receive and sell marijuana, and Sha-bazz’s testimony corroborated Toliver’s involvement in unloading the marijuana. Toliver painted a different, innocent picture, but the jury was entitled to reject his testimony, and we would not upset the jury’s credibility findings. United States v. Hampton, 585 F.3d 1033, 1041-42 (7th Cir.2009).
Counsel next consider whether To-liver could claim en*or based on the government’s use of a prior conviction to impeach him. Counsel examine whether it prejudiced the jury to hear that Toliver had an 8-year-old conviction for possessing cocaine with intent to distribute. Because Toliver did not object at trial, we would review for plain error. United States v. Williams, 272 F.3d 845, 860 (7th Cir.2001). Federal Rule of Evidence 609 allows the government to submit evidence of a defendant’s prior felony conviction if the conviction occurred within the last 10 years and its probative value outweighs the prejudice to the accused. See United States v. Smith, 454 F.3d 707, 716 (7th Cir.2006). In evaluating whether a conviction satisfies this requirement, a trial court should consider “(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant’s testimony; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.” United States v. Gant, 396 F.3d 906, 909 (7th Cir.2005). Here, Toliver’s testimony and credibility were central to the case: either he was lying or Bickham was lying. Thus, although the similarity of the two crimes increased the risk of prejudice, the importance of Toliver’s credibility weighed in favor of admissibility. And the prejudicial effect was lessened because the government confined its inquiry to the type and time of conviction and the court gave the jury a limiting instruction. See United States v. Montgomery, 390 F.3d 1013, 1015-16 (7th Cir.2004). Accordingly, we *659agree with counsel that an argument premised on Rule 609 would be frivolous.
Counsel also assess whether Toliver could challenge several remarks the prosecutor made during closing argument, and Toliver identifies other aspects of the prosecutor’s conduct he thinks deserve review. We evaluate alleged impropriety during closing argument in the context of the record as a whole, United States v. DeSilva, 505 F.3d 711, 719 (7th Cir.2007), and in this case, because no objections were lodged at trial, Toliver would face the additional hurdle of plain-error review, see United States v. Anderson, 450 F.3d 294, 300 (7th Cir.2006).
According to counsel, Toliver might argue from two isolated statements — which together comprise 12 lines in 26 pages of transcribed argument — that the prosecutor misstated the evidence and also injected his personal belief that Bickham and Shabazz were credible. But we would not read into the prosecutor’s words any improper meaning or purpose. Regarding the first statement, which counsel characterize as the prosecutor misrepresenting that Bickham and Shabazz testified directly that Toliver’s involvement ended in February 2006, we disagree with counsel’s interpretation. The prosecutor did not attribute the ending date to either Bickham or Shabazz but rather was summarizing the evidence as a whole: Bickham and Shabazz testified about Toliver’s involvement, which likely ended in February 2006 when the phone calls to and from Bickham stopped. In the second statement, which was delivered in rebuttal, the prosecutor reasoned that if Bickham and Shabazz had lied about Toliver’s involvement, they would have concocted a more damning story. This statement was not only invited by defense counsel’s implication that Toliver was falsely accused, see United States v. Myers, 569 F.3d 794, 799 (7th Cir.2009), but was also an appropriate response to that argument, see United States v. Morris, 498 F.3d 634, 643 (7th Cir.2007); United States v. Clarke, 227 F.3d 874, 884-85 (7th Cir.2000); see also United States v. Vazquez-Rivera, 407 F.3d 476, 483-84 (1st Cir.2005); United States v. Perez-Ruiz, 353 F.3d 1, 9-10 (1st Cir.2003). We agree with counsel, then, that an appellate claim premised on these two statements would be frivolous.
In his Rule 51(b) response, Toliver points to a third passage, which he interprets as implying to jurors that they could safely credit the government’s witnesses because the trial judge ensures that they tell the truth. In fact what the prosecutor conveyed is that the judge has final say in whether to lower a witness’s sentence when the government moves for a reduction in exchange for testimony. A prosecutor may discuss a witness’s plea agreement and highlight the negative consequences for being untruthful, United States v. Alviar, 573 F.3d 526, 542 (7th Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 1312, — L.Ed.2d- (2010), and may also clarify the process by which a criminally involved witness may receive a lower sentence, United States v. Johnson, 437 F.3d 665, 672-74 (7th Cir.2006); United States v. Anderson, 303 F.3d 847, 855-56 (7th Cir.2002). Toliver’s proposed argument would be frivolous because, on this record, we would conclude that the prosecutor’s remarks fairly answered To-liver’s theme that his accusers were lying to get a lower sentence.
Finally, Toliver argues that the prosecutor violated the “advocate-witness rule,” which bars an attorney from acting as both witness and advocate in the same proceeding. Toliver singles out two parts of trial. First, it was evident from the prosecutor’s questioning of Bickham that the two men had met when Bickham first started cooperating. Second, during clos*660ing argument the prosecutor repeatedly used the word “we” in acknowledging that the evidence against Toliver was largely testimonial, e.g., the prosecutor explained that “we” did not have recordings of telephone calls and had not caught anyone “in the act” except Bickham. Toliver proposes to argue that these remarks were tantamount to testifying as a witness, but that contention would be frivolous. The questioning of Bickham was entirely proper, see United States v. Watson, 87 F.3d 927, 931-32 (7th Cir.1996); United States v. Marshall, 75 F.3d 1097, 1106 (7th Cir.1996), and although such references to “we” might run the danger of being misinterpreted as vouching for the integrity and good faith of the investigators’ efforts, see United States v. Hermanek, 289 F.3d 1076, 1097-99 (9th Cir.2002), it would be a stretch to draw that inference here, especially given the limitations of review for plain error.
The last two points counsel identify require little discussion. After reviewing the evidentiary objections Toliver made at trial (three for speculation, one hearsay, and one for foundation), we are convinced that it would be frivolous to challenge the rulings. Even if the district court did err in overruling the objections, the testimony and exhibit were so tangential to Toliver’s guilt or innocence that we would find the error harmless. Finally, as counsel notes, Toliver was sentenced to the statutory minimum, so an appeal of his prison sentence would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479242/ | ORDER
Navor Fragozo-Soto pleaded guilty to being in the United States without permission after being deported. See 8 U.S.C. § 1326(a). He appeals, but his appointed lawyer believes the case is frivolous and seeks leave to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Fragozo-Soto did not respond to counsel’s motion. See Cir. R. 51(b). The lawyer’s supporting brief is facially adequate, so we confine our review to the potential issues she has identified. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Fragozo-Soto first entered the United States from Mexico in 1982. He was deported twice in 1996 and again in 2003, and by the time of the third removal he had incurred three felony convictions in Arizona. Fragozo-Soto was arrested in Wisconsin in March 2009 after committing a traffic violation, which brought him to the attention of immigration authorities.
At sentencing Fragozo-Soto objected to the probation officer’s conclusion that he commenced the § 1326(a) violation in 2003. The probation officer detailed employment and arrest records evidencing a continuous presence in the United States at least since October 2003. But at sentencing defense counsel told the district court that her client had returned to Mexico in late 2005 and did not cross the border again until January 2006. Fragozo-Soto did not submit any evidence to support the lawyer’s representation, and yet the government responded that it could not disprove counsel’s statement. So the district court concluded that Fragozo-Soto had last entered the United States illegally — and thus commenced this § 1326(a) violation — in January 2006, not October 2003.
In addition Fragozo-Soto personally disputed two criminal-history points that were assessed by the probation officer under U.S.S.G. § 4Al.l(b) for a 1993 felony conviction in Arizona for attempting to sell cocaine. Fragozo-Soto initially had received three years’ probation, but in March 1996 his probation was revoked. After that he served three months in prison before his probation was reinstated. Fragozo-Soto wanted his lawyer to argue that the conviction was too old to count for criminal-history points because it was incurred more than 10 years before January 2006, which, according to the district court, was when he commenced this offense. See *662U.S.S.G. § 4A1.2(e)(2). Defense counsel informed the court, however, that she disagreed with the position Fragozo-Soto wanted her to advocate, and the district court overruled the objection. The court reasoned that the conviction was countable because the term of probation ultimately ran through 1999, less than 10 years before January 2006.
In light of that ruling, the district court assigned Fragozo-Soto eight criminal-history points, which placed him in a criminal-history category of IV. The court then adopted the probation officer’s recommended offense level of 13, which yielded a guidelines imprisonment range of 24 to 30 months. The district court imposed a term of 24 months.
On appeal Fragozo-Soto does not wish to challenge his guilty plea, so counsel properly refrains from examining the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). According to counsel there are two potential issues: whether it was error to give Fragozo-Soto two criminal-history points for his 1993 conviction and whether 24 months is a reasonable sentence. Both contentions, says counsel, would be frivolous. As for the two criminal-history points, counsel agrees with the district court that the extension of Fragozo-Soto’s probation into 1999 means that the sentence falls within 10 years of when he commenced the § 1326(a) violation in January 2006.
But counsel is mistaken. When, as here, an adult sentence of imprisonment of at least 60 days but not more than 13 months is imposed on revocation of a term of probation, application of the 10-year reach of § 4Al.l(b) is based on the date the sentence was originally imposed, not the date the sentence expires. U.S.S.G. § 4A1.1 cmt. n. 2; id. §§ 4A1.2(e), (k)(2)(B)(iii); United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir.2006). Because this sentence was originally imposed in 1993, more than 10 years before January 2006, counsel could argue that Fragozo-Soto should not have received criminal-history points. And if he had not received those two points, his criminal-history category would have been III, and his imprisonment range would have dropped to 18 to 24 months.
