Input: of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damages.” Earle v. Benoit, 850 F.2d 836, 844 (1st Cir.1988)(quoting Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir.1979)) (internal quotations omitted). While plaintiffs are correct that “conspiracy is a matter of inference,” summary judgment may still be appropriate on a conspiracy claim where the nonmoving party rests merely on conclusory allegations. Here plaintiffs have presented no evidence, either direct or circumstantial of an agreement among defendants from which a reasonable jury could have inferred a conspiracy among them to inflict harm upon the plaintiffs. Earle, 850 F.2d at 845; see also Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977)(<HOLDING>). Summary judgment was thus proper on this Holdings: 0: holding that complaint alleging a conspiracy to deprive plaintiff of his civil rights cannot survive motion to dismiss based on conclusory allegations of conspiracy which are not supported by references to material facts 1: holding that a civil rights claim of conspiracy must include allegations of specific operative facts 2: holding plaintiffs must provide particularized allegations as to why demand would be futile to survive a motion to dismiss conclusory allegations are not enough 3: holding that a person alleging a conspiracy to violate constitutional rights must do more than simply aver that a conspiracy existed 4: holding that plaintiffs allegations of abuse did not amount to the allegations of torture required by  1605a7 to survive a motion to dismiss


Input: “considered the factors listed in U.S.C. 3553(a)” and imposed a fourteen-month sentence. Parker contends that the district court procedurally erred by not adequately explaining the reasons for the fourteen-month sentence. We review a district court’s revocation sentence using the same standards applied to initial sentencing decisions. United States v. Miller, 557 F.3d 910, 915-16 (8th Cir. 2009). We first review to ensure that the district court did not commit a significant procedural error. United States v. Dace, 660 F.3d 1011, 1013 (8th Cir. 2011). We then evaluate the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. United States v. Timberlake, 6 e substantively unreasonable. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (<HOLDING>). Accordingly, we affirm. 1 . The Honorable Holdings: 0: holding that a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the sentencing guidelines 1: holding that sentence within guidelines range enjoys a presumption of reasonableness 2: holding that we may apply a presumption of reasonableness to a sentence within the guidelines range 3: holding a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the sentencing guidelines 4: recognizing a presumption of reasonableness


Input: supra, at page 64. Since there is not one rule or principle of law that can dispose of the issue in all cases, J. B. Henriques, Inc. v. United States, supra, each ease, when you come down to it, must stand on its own particular facts. The applicable law under paragraph 1558 is clear. “To constitute an article 'manufactured’ it is not necessary that the article be converted into a new and different article, having a distinctive name, character or use different from that of the original article (such would be the requirement to constitute an article a ‘manufacture’), but only that the article be so processed that it be removed from its crude or primary state, though it remain a variety of the original material. * * Chas. H. Demarest, Inc. v. United States, supra, 44 CCPA at page 137 (<HOLDING>) The facts here are not in dispute. The Holdings: 0: holding that the changes to as0910030 were not intended to be retrospective 1: holding that industrial wastes were not products under a products hazard exception because they were not intended for consumption sale or use by others  2: holding that where palmyra fibers were trimmed to advance the merchandise towards its intended use the fibers were manufactured under paragraph 1558 3: holding that the litigation privilege did not preclude a malicious prosecution claim where the accusatorial statements that led to the plaintiffs arrest were made before the charges against him were filed and were not made during and were unrelated to the judicial proceeding 4: holding that conveyances were not intended to defraud creditors


Input: helpful to the jury’s determination of facts at issue.” Ariz. R. Evid. 702 cmt. (2012). But the comment also observes that “[t]he trial court’s gatekeeping function is not intended to replace the adversary system.” Id. Rather, “[c]ross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id.; cf. Daubert, 509 U.S. at 596, 113 S.Ct. 2786. ¶ 12 Daubert left unclear whether the particular application of a generally reli oach of leaving challenges to an expert’s application of a methodology exclusively to the jury. Such challenges are instead a proper subject of the trial court’s gatekeeping inquiry. But cf. United States v. Bonds, 12 F.3d 540, 563 (6th Cir.1993) (<HOLDING>). ¶ 14 But not all errors in the application of Holdings: 0: holding that federal law governs res judicata effect of an earlier federal judgment based on federal law 1: holding that a statute of limitations defense raised for the first time during trial was waived construing a previous version of federal rule of criminal procedure 12 that was not substantively different from the current version 2: recognizing general rule 3: holding under earlier version of federal rule 702 that in general criticisms touching on whether the lab made mistakes in arriving at its results are for the jury 4: holding officials are entitled to qualified immunity for reasonable mistakes of law


Input: Gen. Stat. § 45-21.16(d). If a party wishes to challenge the clerk’s findings pursuant to N.C. Gen. Stat. § 45-21.16(d), the party must appeal to the judge of the district or superior court having jurisdiction within 10 days. N.C. Gen. Stat. § 45-21.16(d)(1). The trial court’s review of the clerk’s findings is de novo, id., and the trial court is limited on appeal to determining whether the six criteria of N.C. Gen. Stat. § 45-21.16(d) have been satisfied, In re Foreclosure of Godwin, 121 N.C. App. 703, 704, 468 S.E.2d 811, 812 (1996). The trial court is prohibited from reviewing any issue or argument that was not raised before the clerk in connection with the clerk’s N.C. Gen. Stat. § 45-21.16(d) analysis. See In re David A. Simpson, P.C., _ N.C. App. _, _, 711 S.E.2d 165, 170 (2011) (<HOLDING>); Mosler v. Druid Hills Land Co., 199 N.C. App. Holdings: 0: holding that trial court did not err 1: holding that the trial court did not err in refusing to consider debtors claim of rescission as an equitable defense to the foreclosure action where that defense was not raised before the clerk 2: holding that the trial court did not err in its refusal to consider the borrowers defense of merger on appeal since the defense was outside the subject matter jurisdiction of the trial court 3: holding that defendants failure to assert the defense in any pretrial motions did not waive defendants limitations defense because the assertion of a limitations defense in the answer preserved defendants right to raise the defense both during the first trial and before the second 4: holding that the government did not waive an affirmative defense not pleaded in the answer because it raised the defense at a pragmatically sufficient time by listing the defense in the joint pretrial order


Input: advances. Moreover, this assertion is supported by Kin-man’s statement that the notion of being gay was so upsetting to her that it led her to attempt suicide. If Kinman’s opposition to the idea of being gay was as strong as she alleges, it is possible that any advances by a member of her own sex would have indeed been unwelcome. Furthermore, as the Supreme Court noted in Meritor Savings Bank, the relevant question is not whether Kinman voluntarily participated in sexual relations, but rather whether the advances were unwelcome. 477 U.S. at 68, 106 S.Ct. at 2406. To distinguish between an actual desire for a relationship on one hand, and a mere acquiescence to tendered sexual advances on the other, it is necessary to consider the power disparity be 830 F.Supp. 1288, 1297 (N.D.Cal.1993) (<HOLDING>) and Rowinsky v. Bryan Indep. School District, Holdings: 0: holding employer may be hable for sexual harassment of employee by independent contractor 1: holding that the district was not liable under respondeat superior for a teachers sexual assault of a student even though it occurred on school grounds and during school hours because the criminal misconduct was not within the scope of the teachers employment 2: holding school district strictly hable for sexual harassment by its employees 3: holding that school districts are hable for peer sexual harassment in their schools under title ix only if they have actual knowledge of the harassment and act with deliberate indifference in response to it 4: holding school district hable for teachers sexual harassment of student only upon knowing failure to act


