url
stringlengths 56
59
| text
stringlengths 3
913k
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8472286/
|
OPINION
PER CURIAM.
Geoffrey Atwell appeals the District Court’s order granting appellees’ motion to dismiss his complaint. For the reasons below, we will affirm.
The procedural history of this case and the details of Atwell’s claims are well known to the parties and need not be discussed at length. Briefly, Atwell filed a complaint pursuant to 42 U.S.C. § 1983 alleging that appellees failed to investigate his claims that he was being held past the expiration of his maximum sentence. The District Court concluded that Atwell’s claims were barred by Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and by the statute of limitations. Atwell filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291. We need not address whether the complaint is barred by Heck because we agree with the District Court that it was untimely. 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. A cause of action accrues when the plaintiff knows or has reason to know of the injury that constitutes the basis of the cause of action. Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir.1998).
Atwell argues that his sentence should have expired on October 19, 2002. In his opposition to the appellees’ motion to dismiss, Atwell argued that his complaint was timely because he had to exhaust the prison administrative grievance process. In a grievance response dated January 9, 2003, a prison official explained the calculation of the sentences and informed Atwell that the maximum expiration date of his sentences was May 22, 2004. The Acting Chief Grievance Coordinator denied the final review of that grievance on June 20, 2003. *754Thus, by June 2003, Atwell had finished exhausting his administrative remedies and knew that prison officials had calculated the maximum expiration date of his sentences to be May 22, 2004. His complaint, postmarked on May 20, 2006, was filed beyond the two-year statute of limitations.
Atwell argues that his complaint was timely filed within two years of his release from prison on May 22, 2004. Because Atwell knew of his alleged injury at the time it was inflicted, the continuing wrong theory does not apply. See Barnes v. American Tobacco Co., 161 F.3d 127, 154 (3d Cir.1998) (“We understand Fowkes[v. Pennsylvania R.R. Co., 264 F.2d 397 (3d Cir.1959) ] to mean that continuing conduct of defendant will not stop the ticking of the limitations clock begun when plaintiff obtained requisite information. On discovering an injury and its cause, a claimant must choose to sue or forego that remedy.”) (quoting Kichline v. Consolidated Rail Corp., 800 F.2d 356, 360 (3d Cir.1986)).
Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472287/
|
OPINION
PER CURIAM.
This case arises from a dispute between the Appellants, Mark and Andrea Newton, and their landlord, Brian Mizell. The dispute began when, in October 2004, Essex County declared the Newtons’s apartment uninhabitable. At that time, County officials informed Mizell that the Newtons would not be required to pay rent until he cured the defects in their apartment. According to the Newtons, Mizell refused to cure the defects, and instead attempted to evict them. As a result, the Newtons initiated an action in the New Jersey Superior Court seeking to enjoin the eviction. After several months of litigation in the Superior Court and Appellate Division, the Newtons were ordered to leave the apartment and to reimburse Mizell for several months of rent.
Soon thereafter, on February 2, 2009, the Newtons filed a civil rights complaint against Mizell in the United States District Court for the District of New Jersey. In the complaint, the Newtons alleged that: (1) the New Jersey Superior Court lacked jurisdiction over the eviction action because Mizell never filed a complaint in that court; (2) the Superior Court violated their due process rights and “disregarded all the New Jersey Statutes, Court rules, and applicable case law” by evicting them despite the absence of a complaint; (3) the Superior Court abused its discretion by refusing to vacate its eviction order even though the Newtons never received notice of the eviction hearing; (4) this Court should vacate the Superior Court’s order directing the Newtons to pay rent to Mizell because he purposefully refused to provide them with “safe and decent housing;” (5) the state court erred in increasing the rent at the apartment by $150.00; and (6) the Superior Court erred by refusing to allow the Newtons’s security deposit to be counted toward the overdue rent. (Brief in Support of Compl., Dkt. # 1-6.)
Upon review of these allegations, the District Court determined that the Newtons were essentially seeking appellate review of the state courts’ decisions, and dismissed the complaint for lack of subject-matter jurisdiction. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483-84, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). This appeal followed.1
We agree with the District Court that it lacked jurisdiction over the complaint pursuant to the Rooker-Feldman doctrine. As the Supreme Court has made clear, the doctrine bars “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced[,] and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Based on our careful review of the complaint and the Newtons’s brief in *756support thereof, we agree with the District Court that this case falls within the narrow class of cases barred by this doctrine.
Accordingly, we will summarily affirm the District Court’s order. See Third Cir. LAR 27.4 and I.O.P. 10.6.
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472264/
|
SUMMARY ORDER
Petitioner, Jian Qing Ke, a native and citizen of the People’s Republic of China, seeks review of a January 8, 2009 order of the BIA denying his motion to reopen his deportation proceedings. In re Jian Qing Ke, No. A 070 898 864 (B.I.A. Jan. 8, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). We find that the BIA did not err in denying Ke’s untimely motion to reopen. An alien may only file one motion to reopen and must do so within 90 days of the agency’s final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, the deadline may be equitably tolled to accommodate claims of ineffective assistance of counsel, so long as the movant has exercised “due diligence” in vindicating his or her rights. See Cekic v. INS, 435 F.3d 167, 171 (2d Cir.2006).
We find no error in the BIA’s conclusion that Ke failed to exercise due diligence in pursuing his ineffective assistance of counsel claim. See id. In his motion, Ke asserted that his attorney before the IJ failed to adequately prepare him for his merits hearing and obtain evidence in support of his application for relief. Although Ke asserted that he did not discover his attorney’s ineffective assistance until September 2008, shortly before he filed his motion, he did not explain what steps he took to pursue his case in the six years that elapsed after the BIA’s order affirming the IJ’s decision denying his application for relief. Moreover, as the BIA noted, Ke was represented by a different attorney during that intervening period. Therefore, as the BIA reasonably found, Ke failed to demonstrate that he exercised due diligence in pursuing his ineffective assistance of counsel claim. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008) (finding that an alien is required to exercise due diligence in pursuing his case both before and after he or she has or should have discovered the alleged ineffective assistance).
In his brief before this Court, Ke asserts for the first time that his attorney on appeal before the BIA had an ongoing affiliation with the attorney who was allegedly ineffective. We decline to address this unexhausted argument. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472268/
|
SUMMARY ORDER
Petitioner Ling Zheng, a native and citizen of the People’s Republic of China, seeks review of a February 6, 2009 order of the BIA denying her motion to reopen. In re Ling Zheng, No. A077 283 074 (B.I.A. Feb. 6, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). Here, the BIA did not err in denying Zheng’s motion to reopen as untimely and number-barred where it was her second motion to reopen and it was filed over six years after her 2002 final order of removal. See 8 C.F.R. § 1003.2(c)(2) (providing that an applicant may only file one motion to reopen and that motion must be filed within ninety days of the final administrative decision). There is no time limit on the filing of a motion to reopen alleging eligibility for asylum based on changed country conditions. 8 C.F.R. § 1003.2(c)(2). However, the BIA did not abuse its discretion in finding that Zheng’s motion was based only on a change in her personal circumstance — namely, her involvement with the Christian Democracy Party and her recent conversion to Christianity. It is well-settled that such a change in personal circumstances does not excuse the time limit for filing a motion to reopen. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005).
While Zheng asserts in her brief to this Court that she demonstrated changed *736country conditions, she made no such argument before the BIA. We decline to consider her unexhausted argument in the first instance. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472270/
|
SUMMARY ORDER
Petitioner Nasiba Zokirjon Qizi Madaminova, a native and citizen of Uzbekistan, seeks review of a July 22, 2008 order of the BIA affirming the January 8, 2007 decision of Immigration Judge (“IJ”) Steven R. Abrams, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Nasiba Zokirjon Qizi Madaminova, No. A099 560 266 (B.I.A. Jul. 22, 2008), aff'g No. A099 560 266 (Immig. Ct. N.Y. City Jan. 8, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). This Court reviews the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
In this case, the IJ’s conclusory determination that the incidents Madaminova described “didn’t rise to the reasons for asylum” is insufficient to permit meaningful review. See Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir.2006). The IJ failed to identify the legal standard on which he relied in assessing whether the treatment Madaminova experienced constituted persecution. See id. Indeed, he failed to cite a single case in his decision.
Additionally, it is unclear whether the IJ considered the cumulative effect of Madaminova’s experiences as opposed to assessing them in isolation. See Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir.2005). The IJ stated that he was reviewing “whether or not these particular incidents in and of themselves would rise to the level for asylum as being past persecution,” concluding that “they d[id] not.” However, we have explained that an IJ errs where he “considers] each of the incidents separately without determining how they affected the significance of the other incidents.” Manzur, 494 F.3d at 290. Our concerns with the IJ’s decision are exacerbated because it appears he disregarded much of Madaminova’s claim. In his decision, the IJ stated that “[t]he fact that she was picked on in school because of her looks, was one issue that she had; the fact that she was even attempted physical assault, even while she was in medical school, she had a professor who tried to take advantage of her sexually, but she stood her ground. On all of these occasions, nothing has ever happened to her since she has fought them off in all these matters, and has caused some injuries to her over a period of time.” Beyond the fact that this statement is difficult to parse, the IJ failed to acknowledge several additional incidents to which Madaminova testified, incidents that required her to seek medical treatment multiple times.
*738Thus, because the IJ failed to explain the standard he applied in evaluating whether Madaminova demonstrated past persecution, because he did not indicate that he evaluated the incidents she described cumulatively, and because he appears to have ignored some of those incidents, we find that his past persecution determination was erroneous. See Beskovic, 467 F.3d at 227.
Because a petitioner who has been found to have demonstrated past persecution is presumed to have a well-founded fear of persecution, 8 C.F.R. § 1208.13(b)(1), the Court cannot predict with confidence that the agency would reach the same conclusion absent its error. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.2006).
For the foregoing reasons, the petition for review is GRANTED, and the case REMANDED for further proceedings consistent with this Order. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472272/
|
SUMMARY ORDER
Petitioner Yong Jin Li, a native and citizen of the People’s Republic of China, seeks review of the BIA’s denial of his motion to reopen removal proceedings. In re Yong Jin Li, No. A095 467 025 (B.I.A. Nov. 6, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Li does not dispute the untimeliness of his June 2008 motion. See 8 C.F.R. § 1003.2(c)(2). Instead, he argues that the BIA erred by failing: (1) to recognize its authority to reopen his proceedings sua sponte, see id. § 1003.2(a); or (2) to state in its decision whether his motion fell within one of the exceptions to the applicable time limits, see id. § 1003.2(c)(3). Both arguments fail.
First, as Li recognizes, we lack jurisdiction to review the agency’s decision as to whether sua sponte reopening is appropriate in a particular case, see Ali v. Gonzales, 448 F.3d 515, 517-18 (2d Cir.2006), and we decline Li’s invitation to revisit that decision here given Li’s failure to raise an argument on this point before the BIA. Second, Li also failed to argue before the BIA that any of the § 1003.2(c)(3) exceptions applied to his motion, and he cites no authority for the proposition that the BIA was required to consider that issue on its own initiative. See generally United States v. GonzalezRoque, 301 F.3d 39, 47 (2d Cir.2002) (“Although the BIA has access to the entire record, it is not obligated to search it for possibly meritorious appellate issues.”).
Because we cannot conclude that the BIA abused its discretion in denying Li’s motion to reopen as untimely, we need not consider his additional arguments. His petition for review is DENIED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472274/
|
SUMMARY ORDER
Plaintiff-Appellant Saundra V. White, pro se, appeals from the district court’s sua sponte dismissal of her complaint pursuant to 28 U.S.C. § 1915(e)(2). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo the district court’s sua sponte dismissal under § 1915(e). See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir.2001). Private actors and institutions generally are not proper defendants to a 42 U.S.C. § 1983 action, because they do not act under color of state law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). However, a pri*741vate institution can be liable under § 1983 where “there is a sufficiently close nexus between the State and the challenged action of the [private institution] so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); see also Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396 F.3d 178, 187 (2d Cir.2005). Here, White fails to state a claim against the private defendants because her allegations of a nexus between the private defendants and the State are vague and conclusory, and fail to demonstrate that the actions of the defendants should be treated as state action. See Jackson, 419 U.S. at 351, 95 S.Ct. 449.
With respect to White’s claim against the United States, the district court correctly found that sovereign immunity barred relief against the federal government. Insofar as White’s pro se complaint could be liberally construed as raising a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, she failed to allege that she had exhausted her administrative remedies as required to state a claim under that statute. See 28 U.S.C. § 2675(a); Keene Corp. v. United States, 700 F.2d 836, 840 (2d Cir.1983).
White also purported to raise claims under 42 U.S.C. § 1985(3); Title VII of the Civil Rights Act, 42 U.S.C. § 2000e; and 42 U.S.C. § 2000d. White provided merely “conclusory, vague, or general allegations of conspiracy to deprive [her] of constitutional rights,” which are insufficient to support a claim under § 1985. Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983); see also Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir.2003). Moreover, Title VII applies only to employees, see Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 (2d Cir.2008), and White did not allege that she was an employee of a covered entity. Similarly, 42 U.S.C. § 2000d prohibits the exclusion of individuals from a federally funded program or activity on the basis of race, color, or national origin, and White failed to allege any such exclusion.
Lastly, the district court correctly determined that White failed to establish diversity jurisdiction, because the parties are not completely diverse. See 28 U.S.C. § 1332; E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 930 (2d Cir.1998). Both White and Crouse Irving Memorial Hospital are New York residents.
For the reasons stated above, the judgment of the district court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472276/
|
SUMMARY ORDER
Appellants Tyheem Keesh and Jesus Jova, pro se and incarcerated, appeal a judgment of the district court granting the Defendants’ motion for summary judgment and dismissing their 42 U.S.C. § 1983 complaint alleging violations of their rights under the First, Eighth, and Fourteenth Amendments, as well as the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. Appellants have also moved to expand the record on appeal to include two additional exhibits. In a separate per curiam opinion issued today, we address the Appellants’ RLUIPA claims. In this summary order, we review their other claims. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
As a preliminary matter, because the Appellants did not raise below their arguments that the Defendants violated their rights a) by refusing them access to Tulukeesh materials in preparation for a state court proceeding and b) by failing to adhere to N.D.N.Y. Local Rules 7.1(a)(1) and (2), we -will not consider these claims. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir.2005). Moreover, because Appellants do not challenge the district court’s dismissal of their equal protection claim under the Fourteenth Amendment, we deem that claim abandoned. See Lo-Sacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995).
The Appellants’ other claims of error are without merit. As an initial matter, Appellants’ argument that the district court erred by denying their motion to file a second amended complaint is unavailing, since the record shows that the court did not abuse its discretion in determining that the additional claims set forth in the proposed amended complaint were duplicative or barred by absolute immunity, or would unnecessarily delay the proceedings. See Patane v. Clark, 508 F.3d 106, 113 n. 6 (2d Cir.2007) (per curiam).
Regarding the Appellants’ free exercise claim, the Supreme Court has recognized that a prison regulation burdening a protected right will nonetheless withstand a constitutional challenge if the regulation is reasonably related to legitimate penological interests. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (citing Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). As to this claim, we must, therefore, consider: “(1) *744whether the practice asserted is religious in the person’s scheme of beliefs, and whether the belief is sincerely held; (2) whether the challenged practice of the prison officials infringes upon the religious belief; and (8) whether the challenged practice of the prison officials furthers, some legitimate penological objective.” Farid, v. Smith, 850 F.2d 917, 926 (2d Cir.1988).
Because the Defendants do not challenge the sincerity of the Appellants’ beliefs, and because the Defendants assume that their practices infringe on those beliefs, we, like the district court, need only consider whether those practices further some legitimate penological interest. A review of the record confirms the district court’s determination that all of the practices challenged by the Appellants promote the Defendants’ legitimate penological interests in maintaining institutional safety, security, and order, and therefore withstand the Appellants’ free exercise challenge. See O’Lone, 482 U.S. at 349, 107 S.Ct. 2400; Ford v. McGinnis, 352 F.3d 582, 595-96 (2d Cir.2003).
Appellants also argue that the challenged practices violated their rights under the Eighth Amendment. To set forth an Eighth Amendment claim, a plaintiff must show, inter alia, that the challenged conduct deprived him of the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); accord Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir.2002). There is no evidence in the record suggesting that the Defendants’ conduct even approached this high threshold. Hence, the district court properly dismissed this claim.
Lastly, the Appellants’ argument that the Defendants retaliated against them based on their religious practice is unavailing. To show retaliation, an incarcerated plaintiff must demonstrate that his constitutionally protected conduct was a substantial or motivating factor for a prison official’s adverse action. See Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003). Here, the record confirms a) that the Defendants’ initiation of disciplinary proceedings against the Appellants and the searches of their cells were in direct response to Keesh’s attempted proselytization of other inmates, and b) that such proselytizing was in contradiction of explicit prison regulations. Thus, the district court properly dismissed this claim.1
We have considered all of the Appellants’ remaining claims and find them to be without merit. The district court’s judgment with respect to all of the Appellants’ claims, except their RLUIPA claims, is hereby AFFIRMED.
. Because the exhibits identified by the Appellants are not material to their claims, and because Appellants fail to identify any extraordinary circumstances warranting their consideration, Appellants’ motion to expand the record dated January 16, 2009 is hereby DENIED. See Fed. R.App. P. 10(a).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472285/
|
OPINION
PER CURIAM.
Geoffrey Atwell appeals the District Court’s order granting appellees’ motion to dismiss his complaint. For the reasons below, we will affirm.
The procedural history of this case and the details of Atwell’s claims are well known to the parties and need not be discussed at length. Briefly, Atwell filed a complaint pursuant to 42 U.S.C. § 1983 alleging that appellees failed to investigate his claims that he was being held past the expiration of his maximum sentence. The District Court concluded that Atwell’s claims were barred by Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and by the statute of limitations. Atwell filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291. We need not address whether the complaint is barred by Heck because we agree with the District Court that it was untimely. 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. A cause of action accrues when the plaintiff knows or has reason to know of the injury that constitutes the basis of the cause of action. Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir.1998).
Atwell argues that his sentence should have expired on October 19, 2002. In his opposition to the appellees’ motion to dismiss, Atwell argued that his complaint was timely because he had to exhaust the prison administrative grievance process. In a grievance response dated January 9, 2003, a prison official explained the calculation of the sentences and informed Atwell that the maximum expiration date of his sentences was May 22, 2004. The Acting Chief Grievance Coordinator denied the final review of that grievance on June 20, 2003. *754Thus, by June 2003, Atwell had finished exhausting his administrative remedies and knew that prison officials had calculated the maximum expiration date of his sentences to be May 22, 2004. His complaint, postmarked on May 20, 2006, was filed beyond the two-year statute of limitations.
Atwell argues that his complaint was timely filed within two years of his release from prison on May 22, 2004. Because Atwell knew of his alleged injury at the time it was inflicted, the continuing wrong theory does not apply. See Barnes v. American Tobacco Co., 161 F.3d 127, 154 (3d Cir.1998) (“We understand Fowkes[v. Pennsylvania R.R. Co., 264 F.2d 397 (3d Cir.1959) ] to mean that continuing conduct of defendant will not stop the ticking of the limitations clock begun when plaintiff obtained requisite information. On discovering an injury and its cause, a claimant must choose to sue or forego that remedy.”) (quoting Kichline v. Consolidated Rail Corp., 800 F.2d 356, 360 (3d Cir.1986)).
Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472288/
|
OPINION
PER CURIAM.
This case arises from a dispute between the Appellants, Mark and Andrea Newton, and their landlord, Brian Mizell. The dispute began when, in October 2004, Essex County declared the Newtons’s apartment uninhabitable. At that time, County officials informed Mizell that the Newtons would not be required to pay rent until he cured the defects in their apartment. According to the Newtons, Mizell refused to cure the defects, and instead attempted to evict them. As a result, the Newtons initiated an action in the New Jersey Superior Court seeking to enjoin the eviction. After several months of litigation in the Superior Court and Appellate Division, the Newtons were ordered to leave the apartment and to reimburse Mizell for several months of rent.
Soon thereafter, on February 2, 2009, the Newtons filed a civil rights complaint against Mizell in the United States District Court for the District of New Jersey. In the complaint, the Newtons alleged that: (1) the New Jersey Superior Court lacked jurisdiction over the eviction action because Mizell never filed a complaint in that court; (2) the Superior Court violated their due process rights and “disregarded all the New Jersey Statutes, Court rules, and applicable case law” by evicting them despite the absence of a complaint; (3) the Superior Court abused its discretion by refusing to vacate its eviction order even though the Newtons never received notice of the eviction hearing; (4) this Court should vacate the Superior Court’s order directing the Newtons to pay rent to Mizell because he purposefully refused to provide them with “safe and decent housing;” (5) the state court erred in increasing the rent at the apartment by $150.00; and (6) the Superior Court erred by refusing to allow the Newtons’s security deposit to be counted toward the overdue rent. (Brief in Support of Compl., Dkt. # 1-6.)
Upon review of these allegations, the District Court determined that the Newtons were essentially seeking appellate review of the state courts’ decisions, and dismissed the complaint for lack of subject-matter jurisdiction. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483-84, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). This appeal followed.1
We agree with the District Court that it lacked jurisdiction over the complaint pursuant to the Rooker-Feldman doctrine. As the Supreme Court has made clear, the doctrine bars “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced[,] and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Based on our careful review of the complaint and the Newtons’s brief in *756support thereof, we agree with the District Court that this case falls within the narrow class of cases barred by this doctrine.
Accordingly, we will summarily affirm the District Court’s order. See Third Cir. LAR 27.4 and I.O.P. 10.6.
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472289/
|
OPINION
PER CURIAM.
Joseph Zemba, a federal prisoner proceeding pro se, appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his petition for a writ of audita querela. We ■will affirm the District Court’s order.
In 2001, Zemba was convicted of possession of a firearm by a convicted felon. The sentencing court determined that Zemba was an armed career criminal subject to the enhanced penalty provisions of 18 U.S.C. § 924(e). Zemba was sentenced to a term of 293 months in prison. In 2003, we affirmed the judgment of conviction, and the United States Supreme Court denied Zemba’s petition for a writ of certiorari. In 2007, the District Court denied Zemba’s motion to vacate his sentence pursuant to 28 U.S.C. § 2255.
Zemba then challenged his sentence under the All Writs Act, 28 U.S.C. § 1651, by filing a petition for a writ of audita querela *757in District Court. Zemba argued that his sentence is invalid under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), which limited the materials a district court may consider in determining whether prior convictions subject a defendant to an enhanced sentence. In a supplemental filing, Zemba challenged his sentence on Second Amendment grounds. The District Court dismissed Zemba’s petition, and this appeal followed.
“The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute.” Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985). “Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Id. While the writ of audita querela has been abolished in civil cases, see Fed.R.Civ.P. 60(e), the writ is available in criminal cases to the extent that it fills in gaps in the current system of post-conviction relief. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir.2005); United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir.2001). See also United States v. Richter, 510 F.3d 103, 104 (2d Cir.2007) (stating that the writ is probably available where there is a legal objection to a conviction that has arisen after the conviction and that is not redressable pursuant to another post-conviction remedy).
A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the means to collaterally challenge a federal conviction or sentence. The District Court correctly held that Zemba may not seek relief via a petition for a writ of audita querela because his claims are cognizable under § 2255. There is no gap to fill in the post-conviction remedies.1 Zemba may not seek relief through a petition for a writ of audita querela on the basis of his inability to satisfy the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) for filing a second or successive § 2255 motion to vacate sentence. See Valdez-Pacheco, 237 F.3d at 1080 (noting that a “prisoner may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the post-conviction remedies that must be filled by the common law writs.”). See also United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir.2000) (per curiam) (stating that a prisoner may not resort to a writ of coram nobis merely because he cannot meet AEDPA’s gatekeeping requirements).2
Accordingly, because this appeal does not present a substantial question, we will affirm the District Court’s order.
. In the rare case that § 2255 is “inadequate or ineffective” because some limitation of scope or procedure would prevent a § 2255 proceeding from affording a full hearing and adjudication of a claim, a federal prisoner may seek relief via 28 U.S.C. § 2241. Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002) (per curiam). See also In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). This is not the case here.
. Kessack v. United States, 2008 WL 189679 (W.D.Wash. Jan. 18, 2008), an unpublished decision relied upon by Zemba, is not persuasive. As noted by the District Court, although Kessack suggests that the writ of audita querela may fill a gap in § 2255 where a case does not apply retroactively on collateral review, the retroactivity of the rule relied upon by a prisoner is one of § 2255’s valid gatekeeping requirements. We also note that Kessack presented equal protection considerations not present here.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472295/
|
*762OPINION
PER CURIAM.
Appellant Nathaniel Lawson seeks review of the District Court’s order dismissing his case for lack of subject matter jurisdiction. We conclude that the appeal does not present a substantial question and will summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
In December 2005, the City of Newark (“the City”) filed a state law ejectment action against Nate’s Transportation, Inc.,1 concerning the company’s allegedly unlawful use of City property. The New Jersey Superior Court granted summary judgment in the City’s favor and the Appellate Division affirmed. Lawson filed a “notice of removal” in the United States District Court for the District of New Jersey. In this pleading, Lawson raised claims concerning the validity of an alleged lease to use the City property at issue in the state court proceedings, and sought review of the New Jersey courts’ decisions.
The City moved to remand under 28 U.S.C. § 1447(c) or, in the alternative, to dismiss the action under Fed.R.Civ.P. 12(b)(1). The District Court determined that removal would be futile because the state proceedings had concluded. It therefore construed the removal notice as a new complaint and concluded that it lacked subject matter jurisdiction over it. Accordingly, on February 3, 2009, the District Court entered an opinion and order dismissing the action with prejudice. Lawson then filed a document entitled “reconsideration and reverse order,” which the District Court construed as a motion for reconsideration. On March 5, 2009, the District Court denied reconsideration. This pro se appeal followed.
II.
We have jurisdiction under 28 U.S.C. § 1291.2 We exercise de novo review over the District Court’s order dismissing Lawson’s case for lack of subject matter jurisdiction. See Met. Life Ins. Co. v. Price, 501 F.3d 271, 275 (3d Cir.2007). We may summarily affirm if this appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
Because the state court proceedings had already concluded by the time Lawson filed his notice of appeal, removal was not appropriate. See 28 U.S.C. § 1441(a) (for removal, the state court action must be “pending”); § 1446(a) (same). Generally, in a case that has been improperly removed, the District Court will remand the matter to state court, see 28 U.S.C. § 1447, and remand decisions are not typically renewable on appeal. See 28 *763U.S.C. § 1447(d); In re FMC Corp. Packaging Sys. Div., 208 F.3d 445, 448 (3d Cir.2000). However, because there was no pending state court action capable of remand, we find no error in the District Court’s decision to construe Lawson’s pro se notice of removal as a complaint initiating a new federal action.
Federal district courts have subject matter jurisdiction over civil actions that arise (1) under the Constitution, laws or treaties of the United States (ie., federal question jurisdiction), or (2) between citizens of different states where the matter in controversy exceeds $75,000 (ie., diversity jurisdiction). 28 U.S.C. §§ 1331, 1332. For purposes of federal question jurisdiction, a claim arises under federal law if it is apparent from the face of the complaint that the cause of action was created by federal law. See Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 353 (3d Cir.1995). For diversity jurisdiction, a complainant must plead that he is a citizen of a particular state and that the defendants are citizens of a different state or states. See 5 Wright & Miller, Fed. Prac. & Proc. Civ.3d § 1208; see also, e.g., Schultz v. Catty, 528 F.2d 470, 472-73 (3d Cir.1975). In his initial pleading in the District Court, Lawson raised state law claims concerning the validity of a lease agreement with the City, and he disputed the state court judgments issued in the City’s favor. Even affording his pro se pleading a liberal construction, see Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003), Lawson did not raise any federal question for purposes of § 1331. Moreover, according to Lawson’s pleading, he is a citizen of the state of New Jersey. Because the City of Newark is not a citizen of a different state, Lawson did not plead diversity of citizenship for purposes of § 1332. Accordingly, Lawson did not successfully invoke the District Court’s subject matter jurisdiction.
III.
The District Court properly dismissed this matter for lack of subject matter jurisdiction. We have reviewed the record and conclude that there is no substantial question to be presented on appeal. Accordingly, we will grant the City’s motion for summary affirmance and will summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. Lawson’s motions for summary judgment and to supplement the District Court record are denied.
. Lawson is president of Nate's Transportation, Inc. Because only Lawson has appealed the District Court’s decision, this opinion will refer to Lawson.
. Lawson filed his notice of appeal more than 30 days after the District Court’s March 5, 2009, order disposing of his motion for reconsideration. See Fed. R.App. P. 4(a)(4)(A). However, the District Court’s prior February 3, 2009, order dismissing Lawson’s case was not “set out in a separate document’’ as required by Fed.R.Civ.P. 58(a). See In re Cendant Corp. Sec. Litig., 454 F.3d 235, 241 (3d Cir.2006). As a result, for purposes of filing an appeal, judgment was not formally entered until 150 days after the February 3, 2009, order. See Fed.R.Civ.P. 58(c)(2)(B); LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 224-25 (3d Cir.2007). Lawson filed his pro se notice of appeal sixty-nine days after the District Court's dismissal order, and thus prior to the formal entry of judgment. The notice of appeal was timely filed, and the fact that Lawson appealed before the formal entry of judgment does not prevent us from entertaining the appeal. See LeBoon, 503 F.3d at 224, n. 5; Fed. R.App. P. 4(a)(2), 4(a)(7)(B).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472297/
|
OPINION
PER CURIAM.
T. Barry Gray appeals the District Court’s order denying his motion to proceed informa pauperis and remanding his civil action to the Court of Common Pleas of Delaware County. We will affirm in part, reverse in part, and remand the matter.
In June 2008, Gray filed a motion to proceed in forma pauperis with a caption listing himself as a defendant and TCIF REO CIT, LLC as plaintiff. He did not describe any claims he wished to bring or explain whether he was attempting to remove an action from state court. The District Court denied Gray’s motion to proceed in forma pauperis and dismissed the action for lack of subject-matter jurisdiction. On appeal, we vacated the District Court’s order and remanded the matter for the District Court to determine whether Gray was financially eligible to proceed in forma pauperis and to give Gray an opportunity to state the legal and factual basis for the action.
*765On remand, the District Court directed Gray to provide a statement of the basis for federal jurisdiction. Gray argued that the District Court had jurisdiction under 28 U.S.C. §§ 1331, 1332, 1367, 1441(a), 1441(b), 1443, and 1446 and that the action could be removed to the District Court under §§ 1332, 1441(a), 1441(b), 1441(c), 1443, and 1446. He explained that the action was a ejectment civil suit in which Appellee alleged that Gray did not have the right to possess a piece of real property; Gray argued that removal under § 1443 was justified because his Fourteenth Amendment rights were being violated.
After describing Gray’s prior attempts to challenge state foreclosure proceedings, the District Court concluded that it lacked jurisdiction over the removed action under the doctrine of Rooker-Feldman1 and that abstention was appropriate under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The District Court remanded the matter to the Court of Common Pleas of Delaware County, and Gray filed a timely notice of appeal.
Denial of motion to proceed informa pauperis
We first address the District Court’s denial of Gray’s motion to proceed in forma pauperis. The District Court denied the motion on the grounds that there was no basis upon which Gray could obtain relief. We review the denial of a motion to proceed in forma pauperis for abuse of discretion. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 337, 69 S.Ct. 85, 93 L.Ed. 43 (1948); Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir.1983). However, if the application is complete, the District Court should only consider whether the applicant is economically eligible to proceed in forma pauperis. Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir.1976). It is only after leave to proceed in forma pauperis has been granted that the analysis under 28 U.S.C. § 1915(e)(2)(B) is undertaken and a complaint may be dismissed as frivolous. See Deutsch v. United States, 67 F.3d 1080, 1085 n. 5 (3d Cir.1995); Roman v. Jeffes, 904 F.2d 192,194 n. 1 (3d Cir.1990). Thus, we again conclude that the District Court abused its discretion in denying the motion to proceed in forma pauperis on the grounds that Gray was not entitled to relief in federal court.
In his motion to proceed in forma pauperis filed in the District Court, Gray indicated that his income was approximately $741 per month and he was unable to meet his obligations for food, utilities, and medical needs. We believe that Gray is entitled to proceed in forma pauperis and will reverse the District Court’s order to the extent that it denied Gray’s motion to proceed in forma pauperis. We will remand the matter to the District Court for it to enter an order granting Gray’s motion to proceed informa pauperis.
Remand to the state court
An order remanding a case to the state court from which it was removed is generally not appealable. 28 U.S.C. § 1447(d). One exception is when the removal is based on 28 U.S.C. § 1443. Because Gray invoked § 1443, we have jurisdiction to review the District Court’s remand order to the extent that it denied removal pursuant to § 1443.
Section 1443(1) provides that an action may be removed if it is “[ajgainst any person who is denied or cannot enforce in the courts of such State a right under any *766law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.” We have held that the civil rights removal statute is a narrow exception to the rule that state court actions may be removed to federal district court only if federal jurisdiction is evident on the face of plaintiffs well-pleaded complaint. See Davis v. Glanton, 107 F.3d 1044 (3d Cir.1997). The Supreme Court has articulated the precise circumstances required to sustain removal under § 1443(1), clarifying that removal requires satisfaction of a two-prong test: a state court defendant must demonstrate both (1) that he is being deprived of rights guaranteed by a federal law “providing for ... equal civil rights; and (2) that he is “denied or cannot enforce that right in the courts” of the state. State of Georgia v. Rachel, 384 U.S. 780, 788, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966).
In the District Court and on appeal, Gray argues only that his Fourteenth Amendment rights have been violated. This conclusory allegation is insufficient to support removal under § 1443. Because we find § 1443 inapplicable, Gray is not entitled to any further review of the District Court’s order of removal.
Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm the District Court’s order as to the denial of removal, summarily reverse the District Court’s order as to its denial of the infovma pauperis motion, and remand the matter for the District Court to enter an order granting Gray’s motion to proceed in forma pauperis. See Third Circuit I.O.P. 10.6.
. The Rooker-Feldman doctrine deprives a District Court of jurisdiction to review, directly or indirectly, a state court adjudication. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472299/
|
OPINION
AMBRO, Circuit Judge.
In 2007, Luis and Deborah Munoz obtained a jury verdict against the City of Philadelphia and the Philadelphia Redevelopment Authority (collectively, the “City”). The basis of the Munozes’s suit was their assertion that the City’s failure to provide them with timely notice of its intention to condemn their property caused their business to fail, in addition to causing them various emotional harms associated with the loss of their business. The City now seeks reversal of the District Court’s denial of its post-trial motion for judgment as a matter of law.1 Because we are convinced the evidence was insufficient to allow the jury to find that the alleged lack of notice caused the damages alleged, we reverse the District Court and grant the City judgment as a matter of law.
I.
In August 2001, the Munozes invested their life savings and pledged their home as collateral to buy Nino’s Farmer’s Market in Philadelphia’s Juniata section for $1 million.2 Revenues fell by more than 50% in the first year after the Munozes bought the market, they stopped paying their mortgage in July 2002, and the business closed in April 2004, having never turned a profit. The Munozes filed for bankruptcy *768in May of that year and lost both the market and their home to satisfy creditors.
Shortly after the Munozes bought the market, rumors spread that it would be closed by the City of Philadelphia as part of a redevelopment plan, but it took years for the Munozes to receive confirmation from the City. Starting in the spring of 2002, Deborah Munoz failed in attempts to get confirmation from her Councilman, Rick Mariano, or the City Planning Commission. In August and September 2003, the Munozes met with Steve Culbertson, Executive Director of Frankford Community Development Corporation (FCDC), to whom Deborah Munoz had been referred by the City Planning Commission, but failed to get confirmation from him as well. The Munozes first learned from the City that it was considering condemning their property in March 2004, the month before the market closed. Because they lost the market to creditors before the City had a chance formally to condemn it, they never received compensation from the City.
Condemnation in Philadelphia is a multistep process. The City Planning Commission designates the target area as “blighted” and the Philadelphia Redevelopment Authority (“RDA”) then prepares a proposal for redevelopment. The City Council passes an ordinance approving the proposal. The RDA then finalizes the list of properties that must be seized, offers compensation to owners, and declares a taking on those properties whose owners refuse to sell.
FCDC, a non-profit housing developer, started trying to create federally funded housing in the neighborhood in May 2002. By September 2002, FCDC, City, and Commonwealth officials appear to have identified the farmer’s market as an important part of the redevelopment area. That month, the City Planning Commission issued a blight certification that included the market. When the RDA’s redevelopment proposal left the market out of the plan, Culbertson pushed to add it, receiving some indication in April 2003 from Mariano that it would be included. But at his meetings with the Munozes, Culbertson did not tell them that he had been pushing to condemn their market.
In March 2004, the RDA added the farmer’s market to the redevelopment area and gave the Munozes their first official indication that the market might be condemned. The City Council notified them in May that it would vote on the plan and passed it in June. A week later, the RDA sent a “Notice of Interest” to the Munozes stating that it was “considering” acquiring their property. In May 2004, the Munozes filed for bankruptcy.
In 2005, the Munozes brought a 42 U.S.C. § 1983 action against the City, the RDA, and the FCDC, arguing that they forced the market out of business in order to avoid having to compensate the Munozes for it. They alleged that the City accomplished this de facto taking by delaying formal steps to acquire property in the redevelopment area while using the FCDC to spread rumors about the redevelopment that killed the business. According to the Munozes, rumors that the City would take the farmer’s market caused customers to boycott it either because they preferred not to shop at a moribund store or because they disapproved of the Munozes, thinking that they were speculators who purchased the market to flip it to the City for a profit.3 The complaint included a claim that 42 U.S.C. § 4625(a), a part of the Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA), required the City to provide the Munozes *769with timely notice of its plans and an offer of just compensation.
The District Court dismissed the Munozes’ takings and due process claims (they had not exhausted state court remedies), and threw out the part of their URA claim based on the requirement of a timely offer of just compensation (the Court concluded that the URA provides no private right of action to vindicate that requirement).4 Only the Munozes’s URA timeliness claim remained.5 The Munozes could no longer win by showing that rumors created by the City killed their business. They now had to show that lack of timely notice of the redevelopment plan did so. The Munozes persevered and a jury concluded that notice was untimely, awarding them $497,230 ($379,230 for the decrease in the value of the business caused by lack of notice, $68,000 for relocation of the business, and $50,000 for emotional distress). Following the verdict, the City moved for judgment as a matter of law on multiple grounds. The District Court eliminated the award of relocation expenses because the Munozes never actually relocated the market, but otherwise rejected the City’s arguments. The City timely appealed.
II.
The City challenges the jury verdict against it on three independent grounds. It argues that (1) neither 42 U.S.C. § 4625(a), nor its implementing regulation, 49 C.F.R. § 24.203, creates a private right to notice that may be enforced via § 1983; (2) the notice provided here was not untimely under § 4625(a); and (3) the evidence was insufficient to show that the Munozes’s damages were actually caused by the alleged lack of timely notice. Because we agree that there was not minimally sufficient evidence to prove causation, we do not reach the City’s other two arguments on appeal.6
We exercise plenary review of the District Court’s denial of the City’s post-trial motion for judgment as a matter of law. CGB Occupational Therapy v. RHA Health Services, 357 F.3d 375, 383 (3d Cir.2004). In doing so, we review the District Court’s conclusions of law de novo and ask whether there is enough evidence to support the verdict. A small amount is enough, but “[although judgment as a matter of law should be granted sparingly, more than a scintilla of evidence is needed to sustain a verdict.” Id. (internal quotations omitted).
Though we are wary of overturning jury verdicts, we reluctantly reverse the District Court because there is no evidence of causation. The Munozes argued that 42 U.S.C. § 4625(a) and its associated regulation, 49 C.F.R. § 24.203, required the City *770to notify them of the redevelopment plans when City and Commonwealth officials discussed taking the farmer’s market in September 2002 or April 2003 (long before the City first communicated with the Munozes in March 2004). The jury was charged with deciding whether the notice provided was timely, and, if not, what damages, if any, are attributable to the lack of timely notice. It found that notice was untimely and the untimeliness was responsible for about two-thirds of the decline in value of the business as well as various emotional damages tied up with the loss of the business.
But the jury verdict falls if the Munozes did not show minimally sufficient evidence that untimely notice caused the drop in the value of their business. This is because, in general, they must prove that a violation of federal law (i.e., the URA notice requirement) caused their injuries before they can recover from the violator under § 1983. See Smith v. Wade, 461 U.S. 30, 34, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (looking to modern and 1871 common law of torts for guidance in applying § 1983); 1 Dan B. Dobbs, The Law of Torts 405 (2001) (discussing requirement of factual causation); Fairbanks v. Kerr, 70 Pa. 86 (1871) (same).
The Munozes sought to show causation by alleging that the uncertainty created by lack of notice prevented them from taking action to save them investment in their dying business. They allege that, with timely notice, they would have either-moved their money out of the business (i.e., sold the business and invested their money elsewhere, perhaps in another market at a different location) or further leveraged it (i.e., borrowed more to improve the business).
What constitutes enough evidence for a jury to find causation ultimately depends on how much elaboration and substantiation a court needs before it feels comfortable letting a jury decide whether causation exists. If a court thinks that an alleged link between breach and injury is not minimally substantiated, it will require a plaintiff to identify more steps in the causal chain through which breach led to injury and to provide evidence to substantiate each step. The lightest burden requires a plaintiff to show only that injury followed breach. A heavy burden requires a plaintiff to allege numerous links in a causal chain and to produce evidence of correlation for each link.
We do not think that the likelihood that the Munozes’ investment in the business would be injured because of uncertainty is so self-evident that no amount of elaboration and substantiation was required. The Munozes had to provide some amount of evidence supporting their account. This they did not do. They provided only their own testimony that they would and could have moved, sold, or leveraged their business if they had timely notice under the URA. They provided no account of why uncertainty prevented them taking such actions and no evidence suggesting that such actions would have mitigated the decline in value of their business. There is no evidence, even anecdotal,7 relating to the likelihood that additional investment in the business would lure back customers boycotting the store after the City confirmed that it was considering taking it.8 *771There is also no evidence, even anecdotal, relating to the likelihood that the Munozes would have found a profitable alternative location for the market or a buyer willing to pay their price after the City confirmed that it was considering taking the market. Without such evidence, we believe that the District Court should not have allowed the jury to decide causation.
This conclusion requires vacating not only the jury’s award of damages for the loss of value of the Munozes’s business, but also its award of damages for emotional distress.9 The Munozes sought compensation for the emotional distress brought on by their inability to save their business (and the investment they poured into it). Because there was insufficient evidence to support a finding that the lack of notice caused the decline of the business, there was also insufficient evidence to find that the lack of notice itself caused the emotional distress of which the Munozes complained.
We repeat our reluctance to reverse a jury verdict. Doing so in this case, where the jury found in favor of sympathetic plaintiffs who suffered greatly from the collapse of their business, is especially difficult. But we can find nothing in the record to support the conclusion that the mere failure of the City to confirm its plans drove down the revenues of the Munozes’ business. We note, however, that the question whether lack of notice caused the business to collapse is distinct from whether the City ought to have paid just compensation to the Munozes under a de facto takings theory. Now that they have apparently exhausted their state remedies, the Munozes may still prevail on their takings claims should they refile in federal court.10
For these reasons, we reverse the District Court’s denial of the City’s post-trial motion for judgment as a matter of law and grant it judgment as a matter of law.11
. The District Court had jurisdiction under 28 U.S.C. § 1331 and, alternatively, 28 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291.
. They formed General Farmer’s Market, Inc., to run the business.
. The City alleged that sabotage by the prior owner, Luis Munoz’s illness, and other factors, not rumors about the redevelopment, destroyed the business.
. The Munozes pursued their takings claims in state court and lost because they could not show causation. The Court of Common Pleas found that the value of the business declined independently of the proposed condemnation. Munoz v. Philadelphia, No. 2621, slip op. (C.P.Phila.Co. Mar. 26, 2007), aff'd, Munoz v. Philadelphia, No. 806 CD 2007, slip op. (Pa. Commw.Ct. Apr. 30, 2008). Having exhausted state remedies, the Munozes are contemplating bringing their takings claims again in federal court.
. At the close of evidence, the District Court dismissed the FCDC because it was not a state actor.
. We highly doubt whether, in light of Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), 42 U.S.C. § 4625(a) does create a private right enforceable under § 1983. Nonetheless, because we believe that, even if the statute were to create such a right, the Munozes could not show that the City’s alleged violation of that right caused the damages they assert, we avoid that more difficult question and decide the case purely on the issue of causation.
. The testimony of Luis Munoz that he had friends willing to provide more financing for the business is perhaps a scintilla of evidence in support of the claim that the Munozes could have invested more in the business. It is not evidence of the likelihood that additional investment would have forestalled their losses.
. It should be noted that, if we accept the Munozes's claims that customers boycotted the business because they did not want to shop at a failing market or thought the Munozes were speculators, confirmation that the City was in fact considering taking the business could not in itself have removed the boycotters' concerns and probably would have strengthened them.
.The Munozes contend that “[t]he City ... ha[s] not challenged on appeal the ... proof of emotional distress damages.” Munozes's Br. at 41 n. 6. By this, we take them to mean that the City has not renewed the argument— initially made in its post-trial motion for judgment as a matter of law — that, because the Munozes put forth no evidence to support their claims of emotional distress other than their own testimony, that portion of the award should be set aside even if the award for loss of value of the business is allowed to stand. There is no suggestion — nor could there be plausibly — that the City waived its right to challenge the damages for emotional distress on the general ground that the evidence was insufficient to show that lack of timely notice caused any of the damages asserted. Thus, waiver does not come into play.
. We express no view as to the viability of such a claim.
. In addition, we deny the motion of the Munozes to add items from their state takings proceeding to the Appendix or to strike portions of the Appendix and the City’s brief containing items from that proceeding. The record of a related state case is a proper object of judicial notice. See, e.g., Lumen Const. v. Brant Const., 780 F.2d 691, 697 (7th Cir.1985) (’’[Ajppellants included extensive references to the state court proceedings in their own briefs and appendix. [T]he official record of the parallel state case is a proper object for judicial notice.”). We were at liberty to consult the materials the Munozes wished to add to the Appendix.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472301/
|
OPINION
SMITH, Circuit Judge.
“This is a tragic case.” That is how the District Court opinion which we now review begins, and that is how we begin as well.
Tondalia Cliett, in her own right and as administratrix of her son’s estate, filed a wrongful death and survival action against the City of Ocean City, New Jersey, in September of 2006. In November of 2006, the City moved to dismiss, asserting that Cliett’s complaint should be dismissed because she failed to file the Notice of Claim required by the New Jersey Tort Claims Act, N.J. Stat. Ann. §§ 59:8-3, 59:8-8. The District Court converted the Rule 12(b)(6) motion into a motion for summary judgment, then granted the motion in favor of the City. Cliett filed a timely motion for reconsideration. Cliett voluntarily withdrew her motion for reconsideration after eight months, however, and filed a Notice of Appeal challenging the District Court’s dismissal of her complaint. We dismissed as untimely Cliett’s appeal, which had been filed more than thirty days after the District Court’s final order. Almost two months later, on September 12, 2008, Cliett filed a motion to reinstate the previously withdrawn motion for reconsid*773eration so that the District Court could “make a final ruling prior to appeal.” The District Court denied the motion to reinstate on November 13, 2008. The Court stated that “[Cliett] cannot now ‘reinstate’ that motion, but would instead be required to file a new motion for reconsideration.” The Court observed such a motion would be untimely and that “untimeliness ‘alone is sufficient grounds to deny the ... motion.’ ”
This timely appeal followed.1 Cliett contends that the District Court erred by (1) dismissing her complaint in August of 2007; and (2) declining in November of 2008 to reinstate the motion for reconsideration, which she had voluntarily withdrawn.
Because Cliett’s motion for reinstatement did not seek relief under a specific Federal Rule of Civil Procedure, and mindful that Federal Rules of Civil Procedure 59 and 60 govern the opening of final judgments, we consider whether the motion for reinstatement should have been characterized as a motion for relief thereunder.
Where, as here, the motion is filed outside of the ten days provided for under Rule 59(e), but within the [time] permitted under Rule 60(b), and the motion may be read to include grounds cognizable under the latter rule, we will consider it to have been filed as a Rule 60(b) motion.
Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir.2002). Although the motion is bare-bones, we construe it as one for relief under the “catch-all provision in Rule 60(b)(6) that allows a court to relieve a party from a judgment for ‘any other reason that justifies relief aside from the more specific circumstances described in Rules 60(b)(1) — (5).” Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir.2008). “[A] party seeking Rule 60(b)(6) relief must demonstrate the existence of ‘extraordinary circumstances’ that justify reopening the judgment.” Id. at 255 (footnote omitted). We review the denial of relief under Rule 60(b)(6) for an abuse of discretion. Id. at 251.
The District Court did not abuse its discretion in denying reinstatement of the previously withdrawn motion for reconsideration. The motion for reinstatement was filed more than a year after the entry of final judgment, and the only ground asserted was that reinstatement of the action would allow the District Court to “make a final ruling prior to appeal.” Yet a final ruling had already been rendered in the August 24, 2007, 2007 WL 2459446, order granting summary judgment. In light of the dismissal of the untimely appeal in July of 2008, Cliett has not demonstrated extraordinary circumstances warranting relief under Rule 60(b)(6). We will affirm the order of the District Court denying the motion for reinstatement.
It is well settled that “an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Browder v. Dir. Dept. of Corrs. of Ill., 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); see also Smith v. Evans, 853 F.2d 155, 158 n. 1 (3d Cir.1988) (noting that the even though Rule 60(b) preserves the right to appeal, the appeal may bring up only the subject matter of the 60(b) motion and not the underlying case). Accordingly, even though the bulk of Cliett’s brief argues that the District Court’s grant of summary judgment in *774favor of the City was error, we lack jurisdiction to consider that issue.
. The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We exercise jurisdiction under 28 U.S.C. § 1291.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472304/
|
OPINION OF THE COURT
JORDAN, Circuit Judge.
Adel Guirguis appeals from the order of the United States District Court for the Eastern District of Pennsylvania dismissing his complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, we will affirm.
*775I. Background
Guirguis brought suit against his former employer, Movers Specialty Services, Inc. (“Movers”), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons.Stat. §§ 951-63.1 Guirguis, who is of Arab descent and a native of Egypt, contends that Movers terminated his employment on the basis of his national origin.2
Paragraphs 7 through 9 of the complaint, which read as follows, contain the entirety of Guirguis’s factual averments:
7. Plaintiff began working for the defendant in 2000 in the accounting department. Plaintiff was employed by the defendant from that day until February 14, 2006, when he was terminated by the defendant in violation of his civil rights.
8. Plaintiff is foreign born, is an Arab, having been born in Egypt on June 20,1947.
9. On February 14, 2006, plaintiff was terminated by the defendant in violation of his rights due to the fact he is Arab, due to his native origin, having been born in Egypt.
(App. at 11.)
Movers sought dismissal, charging that Guirguis had neglected to exhaust administrative remedies and that his complaint failed to state a claim upon which relief could be granted. Guirguis did not respond to the latter argument, and the District Court held that he had conceded Movers’ challenge by failing to say how his complaint made out a cognizable claim for relief. The Court nevertheless went on to review the substance of Guirguis’s allegations, determining that the complaint indeed lacked sufficient factual content to raise a plausible right to relief under the pleading standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The District Court thus dismissed the complaint and closed the case.3 Guirguis did not request an opportunity to file an amended complaint but filed two motions for reconsideration4 of the Court’s Rule 12(b)(6) ruling. The District Court denied both motions. This timely appeal followed.
II. Discussion5
Guirguis argues that the District Court erred when it dismissed his complaint, *776which he contends adequately stated a claim. He also claims that the Court committed error when it closed his case without sua sponte granting him leave to amend, which effectively dismissed his claims with prejudice.
A. Failure to State a Claim
We conduct a de novo review of a Rule 12(b)(6) dismissal of a complaint. See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To avoid dismissal, a complaint must set forth facts that raise a plausible inference that the defendant inflicted a legally cognizable harm upon the plaintiff. See Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Twombly, 550 U.S. at 556, 127 S.Ct. 1955; Phillips, 515 F.3d at 234.6 Conclusory allegations of liability do not suffice. See Iqbal, 129 S.Ct. at 1950 (opining that the federal pleading standard “marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions”).
A court confronted with a Rule 12(b)(6) motion must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the nonmovant. Gross v. German Found. Indus. Initiative, 549 F.3d 605, 610 (3d Cir.2008). Legal conclusions receive no such deference, and the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Although a plaintiff may use legal conclusions to provide the structure for the complaint, the pleading’s factual content must independently “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 129 S.Ct. at 1950; Wilkerson, 522 F.3d at 321-22.
Guirguis’s complaint fails to cross the threshold established by Twombly and Iqbal. It alleges that Guirguis is an Egyptian native of Arab descent, that Movers discharged him, and that his termination occurred in violation of his civil rights. The final allegation is precisely the type of factually unsupported legal conclusion that is inadequate to surmount a Rule 12(b)(6) challenge. The remaining averments contain no facts supporting an inference that Movers terminated Guirguis on the basis of his national origin. Indeed, the complaint never intimates in any way why Guirguis believes that national origin motivated Movers’ actions. In the absence of factual averments supporting his discrimination claims, the District Court properly found that Guirguis failed to raise a plausible right to relief under the pleading standard established by Twombly.7
*777B. Standing on the Complaint
Guirguis also contends that under Phillips the District Court should have granted him leave to amend his complaint sua sponte, before closing his case. We review for abuse of discretion the District Court’s failure to grant leave to amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). In Phillips, which presented a claim under 42 U.S.C. § 1983, we broadly instructed that “if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236. Prior to Phillips, however, we had limited this principle to cases arising under § 1983 and opined that “it is hardly error for a district court to enter final judgment after granting a Rule 12(b)(6) motion to dismiss when the plaintiff has not properly requested leave to amend its complaint.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.2007).
The interaction between Phillips and Fletcher-Harlee Corp. presents an interesting question but one that we need not resolve on this appeal. Guirguis filed two motions for reconsideration of the District Court’s Twombly holding, arguing that his complaint “is not insufficient in its allegations.” (Appellee’s Supplemental App. at 4, 9.) These motions never sought leave to amend and instead revealed an intent to stand on the complaint. See Frederico v. Home Depot, 507 F.3d 188, 192-93 (3d Cir.2007) (holding that a plaintiff elected to stand on her complaint by repeatedly asserting the validity of her averments and by failing to seek leave to amend following dismissal). Having expressed a desire to adhere to his pleading, Guirguis cannot persuasively ascribe error to the District Court for not providing him an unsolicited opportunity to amend his complaint.
III. Conclusion
Guirguis’s complaint contains only a factually unsupported averment of discrimination, and he clung to that version of his pleading. The District Court was thus correct to grant dismissal and did not abuse its discretion by not sua sponte affording him leave to amend. We will affirm the order dismissing his complaint, as *778well as the order denying reconsideration of the dismissal.
. The legal analysis governing Guirguis's PHRA claim is identical to that under Title VII, and the discussion that follows applies to both claims. See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 317 n. 3 (3d Cir.2000) ("The analysis required for adjudicating [plaintiff’s] claim under PHRA is identical to a Tille VII inquiry ..., and we therefore do not need to separately address her claim under the PHRA.”).
. The complaint alleges that Movers discriminated against Guirguis due to his "native origin,” which is not a defined class under Title VII. (App. at 11.) The District Court construed this averment as a disparate treatment claim on the basis of national origin. The parties do not contest that characterization.
. In light of its disposition, the District Court did not discuss the exhaustion issue.
. Guirguis filed the first motion on December 15, 2008 and an amended motion on December 22.
. The District Court exercised federal question jurisdiction over Guirguis’s Title VII claim under 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f) and supplemental jurisdiction over his PHRA claim under 28 U.S.C. § 1367. We have appellate jurisdiction over the final decision of the District Court under 28 U.S.C. § 1291.
. We have applied Twombly and Iqbal’s pleading requirements to employment discrimination claims, see Fowler v. UPMC Shadyside, 578 F.3d 203, 210-12 (3d Cir.2009); Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315, 322 (3d Cir.2008), but the quantum of facts that a discrimination complaint should contain may bear further development. This case, though, provides a poor vehicle for that task because Guirguis relies in large measure upon bare legal conclusions that would likely have been insufficient even under the pre-Twombly pleading standard. See, e.g., Papasan, 478 U.S. at 286, 106 S.Ct. 2932 (holding, prior to Twombly, that courts were not required to accept the truth of legal conclusions contained in a plaintiff’s complaint). They are certainly deficient in the post-Twombly era. Accordingly, we have no occasion in this case to address the character or weight of the factual allegations that a Title VII complaint must contain to survive a Rule 12(b)(6) motion to dismiss.
. Guirguis contends that Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), and our decision in Wilker*777son compel a contrary result. Swierkiewicz was decided pursuant to the pre-Twombly pleading standard of Conley v. Gibson, under which a complaint satisfied Rule 8 unless "it appeared] beyond doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). We have re-assessed Swierkiewicz in the wake of Twombly, Iqbal, and Phillips and have concluded “that because Conley has been specifically repudiated by both Twombly and Iqbal, so too has Swierkiewicz, at least insofar as it concerns pleading requirements and relies on Conley." Fowler, 578 F.3d at 211. Nevertheless, Swierkiewicz remains instructive because Guirguis's complaint contains significantly less factual content than the pleading at issue in that case. The Swierkiewicz plaintiff "detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination." 534 U.S. at 514, 122 S.Ct. 992. Guirguis’s complaint omits such information, bolstering our conclusion that his claims would not have survived under the pre-Twombly pleading regime. See supra note 6. Wilkerson also confirms the inadequacy of Guirguis's pleading. In Wilkerson, the plaintiff alleged that her employer instituted a ceremony in which participants worshiped their ancestors, that she objected to this ceremony due to her religious beliefs, and that her supervisor subsequently terminated her without explanation. 522 F.3d at 318, 322. Guirguis’s complaint contains no similar discussion supporting an inference that Movers acted with a forbidden motivation. The District Court correctly decided that the absence of context from the complaint warranted dismissal under Rule 12(b)(6).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472305/
|
OPINION OF THE COURT
PER CURIAM.
Ana Milena Serna-Garcia petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. We will grant her petition in part, deny it in part, and remand for further proceedings.
I.
Serna-Garcia is a native and citizen of Colombia. She arrived in the United States in 2001 without a valid entry document, and the Government instituted removal proceedings. Serna-Garcia concedes removability, but seeks asylum, statutory withholding of removal, and withholding of removal under the Convention Against Torture (“CAT”). SernaGarcia claims that she fears being kidnaped and tortured by the leftist guerilla revolutionary group known as the Fuerzas Armadas Revolucionarias de Colombia (“FARC”) on account of her imputed political opinion and membership in a particular social group.1
Serna-Garcia’s mother moved to the United States in 2000, leaving Serna-Garcia (then twenty years of age) to care for her four-year-old sister. Serna-Garcia also lived with her older brother. Their family is affluent, and they own three homes in Colombia and have wealthy relatives in the United States. Serna-Garcia claims that she fled to the United States after receiving approximately six threatening phone calls over a period of approximately six weeks. The callers did not identify themselves, but she believes them to be members of FARC. The callers demanded that she pay 15 million pesos and threatened that, if she refused, they would kidnap and otherwise harm her or her sister. Serna-Garcia believes that she was targeted for these threats because she is a single young woman of financial means.
Serna-Garcia testified to the foregoing at her hearing before the Immigration Judge (“IJ”). (A.153, 160-63.) She also acknowledged that, though she does not support FARC, she has never taken any action against it. (A.151.) The IJ acknowledged FARC’s pervasive use of kidnaping and extortion and found credible SernaGarcia’s testimony that FARC had threatened her. The IJ denied asylum and statutory withholding, however, because he concluded that those threats were motivated merely by FARC’s desire to fund its operations and not by any political opinion held by Serna-Garcia. The IJ also stated that wealth could not form the basis for a political asylum claim, though he never specifically addressed Serna-Garcia’s claim that she is a member of a particular social group. The IJ denied Serna-Garcia’s CAT claim on the sole basis that she had not shown any threat from the Colombian government (as opposed to FARC).
Serna-Garcia also testified about other circumstances, which the IJ found not to be credible. She testified that her brother is associated with FARC, that he is violent and has abused her, and that he once threatened to take their younger sister *780from her. (A.157-59.) Serna-Garcia did not present these allegations as an independent claim for relief, although the IJ appears to have believed she did. The IJ rejected her testimony about her brother because Serna-Garcia had not mentioned her brother during her airport or credible fear interviews and had provided no corroboration (for example, by calling her mother as a witness). Serna-Garcia also testified that, while she was in college, FARC members sometimes disrupted classrooms with guns and bombs and caused the school to close for a period of months. The IJ did not specifically reject this testimony, but dismissed it as an attempt to “interject ideology into this case,” which he rejected. Serna-Garcia appealed, and the BIA summarily affirmed. She now petitions for review.2
II.
We have jurisdiction under 8 U.S.C. § 1252. “Where, as here, the BIA affirms the IJ’s decision without opinion, we review the IJ’s decision as the final agency determination.” Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir.2008). In doing so, we review legal issues de novo, subject to established principles of deference, and review any factual determinations for substantial evidence, which means that we may not disturb them unless “ ‘any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 339-40 (3d Cir.2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). Under principles of agency review, we may not reach issues that the IJ did not address. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). Thus, if the IJ failed to address a claim or applied the wrong legal standard, we must remand for the BIA to address the claim or apply the proper standard in the first instance. See Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 291 (3d Cir.2007) (citing Ventura, 537 U.S. at 16, 123 S.Ct. 353)3 SernaGarcia raises essentially four arguments, which we will address in turn.
A. Asylum and Statutory Withholding of Removal
Each of Serna-Garcia’s first two arguments is addressed both to her claim for asylum and for statutory withholding of removal. Those forms of relief are available only to aliens who have been persecuted or face persecution on account of a statutorily-protected ground — i.e., “race, religion, nationality, membership in a particular social group, or political opinion[.]” See Gomez-Zuluaga, 527 F.3d at 340, 348. The IJ did not reach the issues of whether Serna-Garcia’s potential mistreatment rises to the level of persecution or whether she has a well-founded fear of persecution or showed it more likely than not to occur. See id. at 345, 348-49. Instead, he denied these claims on the sole basis that such mistreatment would not be “on account of’ any statutorily-protected ground.
Serna-Garcia argues that the IJ erred in two respects. First, she argues that the IJ erred because FARC in fact targeted her because of her imputed political opinion. The record, however, does not compel that conclusion.4 Asylum and withholding provide protection from “persecution on account of the victim’s political *781opinion, not the persecutor’s.” INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The opinion may be the victim’s actual opinion or one imputed to her by the persecutor. See Gomez-Zuluaga, 527 F.3d at 344. In either event, however, an applicant must provide evidence that her actual or imputed opinion is what motivates the persecutor. See id. at 343.
In this case, the IJ properly concluded that there is no evidence of record that FARC has targeted Serna-Garcia on account of her actual political opinions or any that FARC imputes to her. On the contrary, she acknowledges that she never took any action against FARC, and did not testify that the threatening telephone calls included any accusations about her affiliations or beliefs. Nor did she present any other evidence of political affiliation or activity.
Serna-Garcia nevertheless argues that FARC imputes a political opinion to her because it uses kidnaping to target “class enemies” for political reasons. The record does show that there is a political element to FARC’s use of kidnaping. (A.263, A.319, A.325.) FARC’s own political motivation, however, does' not mean that it imputes any political opinion to its targets generally or to Serna-Garcia in particular. See Elias-Zacarias, 502 U.S. at 482, 112 S.Ct. 812. See also Orejuela v. Gonzales, 423 F.3d 666, 674 (7th Cir.2005) (rejecting similar claim for this reason even though petitioner belonged to wealthy class unlikely to share FARC’s political opinions). Accordingly, the record does not compel the conclusion that FARC targeted SernaGarcia for her imputed political opinion.5
Second, Serna-Garcia argues that the IJ erred in failing to address whether she qualifies for asylum or withholding as a member of a particular social group. We agree. Serna-Garcia squarely presented a claim based on her membership in a potential social group to both the IJ and the BIA. She claims to belong to a social group composed of young, single women with financial means who are vulnerable to kidnaping and have been threatened by FARC. Cf. Gomez-Zuluaga, 527 F.3d at 345 (recognizing social group defined as “women who have escaped involuntary servitude after being abducted and confined by the FARC”); Orejuela, 423 F.3d at 672 (recognizing social group defined as “the educated, landowning class of cattle farmers targeted by FARC”). Neither the IJ nor the BIA, however, addressed whether that category qualifies as a particular social group or otherwise addressed this claim.6 Thus, as Serna-Gar*782cia argues, we must remand for the BIA to do so in the first instance. See Valdiviezo-Galdamez, 502 F.3d at 291.
B. The CAT Claim
Serna-Garcia next argues that the IJ applied the wrong legal standard in rejecting her CAT claim. We find that argument persuasive as well. This claim required Serna-Garcia to show both that “it is more likely than not that she will be tortured if removed to Colombia, and that such torture will occur with the consent or acquiescence of the [Colombian] government.” Gomez-Zuluaga, 527 F.3d at 349. The IJ did not reach the first of these issues. Instead, it rejected this claim on the sole basis that “the torture, if any, has to be by the government or the government’s agents and it is clearly [sic] the government’s agents are not the [FARC]. The fact that the government can’t control the [FARC] does not mean that the government is going to torture this women [sic].” (IJ Dec. at 14) (A.116).
That was not the proper standard at the time of the IJ’s decision, and is not the proper standard now. CAT provides relief from torture likely to be inflicted, not only by the government itself, but by others with the government’s consent or acquiescence. See Gomez-Zuluaga, 527 F.3d at 349-50 (citing 8 C.F.R. § 208.18(a)(1)). And, as we recently explained, acquiescence does not require that the government have even actual knowledge of the torture; instead, wilful blindness will suffice. See id. at 350. Accordingly, we will remand for the BIA to apply the proper standard to this claim. See id. at 350-51 (remanding for application of proper standard where IJ concluded merely that the petitioner had not shown that torture by FARC would occur “at the hands” of the Colombian government).7
C. Asserted Procedural Errors
Finally, Serna-Garcia argues that this case as a whole should be remanded for three procedural reasons. Although her arguments raise concerns, they do not warrant independent relief. First, SernaGarcia argues that the IJ denied her due process by taking over her examination at the hearing. It is true that the IJ repeatedly took over Serna-Garcia’s examination, both on direct and cross. SernaGarcia, however, does not claim that the IJ curtailed her ability to present evidence, cf. Kaita v. Att’y Gen., 522 F.3d 288, 301 (3d Cir.2008), and his conduct did not rise to the level of intemperance or apparent partiality that we have condemned in other cases, cf. Fiadjoe v. Att’y Gen., 411 F.3d 135, 154-57 (3d Cir.2005).8
*783Second, Serna-Garcia argues that the IJ’s decision reflects “confusion” regarding the proper asylum standard because it suggests (wrongly) that the absence of past persecution precludes a finding of future persecution. Although the IJ’s decision might be read to raise that suggestion, (IJ. Dec. at 14) (A.116), any error in that regard is harmless. Serna-Garcia did not claim before the Agency and does not claim before this Court that she suffered past persecution in Colombia, and that issue clearly played no role in the IJ’s rulings.
Finally, Serna-Garcia argues that the BIA abused its discretion in summarily affirming without addressing her “serious legal issues.” Although we have jurisdiction to review the BIA’s decision to affirm without opinion, and agree that a more thorough discussion would have been preferable, the BIA’s decision to summarily affirm means that the IJ’s decision is that of the Agency for purposes of our review. See Smriko v. Ashcroft, 387 F.3d 279, 296 & n. 11 (3d Cir.2004). Thus, because we can review the IJ’s decision directly, the BIA’s decision not to write its own opinion does not independently warrant relief under these circumstances. See id.
III.
Accordingly, we will grant the petition for review to the extent that it challenges the denial of Serna-Garcia’s claims for asylum and statutory withholding based on her claimed membership in a social group and her claim for relief under CAT. We will deny the remainder of the petition.
. We recently summarized FARC's role in the ongoing Colombian civil war in Gomez-Zuluaga v. Attorney General, 527 F.3d 330, 335 (3d Cir.2008), and those background observations apply equally to the record in this case.
.We stayed this petition at Serna-Garcia’s request for approximately four years while she pursued an application for an adjustment of status based on her marriage to a United States citizen. That application has now been denied, and we have lifted the stay. The parties have filed supplemental briefs, and this petition is ripe for disposition.
. For this reason, we reject the Government's repeated invitations to affirm on the basis of issues that the IJ did not reach.
. Serna-Garcia did not raise any issue regarding political opinion before the BIA, so there is some question of whether she has exhausted this claim. See 8 U.S.C. *781§ 1252(d)(1). But see Singh v. Gonzales, 413 F.3d 156, 160 n. 3 (1st Cir.2005) (finding jurisdiction over claims not raised before the BIA where the BIA summarily affirmed the IJ’s decision) (cited in Lin v. Att’y Gen., 543 F.3d 114, 123 (3d Cir.2008)). We need not address that issue, however, because SernaGarcia’s argument clearly lacks merit. See Jordon v. Att’y Gen., 424 F.3d 320, 325 n. 8 (3d Cir.2005).
. As the Government argues, Serna-Garcia relies on reports that are not part of the agency record. We thus do not consider them. See 8 U.S.C. § 1252(b)(4)(A). We note, however, that even the 2001 United States Customs and Immigration Services Report on which she principally relies describes only FARC's own political motivations, and does not compel the conclusion that it generally imputes a political opinion to its targets. Serna-Garcia also notes that an asylum officer determined at her credible fear interview that her claim is based on political opinion. She does not argue that the IJ was bound by or owed deference to that conclusion, however, and we do not believe he did.