Nonetheless we agree with counsel’s conclusion that an appeal based on this issue would be frivolous. We may put aside that defense counsel (the same lawyer represents Fragozo-Soto in this court) overlooked the argument at sentencing and thus forfeited the claim. See United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir.2005); United States v. Richardson, 238 F.3d 837, 841 (7th Cir.2001). The greater hurdle for Fragozo-Soto is that he could not benefit from resentenc-ing because his offense level was miscalculated in his favor and would be revised upward on remand. A violation of § 1326(a) produces a base offense level of 8, see U.S.S.G. § 2L1.2(a), which is increased by the greatest of several specific offense characteristics, see id. § 2L1.2(b)(l). Even if Fragozo-Soto’s 1993 conviction should not have counted in his criminal-history calculation, that offense still should have increased his offense level by 12 because it is a felony drug-trafficking crime for which he received a sentence of 13 months or less. See id. § 2L1.2(b)(l)(B); United States v. Olmos-Esparza, 484 F.3d 1111, 1114 (9th Cir.2007); United States v. Torres-Duenas, 461 F.3d 1178, 1181-82 (10th Cir.2006); United States v. Camacho-Ibarquen, 410 F.3d 1307, 1311-15 (11th Cir.2005); United States v. Gonzalez, 112 F.3d 1325, 1330-31 (7th Cir.1997). Yet instead of a 12-level increase, the probation officer recommended, and the district court imposed, an 8-level increase under § 2L1.2(b)(l)(C) for *663a different, non-drug conviction that qualified as an aggravated felony. After factoring in a 3-level reduction for acceptance of responsibility, Fragozo-Soto’s total offense level should have been 17, not 13. So even with a corrected criminal-history category of III, his imprisonment range of 30 to 37 months would exceed the range of 24 to 30 months calculated by the district court. And since the court emphasized Fragozo-Soto’s “blatant disregard” for the immigration laws and gave no hint that it was inclined to sentence him below the guidelines range, we would conclude that the error in calculating the criminal-history category is harmless. See United States v. Abbas, 560 F.3d 660, 667 (7th Cir.2009); United States v. Anderson, 517 F.3d 953, 965-66 (7th Cir.2008).
Moreover, we would be skeptical about the district court’s conclusion that the § 1326(a) offence commenced in January 2006 rather than October 2003. The drug conviction was incurred in November 1993, and thus it would count under the 10-year rule if we accept the probation officer’s view that the § 1326(a) violation commenced in October 2003. Fragozo-Soto’s contention that he left the United States in 2005 and returned in January 2006 rests entirely on counsel’s statement at sentencing and finds no evidentiary support in the record. A defense attorney’s representation is not evidence, see United States v. Diaz, 533 F.3d 574, 578 (7th Cir.2008); United States v. Swanson, 483 F.3d 509, 513 (7th Cir.2007), so, in fact, the probation officer’s evidence and conclusion was unre-butted, see United States v. Mays, 593 F.3d 603, 608 (7th Cir.2010) (explaining that more than “a bare assertion of inaccuracy” is necessary for defendant to meet his burden of establishing that presentence report is inaccurate or unreliable); United States v. Heckel, 570 F.3d 791, 795-96 (7th Cir.2009) (explaining that objection to pre-sentence report must create “real doubt” about report’s reliability before government will “have the burden of independently demonstrating the accuracy of the information”).
And even if Fragozo-Soto had produced sufficient evidence that he left the United States in late 2005 and returned in January 2006, it is an open question whether the time he spent in this country between his 2003 reentry and his return to Mexico in 2005 might nevertheless be relevant conduct to this offense. See United States v. Lopez-Flores, 275 F.3d 661, 663 (7th Cir.2001). Fragozo-Soto received a traffic ticket in Arizona in November 2005 and was fined in mid-December, so at most he spent a few weeks outside the United States before returning in January 2006. And that brief period was his only absence from the United States over the past 6’A years. “It would be passing odd” if Fragozo-Soto could simply take a brief holiday in Mexico with no intention of staying there and thus avoid any repercussions arising from the prior time he spent illegally in the United States. See id.
Finally, we agree with counsel that challenging the reasonableness of Fragozo-Soto’s prison sentence would be frivolous. As we explained above, we would likely find that his 24-month sentence was below his properly calculated guidelines range. We do not think he could overcome the presumption of reasonableness that attaches to a below-guidelines sentence. See United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009).
We GRANT counsel’s motion to withdraw and DISMISS Fragozo-Soto’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479244/ | CERTIFICATION OF QUESTIONS OF STATE LAW
MONROE G. McKAY, Circuit Judge.
The United States Court of Appeals for the Tenth Circuit submits this request to the Kansas Supreme Court to exercise its discretion to accept the following certified questions of Kansas law pursuant to 10th Cir. R. 27.1 and Kan. Stat. Ann. § 60-3201. The answer to these questions may be determinative of this case now pending in this court, and it appears that there is no controlling precedent in the Kansas Supreme Court.
The Questions
1. In a standard pollution exclusion clause in a liability insurance contract, is the definition of a “pollutant” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste” ambiguous, either because the definition is so broad as to cover virtually any substance, or because it is susceptible of more than one construction and a reasonably prudent insured would not understand the term to cover commonly used products (such as when a farmer uses a common fertilizer on its fields and a nearby party is injured by exposure to the fertilizer)?
2. If the definition of a ‘pollutant’ in the exclusion clause is ambiguous, and must, therefore, be construed in a light most favorable to the insured, is a mist of anhydrous ammonia fertilizer released from a plow during farm fertilizing operations nonetheless a ‘pollutant’ under the exclusion clause, such that the liability claim for injuries caused by exposure to that mist is not covered?
The Kansas Supreme Court may reformulate the questions.
I. Procedural and Factual Background.
A. Denial of Coverage. The facts are uncontroverted. Plaintiff Union Insurance Company (Union) provided a Farm owners-Ranch owners insurance policy to Irsik G&B Farms, Inc. (Irsik Farms) from September 2005 to September 2006. Defendant Karla Mendoza filed a personal injury *798lawsuit against Irsik Farms and its employee, Bradley Irsik, alleging that they caused her bodily injury by exposing her to a mist of anhydrous ammonia fertilizer on July 14, 2006. Anhydrous ammonia fertilizer places nitrogen into the soil, and is commonly used as a fertilizer. Relying on a pollution exclusion provision in its insurance policy, Union denied coverage for the Mendoza lawsuit. Mendoza obtained a consent judgment from the Irsik defendants for one million dollars, in exchange for a covenant not to execute upon the judgment against them. Union filed an action in the United States District Court for the District of Kansas seeking a declaratory judgment that the liability policy did not cover the Mendoza judgment. The Irsik defendants were voluntarily dismissed from the declaratory action.
B. Underlying Claim. On the day Mendoza was injured, an Irsik Farms employee was applying anhydrous ammonia fertilizer on an Irsik Farms’ field next to where Mendoza was working on road construction. The employee asked Bradley Irsik for help because the fertilizer was not coming out evenly. The fertilizer was stored in a tank on the back of a tractor; it was applied to the soil by flowing through piping from the tank to several holes on shanks on the tractor’s plow and then into the soil. Irsik raised the plow out of the soil to see if the lines were plugged, and looked at the plow to see if vapors were coming out of the tubes. He then held the hydraulic switch down for about three seconds, releasing the anhydrous ammonia into the air. At the time, Mendoza was loading a road sign on the nearby road when a mist of the anhydrous ammonia fertilizer engulfed her. She testified that she could not breathe; her eyes, lungs and throat were burning; and she required medical attention.
C. Policy Language. Union’s policy of insurance to Irsik Farms includes coverage for personal injury liability. The personal liability coverage contains an exclusion, however, for personal injury caused by a ‘pollutant.’ In an endorsement entitled “Farmer’s Comprehensive Personal Liability Insurance,” the liability coverage states:
If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage caused by an “occurrence” to which this coverage applies, we will:
a. pay up to our limit of liability for the damages for which the “Insured” is legally liable; and
b. provide a defense at our expense by counsel of our choice. We may make any investigation and settle any claim or suit that we decide is appropriate. Our obligation to defend any claim or suit ends when the amount we pay for damages resulting from the “occurrence” equals our limit of liability.
(Aplt. App., Vol., I, at 68; R. Doc. 36, Ex. H, at 1, 08-CV-1096-MLB (D. Kan.) (hereafter “D. Ct. R.”).
The “Exclusions” clause in the Personal Liability endorsement states in relevant part:
... Personal Liability and ... Medical Payments to Others do not apply to bodily injury or property damage:
j. (1) arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:
(a) at or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to you, or any “Insured”. :!{ í¡í ‡
(d) at or from any premises, site or location on which you, or any “Insured” or any contractors or subcontractors *799working directly or indirectly on your’s or any “Insured’s” behalf are performing operations:
(i) If the pollutants are brought on or to the premises, site or location in connection with such operations by you, or any “Insured”....
* * * *
Pollutants mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.
CThis exclusion does not apply to property damage caused by accidental drift of vapors, fumes, or toxic chemicals as a result of spraying operations.)
(Aplt. App., Vol. I, at 69-71; D. Ct. R., Doc. 36, at 2-4).
D. District Court Ruling. The district court granted Union’s motion for summary judgment, ruling Irsik’s accidental disbursing of anhydrous ammonia was excluded from coverage by the pollution exclusion. It ruled that the language of the pollution exclusion clause and its definition of a ‘pollutant’ are not ambiguous, and that anhydrous ammonia, while useful as a fertilizer in farming operation, is a pollutant. Aplt. App., Vol. II, at 345, 347; D. Ct. R., Doc. 41, at 9, 11. It concluded that “a pollutant under the insurance policy is any irritating or contaminating substance, which may be a solid, liquid, gaseous or thermal substance.” Aplt. App., Vol. II, at 342; D. Ct. R., Doc. 41, at 6. Citing to dictionary definitions, it concluded that an “irritant is a source of irritation, especially physical irritation,” and that “[t]o contaminate means to make impure or unclean by contact or mixture.” Aplt. App., Vol. II, at 342 — 43; D. Ct. R., Doc. 41, at 6-7 (internal quotations omitted). Mendoza has appealed to the Tenth Circuit on the issue of whether Union is liable to her, under its insurance policy covering Irsik Farms, for the consent judgment against the Irsik defendants for her injuries resulting from being sprayed with anhydrous ammonia fertilizer.
II. The Parties’ Positions.
Union argues that anhydrous ammonia is a ‘pollutant’ under the terms of the pollution exclusion clause, and thus is excluded from coverage. Union presented evidence that anhydrous ammonia has known hazardous effects, including respiratory tract, skin and eye burns, and contains one or more components listed as a hazardous air pollutant under the Clean Air Act. It asserts that Mendoza’s injuries of burning in her eyes, throat, lungs and skin further establish that anhydrous ammonia fertilizer is an irritant. Thus, Union argues the anhydrous ammonia is clearly an ‘irritant’ and ‘contaminant’ and, thus, falls within the policy’s definition of a ‘pollutant.’
Mendoza argues that the anhydrous ammonia was being used, as it commonly is, as a fertilizer, and that under these circumstances, it is not a ‘pollutant.’ She contends that the pollution exclusion is ambiguous because any substance could conceivably meet the definition of a ‘pollutant’ under the exclusion. She notes that the definition of a ‘pollutant’ does not define the terms ‘irritant’ or ‘contaminant’ and read literally, are virtually boundless, because there is no substance or chemical in existence that does not irritate or contaminate some person or property. She contends the terms ‘irritant’ and ‘contaminant,’ do not have a plain, ordinary meaning. She further argues that, particularly in a farm owner’s insurance policy, a reasonably prudent insured farmer would not understand the exclusion clause’s definition of a ‘pollutant’ to cover a commonly used farm fertilizer. Thus, she argues that coverage exists because the exclusion *800must be interpreted narrowly and in a light most favorable to the insured.