Input: while testifying.” Id. at 603. The trial court denied the defendant’s motion for mistrial ubject of expert testimony where a law enforcement agent’s opinion is based on specialized knowledge derived from training or experience and beyond the understanding or experience of the average juror. See § 90.702, Fla. Stat. (2010) (allowing expert testimony on evidence at trial “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue”); United States v. Hankey, 203 F.3d 1160, 1167-69 (9th Cir.2000) (involving the testimony of a law enforcement expert who opined, in part, that “gangs enforce a code of silence among their members”); People v. Martinez, 113 Cal.App.4th 400, 7 Cal.Rptr.3d 49, 59 (2003) (<HOLDING>); Edge v. State, 275 Ga. 311, 567 S.E.2d 1, 3 Holdings: 0: holding that a gang expert could testify on what it meant to be a rat in gang culture because it was relevant to help understand discrepancies between some of the wit nesses statements to the police and their testimony at trial 1: holding that an expert in the field of gangs and gang codes of behavior including the requirements of members obedience silence and staunch defense of other gang members and the punishment meted out to a gang member who violates these requirements could testify because these were factual matters outside the experience of the average juror 2: holding that active participation in a criminal street gang means that there is a relationship between the defendant and the gang that is more than nominal passive inactive or purely technical and that defendant must devote all or a substantial part of his time and efforts to the gang 3: holding that expert testimony from a detective about the reluctance of witnesses residents of gang neighborhoods to testify in cases involving gang activity is relevant to the credibility of a witness 4: holding that experts testimony as to aspects of gang culture relevant to the case including requirements of members obedience silence and staunch defense of other gang members and the punishment meted out to a gang member who violates these requirements went to factual matters outside the experience of the average juror


Input: Anacleto Pacheco-Medina filed a petition for a writ of habeas corpus in federal district court, seeking relief from his Oregon state court conviction for delivery of a controlled substance. The district court denied relief because Pacheco-Medina was not in custody at the time he filed his petition, as required by 28 U.S.C. § 2254. The facts are known to the parties and will not be repeated herein except as necessary. I Pacheco-Medina’s suspended sentence completely expired in January 2000, and he filed his habeas petition in federal district court in November 2001. Accordingly, Pacheco-Medina was not in custody under the conviction and sentence he now seeks to attack. See Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (<HOLDING>). The fact he is now subject to an INS Holdings: 0: recognizing that federal habeas statutes require petitioner to be in custody when petition filed 1: holding that  once the sentence imposed for a conviction has completely expired the collateral consequences of that conviction are not themselves sufficient to render an individual in custody for the purposes of a habeas attack upon it 2: holding that a habeas petitioner must be in custody under the conviction or sentence under attack at the time his petition is filed 3: holding that petitioner could not collaterally attack his state court conviction on a petition for review of an agency decision 4: holding that a california habeas petition is timely if filed within a reasonable time


Input: from strategic decisions of the defendant’s trial counsel under the guise of an “arbitrary fact” for the purposes of 42 Pa.C.S. § 9711(h)(3)’s statutory review). Commonwealth v. Diamond, — Pa.-, 83 A.3d 119, 136 (2013) (footnote omitted). Moreover, the prosecutor here was simply relaying facts. The expression that the “cloak of innocence has been removed” is simply another way of saying that Appellant has been convicted of first-degree murder. Thus, Appellant’s suggestions of unfair prejudice are unfounded. Indeed, Appellant fully disregards the salient fact that the trial judge provided the jury with a full and correct instruction, and the presumption remains that the jury faithfully followed the judge’s instructions. See Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102, 111 (2004) (<HOLDING>). In fact, the record reveals nothing more than Holdings: 0: holding that the law presumes that the jury will follow the courts instructions 1: holding that a jury is presumed to follow the trial courts instructions 2: recognizing that jurors are presumed to follow instructions 3: holding that it is presumed that the jury obeyed the trial courts instructions 4: holding that jurors were presumed to follow instructions similar to those in the instant case


Input: nursing staff failed to exercise professional judgment); Brown v. Tift County Hosp. Auth., 280 Ga.App. 847, 635 S.E.2d 184, 186-87 (2006) (reversing summary judgment for the defendant and finding plaintiffs claim — that the therapist who left her unattended in the shower after plaintiff twice complained she was slipping — sounded in ordinary negligence); Self v. Executive Comm. of the Ga. Baptist Convention Ga., Inc., 245 Ga. 548, 266 S.E.2d 168, 169 (1980) (finding the plaintiffs action was for ordinary negligence, not medical malpractice, based on her allegation that the decedent’s injury was caused by the hospital’s negligence in failing to properly repair a leaking bathroom fixture, of which it had notice); Landes v. Women’s Christian Ass’n, 504 N.W.2d 139, 141 (Iowa Ct.App.1993) (<HOLDING>); Kastler, 193 N.W.2d at 102 (holding that a Holdings: 0: holding movement of victim from kitchen to bathroom did not exceed confinement or removal inherent in the commission of the crime of sexual assault 1: holding that the plaintiff had to provide direct or circumstantial evidence that the supervisors who took the adverse action against the plaintiff knew about the protected activity prior to taking that action 2: holding that if subsequent to the taking and before the trial the ordinance was actually amended to permit the previously forbidden use then that of  itself was weighty evidence of the existence at the time of the taking of the fact that there was a reasonable probability of an imminent change 3: holding that the hospitals taking the plaintiff to the bathroom was nonmedical or routine 4: holding that a cause of action for an unconstitutional taking accrues at the time the taking occurs


Input: a provision that appeared in the certificate of incorporation. Stroud v. Milliken Enters., 585 A.2d 1306, 1308 (Del.Ch.1988), appeal dismissed, 552 A.2d 476 (Del.1989). In light of the three procedural means for ending a director’s term in Section 141(b), I do not believe a bylaw could impose a requirement that would disqualify a director and terminate his service. Rohe v. Reliance Training Network, Inc., 2000 WL 1038190, at *12 (Del.Ch. July 21, 2000). Section 141(b)’s recognition of the bylaws as a locus for director qualifications instead contemplates reasonable qualifications to be applied at the front end, before a director’s term commences, when the director is “elected and qualified.” 8 Del. C. § 141(b); see Triplex Shoe Co. v. Rice & Hutchins, Inc., 152 A. 342, 351 (Del.1930) (<HOLDING>). The concept of a bylaw that would end a Holdings: 0: holding that although wade hearing may be constitutionally mandated under certain circumstances it is not mandated in all cases 1: holding that the transfer of stock in an insolvent corporation did not constitute fair consideration to support conveyance of property to its stockholder 2: holding that a shareholder had standing to bring a direct action against a director of a corporation because the director owed the shareholder a duty separate and apart from that which the director owed to the company 3: holding under the 1898 act that neither the debtor nor its property was involved in stock ownership dispute 4: holding that bylaw requiring a director to be a stockholder mandated stock ownership pri or to entering office


Input: 49, 51 (9th Cir.1994); Hamilton v. Vasquez, 882 F.2d 1469, 1471 (9th Cir.1989), or where disruption in the courtroom is likely in the absence of shackles, see Wilson, 770 F.2d at 1485; see also Stewart v. Corbin, 850 F.2d 492, 497 (9th Cir.1988) (shackling was supported by evidence of prior escapes from immediate physical custody of law enforcement officers, once while handcuffed, and by defendant’s disruptive behavior during trial), cert. denied, 490 U.S. 1016, 109 S.Ct. 1737, 104 L.Ed.2d 175 (1989). It is improper, however, where a compelling need is not established, less restrictive alternatives are not pursued, or where the harms were not assessed. See Rhoden v. Rowland, 10 F.3d 1457, 1459 (9th Cir.1993) (“Rhoden I ”); see, e.g., Packer v. Hill, 291 F.3d 569, 583 (9th Cir.2002) (<HOLDING>), rev’d on other grounds, 537 U.S. 3, 123 S.Ct. Holdings: 0: holding that a complaint is waived by the failure to object during the witness unsworn testimony 1: holding that death of potential alibi witness did not cause actual prejudice because defendant failed to relate the substance of the testimony of the missing witness in sufficient detail and to show witness testimony not available from other sources 2: holding that state trial judge erred by placing defendant in leg brace where the only evidence of security risk was unsworn testimony that potential witness planned to do stuff while in town to testify although error did not prejudice defendant 3: holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify the claimant must allege 1 the identity of the potential witness 2 that the witness was available to testify at trial 3 the substance of the witnesss testimony and 4 an explanation of how the omission of the testimony prejudiced the case 4: holding that judge presiding at trial may not testify in that trial as witness