. The IJ did not implicitly decide this claim by ruling that wealth is not a basis for political asylum. The IJ stated merely that "I'm not going to expand the INA Act to cover anybody that's got a dollar in their pocket." (IJ Dec. at 11) (A. 113). Serna-Garcia’s claim is based on more than wealth alone, and the *782IJ did not mention a potential social group claim, let alone cite or apply the relevant standard. See Escobar v. Gonzales, 417 F.3d 363, 366-68 (3d Cir.2005) (explaining the standard and surveying social group claims).
. Serna-Garcia also argues that torture at the hands of FARC qualifies for protection under CAT because FARC operates as an "alternative government.” She cites no authority in support of that contention, but we leave it to the BIA to address it in the first instance if and when appropriate on remand.
. A possible exception concerns Serna-Garcia's testimony regarding mistreatment by her brother, but that testimony is irrelevant to any issue on review. The IJ took over cross-examination from the Government's counsel to establish that Serna-Garcia had not mentioned her brother at her airport or credible fear interviews. (A. 174-79.) He then concluded for that reason that her testimony regarding her brother was "a recent fabrication,” and faulted her for not calling her mother as a witness to corroborate that testimony. (IJ. Dec. at 11-13) (A. 113 — 15). Serna-Garcia, however, never asserted her treatment by her brother as a basis for relief and, though she takes issue with the IJ's assessment of her testimony on this issue, concedes that it is “irrelevant and immaterial to her claim based upon the kidnaping threat from FARC[.]” Moreover, the IJ’s denial of her kidnaping claim was not based on his credibility finding regarding Serna-Garcia's brother. Instead, he expressly found the kidnaping *783claim credible, (IJ Dec. at 13) (A. 115), but denied it solely for the reasons discussed above. Accordingly, we have no occasion to reach the IJ’s treatment of Serna-Garcia’s testimony about her brother. If her claims about her brother prove relevant on remand, the BIA should address those issues in the first instance.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472311/
|
OPINION OF THE COURT
PER CURIAM.
Petitioners, Xiu Jin Yu and Yong Sheng Liu, natives and citizens of the People’s Republic of China, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen. For the following reasons, we will deny their petition.
Liu entered the United States on April 11, 2001, and the Immigration and Naturalization Service served him with a Notice to Appear and placed him in removal proceedings on June 5, 2001. Yu, Liu’s wife and the lead petitioner, arrived on August 1, 2002, and the INS placed her in removal proceedings on August 8, 2002. Both petitioners admitted removability, but sought asylum, withholding of removal, and protection under the regulations implementing the Convention Against Torture (“CAT”). The petitioners feared returning to China, arguing that they would be forcibly sterilized for violating the one-child policy. Specifically, the couple believed they were at risk because they had a second child while residing in the United States.
*795Following a March 9, 2005 merits hearing, the Immigration Judge (“IJ”) ruled that petitioners failed to establish eligibility for any form of relief, and ordered them removed to China. In an August 16, 2006 opinion, the BIA adopted and affirmed the IJ’s decision. Petitioners sought review in this Court and we denied their petition in a January 15, 2008 opinion. Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir.2008).
On April 28, 2008, Petitioners filed a motion to reopen their removal proceedings with the BIA. In the motion, Petitioners claimed that mistranslations of the 2002 Fujian regulation appended to the 2005 and 2007 State Department Asylum Profile constituted previously unavailable evidence establishing changed country conditions. Petitioners also introduced four other previously unavailable documents which they asserted shows that China maintains a national policy of forced sterilization. The BIA denied the motion, and petitioners have filed a timely petition for review from that order.
We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). We will uphold the BIA’s factual determinations so long as “they are ‘supported by reasonable, substantial, and probative evidence on the record as a whole.’ ” Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir.2009) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
Motions to reopen are generally required to be filed with the BIA “no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). The deadline does not apply to motions that rely on evidence of “changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, the motion to reopen was not filed within the 90-day window; therefore, petitioners must show changed country conditions in order to excuse the untimeliness.
The petitioners’ primary contention is that the State Department’s translation of the 2002 Fujian regulation, which was incorporated into the 2005 and 2007 State Department’s Profile of Asylum Claims and Country Conditions in China, is inaccurate. The BIA dismissed this claim because the original BIA decision did not rely on the 2007 Profile. Petitioners, however, assert that the BIA’s original decision cited to cases which relied on the 2005 Profile, and therefore, it changed the agency’s understanding of conditions in Fujian Province. (Petr.’s Br. at 27.) Further, though the regulation was adopted in 2002, petitioners assert that the alleged mistranslation constitutes changed circumstances inasmuch as the State Department translation was not available until October 2005, seven months after the petitioners’ hearing before the IJ. See Filja, 447 F.3d at 253 (“previous hearing” as used in § 1003.2(c)(3)(h) refers to the hearing before the IJ).
We reject the petitioners’ contentions. Even assuming, for the sake of argument, that the petitioners’ version of the 2002 regulation is material to their case, the claim fails because the regulation was in place at the time of petitioners’ hearing before the IJ. Petitioners cite no statute, regulation, or case-law, and we are aware of none, which would support their contention that a State Department mistranslation of a document could constitute changed circumstances in an asylum appli*796cant’s country of nationality. Cf. Shardar v. Att’y Gen., 503 F.3d 308, 315 (3d Cir.2007) (“The re-emergence of the political party responsible for the applicant’s prior persecution is the type of situation that would constitute a change in country conditions.”) To the extent that petitioners argue that the BIA’s reliance on the mistranslation violated their right to due process, the instant petition for review is not a means to re-litigate the original removal proceedings. See Kaur v. Bd. of Immigration Appeals, 413 F.3d 232, 233 (2d Cir.2005) (per curiam).
The BIA also did not abuse its discretion in finding that petitioners failed to establish a prima facie case to warrant reopening their asylum proceedings. See Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir.2008) (citation and quotations omitted) (BIA may deny a motion to reopen if the movant fails to establish a prima facie case for the relief sought). Petitioners argue that a document entitled “Announcement of Further Improvement of the Family Planning Work” establishes a reasonable likelihood that they would be persecuted if removed to China. (Petr.’s Br. at 41.) The BIA, however, found that the document did not establish a prima facie case because it did not state that sterilization was mandatory for couples with two or more children nor did it show that a violator of the one-child policy would be forced to undergo sterilization. (Admin. Record at 3.) The BIA gave reasoned consideration to the motion and made adequate findings to support its conclusion. Zheng, 549 F.3d at 268. We do not find that the evidence compels a contrary conclusion. See Ahdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001). For similar reasons, we agree with the BIA that the other three documents petitioners submitted do not show a change in China’s coercive population program which would warrant a reopening of petitioners’ case.
For the foregoing reasons, we will deny the petition for review.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472313/
|
OPINION OF THE COURT
JORDAN, Circuit Judge.
Foster Price, Jr. was convicted by a jury in the United States District Court for the Middle District of Pennsylvania on charges related to the possession and distribution of heroin and was sentenced to 27 years in prison. He appeals the District Court’s judgment of conviction and sentence on four grounds, arguing first that there was insufficient evidence to convict him of being part of a conspiracy to distribute heroin, second, that the District Court erred in determining at sentencing that he was *798responsible for the distribution of more than one kilogram of heroin, third, that the District Court erred by applying a leadership enhancement to his offense level in calculating his Guidelines range, and fourth, that the District Court erred by denying his motion for a mistrial based on comments made by the prosecutor during closing argument. For the reasons that follow, we will affirm Price’s conviction and sentence.
I. Background
On February 9, 2006, Price, who lived in central Pennsylvania and sold heroin there, was indicted on one count of conspiring to distribute and possess with intent to distribute more than a kilogram of heroin, in violation of 21 U.S.C. § 846, and three counts of distribution and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). A number of alleged co-conspirators, both indicted and unindicted, testified for the government at Price’s trial. We will summarize the most pertinent testimony.
Jayme Hoagland testified that she regularly bought heroin from Price — both to feed her addiction and to sell to others— while she was a minor, both before and during the early stages of a pregnancy. She also stated that Price “cut” and “bagged” heroin in her apartment1 and stashed “bricks”2 of heroin above her ceiling tiles. Furthermore, Hoagland explained that, when Price’s schedule changed so that he was frequently out of the area, he introduced her to a new dealer, Ali Patterson. She claimed that she often traveled to Newark, New Jersey to purchase heroin from Patterson. Hoagland’s boyfriend, Casey Dodson, testified that he, too, regularly obtained heroin, for his personal use and for redistribution, from Price over a period of approximately six months. According to Dodson, he would not pay for the heroin up front, but would give Price some of the proceeds that he received from his sales.
Jeremy Robinson testified that he often purchased heroin, multiple bricks at a time, from both Price and Patterson, and admitted to reselling much of what he bought.3 He also testified that Price and Patterson “pretty much mutually agreed that they knew each other.” (SuppApp. at 282.) However, he did not indicate that Price introduced him to Patterson or recommended Patterson as an alternative source. He claimed to have met Patterson independently, when he went to Newark to “cop [heroin] off the street.” (Id. at 285.)
Patterson, who pled guilty to conspiring to distribute one kilogram or more of heroin, admitted that, for approximately two years, he sold three to seven bricks of heroin per day, five days a week, on Grafton Avenue in Newark. He claimed that he did not know his customers personally; they would drive up to where he was stationed, make their purchases, and drive away. Patterson testified that he and Price grew up together and had known each other all of their lives. He denied, however, that he sold heroin to Price, that Price introduced him to customers, or that customers expressed that they had come *799on Price’s behalf or recommendation. He testified that he still had family in the violent neighborhood where he and Price grew up, but when the prosecutor asked him whether he would fear repercussions if he gave testimony that incriminated Price, Patterson responded that he would not.
Tony Dunka testified that he was introduced to Price by Hoagland and Dodson and that he regularly purchased heroin from Price. In June 2003, Dunka was arrested by Pennsylvania State Trooper Nicholas Madigan for a drug offense. Dunka ultimately agreed to work as a confidential informant and arranged for Madigan to purchase a brick of heroin from Price on February 10, 2004, at the Susquehanna Mall in Selinsgrove, Pennsylvania. Madigan and Dunka arrived at the mall and were met there by one of Price’s associates, a man that Dunka identified as “Chachi.” During the meeting, Madigan purchased a brick of heroin from Chachi. Following the purchase, Dunka spoke to Price, who indicated that he was pleased with how things had gone, and set up a second meeting for February 27 at the same location. This time, Price came to meet Madigan and sold him another brick of heroin. Dunka also testified that he saw Price with eight-to-ten bricks of heroin on six or seven other occasions.
Testifying on Price’s behalf, James Giardina admitted that he had purchased heroin for redistribution from Patterson and Hoagland but claimed that he had never met or even heard of Price before the instant proceedings. However, Tracy Bur-gos, a government witness who bought heroin from Giardina, testified that Giardina had mentioned Price’s name to her and that she understood that Giardina got his heroin from Price.
The parties stipulated that if an expert witness for the government, Ann Wagner, had testified, she would have established that the bricks that Price sold to Madigan contained heroin and that they weighed 1.2 and 1.4 grams respectively. Pennsylvania State Trooper Russell Burcher testified that he estimated, based on that stipulation and witness testimony, that Price and Patterson collectively sold between 815 and 1,674 grams of heroin. That range did not include the heroin that Patterson may have sold to other individuals who are not named in this opinion.
During closing argument, the prosecutor questioned Patterson’s testimony that he and Price had not conspired to sell heroin by stating that Patterson may not have wanted to testify against Price because the two were close and Patterson feared repercussions in his neighborhood. Price objected to the prosecutor’s remarks and moved for a mistrial, but the District Court denied his motion. The jury found Price guilty of one count of conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin (the “conspiracy count”)4 and two counts of distribution and possession with intent to distribute heroin (the “distribution counts”).5 In response to a special interrogatory, the jury also found, beyond a reasonable doubt, that one kilogram or more of heroin was distributed or intended to be distributed as part of the conspiracy.
*800In its Presentence Report (“PSR”), the United States Probation Office concluded that Price was responsible for conspiring to distribute 2.393 kilograms of heroin. That figure included the heroin sold both by Price and by Patterson during the two years that Patterson admitted to selling heroin on Grafton Avenue, and, under United States Sentencing Guideline (“U.S.S.G.”) § 2D1.1(c), resulted in a base offense level of 32. Pursuant to U.S.S.G. § 2D1.2(a), the Probation Office added one-level because Price sold heroin to Hoagland while she was pregnant and while she was a minor and two levels because Price possessed dangerous weapons during the commission of his offenses. It also recommended a four-level increase on the ground that Price was an organizer or leader of a criminal activity that involved five or more people.6
Price objected to the amount, arguing that, because he had no involvement with any of Patterson’s drug sales, he was responsible for less than one kilogram of the drug. The District Court disagreed. While it did not attribute to Price all of the heroin that Patterson sold during his time as an admitted dealer, it held him responsible for the heroin that Hoagland bought from Patterson, which, when coupled with the heroin that Price sold himself, exceeded one kilogram.
Price also objected to the leadership enhancement, arguing that it was not supported by the evidence.7 The Court agreed in part, finding that there was no evidence that Price exercised decision-making authority over the group as a whole, recruited accomplices, or claimed a larger share of the profits of the crime. The Court did find, however, that Price was a manager or supervisor, and was therefore subject to a three-level enhancement, because he supplied the group with heroin and exercised control over Chachi.
With the three-level enhancement, Price’s Guidelines range was 324 months (27 years) to 405 months (33 years and nine months). After addressing Price’s objections and considering the appropriate sentencing factors, the District Court sentenced Price to 27 years’ imprisonment on the conspiracy count and 20 years on each of the distribution counts, all sentences to run concurrently. Price filed a timely appeal challenging both his conviction and sentence. On appeal, Price contends that there was insufficient evidence that he was involved in a conspiracy to sell heroin and that the District Court erred in concluding at sentencing that he was responsible for the sale of over a kilogram of heroin.8 Price also argues that the Court erred by enhancing his sentence based on a finding that he was a manager or supervisor, and by denying his motion for a mistrial based on the prosecutor’s argument that Patterson did not want to inculpate Price because he feared repercussions against his family and because of the culture prevalent in the housing projects where the two men grew up.
II. Discussion9
A. Sufficiency of the Evidence
Price argues that there was insufficient evidence to convict him of conspiracy to distribute heroin. We review the suffi*801ciency of the evidence in the light most favorable to the government and will affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Diallo, 575 F.3d 252, 256 (3d Cir.2009). To establish a charge of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846, the government must show: (1) a unity of purpose between the alleged conspirators; (2) an intent to achieve a common goal; and (3) an agreement to work together toward that goal.10 United States v. Pressler, 256 F.3d 144, 147 (3d Cir.2001).
That Price was involved in a conspiracy to distribute heroin, a controlled substance, in central Pennsylvania is amply supported by the record. The government proffered evidence that, after Dunka set up a controlled buy with Price, Chaehi came to the meeting place to complete the transaction. Furthermore, Hoagland testified that she distributed heroin that she bought from Price and that she allowed Price to cut, bag, and store heroin in her home. Dodson likewise testified that Price would give him heroin, some of which Dodson would sell, without requiring payment up front. Finally, Robinson testified that he bought large quantities of heroin from Price and resold much of it. While Robinson is more tenuously connected to the conspiracy than Chaehi or Hoagland, who took active roles in furthering the drug sales that Price personally conducted, or Dodson, whose status as a “middle man” in the operation is supported by the fact that Price allowed him to purchase heroin on credit, a reasonable trier of fact could infer that Robinson worked with Price in the same capacity that Dodson did. Sufficient evidence thus supports the conclusion that Price conspired with Chaehi, Hoagland, and Dodson, as well as Robinson, to sell heroin.
Whether Price conspired with Patterson to the same end is a much closer question. While the government demonstrated that Price introduced at least Hoagland to Patterson, an introduction without more does not necessarily demonstrate an agreement to work towards a common goal. In Pressler, 256 F.3d 144, we were confronted with a similar relationship between two drug dealers: the first dealer, Scott Shreffler, introduced two of his customers to “another, superior source of supply from which Shreffler himself had purchased a large amount of heroin.” Id. at 153. Noting that “[i]t is common for people to tell their friends about a good store or restaurant,” we concluded that the referral “did not show that [the two dealers] ever agreed to work together on anything” and no evidence beyond the referral pointed to such an agreement. Id. at 154.
At the same time, we recognized in Pressler that evidence which would not be sufficient to establish a conspiracy may be sufficient to link an individual to an existing conspiracy. Id. at 152. Such evidence exists here. Price introduced at least one customer/dealer to Patterson, and the jury had evidence from which it could conclude that Price and Patterson had at least two overlapping clients in Hoagland and Robinson, both of whom also resold much of the heroin that they purchased. Likewise, it could conclude that Patterson’s associate Giardina was also a distribution outlet for Price. A rational jury could thus decide that the overlapping distribution network *802employed by Price and Patterson was not mere coincidence but was proof of a coordinated effort between Price and Patterson to distribute heroin in central Pennsylvania. Here, by virtue of attributing more than a kilogram of heroin to Price, the jury effectively found that Price and Patterson were co-conspirators. Viewing the evidence, as we must, in the light most favorable to the government, we agree that it is sufficient to support the jury’s finding of the existence of a conspiracy, including Patterson as a co-conspirator.
B. Quantity of Heroin
When a district court determines drug quantity for purposes of sentencing, we review its findings for clear error. United States v. Sau Hung Yeung, 241 F.3d 321, 322 (3d Cir.2001). The District Court in this case attributed a total of 1,136.4 grams — or 1.1364 kilograms — of heroin to Price. Specifically, based on witness testimony, it estimated that Price sold 711.6 grams of heroin collectively to Hoagland, Dodson, and Robinson, and 64.8 grams of heroin in transactions to which Dunka was privy. It further estimated that Patterson sold 360 grams of heroin to Hoagland and attributed that amount of the drug to Price.11
Price’s lone criticism of the quantity determination is that the Court improperly included heroin sold by Patterson. However, as already described, because sufficient evidence supports Patterson’s role in the conspiracy, the Court did not err in attributing to Price the heroin that Patterson sold to Hoagland. Its calculation, therefore, was proper.
C. Leadership Enhancement
Price argues that, in addition to attributing too much heroin to him, the District Court erroneously applied a three-level leadership enhancement. We disagree. The now-advisory U.S.S.G. § 3B1.1 instructs sentencing courts as follows:
Based on a defendant’s role in the offense, increase the offense level as follows:
(a) if the defendant was an organizer or leader of a criminal activity that involved 5 or more participants or was otherwise extensive, increase by 4 levels.
(b) if the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved 5 or more participants or was otherwise extensive, increase by 3 levels.
(c) if the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
Factors that courts should consider in determining a defendant’s leadership role include whether the defendant exercised decision-making authority, the nature of the offender’s participation in the crimes, whether the defendant recruited others, the degree to which the defendant claimed a larger share of the proceeds of the crime, and the degree of control which the defendant exercised over the criminal activity. U.S.S.G. § 3B1.1, n. 4. (Nov.2008 ed.); United States v. Gricco, 277 F.3d 339, 358 (3d Cir.2002). Because a district court’s assessment of a defendant’s role in a criminal conspiracy is “essentially factual in nature,” we review its determination on *803that issue for clear error. United States v. Hunter, 52 F.3d 489, 492 (3d Cir.1995).
Although the government argued, and the Probation Office suggested, that Price should be subjected to the four-level enhancement articulated in U.S.S.G. § 3B1.1(a), the District Court found that there was no evidence that Price exercised decision-making authority over the group as a whole, recruited individuals into the conspiracy, or claimed a larger share of the proceeds. Instead, it concluded that he was a manager or supervisor and applied a three-level enhancement under U.S.S.G. § 3Bl.l(b). That determination is not clearly erroneous.
The three-level enhancement requires two findings: (1) that the defendant was a “manager or supervisor”, and (2) that the management or supervision by the defendant was of a criminal enterprise that involved at least five people or was otherwise extensive. The government proffered uncontested evidence that Price exercised control over Chaehi, whom he sent to conduct the first controlled heroin sale to Officer Madigan, and that he served as a primary supplier of heroin for other co-conspirators. Given Price’s authority over Chaehi and the control he exercised over the supply of heroin, the District Court did not err in labeling him a manager. Moreover, as noted above, there is sufficient evidence that Price conspired with at least five other people — Chaehi, Hoagland, Dodson, Robinson, and Patterson — to distribute heroin. The “five or more participants” standard of U.S.S.G. § 3Bl.l(b) is thus met.
D. Prosecutor’s Remarks During Closing
Price argues that the District Court erred in denying his motion for a mistrial, in which he contended that, during closing argument, the government made remarks that were not based on the record and prejudiced his right to a fair trial. In an attempt to discredit Patterson, who was called by the government but testified that he and Price did not conspire to sell heroin, the prosecutor stated:
What did [Patterson] tell you about the projects? It’s dangerous. There’s violence there. What else did he tell you. He still has family back there....
He told you he’s got his grandmother, his mother, his sister, his daughter[, h]is baby mother [sic] all live in the projects.
[Patterson is] going to admit what he did, but he’s not going to testify against [Price.] He’s got two reasons for it. It’s part of the culture, he’s not going to do it, and he’s got family back there. And remember Price is from the projects also. They grew up in the same neighborhood.
(Supp.App. at 556.)
“We review a district court’s decision to deny a motion of a mistrial predicated on the grounds that the prosecutor made improper remarks in a closing argument for abuse of discretion.” United States v. Wood, 486 F.3d 781, 786 (3d Cir.2007) (citation omitted). “‘To find that the court abused its discretion in failing to order a mistrial for prosecutorial misconduct, we must first be convinced that the prosecution did in fact misconduct itself.’ ” Id. (quoting United States v. Rivas, 479 F.3d 259, 266 (3d Cir.2007)).
We agree with Price that the remarks were improper. “The prosecutor is entitled to considerable latitude in summation to argue the evidence and any reasonable inferences that can be drawn from that evidence.” United States v. Werme, 939 F.2d 108, 117 (3d Cir.1991) (citation omitted). Here, however, the government was not making reasonable inferences from Patterson’s testimony or any other evidence proffered at trial. The only evi*804dence elicited at trial about Patterson and Price’s shared background was that they knew each other, that there was violence in the neighborhood where they grew up, and that Patterson still had family in that neighborhood. There was no evidence, nor even an attempt to submit evidence, about the current state of law enforcement in the neighborhood, about a history of retaliation for cooperation with law enforcement, or about a code of silence surrounding criminal activity.12 The government simply assumed, and in effect asked the jury to assume, that people from housing projects are not to be trusted because they live in fear of retribution and abide by a code that prevents them from disclosing the crimes of their neighbors. Bare assumptions like that have no place at trial. When a party, particularly the government, decides to impeach a witness, including its own witness, it ought to proceed with evidence rather than unsubstantiated innuendo. Inviting the jury to make determinations about Patterson’s truthfulness, and, by extension, about Price’s guilt, based on practically nothing more than a low-income address exceeded the bounds of permissible advocacy.
That said, we do not believe that the District Court abused its discretion in denying Price’s motion for a mistrial. While the government’s remarks during summation were inappropriate, they did not “ ‘so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process’ in light of the entire proceeding.” United States v. Morena, 547 F.3d 191, 194 (3d Cir.2008) (quoting Marshall v. Hendricks, 307 F.3d 36, 64 (3d Cir.2002)). On the contrary, the evidence of Price’s illegal drug dealing was varied and strong, and he points to no other incidents of alleged prosecutorial misconduct that occurred during trial. See id. (We must consider the prosecutor’s improper actions and the weight of properly admitted evidence in assessing whether prosecutorial misconduct necessitates reversal of a conviction.). Viewing the proceedings as a whole, we cannot say that the District Court erred in determining that Price’s conviction was fair, in spite of the improper comment in closing.
III. Conclusion
For the foregoing reasons, we will affirm Price’s conviction and sentence.
. Hoagland indicated that by "cut,” she meant that Price would adulterate the heroin with an inert substance, and by “bag,” she meant that Price would separate the heroin into individual units for sale.
. According to expert testimony proffered by the government, there are ten bags of heroin in a bundle and five bundles in a brick, and a brick of heroin usually weighs slightly more than a gram, although the weight can vary slightly between bricks. Price does not dispute those figures.
.Robinson also acknowledged that he shared some of his heroin with his girlfriend at the time, Devin Gessner, but it is not clear from the record whether Gessner sold the drug.
. The conspiracy count encompassed more than simply conspiring to possess and distribute heroin. On the Judgment of Conviction, the count is set forth as follows: "Conspiracy to Distribute and Possess With Intent to Distribute More Than 1 Kilogram of Heroin; Distribute and Possess With Intent to Distribute Heroin to Individuals Under Age 21 While Being Over Age 18; Provide and/or Distribute Heroin to a Pregnant Individual." (App. at 3.)
. The jury acquitted Price of the third count of distribution and possession with intent to distribute heroin.
. In calculating Price’s offense level, the probation office grouped the distribution counts with the conspiracy count under U.S.S.G. § 3D 1.2(d).
. He did not object to the enhancements for possession of dangerous weapons or distribution to a pregnant individual and/or a minor.
. Price does not challenge his convictions on the distribution counts.
. The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. These elements differ from those required to prove a criminal conspiracy under 18 U.S.C. § 371. See United States v. Rankin, 870 F.2d 109, 113 (3d Cir.1989) ("The three elements of a Section 371 conspiracy are: 1) the existence of an agreement, 2) an overt act by one of the conspirators in furtherance of the objective, and 3) an intent on the part of the conspirators to agree.... ”).
. Courts are permitted "a degree of estimation” and may make their estimates by relying on testimony regarding the average amount of drugs sold per week and multiplying by the period of time over which the drugs were sold. United States v. Gibbs, 190 F.3d 188, 203-204 (3d Cir.1999). Price does not dispute any of the District Court's individual quantity estimates, and each finds ample support in the record.
. Whether such evidence could properly have been admitted is not something we have occasion to consider now.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472317/
|
OPINION OF THE COURT
PER CURIAM.
This matter comes on before this Court on Joanne Boyd’s appeal from an order of the District Court dismissing her complaint without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. For the reasons that follow we will affirm the order, albeit on grounds differing from those of the District Court.
I.
The material facts are not complex. On June 15, 2007, Boyd filed this action under 42 U.S.C. § 1983 against Patrick Pearson, the father of her son, Malcolm Pearson. On June 28, 2007, the District Court entered an order allowing her to proceed in forma pauperis and ordered the marshal to serve the summons and complaint on Pearson without cost to Boyd. For more than a year, however, the marshal did not serve process on Pearson, and, so far as the docket reflects, there was not any activity in the case during the year. Accordingly, nt an order entered July 29, 2008, the Court ordered the case dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b), which permits dismissal of an action if the plaintiff does not prosecute it. The order of dismissal, however, provided that “if, within twenty (20) days, good cause can be shown why service was not made within one hundred and twenty (120) days of the date of the filing of the Complaint, the dismissal will be vacated.” Boyd did not attempt to show good cause why the service had not been made prior to the expiration of the 20-day deadline. Instead, on August 28, 2008, she filed an appeal from the dismissal to this Court.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.1 We may affirm on any basis the record supports. Erie Telecomms. Inc. v. City of Erie, 853 F.2d 1084, 1089 n. 10 (3d Cir.1988).
III.
Pursuant to 28 U.S.C. § 1915(d), officers of the court issue and serve all process in in forma pauperis cases “that are not initially dismissed as frivolous by the district court.” Gibbs v. Ryan, 160 F.3d 160, 161 n. 1 (3d Cir.1998). As we have indicated, the District Court granted Boyd’s motion to proceed in forma pauper-is, and ordered the marshal to serve Pear*816son with the summons and complaint at no cost to her. In the circumstances, in the light of Gibbs, it was improper for the District Court to dismiss the complaint for lack of service because the marshal, not Boyd, was responsible for the failure to make service.
Nevertheless, we will affirm the order of dismissal because the case was subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2). A civil rights action brought pursuant to section 1983 is sustainable against state actors only. Bright v. Westmoreland County, 380 F.3d 729, 736 (3d Cir.2004). Pearson, the sole defendant, is not a state actor, and, notwithstanding Boyd’s claims that Pearson conspired with state and federal courts to gain custody of their son and to embezzle funds from his trust account, Boyd’s accusations are insufficient to sustain her claims. See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.”) (internal quotation marks, citation, and bracket omitted). Accordingly, we will affirm the order of the District Court entered July 29, 2008.2 Boyd’s outstanding motions are denied.
. As we have indicated, the order in the District Court entered July 29, 2008, from which Boyd filed this appeal, recited that "the matter is hereby DISMISSED WITHOUT PREJUDICE,” but provided that for good cause shown within 20 days the dismissal would be vacated. Ordinarily, an order of dismissal without prejudice is neither final nor appeal-able because the plaintiff may correct the deficiency "without affecting the cause of action.” Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir.1976). But Boyd did not show good cause for the deficiency, i.e., the failure to make timely service, and consequently the order became final and appeal-able at the end of 20 days after its entry. See Shapiro v. UJB Fin. Corp., 964 F.2d 272, 278 (3d Cir.1992). Moreover, it appears that the statute of limitations has run on the claims Boyd advances and thus, in effect, the dismissal, though originally without prejudice, has become a dismissal with prejudice. See Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 460 F.3d 470, 477 (3d Cir.2006). Consequently, inasmuch as dismissals with prejudice are appealable, we have jurisdiction over this appeal.
. We realize that we are affirming an order of dismissal without prejudice that was not on the merits and, in affirming, effectively are dismissing the case on the merits. Thus we have converted the dismissal without prejudice into a dismissal with prejudice. Ordinarily, in the absence of a cross appeal we could not have made this conversion, as by doing so we would be enhancing Pearson's position and constricting that of Boyd. See Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 205 (3d Cir.2001). Here, however, as we already have explained, the dismissal, though in terms without prejudice, has become a dismissal with prejudice. See supra n. 1. Accordingly, notwithstanding changing the reason for our outcome from that of the District Court, we are not changing the effect of the dismissal.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472321/
|
OPINION
PER CURIAM.
Appellant Samuel Cann appeals from an order of the District Court dismissing his civil rights complaint for failure to state a claim. For the reasons that follow, we will affirm.
I.
Cann is an inmate at the New Jersey State Prison in Trenton. According to his complaint, on September 15, 2005, Cann submitted a written grievance to the New Jersey State Prison Administration, alleging that funds in his inmate account had been tampered with by prison officials. The grievance “accused the officials of indifference,” and stated that Cann “should not have to pay for the blunders of an *823incompetent social services department.” (PI. Comp, at 2.)
On November 8, 2005, Cann set off a metal detector three consecutive times upon return from a morning prison yard exercise. He was escorted from the yard, and Appellee Sgt. Newsom conducted a strip search and a “visual body cavity search.” (PI. Comp, at 3.) Cann complied with both searches, and no contraband was found. Appellee Officer Martain then gave an additional order to “squat and cough.” Cann stated to Martain that “there was [no] policy that says he has to do that; and that the orders were completely unreasonable.” (PI. Comp, at 4.) Cann then questioned Newsom as to whether that particular order was permitted by institutional guidelines, and ultimately refused to comply.
Because of Cann’s noncompliance with the order, he was subsequently placed in the BOSS chair1, subjected to two additional searches by Martain, Newsom and an Officer Johnson, made to submit a urine sample administered by Appellee Pamela Trent, and in the end was placed in a “dry cell” at the instruction of Trent.2 None of these measures resulted in the discovery of contraband. However, Cann was charged with two disciplinary infractions: one based on his refusal to submit to a search and the other based on his refusal to obey the “squat and cough” and order. (Dist. Ct. Op. at 3.)
Cann spent six days in the dry cell, and then was moved to a different detention unit for several days before the disciplinary hearing was to commence. During that time, he “received a copy of the grievance form that he submitted back in September of 2005; although there was no documented resolution on this remedy form, [Trent’s] signature was on the grievance.” (PI. Comp, at 6.) After four continuances, a disciplinary hearing was held before Appellee Officer Ozvart. Cann was adjudicated guilty on the charge of refusing the order to squat and cough; the other charge was dropped. Ozvart imposed a fifteen-day detention and a ninety-day administrative segregation. (Dist. Ct. Op. at 3.) After his administrative appeal of Ozvart’s decision was unsuccessful, Cann filed a complaint in state court alleging deprivations of his civil rights in relation to his treatment after setting off the metal detector. The Superior Court of New Jersey, Appellate Division denied relief and the New Jersey Supreme Court denied certification. See Cann v. Dep’t of Corr., 2006 WL 2714604 (N.J.Super.App.Div. Sep. 25, 2006), aff'd, 189 N.J. 428, 915 A.2d 1051 (2007).
Cann then filed this pro se action in the United States District Court for the District of New Jersey against several prison officials (“Appellees”), alleging violations of his civil rights under 42 U.S.C. § 1983. Specifically, Cann alleged First Amendment retaliation, Fourth Amendment unreasonable search, Eighth Amendment cruel and unusual punishment, and Fourteenth Amendment due process/equal protection claims. The District Court dismissed Cann’s complaint with prejudice for failure to state a claim upon which relief may be granted, pursuant to 28 U.S.C. *824§§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Cann appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s sua sponte dismissal for failure to state a claim. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). When reviewing a complaint dismissed under § 1915(e)(2)(B), we apply the same standard provided for in Federal Rule of Civil Procedure 12(b)(6). See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). Thus, we “accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom.” Allah, 229 F.3d at 223 (quotation omitted). Moreover, we liberally construe the pleadings of pro se litigants. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam).
To avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, -U.S.-,-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quotation omitted); see also United States Dep’t of Transp., ex rel. Arnold v. CMC Eng’g, 564 F.3d 673, 676 (3d Cir.2009). “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.” Iqbal, 129 S.Ct. at 1949. Furthermore, “[i]n the event a complaint fails to state a claim, unless amendment would be futile, the District Court must give a plaintiff the opportunity to amend her complaint.” Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir.2008); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004).
III.
As a preliminary matter, we see no indication in the record that the District Court gave Cann an opportunity to amend his complaint after its initial screening. Nor does the District Court speak to the inequity or futility of such an amendment in its opinion. Nonetheless, we agree with the District Court that Cann’s complaint fails to state a viable claim under the First, Fourth, Eighth and Fourteenth Amendments, for substantially the reasons given in the District Court’s thorough opinion.3
In short, the claims in Cann’s complaint lack facial plausibility, see Iqbal, 129 S.Ct. at 1949, because the complained-of actions by the prison officials were not improper, let alone unconstitutional, given Cann’s “triple triggering” of the metal detector in the yard and his subsequent refusal to comply with Martain’s order to squat and cough. The responsive actions take by prison officials were rationally related to legitimate penological interests and goals. And despite his attempts to shift the focus from his conduct to provisions of the New Jersey Administrative Code, Cann nevertheless concedes that he did not comply with Martain’s order. The reasoning of the Appellate Division, in rejecting one of Cann’s state law claims, provides a helpful analog for these points:
It is undisputed that the inmate did not do what he was told to do: squat and cough. Certainly, the guards were entirely justified in giving such an order when the strip search failed to produce the object that triggered the metal detector; not only for their safety, but also that of other inmates. The command to squat and cough was certainly less invasive than a digital or instrumented inspection of his rectum. Furthermore, the DOC had little choice but to put the *825inmate in a dry cell because of the risk to the guards and other inmates from a secreted weapon.
Cann, 2006 WL 2714604, at *2.
Cann maintains on appeal, as he did in the complaint, that the metal detector was set off because it was malfunctioning. Even if that were the case, this fact does not validate his noncompliance with Martain’s order to squat and cough. We emphasize here the Supreme Court’s dictate that “prisoners have no legitimate expectation of privacy.” Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).
Accordingly, we will affirm the District Court’s order dismissing Cann’s complaint for failure to state a claim.
. "Body Orifice Security Scanner ("BOSS") chair. The BOSS chair is a non-intrusive, high sensitivity detector designed to detect metal objects hidden in body cavities. It is used to screen inmates for weapons and contraband objects that might be hidden in anal, oral, vaginal, and nasal cavities. It will not pick up non-metallic items such as drugs, cigarettes, or money. The BOSS Chair is not foolproof, but it enhances any other search conducted on an arriving inmate.” Dodge v. County of Orange, 282 F.Supp.2d 41, 53 (S.D.N.Y.2003).
. The characteristics of a "dry cell" were described by the District Court. (Dist. Ct. Op. at 3 n. 1).
. For these same reasons, we find that amendment would have been futile.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472323/
|
OPINION
PER CURIAM.
Judith Dorfman appeals from the district court’s grant of summary judgment in favor of appellees in her employment discrimination action. For the following reasons, we will affirm the district court’s judgment.
I. Background
The Pine Hill Board of Education (“Pine Hill”) hired Dorfman as a music teacher at John H. Glenn School in New Jersey starting in 2001 and her contract was renewed for each of the next two years. At the time of her hiring, Dorfman was fifty-six years old and her principal and performance evaluator was Mark Durand. Du-rand retired at the end of the 2002-2003 school year. At the end of the 2003-04 school year, upon the recommendation of her new principal, Cynthia Guarracino, and the superintendent Dr. Kenneth Koczur, Dorfman’s contract was not renewed for a third year and she did not receive tenure.1 When Guarracino called Dorfman into the principal’s office to discuss the non-renewal, Koczur allegedly told her that there was a problem with her “fit” at the school. (SuppApp. at 60.) Pine Hill replaced Dorfman with a teacher who is eleven years younger.
On June 30, 2006, Dorfman filed a law suit alleging age-discrimination in violation of the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-12(a). Dorfman alleged that Pine Hill did not renew her contract because of her age in violation of the NJLAD, and she alleged that Koczur and Guarracino aided and abetted this violation. She also alleged that she was subject to harassment because of her age. Appellees moved for summary judgment, arguing that Dorfman was not offered renewal because of her negative performance evaluations. The district court granted the motion and Dorfman filed a timely notice of appeal.
II. Jurisdiction and Standard of Review
The district court had jurisdiction to entertain this matter under 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the district court’s grant of summary judgment. Alaska Elec. Pension Fund v. Pharmacia Corp., 554 F.3d 342, 346 (3d Cir.2009). On review, we apply the same standard as the district court. United States ex rel. Kosenske v. Carlisle HMA Inc., 554 F.3d 88, 95 (3d Cir.2009). Thus the district court properly granted summary judgment if “viewing the record in the light most favorable to the non-moving party and drawing all inferences in that party’s favor, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citations omitted).
*827III. Analysis
A. Non-Renewal of Contract
Dorfman argues that appellees violated the NJLAD because they did not renew her contract based on impermissible motives, namely her age. The NJLAD applies a three-step burden shifting test which initially requires the employee to establish a prima facie case. See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 867 A.2d 1133, 1139 (2005). After the plaintiff satisfies her burden, the employer must “articulate some legitimate, nondiseriminatory reason for the employee’s” firing. Erickson v. Marsh & McLennan Co., 117 N.J. 539, 569 A.2d 793, 798 (1990) (citation omitted). In the final step, the employee must demonstrate that the employer’s reason was not the true reason for the employment decision, but was a pretext for discrimination. Id. at 799.
Like the district court, we will assume that Dorfman established a prima facie ease inasmuch as she is a member of a protected class, Pine Hill did not renew her contract, and it replaced her with a similarly qualified person. See Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 877 A.2d 1233, 1237 (2005) (citation omitted) (listing requirements for a prima facie case of discrimination). The district court held that appellees met their burden at the second step by pointing to Dorfman’s negative performance evaluations as a legitimate non-discriminatory reason for not renewing her contract. Specifically, the evaluations noted that Dorfman needed to improve her classroom management skills.
Dorfman asserts that the district court’s finding at the second step is erroneous because the defendants failed to produce written evaluation policies and procedures as required by N.J. Admin. Code § 6A:32-4.5. Dorfman, however, did not seek to compel the production of any written policies and procedures during discovery and therefore cannot now blame appellees for failing to produce them. In any event, Dorfman’s argument that a genuine issue of material fact exists as to whether appellees’ practices and policies comported with the requirements of New Jersey’s administrative code is meritless. (Appellant’s Br. at 2) (citing Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1040 (7th Cir.1993)). In Sarsha, the employer fired the employee for violating a policy prohibiting managers from dating subordinates. Sarsha, 3 F.3d at 1039. The Court held that there was a genuine issue of material fact concerning whether an official dating policy existed. Id. at 1040. Here, appellees did not renew Dorfman’s contract because of her deficiency in classroom management skills as reflected in her performance evaluations and not for violation of a school policy. Therefore, this argument must fail.
Next, Dorfman contends that a genuine issue of material fact exists as to whether appellees’ explanation at the second step was a pretext for age-based animus. An employee may show pretext in two ways: 1) by discrediting the employer’s proffered reasons, either circumstantially or directly, or 2) by producing evidence, either circumstantial or direct, showing that discrimination was more likely than not the motivating or determinative cause of the adverse employment action. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994); see DeWees v. RCN Corp., 380 N.J.Super. 511, 883 A.2d 387, 396-97 (N.J.Super.Ct.App.Div.2005) (noting New Jersey courts’ adoption of the standard in Fuentes). We agree with the district court that Dorfman has failed on both fronts.
First, Dorfman points to evaluations that Durand performed which praised her classroom management skills. Even those earlier evaluations, however, note that she needed to secure the attention of all the *828students before beginning an activity and needed to improve her classroom disciplinary procedures. (Supp.App. at 234, 239.) Dorfman also argues that Koczur’s statement that she was not a good “fit” suggests an inference of age-based discrimination. (Appellant’s Br. at 4-5) (citing Greene v. Safeway Stores, Inc., 98 F.3d 554, 561 (10th Cir.1996)). In Greene, the supervisor’s statement that an older employee did not “fit in with the new culture” was made against the backdrop of eight top-level executives being replaced by younger persons. Greene, 98 F.3d at 560-61. Here, Dorfman has not presented background evidence suggesting a pattern of contract non-renewals based on age. Indeed, as the district court noted, of the six teachers whose contracts were non-renewed while Koczur was Superintendent at Pine Hill, three were replaced by older teachers and two were replaced by teachers less than two years younger. Cf. Greenberg v. Camden County Vocational & Technical Schs., 310 N.J.Super. 189, 708 A.2d 460, 469 (N.J.Super.Ct.App.Div.1998) (plaintiff established age-based pretext, in part, based on evidence that all female teachers over the age of forty-five were terminated while all younger teachers similarly situated were retained.) Therefore, Dorfman has not shown that by using the word “fit” Koczur was suggesting any age-based animus.
Other circumstantial evidence Dorfman cites also does not establish that appellees’ motives were pretextual. In her deposition, Dorfman recounted an incident in which Guarraeino asked the faculty to bring in pictures of themselves for placement on the school bulletin board. Dorfman showed Guarraeino several photos, some of them taken when Dorfman was younger. Guarraeino then allegedly commented that several of the older teachers were bringing in photos of themselves when they were “younger and more glamorous.” (Appellant’s Br. at 7.) In light of the negative performance evaluations, however, this incident alone could not lead a reasonable jury to believe that age was more likely than not a motivating or determinative cause of Pine Hill’s decision not to renew Dorfman’s contract. Fuentes, 32 F.3d at 765 (“non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons ... [to] infer ‘that the employer did not act for [the asserted] non-discriminatory reasons.’ ”)
Dorfman further argues that her replacement, Rosemary McDevitt, was not as qualified as she was, and, therefore, Pine Hill’s decision to hire her presents strong circumstantial evidence of discrimination. Though McDevitt is slightly less experienced and does not possess credits towards a master’s degree, as Dorfman does, her resume reflects that she is qualified for a position of music teacher. (SuppApp. at 281.) We agree with appellees that hiring a qualified candidate with less experience in light of Dorfman’s job performance deficiencies does not constitute evidence of discrimination.
Dorfman urges us to consider the “overall scenario” of the incidents. (Appellant’s Reply Br. at 1) (citing Bray v. Marriott Hotels, 110 F.3d 986, 991 (3d Cir.1997)). Even considering the totality of circumstances, however, Dorfman has failed to show that a reasonable jury could find that age discrimination was a determinative factor in appellees’ decision not to renew her contract. Fuentes, 32 F.3d at 764.
B. Harassment
Dorfman claims that appellees’ conduct created a hostile work environment in violation of the NJLAD. In order to establish harassment, an employee must show that the employer’s conduct: 1) would not have occurred but for the em*829ployee’s protected characteristic; and the conduct was 2) severe or pervasive enough to make a 3) reasonable person believe that 4) the conditions of employment are altered and the working environment is hostile or abusive. Lehmann v. Toys R Us, Inc., 132 N.J. 587, 626 A.2d 445, 453 (1993). In support of this claim, Dorfman points to Guarracino’s comments about the photos and a statement that she (Guarracino) should get combat pay for working with her secretary who was 62 years old. Dorfman also cites other incidents, namely Guarracino’s failure to compliment her students over the public address system for their performance at a senior citizen’s luncheon, her failure to advertise the spring concert and subsequent audio-visual difficulties at the same concert. Further, Dorfman points to the involuntary transfer of two teachers to “another assignment.” (Appellant’s Br. at 12.) Except for possibly the comments about the photographs, there is no evidence that any of these incidents were a result of age-based animus on the part of appellees. Even if the incidents were a result of age-based animus, no reasonable jury could find that Dorfman’s working environment was hostile or abusive. Therefore, the district court properly granted summary judgment for the appellees on this claim.
C. Mixed-Motive
Finally, Dorfman argues that district court failed to analyze her claims under the “mixed motive theory.” (Appellant’s Br. at 12.) Under that theory, when an employee produces evidence that an employer placed substantial reliance on a proscribed discriminatory factor in making the adverse employment decision, the burden of persuasion shifts to the employer to prove that even if it had not considered the proscribed factor, the employment action would have occurred. McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 816 A.2d 164, 168 (2003). The district court did not err in this regard, however, because Dorfman did not produce any evidence that appellees placed substantial reliance on her age in deciding not to renew her contract.
IV. Conclusion
For the foregoing reasons, we will affirm the judgment of the district court.
. At various points in the record, Guarracino is referred to as “Cynthia Reid;” we will refer to her as Guarracino.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472325/
|
OPINION
PER CURIAM.
I.
In September 2005, Appellant Judy Enders-Maden filed suit against Super Fresh Food Markets, Inc. (“Super Fresh”), her former employer. Enders-Maden alleged that while employed at Super Fresh she was sexually harassed by her supervisor, that she was given disparate treatment with respect to scheduling, wages and full-time employment status because of her gender, and that, after taking eighteen months of medical leave, her employment was terminated because of her gender. Super Fresh moved for summary judgment. Instead of filing a response to Super Fresh’s motion, Enders-Maden filed her second motion for appointment of counsel, along with a discovery request. The District Court denied the counsel motion, denied Super Fresh’s summary judgment motion as premature, and granted Enders-Maden’s discovery request.
A short period of discovery followed, at the end of which Super Fresh renewed its motion for summary judgment. After Enders-Maden twice failed to respond to Super Fresh’s renewed motion for summary judgment, the District Court granted the motion. Enders-Maden’s husband, David Maden, who is neither a party to the suit nor an attorney, then filed a “motion for change of venue.” The District Court construed the motion as a notice of appeal on behalf of Enders-Maden as to its orders denying Enders-Maden’s motions for appointment of counsel and its order granting summary judgment for Super Fresh.
Before briefing commenced, the Clerk of this Court issued an order informing Enders-Maden that since her husband “does not appear to be a licensed attorney, it is hereby ORDERED that each Appellant personally sign any and all future submissions in this case that are intended to be filed on that individual’s behalf.” Notwithstanding this order, David Maden filed a brief on behalf of Enders-Maden that only bore his signature. Super Fresh then filed its brief.
II.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s decision to deny counsel to Enders-Maden for abuse of discretion. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.2002). A district court abuses its discretion when its decision “rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Id.
*831We exercise plenary review of the District Court’s order granting summary judgment. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir.2007). Summary judgment is proper where “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 a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We may affirm the District Court on any grounds supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000).
III.
As a preliminary matter, we observe that Enders-Maden has failed to comply with the Clerk’s order concerning its requirement that her personal signature appear on the opening brief. This conduct has effectively deprived the Court of any reviewable basis to question the judgment below. But even if we could excuse David Maden’s improper attempt to represent Enders-Maden on appeal, the opening brief that he filed is wholly insufficient to demonstrate a genuine issue of material fact in Enders-Maden’s case.1 Indeed, most of the brief relates only tangentially to the claims Enders-Maden raised in her complaint. At no point does the brief allege any specific errors by the District Court. In short, we have been provided with no basis for vacating the District Court’s order granting Super Fresh’s motion for summary judgment.
We also conclude that the District Court did not abuse its discretion when it denied Enders-Maden’s motions for appointment of counsel. Specifically, we agree with the District Court as to Enders-Maden’s inability to make the threshold showing of arguable merit in her case. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.1993). Nor did the District Court abuse its discretion when it refused to let David Maden act as Enders-Maden’s legal representative. See Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir.2007) (per curiam) (“[28 U.S.C. § 1654] does not permit ‘unlicensed laymen to represent anyone else other than themselves’ ”) (quotation omitted); cf. Osei-Afriyie v. The Medical College of Pennsylvania, 937 F.2d 876 (3d Cir.1991) (non-lawyer appearing pro se may not act as attorney for his children).
IV.
Accordingly, we will affirm the judgment of the District Court.
. Insofar as David Maden alleges that Super Fresh terminated Enders-Maden's employment because of her postpartum depression, we observe that this fact was not alleged before the District Court and does not relate to Enders-Maden's contentions that she was sexually harassed by her supervisor and discriminated against by Super Fresh because of her gender.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472327/
|
OPINION
PER CURIAM.
Ashok Shah, pro se, appeals from the District Court’s grant of the appellee’s motion for summary judgment. For the reasons that follow, we will affirm the District Court’s order.
*833In 2006, Adecco, a temporary staffing agency, found a work assignment for Shah with its client Bank of America (“BOA”). Shah was to work for BOA from December 4, 2006, to December 29, 2006. Shah had previously worked as a temporary employee for MBNA before it was acquired by BOA. During his previous assignments, Shah and another employee, Nancy Weeks, developed a personal relationship that ended in August 2001. Weeks later reported to her manager that Shah called her continuously at home and at work, and supposedly drove by her house on multiple occasions. Shah testified that Weeks asked him to call her and that she was the one who harassed him, but he never reported the harassment to the police.
On December 4, 2006, Shah reported to work and was assigned to the same area as Weeks, who was not in the office that day. One of Weeks’ coworkers who knew about the situation between Shah and Weeks recognized him and notified management. Management decided to avoid any problems. They informed Adecco that Shah’s services were no longer needed, and escorted him out of the building without an explanation. Shah worked a total of 3.75 hours that day. He was later informed that the reason for his termination was a bad reference. The termination had no effect on his ability to find further assignments from Adecco.
Shah then filed suit against BOA in the Superior Court of Delaware alleging employment discrimination under Title VII of the Civil Rights Act and the Delaware Discrimination in Employment Act (“DDEA”). 42 U.S.C. § 2000e-2; 19 Del. Code Regs. § 711. In his suit, Shah, who is of Indian origin, alleged discrimination based upon race and national origin. He sought compensatory damages in excess of one million dollars and punitive damages of three billion dollars. BOA removed the case to the District of Delaware, where BOA moved for summary judgment on the grounds that Shah could not establish he was an employee for purposes of Title VII or the DDEA, could not establish that he had exhausted his administrative remedies, and could not establish a prima facie case of discrimination. On February 20, 2009, the District Court issued an order granting BOA’s summary judgment motion. A timely notice of appeal followed.
Because summary judgment is only appropriate “where there is no issue of material fact and judgment is appropriate as a matter of law, our review of a grant of summary judgment is plenary.” Rosen v. Bezner, 996 F.2d 1527, 1530 (3d Cir.1993) (citing Jefferson Bank v. Progressive Cas. Ins. Co., 965 F.2d 1274, 1276 (3d Cir.1992)); see Fed.R.Civ.P. 56(c). To survive a motion for summary judgment, the plaintiff cannot rely on unsupported allegations in the complaint, and must present more than the “mere existence of a scintilla of evidence” in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After reviewing the record, we will affirm the District Court’s grant of summary judgment.
To establish a claim under Title VII of the Civil Rights Act, Shah must first establish that he in fact was an employee of BOA, and not of Adecco, his temporary staffing agency. See Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d 113, 127-28 n. 5 (3d Cir.1998) (stating that, as under Title VII, “independent contractors are not employees within the meaning of the ADEA”) (Scirica, J., concurring in part, dissenting in part); see also Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 492 (7th Cir.1996) (a plaintiff must prove “ ‘the existence of an employment relationship in order to maintain a Title VII action against [the defendant],” and “[independent contractors are not protected by Title VII.’ ”).
*834In order to determine whether a person is an employee for purposes of Title VII, the common law of agency and the traditional master-servant doctrine applies. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-24, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992).1 The court should consider:
the hiring party’s right to control the manner and means by which the product is accomplished [;]... the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
Id. at 323-24, 112 S.Ct. 1344.
The District Court found that under Darden Shah was not an employee of BOA.2 After reviewing the record, we agree with that assessment. We first note that, as the District Court pointed out, Shah does not in fact provide evidence showing that BOA is his employer rather than Adecco. His brief to this Court states repeatedly that “I believe Bank of America, Defendant is employer (sic) under § 710(6). ‘Employer’ means any person Employing 4 or more persons at the time of the alleged violation.”3 While it is true that BOA qualifies as an employer under the DDEA in that it has more than four employees, that alone is not evidence that Shah is among them. The record demonstrates that Shah worked for BOA for fewer than four hours; that he continues to receive work assignments through Adecco; that it is Adecco that assigns his rate of pay; that BOA contacted Adecco before terminating Shah’s employment; and that following his termination, Shah received unemployment benefits from Adecco, not BOA. Shah has submitted no evidence rebutting BOA’s contention that he was not its employee at the time of the dismissal. As a result, we find that the District Court properly granted BOA’s summary judgment motion because there existed no genuine issue of material fact as to whether Shah was an employee of BOA.4
. Darden was an ERISA case, not a Title VII case. However, the statutory language is identical. Furthermore, the Supreme Court has applied Darden in other employment discrimination contexts where the statutory definition of employee is the same as that in ERISA. See Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 444-45, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003).
. The Court limited its analysis to Title VII standards because they are virtually identical to those of the DDEA.
. It appears that Shah is relying upon the DDEA's definition of employer. See 19 Del. Code Regs. § 710(6) (" ‘Employer’ means any person employing 4 or more employees within the State at the time of the alleged violation. ... ”).
. The District Court also held that Shah could not establish discrimination based upon race or national origin. We need not comment on the Court’s analysis because we find that summary judgment was proper based upon the employment issue alone.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472333/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
Brandow Chrysler Jeep Co. et al. (collectively “Brandow”) appeal from the District Court’s grant of summary judgment in favor of DataScan Technology. Brandow argues that the District Court erred when it considered extrinsic evidence in order to interpret the terms of a release it relied upon in granting summary judgment. Brandow further contends that the District Court improperly concluded that no reasonable juror could make a finding of gross negligence on the part of DataScan. DataScan, in its Cross-Appeal, states that the District Court improperly denied as moot its motion for sanctions. Substantially for the reasons articulated in the District Court’s opinion, as well as those stated below, we will affirm.1
*845
I. Facts and Procedural History
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. Brandow has received floor plan financing from PNC Bank for approximately thirty years. This system requires an automobile dealer to maintain a certain level of inventory and to account for the vehicles that secure the credit line. Starting in 1994, PNC required monthly floor plan audits of Brandow and used its own personnel to conduct these audits. In 2001, DataScan began to conduct these audits on behalf of PNC.
In approximately August 2004, PNC and Brandow entered negotiations after it was discovered that Brandow’s vehicle inventory was in an “out of trust” position. These negotiations resulted in the extension of additional loans to Brandow in return for personal guarantees from Brandow’s principals as well as a release of PNC (“Release”). Plaintiffs signed the Release on November 15, 2004, releasing PNC, as well as its consultants and agents, from “all manner of claims ... whether known or unknown and whether based on facts now known or unknown ... from the beginning of the world to the date of this Release.” However, the Release only protected PNC’s agents and consultants if PNC is or may be hable on a claim for indemnification, contribution, or otherwise.
DataScan provided services to PNC pursuant to an Audit Agreement (“Agreement”) entered into on April 28, 1998. According to the Agreement, DataScan “provides on-site automated floorplan inventory auditing services ... for banks and financial institutions.” Under the Agreement’s terms, PNC indemnified DataScan for any “loss, damages, or expenses ... incurred or suffered by [DataScan] for any services rendered by [DataScan] in accordance with the terms and conditions of this Agreement, which claim does not result from the gross negligence or willful misconduct of [DataScan] ... at the time of Audit, to record the appropriate status of any Inventory on a File provided pursuant to the terms of this Agreement.” The Agreement also absolved DataScan of any liability to PNC for any misinformation provided to DataScan by PNC’s customers.
Brandow’s state court complaint was removed to the District Court on November 17, 2006. The complaint alleged that DataScan’s audits failed to comply with industry standards and that DataScan did not share with Brandow information it was required to share, resulting in losses of approximately $20 million. It included claims for breach of contract (as a third-party beneficiary), professional negligence, breach of fiduciary duty, and negligent representation. On June 13, 2007, the District Court granted a motion to dismiss the breach of contract and professional negligence claims. Upon a motion for reconsideration, the District Court dismissed the breach of fiduciary duty claim on October 2, 2007.
Brandow filed an amended complaint on October 29, 2007. DataScan responded ■with a motion to dismiss the remaining claims in the amended complaint, for negligent misrepresentation, breach of fiduciary duty, and intentional misrepresentation. While this motion was pending, DataScan filed a motion for summary judgment, arguing that it was an agent or consultant of PNC and accordingly included within the terms of the Release.
In ruling on the motion for summary judgment, the District Court, relying on the terms of the Agreement signed by DataScan and PNC in 1998, determined that DataScan was a “consultant” as that term is generally understood and was therefore covered by the Release. However, the District Court noted that if DataS*846can was either grossly negligent or engaged in willful misconduct, the Release would be inapplicable. The District Court found that DataScan was neither grossly negligent nor guilty of willful misconduct, and granted DataScan’s motion on the claims of breach of fiduciary duty and negligent misrepresentation.2
Brandow filed a Notice of Appeal on October 17, 2008, appealing the grant of summary judgment, based on the Release, on the breach of fiduciary duty and negligent misrepresentation claims, as well as the grant of the motion to dismiss with prejudice Plaintiffs’ intentional misrepresentation claim and the grant of the motion to dismiss Plaintiffs’ breach of contract claim. However, in its brief in this appeal, Brandow only requests that the grant of summary judgment be reversed and offers no arguments related to the intentional misrepresentation or breach of contract claims. Instead its arguments focus solely on the applicability of the Release to DataScan, which was the basis for the District Court’s grant of summary judgment on the breach of fiduciary duty and negligent misrepresentation claims.3
II. Discussion
Under Pennsylvania law, “[i]n cases of a written contract, the intent of the parties is the writing itself.” Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 588 Pa. 470, 905 A.2d 462, 468 (2006) (citation omitted). Absent ambiguity, the court should not look beyond the writing to determine the parties’ intentions. The District Court’s determination of the meaning of the term “consultant” did not rely upon extrinsic evidence, but instead followed standard principles of contract interpretation, relying upon common usage as reflected in a standard dictionary. It derived its definition of “consultant” from a decision of this Court: “one ‘who gives professional advice or services in the field of his special knowledge or training....’” Montgomery County v. Microvote Corp., 175 F.3d 296, 302 (3d Cir.1999) (citing Webster’s Third Neiv Int’l Dictionary of the English Language, Unabridged, 490 (1966)).
The District Court consulted the Agreement not to interpret the term consultant, but rather to identify the nature of DataScan’s work on behalf of PNC and whether it fit within this standard definition. DataScan’s work on behalf of PNC entailed the use of specialized knowledge, training and tools to conduct floor plan audits of Brandow’s inventory on behalf of PNC. These activities, the District Court properly concluded, “constitute the rendering of professional services in the field of special knowledge or training.” Brandow Chrysler Jeep Co. v. Datascan Techs., Civ. A. No. 06-5093, 2008 WL 4274494, at *3 (E.D.Pa. Sept.17, 2008). Accordingly, we find the District Court did not err in its use of the Agreement.
With regards to the issue of DataScan’s alleged gross negligence, when the question of whether particular conduct constitutes negligence, gross negligence, or recklessness is one that reasonable persons may disagree about, the question should be decided by a jury. Pichler v. UNITE, 542 F.3d 380, 390 (3d Cir.2008) (citation omitted). This case does not, however, present any basis for reasonable disagreement. The actions described in the affidavit of Margaret Stuski and depo*847sition testimony of Elizabeth Skinner do not constitute gross negligence. We also note that Brandow has failed to establish the specific duty owed by DataScan, so as to allow for a finding of a deviation, flagrant or otherwise, from the standard of care.
The evidence of misconduct presented by Brandow included that auditors failed to inspect vehicle titles and deal jackets and failed to confirm the locations of vehicles and note damage to vehicles, but instead relied almost exclusively on the representations of Brandow and its agents. Such behavior does not constitute gross negligence — “conduct that is ‘flagrant, grossly deviating from the ordinary standard of care,’ ” Benn v. Univ. Health Syst., Inc., 371 F.3d 165, 175-76 (3d Cir.2004)— particularly given that the terms of DataScan’s contract with PNC expressly allowed it to rely upon representations made by Brandow and shielded it from liability for doing so. Accordingly, we find the District Court did not err in its determination of this issue.
We have considered the other issues raised by DataScan and find they merit no further discussion.
For the foregoing reasons, we will affirm the District Court in all respects.
. The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. In the same memorandum and order, the District Court granted DataScan's motion to dismiss the intentional misrepresentation claim for failure to state a claim and denied all remaining motions as moot.
. We exercise plenary review over a district court's summary judgment ruling. Township of Piscataway v. Duke Energy, 488 F.3d 203, 208 (3d Cir.2007).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472335/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant George Aubrey appeals the District Court’s Order granting Appellees’ motions for summary judgment on his claim charging Donald Sanders, M.D. (“Sanders”), Center for Clinical Research, Inc., (“CCR”), Robert Gale Martin, M.D., (“Martin”), and Carolina Eye Associates, P.C. (“CEA,” collectively “Defendants”) with common law fraud and civil conspiracy under Pennsylvania law.1 Aubrey contends that Defendants concealed and misrepresented damming research in connection with their assistance to Sunrise Technologies International, Inc., (“Sunrise”) in obtaining approval from the Food and Drug Administration (“FDA”) for an ophthalmologic laser, thereby fraudulently luring him to invest in Sunrise. The District Court granted Defendants’ summary judgment motions. For the following reasons, we affirm the District Court’s judgment.
I.
The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1332(a) and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291. We exercise plenary review over a district court’s grant of summary judgment, applying the same standard of review that the district court should have applied. See MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir.2005). A court may grant summary judgment when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
II.
Because we write primarily for the parties, we discuss the facts only to the extent necessary for resolution of the issues on appeal.
Appellee Sanders is a physician and is the President of appellee CCR. Sunrise hired Sanders and CCR as consultants to assist it with the process of obtaining approval from the FDA for a laser used to cure farsightedness. Sanders and CCR arranged clinical trials to test the efficacy of the laser. He also assisted Sunrise in presenting the data from the trials to the FDA’s Opthalmologic Device Panel. Appellee Martin was a physician and the President of appellee CEA. Sunrise hired Dr. Martin to conduct clinical trials on the laser. He conducted trials on 15 patients, accounting for less than the five percent *849of the studies presented to the FDA. In July 1999, the FDA initially disapproved of the laser, but subsequently approved the device six months later, after Sunrise modified its label to reflect the laser’s temporary effectiveness at correcting farsightedness. From 1999 through 2002, Aubrey invested in Sunrise on the advice of various stockbrokers. According to Aubrey, the failure of the laser to effectively correct farsightedness resulted in a devaluation of his investment in Sunrise.
He commenced this action in Pennsylvania’s Court of Common Pleas, under Pennsylvania’s common law proscribing fraud, accusing Defendants of making material misrepresentations and omissions in connection with the laser’s efficacy, which fraudulently induced him into purchasing Sunrise stock. Specifically, he charged that Sanders manipulated the results of the clinical trials and made misleading statements regarding the laser in articles and press releases. Aubrey accused Martin of misrepresenting the results of the clinical trials and the potential for FDA approval to induce individuals to purchase stock in Sunrise. Defendants removed the action to federal court and after discovery, the parties filed motions for summary judgment. The District Court granted Defendants’ Rule 56 motion, ruling as a matter of law that: (1) Aubrey failed to prove the elements of fraudulent misrepresentation and civil conspiracy; (2) in the absence of direct reliance, Aubrey could not rely on the “fraud on the market” theory of liability; (8) the Food, Drug, and Cosmetic Act preempted any claim based upon a “fraud on the FDA” theory of liability; and (4) because Aubrey violated Local Rule 56.1, Defendants’ statements of material facts were deemed admitted.
III.
On appeal, Aubrey argues that the District Court erred, in relevant part, because it incorrectly ruled that he could not premise his claims upon a “fraud on the market” theory of liability.2 Under Pennsylvania’s common law, the elements of an intentional misrepresentation or fraud are:
(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) the resulting injury was proximately caused by the reliance.
Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 889 (1994). Under the fraud on the market theory, a plaintiff states a prima facie case if “[mjisleading statements w[ould] ... defraud purchasers of stock even if the purchasers [did] not directly rely on the misstatements” because the misstatements “may [have affected] the price of the stock, and thus defraud[ed] purchasers who rely on the price as an indication of the stock’s value.” Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986). In Peil, however, we expressly rejected an argument similar to the reasoning now advanced by Aubrey, refusing to extend and apply a fraud on the market theory of liability to a common law fraud claim. 806 F.2d at 1163 n. 17. *850(“While fraud on the market theory is good law with respect to the Securities Act, no state courts have adopted the theory, and thus direct reliance remains a requirement of a common law securities fraud claim.”).3
Aubrey urges us to revisit this precedent in light of the Supreme Court’s decision in Basic Inc. v. Levinson, 485 U.S. 224, 248-49, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), wherein the Court endorsed the fraud on the market theory in a securities fraud case premised on a violation of section 10(b) of the Securities Exchange Act of 1934. This decision led some district courts in this Circuit to predict that Pennsylvania courts would adopt a fraud on the market theory for common law securities claims. See e.g., In re Healthcare Servs. Group, Inc. v. Sec. Litig., 1993 WL 54437, at *6 (March 1, 1993 E.D.Pa.) (questioning the validity of the Peil footnote in light of the Basic decision); In re Atlantic Fin. Fed. Sec. Litig., 1990 WL 171191, at **2-3 (Oct. 31, 1990 E.D.Pa.) (opining that the Third Circuit would decide Peil differently post-Basic).
We agree with the District Court that those decisions are unpersuasive. First, as noted by the District Court, the Supreme Court in Basic distinguished common law fraud from federal securities fraud claims. 485 U.S. at 244 n. 22, 108 S.Ct. 978. In Basic, the Court observed that “[ajctions under Rule 10b-5 are distinct from common-law deceit and misrepresentation claims, and are in part designed to add to the protections provided [to] investors by the common law.” Id. (internal citations omitted). Second, despite the predictions advanced in the decisions cited by Aubrey, in the more than twenty intervening years since Basic, Pennsylvania has not recognized a fraud on the market theory of liability m common law fraud claims. Finally, the cases cited to by Aubrey are readily distinguishable because unlike the plaintiffs in those cases, Aubrey did not sue Sunrise, the company in which he invested, or its officers or directors.
We have considered the remainder of Appellant’s claims and find that they are without merit and therefore do not require further discussion.
IV.
For the foregoing reasons, we affirm the judgment of the District Court. Appellees’ request for Fed. R.App. P. 38 damages is, however, denied. In light of the record, we cannot conclude that Aubrey’s appeal was frivolous. Furthermore, Appellees failed to file a separate motion seeking damages as required by Rule 38.
. Dr. Martin died on March 18, 2008 and Aubrey never moved to substitute his Estate as a party.
. Appellees contend that Aubrey waived this issue because he did not advance this theory of liability in his moving papers before the District Court. Having failed in meeting his burden regarding direct reliance, Appellees contend that Aubrey should not be permitted to raise a new theory of liability on appeal. While Aubrey did not explicitly state his claim under a ‘‘fraud on the market” theory of liability, Appellees and the District Court construed Aubrey’s claim as raising this issue because Appellees devoted significant portions of their briefs to discounting this theory and the District Court rejected this theory in its Opinion. (App.226-27, 212-13). Therefore, we will consider the merits of this argument.
. Aubrey does not challenge the District Court’s ruling that he failed to identify any alleged misstatements or omissions by Defendants upon which he directly relied in deciding to purchase Sunrise stock.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472339/
|
OPINION
PER CURIAM.
Li Jun Yan, a native and citizen of the People’s Republic of China (“China”), au*856rived in the United States as a visitor on April 11, 1998. He overstayed his visa, and the Government charged him with removability. Yan conceded the charge and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).
Yan claims that he suffered past persecution and fears future persecution on the basis of his political opinion.1 In his affidavit and his testimony, Yan described how he was treated poorly in China. He was doing well as the manager of the import and export department of a machinery and industrial equipment company. However, his brother-in-law’s father or his brother-in-law,2 who was the director of the company, refused to promote a man named Yuancheng Wang. Wang hated Yan because of the director’s decision. After the director retired, Wang insinuated himself into the position of general manager of the company. From that position, he threatened, then exacted, revenge on Yan because the former director had passed him over for a promotion. He gave Yan a “hard time at different meetings.” He also “arranged for his trusted follower ... to interfere with [Yan’s] job.” Over time, it became “impossible for [Yan] to carry out [his] regular job and [he] was forced to leave [his] post and China.”