III. Kansas Rules of Insurance Contract Construction.
Under Kansas law, an insurer bears the burden of proving that coverage is excluded. Shelter Mut. Ins. Co. v. Williams ex rel. Williams, 248 Kan. 17, 804 P.2d 1374, 1383 (1991). When interpreting insurance contracts, and exclusion clauses in particular, Kansas applies the following rules of construction:
Because the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language; otherwise, the policy will be liberally construed in favor of the insured. If an insurance policy’s language is clear and unambiguous, it must be taken in its plain, ordinary, and popular sense. In such case, there is no need for judicial interpretation or the application of rules of liberal construction. The court shall not make another contract for the parties and must enforce the contract as made.
However, where the terms of an insurance policy are ambiguous or uncertain,' conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail.
To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. Whether a written instrument is ambiguous is a question of law to be decided by the courts. Courts should not strain to create an ambiguity where, in common sense, there is not one. The test in determining whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean.
Am. Family Mut. Ins. Co. v. Wilkins, 285 Kan. 1054, 179 P.3d 1104, 1109-10 (2008) (quotation marks and bracketed material omitted).
IV. Conflicting Interpretations of this Pollution Exclusion Clause.
Different courts interpreting this same definition of a ‘pollutant’ in liability exclusion clauses have reached different conclusions as to the term’s meaning and as to whether the term is ambiguous under Kansas law. In 1992, a federal district court decision held that this pollution exclusion clause was so broad and imprecise as to be ambiguous. Westchester Fire Ins. Co. v. City of Pittsburg, 794 F.Supp. 353, 355 (D.Kan.1992). The court ruled that the definition of ‘pollutants’ did little to clarify its meaning because under its terms, “[a]ny substance could conceivably be an ‘irritant or containment’ under the right circumstances.” Id. Construing the provision narrowly, the court ruled that “the term ‘pollutants’ contemplates a substance that is particularly harmful or toxic to persons or the environment generally, and not merely those substances harmful to particular persons or property due to special circumstances.” Id. A year later, another federal court also held the definition of “pollutants” in this exclusion clause was ambiguous because it did not define the terms ‘irritant’ or ‘contaminant.’ Regent Ins. Co. v. Holmes, 835 F.Supp. 579, 581 (D.Kan.1993). It held that these terms “admit of no natural or ordinary interpretation ... because it is unclear whether they refer to substances which *801ordinarily irritate or contaminate, substances which have in fact irritated or contaminated under these particular circumstances, ... or both.” Id. at 582. It agreed with Westchester Fire that any substance could conceivably be an irritant or contaminant, and thus, the exclusion clause failed to use “the type of clear and precise language necessary to exclude coverage otherwise provided for in the policy.” Id.
Another federal district court, however, construing the same definition of pollutants in an exclusion clause held that, under the facts of its case, the exclusion was not ambiguous. City of Salina v. Md. Cas. Co., 856 F.Supp. 1467, 1477 (D.Kan.1994). In contrast to Westchester Fire Ins., which considered whether the insecticide malathion was a pollutant, the City of Salina court ruled that “there can be no reasonable doubt that alkaline wastewater with a pH of 12 constitutes the type of alkali that would be considered an ‘irritant’ or ‘contaminant,’ ” noting that the definition of ‘pollutants’ specifically lists alkalis. Id. In 1995, the Kansas Court of Appeals held that no ambiguity arose from the pollution exclusion clause language itself, and that while gasoline in a storage tank is not a pollutant, once it escapes or leaks from an underground storage tank and contaminates a neighboring property, it becomes a ‘pollutant’ within the policy’s definition. Crescent Oil Co. v. Federated Mut. Ins. Co., 20 Kan.App.2d 428, 888 P.2d 869, 871-73 (1995). In 2001, the Kansas Court of Appeals followed Crescent Oil, holding that the exclusion clause was not ambiguous, and that liquid cement cleaner is a pollutant when it leaks out of a drum, causing damage. Atl. Ave. Assocs. v. Cent. Solutions, Inc., 29 Kan.App.2d 169, 24 P.3d 188, 191-92 (2001).
Nationally, the question of how to interpret this pollution exclusion clause is similarly divided. As the Ninth Circuit recently noted, “[t]he scope of the total pollution exclusion has been- repeatedly litigated, spawning conflicting judicial decisions throughout the country ... [and tjhere exists not just a split of authority, but an absolute fragmentation of authority.” Apana v. TIG Ins. Co., 574 F.3d 679, 682 (9th Cir.2009) (citation, quotation and parenthetical marks omitted). In an exhaustive recitation of the various court interpretations of this pollution exclusion clause, the Ninth Circuit concluded that:
Most State courts fall roughly into one of two broad camps. Some courts apply the exclusion literally because they find the terms to be clear and unambiguous. Other courts have limited the exclusion to situations involving traditional environmental pollution, either because they find the terms of the exclusion to be ambiguous or because they find that the exclusion contradicts policyholders’ reasonable expectations.
Id. at 682 (citations and paragraph formatting omitted).
V. Reasons for Certification.
Kansas law provides that:
[t]he Kansas supreme court may answer questions of law certified to it by ... a court of appeals of the United States ... if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state.
Kan. Stat. Ann. § 60-3201; see also 10th Cir. R. 27.1(A)(1) (stating that this court may “certify a question arising under state law to that state’s highest court according to that state’s rules”). We have held that we will only certify questions of state law that are “both unsettled’ and dispositive.” *802Anaconda Minerals Co. v. Stoller Chem. Co., 990 F.2d 1175, 1177 (10th Cir.1993).
There are several reasons for certification. The question presented is a state-law issue, and it has not been addressed by the Kansas Supreme Court. There are no disputed fact issues, and the questions presented are pure questions of state law. Further, we recognize the importance of allowing the Kansas Supreme Court to decide questions of state law and policy, and thus define state law. More specifically, the question of how to interpret a standard pollution exclusion clause is a matter of exceptional importance for state insurers and insureds.
Although the interpretation of a pollution exclusion clause has been considered by two Kansas Court of Appeals decisions, these decisions differ from earlier interpretations of Kansas law by two federal district courts. We recognize that the answer to a certified question “must be based on Kansas precedent rather than federal rulings interpreting Kansas law.” Am. Family Mut., 179 P.3d at 1109. The Kansas decisions appear, however, to be fact-specific and based on the specific nature of the presented circumstances. See Crescent Oil Co., 888 P.2d at 871-73 (holding that gasoline is not a pollutant when stored in a storage tank, but is a pollutant once it escapes or leaks from the storage tank); Atl. Ave. Assocs., 24 P.3d at 191-92 (holding that liquid cement cleaner is a pollutant when it leaks out of a drum). In light of the nationwide split of authority interpreting this standard pollution exclusion clause, and the conflicting rulings under Kansas law on the central question of whether its definition of a ‘pollutant’ is ambiguous, we conclude that, in the absence of controlling authority from the Kansas Supreme Court, the answer to that question, and to the more specific question of whether Kansas would interpret the term ‘pollutant’ to exclude coverage of anhydrous ammonia used as a fertilizer in a farm owner’s insurance policy, are sufficiently unsettled and dispositive that certification is warranted.
We therefore CERTIFY these questions of Kansas state law to the Kansas Supreme Court. We greatly appreciate the consideration of this request.
The clerk of this court shall submit to the Kansas Supreme Court a certified copy of this order, together with copies of the briefs filed in this court, and copies of the District Court's Memorandum and Order. The clerk of this court shall also transmit a copy of this certification order to counsel for all parties to these proceedings in this court, and to the Clerk of the United States District Court for the District of Kansas, attention case no. 08-CV-1096-MLB. Costs of certification shall be paid as provided by Kan. Stat. Ann. § 60-3205. If the Kansas Supreme Court agrees to accept the certified questions, any further proceedings shall be governed by the appellate rules and statutes governing litigants before that court. Kan. Stat. Ann. § 60-3206.
This appeal is ABATED pending resolution of the questions certified herein. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479245/ | ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, and to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479247/ | ORDER
On October 19, 2009, the court issued a letter allowing Tywanna Gardner (“Gardner”) 21 days to notify this court if she had dismissed her petition for review before the Board. Gardner has failed to respond within the time allowed.
Accordingly,
IT IS ORDERED THAT:
(1) This appeal is dismissed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479249/ | ON MOTION
ORDER
Upon consideration of the parties’ joint motion to voluntarily dismiss this appeal from Miller v. Department of the Interior, FMCS No. 08-51296-3,
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/8479252/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479254/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
*956ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479255/ | *957Judgment
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/8479258/ | 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/8479260/ | 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/8479262/ | 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/8479283/ | ORDER
Upon review of the Consent Motion to Terminate Appeal filed by Plaintiffs-Appellants Solvay Solexis S.p.A. and Solvay Solexis, Inc., it is hereby:
ORDERED that the Consent Motion is granted; and it is further
ORDERED that the above-captioned action is dismissed; and it is further
ORDERED that each party shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479285/ | *4ORDER
The petitioner having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479287/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479289/ | 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/8479291/ | ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the brief required by Federal Circuit Rule 31(a) within the time permitted, 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/8479293/ | ON MOTION
MOORE, Circuit Judge.
ORDER
The Boeing Company (Suecessor-in-in-terest of Rockwell International Corporation) moves to dismiss the above-captioned appeals for lack of jurisdiction and moves for costs. The Secretary of Energy opposes. Boeing replies.
Rockwell International Corporation entered into a contract with the Department of Energy (DOE) for the management, operation, and maintenance of the Rocky Flats Nuclear Weapons Plant. The contract provides that DOE will reimburse Rockwell for costs incurred in defending certain lawsuits. However, the contract further provides in clause 54(e)(32) that “[cjosts incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including the filing of any false certification) brought by the Government *11where the Contractor ... is found liable ... to a charge of fraud or similar proceeding” are not allowable.