Input: claims on direct appeal. This court affirmed Mr. Blandin’s conviction and sentence without a written opinion. Blandin v. State, 27 So.3d 31 (Fla. 2d DCA 2010) (table). Mr. Blandin filed a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, raising in Ground I the ineffective assistance of counsel claims that were previously raised in his amended motion for new trial. In summarily denying these claims, the postconviction court erroneously found them to be barred by the doctrines of res judicata and collateral estoppel. In Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002), this court held that when an ineffective assistance of counsel claim is raised on direct appeal and the appellant’s conviction and sentence are affirmed witho DCA 1984) (<HOLDING>). Mr. Blandin’s case cannot be distinguished on Holdings: 0: holding that the postconviction court erred in finding the ineffective assistance of counsel claim proeedurally barred because the courts opinion did not comment specifically on the ineffective counsel argument and the overall holding that the evidence was sufficient to support the jurys verdict could not be viewed as an adjudication on the merits of the ineffective assistance claim 1: holding that to the extent defendants claim is one of ineffective assistance of counsel it is not cognizable on direct appeal and rule 2915 is the exclusive procedure by which a claim of ineffective assistance of counsel can be advanced 2: recognizing a constitutional claim for ineffective assistance of counsel 3: holding that defendant may raise claim of ineffective assistance of counsel on direct appeal only if ineffective assistance is conclusive from the record 4: holding that the defendants ineffective assistance of counsel claims which were raised in a motion for a new trial and challenged on direct appeal were not barred in postconviction by the doctrine of res judicata because the defendants conviction and sentence were affirmed without a written opinion expressly addressing the claims of ineffective assistance of counsel


Input: been constitutional under the 1870 Constitution. Since the 1970 Constitution is also silent on the subject, a recall statute would likely be constitutional. The 1970 Constitution gives home rule units broad legislative powers and states that those powers are to be construed liberally. (Ill. Const. 1970, art. VII, §6.) Consequently, a home rule unit could enact a valid recall ordinance. Non-home rule units such as the city of Northlake do not have such power. The issue before this court, however, is not whether a recall procedure can be enacted by ordinance. The question is whether recall can be adopted by municipal referendum. In this respect, the powers of municipalities, whether home-ruled or not, are identical. (See Pechous v. Slawko (1976), 64 Ill. 2d 576, 582-83, 357 N.E.2d 1144 (<HOLDING>).) We find that article VII of the Illinois Holdings: 0: recognizing district court application of the same rule 1: holding that the referendum powers of home rule units and nonhome rule units are the same 2: recognizing a referendum on a court judgment would violate separation of powers 3: recognizing rule 4: holding that federal credit unions are governmental units within the meaning  523a8


Input: 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) ("As a general matter, a defendant alleging a Sixth Amendment violation must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,' ... We have spared the defendant the need of showing probable effect upon the outcome, and have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding. When that has occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.”) (citing Strickland after the Erst sentence and Cronic after the last sentence). 43 . See Perry v. Leeke, 488 U.S. 272, 277 n.2, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989) (<HOLDING>). See also Cronic, 466 U.S. at 659 n.25, 104 Holdings: 0: recognizing some lower court cases that found a sixth amendment violation under geders v united states 425 us 80 96 sct 1330 47 led2d 592 1976one of the cases cited along with herring in cronicas footnoteto be harmless 1: holding that a court may not disregard the doctrine of harmless error simply in order to chastise what the court views as prosecutorial overreaching  quoting united states v hasting 461 us 499 507 103 sct 1974 76 led2d 96 1983 2: holding that blakely v washington 542 us 296 124 sct 2531159 led2d 403 2004 did not overrule almendareztorres v united states 523 us 224 118 sct 1219 140 led2d 350 1998 3: holding abuse of discretion is the proper standard for reviewing award of attorney fees in patent cases although questions of law may in some cases be relevant 4: holding that a charge of discrimination must give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests quoting conley v gibson 355 us 41 47 78 sct 99 2 led2d 80 1957


Input: of justice.” Davis v. Superior Court (Hannah), 25 Ariz.App. 402, 403, 544 P.2d 226, 227 (1976); see also Rashidi v. Albright, 818 F.Supp. 1354, 1355-56 (D.Nev.1993) (“Failure to ‘otherwise defend’ presumes the absence of some affirmative action on the part of a defendant [that] would operate as bar to the satisfaction of the moving party’s claim.”). A defendant in a cause of action who moves for summary judgment contests a plaintiffs claim and argues that it presents “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(e). A summary judgment in a defendant’s favor bars satisfaction of the plaintiffs claim and necessarily defeats it. ¶ 15 Other jurisdictions that have cons 3d 34, 962 N.E.2d 322, 324 (2011) (<HOLDING>); M & A Const. Corp. v. Akzo Nobel Coatings, Holdings: 0: holding that a motion to dismiss or for summary judgment precluded default judgment 1: holding that district court has discretion when deciding to convert a defendants motion to dismiss to a motion for summary judgment 2: holding that motion to dismiss cannot be treated as summary judgment 3: holding that the courts denial of either a motion to dismiss or a motion for summary judgment is not a final judgment and is not reviewable  4: holding that trial court may not grant summary judgment by default  when the movants summary judgment proof is legally insufficient


Input: Palladino have not shown that on the face of Plaintiffs’ Complaint their alleged misconduct was distinct from the kinds of behavior clearly established as unconstitutional sexual harassment. See, e.g., Beardsley v. Webb, 30 F.3d 524, 530-31 (4th Cir.1994) (acknowledging that sexual harassment is a question of fact but holding in affirming a denial of qualified immunity, that “[n]o male officer could reasonably have thought in 1992 that it was not sexual harassment to announce that it was his turn to make out with a women who was subject to his command”). Defendants Dorrance and Palladino are, therefore, not entitled to a Rule 12(b)(6) dismissal of Plaintiffs’ sexual harassment claims on the basis of a qualified immunity defense. See Trulock v. Freeh, 275 F.3d 391, 406 (4th Cir.2001) (<HOLDING>). In regard to the qualified immunity claims of Holdings: 0: holding that defendants are not entitled to qualified immunity 1: holding a rule 12b6 dismissal inappropriate where defendants have done nothing more than offer their bald assertions that they are entitled to qualified immunity 2: holding trial court improperly granted dismissal on ground of immunity because the defendant had qualified statutory immunity rather than absolute immunity 3: holding that the employers bald assertions that the officers thought that they were in compliance with the act did not satisfy the good faith requirement 4: holding that the defendants were entitled to qualified immunity where the plaintiff failed to demonstrate that speech was public concern


Input: quotation marks and citation omitted)). Thus, our sole task here is to determine whether the facts have so changed that the principal duties of probation and parole officers now fall within one of the three relevant categories of principal duties of law enforcement officers enumerated in Section 41-4-3(D) of the TCA. {12} As to the first category, “making arrests for crime,” Plaintiff points to no change in the law and admits that probation and parole officers do not devote the majority of their time to making arrests. See Vigil, 1992-NMCA-033, ¶ 19. Consequently, there is no basis for concluding that making arrests for crimes is the principal duty of probation and parole officers. See Dunn v. State ex rel. Taxation & Revenue Dep't, 1993-NMCA-059, ¶ 11, 116 N.M. 1, 859 P.2d 469 (<HOLDING>). {13} As to the second category, Plaintiff Holdings: 0: holding that the director of the new mexico motor v ehicle department who has statutory authority to make arrests was not a law enforcement officer because the vast majority of his time and effort are involved in administrative matters internal quotation marks omitted 1: recognizing that the nsa qualifies as a withholding statute under exemption 3 because it refers to particular types of matters that are to be withheld internal quotation marks and citations omitted 2: holding that the decisions of administrative agencies of the state described by article vi section 29 of the constitution of new mexico include regulations adopted by a board emphasis added internal quotation marks and citations omitted 3: holding the deprivation of the inmates property interest in his mail is not a cognizable constitutional injury given the availability of adequate state postdeprivation remedies under new york law internal quotation marks omitted 4: holding that the state has a compelling interest in protecting the citizens of minnesota from those who pose a severe threat to their health and safety citation omitted internal quotation marks omitted