Yan fears future persecution not only because of how Wang and his underling treated him but also because of his activities as a member of the China Democracy Party (“CDP”) in the United States. Since joining the CDP in October 2004, Yan has participated in many protests in front of the Chinese Consulate General in New York. These protests were covered by television stations, newspapers, and websites. He has published articles critical of the Chinese government on the Internet. He serves as the Vice President of the Membership Department of the CDP, and he has recruited Mends to join the CDP. Yan also attended the memorial meeting of the former Chinese premier, Zhao Ziyang, which the Chinese government prohibited. He attended a forum on a book that describes the Chinese Communist Party as cheating the world and its people. He participated in military training led by Chaplain Yan Xiong, who was a student leader in the Tiananmen Square protests. According to Yan, Yan Xiong was arrested and jailed for his activities and is still regarded by the Chinese government as a counter-revolutionary figure. Yan contended that anyone associated with Yan Xiong is considered a counter-revolutionary activist.
Yan testified that the Chinese government became aware of his anti-government activities through the media and the Internet. He stated that Chinese policemen came to his home in China on December 25, 2004, and told his family members (his wife, child, mother, and sister) that he should return and surrender to the police and that they should cut their ties to him. The police returned in September 2005 and January 2006.
*857In support of his claim, Yan provided a letter from his sister, which provided an overview of Yan’s experiences and a mention of the police visit in 2004. Also, Wang Yung, the Chairman of the CDP in the United States, testified and submitted an affidavit to describe Yan’s role in the CDP in fighting to end one-party rule in China. Yung also testified that he knew of a person who engaged in similar activities in the United States who was imprisoned on his return to China. In the record are pictures of Yan giving a speech and protesting, as well as articles he has written for the CDP (they appear to be published in a CDP newsletter or newspaper and on the CDP website, R. 114-24). The 2004 Country Report on Human Rights Practices in China is also in the record.
The Immigration Judge (“IJ”) believed that Yan was an active member of the CDP based on the testimony and evidence in the record. However, the IJ did not put much stock in the letter from Yan’s sister because she was not present to be cross-examined and the letter was brief and had a “strange sort of tone.” The IJ was not confident that the letter was “legitimate” or “authentic” because it seemed to have been created to influence a court instead of to correspond with a sibling. The IJ noted that he asked to be shown evidence in the background material in the record that would show a likelihood that activities in the United States could lead to persecution in China. The IJ stated that he had not been directed to any such evidence and did not see any in the record. “For [that] reason,” the IJ concluded that Yan had not met his burden of proof to show that his political activity in the United States would lead to persecution or torture in China.
Yan appealed to the Board of Immigration Appeals (“BIA”). The BIA affirmed the IJ’s decision. After briefly summarizing Yan’s claims, the BIA stated that any mistreatment Yan suffered in China was “strictly personal” and not on account of a protected ground. Referring to pages in the IJ’s opinion as well as other parts of the record, the BIA agreed with the IJ that Yan failed to meet his burden to show a well-founded fear of future persecution. The BIA also rejected the withholding and CAT claims. Yan presents a petition for review.3
We have jurisdiction over his petition pursuant to 8 U.S.C. § 1252(a). Questions of law are reviewed de novo, see Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2001), while factual findings are reviewed for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Under the substantial evidence standard, the BIA’s decision is upheld unless the evidence not only supports a contrary conclusion, but compels it. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
As we alluded to earlier, see swpra n. 1, Yan challenges an adverse credibility determination that does not exist. Although the IJ questioned the authenticity of a letter submitted into evidence, neither he nor the BIA made a credibility finding. Accordingly, we ignore the arguments in his brief relating to “the credibility finding.” Instead, we will presume that Yan’s testimony is credible, see Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003), and will focus on the gist of Yan’s claim — that he was entitled to asylum and CAT protection.4
To the extent that Yan presented a claim for asylum based on past persecution, see supra, n. 1, the BIA did not err in rejecting it. The evidence supports the determination that Yan’s conflict with his supervisor was a personal/personnel conflict unrelated to Yan’s political opinion.
*858However, we conclude that a remand is necessary in this case so that the agency may evaluate all of the evidence under the appropriate legal test to determine whether Yan met his burden to show a well-founded fear of future persecution based on his CDP activities in the United States. An applicant can show eligibility for asylum or withholding because of a likelihood of persecution due to political activities occurring in the United States. See Tun v. United States INS, 445 F.3d 554, 570 (2d Cir.2006); Ghadessi v. INS, 797 F.2d 804, 807-09 (9th Cir.1986). The applicant must show that “authorities in his country of nationality are either aware of his activities or likely to become aware of his activities.” Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir.2008) (per curiam ).5 Neither the IJ, searching primarily for evidence in the background materials (and not finding all of the evidence therein), nor the BIA, relying on the IJ’s analysis, considered all of the relevant evidence that Yan presented.
There is some testimony (deemed credible) and other evidence in the record that suggest that the Chinese government is aware of, or could become aware of, Yan’s activities in the United States. Yan testified that the Chinese government is aware of his political activities because of the articles he has written for the CDP and because of his presence at protests. He testified that Chinese police have gone to his house in China three times. Yung, whose credibility also was not assessed, testified that a friend who engaged in similar activities was sentenced to years in jail on his return to China.
Furthermore, despite the IJ’s conclusion to the contrary, there is evidence in the 2004 Country Report on Human Rights Practices that supports Yan’s claims.6 Certainly, CDP is a group suppressed by the Chinese government: “Dozens of CDP leaders, activists, and members have been arrested, detained, or confined.” R. 138. People have been arrested and imprisoned for publishing articles critical of the Chinese government, including articles in support of the CDP. R. 147. Also, Chinese residents who were activists abroad have been imprisoned on return to their country. R. 155.
Nonetheless, we do not express any opinion on the appropriate outcome in this case. The agency may wish to weigh the evidence we have discussed against other evidence in the record and to consider the introduction of Country Reports more recent than the 2004 Country Report that was in the record We conclude only that a remand is necessary for the agency to consider all the evidence Yan presented under the appropriate legal test for asylum eligibility. Cf. Leng, 528 F.3d at 143. For this reason, we grant the petition for review and vacate the BIA’s order.7
. We note that Yan disavows a claim of past persecution before the agency, Appellant’s Brief 15, but his statement seems inconsistent with his arguments before the agency. Among other things also inconsistent with the proceedings in the agency is his statement that he seeks review of his (non-existent) motion to reopen, id. 1, the suggestion that this case relates to China’s one-child policy, id., the name on the right-hand corner of the cover of his brief, and the claim that the Immigration Judge made an adverse credibility finding, id. at 7. With regards to the last issue, and as the Government concedes, Appellee’s Brief 13, neither the Immigration Judge nor the Board of Immigration Appeals made an adverse credibility finding.
. Yan uses both terms in his affidavit.
. Yan previously sought a stay of removal, which we granted.
. He does not argue that he is entitled to statutory withholding of removal.
. Although the Second Circuit Court of Appeals does not cite Ghadessi, its test serves as an accurate summary of the test used in that case. See 797 F.2d at 808.
. Although Yan references the 2007 Country Report in his brief, see Appellant’s Brief 17-18, we do not consider the 2007 Country Report because it is not part of the administrative record before us. See 8 U.S.C. § 1252(b)(4)(A) (stating that "the court of appeals shall decide the petition only on the administrative record on which the order of removal is based”).
.As the Government notes in its brief, Yan's CAT claim is based on the same factual premise. Accordingly, on remand, after the agency assesses the risk of future persecution, the agency may again consider the claim for CAT relief. As we stated in relation to the asylum claim, we do not express an opinion on the ultimate merit of any of Yan's claims for relief.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472341/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
The gravamen of the case filed by Thomas Eames, Roberta Eames, and Tammy Eames (“the Eameses”) is that Nationwide Mutual Insurance Company (“Nationwide”) engaged in misrepresentation with respect to the Eameses’ automobile insurance policy by describing the policy limits for Personal Injury Protection (“PIP”) coverage as “full.” Specifically, the Eameses allege that this practice is misleading as they purchased “full” PIP coverage but only received the statutory minimum payments of $15,000 per person and $30,000 per accident when they made PIP claims on their Nationwide policy. The Eameses appeal from the District Court’s Orders granting Nationwide’s motions to dismiss. They challenge the District Court’s statute-of-limitations ruling and its holding that the pleadings failed to satisfy the particularity requirement of Federal Rule of Civil Procedure 9(b). For the reasons stated below, we will affirm.
*860I.
The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the grant of Nationwide’s motions to dismiss. Miller v. Fortis Benefits Ins. Co., 475 F.3d 516, 519 (3d Cir.2007).
II.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of the case.
The Eameses commenced this proposed class action in Delaware Superior Court; it was removed by Nationwide to the District Court of Delaware based on diversity jurisdiction. The case concerns Nationwide’s sale of automobile insurance policies that describe the policy limits for Personal Injury Protection (“PIP”) coverage as “full.” Thomas Eames and Roberta Eames are named insureds under such a Nationwide automobile insurance policy. On February 7, 2003, they and their daughter, Tammy Eames, were injured in an automobile accident. The Eameses allege that they tendered claims for PIP benefits following the accident and that Nationwide stated that their policy limits had been exhausted by payment of the minimum statutory amount, $15,000 per person and $30,000 per accident.
The Eameses’ original Complaint asserted five causes of action: (1) declaratory judgment; (2) breach of contract; (3) bad faith breach of contract; (4) consumer fraud in violation of the Delaware Consumer Fraud Act (“DCFA”), 6 DeLCode § 2513; and (5) civil conspiracy. With respect to the DCFA claim, the Eameses contend that the use of the word “full” deceptively suggested that they had purchased the maximum amount of PIP coverage that Nationwide actually offered, $100,000 per person and $300,000 per accident — the “maximum limit” theory. The Eameses also argue that the word “full” misled them to believe that what they had purchased — $15,000 per person and $30,000 per accident — was the most PIP coverage available for purchase — the “fullest available limit” theory. The civil conspiracy cause of action was also premised on the allegation that Nationwide’s characterization of PIP limits as “full” was misleading.
Nationwide filed a motion to dismiss the Eameses’ Complaint. On February 2, 2006, the District Court dismissed the first three counts with prejudice. The Court dismissed the fraud-based claims with leave to amend, ruling that they were not pleaded with sufficient particularity to satisfy Federal Rule of Civil Procedure 9(b). The Eameses subsequently filed an Amended Complaint limited to claims for violation of the DCFA and civil conspiracy; Nationwide filed a second motion to dismiss. On August 29, 2006, ruling that the Eameses had reason to know in 1994 that their policy limits were $15,000 per person and $30,000 per accident, the District Court concluded that, with respect to the “maximum limit” theory, the applicable three-year statute of limitations had run. The Court dismissed the remaining counts to the extent that they relied on the “maximum limit” theory. Concerned about the effect of this partial dismissal on the amount in controversy, the Court reserved ruling on the balance of Nationwide’s motion to dismiss pending a resolution of the jurisdictional question. The Eameses filed a motion to reconsider the statute-of-limitations ruling. In their jurisdictional submissions, the parties agreed that the amount-in-controversy requirement was met even after the dismissal of the “maximum limit” theory.
The motion to dismiss and motion for reconsideration were referred to a Magis*861trate Judge who, in a Report and Recommendation, recommended that the motion for reconsideration be denied and that the motion to dismiss be granted. On September 80, 2008, the District Court issued a Memorandum Opinion overruling the Eameses’ objections and granting the remainder of Nationwide’s motion to dismiss.
In their Notice of Appeal, the Eameses appealed from the following orders: the February 2, 2006 Memorandum Opinion and Order granting Nationwide’s motion to dismiss the original Complaint; the August 29, 2006 Memorandum Opinion and Order granting in part Nationwide’s motion to dismiss the Amended Complaint based on statute-of-limitations grounds; and the September 80, 2008 Memorandum Opinion and Order adopting the Report and Recommendation and granting the remainder of Nationwide’s motion to dismiss the Amended Complaint.
III.
On appeal, the Eameses raise the following contentions: (1) the requirement that a plaintiff plead fraud claims with particularity does not apply to statutory consumer protection claims; (2) assuming arguendo that the particularity requirement does apply, the Amended Complaint pled violations of the DCFA with the requisite particularity; (3) the District Court erred in dismissing, on statute-of-limitations grounds, the fraud claims to the extent that they were based on the “maximum limit” theory; and (4) the Magistrate Judge improperly ruled on the merits of the Eameses’ claims.
In three extensive "written opinions, the District Court carefully and thoroughly considered the contentions that the parties raise in this appeal. After a complete review of the record and the parties’ arguments, we find no basis for disturbing the District Court’s rulings. Therefore, we "will affirm the judgments substantially for the reasons set forth by the District Court in its written opinions. See Eames v. Nationwide Mutual Ins. Co., No. 04-cv-1324, 2008 WL 4455743 (D.Del. Sept.30, 2008); Eames v. Nationwide Mutual Ins. Co., No. 04-cv-1324, 2006 WL 2506640 (D.Del. Aug.29, 2006); Eames v. Nationwide Mutual Ins. Co., 412 F.Supp.2d 431 (D.Del.2006).
We add only the following: With respect to the statute-of-limitations ruling, the Eameses argue that Nationwide made representations in 2003 that they had “full” PIP coverage, thus beginning a new three-year limitations period. In 2003, however, the Eameses already had reason to know that the term “full,” when applied to PIP coverage, did not mean the maximum amount of PIP coverage offered by Nationwide, $100,000 per person and $300,000 per accident. Thus, when Nationwide used the term “full” in 2003, this was not a misrepresentation that could commence a new limitations period under the “maximum limit” theory. The Eameses’ reliance on the 2003 statements is misplaced, and we will therefore affirm the District Court’s statute of limitations ruling.
IV.
For the foregoing reasons, we affirm the judgments of the District Court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472343/
|
OPINION
BARRY, Circuit Judge.
Pennsylvania Manufacturers’ Association Insurance Company (“PMAIC”) and Transportation Insurance Company (“TIC”) issued commercial general liability (“CGL”) insurance policies to G & B Specialities (“G & B”) that were materially indistinguishable except for the respective coverage period. The TIC policy covered the defense and indemnification of G & B against actions seeking damages for “ ‘personal and advertising injury1 caused by an offense arising out of [its] business ... during the policy period” that extended from April 24, 1999 to April 24, 2000. (App. at 187.) The PMAIC policy provid*863ed the same scope of coverage for the following year — from April 24, 2000 to April 24, 2001. Each policy contained a “prior publication” exclusion, stating: “[t]his insurance does not apply to ... ‘[pjersonal and advertising injury’ ... [ajrising out of oral or written publication of material whose first publication took place before the beginning of the policy period.” (App. at 146,187.)
The case before us involves a coverage dispute between TIC and PMAIC regarding an action brought by Pohl Corporation against G & B in the U.S. District Court for the Eastern District of Pennsylvania and filed on July 18, 2000 (the “underlying-action”). In the underlying action, Pohl alleged that, “[bjeginning in August 1999 and continuing to the [time of filing],” G & B “ha[d] been contacting customers and clients of Pohl” and representing that Pohl’s products infringed on a patent held by Norfolk Southern Railway Company (“Norfolk Southern”). (App. at 57.) G & B tendered the underlying claim to TIC and PMAIC in accordance with both policies, seeking defense and indemnification. In October 2000, TIC assumed defense of the action, and continued to defend G & B until July 2006, when G & B entered into a settlement with Pohl. PMAIC, on the other hand, disclaimed coverage, stating that the facts alleged in the underlying complaint did not trigger a duty to defend under the language of its policy.
TIC filed this action on December 11, 2006, seeking, inter alia, reimbursement for a share of the costs it incurred in defending and indemnifying G & B. Ruling on cross motions for summary judgment, the District Court found in favor of TIC and ordered PMAIC to pay half of the costs incurred by TIC.
The central issue before the District Court was the same as the issue before us, namely whether the underlying action falls within the PMAIC “prior publication” exclusion. The Court answered that question in the negative, concluding that the relevant “prior publication” exclusion was ambiguous and inapplicable. Although the “prior publication” exclusion has been considered ambiguous in other circumstances, see, e.g., Maddox v. St. Paid Fire & Marine Life Insurance Co., 179 F.Supp.2d 527, 580 (W.D.Pa.2001) (Smith, J.), it is not ambiguous in the circumstances before us. Because the underlying complaint clearly states that all of the relevant conduct began in August 1999 — more than six months before the PMAIC policy period commenced — we conclude that the “prior publication” exclusion bars coverage, and will reverse.
I. Background
A. The Underlying Action
G & B and Pohl are competing manufacturers of railroad switch stands, and, on July 18, 2000, Pohl filed the underlying action against G & B. The complaint states that G & B manufactured railroad switch stands for Norfolk Southern and that it was a licensee of Norfolk Southern’s patent on a purportedly improved railroad switch stand. Pohl, however, disputed the enforceability of Norfolk Southern’s patent, contending that its elements were neither new nor nonobvious.
Despite the patent dispute, G & B allegedly began contacting Pohl’s customers and disparaging the Pohl railroad switch stand. The complaint alleges, in relevant part, that “[bjeginning in August 1999 and continuing to the [time of filing], G & B ha[d] been contacting customers and clients of Pohl and misrepresenting that”: “Pohl [was] infringing [on] Norfolk [Southern’s] [p]atents”; “Pohl [was] selling railroad switch stand designs that [were] stolen from G & B and Norfolk [Southern]”; and “past and future purchase of Pohl’s switch stands constituted [patent] infringement ... for which those customers and *864clients would be liable....” (App. at 57.) Pohl claimed that G & B’s conduct gave rise to liability because its “misrepresentations and threats” violated Section 43(a) of the Lanham Act, see 15 U.S.C. § 1125(a). Pohl also raised three state law claims— unfair competition, commercial disparagement, and tortious interference with business relationships.1
B. The PMAIC Policy
The PMAIC CGL policy purchased by G & B covered a period that extended from April 24, 2000 to April 24, 2001. In general, the policy provided defense and indemnification against “ ‘personal and advertising injury’ caused by an offense arising out of [G & B’s] business but only if the offense was committed ... during the policy period.” (App. at 146.) “‘Personal and advertising injury’” was a defined term, which included, in relevant part, an injury “arising out of ... [o]ral or written publication of material that ... disparages a person’s or organization’s goods, products or services.” (Id. at 153.)
There were, however, a number of exclusions, three of which are relevant here. The PMAIC policy did “not apply to ... ‘[p]ersonal and advertising injury’ ... arising out of oral or written publication of material whose first publication took place before the beginning of the policy period” (“prior publication” exclusion). (Id. at 146.) Coverage would also not extend if the personal and advertising injury was “[c]aused by ... the insured with the knowledge that the act would ... inflict ‘personal and advertising injury’ ” (“intent to injure” exclusion), or if the injury arose “out of oral or written publication of material, if done by ... the insured with knowledge of its falsity” (“knowledge of falsity” exclusion). (Id.)
C. The Present Action
It is undisputed that G & B tendered the underlying claim in October 2000 to both TIC and PMAIC, and that PMAIC disclaimed coverage. After Pohl filed its second amended complaint in July 2003, G & B again requested coverage under the PMAIC policy. Explaining its refusal to extend coverage, PMAIC stated that the second amended complaint did not trigger coverage, and, alternatively, that the above-described exclusions applied. PMA-IC reiterated its position by letter dated May 25, 2006.
Following the resolution of the underlying action, TIC filed this action, claiming that it expended in excess of $230,000 in defending G & B, and that, pursuant to an agreement between it and G & B, TIC paid $175,000 towards the settlement G & B reached with Pohl. TIC sought a declaration that, like its policy, PMAIC’s policy mandated defense and indemnification. TIC also sought reimbursement for PMA-IC’s share of the costs it incurred in defending and indemnifying G & B.
The District Court granted summary judgment in favor of TIC. The Court first concluded that the underlying action alleged a “personal and advertising injury” within the ambit of the PMAIC policy, and that PMAIC was obligated to provide coverage unless it could demonstrate that a policy exclusion applied. Next, the Court addressed the “prior publication” exclusion, and concluded that it was ambiguous. *865Construing the ambiguity in favor of the insured, the Court concluded that the exclusion did not apply.2 After concluding that PMAIC had an unmet duty to defend, the District Court held that PMAIC was equitably estopped from asserting that it had no duty to indemnify G & B. Accordingly, the Court found PMAIC liable for half of the defense costs borne by TIC, and for half of the indemnity paid by TIC to G & B.
II. Discussion
“Our standard of review of a grant of summary judgment is plenary.” Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir.2008).3
Under Pennsylvania law, which the parties agree is applicable here, the interpretation of an insurance contract regarding the existence of coverage is generally performed by the court. Id. at 558; see Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 589 Pa. 317, 908 A.2d 888, 897 (2006) (“The interpretation of an insurance policy is a question of law that we will review de novo.”).
“Our inquiry is straightfoward.” Nationwide Mut. Ins. Co. v. CPB Int’l, Inc., 562 F.3d 591, 595 (3d Cir.2009). Our first step “is to determine the scope of the policy’s coverage,” General Accident Insurance Co. of America v. Allen, 547 Pa. 693, 692 A.2d 1089, 1095 (1997), and the keystone of that determination is the plain language of the policy. Nationwide, 562 F.3d at 595. “When the language of the policy is clear and unambiguous, we must give effect to that language.” Kvaerner, 908 A.2d at 897 (quotation marks and citation omitted). “However, ‘when a provision in the policy is ambiguous, the policy is to be construed in favor of the insured to further the contractfs] prime purpose of indemnification and against the insurer, as the insurer drafts the policy and controls the coverage.” Donegal Mut. Ins. Co. v. Baumhammers, 595 Pa. 147, 938 A.2d 286, 290 (2007) (quoting Kvaerner, 908 A.2d at 897); Madison Const. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999) (“We will not ... distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity.”).
After determining the scope of coverage, we “examine the complaint in the underlying action to ascertain if it triggers coverage,” Allen, 692 A.2d at 1095, because an insurer’s “duties to defend and indemnify an insured in a suit brought by a third party depend upon a determination of whether the [underlying] complaint triggers coverage,” Baumhammers, 938 A.2d at 290 (quotation marks and citation omitted). Our focus, in particular, is on the “factual allegations contained in the [underlying] complaint,” id. at 291, which are “to be taken as true and liberally construed in favor of the insured,” Frog, Switch, & Mfg. Co., 193 F.3d at 746.4
*866A. Scope of Coverage
There is little question that the underlying complaint alleges “ ‘personal and advertising' injury to which [PMAIC’s] insurance applies.” (App. at 146.) As defined in the policy, “personal and advertising injury” is an injury arising out of “[o]ral or written publication of material that ... disparages a person’s or organization’s goods, products or services.” (Id. at 153.) The underlying complaint alleges precisely such an injury — that G & B had been contacting Pohl’s clients and misrepresenting that Pohl’s products infringed on an existing patent. The language stressed by PMAIC — that “we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘personal and advertising iryury’ to which this insurance does not apply” (id. at 146) — references not the general scope of coverage, but the exclusions within that scope. It is, simply, an argument that one of three exclusions applies.
B. “Prior Publication” Exclusion
“Where an insurer relies on a policy exclusion as the basis for its denial of coverage ... the insurer has asserted an affirmative defense and, accordingly, bears the burden of proving such a defense.” Madison Constr., 735 A.2d at 106. The focus of PMAIC’s argument is its “prior publication” exclusion, which denies eoverage for any injury “[a]rising out of oral or written publication of material whose first publication took place before the beginning of the policy period.” (App. at 146.) “Under the exclusion’s plain terms the ‘first publication’ date is a landmark: if the injurious advertisement was ‘first published’ before the policy coverage began, then coverage for the ‘advertising injury’ is excluded.” Applied Bolting Tech. Products v. United States Fid. & Guar. Co., 942 F.Supp. 1029, 1036 (E.D.Pa.1996).
Here, the PMAIC policy period began on April 24, 2000. The central factual allegations of the underlying action are that, beginning in August 1999 and continuing until the time of the filing of the complaint, G & B had been contacting customers and clients of Pohl and, inter alia, misrepresenting that past and future purchase of Pohl’s switch stands constituted patent infringement for which those customers and clients would be liable. There is no indication in the complaint that G & B’s alleged misrepresentations changed in substance between when they were first made and the filing of the complaint. G & B’s conduct, therefore, falls squarely within the plain language and purpose of the exclusion. See Maddox, 179 F.Supp.2d at 530 (“[L]ogically[,] the point of the exclusion is to prevent a[] [company that] has caused an injury from buying insurance so that [it] can continue [its] injurious behavior.”).5
*867TIC contends otherwise, arguing that the extent of the injury — and the audience for G & B’s misrepresentations — grew after August 1999, and that the exclusion is therefore inapplicable. That argument is unpersuasive, because under the “prior publication” exclusion, “[i]t is irrelevant that later publications, made after the policy became effective, also caused ‘advertising injury5 or increased the damages.” Applied Bolting, 942 F.Supp. at 1036. Unless later publications contained “new matter” — i.e. substantively different content— that the underling complaint “allege[d] [were] fresh wrongs,” the “prior publication” exclusion applies. Taco Bell, 388 F.3d at 1074.
The District Court’s conclusion to the contrary relies on Maddox, which held that the “prior publication” exclusion “is ambiguous because it is reasonably susceptible to more than one interpretation.” 179 F.Supp.2d at 530. As the Supreme Court of Pennsylvania has stated, the terms in an insurance policy “are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular• set of facts.” Madison Constr., 735 A.2d at 106 (emphasis added). Thus, terms that are straightforward in one context may be ambiguous in the next.
There is little doubt that the exclusion was ambiguous when considered in light of the facts in Maddox. There, the insured had performed in a band named “The Marcels” since 1961, and had purchased CGL insurance yearly beginning in 1992. The plaintiff in the underlying action had obtained a trademark for the Marcels mark in June 1996, and subsequently brought suit against the insured alleging trademark infringement. The insurer denied coverage, stating that the “lawsuit fell under the ‘[prior] publication’ policy exclusion” because the first publication had occurred prior to the policy period beginning in 1992; the insured brought a declaratory judgment action seeking coverage. Maddox, 179 F.Supp.2d at 529. The Maddox court concluded that the “prior publication” exclusion was ambiguous under those circumstances, “as a reasonable person in the position of the insured would understand the exception to mean that an advertising injury is only excluded when there was a wrongful publication prior to the policy period....” Id. at 530. The underlying complaint, of course, did not allege a prior use of the trademark that pre-dated the insurer’s policy period — nor could it, as the policy began in 1992, and the trademark was not registered until 1996.
Here, however, the underlying complaint alleged that G & B misrepresented Pohl’s products beginning in 1999. The complaint does not suggest that G & B’s publications were, at one point, permissible, and later became injurious. Rather, it alleges that, dating back to August 1999, the publications were consistently injurious. Given those facts, the same exclusion that was ambiguous in Maddox is unambiguous here: PMAIC’s “insurance does not apply to ... ‘[p]ersonal and advertising injury’ ... [a]rising out of oral or written publication of material whose first publication took place before [April 24, 2000].” (App. at 146). Accordingly, the “exclusion in the policy prevents [PMAIC] from having to defend or indemnify” G & B against the underlying action. See Mutual Ben. Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743, 746 (1999).6
*868III. Conclusion
We will reverse the judgment of the District Court and remand with directions to enter summary judgment in favor of PMAIC.
. The underlying action was consolidated with a declaratory judgment action Pohl had filed against Norfolk Southern on July 25, 2001 seeking a declaration that Norfolk's patent was invalid. Pohl filed a second amended complaint on July 25, 2003, adding, inter alia, additional claims of patent invalidity against Norfolk Southern, and two claims that G & B intentionally mismarked its railroad switch products as patented. On July 28, 2006, Pohl and G & B entered into a settlement, which provided that G & B would pay Pohl $250,000 to dispose of the claims against it.
. Additionally, the Court concluded that while the “intent to injure” and “knowledge of falsity" exclusions may have barred part of the underlying claim, Pohl could have established liability by proving that G & B acted in a reckless or negligent manner. Thus, PMAIC's duty to defend was not extinguished. (Id. at 16); see Frog, Switch & Mfg. Co. v. Travelers Ins. Co., 193 F.3d 742, 746 (3d Cir.1999) (”[I]f a single claim in a multiclaim lawsuit is potentially covered, the insurer must defend all claims until there is no possibility that the underlying plaintiff could recover on a covered claim”).
. The District Court exercised diversity jurisdiction under 28 U.S.C. § 1332, and we have jurisdiction over the final order of the District Court pursuant to 28 U.S.C. § 1291.
. PMAIC challenges only the District Court's determination that it had a duty to defend G & B in the underlying action. The limited nature of PMAIC’s appeal impliedly concedes *866that, if it did have a duty to defend, it also must contribute to TIC’s indemnity payment. See Cadwallader v. New Amsterdam Cas. Co., 396 Pa. 582, 152 A.2d 484, 488 (1959) (“It is clear that where a claim potentially may become one which is within the scope of the policy, the insurance company’s refusal to defendant at the outset of the controversy is a decision that it makes at its own peril”). *867Taco Bell Corp. v. Cont’l Cas. Co., 388 F.3d 1069, 1072-73 (7th Cir.2004) (Posner, J.) (citation omitted).
. As the Seventh Circuit has stated:
The purpose of the ‘prior publication' exclusion (a common clause in liability-insurance contracts, though rarely litigated) can be illustrated most clearly with reference to liability insurance for copyright infringement. Suppose a few months before insurance began on October 7, 1997, the insured published an infringing book that it continued selling after October 6. The 'prior publication’ exclusion would bar coverage because the wrongful behavior had begun prior to the effective date of the insurance policy. The purpose of insurance is to spread risk — such as the risk that an advertising campaign might be deemed tortious — and if the risk has already materialized, what is there to insure? The risk has become a certainty.
. Because we conclude that PMAIC's prior publication exclusion barred coverage, we need not address the applicability of the "intent to injure” and "knowledge of falsity" exclusions.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472345/
|
OPINION
BARRY, Circuit Judge.
Appellant Kareem Millhouse was convicted by a jury of three counts of bank robbery, two counts of armed bank robbery, one count of Hobbs Act robbery, and three counts of related firearms offenses. We will affirm the judgment of conviction.
I.
Millhouse was charged in connection with six separate robberies, all occurring in Philadelphia over a seven-week period in 2006. When he was arrested on the day of the final robbery, he provided a detailed written confession to the FBI as to all six robberies. An accomplice, Terrence Hawkins, was also charged with three of the robberies; Hawkins pled guilty and testified against Millhouse at trial.
Because we write only for the parties, we need not review the facts of each robbery or the extensive, if not altogether overwhelming, evidence of Millhouse’s guilt. We note, however, that this evidence included surveillance photographs; the testimony of numerous victim tellers, store clerks, and others (including four who identified Millhouse at trial); the testimony of Hawkins; Millhouse’s 14-page confession; and physical evidence including fingerprints, a palm print, a boot print, and DNA.
The events of May 1, 2006, however, are relevant to this appeal, and we will briefly describe them. On May 1, Millhouse robbed a Wine and Spirits Shoppe in Philadelphia at gunpoint, taking money and two bottles of cognac, while Hawkins waited outside in a blue Chevrolet Corsica. After that robbery, Hawkins drove Mill-house to the nearby East River Bank and waited in the car while Millhouse robbed the tellers at gunpoint, taking bags of cash which included bait money with prerecorded serial numbers. Millhouse and Hawkins fled the scene in the Corsica.
Two Philadelphia police officers, having received a radio report describing a Corsica in which two black males were driving, approached the Corsica with weapons drawn when they saw it stopped at a traffic light a few blocks from the bank. The officers ordered Hawkins and Millhouse not to move, but Hawkins disobeyed the order and caused the car to jump a curb and crash into an overpass support. Hawkins and Millhouse fled; Hawkins was arrested shortly thereafter. Millhouse was arrested two weeks later, following his robbery of Citizens Bank.
The police found a handgun on the ground outside the ear and money and two bottles of cognac inside the car. Victims of both robberies identified the car, and the serial numbers of some of the currency found in the car matched the numbers of the bait money. A short distance from the crash site, officers found an East River Bank bag and a one-dollar bill, both containing reddish stains later confirmed to be blood. Similar stains were found inside the car.
At trial, victims of both robberies testified that, at the time of the robberies, Millhouse’s wrist had been bleeding, and DNA analysis showed that the DNA found on the East River Bank bag, one-dollar bill, and inside the car was a complete match with his DNA. The government offered Benjamin Levin, a forensic scientist with the Philadelphia Police Department’s DNA lab, as an expert in DNA testing, to testify both to his determination that Mill-house’s DNA was a complete match -with the DNA collected from the scene and his opinion as to the probability of finding a *870similar match in an unrelated population. Millhouse objected primarily to that part of Levin’s opinion having to do with population statistics and population frequency, arguing that the government failed to disclose these bases for the opinion in its submissions under Federal Rule of Criminal Procedure 16 and that this type of testimony was unreliable and should be excluded under Federal Rule of Evidence 702.
The District Court resolved the parties’ discovery dispute by permitting Millhouse to voir dire Levin outside the presence of the jury so that Millhouse could “explore the basis of [Levin’s] opinion,” and gave Millhouse extra time in which to prepare cross-examination. In its Rule 702 analysis, the Court found that “the whole community relies on this type of information,” and accepted Levin as an expert in forensic DNA analysis and interpretation. (App. at 264, 270.) Levin then testified before the jury that he used a computer program called PopStats and the Pennsylvania State Police Database to calculate the population frequency of Millhouse’s DNA profile. He testified that the population frequency for Millhouse’s DNA profile, representing the number of times that the profile would be found in the population, was 1 in 19.0 trillion for the African-American population, 1 in 18.0 trillion in the Caucasian population, and 1 in 2.53 trillion in the Hispanic population.
The last witness was Special Agent Thomas Perzichilli of the FBI, who witnessed Millhouse’s written confession. In his confession, Millhouse stated: “I was just trying to get money to pay a drug debt so I would not get killed.” (Supp. App. at 314.) The parties had agreed, prior to trial, that the word “drug” would be redacted from the statement and would not come in at trial. Agent Perzichilli, however, included the word “drug” when reading the confession to the jury although the written version, projected onto the jurors’ monitors during the testimony, did not contain the word “drug.” Millhouse moved for a mistrial, arguing that he was unfairly prejudiced by the agent’s testimony. The District Court denied the motion, but included the following instruction in the jury charge:
You will recall that Agent Perzichilli read the Millhouse written statement during his testimony. If Agent Perzichilli’s reading is different from the text of the written statement that has been admitted into evidence and which you will receive, I instruct you to disregard Agent Perzichilli’s deviation. The written copy is the evidence that you will have regarding the statement.
(App. at 379.)
After a five-day trial, the jury convicted Millhouse on all counts, and he was later sentenced to 894 months in prison and a five-year term of supervised release. He now appeals.
II.
A. Testimony of DNA Expert Levin
Millhouse argues that Levin’s testimony as to DNA population frequency should have been excluded both because it was not included in the government’s Rule 16 disclosures and because it was not reliable within the meaning of Federal Rule of Evidence 702. We review the District Court’s decision for abuse of discretion. United States v. Ford, 481 F.3d 215, 217 (3d Cir.2007).
1. Federal Rule of Criminal Procedure 16
It is undisputed that the government’s Rule 16 disclosure as to DNA expert Levin contained no mention of population frequency or population statistics. Assuming, without deciding, that this constituted a *871violation of the government’s Rule 16 obligations, the District Court did not abuse its discretion when it allowed Levin to testify despite the violation.
Rule 16(a)(1)(G) requires the government to produce a written summary of any expert testimony it seeks to offer at trial. If a party fails to comply with this Rule, the court may:
(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the undisclosed evidence; or
(D) enter any other order that is just under the circumstances.
Fed.R.Crim.P. 16(d)(2).
We have held that a new trial is warranted based on the government’s violation of Rule 16 only when the defendant has demonstrated that the district court’s actions resulted in prejudice to him. United States v. Lopez, 271 F.3d 472, 484 (3d Cir.2001). The defendant must show “a likelihood that the verdict would have been different had the government complied with the discovery rules.” United States v. Davis, 397 F.3d 173, 178 (3d Cir.2005) (internal citation and quotation omitted).
Although it may not always suffice, in this case the District Court adequately resolved the parties’ dispute by permitting voir dire of Levin outside of the presence of the jury and giving the defense time in which to prepare for cross-examination. Indeed, the defense went on to conduct a searching and extensive cross-examination, eliciting testimony from Levin regarding the potential under-representation of African-American males in the Pennsylvania State Police database as compared with the actual population in Philadelphia, the potential for contamination of the sample, and Levin’s calculation methods, which were done using the PopStats computer program rather than by hand. The defense also elicited from Levin an admission that, although Millhouse’s DNA was a “complete match,” the DNA could “match others completely” as well. (App. at 277, 294.)
In any event, Millhouse has not demonstrated that he was prejudiced by any purported Rule 16 violation. Most importantly, he does not contest Levin’s testimony that his DNA was a complete match with the DNA recovered from the scene, and the evidence of Millhouse’s guilt as to each of the May 1 robberies was overwhelming.1
2. Federal Rule of Evidence 702
Rule 702 provides that an expert may offer opinion testimony provided that the testimony is (1) based on sufficient facts or data, (2) the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. The District Court serves as a “gatekeeper” for the admissibility of scientific testimony, evaluating, as a preliminary matter, whether the expert’s methodology is scientifically valid and can be properly applied to the facts at issue. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Ford, 481 F.3d at 219-20. We have held that the reliability analysis is “lower than the merits standard of correctness” and is flexible in nature. Pineda v. Ford Motor Co., 520 F.3d 237, 247-48 (3d Cir.2008) (internal quotation omitted); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir.1994) (outlining several factors to be considered).
*872Millhouse argues that Levin’s testimony regarding the process he used in analyzing the DNA demonstrates its unreliability, particularly because the African-American population of Philadelphia was under-represented in the Pennsylvania State Police database and, had it been properly represented, the likelihood of more persons having the same DNA as Millhouse would increase. Each of his concerns as to the DNA evidence, however, goes to the weight and not the admissibility of the evidence. The District Court did not abuse its discretion in finding that Levin’s expert testimony was admissible under Rule 702.
B. Denial of Motion for Mistrial
Millhouse argues that the District Court erred when it denied his motion for a mistrial based on Agent Perzichilli’s reference to a “drug” debt. We review the denial of a motion for a mistrial based on a witness’s allegedly prejudicial comments for abuse of discretion. United States v. Lore, 430 F.3d 190, 207 (3d Cir.2005). Specifically, we examine (1) whether the remarks were pronounced and persistent, creating a likelihood that they would mislead ■ and prejudice the jury, (2) the strength of the other evidence, and (3) curative action taken by the District Court. Id.
We need not dwell on this issue because the relevant factors do not begin to weigh in Millhouse’s favor. First, far from being “pronounced” and “persistent,” Millhouse complains of one word that was not reinforced by what the jurors saw on their monitors; further, the jurors were instructed that the written form was to prevail over any oral reading that differed. Second, even if Agent Perzichilli had not used the word “drug,” evidence that Mill-house admitted being motivated by a “debt” would nonetheless constitute the evidence of motive he suggests was lacking. And, of course, the other evidence against Millhouse was not merely strong— it was powerful.
III.
We will affirm the judgment of conviction.
. Thus, we reject Millhouse’s argument that although the DNA evidence was only directly relevant to the May 1 robberies, the prejudicial effect infected all of the counts.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472347/
|
OPINION
BARRY, Circuit Judge.
Martha Flory appeals from the July 15, 2008, 2008 WL 2782664, order of the District Court granting summary judgment to Pinnacle Health Hospitals. For the reasons that follow, we will affirm.
I.
Because we write solely for the benefit of the parties, we set forth only those facts necessary to our analysis.
Martha Flory worked as a registered nurse assessment coordinator (“RNAC”) for defendant Pinnacle Health Hospitals (“Pinnacle”), where she was responsible for coordinating insurance activities and gathering information regarding extended care patients. In 1986, Flory suffered a back injury that required spinal fusions, and currently suffers from diabetes, sleep apnea, reflux disease, asthma, muscle spasms, ambulatory dysfunction, shortness of breath, hypoglycemic disease, and fainting spells. For health reasons, Flory requested, and Pinnacle granted, a four-hour workday restriction in 1998. In 2004, Pinnacle shifted her hours to the afternoon to give her sufficient time to attend to personal needs in the morning. In addition, Pinnacle permitted Flory to park her vehicle near the hospital’s rear entrance.
From 2000 to 2005, Flory’s supervisors at Pinnacle observed a pattern of absences — Flory would not report to work in inclement weather (i.e., snow, ice, or significant rain) or if inclement weather was forecast. Flory informed her supervisors that, given her medical conditions, she feared slipping on wet surfaces. Her supervisor in 2000, LeAnn Rock, testified that she counseled Flory about her absences but left Pinnacle before initiating disciplinary measures. According to Flory, Rock’s successors, Jennifer Zufall and Nancy Fridy, also did not initiate disciplinary measures so long as Flory provided documentation from her doctor regarding her absences. The record is silent about any discipline prompted by Flory’s absences until 2005, and she received a positive performance evaluation in June 2004.
In February 2005, Flory was warned verbally by her supervisor, Cathleen Timothy, that she had failed or refused to follow instructions and complete a task within her job assignment.1 In response, Flory submitted a doctor’s note requesting that she be excused from work in inclement weather. Flory’s supervisors then proposed several ways in which she could get to work in inclement weather, including clearing her sidewalks, taking a taxi or van from her home to the hospital’s covered entrance, providing her with a bus pass, and/or permitting her to make up for missed work on weekends. Flory rejected each of these proposals.
On March 2, 2005, Pinnacle issued a written warning that noted that Floxy had not been at work five times in two weeks, four times due to inclement weather. The warning instructed Flory to x*eport to wox'k on all scheduled days and, when snow was forecast, to arrange to work alternate hours. After Flory failed to heed those instructions, she received a one-day, unpaid suspension on March 9, 2005.
*875Pinnacle terminated Flory on April 11, 2005. In the conference record explaining that decision, Timothy specified several instances where Flory did not fulfill the requirements of the RNAC position because she failed to make timely determinations as to patients’ Medicare coverage. Timothy wrote, “Martha has repeatedly been counseled on the appropriate procedure for ending Medicare benefits for patients and the necessity of communicating with the team” and that “she has failed to meet that responsibility repeatedly.” (App.84.) Flory also allegedly failed to “maintain a professional attitude and demeanor and communicate effectively” with her coworkers. (Id.) Timothy noted, as well, that Flory called in sick from April 4 to April 8, 2005. Timothy and Glenda Galey, a Pinnacle personnel representative, both stated that the absences noted in the conference record were not a basis for Flory’s termination, but rather served to explain the delay from the last incident of misconduct to her termination.
In addition to challenging her termination, Flory stated in her Complaint and at her deposition that two of her colleagues were earning a higher hourly rate. With respect to one colleague, Laurie Snyder, the evidence demonstrated that when she assumed her role as an RNAC, she maintained her prior hourly salary. With respect to a second colleague, Charlotte Barrett, Flory stated in her deposition that she saw one of Barrett’s paychecks and that Barrett earned a higher salary. Flory presented no other evidence on the subject.
Over the course of her employment and after her termination, Flory filed a total of five complaints alleging disability discrimination against Pinnacle with the Pennsylvania Human Rights Commission (“PHRC”).
II.
Flory filed suit in the District Court, alleging disparate treatment, retaliation, and unequal pay, all on account of her disability, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons.Stat. Ann. § 951 et seq.2 The Court granted Pinnacle’s motion for summary judgment on all three causes of action, concluding that Flory: (1) failed to establish that she was “qualified” for her position as required for her discriminatory discharge and pay claims; and (2) failed to allege a temporal link between her protected activity and her termination as required for her retaliation claim.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review of a grant of summary judgment is plenary. Fed. Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir.2003). We view the underlying facts, and all reasonable inferences arising therefrom, in the light most favorable to the non-movant. Fasold v. Justice, 409 F.3d 178, 180 (3d Cir.2005).
A.
Under the ADA, “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to ... discharge of employees, employee compensation ... and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
*876To establish a prima facie case of disparate treatment, a plaintiff must demonstrate that he or she: (1) has a disability; (2) is a qualified individual; and (3) has suffered an adverse employment action because of that disability. Turner v. Hershey Chocolate USA 440 F.3d 604, 611 (3d Cir.2006). In dismissing this claim, the District Court held that Flory failed to establish that “she could perform the essential function of regularly coming to work” and, therefore, had not demonstrated that she was a “qualified individual.” (App.9.) The Court relied on Smith v. Davis, where we stated that “[a]n employee who does not come to work on a regular basis is not ‘qualified.’ ” 248 F.3d 249, 251 (3d Cir.2001) (citing Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir.1994)). However, in Tyndall, on which Smith relied, the Fourth Circuit was more equivocal: “An employee who cannot meet the attendance requirements of the job at issue cannot be considered a ‘qualified’ individual protected by the ADA.” 31 F.3d at 213 (emphasis added).
Flory has set forth sufficient evidence from which a reasonable factfinder could conclude that she was “qualified” for the RNAC position despite her frequent absences. While Pinnacle maintains a policy against unexcused absenteeism, the record demonstrates that Flory worked for five years — from 2000 to 2005 — under various supervisors without her absences prompting any discipline. Throughout that period, when asked, Flory presented medical evidence of her condition, which apparently satisfied Pinnacle’s requirement that absences be “excused or preapproved by the supervisor/department manager.” (App.85.) Moreover, although we do not have a record of her absences prior to her 2004 performance review, it does not appear that her attendance significantly impacted her performance. By 2004, according to her review, she had “developed skills consistent with the RNAC job requirements.” (App.76.) At the very least, that review does not reference a negative impact on Flory’s work due to absenteeism.
Under the ADA, a qualified individual is a person with a disability who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis added). The record indicates that Pinnacle, despite its official attendance policy, accommodated Flory for five years before initiating disciplinary action against her, albeit for other stated reasons. We need not decide, however, whether the evidence of past accommodation is such that her later absenteeism could also have been addressed by further accommodation. Even if we assume that Flory was not disqualified by virtue of her absenteeism, we nevertheless conclude, for the reasons that follow, that she cannot prevail on her discrimination claim.
Assuming arguendo that Flory has established a prima facie case of discrimination,3 we turn to the now-familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, after a plaintiff has established a prima facie case of disparate treatment, the burden shifts to the defendant to state a legitimate, nondiseriminatory reason for its action. If the defendant meets that burden, the presumption of discriminatory action raised by the prima facie case is rebutted. The plaintiff may respond by showing that the defendant’s proffered reason was a pretext for the disparate treatment.
*877“[M]ost cases turn on the third stage, ie., can the plaintiff establish pretext.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir.1999). To prove that a defendant’s explanation is pretextual, a plaintiff must “ ‘cast[ ] sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication ... or ... allow[ ] the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.’ ” Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.2007) (quoting Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.1994)) (omission in original). A plaintiff may defeat summary judgment by either “ ‘(i) discrediting the employer’s proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.’ ” Id. (quoting Fuentes, 32 F.3d at 764).
Pinnacle submitted evidence that Flory was terminated for willful misconduct, not because of her disability. On that point, the April 11, 2005 conference record regarding her “[o]n-going [p]erformance [deficiency” is illuminating. (App.83.) That report — which precipitated her termination — specified several instances where she did not fulfill the requirements of the RNAC position by failing to make timely determinations as to patients’ Medicare coverage and speaking with hostility to her supervisors. The conference record stated: “A pattern of ineffective communication has been demonstrated. [Flory] has repeatedly been counseled on the appropriate procedure for ending Medicare benefits for patients and the necessity of communicating with the team about the determination. It is [Flory’s] responsibility to ensure that this occurs and she has failed to meet that responsibility repeatedly.” (App.84.)
Even viewing the evidence in the light most favorable to Flory, there is simply no evidence — either direct or circumstantial— from which a factfinder could either disbelieve Pinnacle’s articulated non-discriminatory reasons or conclude that discrimination on account of her disability was a motivating or determinative factor in her termination.4
B.
Flory alleges that two RNACs hired after her were paid at a higher hourly rate “in an attempt to punish or discriminate against [her].” (App.162.) The evidence demonstrates that Snyder, who performed the same job function as Flory, earned an hourly rate greater than Flory’s. No admissible evidence was presented as to Barrett’s hourly wage. See Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir.1996) (noting that only evidence admissible at trial may be considered in ruling on motion for summary judgment).
Flory has not established a prima facie case of disparate pay. Pinnacle contends that Snyder was paid at a rate consistent with her prior employment. Flory offers no evidence as to why such a legitimate, non-discriminatory reason is pretextual.
C.
To establish a prima facie case of retaliation, a plaintiff must show: “(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activi*878ty; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action.” Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir.2002).
Flory’s claim fails as a matter of law. The only evidence she submitted with respect to the causal connection between her protected activity and her termination is the fact that two years prior to her termination, she filed four complaints with PHRC.5 This, without more, is clearly not enough. A span of mere months, let alone years, between the protected activity and the adverse action is insufficient to raise an inference of causation. See Le-Boon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir.2007) (“[A] gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation and defeat summary judgment.”), cert. denied, — U.S.-, 128 S.Ct. 2053, 170 L.Ed.2d 793 (2008); Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir.2007) (five-month time period, without additional evidence, insufficient to raise inference of causation).
III.
For the reasons stated above, we will affirm the order of the District Court.
. Pinnacle has a progressive disciplinary program in which a verbal warning is followed by a written warning, a suspension, and, finally, termination. Cei'tain acts, such as insubordination, may result in immediate termination.
. Claims of employment discrimination in violation of the Rehabilitation Act are governed by ADA standards. See 29 U.S.C. § 794(d). Likewise, the analysis of an ADA claim applies equally to a PHRA claim. See Williams v. Phila. Hous. Auth. Police Dep’t., 380 F.3d 751, 761 n. 6 (3d Cir.2004). Accordingly, we need address only Flory’s ADA claim.
. The parties do not dispute Flory's disability. Moreover, for ease of analysis, we will assume that Flory suffered an adverse employment decision because of her disability.
. Although the District Court did not conduct a McDonnell Douglas burden-shifting analysis, we may affirm on "any grounds supported by the record.” Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000) (en banc).
. The fifth and final complaint filed by Flory was received by Pinnacle on May 27, 2005, more than one month after her termination ance thus, could not have been the basis of any retaliation.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472351/
|
OPINION
PER CURIAM.
Elliot Bates appeals from an order of the District Court that dismissed his amended civil rights complaint with prejudice. The District Court’s decision rests on the faulty premise that Appellees, most of whom had a role in Bates’ involuntary commitment, are entitled to absolute immunity from suit in federal court pursuant to state law. Nonetheless, we will affirm the District Court’s order dismissing the complaint against Monmouth Ocean Hospital Service Corporation (“Monoe”), the Jackson Township Police Department (“Jackson Township”)1, the State of New Jersey (“the State”), Kimball Medical Center (“Kimball”) and St. Barnabas Health Care System (“St. Barnabas”) (collectively, “the Medical Facilities”), albeit on alternative grounds.
I.
In November 2008, Bates filed an amended complaint against Kimball, St. Barnabas, Monoe, Jackson Township, and the State (collectively, “Appellees”), alleging that the circumstances of his involuntary civil commitment deprived him of certain constitutional rights. Specifically, Bates alleged that “nine Jackson Township police cars along with one civilian car with a social worker” arrived at his residence and requested that he come with them to Kimball. He alleged that he was taken from his house “against [his] will,” that he was detained for eight days at both Kim-ball and St. Barnabas, and that he was “forced to take medication, being told all alone [sic], if you resist we will write you up as uncooperative and you will be here longer.”
The District Court granted Monoc’s unopposed motion to dismiss the complaint for failure to state a claim. Thereafter, the District Court granted Jackson Township’s unopposed motion for summary judgment, granted Kimball’s unopposed motion (treated by the Court as including St. Barnabas) to dismiss, and dismissed the complaint as against the State. The District Court determined that Appellees “are immune from liability because [N.J.S.A. 30:4-27.7] protects law enforcement officers and mental health professionals who, in good faith, transport or detain an individual for mental health purposes.” 2 The District Court also cited to Bates’ failure to allege bad faith on the part of any of the Appellees, as well as his failure to “assert a theory of liability against the State of New Jersey.” Bates appealed.
*885Bates, Jackson Township, Monoc, and the Medical Facilities all filed briefs. The State filed a motion to be excused from filing a brief and for summary affirmance.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of the District Court’s order. See McGovern v. Philadelphia, 554 F.3d 114, 115 (3d Cir.2009) (standard of review for order granting motion to dismiss); Williams v. Beard, 482 F.3d 637, 639 (3d Cir.2007) (standard of review for order granting summary judgment motion).
“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) (quotation omitted). Summary judgment is proper where “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 a judgment as a matter of law,” Fed.R.Civ.P. 56(c), and we may affirm the District Court on any grounds supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000). As always, we liberally construe the pleadings of pro se litigants. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam).
III.
42 U.S.C. § 1983 provides a cause of action against “persons” who, acting under color of state law, deprive a citizen or citizens of the rights, privileges and immunities secured by the Constitution and federal law. “In a typical § 1983 action, a court must initially determine whether the plaintiff has even alleged the deprivation of a right that either federal law or the Constitution protects.” Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir.2000). Instead of performing an inquiry into the constitutionality of Appellees’ actions under federal law, the District Court simply held that “all defendants are immune from liability” pursuant to a state statute: N.J.S.A. 30:4-27.7. This was error.
A state statute that creates immunity from suit under state law does not define the scope of immunity from suit under federal law. See Bolden v. SEPTA, 953 F.2d 807, 818 (3d Cir.1991) (en banc) (citing Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990)). In Howlett, the Supreme Court rejected the application of “a Florida law that extended immunity from state court actions under § 1983 not only to the state and its arms, but also to municipalities, counties, and school districts otherwise subject to suit under § 1983.” Id. The Howlett Court recognized that a State “may not evade the strictures” of federal law or the Constitution “by denying jurisdiction to a court otherwise competent.” 496 U.S. at 382, 110 S.Ct. 2430. Thus, like in Howlett, here we conclude that
[i]f we were to uphold the immunity claim in this case, every State would have the same opportunity to extend the mantle of sovereign immunity to “persons” who would otherwise be subject to § 1983 liability. States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People.
Id. at 383, 110 S.Ct. 2430.
Accordingly, we conclude that the District Court erred in finding that Appellees are immune from suit under N.J.S.A. 30:4-27.7, and dismissing Bates’ amended complaint on that basis. We turn now to an individual assessment of the prospective liability of each Appellee to determine whether the District Court nevertheless reached the right result.
*886
Claims against MONOC
To demonstrate that Bates is not entitled to relief on appeal, Monoc relies heavily on the fact that he did not oppose its motion to dismiss. It also argues that it “is not a state actor subject to liability for the constitutional allegations [Bates] apparently pursues.” Most persuasive, however, is Monoc’s indication that it is never specifically mentioned outside the caption of Bates’ amended complaint. Indeed, Bates refers to Monoc only by implication in describing his transport from one medical facility to the next, and in complaining that he was unjustly “billed for the ambulance service which delivered me from Kimball Hospital to St. Barnabas.”
In short, the allegations in Bates’ amended complaint fail to state a claim of a constitutional violation that is plausible on its face as against Monoc. See Iqbal, 129 S.Ct. at 1949. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 1950 (emphasis added). Bates’ amended complaint is devoid of factual allegations concerning Monoc that would support a claim under § 1983. Therefore, it was proper for the District Court to grant Monoc’s motion to dismiss for failure to state a claim.
Claims against Jackson Township
Jackson Township’s sole argument on appeal is that it is entitled to immunity from suit under N.J.S.A. 30:4-27.7. As described above, we reject this argument. Nevertheless, Bates’ pleadings are insufficient to survive summary judgment.
While a municipality may be liable for establishing a policy or custom that results in a constitutional violation, see Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir.2007), the allegations in Bates’ amended complaint do not even imply the existence of such a policy or custom in Jackson Township. Moreover, because he did not oppose Jackson Township’s motion for summary judgment, Bates has failed show the existence of a genuine issue of a material fact or that he is entitled to judgement as a matter of law. As a result, it was proper for the District Court to grant Jackson Township’s motion for summary judgment.
Claims against the State of New Jersey
As noted above, the State has moved for summary affirmance of the District Court’s order. In the State’s motion, it argues that “Bates does not allege a theory of liability against the State of New Jersey,” that it should be excused from filing a brief, and the District Court’s order dismissing Bates’ case in its entirety should be affirmed. We will affirm, albeit for reasons of sovereign immunity.
The Eleventh Amendment immunizes states from suits in law or equity. See Cory v. White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982); M.A ex rel. E.S. v. State-Operated School Dist. Of City of Newark, 344 F.3d 335, 344 (3d Cir.2003).3 “[T]he Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not *887be raised in the trial court.” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); see also Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353, 365 (3d Cir.1997). We conclude that the District Court lacked jurisdiction over Bates’ claims against the State and should have dismissed those claims for that reason.4
Claims against the Medical Facilities
The Medical Facilities’ brief argues that “the record below undeniably demonstrates that [they] acted in good faith and, as such, were entitled to immunity from suit.” As already explained, neither the Medical Facilities, nor any other Appellee, is entitled to absolute immunity from suit under § 1983 pursuant to N.J.S.A. 30:4— 27.7. Instead, the District Court should have granted the Medical Facilities’ motion based on the other argument that they made below: “[a]t no time were [the Medical Facilities] acting under color of [state law] but as private health care facilities.”
To state a valid claim under § 1983 against the Medical Facilities, Bates must show not only that they violated his federal rights but that they did so while acting under color of state law. See Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.1995); see also American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (“the under-the-color-of-state-law element ... excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful’ ”) (quotation omitted). Moreover, “[t]he color of state law element is a threshold issue; there is no liability under § 1983 for those not acting under color of law.” Groman, 47 F.3d at 638. The allegations in Bates’ amended complaint are wholly insufficient, to carry his burden of demonstrating that the Medical Facilities acted under color of state law in conjunction with his involuntary commitment, and the District Court should have granted the Medical Facilities’ motion on this basis.
IV.
For the reasons discussed in this opinion, we will affirm the District Court’s order dismissing Bates’ amended complaint. The State of New Jersey’s motion for summary affirmance is denied.
. We treat a municipality and its police department as a single entity for the purposes of § 1983 liability. See Bonenberger v. Plymouth Township, 132 F.3d 20, 25 n. 4 (3d Cir.1997).
. More specifically, N.J.S.A. 30:4-27.7 immunizes state law enforcement officers, screening service or short-term care facility staff persons, emergency services or medical transport persons, and others who, "acting in good faith ... [take] reasonable steps to take custody of, detain or transport an individual for the purpose of mental health assessment or treatment." As defined in the statute, " 'emergency services or medical transport person' means a member of the first aid, ambulance, rescue squad or fire department, whether paid or volunteer, auxiliary police officer or paramedic." N.J.S.A. 30:4-27.7(b).
. "Congress may validly abrogate the States’ sovereign immunity only by doing so (1) unequivocally and (2) pursuant to certain valid grants of constitutional authority." Horne v. Flores, — U.S.-, 129 S.Ct. 2579, 2589 n. 1, 174 L.Ed.2d 406 (2009). It has not done so with respect to § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Nor do the other exceptions to Eleventh Amendment immunity apply; the State has not consented to suit, and Bates does not raise any claims "against individual state officials for prospective relief to remedy an ongoing violation of federal law.” M.A. ex rel. E.S., 344 F.3d at 345.
. Based on our liberal reading of Bates' amended complaint and responsive pleadings, and in light of the allegations made in his original complaint and on appeal, it appears that Bates' claims against the State are essentially claims of selective enforcement of the criminal code by the State police, which Bates imputes to the State.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472353/
|
OPINION
PER CURIAM.
Yogeshwar Seeraj petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his petition.
I.
Seeraj, a citizen of Guyana, entered the United States unlawfully in 1995. Soon thereafter, he was served with a Notice to Appear charging him with removability as an alien not in possession of a valid unexpired immigrant visa or other valid entry document. See INA § 237(a)(1)(A) [8 U.S.C. § 1182(a)(7)(A) ]. The government later charged him with removability on an additional ground — that he had falsely represented himself to be a United States citizen; specifically, the government claimed that, on two prior occasions, Seeraj had attempted to obtain a United States passport based on a fraudulent identity. See INA § 237(a)(3)(D) [8 U.S.C. § 1227(a)(3)(D) ].
At his removal hearing, Seeraj admitted the allegations against him, but sought to adjust his status on the ground that he was the beneficiary of an approved 1-130 petition filed by his father, who is a lawful permanent resident. See INA § 245(i) [8 U.S.C. § 1255(1) ]. The Immigration Judge (“IJ”) determined, however, that he was ineligible to adjust his status because he was inadmissible under INA § 245(a) for having falsely represented himself as a United States citizen in violation of INA § 237(a)(3)(D) [8 U.S.C. § 1227(a)(3)(D) ]. The IJ further found that there were no waivers available to Seeraj for this particular ground of inadmissibility. By order entered August 8, 2008, the BIA affirmed, without opinion, the IJ’s decision and ordered Seeraj to voluntarily depart the United States.
Seeraj now petitions for review of the BIA’s order.
*889II.
We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C. § 1252(a)(1). When, as in this case, the BIA adopts the decision of the IJ without opinion, we review the IJ’s decision as the final agency decision. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003). We review Seeraj’s legal and constitutional questions de novo, but defer to the agency’s reasonable interpretations of statutes it is charged with administering. Silva-Rengifo v. Attorney General, 473 F.3d 58, 63 (3d Cir.2007).
Seeraj first argues that the government failed to provide sufficient evidence to sustain the charges against him. Seeraj admits that he conceded removability on both of the charges, but argues that the IJ “cannot simply rely upon an alien’s admissions in proceedings as a basis to sustain the charges.” (Petitioner’s Br. 8.) Contrary to Seeraj’s contention, however, the applicable regulations clearly permit the IJ to determine removability on the basis of an alien’s admissions. Specifically, 8 C.F.R. § 1240.10, which sets forth the procedures governing removal hearings, provides as follows:
If the respondent admits the factual allegations and admits his or her removability under the charges and the immigration judge is satisfied that no issues of law or fact remain, the immigration judge may determine that removability as charged has been established by the admissions of the respondent.
8 C.F.R. § 1240.10(c). Thus, once Seeraj admitted his removability, the IJ was free to conclude that the government had met its burden. See, e.g., Selimi v. INS, 312 F.3d 854, 860 (7th Cir.2002) (rejecting alien’s claim that INS failed to establish excludability because alien conceded that he was excludable); Florez-de Solis v. INS, 796 F.2d 330, 333 (9th Cir.1986) (explaining that the government’s burden of proving that an alien is deportable is satisfied when the alien concedes deportability). Seeraj then bore the burden of establishing his eligibility for adjustment of status. Because Seeraj failed to do so, the IJ correctly determined that he was removable as charged.
Next, Seeraj contends that the BIA violated his right to due process by affirming the IJ’s decision without opinion. This Court has previously held, however, that the streamlining regulations that allow the BIA to affirm an IJ’s decision by issuing an order without a separate opinion do not violate due process.1 Dia v. Ashcroft, 353 F.3d 228, 234-45 (3d Cir.2003) (“The fact that the ... decision is not accompanied by a fully reasoned BIA decision may be less desirable from the petitioner’s point of view, but it does not make the process constitutionally unfair.”)
Accordingly, we will deny the petition for review.
. Pursuant to 8 C.F.R. § 1003.1(a)(7)(h), a single member of the BIA may affirm the IJ's decision without authoring a separate opinion if:
[T]he Board Member determines that the result reached in the decision under review was correct; that any errors in the decision under review were harmless or nonmaterial; and that (A) the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or (B) the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472356/
|
OPINION
BARRY, Circuit Judge.
On May 17, 2007, we granted a certificate of appealability as to two of Carl Rice’s federal habeas claims, each of which alleged a violation of his Sixth Amendment right to the effective assistance of counsel. Rice argues that counsel rendered ineffective assistance when he failed to file a direct appeal and when he failed to properly advise Rice regarding the possibility of obtaining a reduction of his sentence, thereby inducing Rice to plead guilty. We will affirm.
I.
Rice pled guilty to third-degree murder and other related charges pursuant to a plea agreement in which he agreed to a sentence of 27 to 54 years in prison in return for the Commonwealth’s agreement to drop a first-degree murder charge. Rice did not file a direct appeal, but instead filed a PCRA petition in which he apparently argued, although it is less than clear, that counsel was ineffective because *891he failed to file a post-sentence motion for modification of the sentence, failed to advise Rice that his guilty plea could result in deportation,1 and failed to file an appeal in a timely manner. The PCRA Court denied Rice’s petition, but the Superior Court remanded for a hearing as to “whether [Rice] indeed requested that counsel file a direct appeal, whether counsel ineffectively failed to file that appeal, and for consideration of any other issues raised by [Rice].” (App. at 87.)
The PCRA Court held a two-part hearing at which Rice was represented by counsel. At the first part of the hearing, on February 23, 2004, the Court heard the testimony of plea counsel, who testified that an intermediary asked him to seek reconsideration of Rice’s sentence and that he failed to do so. Counsel was unelear as to whether Rice himself requested him to file an appeal or a post-sentence motion. Rice then testified that he was seeking only reconsideration of his sentence and that he was not seeking to withdraw his plea. Rice did not ask that his appellate rights be reinstated and counsel confirmed with Rice, on the record, that the only relief Rice was seeking was reconsideration of his sentence.
The PCRA Court then scheduled an evidentiary hearing “with regard to [the] motion to reconsider or modify the sentence,” to be held the following week. (App. at 31.) At that hearing, on February 27, 2004, Rice testified that he understood that he agreed to 27 to 54 years, but that “I understood this to mean ... maybe by the mercy of the Court, the mitigating factors, maybe the plea would have been 20 to 40.” (App. at 34.) Rice testified that plea counsel never told him that the sentence could not be modified from the agreed-upon 27 to 54 years, and did tell him “he would file a motion to reconsider the sentence in five years or something like this.” (App. at 35.) On cross-examination, Rice confirmed that he had committed the crimes to which he had pled guilty and had testified truthfully as to his understanding of his plea at the plea colloquy. He stated that the plea to third degree murder was “greatly appreciated” (App. at 34) because it ensured that he would not face the death penalty. In closing, counsel stated: “[Petitioner is not attempting to withdraw his plea. He is not saying that he is not guilty. What he is saying is that he did not understand that it was binding that he would get 27 to 54 years incarceration.” (App. at 41.)
The PCRA Court then determined:
I think, Mr. Rice, I think he understood exactly what was going on at the time of his plea; was thankful that he avoided both the death penalty and a life sentence; that this is a clear case of change of heart, hindsight, second-guessing, whatever, disappointment in some way subsequent to the time, although he was thoroughly satisfied, I do believe, at the time of the event when he received the absolute benefit of his bargain, which was the 27 to 54 years. (App. at 41.)
On appeal from this decision, Rice took a different approach, arguing that the PCRA Court should have allowed him to withdraw his guilty plea because it was induced by counsel’s erroneous sentencing advice. The Superior Court found that Rice had abandoned any claim of ineffective assistance as to the filing — or non-filing — of a direct appeal. The Court went on to discuss, in some detail, the applicable law and, in much detail, the record that it found supported the PCRA Court’s conclusion that the requisites for a valid plea had been satisfied in the written and oral plea colloquies. The Court thereupon found that
*892[t]he record supports the PCRA court’s conclusion that Appellant chose to enter the plea, and, after he was sentenced in accordance with the agreement in exchange for the withdrawal of first degree murder charges, he was disappointed with the negotiated sentence. “Our law does not require that a defendant be totally pleased with the outcome of his decision to plead guilty, only that his decision be voluntary, knowing and intelligent.” [Com. v. ] Pollard, 832 A.2d [517] at 524 [ (P.Super.2003) ] (quoting Commonwealth v. Baldwin, 760 A.2d 883, 885 (Pa.Super.2000), appeal denied, 566 Pa. 634, 781 A.2d 138 (2001)).
(App. at 95). Concluding that Rice’s negotiated guilty plea was validly entered, the Court rejected the ineffective assistance of counsel claim finding that counsel was not ineffective for failing to raise a meritless claim. The Pennsylvania Supreme Court denied review.
In his habeas petition, Rice alleged that he was deprived of his Sixth Amendment right to effective assistance of counsel not because counsel failed to file an appeal, but because counsel failed to file a post-sentence motion despite the fact that Rice “specifically asked plea counsel to file a motion for reconsideration of his sentence within the 10-day window permitted for doing so.” (App. at 51.) Rice alleged, as well, that counsel did not explain to him that “[he] was pleading guilty for a specific sentence,” and that “[his] youth at the time of the plea, as well as his poor education, combined with plea counsel’s ineffectiveness rendered his guilty plea unknowing and involuntarily entered.” (App. at 51-52.)
By order dated November 5, 2006, the District Court approved and adopted the Report and Recommendation of the Magistrate Judge, and denied the habeas petition. In the Opinion adopted by the Court, the Magistrate Judge recognized that the terms “motion for reconsideration” and “appeal” were used interchangeably by counsel at the PCRA hearing. (App. at 6, n.l). Somewhat curiously, the Magistrate Judge continued to use the terms interchangeably, calling them in his Opinion “appellate rights,” and concluding that habeas relief was not warranted because Rice’s “state appellate rights” had effectively been reinstated “through two PCRA evidentiary hearings and full appellate review.” (Id. at 12). He concluded as well that the Superior Court’s ruling as to the voluntariness of Rice’s plea was “well in accord with federal law,” and why, and that to accept Rice’s argument that plea counsel’s advice — or lack thereof — induced his guilty plea because Rice believed that he could file a motion for reconsideration “would require the Court to disregard outright all the statements made in open court, on-the-record and in direct response to questions about [Rice’s] understanding of the consequences of his plea.” (App. at 14,16.)
We granted a certificate of appealability as to two issues: (1) whether counsel rendered ineffective assistance when he failed to file a direct appeal; and (2) whether Rice’s guilty plea was induced by plea counsel’s failure to properly advise him regarding the possibility of obtaining a reduction of his agreed-upon sentence under Pennsylvania law.2
II.