In July 1989, James Stone brought an action against Rockwell under the False Claims Act (FCA), alleging that Rockwell had misrepresented or failed to disclose certain environmental matters at Rocky Flats. The United States initially declined to intervene in the litigation. However, on November 14, 1995, the United States moved for leave to intervene. The United States’ motion was granted, and the United States and Mr. Stone filed an amended complaint alleging violations of the FCA, common law fraud, breach of contract, payment by mistake, and unjust enrichment. Rockwell prevailed on all counts except for the FCA claims. A jury found Rockwell liable on three of the ten claims asserting FCA violations and found Rockwell not liable on all remaining claims.
DOE reimbursed Rockwell for all defense costs that Rockwell incurred up to the date that the United States filed its motion for leave to intervene, and deemed unallowable all defense costs incurred after that date. In May 2005, Boeing, Rockwell’s successor, requested a contracting officer’s decision on its claim in the amount of $11,344,081.14 for unreimbursed costs that Rockwell incurred in defending itself in the Stone litigation. The contracting officer denied Boeing’s claim in its entirety and determined that the United States has a claim against Boeing for $4,060,669.03 in previously reimbursed defense costs plus interest of $2,522,746.50. Boeing appealed.
On cross motions for summary relief concerning the meaning of contract clause 54(e)(32), the Civilian Board of Contract Appeals (CBCA) ruled that Boeing is entitled to recover the costs of defending itself in the Stone litigation on those counts and claims where it prevailed, but cannot recover the costs of defending itself against the FCA claims on which it was found liable. The CBCA requested and obtained briefing on whether Boeing is entitled to “common costs” — i.e., those costs that may be attributable to both claims where Boeing prevailed and claims where it was found liable. The CBCA’s decision did not address these so-called “common costs.” DOE appeals the CBCA’s ruling, and Boeing cross-appeals.
Boeing argues that its claim for unreim-bursed costs and DOE’s claim for reimbursement of costs and interest constitute a single claim and that because the contracting officer decided both entitlement and quantum but the CBCA decided only entitlement, the CBCA’s decision is not final and the appeals are premature. Boeing further argues that, even if its claim and DOE’s claim are considered separate claims, the CBCA has not fully decided all issues relating to entitlement. Specifically, Boeing maintains that the CBCA failed to decide entitlement to common costs. Boeing also points to a footnote in the CBCA decision that states: “The issue in this case is the meaning of clause (e)(32). Other clauses in the contract may be applicable to the allowability of some or all of the claimed costs.”
DOE responds that there were three separate claims involved in the contracting officer’s decision: Boeing’s claim, DOE’s claim for reimbursement, and DOE’s claim for interest. DOE further responds that the CBCA’s decision is final because the contracting officer decided only entitlement with respect to Boeing’s claim and the CBCA fully decided all issues relating to entitlement on that claim. DOE also contends that because the CBCA declined to adopt language proposed by Boeing that would have granted entitlement to common costs, we should read the CBCA’s *12decision as rejecting Boeing’s entitlement to such costs.
We have jurisdiction to review only final orders of agency boards of contract appeals. 28 U.S.C. § 1295(a)(10). Whether a board of contract appeals decision is appealable depends on “the scope and extent of the contracting officer’s decision.” Teller Envtl. Sys. Inc. v. United States, 802 F.2d 1385,1389 (Fed.Cir.1986).
In this case, the parties dispute whether the case involves a single claim or three separate claims. We need not decide whether the case involves a single claim or multiple claims, however, because even if there are multiple claims, the CBCA’s decision on Boeing’s claim did not fully decide entitlement. The contracting officer ruled that Boeing was not entitled to prevail on any part of its claim for $11,-344.081.14 in unreimbursed costs that Rockwell incurred in defending itself in the Stone litigation. The CBCA disagreed, deciding that contract clause 54(e)(32) allows Boeing to recover costs of defending against claims on which it prevailed but not on which it was found liable. Importantly, the CBCA did not decide whether contract clause 54(e)(32) allows Boeing to recover common costs — i.e., costs incurred defending against both claims where it prevailed and claims where it was found liable. Under these circumstances, we determine that the CBCA has not fully decided Boeing’s entitlement to its claimed costs and thus that the CBCA’s decision is not final.
With respect to Boeing’s request for costs incurred for this appeal, although we determine that the CBCA has not issued a final decision, DOE had an arguable basis for suggesting otherwise. Thus, an award of costs is not warranted.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) The motion for costs is denied. Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479295/ | OPINION
SMITH, Circuit Judge.
Louis Mister appeals his convictions for aiding and abetting violations of 18 U.S.C. *173§ 1951(a) (extortion under color of official right) and 18 U.S.C. § 666(a)(1)(B) (solicitation of a corrupt payment). We will affirm.
Mister was involved in the local politics of Pleasantville, New Jersey. He was president of a political organization called the Real Democratic Club (“RDC”), a 25-30 member group dedicated to electing public officials in and around Pleasantville. RDC members devised a plan to win a majority of the seats on the Pleasantville Board of Education (“PBOE”), and then use those positions to solicit bribes from local businesses in exchange for PBOE contracts. Mister was not on the PBOE, but was friendly with several RDC members who were, including Jayson Adams, president of the PBOE; James Pressly, vice president of the PBOE; James McCormick; Maurice Callaway; and Rafael Velez. In April 2006, John D’Angelo, a local insurance broker, informed the FBI that PBOE members had approached him and asked him to pay bribes. The FBI began an investigation, using D’Angelo and Bruce Begg, the CEO of a local roofing company, as informants.
Over the next several months, RDC members, including members on the PBOE, undertook a plan to award PBOE insurance and roofing contracts to D’Angelo and Begg in exchange for bribes. On June 5, 2006, Mister and Callaway met Begg in Begg’s vehicle, which was parked in the empty parking lot of a restaurant. The purpose of the meeting was for Begg to deliver $3,000 in cash to Callaway in exchange for roofing business. Begg and Mister sat in the front of the vehicle, while Callaway sat in the back. Callaway was a candidate in an upcoming election for the Pleasantville City Council. He told Begg that he brought Mister with him because Mister was “a good friend” and because “me being the candidate[,] I always bring somebody with me[.]” Begg told Callaway that he only had $1,500 with him, but promised to deliver the rest of the money later that day. Mister counted the money from Begg while Begg and Callaway conversed. Begg mentioned that he’d spoken to PBOE member James Pressly, and would be meeting with him. Callaway told Begg that he too had spoken to Pressly and that “everything [was] done and going-through the way it’s supposed to be going.”
Begg also mentioned that he had received a call from Arnold Rice, who was in charge of “maintenance” at the schools, and the “second man in control” behind a man named Speedy Marsh. Begg said that he had arranged for a meeting with Rice soon. Callaway told Begg that Rice was involved “in the building thing” and was “the right guy” for Begg to talk to about it. Then the following exchange occurred:
Begg: So Speedy’s like what? Head of buildings and grounds or something? Callaway: Yeah, you got it. Head of facilities.
Begg: Okay. Alright. That’s good. I’ll ah, ... I’ll get together with him. [At that point, Begg reached for the $1,500] Callaway: Yeah, you can give it, give it to him [nodding towards Mister].... And uhm, if there’s any problems, me and him will take care of it. Me and the guy you gonna meet with.
Begg: Okay.
Callaway: Try to get you on the right step, and then you know, you looking at the big stuff, here.
Begg: Right. Right.
Callaway: You know, the schools — the complete schools.
Begg: Right. Right.
Callaway: That’s the way we’ll go.
Begg: Okay.
*174Later that day, Mister met Begg at a rest stop elsewhere in New Jersey and accepted the other $1,500 cash payment on behalf of Callaway.
On August 6, 2006, James McCormick was appointed to the PBOE. This gave the RDC a majority of the seats on the Board. On August 23, 2006, Adams, Mister, and D’Angelo met. Adams introduced Mister to D’Angelo as “the cat that’s makin’ this meeting happen.” Referring to Mister, D’Angelo asked Adams, “[C]an I talk in front of him?” Adams responded in the affirmative. Eventually, the conversation turned to Mister and Adams’s aspirations to capture the Pleasantville City Council in the same way they had captured the PBOE. The following exchange occurred between Adams and Mister:
Mister [to D’Angelo]: With this, you need to just kick butt over there in the political arena and grab some seats. Adams: Just need to maintain control of that school board that’s all.
Mister: Need to take hold of Pleasant-ville. Then you take control of Pleas-antville, uh, council and uh, then we go after the contracts.
D’Angelo then suggested that Adams and Mister meet with Begg to talk about politics and fund-raising. Adams and Mister agreed. Mister responded:
We’ll do that we um, because um, once we, once we get um, Pleasantville, we get two more seats in Pleasantville on that council ’cause we got Pete and we got Line. We get four, we lock that council up then we lock them contracts up too.... That’s the goal.
On September 12, 2006, the PBOE voted to award D’Angelo’s company the contract for insurance brokerage services for the school district.
FBI agents arrested Mister, Adams, Callaway, and eight others on September 6, 2007. When he was first interviewed, Mister denied meeting with Begg and Cal-laway in the parking lot on June 5, 2006. After he was told that videotape existed of the meeting, however, Mister changed his story. He admitted that he was at the meeting, but said that Callaway had misled him about the nature of the payment. According to Mister, Callaway had told him that the payment was a contribution to Callaway’s campaign for city council. Mister had agreed to accompany Callaway to the meeting because Callaway had told him that, as a candidate, he could not “touch the money.”
A four-count superseding indictment was returned against Mister on March 12, 2008. Count I charged that Mister conspired with Callaway to obstruct interstate commerce by extortion under color of official right, in violation of 18 U.S.C. § 1951(a). Count II charged that Mister aided and abetted Callaway’s attempts to obstruct interstate commerce by extortion under color of official right, in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2. Count III charged Mister with aiding and abetting Callaway’s solicitation of a corrupt payment, in violation of 18 U.S.C. § 666(a)(1)(B) and 18 U.S.C. § 2. Count IV charged that Mister aided and abetted an attempted extortion under color of official right, by obtaining money on behalf of James McCormick, in exchange for McCormick’s agreement to steer the PBOE insurance brokerage contract to D’Angelo. See 18 U.S.C. § 1951(a); 18 U.S.C. § 2.
A jury convicted Mister on Counts II and III but acquitted him on the others. Mister moved for a new trial pursuant to Rule 33, or a judgment of acquittal under Rule 29. The District Court denied both motions, and sentenced Mister to one year and one day of imprisonment and three years of supervised release. Mister filed a *175timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.
Mister raises three issues in this appeal. First, he argues that there was insufficient evidence to sustain his convictions on Counts II and III. Second, he claims that the government constructively amended his indictment at trial, in violation of the Fifth Amendment. Third, he argues that prosecutors violated his due process rights by improperly arguing “guilt by association” during closing arguments. We reject each of these claims.