Input: in alcohol possession cases, on the present record, the State introduced no evidence of the contents of the bottle possessed by appellant, nor did appellant admit or stipulate to the contents of the container. Cf. J.B. v. State, 705 So.2d 1376, 1379 (Fla.1998) (<HOLDING>); A.A. v. State, 461 So.2d 165, 166 (Fla. 3d Holdings: 0: holding plaintiff must make concrete showing of a prima facie claim of actionable harm denying motion to quash subpoena to undercover identity of doe defendants where inter alia plaintiff offered sufficient evidence to show it could establish prima facie claim 1: holding to prove possession the state must show that a defendant possessed a certain substance the substance was illegal and he had knowledge of the presence of the substance 2: holding that a plaintiffs prima facie showing of jurisdictional facts is reviewed de novo 3: holding juveniles admission that he possessed beer is sufficient to make a prima facie showing that the substance was alcoholic in nature 4: holding that a prima facie case is subject to independent review


Input: In Turner, the fundamental right was the right to marry, not the right to inmate marriage. 482 U.S. at 94—96, 107 S.Ct. 2254. In Zablocki, the fundamental right was the right to marry, not the right of people owing child support to marry. 434 U.S. at 383-86, 98 S.Ct. 673. 6 . In addition, immutability is not an absolute prerequisite to heightened scrutiny. The Supreme Court has granted suspect class status to groups whose distinguishing characteristic is not immutable. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 9 n. 11, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977) (rejecting immutability requirements in treating group of resident aliens as suspect class despite their ability to opt out of class voluntarily); see also Miller v. Albright, 523 U.S. 420, 431, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (<HOLDING>); see also Mew Orleans v. Dukes, 427 U.S. 297, Holdings: 0: recognizing the concept of dual paternity in which a child born into a marriage with a nonbiological father retains a legal parentchild relationship based on presumptive fatherhood for purposes of legitimacy and inheritance while becoming the child of a newlyestablished biological father for purposes of child support 1: holding that strictly speaking suits against aliens are outside the operation of all federal venue statutes 2: holding that an illinois statute that conclusively presumed every father of a child born out of wedlock to be an unfit person to have custody of his children violated the due process clause and that due process required the father to be given an opportunity to present evidence regarding his fitness as a parent 3: recognizing that because a child born out of wedlock may be legitimated by father strictly speaking illegitimacy is not an immutable characteristic 4: holding that in domestic law custody case blood tests to determine paternity of child born out of wedlock may only be ordered upon a showing of good cause under the best interest of the child standard


Input: five-year statute of limitations was retroactively applied to him in violation of the constitutional prohibition against ex post facto laws. Clearly established federal law holds that a State law enacted after the expiration of a previously-applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. Stogner v. California, 539 U.S. 607, 619, 123 S.Ct. 2446, 2454, 156 L.Ed.2d 544 (2003). But that rule does not apply to unexpired statutes of limitations. Stogner, 539 U.S. at 618, 123 S.Ct. 2446. Thus application of a statute of limitations extended before the original limitations period has expired, as here, does not violate the ex post facto clause. See United States v. Taliaferro, 979 F.2d 1399, 1402 (10th Cir.1992) (<HOLDING>). The Tenth Circuit explained that the Holdings: 0: holding that the application of an extended statute of limitations to offenses occurring prior to the legislative extension where the prior and shorter statute of limitations has not run as of the date of such extension does not violate the ex post facto clause citing united states v powers 307 us 214 21718 59 sct 805 807 83 led 1245 rehg denied 308 us 631 60 sct 66 84 led 526 1939 1: recognizing nardone v united states 308 us 338 60 sct 266 84 led 307 1939 taint test as controlling authority 2: holding that an accused may not complain if the statute of limitations is extended so long as the period of time originally provided therein had not run at the time of such extension because an accused does not acquire any vested right in a statute of limitations until it has operated to bar the prosecution of the offense with which he has been charged 3: holding that a change in law does not affect the res judicata effect of judgments citing chicot county drainage dist v baxter state bank 308 us 371 375 60 sct 317 319 84 led 329 rehg denied 309 us 695 60 sct 581 84 led 1035 1940 4: holding that the ex post facto clause  has no application to deportation


Input: his understanding of the charges and proceedings against him. At the hearing, the District Court stated that it had reviewed “in detail” a report prepared by a Bureau of Prisons (“BOP”) psychologist that concluded, among other things, that (1) Fox possessed a rational and factual understanding of the proceedings against him; (2) Fox had a capacity to assist legal counsel in his defense; and (3) Fox could rationally make decisions regarding legal strategy. Relying on that report, as well as Fox’s own testimony, the District Court found that Fox was indeed “competent to stand trial.” Appellant’s App’x at 47-48. As the trier of fact, the District Court was well within its province to give weight to the BOP psychologist’s opinion, see United States v. Zhou, 428 F.3d 361, 380 (2d Cir.2005) (<HOLDING>), and did not clearly err in relying as well on Holdings: 0: recognizing that a court may rely on matters of which a court may take judicial notice 1: holding that it is only by looking at how similarly situated entities acted in a similar situation that a factfinder may determine what was commercially reasonable 2: holding that a court evaluating competency may reasonably rely on the expertise of a forensic psychologist associated with the bop who is presumably familiar with patients similarly situated 3: holding on the particular facts before the court that parol evidence of a dividend declaration was inadmissible because of its potential to result in disparate rights between similarly situated stockholders 4: holding that the state as well as the defendant has a right to rely on compliance with rule 16


Input: defendants ordering more than 70 Towncars, or more than $2 million in automobiles, from plaintiffs dealership in Kansas. Defendants have been doing business with plaintiff in the same manner for at least ten years. According to Danny Zeck’s affidavit, defendants would place orders for Towncars with plaintiff in Kansas by mail and by facsimile. The court does not find persuasive defendants’ argument that jurisdiction cannot exist because plaintiff initiated contact with defendants in California and defendants never entered Kansas. It is clear that when a party chooses to enter into a contract with a Kansas corporation, the subsequent contacts cannot be said to be “random, fortuitous, or attenuated.” Marketing Group, Inc. v. Success Dev. Int’l, Inc., 41 F.Supp.2d 1241, 1244 (D.Kan.1999)(<HOLDING>); World Paper Res., Inc. v. Buckeye Cellulose Holdings: 0: holding kansas comparative fault statute applied where the accident occurred in kansas and the only missouri contact with the accident was the fact that one of the parties  resided in missouri distinguishing hicks based on the lack significant contacts with missouri 1: holding that the defendant had minimum contacts with kansas because it responded to the plaintiffs offer to contract despite the fact that a contract was never formally signed 2: holding that the defendant had minimum contacts with kansas because it chose to enter into a contract with the plaintiff that was to be performed at least in part in kansas and then the defendant continued to be in contact with the plaintiff regarding the contract 3: holding that for a suit to be brought in the venue in which the contract was to be performed the contract must expressly state where the performance of the contract was to occur 4: holding that the individual defendant does not have to be in privity of contract with the plaintiff to be held liable under  1981


Input: § 10 (same); Nev. Const, art. 15, § 10 (same); Okla. Const, art. VI, § 13 (same); Pa Const, art. IV, § 8 (providing various methods of making appointments depending on office involved and time of vacancy); R.I. Const, art. IX, § 5 (same as Indiana); Tenn. Const, art. VII, § 4 (granting legislature power to establish method of filling vacancies); Vt. Const, art. II, § 20 (appointment power limited by constitution and law passed by legislature); Wis. Const, art. XIII § 9 (same). "Several state courts have held that such provisions have the effect of authorizing the legislature to vest itself with the power to make certain administrative appointments, and that no violation of separation of powers inheres in doing so. See, e.g., State ex rel. Rosenstock v. Swift, 11 Nev. 128, 142-43 (1876) (<HOLDING>); Richardson v. Young, 122 Tenn. 471, 125 S.W. Holdings: 0: recognizing authority of legislature to choose officers of municipal corporations 1: holding that a corporations principal place of business for determining diversity jurisdiction under 28 usc  1332c1 is the nerve center meaning the corporations headquarters or the place where a corporations officers direct control and coordinate the corporations activities 2: recognizing the ability of corporations to protect property rights in federal court 3: recognizing the municipal authority to regulate traffic implies broad authority 4: recognizing a cause of action against a corporations directors brought by a creditor for the fraudulent misrepresentation of the corporations financial condition