We exercise plenary review of the decision of the District Court denying, without an evidentiary hearing, Rice’s habeas petition. Thomas v. Horn, 570 F.3d 105, 113 *893(3d Cir.2009). The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254, and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
A. Ineffective Assistance for Failure to File an Appeal
We granted a certificate of appealability as to defense counsel’s failure to file a direct appeal. In light of the full record now before us, we need not have done so. Rice repeatedly testified at the PCRA hearing that the only relief he was seeking was modification of his sentence by the sentencing judge, thus essentially admitting that counsel was not ineffective for not filing an appeal. This was confirmed in Rice’s brief on appeal from the denial of the PCRA petition which stated: “It was established [at the PCRA hearing] that the appellant did not wish to appeal his conviction, but that he desired only a modification of sentence.” (App. at 150.) The issue, if issue it be, never went any further, and the Superior Court concluded that Rice “abandoned any claims related to counsel’s failure to file a direct appeal.” (App. at 91 n.4). We agree.
B. Guilty Plea Induced by Ineffective Assistance of Counsel
We may not grant relief as to a claim that was adjudicated on the merits in state court proceedings unless that adjudication resulted in a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law,” or resulted in a decision that was based on an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d). The state courts’ factual findings are presumed to be correct unless the presumption is rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
In cases where a defendant claims that he was induced to plead guilty based on the ineffective assistance of counsel, the defendant must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). We have held that a defendant “must make more than a bare allegation that but for counsel’s error he would have pleaded not guilty and gone to trial.” Parry v. Rosemeyer, 64 F.3d 110, 118 (3d Cir.1995), superseded by statute on other grounds as stated in Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.1996).
Rice alleges that, but for counsel’s failure to inform him that his sentence was not modifiable, he would have pleaded not guilty and that “part of the reason he entered the plea was because he felt the sentence could be revisited and shortened at a later point.” (Appellant’s Br. at 41). During the PCRA hearing, he specifically and repeatedly disclaimed any interest in withdrawing his guilty plea, and confirmed that he truthfully answered all of the trial court’s questions about his understanding of his plea during the plea colloquy. Moreover, he did not testify that any advice given by plea counsel before entry of his guilty plea induced him to plead guilty, but only that plea counsel told him, at some point, that he would file a motion in five years and that the sentence, at that point, could be reduced. On appeal from the denial of the PCRA petition, however, he alleged that “there is a reasonable probability that he would have gone to trial had he been fully cognizant of the sentence to which he was agreeing,” (App. at 132), although he offered nothing to support that allegation.
We have discussed in some detail the proceedings before the PCRA Court and the Superior Court and will not reprise that discussion here. Suffice it to say that the District Court correctly concluded that the state courts’ adjudication of this claim on the merits was not “contrary to” or an *894“unreasonable application of clearly established Federal law,” nor did it result in a decision that was based on an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d).
III.
We will affirm the order of the District Court.
. Rice is a U.S. citizen, and later stated that the reference to deportation was a mistake.
. It appears that the complete state record was not before the Magistrate Judge or the District Court when they ruled or before us when we granted a certificate of appealability. It is before us now.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472357/
|
OPINION
PER CURIAM.
Petitioner, Xiu Ju Wang, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny her petition.
I.
Wang is twenty-two years old and is a citizen of China. Wang entered the United States unlawfully in October 2005 and was placed in removal proceedings. Wang applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on the ground that she would face persecution in China on account of her opposition to the government’s policies toward Falun Gong.
*895At her removal hearing, Wang testified that, before coming to the United States, she had worked as a proofreader in a printing shop in China. Wang lived in a dormitory at the shop. According to Wang, on April 30, 2005, her boss asked her to proofread a piece of Falun Gong propaganda. Wang testified that she agreed to proofread the article as instructed even though she does not practice Falun Gong.
Wang further testified that, later that night, after she had completed her work and had retired to her room, Chinese authorities raided the shop. Wang explained that she was able to escape through a back door, but left behind all of her belongings, including a personal diary in which she had voiced her opposition to the government’s treatment of Falun Gong practitioners. After fleeing the print shop, Wang was afraid to go home, so she went to stay with a relative. Wang later learned that five of her colleagues from the print shop had been arrested and that the shop had been sealed off by the police. Wang testified that, two days after the raid, police appeared at her parents’ home with a warrant for her arrest. According to Wang, authorities later returned on several occasions looking for her. In support of her application, Wang submitted several affidavits, including an affidavit from her cousin who also worked at the printing press. Wang claimed that if she were forced to return to China, she would be arrested for the opinions she expressed in her diary.
At the end of the hearing, the IJ asked Wang’s attorney to clarify the grounds on which Wang was seeking asylum. Counsel explained that Wang feared persecution on account of her political opinion, that is, her opposition to the government’s policies toward Falun Gong. Counsel further explained that the government learned of Wang’s political opinion through the diary that they confiscated during the raid. The IJ then pointed out that Wang failed to mention the diary — the very item that put her in danger — in her initial application, and asked Wang to explain why she would omit such a crucial piece of the story. Wang stated that she did not realize that it was important to mention the diary in the application.
Following the hearing, the IJ found that Wang’s testimony was not credible, primarily because of her failure to mention the diary in her initial application. The IJ also doubted Wang’s theory that the police might have been searching for Wang due to her employment at the printing press alone — regardless of the existence of the diary — because her cousin, who also worked at the press, was never contacted by the police. For these reasons, the IJ concluded that Wang failed to establish a well-founded fear of future persecution and denied her application for asylum. The IJ also denied her applications for withholding of removal and relief under the CAT. The BIA affirmed. Wang now petitions for review of the BIA’s order.1
II.
The primary issue presented by this appeal is whether the BIA erred in upholding the IJ’s adverse credibility determination. When, as in this case, the BIA substantially relies on an IJ’s adverse credibility determination, this Court “must look to both decisions in order to satisfy [its] obligation under 8 U.S.C. § 1252(b) to review the administrative decision meaningfully.” He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). An adverse credibility finding is reviewed *896for substantial evidence and must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). Thus, we must afford the IJ’s adverse credibility finding “substantial deference so long as the findings are supported by sufficient cogent reasons.” Butt v. Gonzales, 429 F.3d 430, 434 (3d Cir.2005).
Because Wang filed her application for relief after the enactment of the REAL ID Act of 2005, the IJ’s credibility determination is governed by the Act. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Under the REAL ID Act, an IJ may base her credibility determination on observations of the applicant’s demeanor, the plausibility of the petitioner’s story, and on the consistency of the petitioner’s statements. See INA § 208(b)(1)(B)(iii); Gabuniya v. Attorney General, 463 F.3d 316, 322 n. 7 (3d Cir.2006).
As noted above, in this case, the IJ found that Wang’s failure to mention the diary in her application significantly undermined the credibility of her story because, in the IJ’s view, it was the lynchpin of her claim; without the diary, the police would have no reason to believe that Wang was opposed to the government’s Falun Gong policies. Upon review, the BIA determined that there was no clear error in the IJ’s adverse credibility finding.2 Based on our review of the record, we cannot say that a reasonable adjudicator would be compelled to conclude to the contrary. See Berishaj v. Ashcroft, 378 F.3d at 322. Wang’s failure to mention the diary in her application created a sufficiently significant inconsistency to support the IJ’s adverse credibility finding. See Butt, 429 F.3d at 434. Although Wang argues on appeal that “the Immigration Judge should not make an adverse inference on Wang’s credibility merely because she supplied additional information during her hearing to supplement information on her 1-589,” (Petitioner’s Brief 17-18), we agree with the BIA and IJ that this omission was rather significant in light of the relative weakness of Wang’s case.
Given that the BIA’s and IJ’s adverse credibility determinations are supported by sufficient, cogent reasons, we will defer to their findings. See Butt, 429 F.3d at 434. We therefore agree that Wang failed to establish eligibility for asylum. Furthermore, because Wang’s claims for withholding of removal and relief under the CAT are based on the same evidence as her asylum claim, we conclude that substantial evidence supports the denial of these claims as well.
We will deny the petition for review.
. We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C. § 1252(a).
. Although the BIA stated that the IJ also found that Wang’s story was implausible, we read the IJ’s opinion as reserving decision on that basis. (Oral Decision, March 29, 2007, 15-16.)
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472360/
|
OPINION OF THE COURT
JORDAN, Circuit Judge.
Latacha Renee Thompson appeals the judgment of conviction, entered against her by the United States District Court for the Middle District of Pennsylvania, for interstate transportation in aid of drug trafficking, in violation of 18 U.S.C. § 1952(a)(3). Thompson alleges that police violated the Fourth Amendment by stopping and searching her car without reasonable suspicion. Because the police did have reasonable suspicion, we will affirm.
I. Background
On May 14, 2007, Keith Kierzkowski, a special agent in the Harrisburg, Pennsylvania office of the Drug Enforcement Administration (“DEA”), received a call from a confidential informant. The informant, who had provided Kierzkowski with reliable information in the past, told him that Thompson and Duwanna Robinson planned to drive to Georgia in a rental car to purchase cocaine. The informant also told Kierzkowski when and where Thompson planned to pick up Robinson.
Kierzkowski and two other DEA agents went to the location specified by the informant and observed Thompson pick up Robinson in a rental car. They followed the car as it made various stops but, eventually, Thompson sped up and Kierzkowski and his fellow agents lost sight of her vehicle. Knowing the road Thompson had turned, onto, Kierzkowski radioed ahead to Pennsylvania State Trooper Tony Todaro, explained the situation, and asked him to pull the vehicle over.
Todaro stopped Thompson’s vehicle for speeding and issued her a warning. During the course of the stop, Todaro received Thompson’s permission to search the rental car. He found $25,000 in currency packaged in 25 individual bundles. The *898currency was seized, and Thompson was permitted to leave.
On June 13, 2007, the informant called Kierzkowski and told him that Thompson and a man named Clifford Bradley had rented a ear at the Harrisburg Airport and driven it to Philadelphia, where they had boarded a flight to Georgia. The informant also said that Thompson and Bradley would be returning to either Philadelphia or Harrisburg by train with a large quantity of cocaine. After speaking with the informant, Kierzkowski contacted rental car companies in Harrisburg and confirmed that Thompson and Bradley had rented a car. He also verified that they had taken a flight from Philadelphia to Atlanta, Georgia, and he located the rental car they had parked at the Philadelphia airport.
Kierzkowski coordinated surveillance of the vehicle, and, on June 15, he observed Thompson and Bradley return to it, place luggage in the trunk, and leave the airport. He then followed the vehicle from the airport and eventually radioed Todaro and another state trooper, Brian Overcash, with the information he had about Thompson and Bradley. The troopers waited for the car on the Pennsylvania Turnpike and pulled it over after determining that it was going 75 miles an hour in a 65 mile an hour zone. Overcash approached the vehicle, which was being driven by Thompson, and informed the occupants that they had been stopped for speeding.
After issuing Thompson a warning for speeding, Overcash asked if Thompson and Bradley would answer a few questions. At that point, Todaro approached and Thompson, who recognized Todaro from their previous encounter, became agitated. The troopers asked for permission to search the car. Thompson and Bradley denied their request. The troopers then called a detective with a drug dog to do an exterior scan of the vehicle. The detective arrived within minutes, and, during the exterior scan of the vehicle, the dog alerted to the scent of drugs. The troopers handcuffed Thompson and Bradley, placed them in the back of the police vehicle, and applied for a warrant to search the rental car. The warrant issued and police found eight ounces of cocaine in the car.
On June 20, 2007, a grand jury returned an indictment charging Thompson and two co-defendants with conspiracy and possession with intent to distribute 50 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Thompson brought a motion to suppress the evidence found during the search of the rental car on June 15, 2007, arguing that the police lacked reasonable suspicion to stop her vehicle and perform an exterior scan with a drug dog. After a hearing, the District Court denied Thompson’s motion to suppress, and she agreed to plead guilty to two counts of interstate travel in aid of drug trafficking, in violation of 18 U.S.C. § 1952(a)(3). In her plea agreement, Thompson preserved the right to appeal the District Court’s denial of her motion to suppress.
Thompson was sentenced to 51 months in prison, 26 months for Count 1 and 25 months for Count 2, with the terms to run consecutively. She filed a timely appeal of her conviction, and, on appeal, renews her argument that the troopers lacked reasonable suspicion to stop her car and conduct an exterior scan with a drug dog.
II. Discussion1
The Fourth Amendment permits police officers to stop vehicles briefly for further *899investigation when they have reasonable suspicion that criminal activity may be afoot. United States v. Silveus, 542 F.3d 993, 999 (3d Cir.2008). During these brief investigatory stops, officers may use dogs trained to detect narcotics. See Illinois v. Caballes, 543 U.S. 405, 410, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (“A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment”).
In determining whether officers had reasonable suspicion, we look at the totality of the circumstances from the officers’ viewpoint and ask whether they had a particularized and objective basis for suspecting that the individuals they stopped were engaged in criminal activity. Mathurin, 561 F.3d at 174. When officers conduct an investigatory stop based on information provided by another officer, our inquiry focuses on whether the officer who provided the information had reasonable suspicion. United States v. Brown, 448 F.3d 239, 248 (3d Cir.2006). When an investigative stop is made primarily on the basis of a tip from an informant, we consider both the reliability of the informant and the content of the tip in determining whether the tip was sufficiently reliable to create reasonable suspicion. United States v. Goodrich, 450 F.3d 552, 560 (3d Cir.2006).
In this case, a confidential informant told Kierzkowski that Thompson and Bradley had rented a car in Harrisburg, driven it to Philadelphia, flown to Atlanta to purchase cocaine, and would be returning to Philadelphia or Harrisburg by train. The informant had provided Kierzkowski with reliable tips in the past, including information about Thompson that had only a month earlier led to the seizure of $25,000. In addition, Kierzkowski was able to verify several details from the most recent tip, including that Thompson and Bradley had rented a car in Harrisburg, had driven it to Philadelphia, had taken a flight to Atlanta, and were returning to Philadelphia by Amtrak train. Given Kierzkowski’s previous dealings with the informant and his corroboration of details from the tip, we conclude that Kierzkowski clearly had reasonable suspicion that Thompson was involved in criminal activity. Accordingly, the brief investigatory stop that Overcash and Todaro conducted based on information they received from Kierzkowski did not violate the Fourth Amendment.
III. Conclusion
Because the officers had reasonable suspicion, we will affirm the District Court’s decision to deny Thompson’s motion to suppress.
. The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291. In considering the District Court's denial of Thompson's motion to suppress, we review the District Court’s factual findings for clear error and *899exercise plenary review over its application of the law to the facts. United States v. Mathurin, 561 F.3d 170, 173 (3d Cir.2009).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472722/
|
PER CURIAM: *
The attorney appointed to represent Ricardo Tovar has moved for leave to with*981draw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Tovar has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cer R. 47.5, the court has determined that this opinion should not be *981published 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/8472294/
|
OPINION
PER CURIAM.
Appellant Michael Chornos, a pro se prisoner, appeals from the District Court’s denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.
I.
In February 2008, Chornos was named in a four count indictment in the United States District Court for the Northern District of Ohio. In July 2008, after pleading guilty to count four of the indictment, Chornos was sentenced to a term of twenty-four months of imprisonment, followed by a twenty-four months of supervised release. In March 2009, Chornos filed a “motion for early release” in the District Court in which he was sentenced.
While that motion was still pending, in April 2009, Chornos filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania— the District of his confinement.1 After reviewing the motion, in which Chornos argued primarily that his due process rights had been violated when he entered his guilty plea, the District Court dismissed Chornos’ habeas petition for lack of jurisdiction.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s legal conclusions and apply a clearly erroneous standard to its factual findings. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002). Upon review, we agree with the District Court that Chornos may raise his claims only in a motion pursuant to 28 U.S.C. § 2255.
Challenges to the legality of federal convictions or sentences that are allegedly in violation of the Constitution may generally be brought in the district of sentencing pursuant to 28 U.S.C. § 2255. See Davis v. United States, 417 U.S. 333, 343-44, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Further, constitutional claims may not be raised in a § 2241 petition except in unusual situations, where the remedy by motion under § 2255 would be inadequate or ineffective. See In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir.1997). We agree with the District Court that Chornos has not demonstrated that a § 2255 motion pro*761vides inadequate or ineffective means to raise his constitutional claims. Id.
As Chornos’ appeal presents no substantial question, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6. Chornos’ “Motion for Rule 23(b)(3) Release Pending Review of Decision” is also denied.
. Chornos is presently confined at FPC-Schuylkill.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472296/
|
*762OPINION
PER CURIAM.
Appellant Nathaniel Lawson seeks review of the District Court’s order dismissing his case for lack of subject matter jurisdiction. We conclude that the appeal does not present a substantial question and will summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
In December 2005, the City of Newark (“the City”) filed a state law ejectment action against Nate’s Transportation, Inc.,1 concerning the company’s allegedly unlawful use of City property. The New Jersey Superior Court granted summary judgment in the City’s favor and the Appellate Division affirmed. Lawson filed a “notice of removal” in the United States District Court for the District of New Jersey. In this pleading, Lawson raised claims concerning the validity of an alleged lease to use the City property at issue in the state court proceedings, and sought review of the New Jersey courts’ decisions.
The City moved to remand under 28 U.S.C. § 1447(c) or, in the alternative, to dismiss the action under Fed.R.Civ.P. 12(b)(1). The District Court determined that removal would be futile because the state proceedings had concluded. It therefore construed the removal notice as a new complaint and concluded that it lacked subject matter jurisdiction over it. Accordingly, on February 3, 2009, the District Court entered an opinion and order dismissing the action with prejudice. Lawson then filed a document entitled “reconsideration and reverse order,” which the District Court construed as a motion for reconsideration. On March 5, 2009, the District Court denied reconsideration. This pro se appeal followed.
II.
We have jurisdiction under 28 U.S.C. § 1291.2 We exercise de novo review over the District Court’s order dismissing Lawson’s case for lack of subject matter jurisdiction. See Met. Life Ins. Co. v. Price, 501 F.3d 271, 275 (3d Cir.2007). We may summarily affirm if this appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
Because the state court proceedings had already concluded by the time Lawson filed his notice of appeal, removal was not appropriate. See 28 U.S.C. § 1441(a) (for removal, the state court action must be “pending”); § 1446(a) (same). Generally, in a case that has been improperly removed, the District Court will remand the matter to state court, see 28 U.S.C. § 1447, and remand decisions are not typically renewable on appeal. See 28 *763U.S.C. § 1447(d); In re FMC Corp. Packaging Sys. Div., 208 F.3d 445, 448 (3d Cir.2000). However, because there was no pending state court action capable of remand, we find no error in the District Court’s decision to construe Lawson’s pro se notice of removal as a complaint initiating a new federal action.
Federal district courts have subject matter jurisdiction over civil actions that arise (1) under the Constitution, laws or treaties of the United States (ie., federal question jurisdiction), or (2) between citizens of different states where the matter in controversy exceeds $75,000 (ie., diversity jurisdiction). 28 U.S.C. §§ 1331, 1332. For purposes of federal question jurisdiction, a claim arises under federal law if it is apparent from the face of the complaint that the cause of action was created by federal law. See Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 353 (3d Cir.1995). For diversity jurisdiction, a complainant must plead that he is a citizen of a particular state and that the defendants are citizens of a different state or states. See 5 Wright & Miller, Fed. Prac. & Proc. Civ.3d § 1208; see also, e.g., Schultz v. Catty, 528 F.2d 470, 472-73 (3d Cir.1975). In his initial pleading in the District Court, Lawson raised state law claims concerning the validity of a lease agreement with the City, and he disputed the state court judgments issued in the City’s favor. Even affording his pro se pleading a liberal construction, see Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003), Lawson did not raise any federal question for purposes of § 1331. Moreover, according to Lawson’s pleading, he is a citizen of the state of New Jersey. Because the City of Newark is not a citizen of a different state, Lawson did not plead diversity of citizenship for purposes of § 1332. Accordingly, Lawson did not successfully invoke the District Court’s subject matter jurisdiction.
III.
The District Court properly dismissed this matter for lack of subject matter jurisdiction. We have reviewed the record and conclude that there is no substantial question to be presented on appeal. Accordingly, we will grant the City’s motion for summary affirmance and will summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. Lawson’s motions for summary judgment and to supplement the District Court record are denied.
. Lawson is president of Nate's Transportation, Inc. Because only Lawson has appealed the District Court’s decision, this opinion will refer to Lawson.
. Lawson filed his notice of appeal more than 30 days after the District Court’s March 5, 2009, order disposing of his motion for reconsideration. See Fed. R.App. P. 4(a)(4)(A). However, the District Court’s prior February 3, 2009, order dismissing Lawson’s case was not “set out in a separate document’’ as required by Fed.R.Civ.P. 58(a). See In re Cendant Corp. Sec. Litig., 454 F.3d 235, 241 (3d Cir.2006). As a result, for purposes of filing an appeal, judgment was not formally entered until 150 days after the February 3, 2009, order. See Fed.R.Civ.P. 58(c)(2)(B); LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 224-25 (3d Cir.2007). Lawson filed his pro se notice of appeal sixty-nine days after the District Court's dismissal order, and thus prior to the formal entry of judgment. The notice of appeal was timely filed, and the fact that Lawson appealed before the formal entry of judgment does not prevent us from entertaining the appeal. See LeBoon, 503 F.3d at 224, n. 5; Fed. R.App. P. 4(a)(2), 4(a)(7)(B).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472300/
|
OPINION
AMBRO, Circuit Judge.
In 2007, Luis and Deborah Munoz obtained a jury verdict against the City of Philadelphia and the Philadelphia Redevelopment Authority (collectively, the “City”). The basis of the Munozes’s suit was their assertion that the City’s failure to provide them with timely notice of its intention to condemn their property caused their business to fail, in addition to causing them various emotional harms associated with the loss of their business. The City now seeks reversal of the District Court’s denial of its post-trial motion for judgment as a matter of law.1 Because we are convinced the evidence was insufficient to allow the jury to find that the alleged lack of notice caused the damages alleged, we reverse the District Court and grant the City judgment as a matter of law.
I.
In August 2001, the Munozes invested their life savings and pledged their home as collateral to buy Nino’s Farmer’s Market in Philadelphia’s Juniata section for $1 million.2 Revenues fell by more than 50% in the first year after the Munozes bought the market, they stopped paying their mortgage in July 2002, and the business closed in April 2004, having never turned a profit. The Munozes filed for bankruptcy *768in May of that year and lost both the market and their home to satisfy creditors.
Shortly after the Munozes bought the market, rumors spread that it would be closed by the City of Philadelphia as part of a redevelopment plan, but it took years for the Munozes to receive confirmation from the City. Starting in the spring of 2002, Deborah Munoz failed in attempts to get confirmation from her Councilman, Rick Mariano, or the City Planning Commission. In August and September 2003, the Munozes met with Steve Culbertson, Executive Director of Frankford Community Development Corporation (FCDC), to whom Deborah Munoz had been referred by the City Planning Commission, but failed to get confirmation from him as well. The Munozes first learned from the City that it was considering condemning their property in March 2004, the month before the market closed. Because they lost the market to creditors before the City had a chance formally to condemn it, they never received compensation from the City.
Condemnation in Philadelphia is a multistep process. The City Planning Commission designates the target area as “blighted” and the Philadelphia Redevelopment Authority (“RDA”) then prepares a proposal for redevelopment. The City Council passes an ordinance approving the proposal. The RDA then finalizes the list of properties that must be seized, offers compensation to owners, and declares a taking on those properties whose owners refuse to sell.
FCDC, a non-profit housing developer, started trying to create federally funded housing in the neighborhood in May 2002. By September 2002, FCDC, City, and Commonwealth officials appear to have identified the farmer’s market as an important part of the redevelopment area. That month, the City Planning Commission issued a blight certification that included the market. When the RDA’s redevelopment proposal left the market out of the plan, Culbertson pushed to add it, receiving some indication in April 2003 from Mariano that it would be included. But at his meetings with the Munozes, Culbertson did not tell them that he had been pushing to condemn their market.
In March 2004, the RDA added the farmer’s market to the redevelopment area and gave the Munozes their first official indication that the market might be condemned. The City Council notified them in May that it would vote on the plan and passed it in June. A week later, the RDA sent a “Notice of Interest” to the Munozes stating that it was “considering” acquiring their property. In May 2004, the Munozes filed for bankruptcy.
In 2005, the Munozes brought a 42 U.S.C. § 1983 action against the City, the RDA, and the FCDC, arguing that they forced the market out of business in order to avoid having to compensate the Munozes for it. They alleged that the City accomplished this de facto taking by delaying formal steps to acquire property in the redevelopment area while using the FCDC to spread rumors about the redevelopment that killed the business. According to the Munozes, rumors that the City would take the farmer’s market caused customers to boycott it either because they preferred not to shop at a moribund store or because they disapproved of the Munozes, thinking that they were speculators who purchased the market to flip it to the City for a profit.3 The complaint included a claim that 42 U.S.C. § 4625(a), a part of the Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA), required the City to provide the Munozes *769with timely notice of its plans and an offer of just compensation.
The District Court dismissed the Munozes’ takings and due process claims (they had not exhausted state court remedies), and threw out the part of their URA claim based on the requirement of a timely offer of just compensation (the Court concluded that the URA provides no private right of action to vindicate that requirement).4 Only the Munozes’s URA timeliness claim remained.5 The Munozes could no longer win by showing that rumors created by the City killed their business. They now had to show that lack of timely notice of the redevelopment plan did so. The Munozes persevered and a jury concluded that notice was untimely, awarding them $497,230 ($379,230 for the decrease in the value of the business caused by lack of notice, $68,000 for relocation of the business, and $50,000 for emotional distress). Following the verdict, the City moved for judgment as a matter of law on multiple grounds. The District Court eliminated the award of relocation expenses because the Munozes never actually relocated the market, but otherwise rejected the City’s arguments. The City timely appealed.
II.
The City challenges the jury verdict against it on three independent grounds. It argues that (1) neither 42 U.S.C. § 4625(a), nor its implementing regulation, 49 C.F.R. § 24.203, creates a private right to notice that may be enforced via § 1983; (2) the notice provided here was not untimely under § 4625(a); and (3) the evidence was insufficient to show that the Munozes’s damages were actually caused by the alleged lack of timely notice. Because we agree that there was not minimally sufficient evidence to prove causation, we do not reach the City’s other two arguments on appeal.6
We exercise plenary review of the District Court’s denial of the City’s post-trial motion for judgment as a matter of law. CGB Occupational Therapy v. RHA Health Services, 357 F.3d 375, 383 (3d Cir.2004). In doing so, we review the District Court’s conclusions of law de novo and ask whether there is enough evidence to support the verdict. A small amount is enough, but “[although judgment as a matter of law should be granted sparingly, more than a scintilla of evidence is needed to sustain a verdict.” Id. (internal quotations omitted).
Though we are wary of overturning jury verdicts, we reluctantly reverse the District Court because there is no evidence of causation. The Munozes argued that 42 U.S.C. § 4625(a) and its associated regulation, 49 C.F.R. § 24.203, required the City *770to notify them of the redevelopment plans when City and Commonwealth officials discussed taking the farmer’s market in September 2002 or April 2003 (long before the City first communicated with the Munozes in March 2004). The jury was charged with deciding whether the notice provided was timely, and, if not, what damages, if any, are attributable to the lack of timely notice. It found that notice was untimely and the untimeliness was responsible for about two-thirds of the decline in value of the business as well as various emotional damages tied up with the loss of the business.
But the jury verdict falls if the Munozes did not show minimally sufficient evidence that untimely notice caused the drop in the value of their business. This is because, in general, they must prove that a violation of federal law (i.e., the URA notice requirement) caused their injuries before they can recover from the violator under § 1983. See Smith v. Wade, 461 U.S. 30, 34, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (looking to modern and 1871 common law of torts for guidance in applying § 1983); 1 Dan B. Dobbs, The Law of Torts 405 (2001) (discussing requirement of factual causation); Fairbanks v. Kerr, 70 Pa. 86 (1871) (same).
The Munozes sought to show causation by alleging that the uncertainty created by lack of notice prevented them from taking action to save them investment in their dying business. They allege that, with timely notice, they would have either-moved their money out of the business (i.e., sold the business and invested their money elsewhere, perhaps in another market at a different location) or further leveraged it (i.e., borrowed more to improve the business).
What constitutes enough evidence for a jury to find causation ultimately depends on how much elaboration and substantiation a court needs before it feels comfortable letting a jury decide whether causation exists. If a court thinks that an alleged link between breach and injury is not minimally substantiated, it will require a plaintiff to identify more steps in the causal chain through which breach led to injury and to provide evidence to substantiate each step. The lightest burden requires a plaintiff to show only that injury followed breach. A heavy burden requires a plaintiff to allege numerous links in a causal chain and to produce evidence of correlation for each link.
We do not think that the likelihood that the Munozes’ investment in the business would be injured because of uncertainty is so self-evident that no amount of elaboration and substantiation was required. The Munozes had to provide some amount of evidence supporting their account. This they did not do. They provided only their own testimony that they would and could have moved, sold, or leveraged their business if they had timely notice under the URA. They provided no account of why uncertainty prevented them taking such actions and no evidence suggesting that such actions would have mitigated the decline in value of their business. There is no evidence, even anecdotal,7 relating to the likelihood that additional investment in the business would lure back customers boycotting the store after the City confirmed that it was considering taking it.8 *771There is also no evidence, even anecdotal, relating to the likelihood that the Munozes would have found a profitable alternative location for the market or a buyer willing to pay their price after the City confirmed that it was considering taking the market. Without such evidence, we believe that the District Court should not have allowed the jury to decide causation.
This conclusion requires vacating not only the jury’s award of damages for the loss of value of the Munozes’s business, but also its award of damages for emotional distress.9 The Munozes sought compensation for the emotional distress brought on by their inability to save their business (and the investment they poured into it). Because there was insufficient evidence to support a finding that the lack of notice caused the decline of the business, there was also insufficient evidence to find that the lack of notice itself caused the emotional distress of which the Munozes complained.
We repeat our reluctance to reverse a jury verdict. Doing so in this case, where the jury found in favor of sympathetic plaintiffs who suffered greatly from the collapse of their business, is especially difficult. But we can find nothing in the record to support the conclusion that the mere failure of the City to confirm its plans drove down the revenues of the Munozes’ business. We note, however, that the question whether lack of notice caused the business to collapse is distinct from whether the City ought to have paid just compensation to the Munozes under a de facto takings theory. Now that they have apparently exhausted their state remedies, the Munozes may still prevail on their takings claims should they refile in federal court.10
For these reasons, we reverse the District Court’s denial of the City’s post-trial motion for judgment as a matter of law and grant it judgment as a matter of law.11
. The District Court had jurisdiction under 28 U.S.C. § 1331 and, alternatively, 28 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291.
. They formed General Farmer’s Market, Inc., to run the business.
. The City alleged that sabotage by the prior owner, Luis Munoz’s illness, and other factors, not rumors about the redevelopment, destroyed the business.
. The Munozes pursued their takings claims in state court and lost because they could not show causation. The Court of Common Pleas found that the value of the business declined independently of the proposed condemnation. Munoz v. Philadelphia, No. 2621, slip op. (C.P.Phila.Co. Mar. 26, 2007), aff'd, Munoz v. Philadelphia, No. 806 CD 2007, slip op. (Pa. Commw.Ct. Apr. 30, 2008). Having exhausted state remedies, the Munozes are contemplating bringing their takings claims again in federal court.
. At the close of evidence, the District Court dismissed the FCDC because it was not a state actor.
. We highly doubt whether, in light of Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), 42 U.S.C. § 4625(a) does create a private right enforceable under § 1983. Nonetheless, because we believe that, even if the statute were to create such a right, the Munozes could not show that the City’s alleged violation of that right caused the damages they assert, we avoid that more difficult question and decide the case purely on the issue of causation.
. The testimony of Luis Munoz that he had friends willing to provide more financing for the business is perhaps a scintilla of evidence in support of the claim that the Munozes could have invested more in the business. It is not evidence of the likelihood that additional investment would have forestalled their losses.
. It should be noted that, if we accept the Munozes's claims that customers boycotted the business because they did not want to shop at a failing market or thought the Munozes were speculators, confirmation that the City was in fact considering taking the business could not in itself have removed the boycotters' concerns and probably would have strengthened them.
.The Munozes contend that “[t]he City ... ha[s] not challenged on appeal the ... proof of emotional distress damages.” Munozes's Br. at 41 n. 6. By this, we take them to mean that the City has not renewed the argument— initially made in its post-trial motion for judgment as a matter of law — that, because the Munozes put forth no evidence to support their claims of emotional distress other than their own testimony, that portion of the award should be set aside even if the award for loss of value of the business is allowed to stand. There is no suggestion — nor could there be plausibly — that the City waived its right to challenge the damages for emotional distress on the general ground that the evidence was insufficient to show that lack of timely notice caused any of the damages asserted. Thus, waiver does not come into play.
. We express no view as to the viability of such a claim.
. In addition, we deny the motion of the Munozes to add items from their state takings proceeding to the Appendix or to strike portions of the Appendix and the City’s brief containing items from that proceeding. The record of a related state case is a proper object of judicial notice. See, e.g., Lumen Const. v. Brant Const., 780 F.2d 691, 697 (7th Cir.1985) (’’[Ajppellants included extensive references to the state court proceedings in their own briefs and appendix. [T]he official record of the parallel state case is a proper object for judicial notice.”). We were at liberty to consult the materials the Munozes wished to add to the Appendix.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472302/
|
OPINION
SMITH, Circuit Judge.
“This is a tragic case.” That is how the District Court opinion which we now review begins, and that is how we begin as well.
Tondalia Cliett, in her own right and as administratrix of her son’s estate, filed a wrongful death and survival action against the City of Ocean City, New Jersey, in September of 2006. In November of 2006, the City moved to dismiss, asserting that Cliett’s complaint should be dismissed because she failed to file the Notice of Claim required by the New Jersey Tort Claims Act, N.J. Stat. Ann. §§ 59:8-3, 59:8-8. The District Court converted the Rule 12(b)(6) motion into a motion for summary judgment, then granted the motion in favor of the City. Cliett filed a timely motion for reconsideration. Cliett voluntarily withdrew her motion for reconsideration after eight months, however, and filed a Notice of Appeal challenging the District Court’s dismissal of her complaint. We dismissed as untimely Cliett’s appeal, which had been filed more than thirty days after the District Court’s final order. Almost two months later, on September 12, 2008, Cliett filed a motion to reinstate the previously withdrawn motion for reconsid*773eration so that the District Court could “make a final ruling prior to appeal.” The District Court denied the motion to reinstate on November 13, 2008. The Court stated that “[Cliett] cannot now ‘reinstate’ that motion, but would instead be required to file a new motion for reconsideration.” The Court observed such a motion would be untimely and that “untimeliness ‘alone is sufficient grounds to deny the ... motion.’ ”
This timely appeal followed.1 Cliett contends that the District Court erred by (1) dismissing her complaint in August of 2007; and (2) declining in November of 2008 to reinstate the motion for reconsideration, which she had voluntarily withdrawn.
Because Cliett’s motion for reinstatement did not seek relief under a specific Federal Rule of Civil Procedure, and mindful that Federal Rules of Civil Procedure 59 and 60 govern the opening of final judgments, we consider whether the motion for reinstatement should have been characterized as a motion for relief thereunder.
Where, as here, the motion is filed outside of the ten days provided for under Rule 59(e), but within the [time] permitted under Rule 60(b), and the motion may be read to include grounds cognizable under the latter rule, we will consider it to have been filed as a Rule 60(b) motion.
Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir.2002). Although the motion is bare-bones, we construe it as one for relief under the “catch-all provision in Rule 60(b)(6) that allows a court to relieve a party from a judgment for ‘any other reason that justifies relief aside from the more specific circumstances described in Rules 60(b)(1) — (5).” Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir.2008). “[A] party seeking Rule 60(b)(6) relief must demonstrate the existence of ‘extraordinary circumstances’ that justify reopening the judgment.” Id. at 255 (footnote omitted). We review the denial of relief under Rule 60(b)(6) for an abuse of discretion. Id. at 251.
The District Court did not abuse its discretion in denying reinstatement of the previously withdrawn motion for reconsideration. The motion for reinstatement was filed more than a year after the entry of final judgment, and the only ground asserted was that reinstatement of the action would allow the District Court to “make a final ruling prior to appeal.” Yet a final ruling had already been rendered in the August 24, 2007, 2007 WL 2459446, order granting summary judgment. In light of the dismissal of the untimely appeal in July of 2008, Cliett has not demonstrated extraordinary circumstances warranting relief under Rule 60(b)(6). We will affirm the order of the District Court denying the motion for reinstatement.
It is well settled that “an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Browder v. Dir. Dept. of Corrs. of Ill., 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); see also Smith v. Evans, 853 F.2d 155, 158 n. 1 (3d Cir.1988) (noting that the even though Rule 60(b) preserves the right to appeal, the appeal may bring up only the subject matter of the 60(b) motion and not the underlying case). Accordingly, even though the bulk of Cliett’s brief argues that the District Court’s grant of summary judgment in *774favor of the City was error, we lack jurisdiction to consider that issue.
. The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We exercise jurisdiction under 28 U.S.C. § 1291.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472303/
|
OPINION OF THE COURT
JORDAN, Circuit Judge.
Adel Guirguis appeals from the order of the United States District Court for the Eastern District of Pennsylvania dismissing his complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, we will affirm.
*775I. Background
Guirguis brought suit against his former employer, Movers Specialty Services, Inc. (“Movers”), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons.Stat. §§ 951-63.1 Guirguis, who is of Arab descent and a native of Egypt, contends that Movers terminated his employment on the basis of his national origin.2
Paragraphs 7 through 9 of the complaint, which read as follows, contain the entirety of Guirguis’s factual averments:
7. Plaintiff began working for the defendant in 2000 in the accounting department. Plaintiff was employed by the defendant from that day until February 14, 2006, when he was terminated by the defendant in violation of his civil rights.
8. Plaintiff is foreign born, is an Arab, having been born in Egypt on June 20,1947.
9. On February 14, 2006, plaintiff was terminated by the defendant in violation of his rights due to the fact he is Arab, due to his native origin, having been born in Egypt.
(App. at 11.)
Movers sought dismissal, charging that Guirguis had neglected to exhaust administrative remedies and that his complaint failed to state a claim upon which relief could be granted. Guirguis did not respond to the latter argument, and the District Court held that he had conceded Movers’ challenge by failing to say how his complaint made out a cognizable claim for relief. The Court nevertheless went on to review the substance of Guirguis’s allegations, determining that the complaint indeed lacked sufficient factual content to raise a plausible right to relief under the pleading standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The District Court thus dismissed the complaint and closed the case.3 Guirguis did not request an opportunity to file an amended complaint but filed two motions for reconsideration4 of the Court’s Rule 12(b)(6) ruling. The District Court denied both motions. This timely appeal followed.
II. Discussion5
Guirguis argues that the District Court erred when it dismissed his complaint, *776which he contends adequately stated a claim. He also claims that the Court committed error when it closed his case without sua sponte granting him leave to amend, which effectively dismissed his claims with prejudice.
A. Failure to State a Claim
We conduct a de novo review of a Rule 12(b)(6) dismissal of a complaint. See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To avoid dismissal, a complaint must set forth facts that raise a plausible inference that the defendant inflicted a legally cognizable harm upon the plaintiff. See Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Twombly, 550 U.S. at 556, 127 S.Ct. 1955; Phillips, 515 F.3d at 234.6 Conclusory allegations of liability do not suffice. See Iqbal, 129 S.Ct. at 1950 (opining that the federal pleading standard “marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions”).
A court confronted with a Rule 12(b)(6) motion must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the nonmovant. Gross v. German Found. Indus. Initiative, 549 F.3d 605, 610 (3d Cir.2008). Legal conclusions receive no such deference, and the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Although a plaintiff may use legal conclusions to provide the structure for the complaint, the pleading’s factual content must independently “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 129 S.Ct. at 1950; Wilkerson, 522 F.3d at 321-22.
Guirguis’s complaint fails to cross the threshold established by Twombly and Iqbal. It alleges that Guirguis is an Egyptian native of Arab descent, that Movers discharged him, and that his termination occurred in violation of his civil rights. The final allegation is precisely the type of factually unsupported legal conclusion that is inadequate to surmount a Rule 12(b)(6) challenge. The remaining averments contain no facts supporting an inference that Movers terminated Guirguis on the basis of his national origin. Indeed, the complaint never intimates in any way why Guirguis believes that national origin motivated Movers’ actions. In the absence of factual averments supporting his discrimination claims, the District Court properly found that Guirguis failed to raise a plausible right to relief under the pleading standard established by Twombly.7
*777B. Standing on the Complaint
Guirguis also contends that under Phillips the District Court should have granted him leave to amend his complaint sua sponte, before closing his case. We review for abuse of discretion the District Court’s failure to grant leave to amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). In Phillips, which presented a claim under 42 U.S.C. § 1983, we broadly instructed that “if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236. Prior to Phillips, however, we had limited this principle to cases arising under § 1983 and opined that “it is hardly error for a district court to enter final judgment after granting a Rule 12(b)(6) motion to dismiss when the plaintiff has not properly requested leave to amend its complaint.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.2007).
The interaction between Phillips and Fletcher-Harlee Corp. presents an interesting question but one that we need not resolve on this appeal. Guirguis filed two motions for reconsideration of the District Court’s Twombly holding, arguing that his complaint “is not insufficient in its allegations.” (Appellee’s Supplemental App. at 4, 9.) These motions never sought leave to amend and instead revealed an intent to stand on the complaint. See Frederico v. Home Depot, 507 F.3d 188, 192-93 (3d Cir.2007) (holding that a plaintiff elected to stand on her complaint by repeatedly asserting the validity of her averments and by failing to seek leave to amend following dismissal). Having expressed a desire to adhere to his pleading, Guirguis cannot persuasively ascribe error to the District Court for not providing him an unsolicited opportunity to amend his complaint.
III. Conclusion
Guirguis’s complaint contains only a factually unsupported averment of discrimination, and he clung to that version of his pleading. The District Court was thus correct to grant dismissal and did not abuse its discretion by not sua sponte affording him leave to amend. We will affirm the order dismissing his complaint, as *778well as the order denying reconsideration of the dismissal.
. The legal analysis governing Guirguis's PHRA claim is identical to that under Title VII, and the discussion that follows applies to both claims. See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 317 n. 3 (3d Cir.2000) ("The analysis required for adjudicating [plaintiff’s] claim under PHRA is identical to a Tille VII inquiry ..., and we therefore do not need to separately address her claim under the PHRA.”).
. The complaint alleges that Movers discriminated against Guirguis due to his "native origin,” which is not a defined class under Title VII. (App. at 11.) The District Court construed this averment as a disparate treatment claim on the basis of national origin. The parties do not contest that characterization.
. In light of its disposition, the District Court did not discuss the exhaustion issue.
. Guirguis filed the first motion on December 15, 2008 and an amended motion on December 22.
. The District Court exercised federal question jurisdiction over Guirguis’s Title VII claim under 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f) and supplemental jurisdiction over his PHRA claim under 28 U.S.C. § 1367. We have appellate jurisdiction over the final decision of the District Court under 28 U.S.C. § 1291.
. We have applied Twombly and Iqbal’s pleading requirements to employment discrimination claims, see Fowler v. UPMC Shadyside, 578 F.3d 203, 210-12 (3d Cir.2009); Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315, 322 (3d Cir.2008), but the quantum of facts that a discrimination complaint should contain may bear further development. This case, though, provides a poor vehicle for that task because Guirguis relies in large measure upon bare legal conclusions that would likely have been insufficient even under the pre-Twombly pleading standard. See, e.g., Papasan, 478 U.S. at 286, 106 S.Ct. 2932 (holding, prior to Twombly, that courts were not required to accept the truth of legal conclusions contained in a plaintiff’s complaint). They are certainly deficient in the post-Twombly era. Accordingly, we have no occasion in this case to address the character or weight of the factual allegations that a Title VII complaint must contain to survive a Rule 12(b)(6) motion to dismiss.
. Guirguis contends that Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), and our decision in Wilker*777son compel a contrary result. Swierkiewicz was decided pursuant to the pre-Twombly pleading standard of Conley v. Gibson, under which a complaint satisfied Rule 8 unless "it appeared] beyond doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). We have re-assessed Swierkiewicz in the wake of Twombly, Iqbal, and Phillips and have concluded “that because Conley has been specifically repudiated by both Twombly and Iqbal, so too has Swierkiewicz, at least insofar as it concerns pleading requirements and relies on Conley." Fowler, 578 F.3d at 211. Nevertheless, Swierkiewicz remains instructive because Guirguis's complaint contains significantly less factual content than the pleading at issue in that case. The Swierkiewicz plaintiff "detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination." 534 U.S. at 514, 122 S.Ct. 992. Guirguis’s complaint omits such information, bolstering our conclusion that his claims would not have survived under the pre-Twombly pleading regime. See supra note 6. Wilkerson also confirms the inadequacy of Guirguis's pleading. In Wilkerson, the plaintiff alleged that her employer instituted a ceremony in which participants worshiped their ancestors, that she objected to this ceremony due to her religious beliefs, and that her supervisor subsequently terminated her without explanation. 522 F.3d at 318, 322. Guirguis’s complaint contains no similar discussion supporting an inference that Movers acted with a forbidden motivation. The District Court correctly decided that the absence of context from the complaint warranted dismissal under Rule 12(b)(6).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472308/
|
OPINION OF THE COURT
FISHER, Circuit Judge.
Yaroslav Anatolyevieh Semenov, a citizen of Tajikistan, petitions this Court for review of final orders issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will grant the petition and remand this matter to the BIA.1
I. Facts
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.
Semenov was born in Tajikistan in 1981. In 1997, Semenov, his father and four siblings fled that country and were admitted to the United States as refugees after their arrival in New York.2 In 2001, Semenov became a lawful permanent resident of the United States.
In July 2006, the Department of Homeland Security (“DHS”) served Semenov with a Notice to Appear in Immigration Court in York, Pennsylvania, charging that he was subject to removal under INA § 237(a) (2) (A) (ii) based on two petit larceny convictions in 2004. In August 2006, DHS added an additional charge of removability under INA § 237(a) (2) (A) (iii) based on a June 2006 attempted second-degree burglary conviction.
On February 26, 2007, Semenov appeared at a hearing before an Immigration Judge (“IJ”) and requested withholding of removal under the Convention Against Torture (“CAT”). Semenov testified, among other things, that he feared returning to Tajikistan because, according to him, the authorities there would imprison, torture and possibly kill him. Semenov also called as an expert witness Dr. John Schoeberlein, Director of the Program on Central Asia and the Caucasus at Harvard University, who testified by telephone. On direct examination, Schoeberlein testified, in pertinent part, as follows:
[Semenov’s attorney]: Someone in Mr. Semenov’s circumstances, how likely is he to be subjected to torture or persecution in Tajikistan?
[Schoeberlein]: My (indiscernible) that he would be quite likely (indiscernible) 50 percent (indiscernible) that he would be (indiscernible) as a known *785convicted felon. He would be (indiscernible) authorities in Tajikistan (indiscernible) established record of use of torture in various contexts by authorities in Tajikistan. And because he would be considered an undesirable citizen in that country (indiscernible) also the fact that he’s of Jewish background, certainly a factor her [sic]. And (indiscernible) from United States [sic] where, which would (indiscernible) undoubtedly (indiscernible) country. I think (indiscernible) a significant chance of torture.
[Semenov’s attorney]: Which people would be considered undesirable by the government in Tajikistan?
[Schoeberlein]: Well, the fact that he is being return [sic] because he’s a convicted criminal. The most important (indiscernible) that there is, as I mentioned, (indiscernible) country and (indiscernible) some part of people who have dealing [sic] with the authorities (indiscernible) as well. So those are the (indiscernible) certainly work against him.
[Semenov’s attorney]: What do you think, what is your expertise or knowledge about people who are detained in Tajikistan jails? What happens to them?
[Schoeberlein]: Well, first of all (indiscernible) country, the country itself is a poor country and they don’t consider (indiscernible) resources to the jails. So anyone who (indiscernible) certain risk of (indiscernible) treatment. But in addition to that there is a problem of (indiscernible) beating and tortures [sic] in relation to people who are in jail there. And (indiscernible) well-documented problem by international human rights groups.
[Semenov’s attorney]: What do you expect will happen to Mr. Semenov when he is deported to Tajikistan, in your experience?
[Schoeberlein]: Well, because he’s being deported as a convicted felon, I’m sure he will be passed over to the authorities at that time. What happens t[sic] him it’s very difficult to stay [sic]. But (indiscernible) hands of authorities has put him at a certain risk (indiscernible) a risk of him being torture [sic]. The (indiscernible) not want him to release him [sic] to the public because he’s seen as an undesirable. And they may well continue to detain him in that context. He would be at significant risk. (App. at 130-33.)
After Semenov’s attorney had completed his direct examination of Schoeberlein, a DHS attorney conducted a cross-examination, the pertinent portion of which is as follows:
[DHS attorney]: Okay. Doctor, do you know of any cases of any individuals deported from the United States to Tajikistan and the treatment they face, treatment they face by the government upon their return?
[Schoeberlein]: No, I don’t know of any cases.
[DHS attorney]: Okay. Do you know of anybody who’s been expelled or remove [sic] from any other country around the world, any European countries or any former Soviet countries to Tajikistan and the treatment they faced upon their return to that country?
[Schoeberlein]: You know of cases where people were returned from, from Russia and where they experienced very bad treatment on the part of the authorities. As the case (indiscernible) people that they, the government (indiscernible) wanted to have returned. So I don’t know that they *786have any specific desire to have (indiscernible) returned. There are (indiscernible) repatriation to Tajikistan because of the conditions in that country.
[DHS attorney]: Well, how sure are you that Mr. Semenov will be incarcerated or jailed upon his return?
[Schoeberlein]: My assessment is that is highly likely (indiscernible) based on the fact that the government of Tajikistan in many ways continues to operate much like the Soviet government did before it....
[DHS attorney]: But you don’t know, other than a few cases of returnees from Russia, people who were wanted by the government of Tajikistan, you don’t know of any cases where individuals have actually been returned there, is that correct?
[Schoeberlein]: I do not. (App. at 143-44.)
In an oral decision dated the same day as the hearing, the IJ found, among other things, that Semenov had met his burden under the CAT of establishing that it was more likely than not that he would be subjected to torture if he returned to Tajikistan. The IJ referred specifically to Schoeberlein’s “substantial expertise” and his opinion that there was a probability “of at least 50 percent” that Semenov would face torture in Tajikistan because of both that country’s authoritarian regime and Semenov’s criminal history. Based primarily on Schoeberlein’s testimony, the IJ granted Semenov withholding of removal under the CAT.3
DHS appealed the IJ’s decision to the BIA to the extent that decision granted Semenov withholding of removal under the CAT. In June 2007, the BIA sustained DHS’s appeal and vacated the IJ’s grant of withholding of removal.4 The BIA agreed with DHS that Semenov’s claim of fear of persecution was “too speculative” and that Semenov had failed to “produce sufficient evidence to establish that he is more likely than not to be tortured upon return to Tajikistan.” Specifically, the BIA pointed to Schoeberlein’s testimony that he had no knowledge of particular criminal deportees returning to Tajikistan and noted the absence of documentary evidence regarding the treatment of such individuals by Tajik officials. In the BIA’s view, the record contained “no evidence which establishes that mistreatment [by Tajik officials] rising to the level of torture occurs with a frequency which is sufficient to establish eligibility under the CAT.” BIA Member Filppu dissented, stating that the BIA should have abstained from considering the appeal until Schoeberlein’s testimony was “presented ... in a more intelligible manner, either through re-transcription or a remand to take the testimony a second time.”
Semenov moved the BIA to reconsider its decision, arguing, among other things, that the “BIA cannot base its decision on the record that is not clear or understandable .... ” Semenov expressed his agreement -with BIA Member Filppu’s dissent and urged the BIA to remand for the purpose of re-transcribing the hearing testimony. In a one-paragraph per curiam order, the BIA denied Semenov’s motion, concluding that he had failed to identify any factual or legal error in its previous ruling.5
*787These petitions followed. Semenov challenges both the BIA’s decision vacating the IJ’s grant of withholding of removal and its denial of his motion for reconsideration. Semenov advances several challenges to the BIA’s determination that substantial evidence did not support his withholding of removal claim. He also reiterates his position that the BIA erred in its denial of his motion for reconsideration by declining to remand his case to the IJ because of the alleged unintelligibility of the hearing transcript. Because we agree with Semenov on this last point, we do not reach the other issues he raises, reviewing instead only the BIA’s denial of his motion for reconsideration.
II. Jurisdiction and Standard of Review
We have jurisdiction to review a final order of the BIA pursuant to 8 U.S.C. § 1252. A motion for reconsideration is a “request that the [BIA] reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked.” In re Ramos, 23 I. & N. Dec. 336, 338 (BIA 2002) (en banc) (internal quotation marks and citations omitted). Such motions “shall state the reasons for the motion by specifying the errors of fact or law in the prior [BIA] decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1); see 8 U.S.C. § 1229a(c)(6)(C). We review the BIA’s denial of a motion for reconsideration under the abuse-of-discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004); Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir.1986). Under that standard, we will not disturb the BIA’s discretionary ruling on such a motion unless it is arbitrary, irrational or contrary to law. See Guo, 386 F.3d at 562.
III. Analysis
Although Semenov spends the lion’s share of his efforts explaining how the BIA erred in vacating the IJ’s grant of withholding of removal, at the end of his opening brief he also urges, in passing, that “this matter should be remanded for a new transcript or for a clearer testimony [sic] to enable a well-informed adjudication of this matter.” (Appellant’s Br. 11.) Semenov does not point us to any legal authority to support that request. While Semenov does not say so explicitly before us, in his motion for reconsideration before the BIA he alleged a due process violation.6 Cf. Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir.1996) (noting that one “of the most basic of due process protections” is “a complete record of the proceeding”); see, e.g., Teng v. Mukasey, 516 F.3d 12, 18 (1st Cir.2008); Garza-Moreno v. Gonzales, 489 F.3d 239, 241-42 (6th Cir.2007).
Individuals in a removal proceeding are statutorily entitled to “a complete record ... of all testimony and evidence produced at the proceeding.” 8 U.S.C. § 1229a(b)(4)(C); see 8 C.F.R. § 1240.9 (“The hearing before the immigration judge ... shall be recorded verbatim .... ”). Regrettably, the government does not always fulfill this statutory obli*788gation. Indeed, this Court is no stranger to cases in which the hearing transcript has been pockmarked with transcription holes, commonly delineated in the transcript as “(indiscernible).” See, e.g., Issiaka v. Attorney Gen. of the United States, 569 F.3d 135, 143 n. 7 (3d Cir.2009); Kaita v. Attorney Gen. of the United States, 522 F.3d 288, 294 (3d Cir.2008); Fiadjoe v. Attorney Gen. of the United States, 411 F.3d 135, 142-45 (3d Cir.2005); Balasubramanrim v. INS, 143 F.3d 157, 163 n. 9 (3d Cir.1998); McLeod v. INS, 802 F.2d 89, 95 (3d Cir.1986) (“By independent count, we have noted that there are 96 instances where the transcriber could not make out the testimony and in lieu thereof wrote down ‘indiscernible.’ ” (footnote omitted)); Sotto v. INS, 748 F.2d 832, 838 (3d Cir.1984) (“The scope of omissions in the transcript is disturbing.”).7
Semenov’s case represents yet another occasion of the government’s breach of its duty to provide a complete and accurate transcript. The portions of Sehoeberlein’s testimony reproduced above offer but a glimpse of the magnitude of the flaws besetting the transcript in this case. By our count, in Schoeberlein’s testimony alone— that is, excluding all other testimony and argument at the hearing — there appear approximately 136 instances of “indiscernible” notations.8 That figure is remarkable on a standalone basis, but it assumes an even more impressive stature when one considers that those notations are spread over a mere eighteen pages of hearing transcript, including the questions by Semenov’s attorney, the DHS attorney and the IJ. We have practically no basis for concluding how much missing testimony those notations are meant to compensate for. Cf. Oroh v. Holder, 561 F.3d 62, 66 (1st Cir.2009) (rejecting the petitioner’s argument that “important substantive testimony was lacking” because “the gist of the missing words [could] be inferred from their context”).
When Semenov asked the BIA to reconsider its decision vacating the IJ’s grant of withholding of removal, in keeping with the formalities required for motions for reconsideration, he cited Supreme Court case law and claimed that the unintelligibility of the hearing transcript precluded *789the BIA from conducting a reasoned adjudication of his case. The remedy he requested for that particular alleged deficiency was remand. His argument in this regard was admittedly terse, occupying only one paragraph of a four-page brief, but his request was not without legal grounding. On the contrary, it was consistent with the regulations governing proceedings before the BIA. See 8 C.F.R. § 1003.1(d) (3)(iv) (“A party asserting that the [BIA] cannot properly resolve an appeal without further factfinding must file a motion for remand. If further factfinding is needed in a particular case, the [BIA] may remand the proceeding to the immigration judge or, as appropriate, to the Service.”).9
When an appeal of an IJ’s decision is taken to the BIA, the record of a proceeding before the IJ must be forwarded to the BIA. 8 C.F.R. § 1003.5(a). When reviewing an IJ’s decision, the BIA may not review the IJ’s factual findings de novo. 8 C.F.R. § 1003.1(d)(3)(i). Instead, the BIA reviews those findings only for clear error. Id. We are at a loss to understand how the BIA could have discharged its duty in earnest on the record in this case. In its decision vacating the IJ’s grant of withholding of removal, the BIA faulted the IJ’s reliance on Schoeberlein’s testimony primarily because it found that testimony to be too speculative. The BIA attached particular weight to what it characterized as Schoeberlein’s testimony that he had no specific knowledge of the manner in which Tajik officials treat criminal deportees. We pass no judgment on the BIA’s conclusion in this respect. However, many of the “indiscernible” notations in the hearing transcript appear at decidedly crucial moments of Schoeberlein’s testimony that very well might have substantially undercut that conclusion. In denying Semenov’s motion for reconsideration, the BIA gave short shrift to that eventuality.10
For instance, in determining that Semenov had demonstrated a right to relief under the CAT, the IJ explicitly relied on Schoeberlein’s testimony that there was at least a fifty percent chance that Semenov would be tortured if forced to return to Tajikistan. Because the transcription of the IJ’s oral ruling does not cite to the record, we cannot be sure what portion of that testimony drove the IJ’s finding in this respect. The transcript does permit us, however, to venture an educated guess. When asked whether someone in Semenov’s place would be tortured in Tajikistan, Schoeberlein responded, in pertinent part, as follows: “My (indiscernible) that he would be quite likely (indiscernible) 50 percent (indiscernible) that he would be (indiscernible) as a known convicted felon. He would be (indiscernible) authorities in Tajikistan (indiscernible) established record of use of torture in various contexts by authorities in Tajikistan.” (A130.) When asked what sorts of individuals would be considered undesirable by Tajik officials, Schoeberlein answered: “Well, the fact that he is being return [sic] because he’s a convicted criminal. The most important (indiscernible) that there is, I mentioned, (indiscernible) country and (indiscernible) some part of people who have dealing [sic] with the authorities (indiscernible) as well. So those are the (indiscernible) certainly work against him.” (Id.)
*790These examples are only two in a long line that cause us to wonder how the BIA determined that Schoeberlein did not have the requisite level of knowledge of the treatment of criminal deportees by Tajik officials. Furthermore, the BIA’s cursory denial of Semenov’s motion for reconsideration does not leave us with much confidence that it actually considered whether correcting for the hearing transcript’s deficiencies might have vitiated that determination or otherwise led to a different outcome. Even more important, at least for our purposes as a reviewing court, is that the condition of the transcript seriously hamstrings our ability to comply with our statutory mandate. See 8 U.S.C. § 1252(b)(4)(A) (providing that “the court of appeals shall decide the petition only on the administrative record on which the order of removal is based”). Accordingly, under the specific circumstances presented here, we believe that the BIA’s decision not to remand this case was arbitrary, and therefore constituted an abuse of discretion.
IV. Conclusion
In light of the muddled condition of the transcript of the proceedings before the IJ, we will grant Semenov’s petition for review. Because, however, we cannot assess whether Semenov is entitled to the underlying relief he seeks based on the record in its current form, we will remand to the BIA for further proceedings consistent with this opinion. On remand, the BIA should either obtain a clear copy of the transcript or, if no such copy is obtainable, remand this case to the IJ for a new hearing.
. Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey as the respondent in this case.
. Semenov's mother was killed in Russia in 1995.
.The IJ's other factual findings and legal conclusions are not relevant for the purposes of this case.
.DHS did not appeal the IJ's other findings to the BIA and the BIA did not discuss those findings in its decision.
.The BIA’s order denying Semenov's motion for reconsideration was signed by BIA Mem*787ber Filppu, the same BIA Member who dissented from the decision vacating the IJ's grant of withholding of removal.
. To prevail on such a claim in this Court, Semenov "must make an initial showing of substantial prejudice.” Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d Cir.2005) (citation omitted). Petitioners advancing such claims generally bear a heavy burden. See, e.g., Witjaksono v. Holder, 573 F.3d 968, 974-76 (10th Cir.2009); Garza-Moreno v. Gonzales, 489 F.3d 239, 241-42 (6th Cir.2007). In this case, we express no opinion on the viability of Semenov's claim — to the extent he advances one — that the incompleteness of the hearing transcript constitutes a due process violation.
. We are far from alone in our all-too-frequent encounters with transcription deficiencies in immigration appeals. See, e.g., Witjaksono, 573 F.3d at 974 (“In the case under review, there can be little dispute but that the government breached its duty to prepare a reasonably complete and accurate transcript. Not only is the transcript replete with nearly two hundred notations of ‘indiscernible,’ but key portions of the hearing are all but incomprehensible.”); Oroh v. Holder, 561 F.3d 62, 65 (1st Cir.2009) ("We are not strangers to the problem of incomplete transcripts in immigration cases.” (citations omitted)); Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir.2009) (‘‘[W]e are compelled to comment upon the quality of the record before us.... [T]he transcript of [the] asylum hearing is littered with the notation ‘(indiscernible).' ”); Tandia v. Gonzales, 487 F.3d 1048, 1053 n. 1 (7th Cir.2007) (noting that the transcript was "peppered with the notation 'indiscernible[]’”); Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir.2006) ("We note with concern that the government failed to meet its obligation to prepare a reasonably accurate and complete record of the removal hearing....”); Singh v. Ashcroft, 367 F.3d 1139, 1145 n. 1 (9th Cir.2004) (noting that "the term 'indiscernible' appears in the transcript some 73 times”); Rusu v. INS, 296 F.3d 316, 319 (4th Cir.2002) (stating that "the transcript of [the] asylum hearing testimony is marked ‘indiscernible’ a total of 132 times"); Adebisi v. INS, 952 F.2d 910, 914 n. 10 (5th Cir.1992) (noting the “numerous ‘indiscernible’ statements in the transcripts”).
. This count excludes one instance in which Schoeberlein's response to one of the IJ’s questions is registered as "(No audible response)." The response was apparently audible to those present at the hearing, however, since the IJ proceeded directly to his next question.
. As a general matter, this Court looks to the function of a motion, not its caption, to determine the type of relief a litigant seeks. See Smith v. Evans, 853 F.2d 155, 158 (3d Cir.1988). Here, while Semenov's motion was captioned as one for reconsideration, the relief it sought was remand.
. To the extent Semenov alleged a due process violation as a basis for his motion for reconsideration, we reiterate that we will abstain from weighing in on the merits of such a claim.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472312/
|
OPINION OF THE COURT
PER CURIAM.
Petitioners, Xiu Jin Yu and Yong Sheng Liu, natives and citizens of the People’s Republic of China, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen. For the following reasons, we will deny their petition.
Liu entered the United States on April 11, 2001, and the Immigration and Naturalization Service served him with a Notice to Appear and placed him in removal proceedings on June 5, 2001. Yu, Liu’s wife and the lead petitioner, arrived on August 1, 2002, and the INS placed her in removal proceedings on August 8, 2002. Both petitioners admitted removability, but sought asylum, withholding of removal, and protection under the regulations implementing the Convention Against Torture (“CAT”). The petitioners feared returning to China, arguing that they would be forcibly sterilized for violating the one-child policy. Specifically, the couple believed they were at risk because they had a second child while residing in the United States.
*795Following a March 9, 2005 merits hearing, the Immigration Judge (“IJ”) ruled that petitioners failed to establish eligibility for any form of relief, and ordered them removed to China. In an August 16, 2006 opinion, the BIA adopted and affirmed the IJ’s decision. Petitioners sought review in this Court and we denied their petition in a January 15, 2008 opinion. Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir.2008).
On April 28, 2008, Petitioners filed a motion to reopen their removal proceedings with the BIA. In the motion, Petitioners claimed that mistranslations of the 2002 Fujian regulation appended to the 2005 and 2007 State Department Asylum Profile constituted previously unavailable evidence establishing changed country conditions. Petitioners also introduced four other previously unavailable documents which they asserted shows that China maintains a national policy of forced sterilization. The BIA denied the motion, and petitioners have filed a timely petition for review from that order.
We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). We will uphold the BIA’s factual determinations so long as “they are ‘supported by reasonable, substantial, and probative evidence on the record as a whole.’ ” Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir.2009) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
Motions to reopen are generally required to be filed with the BIA “no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). The deadline does not apply to motions that rely on evidence of “changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, the motion to reopen was not filed within the 90-day window; therefore, petitioners must show changed country conditions in order to excuse the untimeliness.
The petitioners’ primary contention is that the State Department’s translation of the 2002 Fujian regulation, which was incorporated into the 2005 and 2007 State Department’s Profile of Asylum Claims and Country Conditions in China, is inaccurate. The BIA dismissed this claim because the original BIA decision did not rely on the 2007 Profile. Petitioners, however, assert that the BIA’s original decision cited to cases which relied on the 2005 Profile, and therefore, it changed the agency’s understanding of conditions in Fujian Province. (Petr.’s Br. at 27.) Further, though the regulation was adopted in 2002, petitioners assert that the alleged mistranslation constitutes changed circumstances inasmuch as the State Department translation was not available until October 2005, seven months after the petitioners’ hearing before the IJ. See Filja, 447 F.3d at 253 (“previous hearing” as used in § 1003.2(c)(3)(h) refers to the hearing before the IJ).
We reject the petitioners’ contentions. Even assuming, for the sake of argument, that the petitioners’ version of the 2002 regulation is material to their case, the claim fails because the regulation was in place at the time of petitioners’ hearing before the IJ. Petitioners cite no statute, regulation, or case-law, and we are aware of none, which would support their contention that a State Department mistranslation of a document could constitute changed circumstances in an asylum appli*796cant’s country of nationality. Cf. Shardar v. Att’y Gen., 503 F.3d 308, 315 (3d Cir.2007) (“The re-emergence of the political party responsible for the applicant’s prior persecution is the type of situation that would constitute a change in country conditions.”) To the extent that petitioners argue that the BIA’s reliance on the mistranslation violated their right to due process, the instant petition for review is not a means to re-litigate the original removal proceedings. See Kaur v. Bd. of Immigration Appeals, 413 F.3d 232, 233 (2d Cir.2005) (per curiam).
The BIA also did not abuse its discretion in finding that petitioners failed to establish a prima facie case to warrant reopening their asylum proceedings. See Zheng v. Att’y Gen., 549 F.3d 260, 265 (3d Cir.2008) (citation and quotations omitted) (BIA may deny a motion to reopen if the movant fails to establish a prima facie case for the relief sought). Petitioners argue that a document entitled “Announcement of Further Improvement of the Family Planning Work” establishes a reasonable likelihood that they would be persecuted if removed to China. (Petr.’s Br. at 41.) The BIA, however, found that the document did not establish a prima facie case because it did not state that sterilization was mandatory for couples with two or more children nor did it show that a violator of the one-child policy would be forced to undergo sterilization. (Admin. Record at 3.) The BIA gave reasoned consideration to the motion and made adequate findings to support its conclusion. Zheng, 549 F.3d at 268. We do not find that the evidence compels a contrary conclusion. See Ahdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001). For similar reasons, we agree with the BIA that the other three documents petitioners submitted do not show a change in China’s coercive population program which would warrant a reopening of petitioners’ case.
For the foregoing reasons, we will deny the petition for review.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472314/
|
OPINION OF THE COURT
JORDAN, Circuit Judge.
Foster Price, Jr. was convicted by a jury in the United States District Court for the Middle District of Pennsylvania on charges related to the possession and distribution of heroin and was sentenced to 27 years in prison. He appeals the District Court’s judgment of conviction and sentence on four grounds, arguing first that there was insufficient evidence to convict him of being part of a conspiracy to distribute heroin, second, that the District Court erred in determining at sentencing that he was *798responsible for the distribution of more than one kilogram of heroin, third, that the District Court erred by applying a leadership enhancement to his offense level in calculating his Guidelines range, and fourth, that the District Court erred by denying his motion for a mistrial based on comments made by the prosecutor during closing argument. For the reasons that follow, we will affirm Price’s conviction and sentence.
I. Background
On February 9, 2006, Price, who lived in central Pennsylvania and sold heroin there, was indicted on one count of conspiring to distribute and possess with intent to distribute more than a kilogram of heroin, in violation of 21 U.S.C. § 846, and three counts of distribution and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). A number of alleged co-conspirators, both indicted and unindicted, testified for the government at Price’s trial. We will summarize the most pertinent testimony.
Jayme Hoagland testified that she regularly bought heroin from Price — both to feed her addiction and to sell to others— while she was a minor, both before and during the early stages of a pregnancy. She also stated that Price “cut” and “bagged” heroin in her apartment1 and stashed “bricks”2 of heroin above her ceiling tiles. Furthermore, Hoagland explained that, when Price’s schedule changed so that he was frequently out of the area, he introduced her to a new dealer, Ali Patterson. She claimed that she often traveled to Newark, New Jersey to purchase heroin from Patterson. Hoagland’s boyfriend, Casey Dodson, testified that he, too, regularly obtained heroin, for his personal use and for redistribution, from Price over a period of approximately six months. According to Dodson, he would not pay for the heroin up front, but would give Price some of the proceeds that he received from his sales.