I.
“Our review of the sufficiency of the evidence is governed by strict principles of deference to a jury’s findings.” United States v. Anderskow, 88 F.3d 245, 251 (3d Cir.1996) (internal quotations omitted). If the jury’s verdict was supported by substantial evidence, we must uphold it. Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The substantial evidence inquiry requires us to decide whether “any rational trier of fact” could have found Mister guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). In deciding this question, we view the evidence in the light most favorable to the government, Burks, 437 U.S. at 17, 98 S.Ct. 2141, and draw all reasonable inferences in the government’s favor. Anderskow, 88 F.3d at 251.
Mister argues that there was insufficient evidence to conclude that he knowingly and willfully accepted money from Begg for the purpose of aiding and abetting extortion, or aiding and abetting Calla-way’s solicitation of a corrupt payment. He points to Callaway’s testimony that Callaway never told him that the money was for a bribe. In fact, according to Mister, Callaway affirmatively misled him by telling him that the money was to pay campaign workers for a primary election the following day. Mister points out that there was no mention of contracts or roofing during the conversation between Begg and Callaway, and claims in any event that he was distracted during their conversation because he was busy counting the money. He also points to trial evidence indicating that he functions at a low-to-average intelligence level as further proof that he did not and could not have understood that the payment he accepted was in exchange for Callaway’s promise to steer PBOE roofing contracts to Begg.
We conclude that there was sufficient evidence to support the jury’s verdict. Mister was present during the entire conversation between Begg and Callaway. During that conversation, Begg told Calla-way that he had spoken to James Pressly, a school board member. Callaway assured Begg that he too had spoken with Pressly and that “everything [was] done and going-through the way it’s supposed to be going.” Callaway also told Begg that Arnold Rice, a supervisor within the school’s maintenance department, was involved in “the building thing” and that Rice was “the right guy” for Begg to talk to about it. Presumably, these maintenance employees would have been relevant to the procurement of the school’s roofing business. After Begg handed Callaway the $1,500, Cal-laway told him he was on “the right step” and that Begg was “looking at the big stuff here ... the schools — the complete schools.” Also, and significantly, Mister initially denied meeting with Callaway and Begg in the parking lot, and only recanted when confronted with videotape evidence to the contrary. The jury could have treated this false exculpatory statement as evidence of Mister’s consciousness of guilt. See United States v. Kemp, 500 F.3d 257, 296 (3d Cir.2007) (“It is well-settled that *176untrue exculpatory statements may be considered as circumstantial evidence of the defendant’s consciousness of guilt,”' quoting United States v. Rajewski, 526 F.2d 149,158 (7th Cir.1975)). Under these facts, we cannot say that no rational jury could have convicted Mister. A rational jury could have concluded that he knew that the payments were a bribe from Begg to Callaway in exchange for business from the PBOE.
II.
The Fifth Amendment provides in relevant part that “[n]o person shall be held to answer for a capital! ] or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]” U.S. Const, amend. V. Accordingly, a defendant may be tried and convicted only on those charges contained in the indictment returned by a grand jury. Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). “An indictment is constructively amended when, in the absence of a formal amendment, the evidence and jury instructions at trial modify essential terms of the charged offense in such a way that there is a substantial likelihood that the jury may have convicted the defendant for an offense differing from the offense the indictment returned by the grand jury actually charged.” United States v. Daraio, 445 F.3d 253, 259-60 (3d Cir.2006). Mister argues that his indictment was constructively amended, in that the indictment charged Mister with aiding and abetting a scheme to exchange money for influence on the PBOE, while prosecutors attempted to prove at trial that Mister aided in the exchange of money for future favors from Callaway on the Pleasantville City Council. Because Mister did not raise this claim at trial, we review for plain error. United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
The • indictment was narrowly drawn, and specifically accused Mister of aiding a scheme to exchange money for favors from the PBOE.1 In light of this specificity, we agree that it would have been improper for the government to encourage the jury to convict Mister for participating in a scheme to trade money for official action from Callaway as a member of the city council. We do not think, however, that the government did so. During closing, the government twice cited Mister’s statement to Adams that the RDC needed to “take a hold of Pleasantville. Then [we] take control of Pleasantville ... council and ... then we go after the contracts.” We conclude that the government’s references to this statement did not constructively amend the indictment, for reasons ably explained by the District Court:
Defendant’s first reference to “Pleasant-ville” ... appears to be a reference to the Pleasantville PBOE itself, the school board. The second reference, “Then you take control of Pleasantville ... council,” refers to the council of Pleasantville. The word “then” clearly indicates both to the Court and to a jury that Defendant was talking about corrupting two distinct entities: first corrupt the school board, then corrupt the council. Defendant also went on to talk about efforts to unseat the Mayor. Thus, this evidence shows that in Defendant’s mind, the effort to corrupt the PBOE was part of a larger scheme to corrupt the whole *177town, which he described after saying that the parties needed to take hold of the Pleasantville PBOE. It was not error for the Government to refer to this evidence. Although not the subject of this post-trial motion practice, Count Four charged Defendant with attempting to “take hold of’ the PBOE by helping to find a new member of the school board, James McCormick, who would vote for corrupt contracts. Thus, this evidence of Defendant speaking about Pleasantville and PBOE comtption was admissible to show that Defendant was aware of and intentionally participated in the scheme to take hold of the Pleas-antville PBOE by appointing a new corrupt member.
(A. 26-27, emphasis added, some alterations in original.) We think it highly unlikely that Mister’s statement about the need to “take hold of Pleasantville,” which was properly admitted for the reasons identified by the District Court, caused the jury to convict Mister for any crimes other than those charged. The District Court clearly instructed the jury that the corruption at issue in Counts Two and Three was corruption of the PBOE.2 In general, we presume that the jury follows its instructions, United States v. Syme, 276 F.3d 131, 155 (3d Cir.2002), and we see no reason to abandon that presumption here. See also Daraio, 445 F.3d at 260 (concluding that although the government presented extensive evidence of defendant’s uncharged wrongdoing, “the district court’s instructions ensured that the jury would convict [the defendant], if at all, for a crime based on conduct charged in the indictment”).
In sum, we find no “substantial likelihood” that the jury convicted Mister on a corruption-of-city-eouncil theory, as opposed to a corruption-of-PBOE theory. See Daraio, 445 F.3d at 260. Thus, we find no error, let alone error that was “plain.” Olano, 507 U.S. at 732, 113 S.Ct. 1770. We will deny Mister’s request for a new trial on this basis.
III.
Finally, Mister claims that he was denied due process because the government encouraged the jury to convict him based on his association with criminals. He argues that the government’s closing argument improperly relied upon his friendship with corrupt Pleasantville politicians such as Adams and Callaway, and overemphasized the fact that both of those men had admitted to accepting bribes. In the same vein, Mister also objects to the prosecutor’s statement that “swans don’t swim in cesspools” in reference to Mister and the corruption that occurred in Pleas-antville in 2006.
Because Mister did not raise his guilt-by-association claim in the District Court, we again review for plain error. Olano, 507 U.S. at 731-32, 113 S.Ct. 1770 (1993). “We may reverse only if we find error in *178the prosecutor’s comments so serious as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” United States v. Walker, 155 F.3d 180, 188 (3d Cir.1998). After carefully reviewing the government’s arguments, we conclude that this high standard is not met here. We find no insinuations of guilt by association that would have undermined the fundamental fairness of Mister’s trial. Even if the prosecutor’s references to Mister’s association with Callaway, Adams, and McCormick created some risk of prejudice, the District Court unambiguously instructed the jury as follows:
[Y]ou must not consider the fact of a witnesses] guilty plea as any evidence of Louis Mister’s guilt. Their decisions to plead guilty were personal decisions about their own guilt. Such evidence is offered only to allow you to assess the credibility of the witness; to eliminate any concern that the Defendant has been singled out for prosecution; and to explain how the witness came to possess detailed firsthand knowledge of the events about which he testified. You may consider a witness’ [s] guilty plea only for these purposes.
(A. 941-42.) “These instructions sufficed to cure any possibility of prejudice.” Zafiro v. United States, 506 U.S. 534, 541, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). See also id. at 540-41, 113 S.Ct. 933 (noting the presumption that jurors follow their instructions). Nor do we find the statement “swans don’t swim in cesspools” to be so fundamentally unfair and prejudicial as to contribute to a miscarriage of justice. Cf. United States v. Adams, 799 F.2d 665, 670 (11th Cir.1986) (rejecting claim that defendant was denied a fair trial by the prosecutor’s statement that “you don’t find a swan in the sewer,” in reference to the credibility of government witnesses).
IV.
We will affirm the judgment of conviction.
. The government argues that the inconsistency between the indictment and the trial evidence alleged by Mister amounted to a variance, not a constructive amendment. Because it does not affect our disposition of the case, we need not decide who is right. We assume without deciding that the error Mister alleges, if proven, would constitute a constructive amendment.
. The District Court instructed the jury:
Count Two alleges that on or about June 5, 2006, defendant Louis Mister aided and abetted an attempt to obstruct interstate commerce by extortion by obtaining money on behalf of Maurice Callaway, that was paid by another, with that person’s consent, in exchange for Callaway's official action and influence as specific opportunities arose in Callaway's capacity as a member of the PBOE.
(A. 1227, emphasis added). The Court's charge for Count Three was even more emphatic: "To sum up, to find the defendant guilty of the crime charged in Count Three, you must find ... that the defendant knowingly and willfully aided Maurice Callaway in knowingly, willfully and corruptly ... accepting, or agreeing to accept a thing of value; [and] that Maurice Callaway intended to be influenced with regard to the affairs of the Pleasantville Board of Education [.]” (A. 1243, emphasis added). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479304/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Shenez Lawrence and Kreig Prosper appeal their respective convictions and sentences for one count of conspiracy to commit bank robbery in violation of 18 U.S.C. § 1951, three substantive counts of bank robbery in violation of 18 U.S.C. § 2113(a), and three counts of using or carrying a firearm during and in relation to a bank robbery in violation of 18 U.S.C. § 924(c). We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.1
Lawrence and Prosper, in conjunction with co-conspirator Darnell Turner, conducted three “takeover” bank robberies in 2005. The men fled the Sun National Bank in Matawan, New Jersey on January 12, 2005, with $239,194; the Sun National Bank in Holmdel, New Jersey on August 9, 2005, with $37,000; and the Sovereign Bank in Woodbridge, New Jersey on December 9, 2005, with $27,893.50. In each instance, the three men followed a substantially similar modus operandi.