Input: to the inference that Harris County has a policy that condones the use of excessive and deadly force against fleeing suspects both before and after the shooting death of Luis Escobar.” We have held that for purposes of her section 1988 claim, Escobar’s evidence raised a fact issue as to whether Deputy Goodney violated Luis’s constitutional right to be free from seizure by excessive force. But the fact that the disciplinary committee had before it the same evidence entails only that the committee faced the same fact issues that would confront a jury; it is not evidence that shows the committee was acting out an unwritten policy of allowing officers to use deadly force whenever they feel their safety is threatened. See Fraire v. City of Arlington, 957 F.2d 1268, 1279 (5th Cir.1992) (<HOLDING>). Escobar offered no other evidence of the Holdings: 0: holding that section 1983 action requires a showing of defendants personal participation in alleged constitutional violation 1: holding that section 1983 plaintiffs presented nothing but conjecture when they alleged that city officials must have known that officer was lying 2: holding that plaintiffs did not have standing to bring a declaratory judgment action in either a thirdparty beneficiary individual or associational capacity because there was nothing in the contract between a conservation district and a city concerning rates charged to the city that conferred donee  or creditorbeneficiary standing upon the plaintiffs to challenge the contracts terms 3: holding that attorney fees must be awarded where plaintiffs section 1983 claim was unreasonable and groundless 4: holding that a city manager was the final policymaker for purposes of section 1983 liability because of provisions in the norfolk city code requiring that all orders rules and regulations applicable to the entire police department must be approved by the city manager other than some police standard operating procedures


Input: purged when only an hour had passed between the illegal seizure and the time the defendant gave his consent to search, id. at 356. The Buchanan Court also emphasized that the defendant did not move from his location of initial detention and “did not consult with an attorney prior to consenting to the search,” the latter of which forms a “crucial factor” in the attenuation analysis. Id. (quotation omitted). Because “[dissipation of the taint resulting from an illegal [seizure] ordinarily involves showing that there was some significant intervening time, space, or event,” and none was present here, the first two factors from Brown weigh in favor of suppression. See Lopez-Arias, 344 F.3d at 630 (quotation omitted); see also United States v. Griffith, 193 Fed.Appx. 538, 542 (6th Cir. 2006) (<HOLDING>). Turning to the third factor—the purpose and Holdings: 0: holding that an intervening act of misconduct by the plaintiff can break the causal link between the protected conduct and the adverse employment action 1: holding that there was no probable cause to arrest the plaintiff because the facts of the case amounted to a contract dispute 2: holding that the defendants unlawful arrest in his hotel room rendered his subsequent consent to the search of his room invalid even though he signed a consent form allowing the search after his arrest because the government  completely failed to address whether there was a break in the causal relationship between the unlawful arrest and the subsequent search 3: holding that consent was the fruit of defendants arrest and that there were no intervening circumstances that would break that chain of causation under analogous facts 4: holding there is no consent as a matter of law where the consent was given under coercion


Input: has only one reasonable interpretation. The Farmworkers assert that the phrase means the home villages from which the workers traveled to Monterrey. Indeed, “[t]he place from which the worker has come to work” can reasonably be read to mean the home village of the worker. Alternatively, the Growers contend that the place from which the worker has come to work is Monterrey, as that was the place where the workers gathered, where they were selected to be employees, and from where they traveled collectively to the farms in Florida. This reading of the language is equally reasonable. As both interpretations provide reasonable constructions, the phrase is clearly ambiguous. See Royal Am. Realty, Inc. v. Bank of Palm Beach and Trust Co., 215 So.2d 336, 338 (Fla.4th Dist.Ct.App.1968) (<HOLDING>). In finding that the phrase clearly and Holdings: 0: holding that when a contract is ambiguous and the parties suggest different interpretations summary judgment is inappropriate because an issue of fact exists 1: holding that extrinsic evidence of the parties course of conduct may be considered where the contract language is ambiguous 2: holding that an insurance contract should be construed as a reasonable person in the position of the insured would have understood it and that if the language used in the policy is reasonably susceptible to different constructions it must be given the construction most favorable to the insured 3: holding that a contract is ambiguous if a reasonable person would find it susceptible to different or inconsistent interpretations 4: holding that contract language is ambiguous where it is in fact reasonably or fairly susceptible to the different constructions being advocated by the parties


Input: also revealed that Cabral erroneously informed the FBI that Seda traveled to Saudi Arabia for a Hajj in 2000. Draft interview summaries revealed additional inconsistencies. For example, one draft summary of an interview with Richard contained the statement that “[Richard] Cabral did not recall Sedaghaty discussing the topic of Kosovo or supporting mujahedin there” while another draft of the summary excluded that same statement. Another early draft revealed a conflict about the amount of the supposed payments that were collected at the end of the Hajj. Without the suppressed materials, Seda’s counsel was severely limited on cross examination, unable to explore, let alone establish, grounds for Cabral’s possible bias. See United States v. Schoneberg, 396 F.3d 1036, 1042 (9th Cir.2005) (<HOLDING>). Taken together with the substantive issues Holdings: 0: holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify the claimant must allege 1 the identity of the potential witness 2 that the witness was available to testify at trial 3 the substance of the witnesss testimony and 4 an explanation of how the omission of the testimony prejudiced the case 1: recognizing that the defense must be given the opportunity to crossexamine a witness and explore any motive to falsely testify in order to assist government 2: holding that the jury could have reasonably inferred the requisite intent to induce the witness to lie or testify falsely from the defendants statements to the witness 3: holding that defendant had ample opportunity to crossexamine government witness including the terms of a plea agreement and that further impeachment was speculative and minimal at best 4: holding that testimonial hearsay statements of a witness who does not appear at trial are inadmissible under the confrontation clause of the sixth amendment unless the witness is unavailable to testify and the defendant has had a prior opportunity to crossexamine the witness


Input: 624, 627 (relying on NRC’s post-trial report to support position); ante at 175-176, 699 A.2d at 624 (citing post-trial cases to support general acceptance of polymarker testing). Despite the majority’s acceptance of de novo review, the majority carefully circumscribes such review to exclude all of the evi dence that does not support its ruling. See, e.g., ante at 180, 699 A.2d at 626 (noting that “the record does not reveal whether dot-intensity analysis can be performed on a DQ Alpha test,” but ignoring evidence that it can be); ante at 181-182, 699 A.2d at 626-627 (acknowledging that the HBGG result obtained for the mixed sample is unexplainable by dot-intensity analysis, but refusing to explore inconsistency until post-conviction-relief proceedings); ante at 183-184, 699 A.2d at 628 (<HOLDING>); ante at 193, 699 A.2d at 633 (“It is too late Holdings: 0: recognizing that dotintensity analysis provides an opening for crossexamination and contradictory expert testimony but refusing to remand the case for a hearing to develop such evidence 1: recognizing that independent analysis is  the only means by which the defendant can defend against expert testimony by the state  2: recognizing that the need for the expert was so great that the decision to preclude the expert effectively amounted to dismissal of case 3: holding that expert testimony is unnecessary where the case is not a case in which lay jurors would be unable to grasp the issues without expert assistance 4: holding that a request for funds for expert testimony must show inter alia that the testimony is crucial and is subject to varying expert opinions