Jeremy Robinson testified that he often purchased heroin, multiple bricks at a time, from both Price and Patterson, and admitted to reselling much of what he bought.3 He also testified that Price and Patterson “pretty much mutually agreed that they knew each other.” (SuppApp. at 282.) However, he did not indicate that Price introduced him to Patterson or recommended Patterson as an alternative source. He claimed to have met Patterson independently, when he went to Newark to “cop [heroin] off the street.” (Id. at 285.)
Patterson, who pled guilty to conspiring to distribute one kilogram or more of heroin, admitted that, for approximately two years, he sold three to seven bricks of heroin per day, five days a week, on Grafton Avenue in Newark. He claimed that he did not know his customers personally; they would drive up to where he was stationed, make their purchases, and drive away. Patterson testified that he and Price grew up together and had known each other all of their lives. He denied, however, that he sold heroin to Price, that Price introduced him to customers, or that customers expressed that they had come *799on Price’s behalf or recommendation. He testified that he still had family in the violent neighborhood where he and Price grew up, but when the prosecutor asked him whether he would fear repercussions if he gave testimony that incriminated Price, Patterson responded that he would not.
Tony Dunka testified that he was introduced to Price by Hoagland and Dodson and that he regularly purchased heroin from Price. In June 2003, Dunka was arrested by Pennsylvania State Trooper Nicholas Madigan for a drug offense. Dunka ultimately agreed to work as a confidential informant and arranged for Madigan to purchase a brick of heroin from Price on February 10, 2004, at the Susquehanna Mall in Selinsgrove, Pennsylvania. Madigan and Dunka arrived at the mall and were met there by one of Price’s associates, a man that Dunka identified as “Chachi.” During the meeting, Madigan purchased a brick of heroin from Chachi. Following the purchase, Dunka spoke to Price, who indicated that he was pleased with how things had gone, and set up a second meeting for February 27 at the same location. This time, Price came to meet Madigan and sold him another brick of heroin. Dunka also testified that he saw Price with eight-to-ten bricks of heroin on six or seven other occasions.
Testifying on Price’s behalf, James Giardina admitted that he had purchased heroin for redistribution from Patterson and Hoagland but claimed that he had never met or even heard of Price before the instant proceedings. However, Tracy Bur-gos, a government witness who bought heroin from Giardina, testified that Giardina had mentioned Price’s name to her and that she understood that Giardina got his heroin from Price.
The parties stipulated that if an expert witness for the government, Ann Wagner, had testified, she would have established that the bricks that Price sold to Madigan contained heroin and that they weighed 1.2 and 1.4 grams respectively. Pennsylvania State Trooper Russell Burcher testified that he estimated, based on that stipulation and witness testimony, that Price and Patterson collectively sold between 815 and 1,674 grams of heroin. That range did not include the heroin that Patterson may have sold to other individuals who are not named in this opinion.
During closing argument, the prosecutor questioned Patterson’s testimony that he and Price had not conspired to sell heroin by stating that Patterson may not have wanted to testify against Price because the two were close and Patterson feared repercussions in his neighborhood. Price objected to the prosecutor’s remarks and moved for a mistrial, but the District Court denied his motion. The jury found Price guilty of one count of conspiracy to distribute and possess with intent to distribute more than one kilogram of heroin (the “conspiracy count”)4 and two counts of distribution and possession with intent to distribute heroin (the “distribution counts”).5 In response to a special interrogatory, the jury also found, beyond a reasonable doubt, that one kilogram or more of heroin was distributed or intended to be distributed as part of the conspiracy.
*800In its Presentence Report (“PSR”), the United States Probation Office concluded that Price was responsible for conspiring to distribute 2.393 kilograms of heroin. That figure included the heroin sold both by Price and by Patterson during the two years that Patterson admitted to selling heroin on Grafton Avenue, and, under United States Sentencing Guideline (“U.S.S.G.”) § 2D1.1(c), resulted in a base offense level of 32. Pursuant to U.S.S.G. § 2D1.2(a), the Probation Office added one-level because Price sold heroin to Hoagland while she was pregnant and while she was a minor and two levels because Price possessed dangerous weapons during the commission of his offenses. It also recommended a four-level increase on the ground that Price was an organizer or leader of a criminal activity that involved five or more people.6
Price objected to the amount, arguing that, because he had no involvement with any of Patterson’s drug sales, he was responsible for less than one kilogram of the drug. The District Court disagreed. While it did not attribute to Price all of the heroin that Patterson sold during his time as an admitted dealer, it held him responsible for the heroin that Hoagland bought from Patterson, which, when coupled with the heroin that Price sold himself, exceeded one kilogram.
Price also objected to the leadership enhancement, arguing that it was not supported by the evidence.7 The Court agreed in part, finding that there was no evidence that Price exercised decision-making authority over the group as a whole, recruited accomplices, or claimed a larger share of the profits of the crime. The Court did find, however, that Price was a manager or supervisor, and was therefore subject to a three-level enhancement, because he supplied the group with heroin and exercised control over Chachi.
With the three-level enhancement, Price’s Guidelines range was 324 months (27 years) to 405 months (33 years and nine months). After addressing Price’s objections and considering the appropriate sentencing factors, the District Court sentenced Price to 27 years’ imprisonment on the conspiracy count and 20 years on each of the distribution counts, all sentences to run concurrently. Price filed a timely appeal challenging both his conviction and sentence. On appeal, Price contends that there was insufficient evidence that he was involved in a conspiracy to sell heroin and that the District Court erred in concluding at sentencing that he was responsible for the sale of over a kilogram of heroin.8 Price also argues that the Court erred by enhancing his sentence based on a finding that he was a manager or supervisor, and by denying his motion for a mistrial based on the prosecutor’s argument that Patterson did not want to inculpate Price because he feared repercussions against his family and because of the culture prevalent in the housing projects where the two men grew up.
II. Discussion9
A. Sufficiency of the Evidence
Price argues that there was insufficient evidence to convict him of conspiracy to distribute heroin. We review the suffi*801ciency of the evidence in the light most favorable to the government and will affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Diallo, 575 F.3d 252, 256 (3d Cir.2009). To establish a charge of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846, the government must show: (1) a unity of purpose between the alleged conspirators; (2) an intent to achieve a common goal; and (3) an agreement to work together toward that goal.10 United States v. Pressler, 256 F.3d 144, 147 (3d Cir.2001).
That Price was involved in a conspiracy to distribute heroin, a controlled substance, in central Pennsylvania is amply supported by the record. The government proffered evidence that, after Dunka set up a controlled buy with Price, Chaehi came to the meeting place to complete the transaction. Furthermore, Hoagland testified that she distributed heroin that she bought from Price and that she allowed Price to cut, bag, and store heroin in her home. Dodson likewise testified that Price would give him heroin, some of which Dodson would sell, without requiring payment up front. Finally, Robinson testified that he bought large quantities of heroin from Price and resold much of it. While Robinson is more tenuously connected to the conspiracy than Chaehi or Hoagland, who took active roles in furthering the drug sales that Price personally conducted, or Dodson, whose status as a “middle man” in the operation is supported by the fact that Price allowed him to purchase heroin on credit, a reasonable trier of fact could infer that Robinson worked with Price in the same capacity that Dodson did. Sufficient evidence thus supports the conclusion that Price conspired with Chaehi, Hoagland, and Dodson, as well as Robinson, to sell heroin.
Whether Price conspired with Patterson to the same end is a much closer question. While the government demonstrated that Price introduced at least Hoagland to Patterson, an introduction without more does not necessarily demonstrate an agreement to work towards a common goal. In Pressler, 256 F.3d 144, we were confronted with a similar relationship between two drug dealers: the first dealer, Scott Shreffler, introduced two of his customers to “another, superior source of supply from which Shreffler himself had purchased a large amount of heroin.” Id. at 153. Noting that “[i]t is common for people to tell their friends about a good store or restaurant,” we concluded that the referral “did not show that [the two dealers] ever agreed to work together on anything” and no evidence beyond the referral pointed to such an agreement. Id. at 154.
At the same time, we recognized in Pressler that evidence which would not be sufficient to establish a conspiracy may be sufficient to link an individual to an existing conspiracy. Id. at 152. Such evidence exists here. Price introduced at least one customer/dealer to Patterson, and the jury had evidence from which it could conclude that Price and Patterson had at least two overlapping clients in Hoagland and Robinson, both of whom also resold much of the heroin that they purchased. Likewise, it could conclude that Patterson’s associate Giardina was also a distribution outlet for Price. A rational jury could thus decide that the overlapping distribution network *802employed by Price and Patterson was not mere coincidence but was proof of a coordinated effort between Price and Patterson to distribute heroin in central Pennsylvania. Here, by virtue of attributing more than a kilogram of heroin to Price, the jury effectively found that Price and Patterson were co-conspirators. Viewing the evidence, as we must, in the light most favorable to the government, we agree that it is sufficient to support the jury’s finding of the existence of a conspiracy, including Patterson as a co-conspirator.
B. Quantity of Heroin
When a district court determines drug quantity for purposes of sentencing, we review its findings for clear error. United States v. Sau Hung Yeung, 241 F.3d 321, 322 (3d Cir.2001). The District Court in this case attributed a total of 1,136.4 grams — or 1.1364 kilograms — of heroin to Price. Specifically, based on witness testimony, it estimated that Price sold 711.6 grams of heroin collectively to Hoagland, Dodson, and Robinson, and 64.8 grams of heroin in transactions to which Dunka was privy. It further estimated that Patterson sold 360 grams of heroin to Hoagland and attributed that amount of the drug to Price.11
Price’s lone criticism of the quantity determination is that the Court improperly included heroin sold by Patterson. However, as already described, because sufficient evidence supports Patterson’s role in the conspiracy, the Court did not err in attributing to Price the heroin that Patterson sold to Hoagland. Its calculation, therefore, was proper.
C. Leadership Enhancement
Price argues that, in addition to attributing too much heroin to him, the District Court erroneously applied a three-level leadership enhancement. We disagree. The now-advisory U.S.S.G. § 3B1.1 instructs sentencing courts as follows:
Based on a defendant’s role in the offense, increase the offense level as follows:
(a) if the defendant was an organizer or leader of a criminal activity that involved 5 or more participants or was otherwise extensive, increase by 4 levels.
(b) if the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved 5 or more participants or was otherwise extensive, increase by 3 levels.
(c) if the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
Factors that courts should consider in determining a defendant’s leadership role include whether the defendant exercised decision-making authority, the nature of the offender’s participation in the crimes, whether the defendant recruited others, the degree to which the defendant claimed a larger share of the proceeds of the crime, and the degree of control which the defendant exercised over the criminal activity. U.S.S.G. § 3B1.1, n. 4. (Nov.2008 ed.); United States v. Gricco, 277 F.3d 339, 358 (3d Cir.2002). Because a district court’s assessment of a defendant’s role in a criminal conspiracy is “essentially factual in nature,” we review its determination on *803that issue for clear error. United States v. Hunter, 52 F.3d 489, 492 (3d Cir.1995).
Although the government argued, and the Probation Office suggested, that Price should be subjected to the four-level enhancement articulated in U.S.S.G. § 3B1.1(a), the District Court found that there was no evidence that Price exercised decision-making authority over the group as a whole, recruited individuals into the conspiracy, or claimed a larger share of the proceeds. Instead, it concluded that he was a manager or supervisor and applied a three-level enhancement under U.S.S.G. § 3Bl.l(b). That determination is not clearly erroneous.
The three-level enhancement requires two findings: (1) that the defendant was a “manager or supervisor”, and (2) that the management or supervision by the defendant was of a criminal enterprise that involved at least five people or was otherwise extensive. The government proffered uncontested evidence that Price exercised control over Chaehi, whom he sent to conduct the first controlled heroin sale to Officer Madigan, and that he served as a primary supplier of heroin for other co-conspirators. Given Price’s authority over Chaehi and the control he exercised over the supply of heroin, the District Court did not err in labeling him a manager. Moreover, as noted above, there is sufficient evidence that Price conspired with at least five other people — Chaehi, Hoagland, Dodson, Robinson, and Patterson — to distribute heroin. The “five or more participants” standard of U.S.S.G. § 3Bl.l(b) is thus met.
D. Prosecutor’s Remarks During Closing
Price argues that the District Court erred in denying his motion for a mistrial, in which he contended that, during closing argument, the government made remarks that were not based on the record and prejudiced his right to a fair trial. In an attempt to discredit Patterson, who was called by the government but testified that he and Price did not conspire to sell heroin, the prosecutor stated:
What did [Patterson] tell you about the projects? It’s dangerous. There’s violence there. What else did he tell you. He still has family back there....
He told you he’s got his grandmother, his mother, his sister, his daughter[, h]is baby mother [sic] all live in the projects.
[Patterson is] going to admit what he did, but he’s not going to testify against [Price.] He’s got two reasons for it. It’s part of the culture, he’s not going to do it, and he’s got family back there. And remember Price is from the projects also. They grew up in the same neighborhood.
(Supp.App. at 556.)
“We review a district court’s decision to deny a motion of a mistrial predicated on the grounds that the prosecutor made improper remarks in a closing argument for abuse of discretion.” United States v. Wood, 486 F.3d 781, 786 (3d Cir.2007) (citation omitted). “‘To find that the court abused its discretion in failing to order a mistrial for prosecutorial misconduct, we must first be convinced that the prosecution did in fact misconduct itself.’ ” Id. (quoting United States v. Rivas, 479 F.3d 259, 266 (3d Cir.2007)).
We agree with Price that the remarks were improper. “The prosecutor is entitled to considerable latitude in summation to argue the evidence and any reasonable inferences that can be drawn from that evidence.” United States v. Werme, 939 F.2d 108, 117 (3d Cir.1991) (citation omitted). Here, however, the government was not making reasonable inferences from Patterson’s testimony or any other evidence proffered at trial. The only evi*804dence elicited at trial about Patterson and Price’s shared background was that they knew each other, that there was violence in the neighborhood where they grew up, and that Patterson still had family in that neighborhood. There was no evidence, nor even an attempt to submit evidence, about the current state of law enforcement in the neighborhood, about a history of retaliation for cooperation with law enforcement, or about a code of silence surrounding criminal activity.12 The government simply assumed, and in effect asked the jury to assume, that people from housing projects are not to be trusted because they live in fear of retribution and abide by a code that prevents them from disclosing the crimes of their neighbors. Bare assumptions like that have no place at trial. When a party, particularly the government, decides to impeach a witness, including its own witness, it ought to proceed with evidence rather than unsubstantiated innuendo. Inviting the jury to make determinations about Patterson’s truthfulness, and, by extension, about Price’s guilt, based on practically nothing more than a low-income address exceeded the bounds of permissible advocacy.
That said, we do not believe that the District Court abused its discretion in denying Price’s motion for a mistrial. While the government’s remarks during summation were inappropriate, they did not “ ‘so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process’ in light of the entire proceeding.” United States v. Morena, 547 F.3d 191, 194 (3d Cir.2008) (quoting Marshall v. Hendricks, 307 F.3d 36, 64 (3d Cir.2002)). On the contrary, the evidence of Price’s illegal drug dealing was varied and strong, and he points to no other incidents of alleged prosecutorial misconduct that occurred during trial. See id. (We must consider the prosecutor’s improper actions and the weight of properly admitted evidence in assessing whether prosecutorial misconduct necessitates reversal of a conviction.). Viewing the proceedings as a whole, we cannot say that the District Court erred in determining that Price’s conviction was fair, in spite of the improper comment in closing.
III. Conclusion
For the foregoing reasons, we will affirm Price’s conviction and sentence.
. Hoagland indicated that by "cut,” she meant that Price would adulterate the heroin with an inert substance, and by “bag,” she meant that Price would separate the heroin into individual units for sale.
. According to expert testimony proffered by the government, there are ten bags of heroin in a bundle and five bundles in a brick, and a brick of heroin usually weighs slightly more than a gram, although the weight can vary slightly between bricks. Price does not dispute those figures.
.Robinson also acknowledged that he shared some of his heroin with his girlfriend at the time, Devin Gessner, but it is not clear from the record whether Gessner sold the drug.
. The conspiracy count encompassed more than simply conspiring to possess and distribute heroin. On the Judgment of Conviction, the count is set forth as follows: "Conspiracy to Distribute and Possess With Intent to Distribute More Than 1 Kilogram of Heroin; Distribute and Possess With Intent to Distribute Heroin to Individuals Under Age 21 While Being Over Age 18; Provide and/or Distribute Heroin to a Pregnant Individual." (App. at 3.)
. The jury acquitted Price of the third count of distribution and possession with intent to distribute heroin.
. In calculating Price’s offense level, the probation office grouped the distribution counts with the conspiracy count under U.S.S.G. § 3D 1.2(d).
. He did not object to the enhancements for possession of dangerous weapons or distribution to a pregnant individual and/or a minor.
. Price does not challenge his convictions on the distribution counts.
. The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. These elements differ from those required to prove a criminal conspiracy under 18 U.S.C. § 371. See United States v. Rankin, 870 F.2d 109, 113 (3d Cir.1989) ("The three elements of a Section 371 conspiracy are: 1) the existence of an agreement, 2) an overt act by one of the conspirators in furtherance of the objective, and 3) an intent on the part of the conspirators to agree.... ”).
. Courts are permitted "a degree of estimation” and may make their estimates by relying on testimony regarding the average amount of drugs sold per week and multiplying by the period of time over which the drugs were sold. United States v. Gibbs, 190 F.3d 188, 203-204 (3d Cir.1999). Price does not dispute any of the District Court's individual quantity estimates, and each finds ample support in the record.
. Whether such evidence could properly have been admitted is not something we have occasion to consider now.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472316/
|
OPINION
McKEE, Circuit Judge.
Sherry Studli appeals the district court’s grant of summary judgment in favor of defendants in this civil rights action under 42 U.S.C. § 1988. For the reasons that follow, we will affirm.
I.
Since we are writing primarily for the parties who are familiar with the factual and procedural background of this dispute, we will only set forth as much of the background as is helpful to our discussion.
Briefly stated, Studli is the mother of six children, some of whom have reached the age of majority. Two of Studli’s daughters, RS and AS,1 were voluntarily placed in Somerset County Children and Youth Services (“CYS”) custody on August 6, 2001. Studli filed a pro se complaint on September 9, 2005, in which she alleged that several of her constitutional rights were violated by CYS’s removal of her children from her custody on and off for seven years.
II. § 1983 CLAIM
Studli argues that the district court erred in entering summary judgment for the defendants on her § 1983 Claim. However, a county agency cannot be sued under a respondeat superior theory of liability. Marran v. Marran, 376 F.3d 143, 156 (3d Cir.2004). A governmental body is subject to liability only if the alleged unconstitutional act either (1) “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers” or (2) is “visited pursuant to governmental custom even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (internal quotations and citations omitted).
Here, the district court recognized that Studli had identified two customs, practices or policies. She claims that CYS was “organized to operate a business that apparently profits to misuse of children for budget purposes” and that CYS contracts some foster home placements that are outside of Somerset County. The district court concluded, however, that while Studli identified these two policies or practices of Somerset County, she failed to provide “any evidence that [they] ... exist, much less that [they] were the moving force behind alleged constitutional violations.”
CYS first relies on Fed. R.App. P. 28(9)(A), and argues that Studli’s brief “must contain ... appellant’s contentions ... with citations to the ... parts of the record on which the appellant relies.” Appellees’ Br. at 11. CYS contends that because Studli failed to support her legal conclusions with factual assertions citing to the record, her appeal should be dismissed. CYS argues in the alternative that it is not subject to liability because it is an agency of a municipality. Although we agree that Studli must do more than make assertions in a brief to prevail on her § 1983 claim, we disagree with CYS’s assertion that its status as a municipal agency immunizes it from Studli’s claim. There is no blanket immunity for a munici*809pality. A governmental agency can be liable under § 1983 where its officers either (1) officially adopt an unconstitutional policy, custom or practice or (2) a governmental custom creates a constitutional deprivation. Monell, 436 U.S. at 694, 98 S.Ct. 2018. Moreover, individual governmental actors can also be liable unless their conduct falls within the protective scope of qualified immunity, and Rugg and Hazlitt both argue that they are entitled to qualified immunity.
A. QUALIFIED IMMUNITY
In Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court mandated a two-step process for analyzing claims of qualified immunity. Under Saucier, we must determine whether the facts alleged would establish a violation of a constitutional right. Id. If so, we must then determine if the asserted right was “clearly established” at the time of defendant’s conduct. Id.
Although this approach has not been completely abandoned, the Supreme Court recently held that “the Saucier procedure should not be regarded as an inflexible requirement.” Pearson v. Callahan, — U.S.-, 129 S.Ct. 808, 813, 172 L.Ed.2d 565 (2009).
In order for a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Even when specific conduct has not previously been ruled unlawful, “officials can still be on notice that their conduct violates established law.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal quotation marks and citations omitted).
To determine if Rugg or Hazlitt are entitled to qualified immunity, we must determine if Studli has adequately alleged a violation of a constitutional or statutory right, and if so, whether that right was clearly established at the time of their alleged conduct.
Although Studli’s brief is far from clear, she appears to raise the following constitutional violations: (1) Fourth Amendment unreasonable seizure, (2) substantive due process, and (3) procedural due process. In her Reply Brief, Studli attempts to raise additional violations, including violations of the federal Adoption Assistance Act and Abuse Prevention Act. However, these issues were not preserved for appeal, because she did not present them in the district court. Accordingly, we need not address them now.
B. FOURTH AMENDMENT UNREASONABLE SEIZURE CLAIM
Studli’s Fourth Amendment claim appears to rest on her allegation that CYS officials unreasonably relied on her mental health problems in deciding to remove (i.e. “seize”) her children. The Permanency Review Hearing Report concluded that placement was necessary in part because Studli admitted a prior diagnosis of Bipolar disorder requiring medication and she had not maintained contact with mental health providers. There was also evidence that Studli threatened suicide on two or more occasions.
In Callahan v. Lancaster-Lebanon Intermediate Unit 13, 880 F.Supp. 319, 334 (E.D.Pa.1994), the court analogized the situation of a child care worker who seeks, obtains and executes a temporary custody order to a “police officer seeking, obtaining and executing an arrest warrant.” The court opined, “[it] is well-settled that probable cause to arrest generally exists when *810a police officer makes an arrest pursuant to a warrant that meets the requirements of the Fourth Amendment.” Id. (citations omitted). The only exception is where “the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” Id. It is only when this exception applies that the “shield of immunity” would be lifted. Id. (quoting Malley v. Briggs, 475 U.S. 335, 344, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
Much like in Callahan where the defendants obtained a temporary custody order from state court, the purported “seizures” here occurred only after the Court of Common Pleas gave verbal and written orders authorizing CYS to take Studli’s children in order to protect them. That “seizure” was affirmed by the Superior Court of Pennsylvania during Studli’s appeal. If we analogize the taking of the children to an arrest for Fourth Amendment purposes as Studli’s complaint suggests, it is clear that the case workers can not be liable for conduct that was ordered by a trial court and approvingly reviewed by an appellate court absent anything like fraud, unreasonableness or bad faith; and nothing of that sort appears on this record.
In arguing to the contrary, Studli directs us to a myriad of recent cases from other jurisdictions. Fisher v. Harden involved the detention of an individual based on an unconfirmed report that he was suicidal. 398 F.3d 837, 843 (6th Cir.2005). The court held that officers must have probable cause to detain an individual based on the belief that he is a danger to himself or others, id., but Studli does not claim that she was detained. Her children were removed based only in part on her mental health issues, but also based on unsanitary conditions at the home including lice and cockroaches.
Studli argues that CYS employees do not have adequate training about mental health issues, in violation of the “national Child Welfare league standards.” Appellant’s Br. at 16. However, she does not cite any specific League standards that were breached. Rather, she relies on AM. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center, where the court found a liberty interest in the plaintiffs “personal security and wellbeing” as protected by the Fourteenth Amendment. 372 F.3d 572, 579 (3d Cir.2004). The court found that a “municipality may be liable for failing to train its employees if that failure amounts to deliberate indifference.” Id. at 582. That analysis pertained to an alleged denial of substantive due process; it does not apply to Studli’s Fourth Amendment rights. Id. at 582 (quoting City of Canton v. Harris, 489 U.S. 378, 389-90, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Moreover, even if we liberally construe her allegations and stretch them to include a substantive due process claim, she would still not be able to prevail because the only evidence of “deliberate indifference” here pertains to Studli, not CYS.
Since Studli cannot show that CYS or its employees unreasonably relied in bad faith on the verbal and written Orders of the Court of Common Pleas, the removal of her children was not unreasonable under the Fourth Amendment even if we assume arguendo that it constituted a Fourth Amendment seizure.
C. SUBSTANTIVE DUE PROCESS CLAIMS
Studli’s substantive due process claim is rooted in the constitutionally protected liberty interests in familial integrity. Appellant’s App. at 7. We have recognized “constitutionally protected liberty interests that parents have in the custody, care and management of their children.” See Croft v. Westmoreland County CYS, *811103 F.3d 1123, 1125 (3d Cir.1997) (citing Lehr v. Robertson, 463 U.S. 248, 258, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.1987)). However, this liberty interest is “not absolute.” Id. Courts “must balance the fundamental liberty interests of the family unit with the compelling interests of the state in protecting children from abuse.” Id. at 1125.
A social worker’s negligence will not, on its own, violate a parent or child’s substantive due process right. Miller v. City of Philadelphia, 174 F.3d 368, 376 (3d Cir.1999) (citing County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (“[Liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”)). Rather, a substantive due process violation by a social worker must be “so clearly arbitrary” that it “can properly be said to shock the conscience.” Id. A social worker need not have acted with “the purpose to cause harm,” but must “exceed both negligence and deliberate indifference, and reach a level of gross negligence or arbitrariness.” Id. at 375-376.
As the facts diverge as to the claims against Hazlitt and Rugg, we need to address each separately.
1. Hazlitt
Studli supports her substantive due process claim against Hazlitt by pointing to her Amended Complaint where she alleged that Hazlitt prepared, verified and signed a “patently fraudulent” Primary Review Hearing Report. Appellant’s Br. at 8. She claims that the Report falsely accused her of recently threatening suicide on multiple occasions and having a “previous diagnosis of Bi-polar disorder requiring medication management.” S.App. 287b. Studli argues that these allegations could have been developed at trial.
Studli attempts to compare Hazlitt’s alleged fraudulent behavior to the due process violation of a “threat” in King v. Olmsted County, 117 F.3d 1065, 1067 (8th Cir.1997). There, the court held that a threat constitutes a constitutional violation where it exerts “coercive pressure on the plaintiff’ and deprives the plaintiff of a constitutional right. Id. Even viewing the record in the light most favorable to Studli, there is no evidence that Hazlitt made such a threat and even if there was a “threat” to remove the children, given the danger the risk involved, it is a stretch to find that any such threat would have “shocked the conscience.”
In Croft, a social worker threatened to remove a child from the home if the parent did not leave the household, but that was done without any concrete evidence that the child was in danger. 103 F.3d at 1123. Hazlitt made no such threat. Hazlitt simply completed a relevant question on the Report by cutting and pasting information from a caseworker who worked with Studli. This information was not intentionally fabricated, nor “sixth degree hearsay” as in Croft. Rather, it was based on concrete medical information in Studli’s file. Therefore, Studli’s substantive due process claim against Hazlitt was properly dismissed.
2. Rugg
It is unclear what Studli’s claim against Rugg is based on. The district court assumed that the only related liberty interest that could be involved is the interest in the “care, custody, and management of children” discussed above, and we agree. See Croft, 103 F.3d at 1125. The same “shock the conscience” standard for establishing a due process violation by a social worker applies. See Miller, 174 F.3d at 375.
*812Studli appears to base this claim on the allegation that Rugg failed to secure medical treatment for A.S. following a car accident, although Studli’s brief does not clearly address this issue. As the district court acknowledged, the record is clear that at the time of the accident, A.S. was residing at the Bradley Center in Pittsburgh, and it is not clear when Rugg first knew of the accident. While Studli claimed in her deposition that she called Rugg and left messages for her, Rugg claims she was notified of the accident on July 10, 2002, six days after the car accident. Viewing the facts in the most favorable light to Studli, even if Rugg received Studli’s messages before July 10th, Studli admits that A.S. was taken to the hospital with “severe bruising” and given pain medication. Priscilla Palmer, an employee of the Bradley Center, explained that A.S. was seen by a nurse immediately after the accident and discharged. S.App. 559b-562b. A “day or two later,” A.S. returned complaining that her arm hurt. Id. A.S. was then examined by Dr. Ravi Kant.
Assuming all facts in favor of Studli, the substantive due process claim against Rugg fails to “shock the conscience,” because A.S. received medical treatment and the record does not support a finding that Rugg did anything to delay, obfuscate or obstruct that treatment. Moreover, Rugg clearly followed up on Studli’s concerns about A. S.’ injuries and ensured that treatment was provided. Therefore, this claim was properly dismissed.
3. Substantive Due Process Claim against CYS
Studli also bases her substantive due process claim against CYS on the liberty interest in the “custody, care and management of children” discussed above. See Croft, 103 F.3d at 1125. Studli’s brief does not discuss this claim against CYS in any detail. The only relevant allegation is that CYS was operating a for-profit business and it placed its children outside Somerset County borders. (Amended Complaint, ¶ 20,21).
CYS is a not-for profit entity that receives funding for placement of children through federal, state and county governments. It is uncontested that CYS places a majority of the children in its custody within Somerset County. CYS places children outside of Somerset County only if placement within the county is unavailable. Studli’s allegations do not rise to the level of a substantive due process violation unless CYS’ policy of allowing placement of a child outside Somerset County in some circumstances is a custom, practice or policy that “shocks the conscience.”
Studli’s argument that the record is sufficient to allow a reasonable fact finder to conclude that such a policy does shock the conscience is as untenable as it is frivolous. If accepted, it would cause the very kind of hesitation and restraint on prompt action in these cases that the policy was intended to allow.
It is clear on this record that the individual defendants and CYS were faced with an extraordinarily unfortunate situation and that the safety and welfare of Studli’s minor children appeared jeopardized by allowing them to continue to remain with their mother. As we noted earlier, Studli’s liberty interest is not absolute, and must be balanced by the practical ability of the state to protect children from abuse. See Croft, 103 F.3d at 1125. Therefore, Studli’s substantive due process claim against CYS was properly dismissed.
III. PROCEDURAL DUE PROCESS CLAIM
While Studli appears to be arguing that her procedural due process claim was erroneously dismissed, her appellate brief does not state that argument in the section where summary of all arguments is re*813quired. However, it would not merit discussion even if properly asserted.
A prima facie procedural due process claim must establish that “(1) there has been a deprivation of liberty or property in the constitutional sense; and (2) the procedures used by the state to effect this deprivation were constitutionally inadequate.” Callahan v. Lancaster-Lebanon Intermediate Unit 13, 880 F.Supp. 319, 332 (E.D.Pa.1994). Under Pennsylvania law, “an individual taking a child into protective custody shall ... within 24 hours in writing notify the parent, guardian or other custodian of the whereabouts of the child ... and the reasons the child was taken into protective custody.” 23 Pa.C.S.A. § 6315(c). After written notice is provided, an informal hearing must be scheduled within 72 hours. 23 Pa.C.S.A. § 6315(d). Following the informal hearing, if a determination is made that the child is dependent, a formal hearing must be held within ten days. 42 Pa.C.S.A. § 6335(a).
Studli does not assert that CYS violated the applicable Pennsylvania statutes or that those statutes are not adequate to protect her Fourteenth Amendment procedural interests. Accordingly, Studli’s procedural due process claim was properly dismissed, because CYS followed Pennsylvania statutory procedure, and Studli does not argue such procedures failed to protect her procedural due process rights.
IV. COLLATERAL ESTOPPEL CLAIM
CYS argues that the doctrine of collateral estoppel bars relitigation of this claim because the Pennsylvania Superior Court already issued an opinion on this matter, and that the claim is barred by the Rooker-Feldman doctrine which precludes a federal court, other than the Supreme Court, from reversing a state court. Appellee’s Br. at 27-29. Collateral estoppel prevents relitigation of the same issues in a later case involving the same party or one in privity. Del. River Port Auth. v. FOP, Penn-Jersey Lodge 30, 290 F.3d 567, 572 (3d Cir.2002). Neither factual nor legal issues can be relitigated if four factors are present: (1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous determination was necessary to the decision; and (4) the party being precluded from relitigating the issue was fully represented in the prior action. Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir.1995).
CYS points to the Pennsylvania Superior Court opinion in In re: M.S., P.S., K.S. and J.F., No. 1526 WDA 2004, 881 A.2d 896 (Pa.Super. June 20, 2005). CYS claims the Superior Court opinion collaterally estops Studli from relitigating (1) that there was no jurisdiction to find the children dependent or (2) that CYS improperly declared the children dependent without clear and convincing evidence. Appellee App. at 28. The Opinion held that the trial court did not abuse its discretion “in finding clear and convincing evidence that MS., P.S. and K.S. were without proper parental care and control, rendering them dependent.” S.App. at 629b.
The issues before us involve whether CYS violated Studli’s constitutional rights; her claim is at least arguably distinguishable from the issues in state court that were driven by considerations of what was in the best interest of her children. We therefore reject CYS’s claim of collateral estoppel, but we will nevertheless affirm the district court’s grant of summary judgment.
V. PRESERVATION OF ISSUES FOR APPEAL
CYS argues that Studli waived issues related to (1) her mental illness; (2) *814violations of national or state standards for the removal of her children; (3) the training of CYS personal; (4) A.S.’ medical treatment; and (5) R.S.’ alleged pregnancy, because she did not preserve them prior to filing this appeal. See In re Surrick, 338 F.3d 224, 237 (3d Cir.2003) (issue raised for first time in reply brief was waived); Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993) (“[Ujnder Third Circuit Local Appellate Rule 28.1(a), appellants are- required to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief.”). We see no reason to ignore our general rule against considering issues “that are raised for the first time on appeal.” Newark Morning Ledger Co. v. U.S., 539 F.2d 929, 932 (3d Cir.1976).
Rather than showing us where she raised these issues in the district court, Studli argues that the issues were not waived because they are “fundamental and obvious plain error.” Reply Br. at 1. However, that doctrine is inapplicable here. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 256, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). Given all the circumstances here, and the importance of the interests involved for Studli as well as her minor children, we will not address an argument that was not developed in the district court.
CONCLUSION
For all the reasons set forth above, the order of the district court dismissing Studies complaint and granting summary judgment to the defendants will be affirmed.
. Studli's children’s initials are being used to protect their privacy, consistent with the briefs submitted by the parties.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472318/
|
OPINION OF THE COURT
PER CURIAM.
This matter comes on before this Court on Joanne Boyd’s appeal from an order of the District Court dismissing her complaint without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. For the reasons that follow we will affirm the order, albeit on grounds differing from those of the District Court.
I.
The material facts are not complex. On June 15, 2007, Boyd filed this action under 42 U.S.C. § 1983 against Patrick Pearson, the father of her son, Malcolm Pearson. On June 28, 2007, the District Court entered an order allowing her to proceed in forma pauperis and ordered the marshal to serve the summons and complaint on Pearson without cost to Boyd. For more than a year, however, the marshal did not serve process on Pearson, and, so far as the docket reflects, there was not any activity in the case during the year. Accordingly, nt an order entered July 29, 2008, the Court ordered the case dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b), which permits dismissal of an action if the plaintiff does not prosecute it. The order of dismissal, however, provided that “if, within twenty (20) days, good cause can be shown why service was not made within one hundred and twenty (120) days of the date of the filing of the Complaint, the dismissal will be vacated.” Boyd did not attempt to show good cause why the service had not been made prior to the expiration of the 20-day deadline. Instead, on August 28, 2008, she filed an appeal from the dismissal to this Court.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.1 We may affirm on any basis the record supports. Erie Telecomms. Inc. v. City of Erie, 853 F.2d 1084, 1089 n. 10 (3d Cir.1988).
III.
Pursuant to 28 U.S.C. § 1915(d), officers of the court issue and serve all process in in forma pauperis cases “that are not initially dismissed as frivolous by the district court.” Gibbs v. Ryan, 160 F.3d 160, 161 n. 1 (3d Cir.1998). As we have indicated, the District Court granted Boyd’s motion to proceed in forma pauper-is, and ordered the marshal to serve Pear*816son with the summons and complaint at no cost to her. In the circumstances, in the light of Gibbs, it was improper for the District Court to dismiss the complaint for lack of service because the marshal, not Boyd, was responsible for the failure to make service.
Nevertheless, we will affirm the order of dismissal because the case was subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2). A civil rights action brought pursuant to section 1983 is sustainable against state actors only. Bright v. Westmoreland County, 380 F.3d 729, 736 (3d Cir.2004). Pearson, the sole defendant, is not a state actor, and, notwithstanding Boyd’s claims that Pearson conspired with state and federal courts to gain custody of their son and to embezzle funds from his trust account, Boyd’s accusations are insufficient to sustain her claims. See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.”) (internal quotation marks, citation, and bracket omitted). Accordingly, we will affirm the order of the District Court entered July 29, 2008.2 Boyd’s outstanding motions are denied.
. As we have indicated, the order in the District Court entered July 29, 2008, from which Boyd filed this appeal, recited that "the matter is hereby DISMISSED WITHOUT PREJUDICE,” but provided that for good cause shown within 20 days the dismissal would be vacated. Ordinarily, an order of dismissal without prejudice is neither final nor appeal-able because the plaintiff may correct the deficiency "without affecting the cause of action.” Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir.1976). But Boyd did not show good cause for the deficiency, i.e., the failure to make timely service, and consequently the order became final and appeal-able at the end of 20 days after its entry. See Shapiro v. UJB Fin. Corp., 964 F.2d 272, 278 (3d Cir.1992). Moreover, it appears that the statute of limitations has run on the claims Boyd advances and thus, in effect, the dismissal, though originally without prejudice, has become a dismissal with prejudice. See Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 460 F.3d 470, 477 (3d Cir.2006). Consequently, inasmuch as dismissals with prejudice are appealable, we have jurisdiction over this appeal.
. We realize that we are affirming an order of dismissal without prejudice that was not on the merits and, in affirming, effectively are dismissing the case on the merits. Thus we have converted the dismissal without prejudice into a dismissal with prejudice. Ordinarily, in the absence of a cross appeal we could not have made this conversion, as by doing so we would be enhancing Pearson's position and constricting that of Boyd. See Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 205 (3d Cir.2001). Here, however, as we already have explained, the dismissal, though in terms without prejudice, has become a dismissal with prejudice. See supra n. 1. Accordingly, notwithstanding changing the reason for our outcome from that of the District Court, we are not changing the effect of the dismissal.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472320/
|
OPINION
McKEE, Circuit Judge
Masood Ahmed appeals the district court’s grant of summary judgment in favor of Lowe’s Home Centers, Inc. on Ahmed’s claims of retaliation, discrimination, hostile work environment, and intentional infliction of emotional distress (“IIED”). For the reasons that follow, we will affirm.
I.
As we write primarily for the parties, who are familiar with the facts of this case, we need not recite the factual or procedural history in detail.
We review the district court’s grant of summary judgment de novo and apply the same test on review as the district court. See MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir.2005). Summary judgment is appropriate where there are no genuine issues of material fact. Fed.R.Civ.P. 56(c); see also Fasold v. Justice, 409 F.3d 178, 183 (3d Cir.2005). Genuine issues of fact exist where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In reviewing a grant of summary judgment, we view all facts in the light most favor*819able to Ahmed as the nonmoving party. See Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 535 (3d Cir.2007).
Ahmed argues that the district court erred in concluding that he failed to a establish a prima facie case as to retaliatory discharge, and dismissing his retaliation claim for failure to establish that he was the victim of a retaliatory discharge that resulted from his complaints to the Human Resources Department about alleged unfair treatment by his supervisor, Doug Schmidt.
To establish a prima facie case of retaliatory discharge, Ahmed must show that: (1) he engaged in conduct protected by Title VII; (2) he was subject to an adverse employment action; and (3) there is a causal nexus between the protected conduct and the adverse action. See Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 320 (3d Cir.2008); see also Moore v. City of Phil, 461 F.3d 331, 340-41 (3d Cir.2006). The district court held that Ahmed failed to present evidence sufficient to raise any genuine issue of material fact as to the first prong of his retaliatory discharge claim, i.e. whether Ahmed’s conduct was protected under Title VIL
To qualify as protected conduct under Title VII, Ahmed must show that he made Lowe’s aware that he felt he was being discriminated against specifically because of his race or national origin. See Slagle v. County of Clarion, 435 F.3d 262, 268 (3d Cir.2006) (holding that a complaint that does not explicitly or implicitly allege that membership in a protected class was the reason for mistreatment is too general to constitute protected conduct under Title VII).
Ahmed contends that his complaints to the Human Resources Department of Lowe’s should be considered a protected activity under Title VII. However, there is nothing to support a finding that Ahmed mentioned mistreatment due to his race and national origin during his employment with Lowe’s. Rather, the record indicates that while Ahmed did complain to the Human Resources Department about Schmidt on at least two separate occasions, Ahmed never alleged that Schmidt’s treatment was based on Ahmed’s race or national origin.1
Absent any such evidence there is nothing to support Ahmed’s retaliatory discharge claim.
II.
Ahmed also argues that the district court erred in dismissing his claim of discrimination based on race and national origin.
The district court found that although Ahmed had successfully made out the elements of a prima facie case of illegal employment discrimination based on race,2 he failed to adduce evidence that the proffered reasons for terminating him were pretextual. See McDonnell-Douglas *820Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Under the shifting burdens analysis of McDonnell-Douglas, once a plaintiff establishes a prima facie case of discrimination, “the burden [shifts] to the employer to articulate some legitimate, nondiscriminatory reason for” the adverse employment action. Id. at 802, 93 S.Ct. 1817. Thereafter, the plaintiff must show by a preponderance of the evidence that the legitimate, nondiscriminatory reasons offered by Lowe’s are merely pretext for discrimination. See Jones v. Sch. Dist. of Phil., 198 F.3d 403, 410 (3d Cir.1999) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). To successfully make a showing of pretext, Ahmed must present evidence that either: (1) casts sufficient doubt upon each of the legitimate reasons proffered by Lowe’s so that a fact-finder could reasonably conclude that each reason was a fabrication; or (2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause in termination. See Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.1994).
Here, there is nothing to rebut the employer’s claim that Ahmed was terminated because he violated the company’s sexual harassment policy. On July 6, 2004, an Area Human Resources Manager for Lowe’s, Diane Chuprun conducted an investigation regarding complaints filed by Dawn Madara. Madara claimed that Ahmed had made sexually inappropriate comments and advances towards her on two separate occasions.3 After meeting with several employees separately, including Ahmed, to confirm Madara’s account of the incidents, Chuprun forwarded her investigative materials to her supervisor, Regional Human Resources Manager Kenneth Zrowka. Zrowka subsequently met with Chuprun and another Human Resources manager on July 7, 2004 and decided to terminate Ahmed’s employment.
Ahmed alleges that the Human Resources Department fast-tracked the sexual harassment investigation against him but failed to address several complaints he lodged about unfair treatment with regard to a citation he received from Schmidt for allegedly using profanity in the workplace. Ahmed asserts that the alleged disproportionate treatment of the two claims by Human Resources creates an inference of pretextual discrimination. However, Lowe’s has never cited Ahmed’s alleged use of profanity, or the related citation he received from Schmidt, as having any bearing on its decision to discharge him.
Ahmed must present evidence showing that the sexual harassment investigation resulting in his termination was somehow tainted by discriminatory motives. Rather than offer any such evidence to raise an issue of fact about that crucial question, Ahmed chooses to attack Madara and her motives for lodging the sexual harassment complaint.
The relevant question, however, is the integrity of the decisionmaking process leading up to the determination that Ahmed had violated the sexual harassment policy. Here, Ahmed fails to point to any facts to rebut the core facts surrounding the investigation of Madara’s sexual harassment complaints. See Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir.2005) (noting that “core facts” behind employer’s proffered reason must be challenged, rather than the decision itself, to *821establish existence of genuine issue of material fact). Accordingly, he cannot sustain his burden under McDonnell-Douglas, and we will therefore affirm the district court’s order of summary judgment as to Ahmed’s discrimination claim.
III.
Ahmed also objects to the district court’s dismissal of his hostile work environment claim.
To establish a hostile work environment claim under Title VII, Ahmed must prove (1) he suffered intentional discrimination because of his race or national origin; (2) the discrimination was “pervasive and regular”; (3) the discrimination detrimentally affected him; (4) the discrimination was sufficiently severe to have detrimentally affected a reasonable person in his position; and (5) a prima facie case of respondeat superior liability against his employer. Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir.1990).
Ahmed asserts that as the only non-white supervisor in a managerial role at his location, he was treated differently by his supervisor. Specifically, Ahmed alleges that Schmidt called him incompetent, a hypocrite, and a liar, and that he was disciplined more severely than other managers. However, even if we accept such general complaints as fact, they do not rise to the level required to establish a hostile work environment under Title VII. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). We further agree with the district court’s conclusion that had Schmidt or any of Ahmed’s co-workers “used racially insensitive language or threatened him because of his race,” this ease may well have been very different. Ahmed v. Lowe’s Co., Inc., 2008 WL 2967061, at *7 (ED.Pa. July 31, 2008). However, that is not the record here.
IV.
Finally, Ahmed contends that the district court erred in dismissing his IIED claim. The district court held that Ahmed’s IIED claim was preempted by the Pennsylvania Workers’ Compensation Act (“PWCA”), 77 Pa.C.S. § 1, et seq., as it does not fall within the ‘personal animus’ exception under that Act.
The PWCA bars IIED claims that arise out of an employment relationship. See Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 940 (3d Cir.1997). There is, however, a narrow personal animus exception where the alleged injury was motivated by personal reasons as opposed to generalized contempt or hatred and did not arise in the course of employment. See 77 P.S. § 411; see also Fugarino v. Univ. Servs., 123 F.Supp.2d 838, 844 (E.D.Pa.2000).
On appeal, Ahmed argues that the alleged harassment and discrimination he experienced at Lowe’s arose out of Schmidt’s, and others’, “purely personal” contempt for Ahmed’s race and national origin. See Appellant’s Br. at 30. Even if we were to accept this argument, however, the allegedly discriminatory conduct does not support the claim that any hostile action against him was unrelated to his job. On the contrary, Ahmed does not contest that all of the harassment he alleges was exclusively related to his employment responsibilities at Lowe’s. Therefore, we affirm the district court’s dismissal of Ahmed’s IIED claim.
V.
For all the above reasons, we will affirm the district court’s grant of summary judgment in favor of Lowe’s on each of Ahmed’s claims.
. Ahmed's own testimony as to his previous meetings with Lowe's Human Resources reveals the general, unspecific nature of his complaints: "Doug Schmidt called me a liar and hypocrite in his office, and about changing schedules of employees .."Doug is not treating me very well ...," and “Doug is mistreating me and calling me a liar and he thinks I’m not capable of doing anything.” App. at 399:5-400:21, 404:12-407:16, 408:4-409:15 (Dep. Tr. of Ahmed).
. To make out a prima facie case of employment discrimination based on race or national origin, a plaintiff must show: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he was subject to an adverse employment action; and (4) he was discharged under circumstances that raise an inference of discrimination. See Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.2003).
. On one occasion, Ahmed allegedly grabbed Madara by the face, kissed her cheek, and then grabbed both sides of her buttocks when she attempted to leave the vicinity. See App. at 754. Madara also alleges that Ahmed made sexually inappropriate comments concerning her and another female co-worker. Id. at 833.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472322/
|
OPINION
PER CURIAM.
Appellant Samuel Cann appeals from an order of the District Court dismissing his civil rights complaint for failure to state a claim. For the reasons that follow, we will affirm.
I.
Cann is an inmate at the New Jersey State Prison in Trenton. According to his complaint, on September 15, 2005, Cann submitted a written grievance to the New Jersey State Prison Administration, alleging that funds in his inmate account had been tampered with by prison officials. The grievance “accused the officials of indifference,” and stated that Cann “should not have to pay for the blunders of an *823incompetent social services department.” (PI. Comp, at 2.)
On November 8, 2005, Cann set off a metal detector three consecutive times upon return from a morning prison yard exercise. He was escorted from the yard, and Appellee Sgt. Newsom conducted a strip search and a “visual body cavity search.” (PI. Comp, at 3.) Cann complied with both searches, and no contraband was found. Appellee Officer Martain then gave an additional order to “squat and cough.” Cann stated to Martain that “there was [no] policy that says he has to do that; and that the orders were completely unreasonable.” (PI. Comp, at 4.) Cann then questioned Newsom as to whether that particular order was permitted by institutional guidelines, and ultimately refused to comply.
Because of Cann’s noncompliance with the order, he was subsequently placed in the BOSS chair1, subjected to two additional searches by Martain, Newsom and an Officer Johnson, made to submit a urine sample administered by Appellee Pamela Trent, and in the end was placed in a “dry cell” at the instruction of Trent.2 None of these measures resulted in the discovery of contraband. However, Cann was charged with two disciplinary infractions: one based on his refusal to submit to a search and the other based on his refusal to obey the “squat and cough” and order. (Dist. Ct. Op. at 3.)
Cann spent six days in the dry cell, and then was moved to a different detention unit for several days before the disciplinary hearing was to commence. During that time, he “received a copy of the grievance form that he submitted back in September of 2005; although there was no documented resolution on this remedy form, [Trent’s] signature was on the grievance.” (PI. Comp, at 6.) After four continuances, a disciplinary hearing was held before Appellee Officer Ozvart. Cann was adjudicated guilty on the charge of refusing the order to squat and cough; the other charge was dropped. Ozvart imposed a fifteen-day detention and a ninety-day administrative segregation. (Dist. Ct. Op. at 3.) After his administrative appeal of Ozvart’s decision was unsuccessful, Cann filed a complaint in state court alleging deprivations of his civil rights in relation to his treatment after setting off the metal detector. The Superior Court of New Jersey, Appellate Division denied relief and the New Jersey Supreme Court denied certification. See Cann v. Dep’t of Corr., 2006 WL 2714604 (N.J.Super.App.Div. Sep. 25, 2006), aff'd, 189 N.J. 428, 915 A.2d 1051 (2007).
Cann then filed this pro se action in the United States District Court for the District of New Jersey against several prison officials (“Appellees”), alleging violations of his civil rights under 42 U.S.C. § 1983. Specifically, Cann alleged First Amendment retaliation, Fourth Amendment unreasonable search, Eighth Amendment cruel and unusual punishment, and Fourteenth Amendment due process/equal protection claims. The District Court dismissed Cann’s complaint with prejudice for failure to state a claim upon which relief may be granted, pursuant to 28 U.S.C. *824§§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Cann appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s sua sponte dismissal for failure to state a claim. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). When reviewing a complaint dismissed under § 1915(e)(2)(B), we apply the same standard provided for in Federal Rule of Civil Procedure 12(b)(6). See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). Thus, we “accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom.” Allah, 229 F.3d at 223 (quotation omitted). Moreover, we liberally construe the pleadings of pro se litigants. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam).
To avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, -U.S.-,-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quotation omitted); see also United States Dep’t of Transp., ex rel. Arnold v. CMC Eng’g, 564 F.3d 673, 676 (3d Cir.2009). “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.” Iqbal, 129 S.Ct. at 1949. Furthermore, “[i]n the event a complaint fails to state a claim, unless amendment would be futile, the District Court must give a plaintiff the opportunity to amend her complaint.” Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir.2008); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004).
III.
As a preliminary matter, we see no indication in the record that the District Court gave Cann an opportunity to amend his complaint after its initial screening. Nor does the District Court speak to the inequity or futility of such an amendment in its opinion. Nonetheless, we agree with the District Court that Cann’s complaint fails to state a viable claim under the First, Fourth, Eighth and Fourteenth Amendments, for substantially the reasons given in the District Court’s thorough opinion.3
In short, the claims in Cann’s complaint lack facial plausibility, see Iqbal, 129 S.Ct. at 1949, because the complained-of actions by the prison officials were not improper, let alone unconstitutional, given Cann’s “triple triggering” of the metal detector in the yard and his subsequent refusal to comply with Martain’s order to squat and cough. The responsive actions take by prison officials were rationally related to legitimate penological interests and goals. And despite his attempts to shift the focus from his conduct to provisions of the New Jersey Administrative Code, Cann nevertheless concedes that he did not comply with Martain’s order. The reasoning of the Appellate Division, in rejecting one of Cann’s state law claims, provides a helpful analog for these points:
It is undisputed that the inmate did not do what he was told to do: squat and cough. Certainly, the guards were entirely justified in giving such an order when the strip search failed to produce the object that triggered the metal detector; not only for their safety, but also that of other inmates. The command to squat and cough was certainly less invasive than a digital or instrumented inspection of his rectum. Furthermore, the DOC had little choice but to put the *825inmate in a dry cell because of the risk to the guards and other inmates from a secreted weapon.
Cann, 2006 WL 2714604, at *2.
Cann maintains on appeal, as he did in the complaint, that the metal detector was set off because it was malfunctioning. Even if that were the case, this fact does not validate his noncompliance with Martain’s order to squat and cough. We emphasize here the Supreme Court’s dictate that “prisoners have no legitimate expectation of privacy.” Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).
Accordingly, we will affirm the District Court’s order dismissing Cann’s complaint for failure to state a claim.
. "Body Orifice Security Scanner ("BOSS") chair. The BOSS chair is a non-intrusive, high sensitivity detector designed to detect metal objects hidden in body cavities. It is used to screen inmates for weapons and contraband objects that might be hidden in anal, oral, vaginal, and nasal cavities. It will not pick up non-metallic items such as drugs, cigarettes, or money. The BOSS Chair is not foolproof, but it enhances any other search conducted on an arriving inmate.” Dodge v. County of Orange, 282 F.Supp.2d 41, 53 (S.D.N.Y.2003).
. The characteristics of a "dry cell" were described by the District Court. (Dist. Ct. Op. at 3 n. 1).
. For these same reasons, we find that amendment would have been futile.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472324/
|
OPINION
PER CURIAM.
Judith Dorfman appeals from the district court’s grant of summary judgment in favor of appellees in her employment discrimination action. For the following reasons, we will affirm the district court’s judgment.
I. Background
The Pine Hill Board of Education (“Pine Hill”) hired Dorfman as a music teacher at John H. Glenn School in New Jersey starting in 2001 and her contract was renewed for each of the next two years. At the time of her hiring, Dorfman was fifty-six years old and her principal and performance evaluator was Mark Durand. Du-rand retired at the end of the 2002-2003 school year. At the end of the 2003-04 school year, upon the recommendation of her new principal, Cynthia Guarracino, and the superintendent Dr. Kenneth Koczur, Dorfman’s contract was not renewed for a third year and she did not receive tenure.1 When Guarracino called Dorfman into the principal’s office to discuss the non-renewal, Koczur allegedly told her that there was a problem with her “fit” at the school. (SuppApp. at 60.) Pine Hill replaced Dorfman with a teacher who is eleven years younger.
On June 30, 2006, Dorfman filed a law suit alleging age-discrimination in violation of the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-12(a). Dorfman alleged that Pine Hill did not renew her contract because of her age in violation of the NJLAD, and she alleged that Koczur and Guarracino aided and abetted this violation. She also alleged that she was subject to harassment because of her age. Appellees moved for summary judgment, arguing that Dorfman was not offered renewal because of her negative performance evaluations. The district court granted the motion and Dorfman filed a timely notice of appeal.
II. Jurisdiction and Standard of Review
The district court had jurisdiction to entertain this matter under 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the district court’s grant of summary judgment. Alaska Elec. Pension Fund v. Pharmacia Corp., 554 F.3d 342, 346 (3d Cir.2009). On review, we apply the same standard as the district court. United States ex rel. Kosenske v. Carlisle HMA Inc., 554 F.3d 88, 95 (3d Cir.2009). Thus the district court properly granted summary judgment if “viewing the record in the light most favorable to the non-moving party and drawing all inferences in that party’s favor, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citations omitted).
*827III. Analysis
A. Non-Renewal of Contract
Dorfman argues that appellees violated the NJLAD because they did not renew her contract based on impermissible motives, namely her age. The NJLAD applies a three-step burden shifting test which initially requires the employee to establish a prima facie case. See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 867 A.2d 1133, 1139 (2005). After the plaintiff satisfies her burden, the employer must “articulate some legitimate, nondiseriminatory reason for the employee’s” firing. Erickson v. Marsh & McLennan Co., 117 N.J. 539, 569 A.2d 793, 798 (1990) (citation omitted). In the final step, the employee must demonstrate that the employer’s reason was not the true reason for the employment decision, but was a pretext for discrimination. Id. at 799.
Like the district court, we will assume that Dorfman established a prima facie ease inasmuch as she is a member of a protected class, Pine Hill did not renew her contract, and it replaced her with a similarly qualified person. See Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 877 A.2d 1233, 1237 (2005) (citation omitted) (listing requirements for a prima facie case of discrimination). The district court held that appellees met their burden at the second step by pointing to Dorfman’s negative performance evaluations as a legitimate non-discriminatory reason for not renewing her contract. Specifically, the evaluations noted that Dorfman needed to improve her classroom management skills.
Dorfman asserts that the district court’s finding at the second step is erroneous because the defendants failed to produce written evaluation policies and procedures as required by N.J. Admin. Code § 6A:32-4.5. Dorfman, however, did not seek to compel the production of any written policies and procedures during discovery and therefore cannot now blame appellees for failing to produce them. In any event, Dorfman’s argument that a genuine issue of material fact exists as to whether appellees’ practices and policies comported with the requirements of New Jersey’s administrative code is meritless. (Appellant’s Br. at 2) (citing Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1040 (7th Cir.1993)). In Sarsha, the employer fired the employee for violating a policy prohibiting managers from dating subordinates. Sarsha, 3 F.3d at 1039. The Court held that there was a genuine issue of material fact concerning whether an official dating policy existed. Id. at 1040. Here, appellees did not renew Dorfman’s contract because of her deficiency in classroom management skills as reflected in her performance evaluations and not for violation of a school policy. Therefore, this argument must fail.
Next, Dorfman contends that a genuine issue of material fact exists as to whether appellees’ explanation at the second step was a pretext for age-based animus. An employee may show pretext in two ways: 1) by discrediting the employer’s proffered reasons, either circumstantially or directly, or 2) by producing evidence, either circumstantial or direct, showing that discrimination was more likely than not the motivating or determinative cause of the adverse employment action. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994); see DeWees v. RCN Corp., 380 N.J.Super. 511, 883 A.2d 387, 396-97 (N.J.Super.Ct.App.Div.2005) (noting New Jersey courts’ adoption of the standard in Fuentes). We agree with the district court that Dorfman has failed on both fronts.
First, Dorfman points to evaluations that Durand performed which praised her classroom management skills. Even those earlier evaluations, however, note that she needed to secure the attention of all the *828students before beginning an activity and needed to improve her classroom disciplinary procedures. (Supp.App. at 234, 239.) Dorfman also argues that Koczur’s statement that she was not a good “fit” suggests an inference of age-based discrimination. (Appellant’s Br. at 4-5) (citing Greene v. Safeway Stores, Inc., 98 F.3d 554, 561 (10th Cir.1996)). In Greene, the supervisor’s statement that an older employee did not “fit in with the new culture” was made against the backdrop of eight top-level executives being replaced by younger persons. Greene, 98 F.3d at 560-61. Here, Dorfman has not presented background evidence suggesting a pattern of contract non-renewals based on age. Indeed, as the district court noted, of the six teachers whose contracts were non-renewed while Koczur was Superintendent at Pine Hill, three were replaced by older teachers and two were replaced by teachers less than two years younger. Cf. Greenberg v. Camden County Vocational & Technical Schs., 310 N.J.Super. 189, 708 A.2d 460, 469 (N.J.Super.Ct.App.Div.1998) (plaintiff established age-based pretext, in part, based on evidence that all female teachers over the age of forty-five were terminated while all younger teachers similarly situated were retained.) Therefore, Dorfman has not shown that by using the word “fit” Koczur was suggesting any age-based animus.
Other circumstantial evidence Dorfman cites also does not establish that appellees’ motives were pretextual. In her deposition, Dorfman recounted an incident in which Guarraeino asked the faculty to bring in pictures of themselves for placement on the school bulletin board. Dorfman showed Guarraeino several photos, some of them taken when Dorfman was younger. Guarraeino then allegedly commented that several of the older teachers were bringing in photos of themselves when they were “younger and more glamorous.” (Appellant’s Br. at 7.) In light of the negative performance evaluations, however, this incident alone could not lead a reasonable jury to believe that age was more likely than not a motivating or determinative cause of Pine Hill’s decision not to renew Dorfman’s contract. Fuentes, 32 F.3d at 765 (“non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons ... [to] infer ‘that the employer did not act for [the asserted] non-discriminatory reasons.’ ”)
Dorfman further argues that her replacement, Rosemary McDevitt, was not as qualified as she was, and, therefore, Pine Hill’s decision to hire her presents strong circumstantial evidence of discrimination. Though McDevitt is slightly less experienced and does not possess credits towards a master’s degree, as Dorfman does, her resume reflects that she is qualified for a position of music teacher. (SuppApp. at 281.) We agree with appellees that hiring a qualified candidate with less experience in light of Dorfman’s job performance deficiencies does not constitute evidence of discrimination.
Dorfman urges us to consider the “overall scenario” of the incidents. (Appellant’s Reply Br. at 1) (citing Bray v. Marriott Hotels, 110 F.3d 986, 991 (3d Cir.1997)). Even considering the totality of circumstances, however, Dorfman has failed to show that a reasonable jury could find that age discrimination was a determinative factor in appellees’ decision not to renew her contract. Fuentes, 32 F.3d at 764.
B. Harassment
Dorfman claims that appellees’ conduct created a hostile work environment in violation of the NJLAD. In order to establish harassment, an employee must show that the employer’s conduct: 1) would not have occurred but for the em*829ployee’s protected characteristic; and the conduct was 2) severe or pervasive enough to make a 3) reasonable person believe that 4) the conditions of employment are altered and the working environment is hostile or abusive. Lehmann v. Toys R Us, Inc., 132 N.J. 587, 626 A.2d 445, 453 (1993). In support of this claim, Dorfman points to Guarracino’s comments about the photos and a statement that she (Guarracino) should get combat pay for working with her secretary who was 62 years old. Dorfman also cites other incidents, namely Guarracino’s failure to compliment her students over the public address system for their performance at a senior citizen’s luncheon, her failure to advertise the spring concert and subsequent audio-visual difficulties at the same concert. Further, Dorfman points to the involuntary transfer of two teachers to “another assignment.” (Appellant’s Br. at 12.) Except for possibly the comments about the photographs, there is no evidence that any of these incidents were a result of age-based animus on the part of appellees. Even if the incidents were a result of age-based animus, no reasonable jury could find that Dorfman’s working environment was hostile or abusive. Therefore, the district court properly granted summary judgment for the appellees on this claim.
C. Mixed-Motive
Finally, Dorfman argues that district court failed to analyze her claims under the “mixed motive theory.” (Appellant’s Br. at 12.) Under that theory, when an employee produces evidence that an employer placed substantial reliance on a proscribed discriminatory factor in making the adverse employment decision, the burden of persuasion shifts to the employer to prove that even if it had not considered the proscribed factor, the employment action would have occurred. McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 816 A.2d 164, 168 (2003). The district court did not err in this regard, however, because Dorfman did not produce any evidence that appellees placed substantial reliance on her age in deciding not to renew her contract.
IV. Conclusion
For the foregoing reasons, we will affirm the judgment of the district court.
. At various points in the record, Guarracino is referred to as “Cynthia Reid;” we will refer to her as Guarracino.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472326/
|
OPINION
PER CURIAM.
I.
In September 2005, Appellant Judy Enders-Maden filed suit against Super Fresh Food Markets, Inc. (“Super Fresh”), her former employer. Enders-Maden alleged that while employed at Super Fresh she was sexually harassed by her supervisor, that she was given disparate treatment with respect to scheduling, wages and full-time employment status because of her gender, and that, after taking eighteen months of medical leave, her employment was terminated because of her gender. Super Fresh moved for summary judgment. Instead of filing a response to Super Fresh’s motion, Enders-Maden filed her second motion for appointment of counsel, along with a discovery request. The District Court denied the counsel motion, denied Super Fresh’s summary judgment motion as premature, and granted Enders-Maden’s discovery request.
A short period of discovery followed, at the end of which Super Fresh renewed its motion for summary judgment. After Enders-Maden twice failed to respond to Super Fresh’s renewed motion for summary judgment, the District Court granted the motion. Enders-Maden’s husband, David Maden, who is neither a party to the suit nor an attorney, then filed a “motion for change of venue.” The District Court construed the motion as a notice of appeal on behalf of Enders-Maden as to its orders denying Enders-Maden’s motions for appointment of counsel and its order granting summary judgment for Super Fresh.
Before briefing commenced, the Clerk of this Court issued an order informing Enders-Maden that since her husband “does not appear to be a licensed attorney, it is hereby ORDERED that each Appellant personally sign any and all future submissions in this case that are intended to be filed on that individual’s behalf.” Notwithstanding this order, David Maden filed a brief on behalf of Enders-Maden that only bore his signature. Super Fresh then filed its brief.
II.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s decision to deny counsel to Enders-Maden for abuse of discretion. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.2002). A district court abuses its discretion when its decision “rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Id.
*831We exercise plenary review of the District Court’s order granting summary judgment. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir.2007). Summary judgment is proper where “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 a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We may affirm the District Court on any grounds supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000).
III.
As a preliminary matter, we observe that Enders-Maden has failed to comply with the Clerk’s order concerning its requirement that her personal signature appear on the opening brief. This conduct has effectively deprived the Court of any reviewable basis to question the judgment below. But even if we could excuse David Maden’s improper attempt to represent Enders-Maden on appeal, the opening brief that he filed is wholly insufficient to demonstrate a genuine issue of material fact in Enders-Maden’s case.1 Indeed, most of the brief relates only tangentially to the claims Enders-Maden raised in her complaint. At no point does the brief allege any specific errors by the District Court. In short, we have been provided with no basis for vacating the District Court’s order granting Super Fresh’s motion for summary judgment.
We also conclude that the District Court did not abuse its discretion when it denied Enders-Maden’s motions for appointment of counsel. Specifically, we agree with the District Court as to Enders-Maden’s inability to make the threshold showing of arguable merit in her case. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.1993). Nor did the District Court abuse its discretion when it refused to let David Maden act as Enders-Maden’s legal representative. See Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir.2007) (per curiam) (“[28 U.S.C. § 1654] does not permit ‘unlicensed laymen to represent anyone else other than themselves’ ”) (quotation omitted); cf. Osei-Afriyie v. The Medical College of Pennsylvania, 937 F.2d 876 (3d Cir.1991) (non-lawyer appearing pro se may not act as attorney for his children).
IV.
Accordingly, we will affirm the judgment of the District Court.
. Insofar as David Maden alleges that Super Fresh terminated Enders-Maden's employment because of her postpartum depression, we observe that this fact was not alleged before the District Court and does not relate to Enders-Maden's contentions that she was sexually harassed by her supervisor and discriminated against by Super Fresh because of her gender.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472334/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
Brandow Chrysler Jeep Co. et al. (collectively “Brandow”) appeal from the District Court’s grant of summary judgment in favor of DataScan Technology. Brandow argues that the District Court erred when it considered extrinsic evidence in order to interpret the terms of a release it relied upon in granting summary judgment. Brandow further contends that the District Court improperly concluded that no reasonable juror could make a finding of gross negligence on the part of DataScan. DataScan, in its Cross-Appeal, states that the District Court improperly denied as moot its motion for sanctions. Substantially for the reasons articulated in the District Court’s opinion, as well as those stated below, we will affirm.1
*845
I. Facts and Procedural History
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. Brandow has received floor plan financing from PNC Bank for approximately thirty years. This system requires an automobile dealer to maintain a certain level of inventory and to account for the vehicles that secure the credit line. Starting in 1994, PNC required monthly floor plan audits of Brandow and used its own personnel to conduct these audits. In 2001, DataScan began to conduct these audits on behalf of PNC.
In approximately August 2004, PNC and Brandow entered negotiations after it was discovered that Brandow’s vehicle inventory was in an “out of trust” position. These negotiations resulted in the extension of additional loans to Brandow in return for personal guarantees from Brandow’s principals as well as a release of PNC (“Release”). Plaintiffs signed the Release on November 15, 2004, releasing PNC, as well as its consultants and agents, from “all manner of claims ... whether known or unknown and whether based on facts now known or unknown ... from the beginning of the world to the date of this Release.” However, the Release only protected PNC’s agents and consultants if PNC is or may be hable on a claim for indemnification, contribution, or otherwise.
DataScan provided services to PNC pursuant to an Audit Agreement (“Agreement”) entered into on April 28, 1998. According to the Agreement, DataScan “provides on-site automated floorplan inventory auditing services ... for banks and financial institutions.” Under the Agreement’s terms, PNC indemnified DataScan for any “loss, damages, or expenses ... incurred or suffered by [DataScan] for any services rendered by [DataScan] in accordance with the terms and conditions of this Agreement, which claim does not result from the gross negligence or willful misconduct of [DataScan] ... at the time of Audit, to record the appropriate status of any Inventory on a File provided pursuant to the terms of this Agreement.” The Agreement also absolved DataScan of any liability to PNC for any misinformation provided to DataScan by PNC’s customers.
Brandow’s state court complaint was removed to the District Court on November 17, 2006. The complaint alleged that DataScan’s audits failed to comply with industry standards and that DataScan did not share with Brandow information it was required to share, resulting in losses of approximately $20 million. It included claims for breach of contract (as a third-party beneficiary), professional negligence, breach of fiduciary duty, and negligent representation. On June 13, 2007, the District Court granted a motion to dismiss the breach of contract and professional negligence claims. Upon a motion for reconsideration, the District Court dismissed the breach of fiduciary duty claim on October 2, 2007.
Brandow filed an amended complaint on October 29, 2007. DataScan responded ■with a motion to dismiss the remaining claims in the amended complaint, for negligent misrepresentation, breach of fiduciary duty, and intentional misrepresentation. While this motion was pending, DataScan filed a motion for summary judgment, arguing that it was an agent or consultant of PNC and accordingly included within the terms of the Release.