In'the first two robberies, Lawrence and Prosper entered the banks while armed, threatened the tellers and customers, and acquired cash. Turner served as the getaway vehicle driver and remained outside the bank watching for law enforcement. Lawrence and Prosper donned essentially the same outfits for both robberies, choosing to wear ski masks, gloves, and goggles. In the third robbery, Lawrence, due to injuries suffered from a gunshot wound, acted as the getaway driver while Turner and Prosper entered the bank to conduct the robbery.
Following the third robbery, police officer Steve Killane responded to reports of gun fire at Lawrence’s home. Lawrence was arrested, waived his Miranda rights, and was questioned by police. Upon searching Lawrence’s residence, police recovered, among other things, a significant amount of cash and coins as well as several empty money wrappers. Aware of the bank robbery on that day, the officers contacted the Federal Bureau of Investigation. In the meantime, Turner arrived at Lawrence’s residence and police transported both men to the police station for questioning.
Upon questioning by authorities, Lawrence confessed and proceeded to discuss each robbery in detail. Turner also confessed to his participation in all three robberies; he identified Lawrence and Prosper as his co-conspirators and discussed each robbery in detail.
Following these confessions, authorities began surveillance of Prosper, who had gone on a spending spree following the first robbery, spending thousands of dollars on vehicles, jewelry, and a trip to Atlantic City. Upon searching Prosper’s vehicle, authorities found tens of thousands of dollars and the .38 caliber handgun that Turner carried during the third robbery. *194Subsequent searches of each suspect’s residence revealed additional currency, money wrappers, and other tools used during the robberies including goggles, ski masks, and gloves.
The grand jury returned a superseding nine-count indictment against Lawrence and Prosper. A jury subsequently convicted Lawrence and Prosper on seven counts: one count of conspiracy to commit bank robbery, three substantive counts of bank robbery, and three counts of using or carrying a firearm during and in relation to a bank robbery.
The District Court denied post-trial motions for judgments of acquittal and for new trials. The Court sentenced Lawrence to 824 months in prison and ordered him to pay $304,087.50 in restitution. The Court sentenced Prosper to 794 months in prison and ordered him to pay $304,087.50 in restitution. Lawrence and Prosper filed them timely notices of appeal on February 28, 2008.
II. Alleged Trial Errors
Both Lawrence and Prosper argue that various errors were made by the District Court during trial. This section will address the errors alleged by each Appellant in turn.
A. Admissibility of Evidence: Lawrence
Lawrence challenges the District Court’s admission of five separate pieces of evidence. Here, we review the first four challenges, properly preserved at trial, under an abuse of discretion standard. Gov’t of the Virgin Islands v. Albert, 241 F.3d 344, 347 (3d Cir.2001). The fifth evidentia-ry challenge, raised for the first time on appeal, is reviewed for plain error only.2
Lawrence contends that the District Court erred in admitting evidence (1) that he was shot in the head on October 3, 2005, prior to the Woodbridge robbery; (2) of the .380 caliber semi-automatic handgun recovered from his residence on October 3, 2005; (3) of the fact that he suffered five gunshot wounds to the torso on July 25, 2005, prior to the Holmdel robbery; and (4) of the .38 caliber handgun recovered from his residence in May of 2006. Lawrence asserts that all of this evidence “in-flam[ed] the emotions of the jury and ... depict[ed][him] as someone who had a general propensity for gun violence and criminality.” (App. Lawrence Br. at 9.) We disagree.
Per Rule 404(b) of the Federal Rules of Evidence, “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed. R.Evid. 404(b). Lawrence asserts that each of the four admitted pieces of evidence constitutes “other crimes” for purposes of Rule 404(b). This assertion is unpersuasive. We have held that “Rule 404(b) does not apply to evidence of uncharged offenses committed by a defendant when those acts are intrinsic to the proof of the charged offense.” United States v. Gibbs, 190 F.3d 188, 217 (3d Cir.1999). Notably, even in instances where the intrinsic act is extremely prejudicial to the defendant, “the court would have no discretion to exclude it because it is proof of the ultimate issue of the case.” Id.
The evidence asserted here is intrinsic to the proof of the three bank robberies and thus admissible. First, the fact *195that Lawrence suffered a gunshot wound to the head on October 3, 2005, provided the jury with an explanation as to why he assumed a different role in the Wood-bridge robbery and corroborated Turner’s testimony stating as much.
Second, investigators recovered a .380 caliber semi-automatic handgun from Lawrence’s possession on October 3, 2005, which matched descriptions provided by eyewitnesses to the Holmdel robbery and also coiToborated Turner’s testimony.
Third, evidence that Lawrence suffered five gunshot wounds to the chest weeks prior to the Holmdel robbery on July 23, 2005, corroborated Turner’s explanation as to why Lawrence dressed differently for the Holmdel robbery and enabled jurors to more easily identify Lawrence in video footage.
Fourth, Turner testified that Lawrence took possession of the gun used by Prosper in the commission of the Woodbridge robbery. The introduction of the .380 caliber handgun recovered from Lawrence’s residence corroborated this testimony.
For these reasons, the intrinsic nature of the four pieces of aforementioned evidence justified their proper admission at trial. The District Court did not abuse its discretion in this regard.
Fifth, for the first time on appeal, Lawrence argues that the District Court erred in admitting testimony that police responded to his residence after receiving reports of gun fire. Prior to trial, the parties stipulated to a statement that police responded to Lawrence’s residence “on a report of a gunshot being fired.” Detective Killane’s testimony during trial was consistent with this stipulation and elicited no objection from Lawrence.
Lawrence now contends that the admission of this stipulated statement is extremely prejudicial, representing an effort by the Government to inflame the emotions of the jury and depict him as someone who has a general propensity for gun violence. We disagree. The police response to a report of shots fired initiated the discovery of the Woodbridge robbery money. Detective Killane’s testimony carried substantial probative value in this instance as it provided the jury with an understanding of how the conspirators’ robbery scheme began to come undone. The probative value of the stipulated statement outweighed any prejudice to Lawrence and was properly admitted by the District Court.
B. Admissibility of Evidence: Prosper
Prosper argues that the District Court improperly admitted irrelevant and prejudicial testimony that characterized each bank robbery as violent and heinous. He specifically points to (1) F.B.I. Agent Gallagher’s testimony that “take-over robberies are the most serious type of bank robbery;” (2) Stacy Stone’s testimony that she terminated her employment at Mata-wan Bank because “we were robbed and I didn’t feel comfortable working there anymore;” and (3) Stope’s further testimony that she was pregnant at the time of the Matawan robbery.
Prosper contends that the testimony of Gallagher had little probative value and was intended to inflame the jury. Prosper objected to this testimony at trial and made no request for a mistrial. Thus we review the District Court’s decision not to grant a mistrial sua sponte for plain error. See United States v. Pungitore, 910 F.2d 1084, 1126 n. 58 (3d Cir.1990); Gov’t of the Virgin Islands v. Charleswell, 24 F.3d 571, 576-77 (3d Cir.1994). The objection to this testimony was in fact sustained and that line of questioning halted. The jurors viewed video tape of all three robberies and, therefore, were able to come to *196their own conclusions as to whether the robberies were “serious” in nature. We cannot say that Prosper suffered prejudice significant enough from Gallagher’s statement that the District Court erred in not declaring a mistrial sua sponte.
Prosper also argues that the District Court should have declared a mistrial sua sponte following Stone’s testimony. Prosper did not object to Stone’s testimony at trial, therefore we review the District Court’s decision for plain error. See Charleswell, 24 F.3d at 576-77. Stone’s testimony that she felt uncomfortable working in the bank following the robbery did not result in substantial prejudice to Prosper. Further, her testimony that she was pregnant at the time of the robbery was offered to corroborate Turner’s testimony that Lawrence and Prosper described a pregnant woman as being in the bank at the time of the robbery. As such, the District Court did not plainly err in failing to declare a mistrial sua sponte as a result of this relevant testimony.
C. Request for Mistrial: Lawrence
In response to an inquiry by the Government regarding Lawrence’s initial understanding of his Miranda rights prior to his December 9, 2005 arrest, Detective Killane testified to Lawrence’s “past run-ins with law enforcement.” (DAL at 81.) Upon Lawrence’s objection to the statement, the testimony was stricken from the record and a curative instruction issued. Lawrence subsequently moved for a mistrial on the basis that Killane’s statement and the prior admission of five pieces of disputed evidence constituted cumulative prosecuto-rial misconduct that effectively denied Lawrence a fair trial. The District Court denied the motion and noted that it was “satisfied that the potential prejudicial impact of the testimony ... while unfortunate, is simply unlikely to have any impact on the jury’s verdict in this case.” On appeal, Lawrence contends that the District Court erred in failing to grant a mistrial. We disagree.
In addition to Detective Killane’s testimony, Lawrence points to the five pieces of disputed evidence discussed in Section II.A as grounds for a mistrial. As we have already found these pieces of evidence were properly admitted, our focus here rests solely on the District Court’s decision to strike the disputed testimony and on the validity of the curative instruction in this regard.
We review denials of motions for mistrial for abuse of discretion. United States v. Rivas, 493 F.3d 131, 139 (3d Cir.2007). Notably, “such discretion is construed especially broadly in the context of Rule 403.” United States v. Mathis, 264 F.3d 321, 327 (3d Cir.2001). Here, Lawrence bears the burden of showing that the District Court’s decision to strike the testimony was insufficient to cure any error that may have occurred. United States v. Thornton, 1 F.3d 149, 156 (3d Cir.1993). It is generally presumed that a jury will follow a court’s instruction to disregard inadmissible evidence. See Greer v. Miller, 483 U.S. 756, 766, if. 8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987).
In this case, it is unlikely that the jury proved unable to follow the District Court’s instructions. The District Court provided a simple and coherent instruction to jurors immediately following Killane’s utterance of the statement. Furthermore, we agree with the District Court that the statement’s inherent lack of specificity in regard to certain past crimes rendered the statement only minimally prejudicial. Consequently, we are satisfied that the District Court did not abuse its discretion in declining to grant a mistrial.
*197D. Unexplained Wealth
For the first time on appeal, Prosper asserts that the District Court erred by failing to provide the jury with a limiting instruction upon the introduction of evidence concerning his sudden acquisition and expenditure of unexplained wealth following the Matawan robbery. As with the previous unpreserved objections on appeal here, we review this contention for plain error. Lessner, 498 F.3d at 192. We conclude that the District Court did not err by failing to provide a limiting instruction regarding Prosper’s unexplained wealth.