Input: of, Mr. Voss provided to Mr. Spartin was marked with AUSA Valder’s handwritten notation "GJX#4.” Mr.- Spartin testified at the criminal trial that he did’not notice the mark nor was he was unaware that the statements provided to him had been presented to the grand jury. See Crim. Trial Tr. at 2610-13, 2737-38, 2754. 63 . Even Mr. Spartin concluded, based on his review of the four interview sümmaries, that - “I’m not á lawyer but Jesus, there’s enough there to seem to me to hang REI from the yardarm.” PL’s Ex. 226 at 28 (Spartin Polygraph Tr.). 64 . Lack of probable cause is an element of the both the plaintiff's Bivens claim for retaliatory inducement to prosecution and FTCA claim for malicious prosecution. See Hartman v. Moore, 547 U.S. 250, 261, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (<HOLDING>); Moore-II, 213 F.3d at 709-10 (listing as an Holdings: 0: holding that a plaintiff in a retaliatory prosecution action must plead and prove the absence of probable cause for pressing the underlying criminal charge 1: recognizing tennessee law requires the absence of probable cause to maintain a malicious prosecution claim 2: holding that direct evidence linking a crime to the particular place to be searched is not required to support a finding of probable cause 3: holding that plaintiff was required to plead and prove the absence of probable cause to support his bivens claim 4: holding that the plaintiff must show that there was a lack of probable cause for the criminal prosecution


Input: the presentence investigation report. Without holding a hearing, or making findings of fact, the district court imposed the obstruction enhancement. The two-point enhancement increased McKnight’s offense level to 43, mandating that the district court impose a life sentence on McKnight. Because of the life sentence in this case, and the absence of findings to support the obstruction enhancement, we carefully review the record and McKnight’s contentions on appeal. II. Discussion The appellant McKnight first asserts error by the district court in refusing to allow McKnight to withdraw his guilty plea. We reject this claim. The record shows no abuse of discretion by the district court in rejecting this contention. See United States v. Thompson, 906 F.2d 1292, 1295, 1298-99 (8th Cir.1990) (<HOLDING>). The evidence indicates that McKnight freely Holdings: 0: recognizing the late date of a motion to withdraw filed three weeks before trial 1: holding that district court abused discretion in denying motion to withdraw plea based on intervening supreme court decision that may have rendered factual basis of plea insufficient 2: holding that district court did not abuse its discretion in denying a motion to withdraw guilty plea filed three weeks after entering the plea 3: holding the trial court abused its discretion in denying the defendants motion to withdraw his guilty plea because the defendant did not admit to facts demonstrating the required mental state 4: holding that a district courts application of the wrong legal standard on a motion to withdraw a plea constitutes an abuse of discretion


Input: did not obtain legal title to the Property until after November 27, 2002, and most likely not until December 2, 2002. 5 . When constructive fraud in the conduct of the proceedings is alleged, such a judgment may only be entertained by the court if the motion to reopen was filed within one year of the date of the judgment. TP § 14-845(a). 6 . In Mr. Bailey’s affidavit and in the City’s brief, there is language suggesting that, once the City acquired title to the Property by condemnation, any taxes owed were automatically abated or forgiven, or taken as paid. The City has not cited any case or statute to support that assertion, nor have we found any. Indeed, United States v. Certain Parcels of Land in Prince George’s County, Md., 40 F.Supp. 436 (D.Md. 1941), supports a contrary assertion (<HOLDING>). Here, the City, a local municipalily, was Holdings: 0: holding that plaintiffs may have a property interest in real property 1: holding that taxes are not private property that can be physically taken by the government 2: holding that property owner still has relief in the form of the return of his property though condemnation was complete and a highway was constructed across the property 3: recognizing that publicly targeting a property for condemnation resulting in economic damage to the owner generally does not give rise to an inverse condemnation cause of action unless there is some direct restriction on use of the property 4: holding that when federal government acquires property through condemnation it must account for state and local property taxes interest and penalties


Input: County Mun. Util. Dist. No. 9, 866 S.W.2d 791, 793 (Tex.App.—Houston [14th Dist.] 1993, no writ) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993)). An appel late court cannot consider as grounds for reversal, issues the non-movant did not expressly present to the trial court by written response to the summary judgment motion. See City of Houston v. Clear Creek Basin Autk, 589 S.W.2d 671, 676 (Tex.1979). If the non-movant does not expressly present grounds that would defeat the movant’s right to a summary judgment by filing a written answer or response, he is limited to arguing on appeal that the movant’s motion was legally insufficient. Id. These requirements apply equally to constitutional claims. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (<HOLDING>). We have reviewed Fry’s responses to the Holdings: 0: holding that claims including constitutional claims must be asserted in trial court to be raised on appeal 1: holding that nonconstitutional claims that could have been raised on direct appeal may not be asserted in a collateral proceeding 2: holding that issues not raised before the trial court cannot be raised on appeal 3: holding claims must be raised on direct appeal or waived 4: holding that a claim including a constitutional claim must have been asserted to the trial court to be raised on appeal


Input: what he was charged with doing, the maximum penalty he faced and the possibility of restitution and court costs being ordered as part of any sentence imposed. Whitepipe indicated that he was ready to enter his plea and proceeded to plead guilty to the rape charge. The court then questioned Whi-tepipe to determine whether his plea was voluntary: THE COURT: Did anyone force you to enter that plea? THE DEFENDANT: No. THE COURT: Did anyone tell you, other than this plea agreement, that I would give you special treatment if you just came in today and pled guilty? THE DEFENDANT: No. THE COURT: And you are doing this under your own free will? THE DEFENDANT: Yes. To be constitutionally valid, a guilty plea must be knowing, voluntary and intelligent. See Parke, 506 U.S. at 28, 29, 113 S.Ct. 517 (<HOLDING>). Because a guilty plea constitutes a waiver of Holdings: 0: holding that due process requires state courts to make an affirmative showing that a guilty plea is intelligent and voluntary 1: holding a waiver of a substantial constitutional right must be a voluntary knowing and intelligent act 2: holding that a voluntary and intelligent plea of guilty is an admission of all the elements of a formal criminal charge 3: holding that a guilty plea must be both knowing and voluntary and must be a voluntary and intelligent choice among the alternative courses of action available to a defendant 4: holding that a defendant must have knowledge of the likely consequences of entering the guilty plea in order for a plea to be voluntary and knowing


Input: 965 (2008); State v. Mendoza, 157 Wn.2d 582, 587, 590-91,141 P.3d 49 (2006); In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297-98, 88 P.3d 390 (2004). 11 In fact, St. Pierre explicitly stated that “some errors which result in per se prejudice on direct review will also be per se prejudicial on collateral attack ....” St. Pierre, 118 Wn.2d at 329. 12 I note the majority’s attempt to distance itself from this position. Majority at 598 n.3. The majority is correct to do that. As discussed below, however, the majority’s analysis could be used to conflate harmless error review of constitutional issues with harmless error review of nonconstitutional issues. 13 See generally Arizona v. Fulminante, 499 U.S. 279, 309-11, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (Rehnquist, C.J., concurring) (<HOLDING>). 14 Accord. Kyles v. Whitley, 514 U.S. 419, Holdings: 0: holding that error from the erroneous admission of evidence was harmless in light of the overwhelming evidence of the defendants guilt 1: holding admission of coerced confession to he a classic trial error similar in both degree and kind to the erroneous admission of other types of evidence and thus reviewable for harmlessness 2: holding that even the admission of a coerced confession may be harmless error and noting that  the central purpose of a criminal trial is to decide the factual question of the defendants guilt or innocence  3: holding that we would not review a claim of error regarding the admission of evidence when the defendant stipulated to its admission at trial 4: holding that a new trial was the remedy for erroneous admission of rule 404b evidence