In ruling on the motion for summary judgment, the District Court, relying on the terms of the Agreement signed by DataScan and PNC in 1998, determined that DataScan was a “consultant” as that term is generally understood and was therefore covered by the Release. However, the District Court noted that if DataS*846can was either grossly negligent or engaged in willful misconduct, the Release would be inapplicable. The District Court found that DataScan was neither grossly negligent nor guilty of willful misconduct, and granted DataScan’s motion on the claims of breach of fiduciary duty and negligent misrepresentation.2
Brandow filed a Notice of Appeal on October 17, 2008, appealing the grant of summary judgment, based on the Release, on the breach of fiduciary duty and negligent misrepresentation claims, as well as the grant of the motion to dismiss with prejudice Plaintiffs’ intentional misrepresentation claim and the grant of the motion to dismiss Plaintiffs’ breach of contract claim. However, in its brief in this appeal, Brandow only requests that the grant of summary judgment be reversed and offers no arguments related to the intentional misrepresentation or breach of contract claims. Instead its arguments focus solely on the applicability of the Release to DataScan, which was the basis for the District Court’s grant of summary judgment on the breach of fiduciary duty and negligent misrepresentation claims.3
II. Discussion
Under Pennsylvania law, “[i]n cases of a written contract, the intent of the parties is the writing itself.” Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 588 Pa. 470, 905 A.2d 462, 468 (2006) (citation omitted). Absent ambiguity, the court should not look beyond the writing to determine the parties’ intentions. The District Court’s determination of the meaning of the term “consultant” did not rely upon extrinsic evidence, but instead followed standard principles of contract interpretation, relying upon common usage as reflected in a standard dictionary. It derived its definition of “consultant” from a decision of this Court: “one ‘who gives professional advice or services in the field of his special knowledge or training....’” Montgomery County v. Microvote Corp., 175 F.3d 296, 302 (3d Cir.1999) (citing Webster’s Third Neiv Int’l Dictionary of the English Language, Unabridged, 490 (1966)).
The District Court consulted the Agreement not to interpret the term consultant, but rather to identify the nature of DataScan’s work on behalf of PNC and whether it fit within this standard definition. DataScan’s work on behalf of PNC entailed the use of specialized knowledge, training and tools to conduct floor plan audits of Brandow’s inventory on behalf of PNC. These activities, the District Court properly concluded, “constitute the rendering of professional services in the field of special knowledge or training.” Brandow Chrysler Jeep Co. v. Datascan Techs., Civ. A. No. 06-5093, 2008 WL 4274494, at *3 (E.D.Pa. Sept.17, 2008). Accordingly, we find the District Court did not err in its use of the Agreement.
With regards to the issue of DataScan’s alleged gross negligence, when the question of whether particular conduct constitutes negligence, gross negligence, or recklessness is one that reasonable persons may disagree about, the question should be decided by a jury. Pichler v. UNITE, 542 F.3d 380, 390 (3d Cir.2008) (citation omitted). This case does not, however, present any basis for reasonable disagreement. The actions described in the affidavit of Margaret Stuski and depo*847sition testimony of Elizabeth Skinner do not constitute gross negligence. We also note that Brandow has failed to establish the specific duty owed by DataScan, so as to allow for a finding of a deviation, flagrant or otherwise, from the standard of care.
The evidence of misconduct presented by Brandow included that auditors failed to inspect vehicle titles and deal jackets and failed to confirm the locations of vehicles and note damage to vehicles, but instead relied almost exclusively on the representations of Brandow and its agents. Such behavior does not constitute gross negligence — “conduct that is ‘flagrant, grossly deviating from the ordinary standard of care,’ ” Benn v. Univ. Health Syst., Inc., 371 F.3d 165, 175-76 (3d Cir.2004)— particularly given that the terms of DataScan’s contract with PNC expressly allowed it to rely upon representations made by Brandow and shielded it from liability for doing so. Accordingly, we find the District Court did not err in its determination of this issue.
We have considered the other issues raised by DataScan and find they merit no further discussion.
For the foregoing reasons, we will affirm the District Court in all respects.
. The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. In the same memorandum and order, the District Court granted DataScan's motion to dismiss the intentional misrepresentation claim for failure to state a claim and denied all remaining motions as moot.
. We exercise plenary review over a district court's summary judgment ruling. Township of Piscataway v. Duke Energy, 488 F.3d 203, 208 (3d Cir.2007).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472336/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant George Aubrey appeals the District Court’s Order granting Appellees’ motions for summary judgment on his claim charging Donald Sanders, M.D. (“Sanders”), Center for Clinical Research, Inc., (“CCR”), Robert Gale Martin, M.D., (“Martin”), and Carolina Eye Associates, P.C. (“CEA,” collectively “Defendants”) with common law fraud and civil conspiracy under Pennsylvania law.1 Aubrey contends that Defendants concealed and misrepresented damming research in connection with their assistance to Sunrise Technologies International, Inc., (“Sunrise”) in obtaining approval from the Food and Drug Administration (“FDA”) for an ophthalmologic laser, thereby fraudulently luring him to invest in Sunrise. The District Court granted Defendants’ summary judgment motions. For the following reasons, we affirm the District Court’s judgment.
I.
The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1332(a) and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291. We exercise plenary review over a district court’s grant of summary judgment, applying the same standard of review that the district court should have applied. See MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 209 (3d Cir.2005). A court may grant summary judgment when “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
II.
Because we write primarily for the parties, we discuss the facts only to the extent necessary for resolution of the issues on appeal.
Appellee Sanders is a physician and is the President of appellee CCR. Sunrise hired Sanders and CCR as consultants to assist it with the process of obtaining approval from the FDA for a laser used to cure farsightedness. Sanders and CCR arranged clinical trials to test the efficacy of the laser. He also assisted Sunrise in presenting the data from the trials to the FDA’s Opthalmologic Device Panel. Appellee Martin was a physician and the President of appellee CEA. Sunrise hired Dr. Martin to conduct clinical trials on the laser. He conducted trials on 15 patients, accounting for less than the five percent *849of the studies presented to the FDA. In July 1999, the FDA initially disapproved of the laser, but subsequently approved the device six months later, after Sunrise modified its label to reflect the laser’s temporary effectiveness at correcting farsightedness. From 1999 through 2002, Aubrey invested in Sunrise on the advice of various stockbrokers. According to Aubrey, the failure of the laser to effectively correct farsightedness resulted in a devaluation of his investment in Sunrise.
He commenced this action in Pennsylvania’s Court of Common Pleas, under Pennsylvania’s common law proscribing fraud, accusing Defendants of making material misrepresentations and omissions in connection with the laser’s efficacy, which fraudulently induced him into purchasing Sunrise stock. Specifically, he charged that Sanders manipulated the results of the clinical trials and made misleading statements regarding the laser in articles and press releases. Aubrey accused Martin of misrepresenting the results of the clinical trials and the potential for FDA approval to induce individuals to purchase stock in Sunrise. Defendants removed the action to federal court and after discovery, the parties filed motions for summary judgment. The District Court granted Defendants’ Rule 56 motion, ruling as a matter of law that: (1) Aubrey failed to prove the elements of fraudulent misrepresentation and civil conspiracy; (2) in the absence of direct reliance, Aubrey could not rely on the “fraud on the market” theory of liability; (8) the Food, Drug, and Cosmetic Act preempted any claim based upon a “fraud on the FDA” theory of liability; and (4) because Aubrey violated Local Rule 56.1, Defendants’ statements of material facts were deemed admitted.
III.
On appeal, Aubrey argues that the District Court erred, in relevant part, because it incorrectly ruled that he could not premise his claims upon a “fraud on the market” theory of liability.2 Under Pennsylvania’s common law, the elements of an intentional misrepresentation or fraud are:
(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) the resulting injury was proximately caused by the reliance.
Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 889 (1994). Under the fraud on the market theory, a plaintiff states a prima facie case if “[mjisleading statements w[ould] ... defraud purchasers of stock even if the purchasers [did] not directly rely on the misstatements” because the misstatements “may [have affected] the price of the stock, and thus defraud[ed] purchasers who rely on the price as an indication of the stock’s value.” Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986). In Peil, however, we expressly rejected an argument similar to the reasoning now advanced by Aubrey, refusing to extend and apply a fraud on the market theory of liability to a common law fraud claim. 806 F.2d at 1163 n. 17. *850(“While fraud on the market theory is good law with respect to the Securities Act, no state courts have adopted the theory, and thus direct reliance remains a requirement of a common law securities fraud claim.”).3
Aubrey urges us to revisit this precedent in light of the Supreme Court’s decision in Basic Inc. v. Levinson, 485 U.S. 224, 248-49, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988), wherein the Court endorsed the fraud on the market theory in a securities fraud case premised on a violation of section 10(b) of the Securities Exchange Act of 1934. This decision led some district courts in this Circuit to predict that Pennsylvania courts would adopt a fraud on the market theory for common law securities claims. See e.g., In re Healthcare Servs. Group, Inc. v. Sec. Litig., 1993 WL 54437, at *6 (March 1, 1993 E.D.Pa.) (questioning the validity of the Peil footnote in light of the Basic decision); In re Atlantic Fin. Fed. Sec. Litig., 1990 WL 171191, at **2-3 (Oct. 31, 1990 E.D.Pa.) (opining that the Third Circuit would decide Peil differently post-Basic).
We agree with the District Court that those decisions are unpersuasive. First, as noted by the District Court, the Supreme Court in Basic distinguished common law fraud from federal securities fraud claims. 485 U.S. at 244 n. 22, 108 S.Ct. 978. In Basic, the Court observed that “[ajctions under Rule 10b-5 are distinct from common-law deceit and misrepresentation claims, and are in part designed to add to the protections provided [to] investors by the common law.” Id. (internal citations omitted). Second, despite the predictions advanced in the decisions cited by Aubrey, in the more than twenty intervening years since Basic, Pennsylvania has not recognized a fraud on the market theory of liability m common law fraud claims. Finally, the cases cited to by Aubrey are readily distinguishable because unlike the plaintiffs in those cases, Aubrey did not sue Sunrise, the company in which he invested, or its officers or directors.
We have considered the remainder of Appellant’s claims and find that they are without merit and therefore do not require further discussion.
IV.
For the foregoing reasons, we affirm the judgment of the District Court. Appellees’ request for Fed. R.App. P. 38 damages is, however, denied. In light of the record, we cannot conclude that Aubrey’s appeal was frivolous. Furthermore, Appellees failed to file a separate motion seeking damages as required by Rule 38.
. Dr. Martin died on March 18, 2008 and Aubrey never moved to substitute his Estate as a party.
. Appellees contend that Aubrey waived this issue because he did not advance this theory of liability in his moving papers before the District Court. Having failed in meeting his burden regarding direct reliance, Appellees contend that Aubrey should not be permitted to raise a new theory of liability on appeal. While Aubrey did not explicitly state his claim under a ‘‘fraud on the market” theory of liability, Appellees and the District Court construed Aubrey’s claim as raising this issue because Appellees devoted significant portions of their briefs to discounting this theory and the District Court rejected this theory in its Opinion. (App.226-27, 212-13). Therefore, we will consider the merits of this argument.
. Aubrey does not challenge the District Court’s ruling that he failed to identify any alleged misstatements or omissions by Defendants upon which he directly relied in deciding to purchase Sunrise stock.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472338/
|
OPINION
PER CURIAM.
Amardip Singh, a native and citizen of India, entered the United States without inspection at the Canadian border in March 1998. He was placed in removal proceedings under INA § 212(a)(6)(A)(i) in November 2005. Singh conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), claiming that he had been persecuted in India because of his political beliefs and activities in the Sikh separatist movement as a member of the Shiromani Akali Dal (Akali Dal) party.
Singh’s hearing testimony differed from his asylum application regarding the number of attacks, the number of arrests, the date on which he received a letter-threat, and where he lived in India, among other things. Singh’s asylum application (1-589) *852said that he was attacked once in the marketplace on August 8, 1997, and sustained injuries to his left leg and hand. (A.R. at 300). In addition to testifying to the August 8 attack at the hearing, however, Singh testified for the first time that members of the Deba Todha Party, an anti-Sikh party, attacked him and his father on the street on September 1, 1997, before he and his father were arrested that same day. (A.R. 133-35). Singh testified that, after both attacks in 1997, he sought medical treatment from a local doctor whose name and affiliation he no longer remembered. (A.R. 99; 105; 136). He said that his father tried to locate the doctor but was unsuccessful. (A.R. 100-101; 137).
Singh stated in his 1-589 statement that he was arrested twice but he gave no dates or details. (A.R. 300 & 304). In addition to testifying that he and his father were arrested on August 18 and September 1, 1997, (see A.R. 98-99; 136), he also testified that they were arrested and detained for two or three days in 1992, when he was ten years old, (see A.R. 97; 125-126). Singh explained that he did not include the 1992 arrest in his 1-589 statement because he was a child in 1992 and because he was not beaten. (A.R. at 126-27).
Although Singh had originally testified that both he and his father were members of the Akali Dal party, Singh admitted on cross-examination that he was not actually a member. (A.R. 94-95; 147). He testified that he and his father received a letter-threat on July 15, 1997, which differed from his 1-589 statement in which he said that the letter came on June 19, 1997. (A.R. 300; 105 & 124). Although he said in his 1-589 statement that his family moved to Bhada for safety reasons after the marketplace attack in August 1997, (see A.R. 304), he testified at the hearing that he and his family had lived in Bhada for six years, from 1992 through 1998, (see A.R. 122-123). He left Bhada to go to New Delhi, which he left for the United States in 1998. (A.R. 110-12). His older brother, who was not a member of the Akali Dal, lived in New Delhi with his family. (A.R. at 112-113). Singh’s parents remained in Punjab, where his father remained active in the Akali Dal party. (Id.). According to Singh, his father, with whom Singh is in touch on a weekly basis, has had no threats or any other problems since 1998.(M).
Singh submitted affidavits from his father, the family’s landlord in Bhada, and a family friend in Bhada, all of which were similar in content. (A.R. 307). Singh’s father attested, in pertinent part, that “the police want to implicate my son and me in false criminal cases and wanted to kill us in a false encounter that is why. (sic) I send my son to a foreign country i.e. USA in order to escape from the cruelties and unnecessary harassment of the police in March 1998.” (Id.). Singh’s father did not mention in his affidavit the 1997 attacks and arrests or Singh’s arrest as a ten-year old in 1992. Nor did Singh’s father recount in his affidavit what efforts he made to find the local doctor who treated Singh for his injuries in 1997.
The IJ denied Singh’s asylum application as time-barred.1 The IJ also denied withholding of removal and CAT relief, finding that Singh lacked credibility due to discrepancies and omissions in his testimony, his asylum application, and his father’s affidavit, recounted above.2 Citing docu*853mentary evidence in the record, the IJ also found that Singh failed to show a reasonable fear of future persecution or torture. The IJ emphasized that Singh’s father, a member of the Akali Dal, and the rest of the family had experienced no threats or problems in the recent past. The BIA affirmed, finding no clear error in the IJ’s adverse credibility determination. The BIA also ruled that Singh failed to establish that it was more likely than not that he would be persecuted • for his political work or tortured if he was deported to India. Singh filed a timely petition for review.
We will deny the petition. We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the final order of the BIA denying Singh’s request for withholding of removal and for CAT relief. When, as here, the BIA substantially relies on the IJ’s adverse credibility determination, the Court reviews the decisions of both the IJ and the BIA. Chen v. Ashcroft, 876 F.3d 215, 222 (3d Cir.2004). Whether the BIA applied the appropriate standard of review is a question of law, and is therefore subject to de novo review. See Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004). We review the factual findings of the IJ, including adverse credibility findings, for substantial evidence. Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.2003). The IJ’s adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir.2004). “In making a credibility determination, the IJ must provide ‘specific, cogent reasonsfs]’ why the applicant is not credible.” Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir.2006) (citation omitted).
Singh’s primary claim is that the IJ erred in making an adverse credibility determination because the inconsistencies and omissions in his testimony did not go to the heart of his claim. The Government counters that Singh is subject to the credibility standard set forth in § 101(a)(3) of the REAL ID Act, which was enacted before Singh filed his asylum application. Under § 101(a)(3), the trier of fact may consider any inconsistency, inaccuracy or falsehood in an asylum applicant’s written or oral statements, “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” Gabuniya, 463 F.3d at 322 n. 7. We have not addressed the lawfulness of the new provision in a precedential opinion. We need not decide today whether the IJ’s credibility finding is proper under § 101(a)(3), however, because we conclude that the .credibility determination was proper under the more generous preREAL ID Act standard.
Here, the IJ noted numerous inconsistencies and omissions in Singh’s case for relief, which, taken together, call his credibility into question. Taken in isolation, some of the inconsistencies noted by the IJ could be viewed as minor. For instance, the IJ noted the discrepancy between the date of the letter-threat as recorded in Singh’s 1-589 statement and his hearing testimony. The IJ relied, however, on far more significant inconsistencies and omissions that go to the heart of Singh’s claim. First, Singh omitted his attack and detention in 1992 from his 1-589 statement. Second, although his 1-589 statement mentions the attack that occurred on August 8, 1997, he omitted the attack at a street rally prior to his arrest on September 1, 1997, to which he testified on cross-exami*854nation. Moreover, Singh admitted that he did not relocate to Bhada with his family to escape further attacks and arrests. When asked to explain the foregoing omissions and discrepancies in the record, Singh gave weak and unconvincing reasons.3 Based on this record, no reasonable adjudicator would be compelled to find Singh’s testimony credible. See Xie, 359 F.3d at 243; see also Tarrawally v. Ashcroft, 338 F.3d 180, 187 (3d Cir.2003) (holding that an adverse credibility determination is supported by substantial evidence even where only some of the stated bases are appropriate). Because the IJ gave specific, cogent reasons for disbelieving Singh, which the Board adopted, we must uphold the adverse credibility determination. 8 U.S.C. § 1252(b)(4)(B).
Singh next claims that the IJ and the BIA erred when they considered his failure to provide corroboration as a factor in evaluating his credibility. Corroboration goes to the sufficiency of the evidence; thus, it requires analysis independent of an adverse credibility determination. See Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir.2005). A credible applicant for asylum and other relief may be required to supply corroborating evidence to meet his burden of proof. Id. at 218. Here, Singh testified that his father could not find the doctor who treated him in 1997 and he said that his father no longer had the letter-threat in his possession, implying that it was lost. We doubt that the IJ based his credibility determination on Singh’s failure to corroborate, through his father, the reasons why he lacked documentation of his injuries and of the letter-threat. Even assuming that the IJ treated the lack of corroboration as part of the overall credibility assessment, however, the error does not affect the result in this case because we have already concluded that substantial evidence exists to support the IJ’s adverse credibility finding based solely on significant omissions and inconsistencies in Singh’s presentation of his case.4 Chen, 434 F.3d at 221 (citing Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003)).
Relying on Camara v. Ashcroft, 378 F.3d 361, 372 (4th Cir.2004) (holding that the IJ could not rely solely on an adverse credibility finding to support her denial of asylum and other relief, where the alien presented independent evidence of torture), Singh argues that the IJ wrongly denied his CAT claim based solely on the adverse credibility finding. We conclude that substantial evidence supports the IJ’s conclusion. Unlike in Camara, the 2006 State Department Report and the 2006 British Home Office Report upon which the IJ relied, indicated that members of Akali Dal were not subject to torture or brutal repression. Furthermore, the IJ noted Singh’s testimony that his family experienced no recent attacks on account of their affiliation with a Sikh separatist party. Because we have determined that substantial evidence supports the adverse *855credibility finding, and because Singh has not cited to evidence indicating that he might be tortured for reasons unrelated to his claim for withholding of removal, we will uphold the BIA’s decision to deny the CAT claim.5 See Alemu v. Gonzales, 403 F.3d 572, 576 (8th Cir.2005); Farah v. INS, 348 F.3d 1153, 1157 (9th Cir.2003).
Accordingly, we will deny the petition for review.
. Singh admitted at the hearing held August 23, 2006, and at the outset of the hearing on February 1, 2007, that his asylum application was time-barred. (A.R. 65; 157). We lack jurisdiction to review such determinations. See 8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003).
. The IJ also noted that, at his credible fear interview in November 2005, Singh denied *853having any fear of persecution or torture should he be returned to India. Singh explained, however, that he was so ‘'shaken” by his detention for the first time in the United States that he did not understand what the officer was saying. (A.R. 116-118).
. At one point during cross-examination, Singh said that he might not have understood some of the questions put to him in English. (A.R. 144). In response to the IJ’s direct questioning, Singh confirmed that he had declined the assistance of an interpreter at the removal hearing because he preferred to testify in English, his “best language.” (A.R. 145). He confirmed that he understood everything his attorney asked him on direct examination and everything that was asked so far on cross-examination. (A.R. 146). When asked again if he wanted an interpreter, Singh again declined. (Id.).
. In light of the our conclusion upholding the IJ’s adverse credibility finding, we reject as meritless Singh's contention that the BIA violated due process and its own corroboration standards when it failed to specify the additional evidence required in order to convert Singh’s insufficient claim into a meritorious one.
. Singh's contention that the IJ or the BIA erroneously denied CAT relief because he failed to show “acquiescence" by Indian authorities to the torture of Sikh separatists is meritless. Neither the IJ nor the BIA denied Singh's CAT claim on that ground.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472340/
|
OPINION
PER CURIAM.
Li Jun Yan, a native and citizen of the People’s Republic of China (“China”), au*856rived in the United States as a visitor on April 11, 1998. He overstayed his visa, and the Government charged him with removability. Yan conceded the charge and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).
Yan claims that he suffered past persecution and fears future persecution on the basis of his political opinion.1 In his affidavit and his testimony, Yan described how he was treated poorly in China. He was doing well as the manager of the import and export department of a machinery and industrial equipment company. However, his brother-in-law’s father or his brother-in-law,2 who was the director of the company, refused to promote a man named Yuancheng Wang. Wang hated Yan because of the director’s decision. After the director retired, Wang insinuated himself into the position of general manager of the company. From that position, he threatened, then exacted, revenge on Yan because the former director had passed him over for a promotion. He gave Yan a “hard time at different meetings.” He also “arranged for his trusted follower ... to interfere with [Yan’s] job.” Over time, it became “impossible for [Yan] to carry out [his] regular job and [he] was forced to leave [his] post and China.”
Yan fears future persecution not only because of how Wang and his underling treated him but also because of his activities as a member of the China Democracy Party (“CDP”) in the United States. Since joining the CDP in October 2004, Yan has participated in many protests in front of the Chinese Consulate General in New York. These protests were covered by television stations, newspapers, and websites. He has published articles critical of the Chinese government on the Internet. He serves as the Vice President of the Membership Department of the CDP, and he has recruited Mends to join the CDP. Yan also attended the memorial meeting of the former Chinese premier, Zhao Ziyang, which the Chinese government prohibited. He attended a forum on a book that describes the Chinese Communist Party as cheating the world and its people. He participated in military training led by Chaplain Yan Xiong, who was a student leader in the Tiananmen Square protests. According to Yan, Yan Xiong was arrested and jailed for his activities and is still regarded by the Chinese government as a counter-revolutionary figure. Yan contended that anyone associated with Yan Xiong is considered a counter-revolutionary activist.
Yan testified that the Chinese government became aware of his anti-government activities through the media and the Internet. He stated that Chinese policemen came to his home in China on December 25, 2004, and told his family members (his wife, child, mother, and sister) that he should return and surrender to the police and that they should cut their ties to him. The police returned in September 2005 and January 2006.
*857In support of his claim, Yan provided a letter from his sister, which provided an overview of Yan’s experiences and a mention of the police visit in 2004. Also, Wang Yung, the Chairman of the CDP in the United States, testified and submitted an affidavit to describe Yan’s role in the CDP in fighting to end one-party rule in China. Yung also testified that he knew of a person who engaged in similar activities in the United States who was imprisoned on his return to China. In the record are pictures of Yan giving a speech and protesting, as well as articles he has written for the CDP (they appear to be published in a CDP newsletter or newspaper and on the CDP website, R. 114-24). The 2004 Country Report on Human Rights Practices in China is also in the record.
The Immigration Judge (“IJ”) believed that Yan was an active member of the CDP based on the testimony and evidence in the record. However, the IJ did not put much stock in the letter from Yan’s sister because she was not present to be cross-examined and the letter was brief and had a “strange sort of tone.” The IJ was not confident that the letter was “legitimate” or “authentic” because it seemed to have been created to influence a court instead of to correspond with a sibling. The IJ noted that he asked to be shown evidence in the background material in the record that would show a likelihood that activities in the United States could lead to persecution in China. The IJ stated that he had not been directed to any such evidence and did not see any in the record. “For [that] reason,” the IJ concluded that Yan had not met his burden of proof to show that his political activity in the United States would lead to persecution or torture in China.
Yan appealed to the Board of Immigration Appeals (“BIA”). The BIA affirmed the IJ’s decision. After briefly summarizing Yan’s claims, the BIA stated that any mistreatment Yan suffered in China was “strictly personal” and not on account of a protected ground. Referring to pages in the IJ’s opinion as well as other parts of the record, the BIA agreed with the IJ that Yan failed to meet his burden to show a well-founded fear of future persecution. The BIA also rejected the withholding and CAT claims. Yan presents a petition for review.3
We have jurisdiction over his petition pursuant to 8 U.S.C. § 1252(a). Questions of law are reviewed de novo, see Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2001), while factual findings are reviewed for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Under the substantial evidence standard, the BIA’s decision is upheld unless the evidence not only supports a contrary conclusion, but compels it. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
As we alluded to earlier, see swpra n. 1, Yan challenges an adverse credibility determination that does not exist. Although the IJ questioned the authenticity of a letter submitted into evidence, neither he nor the BIA made a credibility finding. Accordingly, we ignore the arguments in his brief relating to “the credibility finding.” Instead, we will presume that Yan’s testimony is credible, see Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003), and will focus on the gist of Yan’s claim — that he was entitled to asylum and CAT protection.4
To the extent that Yan presented a claim for asylum based on past persecution, see supra, n. 1, the BIA did not err in rejecting it. The evidence supports the determination that Yan’s conflict with his supervisor was a personal/personnel conflict unrelated to Yan’s political opinion.
*858However, we conclude that a remand is necessary in this case so that the agency may evaluate all of the evidence under the appropriate legal test to determine whether Yan met his burden to show a well-founded fear of future persecution based on his CDP activities in the United States. An applicant can show eligibility for asylum or withholding because of a likelihood of persecution due to political activities occurring in the United States. See Tun v. United States INS, 445 F.3d 554, 570 (2d Cir.2006); Ghadessi v. INS, 797 F.2d 804, 807-09 (9th Cir.1986). The applicant must show that “authorities in his country of nationality are either aware of his activities or likely to become aware of his activities.” Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir.2008) (per curiam ).5 Neither the IJ, searching primarily for evidence in the background materials (and not finding all of the evidence therein), nor the BIA, relying on the IJ’s analysis, considered all of the relevant evidence that Yan presented.
There is some testimony (deemed credible) and other evidence in the record that suggest that the Chinese government is aware of, or could become aware of, Yan’s activities in the United States. Yan testified that the Chinese government is aware of his political activities because of the articles he has written for the CDP and because of his presence at protests. He testified that Chinese police have gone to his house in China three times. Yung, whose credibility also was not assessed, testified that a friend who engaged in similar activities was sentenced to years in jail on his return to China.
Furthermore, despite the IJ’s conclusion to the contrary, there is evidence in the 2004 Country Report on Human Rights Practices that supports Yan’s claims.6 Certainly, CDP is a group suppressed by the Chinese government: “Dozens of CDP leaders, activists, and members have been arrested, detained, or confined.” R. 138. People have been arrested and imprisoned for publishing articles critical of the Chinese government, including articles in support of the CDP. R. 147. Also, Chinese residents who were activists abroad have been imprisoned on return to their country. R. 155.
Nonetheless, we do not express any opinion on the appropriate outcome in this case. The agency may wish to weigh the evidence we have discussed against other evidence in the record and to consider the introduction of Country Reports more recent than the 2004 Country Report that was in the record We conclude only that a remand is necessary for the agency to consider all the evidence Yan presented under the appropriate legal test for asylum eligibility. Cf. Leng, 528 F.3d at 143. For this reason, we grant the petition for review and vacate the BIA’s order.7
. We note that Yan disavows a claim of past persecution before the agency, Appellant’s Brief 15, but his statement seems inconsistent with his arguments before the agency. Among other things also inconsistent with the proceedings in the agency is his statement that he seeks review of his (non-existent) motion to reopen, id. 1, the suggestion that this case relates to China’s one-child policy, id., the name on the right-hand corner of the cover of his brief, and the claim that the Immigration Judge made an adverse credibility finding, id. at 7. With regards to the last issue, and as the Government concedes, Appellee’s Brief 13, neither the Immigration Judge nor the Board of Immigration Appeals made an adverse credibility finding.
. Yan uses both terms in his affidavit.
. Yan previously sought a stay of removal, which we granted.
. He does not argue that he is entitled to statutory withholding of removal.
. Although the Second Circuit Court of Appeals does not cite Ghadessi, its test serves as an accurate summary of the test used in that case. See 797 F.2d at 808.
. Although Yan references the 2007 Country Report in his brief, see Appellant’s Brief 17-18, we do not consider the 2007 Country Report because it is not part of the administrative record before us. See 8 U.S.C. § 1252(b)(4)(A) (stating that "the court of appeals shall decide the petition only on the administrative record on which the order of removal is based”).
.As the Government notes in its brief, Yan's CAT claim is based on the same factual premise. Accordingly, on remand, after the agency assesses the risk of future persecution, the agency may again consider the claim for CAT relief. As we stated in relation to the asylum claim, we do not express an opinion on the ultimate merit of any of Yan's claims for relief.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472342/
|
OPINION OF THE COURT
FUENTES, Circuit Judge:
The gravamen of the case filed by Thomas Eames, Roberta Eames, and Tammy Eames (“the Eameses”) is that Nationwide Mutual Insurance Company (“Nationwide”) engaged in misrepresentation with respect to the Eameses’ automobile insurance policy by describing the policy limits for Personal Injury Protection (“PIP”) coverage as “full.” Specifically, the Eameses allege that this practice is misleading as they purchased “full” PIP coverage but only received the statutory minimum payments of $15,000 per person and $30,000 per accident when they made PIP claims on their Nationwide policy. The Eameses appeal from the District Court’s Orders granting Nationwide’s motions to dismiss. They challenge the District Court’s statute-of-limitations ruling and its holding that the pleadings failed to satisfy the particularity requirement of Federal Rule of Civil Procedure 9(b). For the reasons stated below, we will affirm.
*860I.
The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the grant of Nationwide’s motions to dismiss. Miller v. Fortis Benefits Ins. Co., 475 F.3d 516, 519 (3d Cir.2007).
II.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of the case.
The Eameses commenced this proposed class action in Delaware Superior Court; it was removed by Nationwide to the District Court of Delaware based on diversity jurisdiction. The case concerns Nationwide’s sale of automobile insurance policies that describe the policy limits for Personal Injury Protection (“PIP”) coverage as “full.” Thomas Eames and Roberta Eames are named insureds under such a Nationwide automobile insurance policy. On February 7, 2003, they and their daughter, Tammy Eames, were injured in an automobile accident. The Eameses allege that they tendered claims for PIP benefits following the accident and that Nationwide stated that their policy limits had been exhausted by payment of the minimum statutory amount, $15,000 per person and $30,000 per accident.
The Eameses’ original Complaint asserted five causes of action: (1) declaratory judgment; (2) breach of contract; (3) bad faith breach of contract; (4) consumer fraud in violation of the Delaware Consumer Fraud Act (“DCFA”), 6 DeLCode § 2513; and (5) civil conspiracy. With respect to the DCFA claim, the Eameses contend that the use of the word “full” deceptively suggested that they had purchased the maximum amount of PIP coverage that Nationwide actually offered, $100,000 per person and $300,000 per accident — the “maximum limit” theory. The Eameses also argue that the word “full” misled them to believe that what they had purchased — $15,000 per person and $30,000 per accident — was the most PIP coverage available for purchase — the “fullest available limit” theory. The civil conspiracy cause of action was also premised on the allegation that Nationwide’s characterization of PIP limits as “full” was misleading.
Nationwide filed a motion to dismiss the Eameses’ Complaint. On February 2, 2006, the District Court dismissed the first three counts with prejudice. The Court dismissed the fraud-based claims with leave to amend, ruling that they were not pleaded with sufficient particularity to satisfy Federal Rule of Civil Procedure 9(b). The Eameses subsequently filed an Amended Complaint limited to claims for violation of the DCFA and civil conspiracy; Nationwide filed a second motion to dismiss. On August 29, 2006, ruling that the Eameses had reason to know in 1994 that their policy limits were $15,000 per person and $30,000 per accident, the District Court concluded that, with respect to the “maximum limit” theory, the applicable three-year statute of limitations had run. The Court dismissed the remaining counts to the extent that they relied on the “maximum limit” theory. Concerned about the effect of this partial dismissal on the amount in controversy, the Court reserved ruling on the balance of Nationwide’s motion to dismiss pending a resolution of the jurisdictional question. The Eameses filed a motion to reconsider the statute-of-limitations ruling. In their jurisdictional submissions, the parties agreed that the amount-in-controversy requirement was met even after the dismissal of the “maximum limit” theory.
The motion to dismiss and motion for reconsideration were referred to a Magis*861trate Judge who, in a Report and Recommendation, recommended that the motion for reconsideration be denied and that the motion to dismiss be granted. On September 80, 2008, the District Court issued a Memorandum Opinion overruling the Eameses’ objections and granting the remainder of Nationwide’s motion to dismiss.
In their Notice of Appeal, the Eameses appealed from the following orders: the February 2, 2006 Memorandum Opinion and Order granting Nationwide’s motion to dismiss the original Complaint; the August 29, 2006 Memorandum Opinion and Order granting in part Nationwide’s motion to dismiss the Amended Complaint based on statute-of-limitations grounds; and the September 80, 2008 Memorandum Opinion and Order adopting the Report and Recommendation and granting the remainder of Nationwide’s motion to dismiss the Amended Complaint.
III.
On appeal, the Eameses raise the following contentions: (1) the requirement that a plaintiff plead fraud claims with particularity does not apply to statutory consumer protection claims; (2) assuming arguendo that the particularity requirement does apply, the Amended Complaint pled violations of the DCFA with the requisite particularity; (3) the District Court erred in dismissing, on statute-of-limitations grounds, the fraud claims to the extent that they were based on the “maximum limit” theory; and (4) the Magistrate Judge improperly ruled on the merits of the Eameses’ claims.
In three extensive "written opinions, the District Court carefully and thoroughly considered the contentions that the parties raise in this appeal. After a complete review of the record and the parties’ arguments, we find no basis for disturbing the District Court’s rulings. Therefore, we "will affirm the judgments substantially for the reasons set forth by the District Court in its written opinions. See Eames v. Nationwide Mutual Ins. Co., No. 04-cv-1324, 2008 WL 4455743 (D.Del. Sept.30, 2008); Eames v. Nationwide Mutual Ins. Co., No. 04-cv-1324, 2006 WL 2506640 (D.Del. Aug.29, 2006); Eames v. Nationwide Mutual Ins. Co., 412 F.Supp.2d 431 (D.Del.2006).
We add only the following: With respect to the statute-of-limitations ruling, the Eameses argue that Nationwide made representations in 2003 that they had “full” PIP coverage, thus beginning a new three-year limitations period. In 2003, however, the Eameses already had reason to know that the term “full,” when applied to PIP coverage, did not mean the maximum amount of PIP coverage offered by Nationwide, $100,000 per person and $300,000 per accident. Thus, when Nationwide used the term “full” in 2003, this was not a misrepresentation that could commence a new limitations period under the “maximum limit” theory. The Eameses’ reliance on the 2003 statements is misplaced, and we will therefore affirm the District Court’s statute of limitations ruling.
IV.
For the foregoing reasons, we affirm the judgments of the District Court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472344/
|
OPINION
BARRY, Circuit Judge.
Pennsylvania Manufacturers’ Association Insurance Company (“PMAIC”) and Transportation Insurance Company (“TIC”) issued commercial general liability (“CGL”) insurance policies to G & B Specialities (“G & B”) that were materially indistinguishable except for the respective coverage period. The TIC policy covered the defense and indemnification of G & B against actions seeking damages for “ ‘personal and advertising injury1 caused by an offense arising out of [its] business ... during the policy period” that extended from April 24, 1999 to April 24, 2000. (App. at 187.) The PMAIC policy provid*863ed the same scope of coverage for the following year — from April 24, 2000 to April 24, 2001. Each policy contained a “prior publication” exclusion, stating: “[t]his insurance does not apply to ... ‘[pjersonal and advertising injury’ ... [ajrising out of oral or written publication of material whose first publication took place before the beginning of the policy period.” (App. at 146,187.)
The case before us involves a coverage dispute between TIC and PMAIC regarding an action brought by Pohl Corporation against G & B in the U.S. District Court for the Eastern District of Pennsylvania and filed on July 18, 2000 (the “underlying-action”). In the underlying action, Pohl alleged that, “[bjeginning in August 1999 and continuing to the [time of filing],” G & B “ha[d] been contacting customers and clients of Pohl” and representing that Pohl’s products infringed on a patent held by Norfolk Southern Railway Company (“Norfolk Southern”). (App. at 57.) G & B tendered the underlying claim to TIC and PMAIC in accordance with both policies, seeking defense and indemnification. In October 2000, TIC assumed defense of the action, and continued to defend G & B until July 2006, when G & B entered into a settlement with Pohl. PMAIC, on the other hand, disclaimed coverage, stating that the facts alleged in the underlying complaint did not trigger a duty to defend under the language of its policy.
TIC filed this action on December 11, 2006, seeking, inter alia, reimbursement for a share of the costs it incurred in defending and indemnifying G & B. Ruling on cross motions for summary judgment, the District Court found in favor of TIC and ordered PMAIC to pay half of the costs incurred by TIC.
The central issue before the District Court was the same as the issue before us, namely whether the underlying action falls within the PMAIC “prior publication” exclusion. The Court answered that question in the negative, concluding that the relevant “prior publication” exclusion was ambiguous and inapplicable. Although the “prior publication” exclusion has been considered ambiguous in other circumstances, see, e.g., Maddox v. St. Paid Fire & Marine Life Insurance Co., 179 F.Supp.2d 527, 580 (W.D.Pa.2001) (Smith, J.), it is not ambiguous in the circumstances before us. Because the underlying complaint clearly states that all of the relevant conduct began in August 1999 — more than six months before the PMAIC policy period commenced — we conclude that the “prior publication” exclusion bars coverage, and will reverse.
I. Background
A. The Underlying Action
G & B and Pohl are competing manufacturers of railroad switch stands, and, on July 18, 2000, Pohl filed the underlying action against G & B. The complaint states that G & B manufactured railroad switch stands for Norfolk Southern and that it was a licensee of Norfolk Southern’s patent on a purportedly improved railroad switch stand. Pohl, however, disputed the enforceability of Norfolk Southern’s patent, contending that its elements were neither new nor nonobvious.
Despite the patent dispute, G & B allegedly began contacting Pohl’s customers and disparaging the Pohl railroad switch stand. The complaint alleges, in relevant part, that “[bjeginning in August 1999 and continuing to the [time of filing], G & B ha[d] been contacting customers and clients of Pohl and misrepresenting that”: “Pohl [was] infringing [on] Norfolk [Southern’s] [p]atents”; “Pohl [was] selling railroad switch stand designs that [were] stolen from G & B and Norfolk [Southern]”; and “past and future purchase of Pohl’s switch stands constituted [patent] infringement ... for which those customers and *864clients would be liable....” (App. at 57.) Pohl claimed that G & B’s conduct gave rise to liability because its “misrepresentations and threats” violated Section 43(a) of the Lanham Act, see 15 U.S.C. § 1125(a). Pohl also raised three state law claims— unfair competition, commercial disparagement, and tortious interference with business relationships.1
B. The PMAIC Policy
The PMAIC CGL policy purchased by G & B covered a period that extended from April 24, 2000 to April 24, 2001. In general, the policy provided defense and indemnification against “ ‘personal and advertising injury’ caused by an offense arising out of [G & B’s] business but only if the offense was committed ... during the policy period.” (App. at 146.) “‘Personal and advertising injury’” was a defined term, which included, in relevant part, an injury “arising out of ... [o]ral or written publication of material that ... disparages a person’s or organization’s goods, products or services.” (Id. at 153.)
There were, however, a number of exclusions, three of which are relevant here. The PMAIC policy did “not apply to ... ‘[p]ersonal and advertising injury’ ... arising out of oral or written publication of material whose first publication took place before the beginning of the policy period” (“prior publication” exclusion). (Id. at 146.) Coverage would also not extend if the personal and advertising injury was “[c]aused by ... the insured with the knowledge that the act would ... inflict ‘personal and advertising injury’ ” (“intent to injure” exclusion), or if the injury arose “out of oral or written publication of material, if done by ... the insured with knowledge of its falsity” (“knowledge of falsity” exclusion). (Id.)
C. The Present Action
It is undisputed that G & B tendered the underlying claim in October 2000 to both TIC and PMAIC, and that PMAIC disclaimed coverage. After Pohl filed its second amended complaint in July 2003, G & B again requested coverage under the PMAIC policy. Explaining its refusal to extend coverage, PMAIC stated that the second amended complaint did not trigger coverage, and, alternatively, that the above-described exclusions applied. PMA-IC reiterated its position by letter dated May 25, 2006.
Following the resolution of the underlying action, TIC filed this action, claiming that it expended in excess of $230,000 in defending G & B, and that, pursuant to an agreement between it and G & B, TIC paid $175,000 towards the settlement G & B reached with Pohl. TIC sought a declaration that, like its policy, PMAIC’s policy mandated defense and indemnification. TIC also sought reimbursement for PMA-IC’s share of the costs it incurred in defending and indemnifying G & B.
The District Court granted summary judgment in favor of TIC. The Court first concluded that the underlying action alleged a “personal and advertising injury” within the ambit of the PMAIC policy, and that PMAIC was obligated to provide coverage unless it could demonstrate that a policy exclusion applied. Next, the Court addressed the “prior publication” exclusion, and concluded that it was ambiguous. *865Construing the ambiguity in favor of the insured, the Court concluded that the exclusion did not apply.2 After concluding that PMAIC had an unmet duty to defend, the District Court held that PMAIC was equitably estopped from asserting that it had no duty to indemnify G & B. Accordingly, the Court found PMAIC liable for half of the defense costs borne by TIC, and for half of the indemnity paid by TIC to G & B.
II. Discussion
“Our standard of review of a grant of summary judgment is plenary.” Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir.2008).3
Under Pennsylvania law, which the parties agree is applicable here, the interpretation of an insurance contract regarding the existence of coverage is generally performed by the court. Id. at 558; see Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 589 Pa. 317, 908 A.2d 888, 897 (2006) (“The interpretation of an insurance policy is a question of law that we will review de novo.”).
“Our inquiry is straightfoward.” Nationwide Mut. Ins. Co. v. CPB Int’l, Inc., 562 F.3d 591, 595 (3d Cir.2009). Our first step “is to determine the scope of the policy’s coverage,” General Accident Insurance Co. of America v. Allen, 547 Pa. 693, 692 A.2d 1089, 1095 (1997), and the keystone of that determination is the plain language of the policy. Nationwide, 562 F.3d at 595. “When the language of the policy is clear and unambiguous, we must give effect to that language.” Kvaerner, 908 A.2d at 897 (quotation marks and citation omitted). “However, ‘when a provision in the policy is ambiguous, the policy is to be construed in favor of the insured to further the contractfs] prime purpose of indemnification and against the insurer, as the insurer drafts the policy and controls the coverage.” Donegal Mut. Ins. Co. v. Baumhammers, 595 Pa. 147, 938 A.2d 286, 290 (2007) (quoting Kvaerner, 908 A.2d at 897); Madison Const. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999) (“We will not ... distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity.”).
After determining the scope of coverage, we “examine the complaint in the underlying action to ascertain if it triggers coverage,” Allen, 692 A.2d at 1095, because an insurer’s “duties to defend and indemnify an insured in a suit brought by a third party depend upon a determination of whether the [underlying] complaint triggers coverage,” Baumhammers, 938 A.2d at 290 (quotation marks and citation omitted). Our focus, in particular, is on the “factual allegations contained in the [underlying] complaint,” id. at 291, which are “to be taken as true and liberally construed in favor of the insured,” Frog, Switch, & Mfg. Co., 193 F.3d at 746.4
*866A. Scope of Coverage
There is little question that the underlying complaint alleges “ ‘personal and advertising' injury to which [PMAIC’s] insurance applies.” (App. at 146.) As defined in the policy, “personal and advertising injury” is an injury arising out of “[o]ral or written publication of material that ... disparages a person’s or organization’s goods, products or services.” (Id. at 153.) The underlying complaint alleges precisely such an injury — that G & B had been contacting Pohl’s clients and misrepresenting that Pohl’s products infringed on an existing patent. The language stressed by PMAIC — that “we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘personal and advertising iryury’ to which this insurance does not apply” (id. at 146) — references not the general scope of coverage, but the exclusions within that scope. It is, simply, an argument that one of three exclusions applies.
B. “Prior Publication” Exclusion
“Where an insurer relies on a policy exclusion as the basis for its denial of coverage ... the insurer has asserted an affirmative defense and, accordingly, bears the burden of proving such a defense.” Madison Constr., 735 A.2d at 106. The focus of PMAIC’s argument is its “prior publication” exclusion, which denies eoverage for any injury “[a]rising out of oral or written publication of material whose first publication took place before the beginning of the policy period.” (App. at 146.) “Under the exclusion’s plain terms the ‘first publication’ date is a landmark: if the injurious advertisement was ‘first published’ before the policy coverage began, then coverage for the ‘advertising injury’ is excluded.” Applied Bolting Tech. Products v. United States Fid. & Guar. Co., 942 F.Supp. 1029, 1036 (E.D.Pa.1996).
Here, the PMAIC policy period began on April 24, 2000. The central factual allegations of the underlying action are that, beginning in August 1999 and continuing until the time of the filing of the complaint, G & B had been contacting customers and clients of Pohl and, inter alia, misrepresenting that past and future purchase of Pohl’s switch stands constituted patent infringement for which those customers and clients would be liable. There is no indication in the complaint that G & B’s alleged misrepresentations changed in substance between when they were first made and the filing of the complaint. G & B’s conduct, therefore, falls squarely within the plain language and purpose of the exclusion. See Maddox, 179 F.Supp.2d at 530 (“[L]ogically[,] the point of the exclusion is to prevent a[] [company that] has caused an injury from buying insurance so that [it] can continue [its] injurious behavior.”).5
*867TIC contends otherwise, arguing that the extent of the injury — and the audience for G & B’s misrepresentations — grew after August 1999, and that the exclusion is therefore inapplicable. That argument is unpersuasive, because under the “prior publication” exclusion, “[i]t is irrelevant that later publications, made after the policy became effective, also caused ‘advertising injury5 or increased the damages.” Applied Bolting, 942 F.Supp. at 1036. Unless later publications contained “new matter” — i.e. substantively different content— that the underling complaint “allege[d] [were] fresh wrongs,” the “prior publication” exclusion applies. Taco Bell, 388 F.3d at 1074.
The District Court’s conclusion to the contrary relies on Maddox, which held that the “prior publication” exclusion “is ambiguous because it is reasonably susceptible to more than one interpretation.” 179 F.Supp.2d at 530. As the Supreme Court of Pennsylvania has stated, the terms in an insurance policy “are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular• set of facts.” Madison Constr., 735 A.2d at 106 (emphasis added). Thus, terms that are straightforward in one context may be ambiguous in the next.
There is little doubt that the exclusion was ambiguous when considered in light of the facts in Maddox. There, the insured had performed in a band named “The Marcels” since 1961, and had purchased CGL insurance yearly beginning in 1992. The plaintiff in the underlying action had obtained a trademark for the Marcels mark in June 1996, and subsequently brought suit against the insured alleging trademark infringement. The insurer denied coverage, stating that the “lawsuit fell under the ‘[prior] publication’ policy exclusion” because the first publication had occurred prior to the policy period beginning in 1992; the insured brought a declaratory judgment action seeking coverage. Maddox, 179 F.Supp.2d at 529. The Maddox court concluded that the “prior publication” exclusion was ambiguous under those circumstances, “as a reasonable person in the position of the insured would understand the exception to mean that an advertising injury is only excluded when there was a wrongful publication prior to the policy period....” Id. at 530. The underlying complaint, of course, did not allege a prior use of the trademark that pre-dated the insurer’s policy period — nor could it, as the policy began in 1992, and the trademark was not registered until 1996.
Here, however, the underlying complaint alleged that G & B misrepresented Pohl’s products beginning in 1999. The complaint does not suggest that G & B’s publications were, at one point, permissible, and later became injurious. Rather, it alleges that, dating back to August 1999, the publications were consistently injurious. Given those facts, the same exclusion that was ambiguous in Maddox is unambiguous here: PMAIC’s “insurance does not apply to ... ‘[p]ersonal and advertising injury’ ... [a]rising out of oral or written publication of material whose first publication took place before [April 24, 2000].” (App. at 146). Accordingly, the “exclusion in the policy prevents [PMAIC] from having to defend or indemnify” G & B against the underlying action. See Mutual Ben. Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743, 746 (1999).6
*868III. Conclusion
We will reverse the judgment of the District Court and remand with directions to enter summary judgment in favor of PMAIC.
. The underlying action was consolidated with a declaratory judgment action Pohl had filed against Norfolk Southern on July 25, 2001 seeking a declaration that Norfolk's patent was invalid. Pohl filed a second amended complaint on July 25, 2003, adding, inter alia, additional claims of patent invalidity against Norfolk Southern, and two claims that G & B intentionally mismarked its railroad switch products as patented. On July 28, 2006, Pohl and G & B entered into a settlement, which provided that G & B would pay Pohl $250,000 to dispose of the claims against it.
. Additionally, the Court concluded that while the “intent to injure” and “knowledge of falsity" exclusions may have barred part of the underlying claim, Pohl could have established liability by proving that G & B acted in a reckless or negligent manner. Thus, PMAIC's duty to defend was not extinguished. (Id. at 16); see Frog, Switch & Mfg. Co. v. Travelers Ins. Co., 193 F.3d 742, 746 (3d Cir.1999) (”[I]f a single claim in a multiclaim lawsuit is potentially covered, the insurer must defend all claims until there is no possibility that the underlying plaintiff could recover on a covered claim”).
. The District Court exercised diversity jurisdiction under 28 U.S.C. § 1332, and we have jurisdiction over the final order of the District Court pursuant to 28 U.S.C. § 1291.
. PMAIC challenges only the District Court's determination that it had a duty to defend G & B in the underlying action. The limited nature of PMAIC’s appeal impliedly concedes *866that, if it did have a duty to defend, it also must contribute to TIC’s indemnity payment. See Cadwallader v. New Amsterdam Cas. Co., 396 Pa. 582, 152 A.2d 484, 488 (1959) (“It is clear that where a claim potentially may become one which is within the scope of the policy, the insurance company’s refusal to defendant at the outset of the controversy is a decision that it makes at its own peril”). *867Taco Bell Corp. v. Cont’l Cas. Co., 388 F.3d 1069, 1072-73 (7th Cir.2004) (Posner, J.) (citation omitted).
. As the Seventh Circuit has stated:
The purpose of the ‘prior publication' exclusion (a common clause in liability-insurance contracts, though rarely litigated) can be illustrated most clearly with reference to liability insurance for copyright infringement. Suppose a few months before insurance began on October 7, 1997, the insured published an infringing book that it continued selling after October 6. The 'prior publication’ exclusion would bar coverage because the wrongful behavior had begun prior to the effective date of the insurance policy. The purpose of insurance is to spread risk — such as the risk that an advertising campaign might be deemed tortious — and if the risk has already materialized, what is there to insure? The risk has become a certainty.
. Because we conclude that PMAIC's prior publication exclusion barred coverage, we need not address the applicability of the "intent to injure” and "knowledge of falsity" exclusions.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472346/
|
OPINION
BARRY, Circuit Judge.
Appellant Kareem Millhouse was convicted by a jury of three counts of bank robbery, two counts of armed bank robbery, one count of Hobbs Act robbery, and three counts of related firearms offenses. We will affirm the judgment of conviction.
I.
Millhouse was charged in connection with six separate robberies, all occurring in Philadelphia over a seven-week period in 2006. When he was arrested on the day of the final robbery, he provided a detailed written confession to the FBI as to all six robberies. An accomplice, Terrence Hawkins, was also charged with three of the robberies; Hawkins pled guilty and testified against Millhouse at trial.
Because we write only for the parties, we need not review the facts of each robbery or the extensive, if not altogether overwhelming, evidence of Millhouse’s guilt. We note, however, that this evidence included surveillance photographs; the testimony of numerous victim tellers, store clerks, and others (including four who identified Millhouse at trial); the testimony of Hawkins; Millhouse’s 14-page confession; and physical evidence including fingerprints, a palm print, a boot print, and DNA.
The events of May 1, 2006, however, are relevant to this appeal, and we will briefly describe them. On May 1, Millhouse robbed a Wine and Spirits Shoppe in Philadelphia at gunpoint, taking money and two bottles of cognac, while Hawkins waited outside in a blue Chevrolet Corsica. After that robbery, Hawkins drove Mill-house to the nearby East River Bank and waited in the car while Millhouse robbed the tellers at gunpoint, taking bags of cash which included bait money with prerecorded serial numbers. Millhouse and Hawkins fled the scene in the Corsica.
Two Philadelphia police officers, having received a radio report describing a Corsica in which two black males were driving, approached the Corsica with weapons drawn when they saw it stopped at a traffic light a few blocks from the bank. The officers ordered Hawkins and Millhouse not to move, but Hawkins disobeyed the order and caused the car to jump a curb and crash into an overpass support. Hawkins and Millhouse fled; Hawkins was arrested shortly thereafter. Millhouse was arrested two weeks later, following his robbery of Citizens Bank.
The police found a handgun on the ground outside the ear and money and two bottles of cognac inside the car. Victims of both robberies identified the car, and the serial numbers of some of the currency found in the car matched the numbers of the bait money. A short distance from the crash site, officers found an East River Bank bag and a one-dollar bill, both containing reddish stains later confirmed to be blood. Similar stains were found inside the car.
At trial, victims of both robberies testified that, at the time of the robberies, Millhouse’s wrist had been bleeding, and DNA analysis showed that the DNA found on the East River Bank bag, one-dollar bill, and inside the car was a complete match with his DNA. The government offered Benjamin Levin, a forensic scientist with the Philadelphia Police Department’s DNA lab, as an expert in DNA testing, to testify both to his determination that Mill-house’s DNA was a complete match -with the DNA collected from the scene and his opinion as to the probability of finding a *870similar match in an unrelated population. Millhouse objected primarily to that part of Levin’s opinion having to do with population statistics and population frequency, arguing that the government failed to disclose these bases for the opinion in its submissions under Federal Rule of Criminal Procedure 16 and that this type of testimony was unreliable and should be excluded under Federal Rule of Evidence 702.
The District Court resolved the parties’ discovery dispute by permitting Millhouse to voir dire Levin outside the presence of the jury so that Millhouse could “explore the basis of [Levin’s] opinion,” and gave Millhouse extra time in which to prepare cross-examination. In its Rule 702 analysis, the Court found that “the whole community relies on this type of information,” and accepted Levin as an expert in forensic DNA analysis and interpretation. (App. at 264, 270.) Levin then testified before the jury that he used a computer program called PopStats and the Pennsylvania State Police Database to calculate the population frequency of Millhouse’s DNA profile. He testified that the population frequency for Millhouse’s DNA profile, representing the number of times that the profile would be found in the population, was 1 in 19.0 trillion for the African-American population, 1 in 18.0 trillion in the Caucasian population, and 1 in 2.53 trillion in the Hispanic population.
The last witness was Special Agent Thomas Perzichilli of the FBI, who witnessed Millhouse’s written confession. In his confession, Millhouse stated: “I was just trying to get money to pay a drug debt so I would not get killed.” (Supp. App. at 314.) The parties had agreed, prior to trial, that the word “drug” would be redacted from the statement and would not come in at trial. Agent Perzichilli, however, included the word “drug” when reading the confession to the jury although the written version, projected onto the jurors’ monitors during the testimony, did not contain the word “drug.” Millhouse moved for a mistrial, arguing that he was unfairly prejudiced by the agent’s testimony. The District Court denied the motion, but included the following instruction in the jury charge:
You will recall that Agent Perzichilli read the Millhouse written statement during his testimony. If Agent Perzichilli’s reading is different from the text of the written statement that has been admitted into evidence and which you will receive, I instruct you to disregard Agent Perzichilli’s deviation. The written copy is the evidence that you will have regarding the statement.
(App. at 379.)
After a five-day trial, the jury convicted Millhouse on all counts, and he was later sentenced to 894 months in prison and a five-year term of supervised release. He now appeals.
II.
A. Testimony of DNA Expert Levin
Millhouse argues that Levin’s testimony as to DNA population frequency should have been excluded both because it was not included in the government’s Rule 16 disclosures and because it was not reliable within the meaning of Federal Rule of Evidence 702. We review the District Court’s decision for abuse of discretion. United States v. Ford, 481 F.3d 215, 217 (3d Cir.2007).
1. Federal Rule of Criminal Procedure 16
It is undisputed that the government’s Rule 16 disclosure as to DNA expert Levin contained no mention of population frequency or population statistics. Assuming, without deciding, that this constituted a *871violation of the government’s Rule 16 obligations, the District Court did not abuse its discretion when it allowed Levin to testify despite the violation.
Rule 16(a)(1)(G) requires the government to produce a written summary of any expert testimony it seeks to offer at trial. If a party fails to comply with this Rule, the court may:
(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the undisclosed evidence; or
(D) enter any other order that is just under the circumstances.
Fed.R.Crim.P. 16(d)(2).
We have held that a new trial is warranted based on the government’s violation of Rule 16 only when the defendant has demonstrated that the district court’s actions resulted in prejudice to him. United States v. Lopez, 271 F.3d 472, 484 (3d Cir.2001). The defendant must show “a likelihood that the verdict would have been different had the government complied with the discovery rules.” United States v. Davis, 397 F.3d 173, 178 (3d Cir.2005) (internal citation and quotation omitted).
Although it may not always suffice, in this case the District Court adequately resolved the parties’ dispute by permitting voir dire of Levin outside of the presence of the jury and giving the defense time in which to prepare for cross-examination. Indeed, the defense went on to conduct a searching and extensive cross-examination, eliciting testimony from Levin regarding the potential under-representation of African-American males in the Pennsylvania State Police database as compared with the actual population in Philadelphia, the potential for contamination of the sample, and Levin’s calculation methods, which were done using the PopStats computer program rather than by hand. The defense also elicited from Levin an admission that, although Millhouse’s DNA was a “complete match,” the DNA could “match others completely” as well. (App. at 277, 294.)
In any event, Millhouse has not demonstrated that he was prejudiced by any purported Rule 16 violation. Most importantly, he does not contest Levin’s testimony that his DNA was a complete match with the DNA recovered from the scene, and the evidence of Millhouse’s guilt as to each of the May 1 robberies was overwhelming.1
2. Federal Rule of Evidence 702
Rule 702 provides that an expert may offer opinion testimony provided that the testimony is (1) based on sufficient facts or data, (2) the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. The District Court serves as a “gatekeeper” for the admissibility of scientific testimony, evaluating, as a preliminary matter, whether the expert’s methodology is scientifically valid and can be properly applied to the facts at issue. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Ford, 481 F.3d at 219-20. We have held that the reliability analysis is “lower than the merits standard of correctness” and is flexible in nature. Pineda v. Ford Motor Co., 520 F.3d 237, 247-48 (3d Cir.2008) (internal quotation omitted); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir.1994) (outlining several factors to be considered).
*872Millhouse argues that Levin’s testimony regarding the process he used in analyzing the DNA demonstrates its unreliability, particularly because the African-American population of Philadelphia was under-represented in the Pennsylvania State Police database and, had it been properly represented, the likelihood of more persons having the same DNA as Millhouse would increase. Each of his concerns as to the DNA evidence, however, goes to the weight and not the admissibility of the evidence. The District Court did not abuse its discretion in finding that Levin’s expert testimony was admissible under Rule 702.
B. Denial of Motion for Mistrial
Millhouse argues that the District Court erred when it denied his motion for a mistrial based on Agent Perzichilli’s reference to a “drug” debt. We review the denial of a motion for a mistrial based on a witness’s allegedly prejudicial comments for abuse of discretion. United States v. Lore, 430 F.3d 190, 207 (3d Cir.2005). Specifically, we examine (1) whether the remarks were pronounced and persistent, creating a likelihood that they would mislead ■ and prejudice the jury, (2) the strength of the other evidence, and (3) curative action taken by the District Court. Id.
We need not dwell on this issue because the relevant factors do not begin to weigh in Millhouse’s favor. First, far from being “pronounced” and “persistent,” Millhouse complains of one word that was not reinforced by what the jurors saw on their monitors; further, the jurors were instructed that the written form was to prevail over any oral reading that differed. Second, even if Agent Perzichilli had not used the word “drug,” evidence that Mill-house admitted being motivated by a “debt” would nonetheless constitute the evidence of motive he suggests was lacking. And, of course, the other evidence against Millhouse was not merely strong— it was powerful.
III.
We will affirm the judgment of conviction.
. Thus, we reject Millhouse’s argument that although the DNA evidence was only directly relevant to the May 1 robberies, the prejudicial effect infected all of the counts.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472348/
|
OPINION
BARRY, Circuit Judge.
Martha Flory appeals from the July 15, 2008, 2008 WL 2782664, order of the District Court granting summary judgment to Pinnacle Health Hospitals. For the reasons that follow, we will affirm.
I.
Because we write solely for the benefit of the parties, we set forth only those facts necessary to our analysis.
Martha Flory worked as a registered nurse assessment coordinator (“RNAC”) for defendant Pinnacle Health Hospitals (“Pinnacle”), where she was responsible for coordinating insurance activities and gathering information regarding extended care patients. In 1986, Flory suffered a back injury that required spinal fusions, and currently suffers from diabetes, sleep apnea, reflux disease, asthma, muscle spasms, ambulatory dysfunction, shortness of breath, hypoglycemic disease, and fainting spells. For health reasons, Flory requested, and Pinnacle granted, a four-hour workday restriction in 1998. In 2004, Pinnacle shifted her hours to the afternoon to give her sufficient time to attend to personal needs in the morning. In addition, Pinnacle permitted Flory to park her vehicle near the hospital’s rear entrance.
From 2000 to 2005, Flory’s supervisors at Pinnacle observed a pattern of absences — Flory would not report to work in inclement weather (i.e., snow, ice, or significant rain) or if inclement weather was forecast. Flory informed her supervisors that, given her medical conditions, she feared slipping on wet surfaces. Her supervisor in 2000, LeAnn Rock, testified that she counseled Flory about her absences but left Pinnacle before initiating disciplinary measures. According to Flory, Rock’s successors, Jennifer Zufall and Nancy Fridy, also did not initiate disciplinary measures so long as Flory provided documentation from her doctor regarding her absences. The record is silent about any discipline prompted by Flory’s absences until 2005, and she received a positive performance evaluation in June 2004.
In February 2005, Flory was warned verbally by her supervisor, Cathleen Timothy, that she had failed or refused to follow instructions and complete a task within her job assignment.1 In response, Flory submitted a doctor’s note requesting that she be excused from work in inclement weather. Flory’s supervisors then proposed several ways in which she could get to work in inclement weather, including clearing her sidewalks, taking a taxi or van from her home to the hospital’s covered entrance, providing her with a bus pass, and/or permitting her to make up for missed work on weekends. Flory rejected each of these proposals.
On March 2, 2005, Pinnacle issued a written warning that noted that Floxy had not been at work five times in two weeks, four times due to inclement weather. The warning instructed Flory to x*eport to wox'k on all scheduled days and, when snow was forecast, to arrange to work alternate hours. After Flory failed to heed those instructions, she received a one-day, unpaid suspension on March 9, 2005.
*875Pinnacle terminated Flory on April 11, 2005. In the conference record explaining that decision, Timothy specified several instances where Flory did not fulfill the requirements of the RNAC position because she failed to make timely determinations as to patients’ Medicare coverage. Timothy wrote, “Martha has repeatedly been counseled on the appropriate procedure for ending Medicare benefits for patients and the necessity of communicating with the team” and that “she has failed to meet that responsibility repeatedly.” (App.84.) Flory also allegedly failed to “maintain a professional attitude and demeanor and communicate effectively” with her coworkers. (Id.) Timothy noted, as well, that Flory called in sick from April 4 to April 8, 2005. Timothy and Glenda Galey, a Pinnacle personnel representative, both stated that the absences noted in the conference record were not a basis for Flory’s termination, but rather served to explain the delay from the last incident of misconduct to her termination.
In addition to challenging her termination, Flory stated in her Complaint and at her deposition that two of her colleagues were earning a higher hourly rate. With respect to one colleague, Laurie Snyder, the evidence demonstrated that when she assumed her role as an RNAC, she maintained her prior hourly salary. With respect to a second colleague, Charlotte Barrett, Flory stated in her deposition that she saw one of Barrett’s paychecks and that Barrett earned a higher salary. Flory presented no other evidence on the subject.
Over the course of her employment and after her termination, Flory filed a total of five complaints alleging disability discrimination against Pinnacle with the Pennsylvania Human Rights Commission (“PHRC”).
II.
Flory filed suit in the District Court, alleging disparate treatment, retaliation, and unequal pay, all on account of her disability, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons.Stat. Ann. § 951 et seq.2 The Court granted Pinnacle’s motion for summary judgment on all three causes of action, concluding that Flory: (1) failed to establish that she was “qualified” for her position as required for her discriminatory discharge and pay claims; and (2) failed to allege a temporal link between her protected activity and her termination as required for her retaliation claim.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review of a grant of summary judgment is plenary. Fed. Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir.2003). We view the underlying facts, and all reasonable inferences arising therefrom, in the light most favorable to the non-movant. Fasold v. Justice, 409 F.3d 178, 180 (3d Cir.2005).
A.
Under the ADA, “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to ... discharge of employees, employee compensation ... and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
*876To establish a prima facie case of disparate treatment, a plaintiff must demonstrate that he or she: (1) has a disability; (2) is a qualified individual; and (3) has suffered an adverse employment action because of that disability. Turner v. Hershey Chocolate USA 440 F.3d 604, 611 (3d Cir.2006). In dismissing this claim, the District Court held that Flory failed to establish that “she could perform the essential function of regularly coming to work” and, therefore, had not demonstrated that she was a “qualified individual.” (App.9.) The Court relied on Smith v. Davis, where we stated that “[a]n employee who does not come to work on a regular basis is not ‘qualified.’ ” 248 F.3d 249, 251 (3d Cir.2001) (citing Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir.1994)). However, in Tyndall, on which Smith relied, the Fourth Circuit was more equivocal: “An employee who cannot meet the attendance requirements of the job at issue cannot be considered a ‘qualified’ individual protected by the ADA.” 31 F.3d at 213 (emphasis added).
Flory has set forth sufficient evidence from which a reasonable factfinder could conclude that she was “qualified” for the RNAC position despite her frequent absences. While Pinnacle maintains a policy against unexcused absenteeism, the record demonstrates that Flory worked for five years — from 2000 to 2005 — under various supervisors without her absences prompting any discipline. Throughout that period, when asked, Flory presented medical evidence of her condition, which apparently satisfied Pinnacle’s requirement that absences be “excused or preapproved by the supervisor/department manager.” (App.85.) Moreover, although we do not have a record of her absences prior to her 2004 performance review, it does not appear that her attendance significantly impacted her performance. By 2004, according to her review, she had “developed skills consistent with the RNAC job requirements.” (App.76.) At the very least, that review does not reference a negative impact on Flory’s work due to absenteeism.
Under the ADA, a qualified individual is a person with a disability who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis added). The record indicates that Pinnacle, despite its official attendance policy, accommodated Flory for five years before initiating disciplinary action against her, albeit for other stated reasons. We need not decide, however, whether the evidence of past accommodation is such that her later absenteeism could also have been addressed by further accommodation. Even if we assume that Flory was not disqualified by virtue of her absenteeism, we nevertheless conclude, for the reasons that follow, that she cannot prevail on her discrimination claim.
Assuming arguendo that Flory has established a prima facie case of discrimination,3 we turn to the now-familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, after a plaintiff has established a prima facie case of disparate treatment, the burden shifts to the defendant to state a legitimate, nondiseriminatory reason for its action. If the defendant meets that burden, the presumption of discriminatory action raised by the prima facie case is rebutted. The plaintiff may respond by showing that the defendant’s proffered reason was a pretext for the disparate treatment.
*877“[M]ost cases turn on the third stage, ie., can the plaintiff establish pretext.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir.1999). To prove that a defendant’s explanation is pretextual, a plaintiff must “ ‘cast[ ] sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication ... or ... allow[ ] the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.’ ” Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.2007) (quoting Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.1994)) (omission in original). A plaintiff may defeat summary judgment by either “ ‘(i) discrediting the employer’s proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.’ ” Id. (quoting Fuentes, 32 F.3d at 764).
Pinnacle submitted evidence that Flory was terminated for willful misconduct, not because of her disability. On that point, the April 11, 2005 conference record regarding her “[o]n-going [p]erformance [deficiency” is illuminating. (App.83.) That report — which precipitated her termination — specified several instances where she did not fulfill the requirements of the RNAC position by failing to make timely determinations as to patients’ Medicare coverage and speaking with hostility to her supervisors. The conference record stated: “A pattern of ineffective communication has been demonstrated. [Flory] has repeatedly been counseled on the appropriate procedure for ending Medicare benefits for patients and the necessity of communicating with the team about the determination. It is [Flory’s] responsibility to ensure that this occurs and she has failed to meet that responsibility repeatedly.” (App.84.)