We have stated that “the sudden unexplained acquisition of wealth by an impecunious person at or about the time of a theft which he had the opportunity to commit, is competent evidence of guilt and will support ... conviction.” United States v. Chaney, 446 F.2d 571, 575 (3d Cir.1971). In this case, Prosper spent thousands of dollars in the days and weeks following the first bank robbery. Prosper’s acquisition of wealth in the days following the first robbery appears great, especially given the fact that he reported annual income of $8,000 for tax purposes at this time.
Prosper’s characterization of his post-Matawan robbery spending spree as evidence of “other crimes” for purposes of Rule 404(b) is erroneous. The Government offered evidence of Prosper’s ability to make purchases in a way that was not possible for Prosper prior to the Matawan robbery, not evidence of a crime or crimes tending to show Prosper’s bad character or propensity to commit a crime. There exists a great imbalance between the amount of money spent subsequent to the Mata-wan robbery and Prosper’s reported annual income. This imbalance is certainly probative.
III. Alleged Sentencing Errors
Lawrence and Prosper challenge the reasonableness of the sentences imposed by the District Court on several grounds. We review these sentences under an abuse of discretion standard.3
At the outset, Lawrence maintains that the District Court abused its discretion by (1) failing to depart from the statutory minimum; and (2) finding that Lawrence and Turner were not similarly situated offenders for purposes of 18 U.S.C. § 3553(a).4 We disagree.
A district court does not have the authority to depart from statutorily mandated minimum sentences in the absence of (1) a government motion for reduction based upon a defendant’s substantial assistance or (2) a defendant’s compliance with the safety valve in § 3553(f). United States v. Kellum, 356 F.3d 285, 289 (3d Cir.2004). Here, the Government did not move for a departure based on substantial assistance, and the nature of the Lawrence’s § 924(c) conviction for possession of a firearm during and in relation to a robbery prohibits consideration of the *198safety valve factors. Therefore, the District Court did not abuse its discretion in refusing to depart from the statutorily mandated minimum sentence.
Contrary to Lawrence’s second contention, we have held that the “disparity of sentence between co-defendants does not of itself show abuse of discretion.” United States v. Parker, 462 F.3d 273, 276-77 (3d Cir.2006). The District Court considered Lawrence’s contention that he and Turner were similarly situated for purposes of § 3553(a) and rightfully rejected it. Significant differences between Lawrence and Turner justify the 728-month disparity in their sentences. Most obviously, Turner pleaded guilty to a single count of using or carrying a firearm during and in relation to a bank robbery in violation of 18 U.S.C. § 924(c), a charge which carries a seven-year mandatory minimum consecutive sentence. In contrast, Lawrence pleaded not guilty and was convicted of, among other things, three counts under § 924(c) which, in turn, carry a 57-year mandatory minimum consecutive sentence. Also, Turner pleaded guilty to the charges against him, faced fewer counts of conviction, and cooperated significantly with law enforcement. Given these circumstances, the District Court correctly concluded that Turner and Lawrence were not similarly situated co-defendants for purposes of § 3553(a) application.
Lawrence also contends that the conditions of his pre-trial confinement in Passaic County Jail justified a downward variance in sentencing rather than an imposition of the minimum sentence under the Guidelines. He asserts that the District Court’s failure to grant a downward variance constitutes an abuse of discretion. We disagree and are satisfied, like the District Court, that the conditions in the Passaic County Jail do not warrant an Eighth Amendment or substantive due process inquiry.
Prosper contends that the District Court abused its discretion by imposing a disproportionate sentence without consideration for his insubstantial criminal history and the fact that no injuries stemmed from the robberies. We disagree.
We have held that “although the proportionality principle [of the Eighth Amendment] applies to sentences of terms of years, only an extraordinary case will result in a constitutional violation.” United States v. Walker, 473 F.3d 71, 79 (3d Cir.2007). Contrary to Prosper’s claim, no such extraordinary case of gross dispro-portionality exists here. See id. at 82-83. Prosper’s sentence is not disproportionate from or unreasonable in the face of the gravity of the crimes. Prosper demonstrated a willingness to repeatedly engage in felonious behavior when he committed three consecutive armed robberies spread out over a period of several months. The District Court could reasonably conclude that the crimes Prosper committed were “momentous enough to warrant the deterrence and retribution of lengthy consecutive sentences.” Id.
IV.
For the foregoing reasons, we will affirm the District Court’s judgments.
. The District Court exercised subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction over these consolidated appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. We review alleged errors without contemporaneous objection for plain error. United States v. Lessner, 498 F.3d 185, 192 (3d Cir. 2007). Plain error occurs when (1) an error is committed; (2) that error is plain; and (3) it affected the defendant's substantial rights. Id.
. We review a sentence by first ensuring that the sentencing court did not commit a serious procedural error. Unites States v. Lopez-Reyes, 589 F.3d 667, 670 (3d Cir.2009). Upon reviewing the procedural validity of a sentence, we next "review the substantive reasonableness of the sentence under an abuse of discretion standard, while keeping in mind that as long as a sentence falls within the broad range of possible sentences that can be considered reasonable in light of the [18 U.S.C.] § 3553(a) factors, we must affirm.” Id. (internal quotations omitted).
. Appellant Lawrence's brief argues that the District Court failed to "deviate” from the mandated minimum sentence. (App. Lawrence Br. at 33.) The use of the term “deviate” in relation to sentencing is inaccurate. Rather, we will review the District Court's decision not to "depart” or "vary” from the statutory minimum. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479309/ | OPINION
PER CURIAM.
Petitioner, Dan Dong, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny her petition.
Dong is a citizen of the People’s Republic of China from Fujian Province who has resided unlawfully in the United States since 2000. In March 2006, she married Ming Lin, and the couple had two children, Jason and Bobby Lin. When the Department of Homeland Security later initiated removal proceedings against her, Dong sought asylum and related relief on the ground that, if removed to China, she would be forcibly sterilized because she had violated China’s one-child family planning policy by giving birth to two children in this country.
Following a hearing, the Immigration Judge (“IJ”) denied relief, finding that Dong had failed to demonstrate that she had a well-founded fear of persecution under 8 U.S.C. § 1101(a)(42) because the evidence did not establish that her fear of being subjected to involuntary sterilization at home was objectively reasonable. See Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir.2004). In particular, the IJ concluded that Dong had failed to show either that she would be singled out for sterilization or that China has a pattern or practice of sterilizing women who return to the country with two foreign-born children. See 8 C.F.R. § 208.13(b)(2)(iii)(A). The IJ also denied Dong’s related applications for withholding of removal and relief under the Convention Against Torture.
Dong appealed to the BIA. In addition to seeking review of the IJ’s ruling, Dong also submitted hundreds of pages of documents to the BIA — most of which she had already submitted to the IJ — and requested in the alternative that the BIA remand the matter for the IJ to address the additional evidence. Upon review, the BIA adopted and affirmed the IJ’s decision, denied the request for a remand, and dismissed the appeal. Dong now petitions for review of the BIA’s order.1
A. Applications for Asylum and Withholding of Removal
Upon review, we conclude that substantial evidence supports the denial of Dong’s application for asylum. To establish eligibility for asylum on the ground that she had a well-founded fear of future persecution, Dong was required to demonstrate that: (1) her fear of persecution is genuine; and (2) “a reasonable person in [her] *209circumstances would fear persecution if returned to the country in question.” Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). To satisfy the second, so-called “objective prong,” Dong had to show either that she would be individually “singled out” for persecution, or that there is a “pattern or practice” of persecution of similarly situated individuals. 8 C.F.R. § 208.13(b)(2)(iii)(A). The agency’s findings on these questions “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812,117 L.Ed.2d 38 (1992).
First, we agree with the IJ and BIA that Dong faded to establish that she would be singled out for persecution under 8 C.F.R. § 208.13(b)(2)(iii)(A), as the evidence presented did not show that she had ever come into contact with family planning authorities in the past, or that her foreign-born children would necessarily “count” for purposes of China’s family planning policy in the future.2 Although Dong argues on appeal that a document issued by the State Department titled “Tips for Travelers to the People’s Republic of China” clearly demonstrates that the distinction between children born in the United States and those born in China is a “distinction without a difference,” (Br. 10) we disagree. This document states only that children born in the United States to Chinese citizens “are not recognized as U.S. citizens under Chinese nationality law;” it does not discuss how this policy may or may not relate to the nation’s family planning policies. (AR 001225.) Dong also argues that the IJ and BIA “ignored prior precedent” holding that children born in the United States are treated no differently than children born in China. (Br. 11.) Curiously, however, the only authority that Dong cites in support of this proposition is In re J-W-S-, 24 I & N Dec. 185 (BIA 2007), which held just the opposite.
We also agree with the IJ and BIA that the record evidence did not establish that the Chinese government engages in a pattern or practice of sterilizing individuals who return to Fujian Province after giving birth to two children in the United States. As the IJ noted, “[o]n balance, the evidence pointed to a marked decrease in enforcement of the family planning policy through forced abortion and/or sterilization and does not indicate that there is a pattern or practice of sterilizing individuals who return to China after having two children in the United States.” (AR 001226.) Dong now argues that, in reaching this conclusion, the IJ failed to give adequate weight to the following evidence: (1) a *2102005 report by the United Nations High Commission for Refugees; (2) a New York Times article regarding the persecution of an anti-family-planning advocate; and (3) various CNN.com and AsiaNews articles. We have reviewed these documents and cannot say that they compelled a ruling in Dong’s favor; simply stated, none of these documents establishes that Chinese citizens who return to Fujian Province after giving birth to two children in the United States will be forcibly sterilized.3
For these reasons, we conclude that substantial evidence supports the agency’s denial of Dong’s claim for asylum. Furthermore, because Dong failed to show that she has a reasonable fear of future persecution under the lower burden of proof required for asylum, the agency correctly concluded that she was necessarily ineligible for withholding of removal. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-32, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).
B. Motion to Remand
Dong also argues that the BIA abused its discretion in denying her motion to remand.4 Because there is no express statutory authorization for a motion to remand, the BIA appropriately construed Dong’s request as a motion to reopen. See In re Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992). The BIA denied Dong’s motion because she failed to satisfy the standard for reopening — ie., she failed to demonstrate that the additional evidence was material or previously unavailable or undis-eoverable, see 8 C.F.R. § 1003.2(c)(1), or that the evidence established prima facie eligibility for asylum. Specifically, the BIA found that a remand was not warranted because the majority of the evidence that Dong submitted had already been considered by the IJ, pre-dated the IJ’s April 4, 2007 decision, or concerned events that took place outside of the Fujian Province.