Input: is a “facility” within the meaning of 42 U.S.C. § 9601(9); (2) a “release” or “threatened release” of any “hazardous substance” from the facility has occurred; and (3) such “release” or “threatened release” ' has caused the plaintiff to incur response costs. Ascon Properties v. Mobil Oil Co., 866 F.2d 1149, 1152 (9th Cir.1989). See also United States v. Bliss, 667 F.Supp. 1298, 1310 (E.D.Mo.1987); Violet v. Picillo, 648 F.Supp. 1283, 1289 (D.R.I.1986). In this case, it is undisputed that there has been a “release” or a “threatened release” from a facility and that the release triggered the incurrence of response costs by Acme. Therefore, the only issues for resolution are (1) whether the defendant dumped its waste at the Fadrowski site and (2) whether th . 1361, 1405- 06 (D.N.H.1986) (<HOLDING>). However, the plaintiff must establish some Holdings: 0: holding that there is no requirement that plaintiffs show that defendants waste caused environmental harm 1: holding that issuance of an order to show cause satisfied this requirement 2: holding that the opposing party must show substantial harm 3: holding that there is generally no constitutional requirement that defendants must always be informed of their right to appeal following a guilty plea 4: holding that a party who can show a significant risk of irreparable harm has demonstrated that the harm is not speculative


Input: Board as an aid to Board deliberation. Id. at 177, 95 S.Ct. 1491. Under these circumstances, the Supreme Court held that the reports had not been adopted or incorporated by the Board, as “the evidence utterly fails to support the conclusion that the reasoning in the reports is adopted by the Board as its reasoning, even when it agrees with the conclusion of a report....” Id. at 184, 95 S.Ct. 1491. Certainly, in situations like Grumman, where an agency, having reviewed a subordinate’s non-binding recommendation, makes a “yes or no” determination without providing any reasoning at all, a court may not infer that the agency is relying on the reasoning contained in the subordinate’s report. See Casad v. United States Dep’t of Health and Human Servs., 301 F.3d 1247, 1252-53 (10th Cir.2002) (<HOLDING>); Afshar v. Dep’t of State, 702 F.2d 1125, 1143 Holdings: 0: holding that police report of witnesss statement was inadmissible because witness had not adopted report as accurate when matter was fresh in his memory 1: holding an agency could not use a policy found in a departments employee manual as the rule of law to determine a contested issue because the agency never adopted a rule containing such a policy 2: holding that expert report addressing hospitals conduct was not required when plaintiffs sole theory against hospital was vicarious liability based on ostensible agency and explaining that the conduct by the hospital on which the agency relationship depends is not measured by a medical standard of care these are principles of agency law on which no expert report is required 3: holding that it was not an abuse of discretion for the trial court to exclude an agency finding of no discrimination on the ground that the report would suggest to the jury that it should reach the same conclusion as the agency 4: holding that a report relied upon by agency in determining whether or not to award a grant had not been adopted as there is no indication in the record that in funding the  grant the agency expressly adopted the reasoning of the report


Input: the Supreme Court has stressed that a warrantless entry into a home may be “legal when there is compelling need for official action and no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (emphasis added). For purposes of the Fourth Amendment analysis in this case, it makes no difference that the officers did not enter Fisher’s apartment to take physical custody of him. We have long recognized that “it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home.” United States v. Johnson, 626 F.2d 753, 757 (9th Cir.1980), aff'd on other grounds, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); see also United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir.1985) (<HOLDING>). With these basic Fourth Amendment principles Holdings: 0: holding that the injury was inflicted by the defendant when it occurred while the defendant applied force directly to the victims person 1: holding that the state could not under any circumstances be charged for the delay during the period the defendant was held after his arrest for and until his conviction on felony charges in another jurisdiction 2: holding that defendant voluntarily consented where defendants only basis for coercion was that the officers said that if he did not consent they would get a warrant which would take a while 3: holding that automobile exception applied to search of defendants tractor trailer where confidential informant who was detained at border with a trailer full of marijuana told agents that he was driving to meet the defendant to exchange trailers and defendant subsequently arrived at the location described at the time described in a tractor with an empty trailer that matched informants description 4: holding that because defendant only emerged under circumstances of extreme coercion the arrest occurred while he was still inside his trailer


Input: fees. In short, all of Plaintiffs’ substantive claims are examples of bootstrapping. The Court must finally address Plaintiffs claim for declaratory judgment and injunctive relief. This count of the complaint fails to state a claim because after dismissal of the substantive claims there is no underlying legal action upon which to Plaintiff may receive declaratory or injunctive relief. It is well settled that an injunction is a remedy. A claim for injunctive relief does not stand alone, but requires a viable underlying legal claim. The same is true for declaratory relief, the source of which in federal court is the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. See Collin County, Texas v. Homeowners Assoc. for Values Essential to Neighborhoods, 915 F.2d 167, 170 (5th Cir.1990) (<HOLDING>). B. The Motion for Severance and Motion to Holdings: 0: recognizing that a party can obtain declaratory relief but still not be entitled to an award of attorneys fees under the declaratory judgments act 1: holding that the declaratory judgment act is remedial only and the party seeking declaratory relief must have an underlying cause of action 2: holding property owner not entitled to award of attorneys fees under declaratory judgments act because his declaratory judgment counterclaim did not present any issues beyond the homeowners associations cause of action 3: holding that where the question to be resolved in the declaratory judgment action will be decided in a pending action it is inappropriate to grant a declaratory judgment 4: holding that the declaratory judgment act is a procedural device


Input: 63 L.Ed.2d 639 (1980). The Supreme Court has stated: “[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). In United States v. Reeves the Tenth Circuit established that “[o]pening the door to one’s home is not voluntary if ordered to do so under color of authority.” 524 F.3d 1161, 1167 (10th Cir.2008). The Tenth Circuit has repeatedly held that absent exigent circumstances, any warrant-less seizure from officials acting under the color of authority may not seize a person inside their home, or effect a seizure by ordering a person inside a home to come to the door. See United States v. Maez, 872 F.2d 1444, 1446 (10th Cir.1989) (<HOLDING>); United States v. Flowers, 336 F.3d 1222, Holdings: 0: holding that the suspect was effectively arrested when police surrounded his trailer with their weapons drawn and ordered him through a bullhorn to leave the trailer and drop to his knees 1: holding that arrest immediately out side of defendants house violated fourth amendment 2: holding that a seizure as a violation of the fourth amendment when police surrounded an individuals house for three hours planning an arrest and ordering the individual out of his home under drawn firearms believing he was a suspect in a bank robbery 3: holding that no seizure occurred where officer approached the suspect at the bus stop mentioned that he was investigating a bank robbery asked the suspect what he was doing in the area and for his identification and otherwise gave no indication that the suspect was not free to leave or to refuse to respond to questioning 4: holding police officers show of authority by announcing he was a police officer and ordering defendant to stop was an investigative seizure implicating fourth amendment protections


Input: tort law; d.) the moral aspects of the defendant’s conduct; and e.) the prevention and punishment aspects of liability. See W. Prosser & W. Keeton, Prosser & Keeton on the Law of Torts § 4, at 20-26 (5th ed.1984). Larson was deprived of his parental rights for seven years in clear violation of the custody decree. Similarly, Jessica was denied the right to a relationship with her father during a critical stage in her development. Although this precious lost time can never be regained, some form of redress undoubtedly is in order. Tort law long has protected “relational” interests, such as between family members, from interference. Prosser & Keeton, supra, § 124, at 915; see, e.g., In re Parks, 267 Minn. 468, 127 N.W.2d 548 (1964); Miller v. Monsen, 228 Minn. 400, 37 N.W.2d 543 (1949) (<HOLDING>). In 1978, however, our legislature abolished Holdings: 0: recognizing that third party may not recover contribution against parent where child has no cause of action against parent for negligent supervision 1: holding child could bring action for enticement of parent 2: recognizing duty of parent to control conduct of child 3: holding when real estate is conveyed to a child and consideration is paid by the parent the parent has the burden of proving a gift was not intended 4: holding that a superior court can adjudicate a child as a child in need of aid based on the acts of just one parent