Even viewing the evidence in the light most favorable to Flory, there is simply no evidence — either direct or circumstantial— from which a factfinder could either disbelieve Pinnacle’s articulated non-discriminatory reasons or conclude that discrimination on account of her disability was a motivating or determinative factor in her termination.4
B.
Flory alleges that two RNACs hired after her were paid at a higher hourly rate “in an attempt to punish or discriminate against [her].” (App.162.) The evidence demonstrates that Snyder, who performed the same job function as Flory, earned an hourly rate greater than Flory’s. No admissible evidence was presented as to Barrett’s hourly wage. See Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir.1996) (noting that only evidence admissible at trial may be considered in ruling on motion for summary judgment).
Flory has not established a prima facie case of disparate pay. Pinnacle contends that Snyder was paid at a rate consistent with her prior employment. Flory offers no evidence as to why such a legitimate, non-discriminatory reason is pretextual.
C.
To establish a prima facie case of retaliation, a plaintiff must show: “(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activi*878ty; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action.” Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir.2002).
Flory’s claim fails as a matter of law. The only evidence she submitted with respect to the causal connection between her protected activity and her termination is the fact that two years prior to her termination, she filed four complaints with PHRC.5 This, without more, is clearly not enough. A span of mere months, let alone years, between the protected activity and the adverse action is insufficient to raise an inference of causation. See Le-Boon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir.2007) (“[A] gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation and defeat summary judgment.”), cert. denied, — U.S.-, 128 S.Ct. 2053, 170 L.Ed.2d 793 (2008); Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir.2007) (five-month time period, without additional evidence, insufficient to raise inference of causation).
III.
For the reasons stated above, we will affirm the order of the District Court.
. Pinnacle has a progressive disciplinary program in which a verbal warning is followed by a written warning, a suspension, and, finally, termination. Cei'tain acts, such as insubordination, may result in immediate termination.
. Claims of employment discrimination in violation of the Rehabilitation Act are governed by ADA standards. See 29 U.S.C. § 794(d). Likewise, the analysis of an ADA claim applies equally to a PHRA claim. See Williams v. Phila. Hous. Auth. Police Dep’t., 380 F.3d 751, 761 n. 6 (3d Cir.2004). Accordingly, we need address only Flory’s ADA claim.
. The parties do not dispute Flory's disability. Moreover, for ease of analysis, we will assume that Flory suffered an adverse employment decision because of her disability.
. Although the District Court did not conduct a McDonnell Douglas burden-shifting analysis, we may affirm on "any grounds supported by the record.” Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000) (en banc).
. The fifth and final complaint filed by Flory was received by Pinnacle on May 27, 2005, more than one month after her termination ance thus, could not have been the basis of any retaliation.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472350/
|
OPINION
PER CURIAM.
In March of 2003, a grand jury in the Western District of Pennsylvania returned a superseding indictment against appellant Gary Lee, Omari Patton, and 21 other individuals. In pertinent part, Count One charged that from 1998 until April 18, 2002, Lee, Patton, and others conspired to distribute more than five kilograms of cocaine, more than one kilogram of heroin, and more than fifty grams of crack cocaine in violation of 21 U.S.C. § 846. Count Fifteen charged Lee with possession with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). In late 2004, Lee, along with Patton, proceeded to trial. The Government filed an Information giving notice of its intent to seek an increased penalty under 21 U.S.C. § 851.1 The jury returned a verdict of guilty as against Lee on both counts. On February 22, 2005, the District Court sentenced Lee to a term of imprisonment of 240 months, to be followed by a five-year term of supervised release. Lee timely appealed.
On April 10, 2007, and while his direct appeal was pending in this Court, Lee filed a motion for anew trial pursuant to criminal Rule 33.2 On September 5, 2008, we *880affirmed Lee’s judgment of conviction and sentence in United States v. Patton, 292 Fed.Appx. 159 (3d Cir.2008). Following issuance of the mandate, the District Court denied Lee’s Rule 33 motion, see Federal Rule of Criminal Procedure 33(b)(1) (noting that if appeal is pending when motion for new trial is filed, “the court may not grant a motion for a new trial until the appellate court remands the case”). Lee appeals.
We will affirm. We have jurisdiction under 28 U.S.C. § 1291. Our standard of review for the denial of a Rule 33 motion is abuse of discretion. United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir.1976). To win a new trial on the basis of newly discovered evidence, a defendant must meet these requirements: (1) the evidence must be newly discovered, that is, discovered since the trial; (2) the defendant must have been diligent in discovering the new facts; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material to the issues involved; and (e) the evidence must be such that, in a new trial, it would probably produce an acquittal. See id.; United States v. Adams, 759 F.2d 1099, 1108 (3d Cir.1985).
Lee was a member of a large-scale drug conspiracy based in Pittsburgh, with ties to New Jersey, New York and Georgia. Government witness Edward Myrick was associated with Lee and developed a source of cocaine in Georgia and that source supplied the conspiracy with hundreds of kilograms of cocaine. In addition to his dealings with Lee and his co-conspirators, Myrick dealt cocaine with Terrance Cole, another Pittsburgher. In April of 2002, a grand jury in the Western District of Pennsylvania returned an indictment against Myrick and others. One month later, Myrick pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin and 5 kilograms or more of cocaine. In October of 2002, the District Court sentenced Myrick to a term of imprisonment of 188 months. In exchange, Myrick became a key witness in the Government’s case against Lee in D.C.Crim. No. 02-cr-00093, and Terrance Cole in D.C.Crim. No. 04-cr-00109.
At his November 2004 trial, Lee premised his defense on the credibility of the Government’s witnesses, in that they had made deals with the Government. Lee sought to establish this defense through the cross-examination of Myrick, among others. Under direct examination by the Government, Myrick admitted that he was currently incarcerated as a result of his conviction for conspiracy to possess with intent to distribute a controlled substance. See N.T., 11/12/04, at 23. He told the jury that, as a result of that conviction, he had received a sentence of 188 months. Id. He then admitted that he had a plea agreement with the United States in which he agreed to cooperate with the Government in exchange for a reduced sentence. Id. at 23-24. Lee’s counsel then cross-examined Myrick and got him to admit that, because he was charged with dealing in excess of five kilograms of cocaine, he was facing a mandatory ten years in jail, and, because he had a prior felony drug conviction, that mandatory minimum of ten years would be doubled to twenty years. Id. at 103-04. After obtaining Myrick’s agreement that he would have qualified as a career offender, id. at 104, Lee’s counsel got Myrick to admit that he could have been sentenced *881to 262 to 327 months imprisonment, id. at 105. He asked, “So you got a break from 262 to 327 down to 188 already, right?,” and Myrick answered, “Yes.” Id. at 106.
In February of 2005, Cole and one co-defendant proceeded to trial. Myrick also testified at this trial. After a five-week trial, the jury convicted the co-defendant but, with regard to Cole, the jury was unable to reach a verdict. Cole’s second trial, conducted in the Fall of 2005, ended in a guilty verdict. (Myrick also testified at this trial.) In the first trial, Myrick told the jury that he was serving a sentence of 188 months in a federal prison, following a guilty plea to conspiracy to distribute cocaine. See N.T., 3/3/05, at 88-90. Explaining that he had entered into a plea agreement with respect to a drug conspiracy, Myrick told the jury that he had agreed to fully cooperate with the Government in the hope that he might receive a sentence reduction. Id. at 89. Myrick also testified that the plea agreement contained a stipulation that the amount of drugs involved in his offense was 50 to 150 kilograms of cocaine. Id. at 90-91. On cross-examination, Cole’s counsel got Myrick to repeat that the Government was going to, or had, limited his participation in the conspiracy to 50 to 150 kilograms of cocaine and no heroin. Id. at 145.
In his Rule 33 motion, Lee argued that Myrick’s testimony at Cole’s first trial constituted newly discovered evidence relevant to his trial. Specifically, he claimed that he did not know, until Myrick was cross-examined at Cole’s trial, that the Government had decided not to file a motion for an enhancement based on Myrick’s prior conviction, see 21 U.S.C. § 851. In rejecting this claim as meritless, the District Court concluded, after reviewing the transcript, that Lee and his counsel were well aware of Myrick’s prior drug conviction and the fact that the Government had chosen not to file an Information for an enhancement based on that prior conviction. Therefore, the evidence was not new.
Lee also contended that the cross-examination of Myrick at the Cole trial demonstrated that Myrick lied in Lee’s trial when testifying about promises made to him by the Government. The District Court rejected this claim as meritless, observing that, in Lee’s trial, Myrick admitted that he had a prior drug conviction, the Government could have doubled his mandatory sentence based on that prior conviction, he was a career offender whose sentence could have been in a substantially harsher advisory guideline range, he expected the Government to file a motion to further reduce his sentence, and he got a deal from Atlanta authorities who promised not to prosecute him, and Myrick’s cross-examination at the Cole trial was essentially and materially the same. It thus did not constitute newly discovered evidence.3
On appeal, Lee has contended that he did not know, until Myrick testified at the first Cole trial, that the Government stipulated with Myrick to a low drug *882amount — 50 to 150 kilograms of cocaine— for sentencing purposes, with no reference to any amount of heroin or to an enhancement for a prior conviction under 21 U.S.C. § 851, and thus that the Government had promised Myrick a particular sentence lower than the 240-month mandatory minimum. See Appellant’s Informal Brief, at 3. According to Lee, Myrick’s testimony on this point at the Cole trial rendered false his testimony at Lee’s trial that no particular sentence had been promised to him. Furthermore, the Government withheld information concerning the low drug amount stipulation in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
We have reviewed Myrick’s testimony at both trials and conclude that the District Court properly exercised its discretion not to grant a new trial under Rule 33. Although we doubt whether the evidence is really new, see Appellee’s Brief, at 27-30, the stipulated drug amount does not have the capacity to produce an acquittal. Lee’s defense counsel thoroughly attacked Myrick’s credibility on cross-examination by questioning him about his expectation, and achievement, of a reduced sentence as a result of his cooperation with the Government. The jury heard ample evidence of a possible motive to falsely implicate Lee. The stipulated drug amount would have added little to the cross-examination, and, in fact, Lee’s counsel may reasonably have chosen to focus on the sentence reduction of 74 to 139 months that Myrick actually received as a result of his cooperation, N.T., 11/12/04, at 105-06, in driving home, in a more concrete way than a drug amount would, the benefit to Myrick of his bargain with the Government. Of. Appellee’s Brief, at 28. In addition, the record plainly supports the District Court’s conclusion that Lee and his defense counsel were awai'e of Myrick’s prior drug conviction and the Government’s choice not to file an Information under section 851(a)(1), and they made use of it at Lee’s trial. See id. at 103-04. We also agree with the District Court that Myrick’s cross-examination in the Cole trial was materially and essentially the same and did not constitute newly discovered evidence.
Lee continues that the Government’s failure to disclose the details of the low drug amount stipulation amounted to a Brady violation. To establish a violation of due process under Brady, 373 U.S. 83, 83 S.Ct. 1194, a defendant must show not only that the evidence was suppressed, but also that it was material and favorable. Id. at 87, 83 S.Ct. 1194. Evidence is material if there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct.3375, 87 L.Ed.2d 481 (1985). The question is whether, in the absence of the evidence, the defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Again, even assuming that the stipulated drug amount was withheld, Lee’s trial was not rendered unfair by its absence, in view of his counsel’s thorough cross-examination of Myrick on the subject of Myrick’s achievement of a significantly reduced sentence in exchange for his cooperation. Although evidence affecting a witness’s credibility can be material to guilt or innocence, see United States v. Biberfeld, 957 F.2d 98, 103 (3d Cir.1992), with Myrick’s direct and cross-examination, Lee’s jury was aware that Myrick received a significant sentencing benefit from his cooperation deal with the Government. Accordingly, there was no due process violation.
For the foregoing reasons, we will affirm the order of the District Court denying the Rule 33 motion for a new trial. *883Appellant’s motion for appointment of counsel on appeal is denied.
. Section 851 of title 21 provides in pertinent part:
(a) Information filed by United States Attorney
(1) No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon....
21 U.S.C. 851(a)(1).
. Rule 33 provides:
(a) Defendant’s Motion. Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.
(b) Time to File.
(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not *880grant a motion for a new trial until the appellate court remands the case.
(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty.
Fed. R.Crim. Pro. 33 (2008).
. The District Court also addressed an additional piece of "new” evidence. During the Cole trial, Cole’s defense counsel questioned Myrick about the conspiracy count to which he had pleaded guilty, which according to counsel, included an allegation that there were eleven deaths associated with the heroin part of the conspiracy, and that by pleading guilty to a conspiracy involving only cocaine, Myrick was avoiding a mandatory life sentence. Since the relevant indictment made no mention of a heroin conspiracy causing death, the District Court concluded that Cole’s defense counsel’s mistaken characterization of the conspiracy charge was not material evidence capable of producing an acquittal in a new trial. Lee has not pursued this issue in his brief on appeal and we thus consider it waived. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472352/
|
OPINION
PER CURIAM.
Elliot Bates appeals from an order of the District Court that dismissed his amended civil rights complaint with prejudice. The District Court’s decision rests on the faulty premise that Appellees, most of whom had a role in Bates’ involuntary commitment, are entitled to absolute immunity from suit in federal court pursuant to state law. Nonetheless, we will affirm the District Court’s order dismissing the complaint against Monmouth Ocean Hospital Service Corporation (“Monoe”), the Jackson Township Police Department (“Jackson Township”)1, the State of New Jersey (“the State”), Kimball Medical Center (“Kimball”) and St. Barnabas Health Care System (“St. Barnabas”) (collectively, “the Medical Facilities”), albeit on alternative grounds.
I.
In November 2008, Bates filed an amended complaint against Kimball, St. Barnabas, Monoe, Jackson Township, and the State (collectively, “Appellees”), alleging that the circumstances of his involuntary civil commitment deprived him of certain constitutional rights. Specifically, Bates alleged that “nine Jackson Township police cars along with one civilian car with a social worker” arrived at his residence and requested that he come with them to Kimball. He alleged that he was taken from his house “against [his] will,” that he was detained for eight days at both Kim-ball and St. Barnabas, and that he was “forced to take medication, being told all alone [sic], if you resist we will write you up as uncooperative and you will be here longer.”
The District Court granted Monoc’s unopposed motion to dismiss the complaint for failure to state a claim. Thereafter, the District Court granted Jackson Township’s unopposed motion for summary judgment, granted Kimball’s unopposed motion (treated by the Court as including St. Barnabas) to dismiss, and dismissed the complaint as against the State. The District Court determined that Appellees “are immune from liability because [N.J.S.A. 30:4-27.7] protects law enforcement officers and mental health professionals who, in good faith, transport or detain an individual for mental health purposes.” 2 The District Court also cited to Bates’ failure to allege bad faith on the part of any of the Appellees, as well as his failure to “assert a theory of liability against the State of New Jersey.” Bates appealed.
*885Bates, Jackson Township, Monoc, and the Medical Facilities all filed briefs. The State filed a motion to be excused from filing a brief and for summary affirmance.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of the District Court’s order. See McGovern v. Philadelphia, 554 F.3d 114, 115 (3d Cir.2009) (standard of review for order granting motion to dismiss); Williams v. Beard, 482 F.3d 637, 639 (3d Cir.2007) (standard of review for order granting summary judgment motion).
“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) (quotation omitted). Summary judgment is proper where “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 a judgment as a matter of law,” Fed.R.Civ.P. 56(c), and we may affirm the District Court on any grounds supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000). As always, we liberally construe the pleadings of pro se litigants. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam).
III.
42 U.S.C. § 1983 provides a cause of action against “persons” who, acting under color of state law, deprive a citizen or citizens of the rights, privileges and immunities secured by the Constitution and federal law. “In a typical § 1983 action, a court must initially determine whether the plaintiff has even alleged the deprivation of a right that either federal law or the Constitution protects.” Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir.2000). Instead of performing an inquiry into the constitutionality of Appellees’ actions under federal law, the District Court simply held that “all defendants are immune from liability” pursuant to a state statute: N.J.S.A. 30:4-27.7. This was error.
A state statute that creates immunity from suit under state law does not define the scope of immunity from suit under federal law. See Bolden v. SEPTA, 953 F.2d 807, 818 (3d Cir.1991) (en banc) (citing Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990)). In Howlett, the Supreme Court rejected the application of “a Florida law that extended immunity from state court actions under § 1983 not only to the state and its arms, but also to municipalities, counties, and school districts otherwise subject to suit under § 1983.” Id. The Howlett Court recognized that a State “may not evade the strictures” of federal law or the Constitution “by denying jurisdiction to a court otherwise competent.” 496 U.S. at 382, 110 S.Ct. 2430. Thus, like in Howlett, here we conclude that
[i]f we were to uphold the immunity claim in this case, every State would have the same opportunity to extend the mantle of sovereign immunity to “persons” who would otherwise be subject to § 1983 liability. States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People.
Id. at 383, 110 S.Ct. 2430.
Accordingly, we conclude that the District Court erred in finding that Appellees are immune from suit under N.J.S.A. 30:4-27.7, and dismissing Bates’ amended complaint on that basis. We turn now to an individual assessment of the prospective liability of each Appellee to determine whether the District Court nevertheless reached the right result.
*886
Claims against MONOC
To demonstrate that Bates is not entitled to relief on appeal, Monoc relies heavily on the fact that he did not oppose its motion to dismiss. It also argues that it “is not a state actor subject to liability for the constitutional allegations [Bates] apparently pursues.” Most persuasive, however, is Monoc’s indication that it is never specifically mentioned outside the caption of Bates’ amended complaint. Indeed, Bates refers to Monoc only by implication in describing his transport from one medical facility to the next, and in complaining that he was unjustly “billed for the ambulance service which delivered me from Kimball Hospital to St. Barnabas.”
In short, the allegations in Bates’ amended complaint fail to state a claim of a constitutional violation that is plausible on its face as against Monoc. See Iqbal, 129 S.Ct. at 1949. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 1950 (emphasis added). Bates’ amended complaint is devoid of factual allegations concerning Monoc that would support a claim under § 1983. Therefore, it was proper for the District Court to grant Monoc’s motion to dismiss for failure to state a claim.
Claims against Jackson Township
Jackson Township’s sole argument on appeal is that it is entitled to immunity from suit under N.J.S.A. 30:4-27.7. As described above, we reject this argument. Nevertheless, Bates’ pleadings are insufficient to survive summary judgment.
While a municipality may be liable for establishing a policy or custom that results in a constitutional violation, see Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir.2007), the allegations in Bates’ amended complaint do not even imply the existence of such a policy or custom in Jackson Township. Moreover, because he did not oppose Jackson Township’s motion for summary judgment, Bates has failed show the existence of a genuine issue of a material fact or that he is entitled to judgement as a matter of law. As a result, it was proper for the District Court to grant Jackson Township’s motion for summary judgment.
Claims against the State of New Jersey
As noted above, the State has moved for summary affirmance of the District Court’s order. In the State’s motion, it argues that “Bates does not allege a theory of liability against the State of New Jersey,” that it should be excused from filing a brief, and the District Court’s order dismissing Bates’ case in its entirety should be affirmed. We will affirm, albeit for reasons of sovereign immunity.
The Eleventh Amendment immunizes states from suits in law or equity. See Cory v. White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982); M.A ex rel. E.S. v. State-Operated School Dist. Of City of Newark, 344 F.3d 335, 344 (3d Cir.2003).3 “[T]he Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not *887be raised in the trial court.” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); see also Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353, 365 (3d Cir.1997). We conclude that the District Court lacked jurisdiction over Bates’ claims against the State and should have dismissed those claims for that reason.4
Claims against the Medical Facilities
The Medical Facilities’ brief argues that “the record below undeniably demonstrates that [they] acted in good faith and, as such, were entitled to immunity from suit.” As already explained, neither the Medical Facilities, nor any other Appellee, is entitled to absolute immunity from suit under § 1983 pursuant to N.J.S.A. 30:4— 27.7. Instead, the District Court should have granted the Medical Facilities’ motion based on the other argument that they made below: “[a]t no time were [the Medical Facilities] acting under color of [state law] but as private health care facilities.”
To state a valid claim under § 1983 against the Medical Facilities, Bates must show not only that they violated his federal rights but that they did so while acting under color of state law. See Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.1995); see also American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (“the under-the-color-of-state-law element ... excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful’ ”) (quotation omitted). Moreover, “[t]he color of state law element is a threshold issue; there is no liability under § 1983 for those not acting under color of law.” Groman, 47 F.3d at 638. The allegations in Bates’ amended complaint are wholly insufficient, to carry his burden of demonstrating that the Medical Facilities acted under color of state law in conjunction with his involuntary commitment, and the District Court should have granted the Medical Facilities’ motion on this basis.
IV.
For the reasons discussed in this opinion, we will affirm the District Court’s order dismissing Bates’ amended complaint. The State of New Jersey’s motion for summary affirmance is denied.
. We treat a municipality and its police department as a single entity for the purposes of § 1983 liability. See Bonenberger v. Plymouth Township, 132 F.3d 20, 25 n. 4 (3d Cir.1997).
. More specifically, N.J.S.A. 30:4-27.7 immunizes state law enforcement officers, screening service or short-term care facility staff persons, emergency services or medical transport persons, and others who, "acting in good faith ... [take] reasonable steps to take custody of, detain or transport an individual for the purpose of mental health assessment or treatment." As defined in the statute, " 'emergency services or medical transport person' means a member of the first aid, ambulance, rescue squad or fire department, whether paid or volunteer, auxiliary police officer or paramedic." N.J.S.A. 30:4-27.7(b).
. "Congress may validly abrogate the States’ sovereign immunity only by doing so (1) unequivocally and (2) pursuant to certain valid grants of constitutional authority." Horne v. Flores, — U.S.-, 129 S.Ct. 2579, 2589 n. 1, 174 L.Ed.2d 406 (2009). It has not done so with respect to § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Nor do the other exceptions to Eleventh Amendment immunity apply; the State has not consented to suit, and Bates does not raise any claims "against individual state officials for prospective relief to remedy an ongoing violation of federal law.” M.A. ex rel. E.S., 344 F.3d at 345.
. Based on our liberal reading of Bates' amended complaint and responsive pleadings, and in light of the allegations made in his original complaint and on appeal, it appears that Bates' claims against the State are essentially claims of selective enforcement of the criminal code by the State police, which Bates imputes to the State.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472354/
|
OPINION
PER CURIAM.
Yogeshwar Seeraj petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his petition.
I.
Seeraj, a citizen of Guyana, entered the United States unlawfully in 1995. Soon thereafter, he was served with a Notice to Appear charging him with removability as an alien not in possession of a valid unexpired immigrant visa or other valid entry document. See INA § 237(a)(1)(A) [8 U.S.C. § 1182(a)(7)(A) ]. The government later charged him with removability on an additional ground — that he had falsely represented himself to be a United States citizen; specifically, the government claimed that, on two prior occasions, Seeraj had attempted to obtain a United States passport based on a fraudulent identity. See INA § 237(a)(3)(D) [8 U.S.C. § 1227(a)(3)(D) ].
At his removal hearing, Seeraj admitted the allegations against him, but sought to adjust his status on the ground that he was the beneficiary of an approved 1-130 petition filed by his father, who is a lawful permanent resident. See INA § 245(i) [8 U.S.C. § 1255(1) ]. The Immigration Judge (“IJ”) determined, however, that he was ineligible to adjust his status because he was inadmissible under INA § 245(a) for having falsely represented himself as a United States citizen in violation of INA § 237(a)(3)(D) [8 U.S.C. § 1227(a)(3)(D) ]. The IJ further found that there were no waivers available to Seeraj for this particular ground of inadmissibility. By order entered August 8, 2008, the BIA affirmed, without opinion, the IJ’s decision and ordered Seeraj to voluntarily depart the United States.
Seeraj now petitions for review of the BIA’s order.
*889II.
We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C. § 1252(a)(1). When, as in this case, the BIA adopts the decision of the IJ without opinion, we review the IJ’s decision as the final agency decision. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003). We review Seeraj’s legal and constitutional questions de novo, but defer to the agency’s reasonable interpretations of statutes it is charged with administering. Silva-Rengifo v. Attorney General, 473 F.3d 58, 63 (3d Cir.2007).
Seeraj first argues that the government failed to provide sufficient evidence to sustain the charges against him. Seeraj admits that he conceded removability on both of the charges, but argues that the IJ “cannot simply rely upon an alien’s admissions in proceedings as a basis to sustain the charges.” (Petitioner’s Br. 8.) Contrary to Seeraj’s contention, however, the applicable regulations clearly permit the IJ to determine removability on the basis of an alien’s admissions. Specifically, 8 C.F.R. § 1240.10, which sets forth the procedures governing removal hearings, provides as follows:
If the respondent admits the factual allegations and admits his or her removability under the charges and the immigration judge is satisfied that no issues of law or fact remain, the immigration judge may determine that removability as charged has been established by the admissions of the respondent.
8 C.F.R. § 1240.10(c). Thus, once Seeraj admitted his removability, the IJ was free to conclude that the government had met its burden. See, e.g., Selimi v. INS, 312 F.3d 854, 860 (7th Cir.2002) (rejecting alien’s claim that INS failed to establish excludability because alien conceded that he was excludable); Florez-de Solis v. INS, 796 F.2d 330, 333 (9th Cir.1986) (explaining that the government’s burden of proving that an alien is deportable is satisfied when the alien concedes deportability). Seeraj then bore the burden of establishing his eligibility for adjustment of status. Because Seeraj failed to do so, the IJ correctly determined that he was removable as charged.
Next, Seeraj contends that the BIA violated his right to due process by affirming the IJ’s decision without opinion. This Court has previously held, however, that the streamlining regulations that allow the BIA to affirm an IJ’s decision by issuing an order without a separate opinion do not violate due process.1 Dia v. Ashcroft, 353 F.3d 228, 234-45 (3d Cir.2003) (“The fact that the ... decision is not accompanied by a fully reasoned BIA decision may be less desirable from the petitioner’s point of view, but it does not make the process constitutionally unfair.”)
Accordingly, we will deny the petition for review.
. Pursuant to 8 C.F.R. § 1003.1(a)(7)(h), a single member of the BIA may affirm the IJ's decision without authoring a separate opinion if:
[T]he Board Member determines that the result reached in the decision under review was correct; that any errors in the decision under review were harmless or nonmaterial; and that (A) the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or (B) the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472355/
|
OPINION
BARRY, Circuit Judge.
On May 17, 2007, we granted a certificate of appealability as to two of Carl Rice’s federal habeas claims, each of which alleged a violation of his Sixth Amendment right to the effective assistance of counsel. Rice argues that counsel rendered ineffective assistance when he failed to file a direct appeal and when he failed to properly advise Rice regarding the possibility of obtaining a reduction of his sentence, thereby inducing Rice to plead guilty. We will affirm.
I.
Rice pled guilty to third-degree murder and other related charges pursuant to a plea agreement in which he agreed to a sentence of 27 to 54 years in prison in return for the Commonwealth’s agreement to drop a first-degree murder charge. Rice did not file a direct appeal, but instead filed a PCRA petition in which he apparently argued, although it is less than clear, that counsel was ineffective because *891he failed to file a post-sentence motion for modification of the sentence, failed to advise Rice that his guilty plea could result in deportation,1 and failed to file an appeal in a timely manner. The PCRA Court denied Rice’s petition, but the Superior Court remanded for a hearing as to “whether [Rice] indeed requested that counsel file a direct appeal, whether counsel ineffectively failed to file that appeal, and for consideration of any other issues raised by [Rice].” (App. at 87.)
The PCRA Court held a two-part hearing at which Rice was represented by counsel. At the first part of the hearing, on February 23, 2004, the Court heard the testimony of plea counsel, who testified that an intermediary asked him to seek reconsideration of Rice’s sentence and that he failed to do so. Counsel was unelear as to whether Rice himself requested him to file an appeal or a post-sentence motion. Rice then testified that he was seeking only reconsideration of his sentence and that he was not seeking to withdraw his plea. Rice did not ask that his appellate rights be reinstated and counsel confirmed with Rice, on the record, that the only relief Rice was seeking was reconsideration of his sentence.
The PCRA Court then scheduled an evidentiary hearing “with regard to [the] motion to reconsider or modify the sentence,” to be held the following week. (App. at 31.) At that hearing, on February 27, 2004, Rice testified that he understood that he agreed to 27 to 54 years, but that “I understood this to mean ... maybe by the mercy of the Court, the mitigating factors, maybe the plea would have been 20 to 40.” (App. at 34.) Rice testified that plea counsel never told him that the sentence could not be modified from the agreed-upon 27 to 54 years, and did tell him “he would file a motion to reconsider the sentence in five years or something like this.” (App. at 35.) On cross-examination, Rice confirmed that he had committed the crimes to which he had pled guilty and had testified truthfully as to his understanding of his plea at the plea colloquy. He stated that the plea to third degree murder was “greatly appreciated” (App. at 34) because it ensured that he would not face the death penalty. In closing, counsel stated: “[Petitioner is not attempting to withdraw his plea. He is not saying that he is not guilty. What he is saying is that he did not understand that it was binding that he would get 27 to 54 years incarceration.” (App. at 41.)
The PCRA Court then determined:
I think, Mr. Rice, I think he understood exactly what was going on at the time of his plea; was thankful that he avoided both the death penalty and a life sentence; that this is a clear case of change of heart, hindsight, second-guessing, whatever, disappointment in some way subsequent to the time, although he was thoroughly satisfied, I do believe, at the time of the event when he received the absolute benefit of his bargain, which was the 27 to 54 years. (App. at 41.)
On appeal from this decision, Rice took a different approach, arguing that the PCRA Court should have allowed him to withdraw his guilty plea because it was induced by counsel’s erroneous sentencing advice. The Superior Court found that Rice had abandoned any claim of ineffective assistance as to the filing — or non-filing — of a direct appeal. The Court went on to discuss, in some detail, the applicable law and, in much detail, the record that it found supported the PCRA Court’s conclusion that the requisites for a valid plea had been satisfied in the written and oral plea colloquies. The Court thereupon found that
*892[t]he record supports the PCRA court’s conclusion that Appellant chose to enter the plea, and, after he was sentenced in accordance with the agreement in exchange for the withdrawal of first degree murder charges, he was disappointed with the negotiated sentence. “Our law does not require that a defendant be totally pleased with the outcome of his decision to plead guilty, only that his decision be voluntary, knowing and intelligent.” [Com. v. ] Pollard, 832 A.2d [517] at 524 [ (P.Super.2003) ] (quoting Commonwealth v. Baldwin, 760 A.2d 883, 885 (Pa.Super.2000), appeal denied, 566 Pa. 634, 781 A.2d 138 (2001)).
(App. at 95). Concluding that Rice’s negotiated guilty plea was validly entered, the Court rejected the ineffective assistance of counsel claim finding that counsel was not ineffective for failing to raise a meritless claim. The Pennsylvania Supreme Court denied review.
In his habeas petition, Rice alleged that he was deprived of his Sixth Amendment right to effective assistance of counsel not because counsel failed to file an appeal, but because counsel failed to file a post-sentence motion despite the fact that Rice “specifically asked plea counsel to file a motion for reconsideration of his sentence within the 10-day window permitted for doing so.” (App. at 51.) Rice alleged, as well, that counsel did not explain to him that “[he] was pleading guilty for a specific sentence,” and that “[his] youth at the time of the plea, as well as his poor education, combined with plea counsel’s ineffectiveness rendered his guilty plea unknowing and involuntarily entered.” (App. at 51-52.)
By order dated November 5, 2006, the District Court approved and adopted the Report and Recommendation of the Magistrate Judge, and denied the habeas petition. In the Opinion adopted by the Court, the Magistrate Judge recognized that the terms “motion for reconsideration” and “appeal” were used interchangeably by counsel at the PCRA hearing. (App. at 6, n.l). Somewhat curiously, the Magistrate Judge continued to use the terms interchangeably, calling them in his Opinion “appellate rights,” and concluding that habeas relief was not warranted because Rice’s “state appellate rights” had effectively been reinstated “through two PCRA evidentiary hearings and full appellate review.” (Id. at 12). He concluded as well that the Superior Court’s ruling as to the voluntariness of Rice’s plea was “well in accord with federal law,” and why, and that to accept Rice’s argument that plea counsel’s advice — or lack thereof — induced his guilty plea because Rice believed that he could file a motion for reconsideration “would require the Court to disregard outright all the statements made in open court, on-the-record and in direct response to questions about [Rice’s] understanding of the consequences of his plea.” (App. at 14,16.)
We granted a certificate of appealability as to two issues: (1) whether counsel rendered ineffective assistance when he failed to file a direct appeal; and (2) whether Rice’s guilty plea was induced by plea counsel’s failure to properly advise him regarding the possibility of obtaining a reduction of his agreed-upon sentence under Pennsylvania law.2
II.
We exercise plenary review of the decision of the District Court denying, without an evidentiary hearing, Rice’s habeas petition. Thomas v. Horn, 570 F.3d 105, 113 *893(3d Cir.2009). The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254, and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
A. Ineffective Assistance for Failure to File an Appeal
We granted a certificate of appealability as to defense counsel’s failure to file a direct appeal. In light of the full record now before us, we need not have done so. Rice repeatedly testified at the PCRA hearing that the only relief he was seeking was modification of his sentence by the sentencing judge, thus essentially admitting that counsel was not ineffective for not filing an appeal. This was confirmed in Rice’s brief on appeal from the denial of the PCRA petition which stated: “It was established [at the PCRA hearing] that the appellant did not wish to appeal his conviction, but that he desired only a modification of sentence.” (App. at 150.) The issue, if issue it be, never went any further, and the Superior Court concluded that Rice “abandoned any claims related to counsel’s failure to file a direct appeal.” (App. at 91 n.4). We agree.
B. Guilty Plea Induced by Ineffective Assistance of Counsel
We may not grant relief as to a claim that was adjudicated on the merits in state court proceedings unless that adjudication resulted in a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law,” or resulted in a decision that was based on an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d). The state courts’ factual findings are presumed to be correct unless the presumption is rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
In cases where a defendant claims that he was induced to plead guilty based on the ineffective assistance of counsel, the defendant must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). We have held that a defendant “must make more than a bare allegation that but for counsel’s error he would have pleaded not guilty and gone to trial.” Parry v. Rosemeyer, 64 F.3d 110, 118 (3d Cir.1995), superseded by statute on other grounds as stated in Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.1996).
Rice alleges that, but for counsel’s failure to inform him that his sentence was not modifiable, he would have pleaded not guilty and that “part of the reason he entered the plea was because he felt the sentence could be revisited and shortened at a later point.” (Appellant’s Br. at 41). During the PCRA hearing, he specifically and repeatedly disclaimed any interest in withdrawing his guilty plea, and confirmed that he truthfully answered all of the trial court’s questions about his understanding of his plea during the plea colloquy. Moreover, he did not testify that any advice given by plea counsel before entry of his guilty plea induced him to plead guilty, but only that plea counsel told him, at some point, that he would file a motion in five years and that the sentence, at that point, could be reduced. On appeal from the denial of the PCRA petition, however, he alleged that “there is a reasonable probability that he would have gone to trial had he been fully cognizant of the sentence to which he was agreeing,” (App. at 132), although he offered nothing to support that allegation.
We have discussed in some detail the proceedings before the PCRA Court and the Superior Court and will not reprise that discussion here. Suffice it to say that the District Court correctly concluded that the state courts’ adjudication of this claim on the merits was not “contrary to” or an *894“unreasonable application of clearly established Federal law,” nor did it result in a decision that was based on an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d).
III.
We will affirm the order of the District Court.
. Rice is a U.S. citizen, and later stated that the reference to deportation was a mistake.
. It appears that the complete state record was not before the Magistrate Judge or the District Court when they ruled or before us when we granted a certificate of appealability. It is before us now.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472358/
|
OPINION
PER CURIAM.
Petitioner, Xiu Ju Wang, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny her petition.
I.
Wang is twenty-two years old and is a citizen of China. Wang entered the United States unlawfully in October 2005 and was placed in removal proceedings. Wang applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on the ground that she would face persecution in China on account of her opposition to the government’s policies toward Falun Gong.
*895At her removal hearing, Wang testified that, before coming to the United States, she had worked as a proofreader in a printing shop in China. Wang lived in a dormitory at the shop. According to Wang, on April 30, 2005, her boss asked her to proofread a piece of Falun Gong propaganda. Wang testified that she agreed to proofread the article as instructed even though she does not practice Falun Gong.
Wang further testified that, later that night, after she had completed her work and had retired to her room, Chinese authorities raided the shop. Wang explained that she was able to escape through a back door, but left behind all of her belongings, including a personal diary in which she had voiced her opposition to the government’s treatment of Falun Gong practitioners. After fleeing the print shop, Wang was afraid to go home, so she went to stay with a relative. Wang later learned that five of her colleagues from the print shop had been arrested and that the shop had been sealed off by the police. Wang testified that, two days after the raid, police appeared at her parents’ home with a warrant for her arrest. According to Wang, authorities later returned on several occasions looking for her. In support of her application, Wang submitted several affidavits, including an affidavit from her cousin who also worked at the printing press. Wang claimed that if she were forced to return to China, she would be arrested for the opinions she expressed in her diary.
At the end of the hearing, the IJ asked Wang’s attorney to clarify the grounds on which Wang was seeking asylum. Counsel explained that Wang feared persecution on account of her political opinion, that is, her opposition to the government’s policies toward Falun Gong. Counsel further explained that the government learned of Wang’s political opinion through the diary that they confiscated during the raid. The IJ then pointed out that Wang failed to mention the diary — the very item that put her in danger — in her initial application, and asked Wang to explain why she would omit such a crucial piece of the story. Wang stated that she did not realize that it was important to mention the diary in the application.
Following the hearing, the IJ found that Wang’s testimony was not credible, primarily because of her failure to mention the diary in her initial application. The IJ also doubted Wang’s theory that the police might have been searching for Wang due to her employment at the printing press alone — regardless of the existence of the diary — because her cousin, who also worked at the press, was never contacted by the police. For these reasons, the IJ concluded that Wang failed to establish a well-founded fear of future persecution and denied her application for asylum. The IJ also denied her applications for withholding of removal and relief under the CAT. The BIA affirmed. Wang now petitions for review of the BIA’s order.1
II.
The primary issue presented by this appeal is whether the BIA erred in upholding the IJ’s adverse credibility determination. When, as in this case, the BIA substantially relies on an IJ’s adverse credibility determination, this Court “must look to both decisions in order to satisfy [its] obligation under 8 U.S.C. § 1252(b) to review the administrative decision meaningfully.” He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). An adverse credibility finding is reviewed *896for substantial evidence and must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). Thus, we must afford the IJ’s adverse credibility finding “substantial deference so long as the findings are supported by sufficient cogent reasons.” Butt v. Gonzales, 429 F.3d 430, 434 (3d Cir.2005).
Because Wang filed her application for relief after the enactment of the REAL ID Act of 2005, the IJ’s credibility determination is governed by the Act. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Under the REAL ID Act, an IJ may base her credibility determination on observations of the applicant’s demeanor, the plausibility of the petitioner’s story, and on the consistency of the petitioner’s statements. See INA § 208(b)(1)(B)(iii); Gabuniya v. Attorney General, 463 F.3d 316, 322 n. 7 (3d Cir.2006).
As noted above, in this case, the IJ found that Wang’s failure to mention the diary in her application significantly undermined the credibility of her story because, in the IJ’s view, it was the lynchpin of her claim; without the diary, the police would have no reason to believe that Wang was opposed to the government’s Falun Gong policies. Upon review, the BIA determined that there was no clear error in the IJ’s adverse credibility finding.2 Based on our review of the record, we cannot say that a reasonable adjudicator would be compelled to conclude to the contrary. See Berishaj v. Ashcroft, 378 F.3d at 322. Wang’s failure to mention the diary in her application created a sufficiently significant inconsistency to support the IJ’s adverse credibility finding. See Butt, 429 F.3d at 434. Although Wang argues on appeal that “the Immigration Judge should not make an adverse inference on Wang’s credibility merely because she supplied additional information during her hearing to supplement information on her 1-589,” (Petitioner’s Brief 17-18), we agree with the BIA and IJ that this omission was rather significant in light of the relative weakness of Wang’s case.
Given that the BIA’s and IJ’s adverse credibility determinations are supported by sufficient, cogent reasons, we will defer to their findings. See Butt, 429 F.3d at 434. We therefore agree that Wang failed to establish eligibility for asylum. Furthermore, because Wang’s claims for withholding of removal and relief under the CAT are based on the same evidence as her asylum claim, we conclude that substantial evidence supports the denial of these claims as well.
We will deny the petition for review.
. We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C. § 1252(a).
. Although the BIA stated that the IJ also found that Wang’s story was implausible, we read the IJ’s opinion as reserving decision on that basis. (Oral Decision, March 29, 2007, 15-16.)
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472359/
|
OPINION OF THE COURT
JORDAN, Circuit Judge.
Latacha Renee Thompson appeals the judgment of conviction, entered against her by the United States District Court for the Middle District of Pennsylvania, for interstate transportation in aid of drug trafficking, in violation of 18 U.S.C. § 1952(a)(3). Thompson alleges that police violated the Fourth Amendment by stopping and searching her car without reasonable suspicion. Because the police did have reasonable suspicion, we will affirm.
I. Background
On May 14, 2007, Keith Kierzkowski, a special agent in the Harrisburg, Pennsylvania office of the Drug Enforcement Administration (“DEA”), received a call from a confidential informant. The informant, who had provided Kierzkowski with reliable information in the past, told him that Thompson and Duwanna Robinson planned to drive to Georgia in a rental car to purchase cocaine. The informant also told Kierzkowski when and where Thompson planned to pick up Robinson.
Kierzkowski and two other DEA agents went to the location specified by the informant and observed Thompson pick up Robinson in a rental car. They followed the car as it made various stops but, eventually, Thompson sped up and Kierzkowski and his fellow agents lost sight of her vehicle. Knowing the road Thompson had turned, onto, Kierzkowski radioed ahead to Pennsylvania State Trooper Tony Todaro, explained the situation, and asked him to pull the vehicle over.
Todaro stopped Thompson’s vehicle for speeding and issued her a warning. During the course of the stop, Todaro received Thompson’s permission to search the rental car. He found $25,000 in currency packaged in 25 individual bundles. The *898currency was seized, and Thompson was permitted to leave.
On June 13, 2007, the informant called Kierzkowski and told him that Thompson and a man named Clifford Bradley had rented a ear at the Harrisburg Airport and driven it to Philadelphia, where they had boarded a flight to Georgia. The informant also said that Thompson and Bradley would be returning to either Philadelphia or Harrisburg by train with a large quantity of cocaine. After speaking with the informant, Kierzkowski contacted rental car companies in Harrisburg and confirmed that Thompson and Bradley had rented a car. He also verified that they had taken a flight from Philadelphia to Atlanta, Georgia, and he located the rental car they had parked at the Philadelphia airport.
Kierzkowski coordinated surveillance of the vehicle, and, on June 15, he observed Thompson and Bradley return to it, place luggage in the trunk, and leave the airport. He then followed the vehicle from the airport and eventually radioed Todaro and another state trooper, Brian Overcash, with the information he had about Thompson and Bradley. The troopers waited for the car on the Pennsylvania Turnpike and pulled it over after determining that it was going 75 miles an hour in a 65 mile an hour zone. Overcash approached the vehicle, which was being driven by Thompson, and informed the occupants that they had been stopped for speeding.
After issuing Thompson a warning for speeding, Overcash asked if Thompson and Bradley would answer a few questions. At that point, Todaro approached and Thompson, who recognized Todaro from their previous encounter, became agitated. The troopers asked for permission to search the car. Thompson and Bradley denied their request. The troopers then called a detective with a drug dog to do an exterior scan of the vehicle. The detective arrived within minutes, and, during the exterior scan of the vehicle, the dog alerted to the scent of drugs. The troopers handcuffed Thompson and Bradley, placed them in the back of the police vehicle, and applied for a warrant to search the rental car. The warrant issued and police found eight ounces of cocaine in the car.
On June 20, 2007, a grand jury returned an indictment charging Thompson and two co-defendants with conspiracy and possession with intent to distribute 50 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Thompson brought a motion to suppress the evidence found during the search of the rental car on June 15, 2007, arguing that the police lacked reasonable suspicion to stop her vehicle and perform an exterior scan with a drug dog. After a hearing, the District Court denied Thompson’s motion to suppress, and she agreed to plead guilty to two counts of interstate travel in aid of drug trafficking, in violation of 18 U.S.C. § 1952(a)(3). In her plea agreement, Thompson preserved the right to appeal the District Court’s denial of her motion to suppress.
Thompson was sentenced to 51 months in prison, 26 months for Count 1 and 25 months for Count 2, with the terms to run consecutively. She filed a timely appeal of her conviction, and, on appeal, renews her argument that the troopers lacked reasonable suspicion to stop her car and conduct an exterior scan with a drug dog.
II. Discussion1
The Fourth Amendment permits police officers to stop vehicles briefly for further *899investigation when they have reasonable suspicion that criminal activity may be afoot. United States v. Silveus, 542 F.3d 993, 999 (3d Cir.2008). During these brief investigatory stops, officers may use dogs trained to detect narcotics. See Illinois v. Caballes, 543 U.S. 405, 410, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (“A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment”).
In determining whether officers had reasonable suspicion, we look at the totality of the circumstances from the officers’ viewpoint and ask whether they had a particularized and objective basis for suspecting that the individuals they stopped were engaged in criminal activity. Mathurin, 561 F.3d at 174. When officers conduct an investigatory stop based on information provided by another officer, our inquiry focuses on whether the officer who provided the information had reasonable suspicion. United States v. Brown, 448 F.3d 239, 248 (3d Cir.2006). When an investigative stop is made primarily on the basis of a tip from an informant, we consider both the reliability of the informant and the content of the tip in determining whether the tip was sufficiently reliable to create reasonable suspicion. United States v. Goodrich, 450 F.3d 552, 560 (3d Cir.2006).
In this case, a confidential informant told Kierzkowski that Thompson and Bradley had rented a car in Harrisburg, driven it to Philadelphia, flown to Atlanta to purchase cocaine, and would be returning to Philadelphia or Harrisburg by train. The informant had provided Kierzkowski with reliable tips in the past, including information about Thompson that had only a month earlier led to the seizure of $25,000. In addition, Kierzkowski was able to verify several details from the most recent tip, including that Thompson and Bradley had rented a car in Harrisburg, had driven it to Philadelphia, had taken a flight to Atlanta, and were returning to Philadelphia by Amtrak train. Given Kierzkowski’s previous dealings with the informant and his corroboration of details from the tip, we conclude that Kierzkowski clearly had reasonable suspicion that Thompson was involved in criminal activity. Accordingly, the brief investigatory stop that Overcash and Todaro conducted based on information they received from Kierzkowski did not violate the Fourth Amendment.
III. Conclusion
Because the officers had reasonable suspicion, we will affirm the District Court’s decision to deny Thompson’s motion to suppress.
. The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291. In considering the District Court's denial of Thompson's motion to suppress, we review the District Court’s factual findings for clear error and *899exercise plenary review over its application of the law to the facts. United States v. Mathurin, 561 F.3d 170, 173 (3d Cir.2009).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472362/
|
OPINION OF THE COURT
JORDAN, Circuit Judge.
Roberto Aguilera-Soto pled guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) & (b)(2), and was sentenced to 77 months in prison. His sentence was based in part on a 16-level enhancement to the base offense level set by the United States Sentencing Guidelines, because he had been previously deported after having been convicted of a crime of violence. On appeal, he contends that his sentence is procedurally unreasonable because the District Court failed to adequately consider his argument for a variance based on the circumstances surrounding the arson conviction that triggered the 16-level enhancement. He also contends that his Fifth and Sixth Amendment rights were violated when his maximum sentence was increased based on a conviction that was neither charged in the indictment, nor admitted, nor proven to a fact-finder beyond a reasonable doubt. Because the District Court adequately considered Aguilera-Soto’s variance request, and because we have clear precedent rejecting his Fifth and Sixth Amendment arguments, we will affirm.
I. Background
Aguilera-Soto is a native and citizen of Mexico. On July 18,1991, he was arrested *901in New Castle County, Delaware and charged with arson, having set fire to two apartments. He pled guilty and was sentenced to three years’ imprisonment, but his sentence was suspended, and he served one year in a halfway house while receiving drug and alcohol treatment. On January 31, 1995, Aguilera-Soto was arrested in Chester County, Pennsylvania after stealing and crashing a van. He pled guilty to receiving stolen property, driving at an unsafe speed, and leaving the scene of an accident, and he was sentenced to 145 days to 23 months in prison. After serving his prison sentence and being released on parole, he was deported to Mexico.
On October 17, 2007, Aguilera-Soto was arrested in Avondale, Pennsylvania by the Pennsylvania State Police and charged with simple assault, harassment, and disorderly conduct. The police contacted United States Immigration and Customs Enforcement (“ICE”), and, on January 31, 2008, a federal grand jury indicted Aguilera-Soto on the illegal reentry charge underlying this case. He pled guilty. The United States Probation Office then prepared a Pre-sentence Report (“PSR”) recommending that a 16-level enhancement be applied to Aguilera-Soto’s base offense level, pursuant to § 2L1.2(b)(l)(A)(ii) of the Guidelines, because he had been convicted of arson, a crime a violence, prior to being deported. At the sentencing hearing, Aguilera-Soto objected to the 16-level enhancement. The District Court considered but rejected his argument and adopted the Guidelines calculations set forth in the PSR, which set Aguilera-Soto’s Guidelines range at 77 to 96 months’ imprisonment.
Aguilera-Soto also asked for a variance, arguing that the conduct leading to his arson conviction was the result of alcohol abuse and that the 16-level enhancement he faced as a result of the arson conviction was unduly severe. The District Court denied his variance request and sentenced him to 77 months in prison, the bottom of the Guidelines range. Aguilera-Soto then filed this appeal, arguing that his sentence is procedurally unreasonable1 because the District Court did not adequately consider his variance request based on the nature of his arson conviction. He also argues that his sentence violates the Fifth and Sixth Amendments because his maximum sentence was increased by a prior conviction that was not charged in the indictment, admitted, or proved to a jury beyond a reasonable doubt.
II. Discussion2
A. Procedural Reasonableness
We review sentences for reasonableness using an abuse of discretion standard. United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008). For a sentence to be procedurally reasonable, a district “court must acknowledge and respond to any properly presented sentencing argument which has colorable legal merit and a factual basis.” United States v. Ausburn, 502 F.3d 313, 329 (3d Cir.2007).
The District Court heard and considered Aguilera-Soto’s argument that the mitigating circumstances surrounding his arson conviction warranted a downward variance. In response, the Court addressed both his arson conviction and the role alcohol played in it:
*902Mr. Aguilera-Soto was deported after a conviction for arson, a very serious crime of violence. I consider the defendant himself, his characteristics, his history, and he does have a very, very serious criminal history that the Court takes into account ... [Defense Counsel’s] point is — is, of course, well — very well taken that at least most, if not all of [his prior crimes] appear to be related to alcohol ... I hear the fact that he has alcohol problems and I certainly will recommend strongly that he get whatever alcohol treatment the prison system has to offer but it — it certainly doesn’t take away from a very, very, very substantial criminal history.
(App.85-86.) Aguilera-Soto tries, unpersuasively, to say that the District Court did not specifically address his argument that a variance was warranted because the 16-level enhancement was too severe, given the circumstances of what he calls his “nominal” arson conviction. (Appellant’s Opening Brief at 12.) Instead, he says, the Court only addressed the separate and more general defense argument that his criminal history score overstated the seriousness of his criminal background. That is an inaccurate assessment of the record.
Leaving aside the unwarranted minimization of the arson itself,3 we cannot agree that the District Court ignored the request for a variance. The above-quoted language from the sentencing colloquy is sufficient to show that the Court specifically considered the claim that the arson conviction did not warrant a sentence within the range calculated using the 16-level enhancement. The Court determined that Aguilera-Soto’s arson was a “very serious crime of violence” (App. at 85), and that a sentence within the Guidelines range was warranted. There was no abuse of discretion in that decision. Because the District Court acknowledged and adequately responded to Aguilera-Soto’s variance request, his argument that his sentence is procedurally unreasonable is unavailing.
B. Fifth and Sixth Amendments Claims
Aguilera-Soto acknowledges (Appellant’s Opening Br. at 29-30) that we have previously rejected the argument that a defendant’s Fifth and Sixth Amendment rights are violated when his maximum sentence is increased based on a prior conviction that is not set forth in an indictment, admitted, nor proved to a jury beyond a reasonable doubt. See United States v. Ordaz, 398 F.3d 236, 240-41 (3d Cir.2005) (consideration at sentencing of a prior conviction that was not charged in the indictment nor proved to a jury does not violate the Constitution); accord United States v. Coleman, 451 F.3d 154, 159-60 (3d Cir.2006) (same). He states that he raises the issue to preserve it for future review. As our precedent on this issue is clear and controlling, we need not revisit it here.
III. Conclusion
Because the District Court adequately addressed Aguilera-Soto’s variance request, and we have clear precedent rejecting his Fifth and Sixth Amendment arguments, we will affirm.
. In his Reply Brief, Aguilera-Soto says the substantive reasonableness of his sentence is also in question. (Reply Br. at 14 n. 7.) However, given the bleated and cursory treatment of that challenge, we decline to address it.
. 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).
. While we do not doubt that with arson, as with any crime, there may be differing degrees of culpability and of damage from the crime, we are no more impressed by Aguilera-Soto’s effort to downplay the seriousness of his arson conviction than was the District Court. In a peculiar argument, he emphasizes that he set the fire with no more than a match. Carrying out a threat to set fire to two apartments, as Aguilera-Soto did, is not made a matter of little moment by pointing to the means of ignition.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472363/
|
OPINION
RENDELL, Circuit Judge.
Robert Hudson pled guilty to drug and firearm-related offenses, and was sentenced to eight years’ imprisonment.1 After Hudson filed a notice of appeal, defense counsel moved to withdraw, filing a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that no non-frivolous issues exist.2 Because we agree that Hudson does *904not present a colorable claim on appeal, we will affirm the Judgment and Commitment Order of the District Court.3
The salient facts are not disputed. Officers Younger and Williams noticed that the vehicle Hudson was driving did not have a required registration sticker displayed on either the rear windshield or license plate. The officers subsequently observed Hudson change lanes without signaling and park on the right side of the street. Officers Williams and Younger then approached the driver and passenger side of Hudson’s car, respectively. Standing outside his vehicle, the officers observed a plastic sandwich bag with a red marking in the center cupholder of the car. Inside the bag were numerous smaller tinted baggies, containing a white chunky substance. Suspecting that the powdery substance was cocaine, Officer Younger reached into the vehicle to retrieve the baggies, whereupon he glimpsed a firearm between the center console and the passenger seat. The officers immediately placed Hudson under arrest and retrieved the firearm.
Hudson moved to suppress the firearm and narcotics seized, arguing that the officers lacked probable cause to search his vehicle. After a hearing, the District Court denied the motion,4 and Hudson entered a conditional plea agreement, in which he preserved his right to appeal the District Court’s suppression ruling. The District Court sentenced Hudson to eight years’ imprisonment; Hudson appealed.
Defense counsel moved to withdraw as counsel, filing an Anders brief indicating that no non-frivolous issues exist for appeal. When presented with an Anders brief, our inquiry is two-fold: (1) whether counsel’s Anders brief is adequate on its face; and (2) whether our independent review of the record reveals any issues that are not 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)). An Anders brief will be deemed adequate if the Court is satisfied that counsel has “thoroughly examined the record in search of appealable issues” and explained why the issues are frivolous. Id. Counsel, however, need not address every conceivable claim. Id. Where counsel’s Anders brief is adequate, we will confine our inquiry to issues raised by counsel and by the defendant in his pro se brief. Id. at 301 (citing United States v. Wagner, 103 F.3d 551, 552-53 (7th Cir.1996)).
Although Hudson did not file a pro se brief, defense counsel’s Anders brief appears adequate on its face. Counsel addresses the single issue preserved for appeal in Hudson’s guilty plea: whether the District Court erred in not suppressing the gun and narcotics seized from Hudson’s car. Counsel concludes that it is a frivolous issue on appeal because police lawfully stopped Hudson for two traffic *905infractions — driving without a proper registration sticker and changing lanes without signaling — and the presence of narcotics in the officers’ plain view provided probable cause to believe that Hudson was engaged in criminal activity. Accordingly, defense counsel reasons that police were entitled to conduct a warrantless search of Hudson’s car, and that seizure of the narcotics and gun was permissible. We conclude that counsel’s Anders brief reflects conscientious examination of the record, and that counsel identified the pertinent issues on appeal.5 Accordingly, we will confine our analysis to the single issue raised in counsel’s brief — whether the District Court properly admitted the gun and drugs recovered during the warrantless search of Hudson’s vehicle.
At the outset, we note that police lawfully stopped Hudson’s vehicle based on separate traffic violations — his failure to display a registration sticker on his windshield or license plate, 75 Pa.C.S. § 1332(a), and his failure to signal before changing lanes, 75 Pa.C.S. § 3334(a). See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“As a general matter, the decision to stop an automobile is reasonable, where the police have probable cause to believe that a traffic violation has occurred.”). Further, once the officers, who had substantial experience with drug-related arrests, glimpsed multiple marked plastic baggies containing a white chunky substance in the center cupholder, they possessed probable cause to believe that the baggies contained illegal drugs, and that Hudson was involved in criminal activity.6 At that point, police were entitled to arrest Hudson and to search the passenger compartment of his vehicle.7 Because the search of the *906vehicle was lawful, contraband recovered from the car, including the narcotics and firearm, was admissible. Hence, we conclude that the District Court properly denied defendant’s motion to suppress, and that Hudson’s Fourth Amendment challenge is meritless.
Concluding that Hudson fails to raise a non-frivolous argument on appeal, we will AFFIRM the Judgment and Conviction Order of the District Court and, in a separate order, will grant counsel’s motion to withdraw.
. Hudson pled guilty to possession with intent to distribute cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
. It is unclear which orders Hudson intends to appeal. The notice of appeal filed by defense counsel solely references the judgment *904of sentence — not the judgment of conviction; however, counsel’s Anders brief analyzes the District Court’s disposition of Hudson’s motion to suppress, and the cover page of the brief states, "Appeal from the Judgment of Conviction and Sentence Entered in the United States District Court.” Because Hudson did not file a pro se brief, we cannot conclusively determine whether he intended to confine the appeal to his sentence. Giving Hudson every benefit of the doubt, and finding no prejudice to the government, which has addressed the validity of the District Court’s suppression order in its brief, we will consider both arguments.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction . under 28 U.S.C. § 1291. United States v. Tannis, 942 F.2d 196, 197 (3d Cir.1991).
. Hudson also moved to suppress unwarned inculpatory statements made to police after his arrest. The District Court granted the motion and suppressed the statements. The government did not cross-appeal this ruling.
. Counsel did not address two potential issues in his brief — the validity of Hudson’s guilty plea and the legality of his sentence. Because these issues were "patently]” frivolous, counsel was not required to analyze them. Marvin, 211 F.3d at 781. The guilty plea offered by defense counsel was accepted by the government; there is no indication that the plea was not knowing, intelligent, and voluntary. Further, Hudson waived his right to appeal his sentence, which, in any event, was below the applicable guidelines range of 135 to 168 months. Accordingly, counsel's omission of these issues from his brief was not inadequate to assist us in our review. See L.R. 109.2(a); see also Youla, 241 F.3d at 302.
. See Texas v. Brown, 460 U.S. 730, 733-34, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (finding probable cause to arrest defendant and search his vehicle, where police observed a white powdery substance, small plastic vials, and knotted, uninflated plastic party balloons — commonly used narcotics packaging— in his car); United States v. Green, 560 F.3d 853, 858 (8th Cir.2009) (finding probable cause to believe that "clear plastic bag containing a white powdery substance” discovered in defendant's kitchen was illegal drugs); United States v. Rosario, 638 F.2d 460, 462 (2d Cir.1980) (finding probable cause for arrest where defendant furtively carried a plastic bag containing a substance that looked like cocaine to a car containing two men at 11:00 p.m. and displayed the bag for their inspection); see also United States v. Garner, 907 F.2d 60, 62 (8th Cir.1990) ("Probable cause demands ... only that the facts available to a reasonably cautious man would warrant a belief that certain items may be contraband ....”) (internal quotations omitted).
. See Thornton v. United States, 541 U.S. 615, 620-22, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004); Brown, 460 U.S. at 733-34, 103 S.Ct. 1535; New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) ("[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile."); see also Maryland v. Dyson, 527 U.S. 465, 465-66, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (upholding warrantless search of vehicle where police possessed probable cause to believe it contained illegal drugs); California v. Carney, 471 U.S. 386, 394-95, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) (finding probable cause to conduct warrantless search of mobile home where police possessed evidence that defendant was distributing a controlling substance from the vehicle); United States v. Burton, 288 F.3d 91, *906100 (3d Cir.2002) ("The automobile exception to the warrant requirement permits law enforcement to seize and search an automobile without a warrant if 'probable cause exists to believe it contains contraband.’ ") (internal citation omitted).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472365/
|
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles A. Inko-Tariah appeals the dismissal of his complaint alleging violations of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131, et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and North Carolina’s Handicapped Persons Protection Act, N.C.G.S. § 168A-1, et seq. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Inko-Tariah v. Lappin, No. 5:05-ct-00585-H (E.D.N.C. filed Apr. 6, 2006 & entered Apr. 10, 2006; Jan. 30, 2007; Apr. 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472723/
|
PER CURIAM: *
The attorney appointed to represent Ricardo Tovar has moved for leave to with*981draw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Tovar has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cer R. 47.5, the court has determined that this opinion should not be *981published 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/8472367/
|
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
PJ Jamal Gilyard seeks to appeal the district court’s order treating his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by *920the district court is likewise debatable. Miller-El v. Cockrell, 587 U.S. 822, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Gilyard has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Gilyard’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp.2009). Gilyard’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472369/
|
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Sanjurjo appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Sanjurjo, No. 3:98-cr-00338-RLW-1 (E.D.Va. Mar. 12, 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/8472374/
|
Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bennie A. Mack, Jr., petitions for a writ of mandamus, seeking an order recusing the district court judge in his criminal trial. Our review of the record reveals that the district court entered its final judgment in Mack’s case on September 4, 2009. Mack has filed a notice of appeal. Accordingly, because the district court no longer has jurisdiction over Mack’s case, we deny the mandamus petition as moot.* We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
If Mack believes the district judge issued adverse rulings on some improper basis, he may challenge those rulings in his direct appeal.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472377/
|
ORDER
Investigators working for State Farm Insurance concluded that Evelyn Smith, after defaulting on her mortgage, paid an arsonist $500 to torch her home near Milwaukee and then made a claim against her State Farm homeowner’s insurance policy. Smith objected to State Farm’s denial of her claim and sued the company in federal court under diversity jurisdiction, alleging it had breached the insurance contract and denied her claim in bad faith. The district court granted State Farm summary judgment. We affirm.
The record, which we construe in Smith’s favor, see Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.2009); Crews v. City of Mt. Vernon, 567 F.3d 860, 864 (7th Cir.2009), shows the following. Under the insurance contract, State Farm had no duty to pay Smith’s claim if State Farm determined that Smith intentionally damaged her home or deceived the company about any material fact regarding the damage. The insurer produced extensive evidence establishing that Smith both intentionally burned her home and lied about it: Forensic experts determined that the fire had been deliberately set, and Smith’s neighbors swore that Smith and her family removed their possessions from the home shortly before the blaze, a fact that Smith denied, but her family members confirmed. Smith’s involvement was confirmed by a key witness who declared that she and her brother stopped by Smith’s house before *230the fire, and Smith, pointing to the house, instructed the brother that she wanted “all of this taken down.” The witness didn’t appreciate the significance of this incident until after the fire, when her distraught brother came to her, and, shortly before killing himself, admitted that he was responsible for burning Smith’s house, as well as another arson-for-hire. Lastly, as for the deception, when State Farm’s team was investigating what happened to the furniture and other property from the house, Smith told them that she did not rent a storage unit. In fact she did, and the missing possessions were in it.
When State Farm moved for summary judgment, Smith took issue with its proposed findings of fact, but presented no evidence of her own. Because Smith had not met her burden of production in establishing breach of contract, and because the tort of bad faith is predicated on an underlying contractual claim, the district court ruled in favor of State Farm.
Smith argues on appeal that the district court should have denied State Farm’s motion for summary judgment for a procedural reason: when she first responded to the motion, State Farm had yet to notify her of the consequences of failing to rebut its factual assertions with admissible evidence. Both Local Rule 56.1 of the Eastern District of Wisconsin and our precedent, see Timms v. Frank, 953 F.2d 281, 285 (7th Cir.1992), require a party moving for summary judgment to provide such a warning to a pro se litigant, but State Farm’s attorney evidently forgot that Smith, who at the start was represented by counsel, was now proceeding pro se. The district judge was patient, and in May 2008, about one month after the original filing in April, he allowed State Farm to amend its motion to include the required notice. Then he gave Smith 30 days to file a new response. Smith contends that this amendment came too late to avoid the prejudice that State Farm’s initial omission caused her. She argues that, had State Farm warned her of her evidentiary duties a month earlier, she would have obtained an affidavit from an unspecified witness who, she claims, had since changed her mind about testifying, thereby leaving Smith without evidence.
A district court should not grant summary judgment against a pro se litigant who was not adequately apprised of the steps necessary to proceed to trial. Timms, 953 F.2d at 285; Vital v. Interfaith Med. Ctr., 168 F.3d 615, 621 (2nd Cir.1999). Here, however, summary judgment was granted only after State Farm had notified Smith of her duty to furnish evidence in support of her claims, and after the court gave her an opportunity to correct any deficiencies in her earlier response. Smith argues that this tardy notice is insufficient because it cost her a chance to gather potential evidence, but Smith would be no worse off if State Farm had never filed its original motion (without the rule-specified notice) in April, and instead filed only its rule-abiding motion in May. In that case Smith’s unnamed witness would have already gotten cold feet, yet Smith could not claim that State Farm had violated some rule by not filing its motion until May. After all, Rule 56(b) gives a defendant discretion to move for summary judgment any time before trial. See Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir.2000).
Furthermore, Smith has not shown that the evidence that she “lost” entitles her to a trial. See Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir.1994). Smith tells us only that she would have produced an affidavit from “one critical and material witness ... to contradict the allegations” contained in State Farm’s motion. She does not delineate what allegations that affidavit would have contradicted or who the witness was. Without that informa*231tion it is impossible to evaluate whether the vanished testimony was actually material to the case or otherwise admissible, and therefore whether Smith was prejudiced by its absence. See Am. Needle Inc. v. Nat’l Football League, 538 F.3d 736, 740 (7th Cir.2008) (noting district court does not abuse discretion in denying Rule 56(f) motion for more discovery where proponent of motion fails to specify what evidence might be discovered that would create a genuine fact issue); see also Crestview Vill. Apartments v. U.S. Dep’t of Hous. and Urban Dev., 383 F.3d 552, 558 (7th Cir.2004) (upholding district court’s denial of motion to amend complaint where plaintiff failed to attach proposed amendment, thus preventing court from determining whether amendment would have been futile).
Accordingly, the judgment of the district court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472379/
|
ORDER
Clark Truly was convicted in Illinois state court of aggravated battery with a firearm and is serving an eighteen-year prison term. After exhausting his state remedies, Truly petitioned for a writ of habeas corpus in the district court. See 28 U.S.C. § 2254. The eourt denied his petition but issued a certificate of appealability limited to his claim of ineffective assistance of trial counsel. Like the district court, however, we conclude that the state court did not unreasonably apply Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and therefore affirm the judgment.
Truly was charged with attempted murder and aggravated battery with a firearm for shooting Charles Pinkston and was tried before a jury in the Circuit Court of Cook County. Pinkston, who suffered one gunshot wound to his left leg, testified that on July 1,1999, he was talking with friends outside their residence when he saw Truly drive past. Pinkston and Truly had sparred before, and after passing Pinkston, Truly turned the car around and stopped in front of Pinkston and his friends. Truly asked if Pinkston had a problem with him. Pinkston replied, “no.” Truly then drew a gun and fired at Pinkston. His first shot missed, but the second hit Pinkston in the leg as he fled. Truly followed and was aiming for another shot when one of Pinkston’s friends pleaded with Truly not to shoot. According to Pinkston, Truly then returned to the car and drove away. In contrast, Truly admitted that he was at the scene of the shooting but testified that his cousin was also in the car and had fired the shots. Truly added that his cousin drove away after the shooting, leaving him behind to walk. The parties stipulated that a spent shell casing found in Truly’s car after the shooting had been fired from the same gun as another shell casing found at the scene.
To impeach Truly the prosecutor introduced and read to the jury certified copies of court records stating that Truly had prior felony convictions for possession of a stolen motor vehicle and “aggravated assault of a police officer with a firearm.” Truly’s lawyer had reviewed the documents and did not object to their use. During closing argument the prosecutor informed the jury that it could weigh Truly’s “two prior felony convictions” in deciding whether to believe his testimony, and the trial court cautioned the jury that the convictions were pertinent only to Truly’s credibility and could not be viewed as evidence that Truly had shot Pinkston.
The jury acquitted Truly of attempted murder but found him guilty of aggravated battery with a firearm. At sentencing, his lawyer informed the trial court that one of the certified conviction records was inaccurate. As it turns out, Truly’s prior conviction for aggravated assault of a police officer had not involved a gun as the jury had been told. The state acknowledged the error in the conviction record and explained that, in fact, Truly had tried to run down the officer with his car. Truly’s counsel raised the issue as mitigation evidence only and did not move for a new trial based on the impeachment use of the inaccurate record.
On direct appeal Truly argued that the jury should not have been misinformed that his prior assault involved a gun. The appellate court reviewed for plain error because counsel had not lodged an objection before the trial court, but even after agreeing with Truly that the trial judge had erred in allowing the inaccurate record *233to be used for impeachment, the appellate court concluded that the mischaracterization of the prior conviction could not have prejudiced Truly. The court explained that the trial judge had properly limited the jury’s use of the prior conviction to assess Truly’s credibility, and that use would have been the same even if the conviction had been correctly characterized. Additionally, the appellate court concluded that, even if the jury had misused the conviction as substantive evidence of Truly’s guilt, the error would have been harmless. Thus, the court affirmed Truly’s conviction, and the Supreme Court of Illinois denied leave to appeal.