On appeal, Dong argues that, contrary to the BIA’s contention, “[t]he documents submitted were relevant and material and most were not available or known to the Petitioner at the time of her individual hearing.” (Br. 16.) In support of this argument, Dong identifies twelve documents.5 But Dong presented all of these documents during her hearing before the *211IJ. (AR 001216-19.) Clearly then, the BIA did not err in concluding that it was unnecessary to remand the matter to the IJ to consider them.6
Dong also argues that the Board’s decision “is incomplete on its face and does not allow for meaningful review by this Court.” (Br. 15.) Contrary to Dong’s contention, however, we find that the BIA’s decision reflects that it fairly considered the record evidence; as we have previously explained, “[c]onsideration of all evidence does not require comment on all evidence.” Thu v. Att’y Gen., 510 F.3d 405, 416 n. 16 (3d Cir.2007); cf. Zheng, 549 F.3d 260, 271 (3d Cir.2008) (holding that BIA’s decision was inadequate because it “fail[ed] to offer even a cursory review of the record”).
We have considered Dong’s remaining arguments and conclude that they are without merit.7 Therefore, we will deny the petition for review.
. We have jurisdiction under 8 U.S.C. § 1252(a)(1). "[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ's decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).
. On appeal, the government argues that Dong failed to exhaust before the BIA the argument that she "had not been singled out [for persecution) within the meaning of the applicable regulation.” (Br. 20.) See Abdul-rahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003) (explaining that an alien is required to raise and exhaust his remedies as to each claim in order to preserve his right to judicial review of all claims). To the extent that the government is claiming that Dong cannot argue for the first time on appeal that she was singled out for persecution in the past, we agree, although we do not read Dong's brief to be making such an argument. To the extent that the government is claiming that Dong failed to exhaust the argument that she would be singled out for persecution in the future, we disagree; although Dong did purport to limit her argument before the BIA to the Id's finding that she had failed to establish a "pattern or practice” of persecution, she nonetheless challenged the IJ’s determination that her foreign-born children would not "count” for purposes of China’s family planning policy — a determination that the IJ made in the context of her “singled out” analysis.
. Dong also argues that the BIA erred in failing to find that the record evidence demonstrated that she faced persecution in the form of excessive fines for violating the family planning policy. Based on our review of Dong's administrative appeal, however, we conclude that she failed to fairly present this argument to the BIA. (AR 000007-20.) Therefore, this argument is unexhausted. See Abdulrahman, 330 at 594-95.
. We review the BIA's denial of petitioners' motion for remand for abuse of discretion. See Vakkerv. Att’y Gen., 519 F.3d 143, 146 (3d Cir.2008).
. Specifically, Dong identifies the following documents: (1) a New York Times article dated August 18, 2006; (2) a report from CNN.com about the government’s treatment of Chinese women returning from Taiwan; (3) an April 27, 2006 report from the National Population and Family Planning Commission of China; (4) an affidavit from a Chinese national who was involuntarily sterilized after returning from Japan; (5) an article from Life Site News.com dated October 26, 2005; (6) a report from Time.com dated September 19, 2005; (7) an announcement from the Jieshi Town Family Planning Office concerning the family planning campaign; (8) an article from Life SiteNews.com dated May 27, 2005; (9) a flyer from the Family Planning Office of Chang Le City; (10) a December 14, 2004 report from the U.S. House International Relations Committee; (11) John Aird's September 23, 2002 congressional testimony; and (12) Dr. Aird's September 1, 2004 affidavit. (Br. 17-21.)
. We note that Dong did submit a new document from the Ma Wei District Ting Jiang Town Family Planning Office (that her father-in-law had obtained on her behalf) that indicated that, because Dong had already given birth to two children, she "should be the target for sterilization.” (AR 000113.) The BIA found that this document, which was dated December 21, 2007, did not provide a basis for reopening the proceedings because Dong could have solicited it from the town planning office before her hearing in the immigration court. In her brief, Dong does not direcdy challenge this conclusion, but instead argues that the BIA’s consideration of this issue constituted improper fact-finding on review. (Br. 16.) Dong fails to cite any authority for this argument, however, and it is directly contradicted by the applicable regulation. See 8 C.F.R. § 1003.2(c)(1).
. Dong does not challenge the BIA’s denial of her claim for relief under the Convention Against Torture. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8479314/ | OPINION OF THE COURT
PER CURIAM.
Fliber Franco-Calzada, a federal inmate, appeals from the order of the United States District Court for the Western District of Pennsylvania dismissing sua sponte his civil rights complaint for failure to state a claim under 28 U.S.C. § 1915A(b)(1) — (2). We will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
At all relevant times, Franco-Calzada was incarcerated at the Moshannon Valley Correctional Center (“Moshannon”) in Philipsburg, Pennsylvania, a private facility operated by the Cornell Company under contract to the Bureau of Prisons (“BOP”).
Franco-Calzada’s Complaint raises two claims, both of which arise out of his slip and fall from a ladder (attached to his top bunk) on January 2, 2009, in which he fractured two fingers. First, he alleges that the ladder attached to his bunk bed is too small for an adult and that the faulty ladder caused his fall and resulting injury to his fingers. He says that, on information and belief, at least two other inmates have experienced falls because of the ladder problem. He blames the defendants for failing to inspect the ladders and rectify the problem.
Second, Franco-Calzada claims that the medical treatment he received for his broken fingers was delayed unnecessarily in deliberate indifference to his serious medical needs. He alleges that the defendants failed to send him to the local emergency room for immediate treatment of his broken fingers on the night of the accident, they took no x-ray until the following Monday, and they delayed his surgery (to fix the fractures) for two weeks. Franco-Calzada also claims that after initially providing him with pain medication, the prison *219is making him purchase it through the commissary. He asserts that he suffers from permanent stiffness and pain in his fingers. He attached documentation of his prison grievances and the BOP’s responses.
At the initial screening, the Magistrate Judge recommended that the Complaint be dismissed sua sponte for failure to state a claim as to all defendants. The Magistrate Judge first noted that a Bivens action is available for actions against corrections personnel for their deliberate indifference to an inmate’s serious medical needs under the Eighth Amendment. CSee Report at 2.) He ultimately found, however, that Franco-Calzada had no Bivens claim because the factual allegation of a thirteen-day delay in obtaining surgery, alone, was “inadequate to allege deliberate indifference on the part of any defendant.” (Id. at 3.) Next, treating the slip and fall allegations as a Bivens claim, the Magistrate Judge found that Franco-Calzada “again fails to allege any facts that would permit an inference of deliberate indifference.” (Id. at 4-5.) (noting that Franco-Calzada failed to state a claim under the more lenient simple negligence standard under Pennsylvania law.)
Because both of Franco-Calzada’s claims lacked merit, the Magistrate Judge found it unnecessary to analyze the liability of individual defendants Cornell Companies, Moshannon, Warden Zenk, and Doctor Agra. He noted, however, that the Supreme Court, in Correctional Serv. Corp. v. Malesko, 534 U.S. 61, 71-72, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001), declined to extend the Bivens remedy to claims against private corporations operating under federal contracts. Acknowledging that Malesko “left open an obvious question, whether a Bivens action can be alleged against a private individual,” the Magistrate Judge looked to decisions of the Courts of Appeals that have held that no such actions should be implied against private individual actors. (Id. at 6.) The Magistrate Judge found that “[i]n the absence of persuasive authority to the contrary, even a complaint adequately alleging a claim against any individual defendant should be dismissed.”1 (Id.) The District Court overruled Franco-Calzada’s objections, adopted the Magistrate Judge’s Report, and dismissed the Complaint for failure to state a claim. Franco-Calzada filed this timely appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. See Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.1995). Our review is plenary. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). Franco-Calzada has been granted leave to proceed in forma pauperis on appeal. Because his appeal from the dismissal of Complaint lacks arguable merit, we will dismiss it pursuant to § 1915(e) (2) (B) (i). See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827,104 L.Ed.2d 338 (1989).
In order to survive dismissal, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” See Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Edüd 868 (2009). Well-pleaded factual content is accepted as true for purposes of determining whether the com*220plaint states a plausible claim for relief. Id. at 1950. The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to “[t]hreadbare recitals of the elements of a cause of action, supported by mere eonclu-sory statements.” Id. at 1949. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
After reviewing the District Court pleadings and notice of appeal, we conclude as a matter of law that Franco-Calzada’s Complaint was correctly dismissed for failure to state a claim. There is nothing in the Complaint’s specific allegations from which we can plausibly infer that the defendants were deliberately indifferent to Franco-Calzada’s serious medical needs or to prison conditions pertaining to the use of an allegedly unsafe ladder in his cell. The protections afforded prisoners by the Due Process Clause of the Fourteenth Amendment are not triggered by the mere negligence of prison officials. See Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Likewise, Eighth Amendment liability requires “more than ordinary lack of due care for the prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Regarding medical mistreatment claims in particular, “[i]t is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute ‘deliberate indifference.’ ” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999); see also White v. Napoleon, 897 F.2d 103, 108 (3d Cir.1990) (concluding that mere medical malpractice cannot give rise to a violation of the Eighth Amendment). Only “unnecessary and wanton infliction of pain” or “deliberate indifference to the serious medical needs” of prisoners is sufficiently egregious to rise to the level of a constitutional violation. White, 897 F.2d at 108-09 (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Here, the allegations contained in the Complaint, taken as true, assert a simple negligence claim at most, and thus, do not state a claim of a constitutional violation under the Eighth Amendment.
The District Court did not consider granting Franco-Calzada an opportunity to amend the complaint in order to cure the stated defects. We see no need to remand the matter, however, because we conclude that an amendment would have been futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). Here, no additional allegations would cure the defects in the Complaint as to the slip and fall claim. Moreover, the BOP’s grievance responses that Franco-Calzada attached to his Complaint, lead to the plausible inference that the medical staff treated Franco-Calzada promptly and without unnecessary delay. The medical defendants treated with him with first-aid and started him on antibiotics on the day he was injured. The orthopedic specialist evaluated Franco-Calzada’s injuries on January 6, 2009. After a pre-operative visit on January 12, Franco-Calzada underwent surgery on January 15, 2009.
Our independent review reveals that there is no arguable basis to challenge the District Court’s dismissal order on appeal. Accordingly, Franco-Calzada’s appeal will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
. We need not reach the issue whether Males-ko bars Bivens claims against the individual defendants in this case because we conclude that the appeal has no arguable merit in any event. | 01-04-2023 | 11-05-2022 |
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