Truly’s § 2254 petition includes several claims, but the certificate of appealability granted by the district court authorizes Truly to pursue in this court only his claim that trial counsel was ineffective because he failed to object to the mischaracterization of the prior conviction.1 Truly raised this claim in a state post-conviction petition, and the state court, applying the standard established in Strickland, rejected his claim.
To prevail on a claim of ineffective assistance, a petitioner must show that counsel’s performance was deficient and that a reasonable probability exists that the deficiency caused prejudiced. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Gonzales v. Mize, 565 F.3d 373, 381 (7th Cir.2009). A state court already has concluded that Truly cannot satisfy this standard, and since his § 2254 petition is governed by the Antiterrorism and Effective Death Penalty Act, Truly cannot obtain relief in federal court unless he can establish that the state court’s application of Strickland, the controlling Supreme Court precedent, was not just incorrect, but unreasonable. See 28 U.S.C. § 2254(d); Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir.2009). This is a highly demanding standard, and federal intervention is not appropriate so long as the state court “took the constitutional standard seriously and produced an answer -within the range of defensible positions.” Taylor v. Bradley, 448 F.3d 942, 948 (7th Cir.2006) (quotation marks and citation omitted).
That was done here. The state court reasoned that Truly’s counsel was not deficient because his decision not to object to the erroneous conviction was “a matter of trial strategy.” Indeed, strategic choices are “virtually unchallengeable,” Strickland, 466 U.S. at 690, 104 S.Ct. 2052; see Johnson v. Loftus, 518 F.3d 453, 457 (7th Cir.2008), but we add the further observation that it would be especially difficult to fault counsel for not realizing that a court record from an earlier case contained an error. Moreover, Strickland requires that counsel’s performance be evaluated as a whole, and a single error rarely is enough to demonstrate that counsel was constitutionally deficient unless that error was sufficiently egregious and prejudicial. See id. at 690-91, 104 S.Ct. 2052; Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Williams, 557 F.3d at 538. To establish prejudice Truly was required to show that there is a reasonable possibility that he would have been acquitted without the admission of the erroneous conviction. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Taylor, 448 F.3d at 950. The state court concluded that Truly could not have been prejudiced because the jury was properly instructed that it *234could consider the conviction only in assessing his credibility, and thus the jury’s use of the conviction would have been the same even if the document had accurately represented that he was convicted of aggravated assault of a police officer with a dangerous weapon and not specifically a firearm. Juries are presumed to follow the trial judge’s instructions, Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); United States v. James, 487 F.3d 518, 524 (7th Cir.2007), and there is no reason to believe that the jury considered his prior conviction for anything other than to evaluate Truly’s credibility.
The state court’s application of Strickland was not unreasonable. Accordingly, the judgment is AFFIRMED.
. In his appellate brief Truly continues to argue claims that were not certified for appeal. We decline to expand the certificate because, like the district court, we conclude that he has not made "a substantial showing of the denial of a constitutional right" as to any of those claims. See 28 U.S.C. § 2253(c); Sandoval v. United States, 574 F.3d 847, 852 (7th Cir.2009).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472381/
|
ORDER
Last year we affirmed Josiah Compton’s conviction for various drug-related crimes but vacated his sentence of 360 months’ imprisonment and remanded for resentencing. We determined that the district court improperly included 197 kilograms of cocaine in Compton’s relevant conduct calculation, resulting in an incorrect guideline range of 360 months to life, and also advised the district court to consider the appropriate impact of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), on Compton’s sentence. United States v. Farmer, 543 F.3d 363, 372-76 (7th Cir.2008).
The district judge on remand corrected his calculation error and determined, as we did, the proper guideline range to be 324-405 months. After further hearing from counsel and Compton, and expressly considering the disparity in sentences between offenses involving powder and crack cocaine under the guidelines, the district judge reduced Compton’s sentence to a below guideline term of 200 months’ imprisonment. Despite this substantial reduction, Compton appeals his new sentence.
Compton’s court-appointed lawyers determined that the present appeal contains no nonfrivolous issues for our review and filed the required Anders brief to document their conclusion. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Edwards, 777 F.2d 364 (7th Cir.1985). Compton filed a response to counsel’s Anders brief. We have reviewed the issues identified in both filings. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We have also reviewed the transcripts of both the original sentencing and the resentencing hearings, and agree with counsel that there are no nonfrivolous issues for appeal.
Contrary to Compton’s claim, “the guidelines applicable to a resentencing are those that were in force on the date of the original sentencing.” United States v. Alexander, 553 F.3d 591, 592 (7th Cir.2009); see also 18 U.S.C. § 3742(g)(1). We further note that the district judge considered the difference between crack and powder cocaine sentences, agreeing with Compton’s denouncement that the disparity is “wrong”, describing the disparity as “intolerable” and “unfair”. He was not required, however, to go so far as to sentence Compton on the basis of a one-to-one ratio. See United States v. Scott, 555 F.3d 605, 610 (7th Cir.2009). In short, the district judge properly calculated the applicable guideline range, did not err in his factual findings, and imposed a reasonable sentence well below the range after considering the factors articulated in 18 U.S.C. § 3553(a).
Compton’s sentence is AFFIRMED. The motion to withdraw is GRANTED, and this appeal is DISMISSED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472368/
|
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
PJ Jamal Gilyard seeks to appeal the district court’s order treating his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by *920the district court is likewise debatable. Miller-El v. Cockrell, 587 U.S. 822, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Gilyard has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Gilyard’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp.2009). Gilyard’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472370/
|
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Sanjurjo appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Sanjurjo, No. 3:98-cr-00338-RLW-1 (E.D.Va. Mar. 12, 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/8472373/
|
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Amos Junior Scott seeks to appeal the district court’s order treating his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Scott has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Scott’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroac*977tive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h). Scott’s claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472376/
|
ORDER
Investigators working for State Farm Insurance concluded that Evelyn Smith, after defaulting on her mortgage, paid an arsonist $500 to torch her home near Milwaukee and then made a claim against her State Farm homeowner’s insurance policy. Smith objected to State Farm’s denial of her claim and sued the company in federal court under diversity jurisdiction, alleging it had breached the insurance contract and denied her claim in bad faith. The district court granted State Farm summary judgment. We affirm.
The record, which we construe in Smith’s favor, see Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.2009); Crews v. City of Mt. Vernon, 567 F.3d 860, 864 (7th Cir.2009), shows the following. Under the insurance contract, State Farm had no duty to pay Smith’s claim if State Farm determined that Smith intentionally damaged her home or deceived the company about any material fact regarding the damage. The insurer produced extensive evidence establishing that Smith both intentionally burned her home and lied about it: Forensic experts determined that the fire had been deliberately set, and Smith’s neighbors swore that Smith and her family removed their possessions from the home shortly before the blaze, a fact that Smith denied, but her family members confirmed. Smith’s involvement was confirmed by a key witness who declared that she and her brother stopped by Smith’s house before *230the fire, and Smith, pointing to the house, instructed the brother that she wanted “all of this taken down.” The witness didn’t appreciate the significance of this incident until after the fire, when her distraught brother came to her, and, shortly before killing himself, admitted that he was responsible for burning Smith’s house, as well as another arson-for-hire. Lastly, as for the deception, when State Farm’s team was investigating what happened to the furniture and other property from the house, Smith told them that she did not rent a storage unit. In fact she did, and the missing possessions were in it.
When State Farm moved for summary judgment, Smith took issue with its proposed findings of fact, but presented no evidence of her own. Because Smith had not met her burden of production in establishing breach of contract, and because the tort of bad faith is predicated on an underlying contractual claim, the district court ruled in favor of State Farm.
Smith argues on appeal that the district court should have denied State Farm’s motion for summary judgment for a procedural reason: when she first responded to the motion, State Farm had yet to notify her of the consequences of failing to rebut its factual assertions with admissible evidence. Both Local Rule 56.1 of the Eastern District of Wisconsin and our precedent, see Timms v. Frank, 953 F.2d 281, 285 (7th Cir.1992), require a party moving for summary judgment to provide such a warning to a pro se litigant, but State Farm’s attorney evidently forgot that Smith, who at the start was represented by counsel, was now proceeding pro se. The district judge was patient, and in May 2008, about one month after the original filing in April, he allowed State Farm to amend its motion to include the required notice. Then he gave Smith 30 days to file a new response. Smith contends that this amendment came too late to avoid the prejudice that State Farm’s initial omission caused her. She argues that, had State Farm warned her of her evidentiary duties a month earlier, she would have obtained an affidavit from an unspecified witness who, she claims, had since changed her mind about testifying, thereby leaving Smith without evidence.
A district court should not grant summary judgment against a pro se litigant who was not adequately apprised of the steps necessary to proceed to trial. Timms, 953 F.2d at 285; Vital v. Interfaith Med. Ctr., 168 F.3d 615, 621 (2nd Cir.1999). Here, however, summary judgment was granted only after State Farm had notified Smith of her duty to furnish evidence in support of her claims, and after the court gave her an opportunity to correct any deficiencies in her earlier response. Smith argues that this tardy notice is insufficient because it cost her a chance to gather potential evidence, but Smith would be no worse off if State Farm had never filed its original motion (without the rule-specified notice) in April, and instead filed only its rule-abiding motion in May. In that case Smith’s unnamed witness would have already gotten cold feet, yet Smith could not claim that State Farm had violated some rule by not filing its motion until May. After all, Rule 56(b) gives a defendant discretion to move for summary judgment any time before trial. See Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir.2000).
Furthermore, Smith has not shown that the evidence that she “lost” entitles her to a trial. See Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir.1994). Smith tells us only that she would have produced an affidavit from “one critical and material witness ... to contradict the allegations” contained in State Farm’s motion. She does not delineate what allegations that affidavit would have contradicted or who the witness was. Without that informa*231tion it is impossible to evaluate whether the vanished testimony was actually material to the case or otherwise admissible, and therefore whether Smith was prejudiced by its absence. See Am. Needle Inc. v. Nat’l Football League, 538 F.3d 736, 740 (7th Cir.2008) (noting district court does not abuse discretion in denying Rule 56(f) motion for more discovery where proponent of motion fails to specify what evidence might be discovered that would create a genuine fact issue); see also Crestview Vill. Apartments v. U.S. Dep’t of Hous. and Urban Dev., 383 F.3d 552, 558 (7th Cir.2004) (upholding district court’s denial of motion to amend complaint where plaintiff failed to attach proposed amendment, thus preventing court from determining whether amendment would have been futile).
Accordingly, the judgment of the district court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472391/
|
ORDER
Johnathan Coursey, a Peoria resident, filed a complaint under 42 U.S.C. § 1983 against the City of Peoria, the Peoria police department, and two Peoria police officers alleging violations of his Fourth Amendment rights related to a warrant-*250less entry of his home and subsequent arrest. The district court dismissed the City of Peoria and the Peoria police department from the suit and later granted summary judgment in favor of the officers.
Coursey appeals, but we cannot discern any legal argument in his submission. Although we construe pro se filings liberally, pro se litigants must follow procedural rules. See Collins v. Illinois, 554 F.3d 693, 697 (7th Cir.2009). Federal Rule of Appellate Procedure 28 requires that the appellant’s brief present “contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R.App. P. 28(a)(9)(A). As we have explained, “a brief must contain an argument consisting of more than a generalized assertion of error, with citations to supporting authority.” Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001).
Coursey’s brief consists only of a cursory factual narrative and a short list of questions about the facts of the case. Coursey makes no reference to the district court’s reasoning, cites no legal authority, and, in short, makes no argument.
DISMISSED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472382/
|
ORDER
In March 2008, Antwyn Williams began serving a five-year term of supervised release after completing a prison term for a drug-conspiracy conviction. See 21 U.S.C. §§ 846, 841(a)(1). But in April, Williams violated the conditions of his supervised release by possessing marijuana, which he admitted at a revocation hearing. The district court modified the conditions of Williams’s supervision to include six months at a halfway house and postponed disposition of the violation. At the disposition hearing in January 2009, the court revoked Williams’s supervised release and imposed a five-year term of reimprisonment, based in part on new drug and alcohol violations, an unsuccessful termination from the halfway house, and a recent theft conviction in state court. Williams filed a notice of appeal, but appointed counsel moves to withdraw because she 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). Williams did not respond to our invitation to comment on his counsel’s submission, see Cir. R. 51(b), and so we confine our review to the potential issues identified in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel first considers whether Williams could argue that the district court abused its discretion when it revoked his supervised release. But we would not deem the court’s decision abusive because revocation was mandatory after Williams admitted to possessing marijuana, a controlled substance. See 18 U.S.C. § 3583(g)(1) (1994). The court did, however, err in citing Williams’s three failed drug tests in June 2008 as another basis for mandatory revocation. See 18 U.S.C. § 3583(g)(4) (2006). In 1999, when Williams was part of the drug conspiracy, failing drug tests was not a basis for mandatory revocation. See 18 U.S.C. § 3583(g) (1994); Johnson v. United States, 529 U.S. 694, 701-02, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000); United States v. Smith, 354 F.3d 171, 173 (2d Cir.2003). But the error was harmless because possession of a controlled sub*240stance was still a cause for mandatory revocation. See 18 U.S.C. § 3583(g)(1) (1994).
Counsel also briefly considers whether there were any procedural irregularities in the revocation proceedings, but she correctly concludes that the district court complied with Federal Rule of Criminal Procedure 32.1. Williams was at all times represented by counsel, he received written notice of the alleged violations, and he was allowed to present evidence against the contested violations and make a statement in mitigation. See Fed.R.Crim.P. 32.1(b). Therefore, we agree that it would be frivolous for Williams to claim any procedural error.
Counsel next considers whether Williams could challenge his term of reimprisonment as plainly unreasonable, an extremely narrow standard of review. See United States v. Kizeart, 505 F.3d 672, 674-75 (7th Cir.2007). Although the Chapter 7 policy statements suggested a term of 12 to 18 months’ reimprisonment, the district court imposed a term of five years—the maximum allowed by law for the underlying offense of conviction, a class A felony. See 18 U.S.C. § 3583(e)(3) (1994). In its written memorandum, the court explained that the higher term compensated for the substantial sentence reduction that Williams had received after assisting the government with another prosecution. See U.S.S.G. § 7B1.4 cmt. n. 4. Additionally, the court found significant that Williams had completed substance-abuse treatment in prison, but then he used marijuana shortly after his release and continued to use drugs in June while the revocation petition was pending. The court also condemned Williams’s use of alcohol while at the halfway house, concluding that Williams’s “refusal to remain free of alcohol and illegal substances” made a five-year term appropriate. The court thoroughly considered the applicable policy statements and the factors listed in 18 U.S.C. § 3553(a), see United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008), and so we agree with counsel that a challenge to the term of reimprisonment would be frivolous.
Finally, counsel correctly notes that Williams should save any claim of ineffective assistance of counsel for collateral review where a more complete record can be developed and where Williams is not represented by the lawyer who represented him at the revocation hearing. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Rezin, 322 F.3d 443, 445 (7th Cir.2003).
Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472386/
|
ORDER
Perris Cannaday pleaded guilty to possessing five grams or more of cocaine base, see 21 U.S.C. § 844(a), following a traffic stop in which he was found carrying 6.87 grams of crack cocaine. The district court, relying both on stipulations in the plea agreement and a presentence investigation report (“PSR”) that Cannaday accepted without objection, found that he was accountable for nearly 1,500 grams of crack cocaine, including 1,474 grams later seized from Cannaday’s house. Accordingly, the district court sentenced him to 135 months’ imprisonment, the bottom of the applicable guidelines range. Cannaday appeals this sentence, arguing that he was denied the right to allocute and that the district court should not have considered the drugs seized from his house as relevant conduct. Because he did allocute and waived any objection to including those drugs, we affirm.
In 2004 police officers in Milwaukee, Wisconsin, stopped Cannaday (who was wanted on an outstanding warrant) in his *244car and found 6.87 grams of cocaine base in his pocket. Later that day the- officers obtained a search warrant for Cannaday’s house, where they found 1,474 grams of cocaine base. In September 2006 a federal grand jury charged Cannaday with possession with intent to distribute more than five grams of cocaine base (for the drugs seized from his house), see 21 U.S.C. § 841(a)(1), and simple possession of five grams or more of cocaine base (for the drugs seized from his pocket), see 21 U.S.C. § 844(a). Cannaday pleaded guilty to the simple possession count, and in accordance with the written plea agreement, the government moved to dismiss the distribution count.
The relevant conduct used to determine Cannaday’s sentence was based on the following. In the plea agreement Cannaday stipulated that the government was able “to establish by a preponderance of the evidence that the drug quantity attributable to the defendant is between 500 grams and 1.5 kilograms of cocaine base in the form of ‘crack’ cocaine.” He further agreed that the applicable guideline was U.S.S.G. § 2Dl.l(c)(2), the provision for offenses involving between 500 grams and 1.5 kilograms of cocaine base. Later, at the change of plea hearing, Cannaday admitted that he had possessed the 6.87 grams of crack for personal use and further acknowledged that in determining his sentence, the court would consider all his relevant conduct and the weight of the drugs attributable to him. A probation officer calculated in the PSR that Cannaday’s base offense level was 36, based on the quantity of drugs seized during the traffic stop and from his home. The officer relied on a letter from Cannaday’s counsel, agreeing that the officer would use the 1,474 grams of cocaine base seized from his house to determine his relevant conduct. Cannaday did not object to the PSR.
The court held two sentencing hearings with Cannaday present. At an initial sentencing hearing in July 2007, the district court confirmed that, except for one correction to Cannaday’s criminal history category, the parties had no objections to the PSR. The court calculated the applicable guidelines range as 168 to 210 months, heard from both counsel and Cannaday, and adjourned the hearing to allow the probation officer to gather additional information. When the hearing reconvened in November 2007, amendments to the applicable sentencing guidelines had become effective, including reduced offense levels for most crack-cocaine crimes. The court determined that Cannaday’s applicable guidelines range was now 135 to 168 months. The court invited both Cannaday and his counsel to comment on the PSR and its addendum. After his counsel spoke, Cannaday talked about his enrollment in a GED program and concern for his family, and closed by saying, “Other than that, Your Honor, I’m just here today to accept responsibility for my action, and I just want to get this whole thing behind me.” The court then imposed a sentence of 135 months’ imprisonment.
On appeal Cannaday first argues that the district court denied him the right to a meaningful allocution by asking counsel about any objections to the PSR and by failing to tell Cannaday that he was about to be sentenced before asking him if he wished to speak. Because he did not raise these objections at sentencing, our review is for plain error. See United States v. Hoke, 569 F.3d 718, 721 (7th Cir.2009).
Our review of the sentencing transcripts shows that the district court afforded Cannaday his right to allocution. Federal Rule of Criminal Procedure 32(i) provides that a sentencing court must “address the defendant personally in order to
*245permit the defendant to speak or present any information to mitigate the sentence.” Fed.R.Crim.P.82(I)(4)(A)(II); see Green v. United States, 865 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); United States v. Luepke, 495 F.3d 443, 448-49 (7th Cir.2007). The defendant’s opportunity to allocute must occur before the final imposition of sentence so that the defendant’s “request for mercy” may be factored into the sentencing decision. United States v. Barnes, 948 F.2d 325, 329 (7th Cir.1991); see Luepke, 495 F.3d at 450; Fed.R.Crim. P.32(i)(4)(A)(ii). That was done here. At the reconvened sentencing hearing in November, the court personally addressed Cannaday, permitting him to speak at length before imposing the final sentence. The court specifically asked Cannaday if he and his counsel had a chance to consider all of his concerns with respect to sentencing, the PSR, and the addendum. Cannaday responded affirmatively, without raising any objections.
Additionally, comments from Cannaday’s counsel did not interfere with his right to allocute. Cannaday’s counsel told the court that, save for one correction to the criminal history category, Cannaday had no objection to any of the facts in the PSR or the addendum. But this comment did not deny Cannaday an opportunity to raise personally any concerns he had about the PSR or guidelines calculation. Rather, the court gave him an open-ended invitation to speak at both portions of the sentencing hearing on any topic. See United States v. Williams, 258 F.3d 669, 674-75 (7th Cir.2001) (holding that court’s question to defendant “is there anything that you would like to say” was unambiguous invitation for allocution not limited to a particular issue). This procedure was all that the rule for allocution required. See Hoke, 569 F.3d at 721-22; Williams, 258 F.3d at 675. The court did not deny Cannaday his right to allocution and thus did not commit plain error.
Cannaday next argues that the district court improperly increased his base offense level by including as relevant conduct the drugs seized from his residence. He contends, first, that the district court did not make the necessary factual findings to show that he was responsible for the additional amount. Second, he cites United States v. Wyss, 147 F.3d 631, 632 (7th Cir.1998), to argue that unlike the 6.87 grams he held for personal use, the 1,474 grams were intended for distribution and therefore cannot be part of the same common scheme or plan under U.S.S.G. § 1B1.3. But Cannaday stipulated in his plea agreement that the government could establish by a preponderance of the evidence that he was responsible for between 500 grams to 1.5 kilograms of cocaine base. He further agreed that the corresponding base offense level under § 2Dl.l(c)(2) (the base offense level for cocaine base between 500 grams and 1.5 kilograms) applied. And, although the plea agreement does not state the factual basis for including the additional cocaine base, Cannaday admitted that basis through counsel, in a letter later sent to the probation officer, by stating that the cocaine base seized from his house, 1,474 grams, was relevant conduct.
Under these circumstances, Cannaday has waived his objections to including the cocaine base seized from his home as relevant conduct. Admissions in a plea agreement conclusively establish admitted facts, and are “even better than a jury’s finding beyond a reasonable doubt.” United States v. Warneke, 310 F.3d 542, 550 (7th Cir.2002); see United States v. Krasinski, 545 F.3d 546, 552 (7th Cir.2008). The court properly considered Cannaday’s stipulations in the plea agreement (to the offense level and drug quantities for which he was responsible) as well as the facts *246and admissions described in the PSR— which Cannaday accepted without objection — to calculate the relevant drug quantity and applicable guidelines range. See United States v. Cole, 569 F.3d 774, 777-78 (7th Cir.2009) (citing U.S.S.G. § 6B1.4). Because Cannaday cannot now contest these admissions, we will not disturb the district court’s findings as to the relevant drug quantity and corresponding offense level. See United States v. Siegler, 272 F.3d 975, 978 (7th Cir.2001) (explaining that defendant’s admissions in written plea agreement and at change of plea hearing constituted waiver of any subsequent challenge); United States v. Newman, 148 F.3d 871, 878 (7th Cir.1998) (refusing to disturb sentencing court’s amount-of-loss calculation based on defendant’s stipulations to loss amount in plea agreement); United States v. Flores-Sandoval, 94 F.3d 346, 349 (7th Cir.1996) (holding that defendant waived any challenge to facts stipulated in plea agreement where defendant had agreed that facts constituted relevant conduct for sentencing purposes).
Finally, Cannaday claims that his counsel was constitutionally ineffective by informing the probation officer, without his authorization Cannaday asserts, that he had stipulated to the facts supporting the inclusion of 1,474 grams of crack as relevant conduct and by failing to object to its inclusion as relevant conduct at sentencing. We have repeatedly explained that a claim of ineffective assistance is best reserved for collateral review where the necessary record can be developed. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Spence, 450 F.3d 691, 694 (7th Cir.2006); United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir.1997) (explaining that ineffective assistance claims rarely find any factual support in the trial record “and an adverse determination on direct appeal will be res judicata in any subsequent collateral attack”). This case is no exception. Accordingly, we decline to address Cannaday’s claim of ineffective assistance at this time.
We therefore AFFIRM the judgment of the district court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472388/
|
ORDER
This case is the second lawsuit between Dwane Ingalls and AES. The first suit began in 2004 when AES fired Ingalls, who then sued his former employer in state court for breach of an employment contract, failure to pay wages, wrongful termination, and defamation. Two months after the state court granted AES partial summary judgment on the wage claim, Ingalls turned to federal district court. There, he sued AES for breach of a stock-option contract, common-law fraud, and Indiana securities fraud. The district court, invoking Colorado River abstention, see Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), stayed the federal proceedings, and we upheld the stay. See Ingalls v. AES Corp., 311 Fed.Appx. 911 (7th Cir.2008). After Ingalls lost his remaining state-court claims by failing to respond to another summary judgment motion, the district court dis-
*248248
347 FEDERAL APPENDIX
missed his second lawsuit as claim-precluded. We affirm the district court’s judgment because claim preclusion bars the federal suit.
In his state-court lawsuit, Ingalls alleged that, when AES was short on cash, he agreed to forgo $105,000 of his base salary and bonus in exchange for stock options that required ten years to vest. That transaction, he concluded, implied a contract for ten years’ continued employment. In federal court Ingalls pursues an alternative theory of liability. He argues that AES breached a promise to deliver those stock options, which he allegedly purchased when he gave up his salary and bonus. Ingalls also insists that he was induced to forgo his compensation through both the fraudulent promise of options that AES never intended to provide and by omissions and conduct that violate Indiana securities law.
[1] On appeal Ingalls contends that his first suit does not preclude the second. We apply Indiana’s law of claim preclusion because Indiana is the state whose court rendered judgment in the first case. See 28 U.S.C. § 1738; Atlcins v. Hancock County Sheriffs Merit Bd., 910 F.2d 403, 404 (7th Cir.1990) (citing Migra v. Warren City School District, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984)). In Indiana, a prior judgment precludes all claims in a later case that were or might have been litigated in the first case, so long as a court with jurisdiction decided the first case on the merits between the same parties or their privies. See Perry v. Gulf Stream Coach, Inc., 871 N.E.2d 1038,1048 (Ind.Ct. App.2007). The parties dispute only whether the Indiana court decided the first case on the merits and whether Ingalls’s federal-court claims could have been litigated in that case.
[2] Ingalls offers two reasons why, in his view, the state-court claims were not
adjudicated on the merits. First, Ingalls argues that his attorney’s failure to respond to AES’s second motion for summary judgment in state court prevented a merits-based decision. But Indiana treats all summary judgments as adjudications on the merits. See Poulard v. Lauth, 793 N.E.2d 1120, 1123 (Ind.Ct.App.2003). If the state court had decided the case adversely to Ingalls simply because his attorney failed to oppose the motion for summary judgment, that would not help Ingalls either; under Indiana law, dismissal for failure to prosecute presumptively operates as an adjudication on the merits, too. See Ind. Trial R. 41. Next, Ingalls insists that the state court did not grant him all the discovery that he deserved and, thus, the judgment could not be on the merits. But this is an argument for challenging the merits on a direct appeal of the state proceedings; it is not a basis for a collateral attack in federal court. See American Mgmt., Inc. v. Riverside Nat’l Bank, 725 N.E.2d 930, 933 (Ind.Ct. App.2000) (noting that non-jurisdictional errors in civil cases can render judgments voidable and subject to direct appeal, but not subject to collateral attack).
[3] This brings us to Ingalls’s contention that claim preclusion does not apply because his federal-court claims are different from those in the state court and could not have been raised there. Indiana uses an “identity of evidence” test to determine whether claims in two cases are different. See Biggs v. Marsh, 446 N.E.2d 977, 982 (Ind.Ct.App.1983); Richter v. Asbestos Insulating & Roofing, 790 N.E.2d 1000, 1003 (Ind.Ct.App.2003). The test does not require exact identity of the evidence because that would “invite piecemeal litigation with a vengeance.” Atkins, 910 F.2d at 405. Instead claim preclusion applies when both suits turn on a shared, central core of evidence. See id.
*249To pursue his federal-court theories of liability for contract and fraud, Ingalls would have to provide evidence of the terms of AES’s offer or promise of stock options and his acceptance of or reliance on those terms. This is the same evidence that was required for his state-court contract claims, as we already remarked when we affirmed the stay of the federal-court suit. See Ingalls, 311 Fed.Appx. at 914. Ingalls relies on Biggs, 446 N.E.2d 977, for the proposition that fraud and contract claims can require different evidence. But in Biggs the plaintiff relied on representations other than those made in the contract. See id. That kind of divide is absent here. The common-law fraud and the contract claims that Ingalls pursues arise from just one set of representations about the promised stock options. The same is true for Ingalls’s seeurities-fraud claim. That claim just adds potential liability for material omissions or deceitful business conduct. But to demonstrate which omissions and conduct were material, Ingalls would need to produce the same evidence regarding AES’s promises and Ingalls’s reliance on them as in the state-court case.
Accordingly, we AFFIRM the judgment of the district court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472390/
|
ORDER
Johnathan Coursey, a Peoria resident, filed a complaint under 42 U.S.C. § 1983 against the City of Peoria, the Peoria police department, and two Peoria police officers alleging violations of his Fourth Amendment rights related to a warrant-*250less entry of his home and subsequent arrest. The district court dismissed the City of Peoria and the Peoria police department from the suit and later granted summary judgment in favor of the officers.
Coursey appeals, but we cannot discern any legal argument in his submission. Although we construe pro se filings liberally, pro se litigants must follow procedural rules. See Collins v. Illinois, 554 F.3d 693, 697 (7th Cir.2009). Federal Rule of Appellate Procedure 28 requires that the appellant’s brief present “contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R.App. P. 28(a)(9)(A). As we have explained, “a brief must contain an argument consisting of more than a generalized assertion of error, with citations to supporting authority.” Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001).
Coursey’s brief consists only of a cursory factual narrative and a short list of questions about the facts of the case. Coursey makes no reference to the district court’s reasoning, cites no legal authority, and, in short, makes no argument.
DISMISSED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472394/
|
ORDER
Aaron Isby-Israel, an Indiana prisoner, filed a petition under 28 U.S.C. § 2254 challenging the process afforded him at a disciplinary hearing. A Disciplinary Hearing Board found that Isby-Israel had thrown his food tray across the prison range when a guard refused to serve him the tray of his choice. His punishment included a loss of 30 days good-time credit and a suspended demotion in credit-earning class. The district court denied IsbyIsrael’s petition.
Isby-Israel argues that he was denied due process because the Board failed to apply a preponderance-of-the-evidence standard and relied entirely on the guard’s written accusation as evidence of his guilt. Indiana inmates have a protected liberty interest in their good-time credits and credit-earning class, see Montgomery v. Anderson, 262 F.3d 641, 644-45 (7th Cir.2001), but due process requires only that there be “some evidence” of misconduct before those benefits can be taken away, Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 856 (1985); Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir.2007). This standard requires only a “modicum of evidence” sufficient to ensure that the disciplinary decision is not arbitrary. Webb v. Anderson, 224 F.3d 649, 652 (7th Cir.2000). A guard’s conduct report alone can satisfy this standard. Bandy-Bey v. Crist, 578 F.3d 763, 766-67 (8th Cir.2009); Hudson v. Johnson, 242 F.3d 534, 536-37 (5th Cir.2001); McPherson v. McBride, 188 F.3d 784, 786 (7th Cir.1999). The report, written and signed by the guard who witnessed Isby-Israel’s tirade, gives the time of day and describes the incident. It is sufficient to support the Board’s guilty finding. See McPherson, 188 F.3d at 786.
Isby-Israel also argues that the disciplinary rule he violated, Section B-236 *255of Indiana’s Adult Disciplinary Procedures, is too general to give inmates fair notice of the conduct it prohibits. Section B-236 prohibits “disorderly conduct: exhibiting disruptive and/or violent conduct which disrupts the security of the facility or other area in which the offender is located.” The district court concluded that this language is not impermissibly vague and we agree. A regulation must be sufficiently definite to give people of ordinary intelligence notice of the conduct it prohibits, United States v. Turcotte, 405 F.3d 515, 531 (7th Cir.2005), but a plaintiff who engaged in behavior unmistakably proscribed by a disputed regulation cannot mount a facial challenge, Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).
The terms “disruptive” and “violent” in B-236 are reasonably clear, and an inmate of ordinary intelligence would know that throwing a food tray is an act sanctionable under B236. Because his conduct falls well within the scope of the rule’s plain language, Isby-Israel’s vagueness challenge fails.
AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472397/
|
MEMORANDUM ***
Sungale Group, Inc., Sungale Electronics, Ltd., and Amoisonic Electronics, Inc. (collectively Sungale) appeal the district court’s entry of default judgment against them and award of $1,000,000 in statutory damages to Koninklijke Philips Electronics N.V. (Philips). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion when it ordered case dispositive sanctions against Sungale. See Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). The district court found that Sun-gale deliberately destroyed its computer server, and with it electronic records Philips requested; this destruction demonstrated the “willfulness, bad faith, and fault” required to support terminating sanctions. Id. Sungale’s failure to produce requested documents prejudiced Philips, and this failure was not excused by the fact that Philips possessed some of the requested documents by virtue of the U.S. Marshals’ seizure of Sungale’s business records. See Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1116-17 (9th Cir.2004). Finally, the district court initially considered and awarded less severe sanctions and warned Sungale of the possibility of severe sanctions before entering the default judgment against Sungale. See Conn. Gen. Life Ins. Co., 482 F.3d at 1096.
Neither did the district court abuse its discretion when it awarded $1,000,000 in statutory damages to Philips. See Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 699 (9th Cir.2008). Philips elected statutory damages, as permitted by the Lanham Act. 15 U.S.C. § 1117(c). The default judgment against Sungale was warranted by Sungale’s willfulness in offering for sale counterfeit goods bearing Philips’s trademark and by Sungale’s ongoing failure to comply with discovery requests, which made proof of actual damages difficult or impossible. See F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 231, 73 S.Ct. 222, 97 L.Ed. 276 (1952).
AFFIRMED.
phjg disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472398/
|
MEMORANDUM **
Adriana Botello, in her capacity as administrator of the estate of Rene Botello, appeals the district court’s judgment after trial in favor of District Attorney Richard Gammick, Assistant District Attorney John Helzer, and Washoe County in Rene Botello’s First Amendment retaliation case. Because the parties are familiar with the relevant facts, we discuss them only as necessary. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
In order to establish a First Amendment retaliation claim against a government employer, a government employee must show that (1) he engaged in protected speech; (2) the employer took “adverse employment action”; and (3) his speech was a “substantial or motivating factor” for the adverse action. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003).
*279The district court erred in finding Botello did not engage in constitutionally protected speech. His comments to the State of Nevada Attorney General (“AG”) — questioning the accuracy of a nurse in the Child Abuse Response and Evaluation (“CARES”) program and requesting an audit — involved a matter of public concern and were made as a private citizen, rather than in his official capacity. Botello was acting outside the scope of his official duties and was attempting to reveal potential wrongdoing by the DA’s office or the CARES program, not expressing personal dissatisfaction with internal office affairs or furthering some purely private interest. Ulrich v. City & County of S.F., 308 F.3d 968, 979 (9th Cir.2002). Identifying himself as a “detective” and seeking protection from employer retaliation do not change the nature of his speech from a public concern to a private grievance or indicate that he was not acting as a private citizen. Garcetti v. Ceballos, 547 U.S. 410, 420-21, 425, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Thus, Botello established the first prong of his First Amendment retaliation claim.
The district court properly determined that the Defendants did not engage in any adverse action related to Botello’s employment as a school police officer. The prosecutors are absolutely immune for their decision not to use Botello as a witness. Botello v. Gammick, 413 F.3d 971, 977 (9th Cir.2005). And, the district court did not commit clear error in finding that the Defendants did not attempt to interfere with any administrative or investigative functions such as hiring, how to use Botello, or how to staff or conduct criminal investigations. Thus, Botello’s First Amendment retaliation claim for interference with his school police officer position fails.
However, the district court abused its discretion by excluding evidence on Defendant Gammick’s alleged interference with Botello’s position as a truancy officer. Although not asserted in his complaint, Botello’s truancy officer claim was included in the joint pre-trial order as well as in summary judgment proceedings before the district court. The pre-trial order functions as a pleading, and the parties had sufficient notice of the claim. Fed. R.Civ.P. 16; Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 719 (9th Cir. 2004); In re Hunt, 238 F.3d 1098, 1101 (9th Cir.2001). The district court’s error was not harmless. The prosecutor could not invoke absolute immunity for any interference with the truancy officer position because this position would not require Botello to testify as a witness and would have no connection to the prosecutor’s judicial function. Further, Botello presented sufficient evidence for this claim to be considered by the court in its bench trial. Thus, we remand this case to the district court to determine whether Gammick engaged in an adverse action or was substantially motivated by Botello’s constitutionally protected speech in the first instance.
AFFIRMED in part, REVERSED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472403/
|
MEMORANDUM **
Plaintiff Teddy Roosevelt Watson appeals the district court’s orders1 (1) granting in part and denying in part the defendants’ motion to dismiss the first amended complaint; (2) denying Watson’s motion for relief from Local Rule 23-8 and denying Watson’s motion for class action certification as moot; (3) granting the defendants’ ex parte application requesting leave to amend their answer; (4) granting in part and denying in part the defendants’ motion for summary judgment; (5) denying Watson’s motion for attorney fees; and (6) denying Watson’s motion for an enlargement of time to file a notice of appeal of the district court’s denial of attorney fees. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court.
1. The district court properly dismissed Watson’s second, third, eighth, ninth, sixteenth, and seventeenth claims; first and fourth claims as to the California Board of Prison Terms defendants; seventh, eleventh, thirteenth, fourteenth, and fifteenth claims as to the California Department of Corrections defendants; and tenth claim as to all defendants except Eli Anaya and Brigit Murria. The district court did not err because, “ ‘assuming all facts and inferences in favor of the non-moving party, it appears beyond doubt that [Watson] can prove no set of facts to support [his claims]’ ” that would entitle him to relief. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006) (quoting Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003)).
The district court did not err in determining that the defendants were entitled to qualified immunity on Watson’s fifth and twelfth claims. Assuming that there was a constitutional violation, the defendants were entitled to qualified immunity because their conduct was not in violation of clearly established law at the time of Watson’s arrest or his parole revocation hearing. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818, 821-22, 172 L.Ed.2d 565 (2009).
The district court did not err in determining that Fernando Perez and Thomas Wadkins were entitled to absolute immunity because their actions were integrally related to the decision to revoke Watson’s parole. See Swift v. California, 384 F.3d 1184, 1191 (9th Cir.2004) (“[A]n official who adjudicates parole decisions is entitled to quasi-judicial immunity for those decisions, and actions integral to those decisions.”).
2. The district court did not abuse its discretion in denying Watson’s motion *285for relief from Local Rule 23-3 because Watson’s unfamiliarity with the local rules and unnecessary delay in filing his motion did not constitute excusable neglect. See Fed.R.Civ.P. 6(b)(1)(B) (requiring a showing of excusable neglect if a motion to extend time is made after the time to act has expired); Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir.2004) (en banc) (stating that “a lawyer’s failure to read an applicable rule is one of the least compelling excuses that can be offered”).
3. The district court did not abuse its discretion in allowing the defendants to amend their answer because the defendants’ inadvertent admission was due to a clerical error. See Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave [to amend pleadings] when justice so requires.”).
4. The district court properly granted summary judgment in favor of the defendants on the balance of Watson’s claims because “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 [defendants are] entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The district court also did not err in denying Watson’s request for compensatory damages on his seventh claim because he failed to produce any evidence of emotional harm.
5. The district court did not abuse its discretion when it denied Watson’s motion for an enlargement of time to file a notice of appeal of the district court’s denial of attorney fees because his attorney’s misreading of the federal rules of procedure and his deliberate decision not to seek an extension of time did not constitute “excusable neglect.” See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (stating that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect”). Because Watson did not file a timely appeal, this court lacks jurisdiction to review the district court’s denial of attorney fees.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. We note that Watson appeals "all of the District Court's adverse rulings in their entirety.” Several adverse rulings, however, were not addressed by Watson in his briefs and will not be addressed by this court. See Fed. R.App. P. 28(a)(9)(A) ("The appellant’s brief must contain ... appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies[.]”); Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095, 1100 (9th Cir.2007) ("Issues raised in an opening brief but not supported by argument are considered abandoned.”).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472405/
|
MEMORANDUM **
Larry Donnell King, a California state prisoner, appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s application of substantive law de novo and its factual determinations for clear error. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We may affirm on any basis supported by the record, Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001), and we affirm.
The record shows that King filed suit prior to completing the prison grievance process; therefore the district court properly dismissed the action. See McKinney v. Carey, 311 F.3d 1198, 1200-1201 (9th Cir.2002) (per curiam) (affirming dismissal of prisoner’s civil rights action for failure to complete administrative remedies prior to filing suit).
We deny King’s request for judicial notice. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir.2006) (declining to take judicial notice of documents that were not relevant to the resolution of the appeal).
King’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472396/
|
MEMORANDUM ***
Sungale Group, Inc., Sungale Electronics, Ltd., and Amoisonic Electronics, Inc. (collectively Sungale) appeal the district court’s entry of default judgment against them and award of $1,000,000 in statutory damages to Koninklijke Philips Electronics N.V. (Philips). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion when it ordered case dispositive sanctions against Sungale. See Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). The district court found that Sun-gale deliberately destroyed its computer server, and with it electronic records Philips requested; this destruction demonstrated the “willfulness, bad faith, and fault” required to support terminating sanctions. Id. Sungale’s failure to produce requested documents prejudiced Philips, and this failure was not excused by the fact that Philips possessed some of the requested documents by virtue of the U.S. Marshals’ seizure of Sungale’s business records. See Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1116-17 (9th Cir.2004). Finally, the district court initially considered and awarded less severe sanctions and warned Sungale of the possibility of severe sanctions before entering the default judgment against Sungale. See Conn. Gen. Life Ins. Co., 482 F.3d at 1096.
Neither did the district court abuse its discretion when it awarded $1,000,000 in statutory damages to Philips. See Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 699 (9th Cir.2008). Philips elected statutory damages, as permitted by the Lanham Act. 15 U.S.C. § 1117(c). The default judgment against Sungale was warranted by Sungale’s willfulness in offering for sale counterfeit goods bearing Philips’s trademark and by Sungale’s ongoing failure to comply with discovery requests, which made proof of actual damages difficult or impossible. See F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 231, 73 S.Ct. 222, 97 L.Ed. 276 (1952).
AFFIRMED.
phjg disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472399/
|
MEMORANDUM **
Adriana Botello, in her capacity as administrator of the estate of Rene Botello, appeals the district court’s judgment after trial in favor of District Attorney Richard Gammick, Assistant District Attorney John Helzer, and Washoe County in Rene Botello’s First Amendment retaliation case. Because the parties are familiar with the relevant facts, we discuss them only as necessary. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
In order to establish a First Amendment retaliation claim against a government employer, a government employee must show that (1) he engaged in protected speech; (2) the employer took “adverse employment action”; and (3) his speech was a “substantial or motivating factor” for the adverse action. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003).
*279The district court erred in finding Botello did not engage in constitutionally protected speech. His comments to the State of Nevada Attorney General (“AG”) — questioning the accuracy of a nurse in the Child Abuse Response and Evaluation (“CARES”) program and requesting an audit — involved a matter of public concern and were made as a private citizen, rather than in his official capacity. Botello was acting outside the scope of his official duties and was attempting to reveal potential wrongdoing by the DA’s office or the CARES program, not expressing personal dissatisfaction with internal office affairs or furthering some purely private interest. Ulrich v. City & County of S.F., 308 F.3d 968, 979 (9th Cir.2002). Identifying himself as a “detective” and seeking protection from employer retaliation do not change the nature of his speech from a public concern to a private grievance or indicate that he was not acting as a private citizen. Garcetti v. Ceballos, 547 U.S. 410, 420-21, 425, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Thus, Botello established the first prong of his First Amendment retaliation claim.
The district court properly determined that the Defendants did not engage in any adverse action related to Botello’s employment as a school police officer. The prosecutors are absolutely immune for their decision not to use Botello as a witness. Botello v. Gammick, 413 F.3d 971, 977 (9th Cir.2005). And, the district court did not commit clear error in finding that the Defendants did not attempt to interfere with any administrative or investigative functions such as hiring, how to use Botello, or how to staff or conduct criminal investigations. Thus, Botello’s First Amendment retaliation claim for interference with his school police officer position fails.
However, the district court abused its discretion by excluding evidence on Defendant Gammick’s alleged interference with Botello’s position as a truancy officer. Although not asserted in his complaint, Botello’s truancy officer claim was included in the joint pre-trial order as well as in summary judgment proceedings before the district court. The pre-trial order functions as a pleading, and the parties had sufficient notice of the claim. Fed. R.Civ.P. 16; Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 719 (9th Cir. 2004); In re Hunt, 238 F.3d 1098, 1101 (9th Cir.2001). The district court’s error was not harmless. The prosecutor could not invoke absolute immunity for any interference with the truancy officer position because this position would not require Botello to testify as a witness and would have no connection to the prosecutor’s judicial function. Further, Botello presented sufficient evidence for this claim to be considered by the court in its bench trial. Thus, we remand this case to the district court to determine whether Gammick engaged in an adverse action or was substantially motivated by Botello’s constitutionally protected speech in the first instance.
AFFIRMED in part, REVERSED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472402/
|
MEMORANDUM **
Plaintiff Teddy Roosevelt Watson appeals the district court’s orders1 (1) granting in part and denying in part the defendants’ motion to dismiss the first amended complaint; (2) denying Watson’s motion for relief from Local Rule 23-8 and denying Watson’s motion for class action certification as moot; (3) granting the defendants’ ex parte application requesting leave to amend their answer; (4) granting in part and denying in part the defendants’ motion for summary judgment; (5) denying Watson’s motion for attorney fees; and (6) denying Watson’s motion for an enlargement of time to file a notice of appeal of the district court’s denial of attorney fees. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court.
1. The district court properly dismissed Watson’s second, third, eighth, ninth, sixteenth, and seventeenth claims; first and fourth claims as to the California Board of Prison Terms defendants; seventh, eleventh, thirteenth, fourteenth, and fifteenth claims as to the California Department of Corrections defendants; and tenth claim as to all defendants except Eli Anaya and Brigit Murria. The district court did not err because, “ ‘assuming all facts and inferences in favor of the non-moving party, it appears beyond doubt that [Watson] can prove no set of facts to support [his claims]’ ” that would entitle him to relief. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006) (quoting Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003)).
The district court did not err in determining that the defendants were entitled to qualified immunity on Watson’s fifth and twelfth claims. Assuming that there was a constitutional violation, the defendants were entitled to qualified immunity because their conduct was not in violation of clearly established law at the time of Watson’s arrest or his parole revocation hearing. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818, 821-22, 172 L.Ed.2d 565 (2009).
The district court did not err in determining that Fernando Perez and Thomas Wadkins were entitled to absolute immunity because their actions were integrally related to the decision to revoke Watson’s parole. See Swift v. California, 384 F.3d 1184, 1191 (9th Cir.2004) (“[A]n official who adjudicates parole decisions is entitled to quasi-judicial immunity for those decisions, and actions integral to those decisions.”).
2. The district court did not abuse its discretion in denying Watson’s motion *285for relief from Local Rule 23-3 because Watson’s unfamiliarity with the local rules and unnecessary delay in filing his motion did not constitute excusable neglect. See Fed.R.Civ.P. 6(b)(1)(B) (requiring a showing of excusable neglect if a motion to extend time is made after the time to act has expired); Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir.2004) (en banc) (stating that “a lawyer’s failure to read an applicable rule is one of the least compelling excuses that can be offered”).
3. The district court did not abuse its discretion in allowing the defendants to amend their answer because the defendants’ inadvertent admission was due to a clerical error. See Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave [to amend pleadings] when justice so requires.”).
4. The district court properly granted summary judgment in favor of the defendants on the balance of Watson’s claims because “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 [defendants are] entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The district court also did not err in denying Watson’s request for compensatory damages on his seventh claim because he failed to produce any evidence of emotional harm.
5. The district court did not abuse its discretion when it denied Watson’s motion for an enlargement of time to file a notice of appeal of the district court’s denial of attorney fees because his attorney’s misreading of the federal rules of procedure and his deliberate decision not to seek an extension of time did not constitute “excusable neglect.” See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (stating that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute ‘excusable’ neglect”). Because Watson did not file a timely appeal, this court lacks jurisdiction to review the district court’s denial of attorney fees.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. We note that Watson appeals "all of the District Court's adverse rulings in their entirety.” Several adverse rulings, however, were not addressed by Watson in his briefs and will not be addressed by this court. See Fed. R.App. P. 28(a)(9)(A) ("The appellant’s brief must contain ... appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies[.]”); Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095, 1100 (9th Cir.2007) ("Issues raised in an opening brief but not supported by argument are considered abandoned.”).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472404/
|
MEMORANDUM **
Larry Donnell King, a California state prisoner, appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s application of substantive law de novo and its factual determinations for clear error. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We may affirm on any basis supported by the record, Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001), and we affirm.
The record shows that King filed suit prior to completing the prison grievance process; therefore the district court properly dismissed the action. See McKinney v. Carey, 311 F.3d 1198, 1200-1201 (9th Cir.2002) (per curiam) (affirming dismissal of prisoner’s civil rights action for failure to complete administrative remedies prior to filing suit).
We deny King’s request for judicial notice. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir.2006) (declining to take judicial notice of documents that were not relevant to the resolution of the appeal).
King’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472408/
|
MEMORANDUM *
Michael Lojas and Dian Lynn Lojas appeal the dismissal on summary judgment of their § 1983 suit against the State of Washington, the Washington Department of Fish and Wildlife (WDFW), and Terry L. Ray-Smith, a WDFW officer sued in her official and personal capacities. Because the district court correctly granted summary judgment to the various defendants on Eleventh Amendment and qualified immunity grounds, we affirm.
*290Appellants’ § 1983 claims against the State of Washington and WDFW are absolutely barred by the Eleventh Amendment. See Wolfe v. Strankman, 392 F.3d 358, 364 (9th Cir.2004). The district court also correctly dismissed appellants’ § 1983 claims against Officer Ray-Smith in her official capacity on Eleventh Amendment grounds, since the complaint did not seek prospective injunctive relief for a continuing constitutional violation by Officer Ray-Smith, see Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), but instead sought only monetary damages.
The § 1983 claim against Officer Ray-Smith in her personal capacity was properly dismissed by the district court on qualified immunity grounds. Regardless of the ultimate constitutionality of Officer Ray-Smith’s actions, she did not violate any clearly-established right of appellants in searching their property or in seizing four deer skulls and a taxidermist log book as suspected contraband. See Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). Officer Ray-Smith’s search was incidental to the execution of a valid drug warrant, and her warrantless seizures were conducted pursuant to two Washington state statutes specifically authorizing such action by WDFW officers. See RCW §§ 77.15.070(1) and 77.15.085. Officer Ray-Smith’s conduct did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known,” Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quotation marks and citation omitted).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472419/
|
MEMORANDUM ***
In September 2004, appellants Tony and Carol Henderson defaulted on a refinanced home loan that had been sold and assigned to GMAC Mortgage Corporation and was being serviced by First Mortgage Loan Servicing (collectively “GM FMLS”). The Hendersons claim that, after they missed two payments, they entered into an oral contract with GM FMLS under which they would bring their account current through a series of payments and, in exchange, GM FMLS would not initiate foreclosure proceedings. Later, when the Hendersons failed to make a payment equal to the total arrearage plus interest, GM FMLS began the non-judicial foreclosure process.
The Hendersons then filed for bankruptcy, staying the foreclosure proceeding. Six months later, they sued GM FMLS for, among other things, 1) breach of contract, 2) negligent infliction of emotional distress, 3) illegal foreclosure, and 4) violations of the Truth in Lending Act (“TILA”). The district court excluded the affidavit of Tony Henderson’s brother and proposed expert, T.J. Henderson, and granted summary judgment on all claims in favor of GM FMLS. We affirm.
We review a district court’s decision to exclude expert testimony for abuse of discretion. United States v. Seschillie, 310 F.3d 1208, 1211 (9th Cir.2002). The district court did not abuse its discretion in excluding T.J. Henderson’s affidavit. Federal Rule of Evidence 702 provides that,
[1]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if 1) the testimony is based upon sufficient facts or data, 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the ease.
T.J. Henderson provided little information about where and when he obtained his education and training, his conclusions lacked factual support, and the opinions he provided required no scientific, technical, or other specialized knowledge.
We review a district court’s grant of summary judgment de novo. Feldman v. Allstate Ins. Co., 322 F.3d 660, 665 (9th Cir.2003). The district court did not err when it found no binding oral contract between the Hendersons and GM FMLS because there was no evidence that the parties agreed upon a date by which the account must be made current. See De-Phillips v. Zolt Constr. Co., 136 Wash.2d 26, 959 P.2d 1104, 1107 (1998). Because the Hendersons’ emotional distress claim was based solely on the breach of this nonexistent oral contract, the district court correctly granted summary judgment on that claim as well. See Gaglidari v. Denny’s Rests., Inc., 117 Wash.2d 426, 815 P.2d 1362, 1372 (1991).
*302The district court also correctly determined that the Hendersons could not recover on their illegal foreclosure claim because no foreclosure has occurred and because GM FMLS had the right to foreclose after the Hendersons’ default.
The Hendersons’ arguments regarding their right to rescind their loan based on TILA violations are unpersuasive. No right to rescind existed here because the Hendersons received a timely notice of right to cancel, as evidenced by their signatures on the document. See 15 U.S.C. § 1641(b). They failed to exercise that right within the requisite time period.
Further, the statute of limitations on their TILA damages claims expired in November 2003. See 15 U.S.C.A § 1640(e); see also King v. California, 784 F.2d 910, 915 (9th Cir.1986). These claims cannot be salvaged under a theory of recoupment because the Hendersons, not GM FMLS, initiated this action. See Beach v. Ocwen Fed. Bank, 523 U.S. 410, 415, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). Further, the district court could require the Hendersons to prove their ability to comply with requirements of 15 U.S.C. § 1635(b) before granting them the right to rescind the loan. See Yamamoto v. Bank of N. Y., 329 F.3d 1167, 1173 (9th Cir.2003).
Finally, there is no valid basis for disregarding the April 6, 2005, letter submitted by GM FMLS, which letter notified the Hendersons that their right to rescind had expired in November 2002.
Affirmed.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472421/
|
MEMORANDUM **
Levon Garabed Agopian, a native and citizen of Bulgaria, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from an immigration judge’s decision denying his applications for asylum, withholding of deportation, and relief under the Convention Against Torture (“CAT”). Agopian’s application for asylum is derivative; the principal applicant is his mother, Satenik Arsharouni. The BIA terminated Arsharouni’s deportation proceedings in March 2009, while this petition for review was pending. The impact of the termination of the principal applicant’s proceedings on Agopian’s applications for relief and his petition for review is unclear. We therefore grant Agopian’s petition for review, and remand for further proceedings.
Because the BIA terminated his mother’s deportation proceedings, it appears that her asylum application has been abandoned, possibly leaving Agopian in the position of having no pending asylum application. Although Agopian is now over 21 years of age, he would be considered a child under 8 U.S.C. § 1158(b)(3)(B), and therefore eligible to receive derivative asylee status if the asylum application were granted, if the application were still pending. See id. (“An unmarried alien who seeks to accompany ... a parent granted asylum ... shall continue to be classified as a child ... if the alien attained 21 years of age after such application was filed but while it was pending.”).
It appears that neither this court nor the BIA has addressed the question of whether or how a child named for derivative asylee status in a parent’s asylum application may proceed in seeking asylum when the principal applicant is no longer seeking such relief. Because it is unclear whether Agopian’s petition for review is moot as to asylum, we remand for the BIA to determine in the first instance the status of Agopian’s application for asylum. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).
Because we remand as to asylum, we do not reach Agopian’s applications for withholding of deportation or CAT relief.
Each party shall bear its own costs for this petition for review.
*304PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472411/
|
*292MEMORANDUM *
Plaintiff Michael Oksner filed this action on behalf of all commercial pilots who lost, or would soon lose, their commercial licenses under the Federal Aviation Administration’s former “Age 60 Rule,” 14 C.F.R. § 121.383(c) (2006), which prohibited most commercial airline pilots from flying after their 60th birthdays, but which has since been repealed by the Fair Treatment for Experienced Pilots Act, Pub.L. No. 110-135, 121 Stat. 1450 (2007) (codified as amended at 49 U.S.C. § 44729) (the “Fan-Treatment Act”).1
Oksner sought injunctive relief and a declaratory judgment that the Rule violated the equal protection right guaranteed by the Fifth Amendment, damages against the United States under the Federal Tort Claims Act (“FTCA”), and damages against four current or former FAA administrators in their individual capacities for their role in enforcing the allegedly unconstitutional rule.
The district court dismissed the action with prejudice and Oksner appeals. We have jurisdiction under 28 U.S.C. § 1291, and affirm.2
1. With respect to Oksner’s claim for injunctive and declaratory relief, the Fair Treatment Act, 49 U.S.C. § 44729(d), repeals the Age 60 Rule; therefore, this claim is moot.
2. With respect to Oksner’s claim for damages under the FTCA, the district court correctly determined that it lacked jurisdiction over Oksner’s claim because Oksner failed to exhaust his administrative remedies, which is an “unambiguous” jurisdictional prerequisite to bringing suit under the FTCA. McNeil v. United States, 508 U.S. 106, 111, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006). Contrary to Oksner’s argument, there is no futility exception to this requirement. See Spawr v. United States, 796 F.2d 279, 281 (9th Cir.1986). Nor is Oksner excused from complying with this requirement because he raises a constitutional issue. In fact, to the extent his claim amounts to a constitutional tort, it is not actionable at all under the FTCA. See FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994).
3. Oksner’s attempt to seek a remedy against the individual FAA administrators under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), also fails. Because the Administrative Procedure Act (“APA”) creates a remedy for seeking judicial redress of alleged constitutional violations by federal agencies, see 5 U.S.C. §§ 702, 704, 706(2)(B), no Bivens remedy is available in these circumstances. See W. Radio Servs. Co. v. U.S. Forest Serv., No. 08-35186, 2009 WL 2568706, at *6 (9th Cir. Aug.21, 2009) (“[T]he APA leaves no room for Bivens claims based on agency action or inaction.”); Sky Ad, Inc. v. McClure, 951 F.2d 1146, 1148 (9th Cir.1991).
4. Finally, although Oksner’s complaint is unclear, the district court construed it as seeking to bring a common-law tort claim against the individual defendants. The district court correctly determined that it lacked personal jurisdiction over the FAA administrators. See Doe v. Am. Nat’l Red Cross, 112 F.3d 1048, 1051 *293(9th Cir.1997) (holding that a district court lacks personal jurisdiction over agency head based solely on his “role in the regulatory process”).
5. In light of these circumstances, “it is clear, upon de novo review, that the complaint could not be saved by any amendment”; thus, the district court did not err in dismissing the action without leave to amend. See Lee v. City of L.A., 250 F.3d 668, 692 (9th Cir.2001) (citation and quotation marks omitted).
The judgment of the district court is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. No plaintiffs’ class was certified.
. Because the facts and prior proceedings are known to the parties, we restate them here only as necessary to explain our disposition.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472412/
|
MEMORANDUM **
In this 42 U.S.C. § 1983 takings action, Plaintiffs Mackin, Delaney, Nash, Cliff, Frank, Wilke, Barclay, and Kettel (“the Homeowners”) appeal the summary judgment grant in favor of the City of Coeur d’Alene (“the City”). In a prior quiet title action, the City sought declaratory relief and a preliminary injunction to establish the ordinary high water mark of the Lake Coeur d’Alene, which under state law serves as the boundary between the Homeowners’ property and the state-owned beach. The Homeowners argue that they are entitled to compensation for a temporary partial loss of their property occurring during the five months a court-ordered preliminary injunction was in effect.
The Takings Clause of the Fifth Amendment prohibits the government from taking “private property ... for public use, without just compensation.” U.S. Const, amend. V. This clause prohibits “[gjovernment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Penn. Cent. *295Transp. Co. v. City of New York, 438 U.S. 104, 123, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)). A plaintiff must make a showing of causation between the government action and the alleged deprivation. Esplanade Properties, LLC v. City of Seattle, 307 F.3d 978, 984 (9th Cir.2002). A plaintiff raising a takings claim “must establish both causation-in-fact and proximate causation.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764 (9th Cir.2000), aff'd, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002).
Here, the City is not liable under § 1983 for the effects of a preliminary injunction determining the scope of property ownership during the pendency of the trial. See id. The plaintiffs’ alleged injury — the temporary taking of their private property — was the result of this preliminary injunction and not the result of any improper use of the governmental entity’s own powers. The City did not exercise its own authority to take control over property in a manner necessary to constitute a taldng.
Even if a city’s decision to seek an injunction could ever constitute a taking, the district court did not err by concluding there was no physical taking nor regulatory taking here because the Homeowners did not suffer a permanent, physical occupation of the property, nor were they denied all economically viable use of the property. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322-23, 330, 122 S.Ct. 1465, 152 L.Ed.2d 517(2002).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472414/
|
MEMORANDUM *
GEICO appeals a grant of summary judgment in favor of Kenneth Hoffman and his guardian Donna Hoffman (collectively “the Hoffmans”) on their claims for additional stacked underinsured motorist insurance payments after Kenneth Hoffman sustained serious injuries as a passenger in an auto accident. The district court found the Hoffmans’ prior release of those claims invalid for lack of consideration. GEICO appeals, conceding that at least $670,000 in damages have now been incurred, but arguing that the Release was valid as obtained for consideration or because consideration was not required. GEICO also appeals an order awarding attorney fees and prejudgment interest to the Hoffmans. We affirm.
The district court correctly determined that the Release was invalid because GEICO provided the Hoffmans with no new consideration in order to obtain it. When GEICO paid the Hoffmans $100,000, it was merely fulfilling its preexisting legal duty under its contract with the Hoffmans. Although GEICO late in the game tried to change its posture on excess damages as of the time the Release was obtained, it twice formally conceded the damages issue, once in its original Answer and again in its response to a specific Interrogatory. The district court did not err by preventing GEICO from amending its judicial admis*297sion after discovery closed. American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir.1988) (“Judicial admissions are formal admissions in the pleadings which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.”) (quotations omitted).
GEICO also argues that it was not required to give new consideration for a valid release because of Montana Code Annotated (“MCA”) § 28-1-1601, which states that “[a]n obligation is extinguished by a release therefrom given to the debtor by the creditor upon a new consideration or in -writing, with or without new consideration.” The district court correctly ruled that this provision does not apply here. The plain language of the statute removes the requirement for consideration only in the context of a debtor-creditor relationship.
Although the Montana Supreme Court once cited a previous version of this statutory language in an insurance case, it did so only to support its general observation that a release is a form of contract and subject to similar defenses. See Westfall v. Motors Ins. Corp., 140 Mont. 564, 374 P.2d 96, 98 (1962). Westfall did not actually hold that an insurance obligation creates a debtor-creditor relationship subject to the statute and apparently only cited the statutory language to demonstrate the legislature’s belief that releases should be treated like other contracts, with limited exceptions.
Moreover, it is doubtful that the Montana legislature intended the word “debtors,” which is defined in the “Credit Transactions and Relationships” section of the Montana Code, to apply to all insured individuals owed money under their insurance policies. MCA § 28-1-1601 appears designed to facilitate creditors’ ability to release debtors from their obligations, which must necessarily be done without consideration in many situations, such as where debtors are insolvent. Where debtors owe money to banks or other traditional “creditors,” the normal policy rationales for requiring new consideration for a release apply with far less force because such creditors typically know their rights, have counsel, and are unlikely to enter into written agreements due to undue influence, coercion, or fraud.
In the insurance context, however, the insured is not in the same situation. As in this case, the insured often does not have counsel or extensive prior experience with similar transactions. Therefore, interpreting MCA § 28-1-1601 in light of the “enhanced fiduciary obligation” owed by an insurance company to its insured under Montana precedent, see Mountain West Farm Bureau Mutual Ins. Co. v. Brewer, 315 Mont. 231, 69 P.3d 652, 660 (2003), we affirm the district court’s holding that new consideration was required under Montana law for release of the Hoffmans’ insurance claims.
Two years after the Release was signed, the Montana Supreme Court held that Montana’s anti-stacking statute was unconstitutional. Hardy v. Progressive Specialty Ins. Co., 315 Mont. 107, 67 P.3d 892 (2003). Under Dempsey v. Allstate Ins. Co., 325 Mont. 207, 104 P.3d 483, 490 (2004), however, the Montana Supreme Court limited the retroactive application of Hardy “to cases pending on direct review or not yet final.” Even assuming Dempsey does limit Hardy’s application not only to claims that were fully adjudicated before Hardy, but also to claims validly settled at that time, the district court did not err by applying Hardy to the Hoffmans’ “case,” which was filed after Hardy was decided. As discussed above, the Hoff-mans’ “claims” were in fact “open.” They were never validly “settled” prior to Har*298dy because of the lack of consideration for their release. Consequently, Hardy’s application to their claims is prospective, not retroactive.
Nor did the district court abuse its discretion by awarding the Hoffmans attorney fees under the equitable “insurance exception” to the American Rule because they filed the present action to “obtain the full benefit” of their insurance coverage and were in privity of contract with GEICO. Brewer, 69 P.3d at 660; Sampson v. Nat’l Farmers Union, 333 Mont. 541, 144 P.3d 797, 801 (2006) (exception applies to first party actions where there is privity of contract).
The district court also did not abuse its discretion by awarding the Hoff-mans prejudgment interest under MCA § 27-1-211. Although GEICO was not a “debtor” to the Hoffmans when the Release was signed, the nature of GEICO’s obligation to the Hoffmans changed on April 18, 2007, when the Hoffmans and GEICO stipulated that the damages sustained by Kenneth exceeded the $300,000 in “stacked” limits of underinsured motorist coverage. At that point, the uncontested facts gave rise to GEICO’s obligation to the Hoffmans for the certain sum of $200,000 of additional benefits, subject only to legal defenses. See Montana Petroleum Release Compensation Bd. v. Crumleys, Inc., 341 Mont. 33, 174 P.3d 948, 965 (2008) (stating that MCA § 27-1-211 allows recovery of prejudgment interest when an underlying monetary obligation exists, the amount of recovery can be made certain, and the right to recover vests on a particular day); see also Swank Enters. v. All Purpose Servs., Ltd., 336 Mont. 197, 154 P.3d 52, 58 (2007) (“ ‘[T]he fact that a claim is disputed does not make it uncertain,’ as long as the damage amount is reduced to certainty on a particular day.” (quoting Safeco Ins. Co. v. Lovely Agency, 215 Mont. 420, 697 P.2d 1354, 1357 (1985))).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8472415/
|
BYBEE, Circuit Judge,
dissenting:
I respectfully dissent. Even assuming that the Release was invalid, the Hoffmans cannot bring this breach of contract suit against GEICO under Montana law.
When GEICO paid the Hoffmans $100,000 on July 5, 2001, that sum was the entire amount available under the Hoff-mans’ insurance contract under then-existing Montana law, which prohibited stacking.1 Accordingly, the Hoffmans’ claim with GEICO was closed by accord and satisfaction on July 5, 2001, regardless of the validity of any accompanying Release. In 2003, two years after GEICO paid the full amount of the Hoffmans’ insurance policy available under then-applicable law, the Montana Supreme Court held Montana’s anti-stacking statute to be unconstitutional, Hardy v. Progressive Specialty Ins. Co., 315 Mont. 107, 67 P.3d 892 (2003), but left open whether Hardy’s holding retroactively applied to already-paid claims. In 2004, the Montana Supreme Court squarely addressed the Hardy retroactivity issue, stating:
[W]e conclude that Hardy applies retroactively to require payment of stacked uninsured, underinsured motorist and medical payment insurance coverages in qualifying circumstances on open claims arising before its issuance. However, in the interests of finality ... we limit this retroactivity to cases pending on direct review or not yet final.
*299Dempsey v. Allstate Ins. Co., 325 Mont. 207, 104 P.3d 483, 490 (2004).
In my view, Dempsey makes plain that Hardy retroactivity does not apply to the Hoffmans’ fully-paid claim. First, the plain meaning of the phrase “open claims” should not be read to include claims paid in full under then-prevailing la%v; accord and satisfaction of an insurance claim does not leave that claim “open” under any commonsense understanding of the term. Moreover, by using a limiting phrase— “[h]owever, in the interests of finality ... ” — the Dempsey court signaled that its second sentence was intended not to restate the first, but to limit it in a material way. The second sentence ultimately prescribes just such a limitation: “we limit this retroactivity to cases pending on direct review or not yet final.” 104 P.3d at 483 (emphasis added). Having used “claims” just one sentence before, and given the importance of “claims” versus “cases” in the insurance context, the Montana Supreme Court’s use of the word “cases” instead of “claims” cannot be presumed to be unintentional. Although the word “cases” is certainly open to more than one meaning as a general matter, in using the phrase “cases pending on direct review or not yet final” in Dempsey, the Montana Supreme Court intended to refer only to judicial actions already pending in a court of first instance or on direct appeal.
My reading is bolstered by the fact that Dempsey emphasized “the interests of finality.” Montana has an eight-year statute of limitations on breach of contract claims, see MCA 27-2-202(1), so at the time Dempsey was decided in 2004, every single UIM claim paid, but not sued-upon, since the enactment of Montana’s antistacldng statute in 1997 would have been open to a Hardy-retroactivity lawsuit under the majority’s interpretation of Dempsey. If the Montana Supreme Court intended Hardy to apply retroactively to every single non-sued-upon UIM claim paid under the anti-stacking regime, it could have said so explicitly. I do not know how many UIM claims were paid in Montana from 1997 through 2003, but issuing a ruling inviting a lawsuit by each and every such claimant does not accord with “the interests of finality.”
In sum, because GEICO paid the Hoff-mans’ claim in full under then-existing Montana law, and a subsequent change in the applicable law was not made retroactive to claims such as the Hoffmans’, I would reverse the district court’s grant of summary judgment to the Hoffmans and order that court to enter summary judgment in favor of GEICO dismissing the complaint.
. As the majority explains, GEICO's $100,000 payment "provided the Hoffmans with no new consideration,” maj. op. at 296, and "merely fulfilled GEICO's] preexisting legal duty under its contract with the Hoffmans.” Id.
|
01-04-2023
|
11-05-2022
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.