Input: loss suffered by Huffy was the direct result of the tumultuous economic environment during the class period and non-fraudulent bad news that was occurring simultaneously. Although that argument, supported by proper evidence, may demonstrate that Defendants are entitled to summary judgment on this issue, should this lawsuit proceed to that stage, it does not cause this Court to conclude that the Plaintiffs have failed to plead the element of loss causation. On the contrary, they have set forth their theory of loss causation in detail, and that theory is based on more than the bare assertion that the Defendants’ alleged misrepresentations merely caused the value of Huffy’s stock to become inflated. Accord Ross v. Abercrombie & Fitch Co., 501 F.Supp.2d 1102, 1118-19 (S.D.Ohio 2007) (<HOLDING>). It bears emphasis, that, in ruling on a Holdings: 0: holding in action for breach of contract caused by wrongful foreclosure and sale of shares of stock plaintiff was entitled to recover the fair market value of the stock at the time of its sale 1: holding that plaintiffs failed to plead loss causation where their only allegation was the payment of artificially inflated prices for defendants securities and their complaint failed to provide defendants with notice of what plaintiffs relevant economic loss might be or of what the causal connection might be between that loss and the alleged misrepresentation at issue  2: holding that plaintiffs allegations of loss causation complied with dura because they asserted that defendants misrepresentations had caused the value of the shares of stock to become inflated after which the disclosure of the true state of affairs caused the plaintiffs to lose millions of dollars 3: holding that the plaintiffs argument that the defendant caused plaintiffs inability to return to work cannot hold water because the socalled causation was insufficient to rise to the level of actionable harassment 4: holding that plaintiffs claims that defendants artificially inflated the companys share price so that they could sell their stock at a huge profit was undermined by the fact that one of the four defendants did not sell his stock during the class period


Input: U.S.C. § 1326(a), enhanced by (b)(2). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Gonsalez-Palomino has filed a brief stating that there are no grounds for relief, and a motion to withdraw as counsel of record. Gonsalez-Palomino has not filed a pro se supplemental brief and the government has not filed an answering brief. We have conducted an independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we dismiss in light of the valid appeal waiver. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir.2000) (stating that an appeal waiver is valid when it is entered into knowingly and voluntarily); see also United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005) (<HOLDING>). Counsel’s motion to withdraw is granted. Holdings: 0: holding that blakely and united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 are not retroactive on collateral review 1: holding that the changes in sentencing law imposed by united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 did not render waiver of appeal involuntary and unknowing 2: holding that  3582c does not apply to a person seeking resentencing under united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 3: holding that united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 did not alter the standard of review for the interpretation and application of the guidelines 4: holding that waiver of right to appeal sentence in plea agreement accepted before decision in united states v booker 543 us 220 125 sct 738 160 led2d 621 2005 was not invalidated by change in law


Input: given effect. These cases allow for each employee or retiree individually to decide whether to consent to arbitration of his or her own claims. Pryner further indicates that where the employee/retiree and employer/former employer agree to arbitration, “there is nothing to prevent a binding arbitration.” Id.; see also Cooper Tire & Rubber Co., 474 F.3d at 283 (finding “there is no real danger that Cooper would have to relitigate the same issues with individual retirees that will have already been arbitrated with the Union”); IDS Life Ins. Co. v. Royal Alliance Assocs., 266 F.3d 645, 651 (7th Cir.2001) (stating that dispute resolved by arbitrators was closed to further litigation by res judicata and collateral estoppel); cf. Meza v. Gen. Battery Corp., 908 F.2d 1262, 1280 (5th Cir.1990) (<HOLDING>). In this case, the arbitrator’s decision would Holdings: 0: holding that a rico action by union members was properly dismissed where any financial improprieties occurred with union funds and directly injured solely the union 1: holding that a prior suit and a subsequent suit between the same parties did not involve the same claim because the evidence necessary to sustain the subsequent suit was insufficient to entitle the plaintiff to relief in the prior suit 2: holding that an injured former employees lawsuit was not barred by res judicata where he never authorized the union to represent his interest in a previous lawsuit over the same benefits 3: holding that former employees lawsuit was not barred by res judicata by unions prior suit where employee was not a party to the prior suit as a former union member was not in privity with the union and never authorized the union to represent his interest in prior suit 4: holding that there was abundant evidence to support the charge against a union member for helping organize a nonaflcio local union of a different name where the union member admitted at the hearing that he contacted local contractors for the purpose of negotiating a collective bargaining agreement for new union and serving as the new unions business manager


Input: of widely recognized authorities on endocarditis, but rather as a reluctance to accept as authoritative the materials in their entirety and to accept one particular source as the exclusive authority on endocarditis. A trial judge’s decision to admit expert testimony will not be disturbed absent an abuse of discretion. E.g., Shipp v. General Motors Corp., 750 F.2d 418 (5th Cir.1985). In this case, the trial judge did not abuse his wide discretion in allowing Dr. Bennett to testify as an expert in the field of cardiology. Moreover, the plaintiff does not allege that Dr. Bennett relied on a particularly objectionable or unconventional scientific theory or methodology. See Daubert v. Merrell Dow Pharmaceuticals, Inc., — U.S. -, -, 113 S.Ct. 2786, 2796-97, 126 L.Ed.2d 469, 485 (1993). (<HOLDING>). Because the district court did not abuse its Holdings: 0: holding that causation cannot be proved based on speculation 1: holding that daubert applies not only to testimony based on scientific knowledge but also to testimony based on technical and other specialized knowledge 2: holding that recusal is not required on the basis of unsupported irrational or highly tenuous speculation 3: holding expert testimony remedies speculation by the court 4: holding that expert scientific testimony must be grounded in the methods and procedures of science and based on more than a subjective belief or unsupported speculation


Input: placed in a situation that may endanger the child’s life or health[.]” § 30-6-KD). A child is defined as “a person who is less than eighteen years of age.” § 30-6-l(A)(l). Review of the criminal code, NMSA 1978, Sections 30-1-1 to 30-28-3 (1963, as amended through 2005) defines a “person” as “any human being or legal entity[.]” § 30-1-12(E). {7} When the Legislature defined a “person” as a human being or legal entity, it did not include fetuses within the meaning of a “human being.” State 956 (1996) (dismissing charge of second-degree criminal mistreatment of a child, holding that a fetus was not a child within the meaning of criminal mistreatment statute where mother continued to ingest cocaine while pregnant); State v. Deborah J.Z., 228 Wis.2d 468, 596 N.W.2d 490, 496 (Ct.App.1999) (<HOLDING>). C. Due Process {11} Accepting the State’s Holdings: 0: holding that firstdegree sexual abuse is a lesserincluded offense of firstdegree rape 1: holding that firstdegree sexual abuse is a lesserincluded offense of firstdegree sodomy 2: holding that fetus was not a human being for purposes of attempted firstdegree intentional homicide and firstdegree reckless injury statutes 3: holding that attempted firstdegree murder may be committed knowingly or intentionally 4: holding reckless injury and attempted firstdegree intentional homicide statutes were not applicable to a mother who consumed excessive amounts of alcohol causing injury to her child postpartum


Input: patients that physicians were independent contractors and provided patients with consent forms that informed patients of physicians’ independent-contractor status); Peter v. Vullo, 234 N.C.App. 150, 162, 758 S.E.2d 431, 439 (2014) (noting that hospital expressly gave notice via consent form that ■physician was an independent contractor); Cantrell v. Northeast Georgia Med. Ctr., 235 Ga.App. 365, 366, 508 S.E.2d 716, 718 (1998) (noting that hospital posted sign over registration desk and gave patients treatment-consent forms advising patients that physicians were not hospital employees); and Holmes v. University Health Sery., Inc., 205 Ga.App. 602, 603, 423 S.E.2d 281, 283 (1992) (noting that forms plaintiff encouraged the Bains to think that Dr. 38, 735 P.2d 460 (Ct. App. 1987) (<HOLDING>); and Gilbert, 156 Ill.2d at 526, 622 N.E.2d at Holdings: 0: holding that where hospital used balance billing its lien was unenforceable because the hospital had been paid in full for the services it provided to patient and there was consequently no debt to secure by the existence of the lien 1: holding that vicarious liability claim against union based on medical malpractice of treating physician is not preempted by erisa 2: holding that because the trial court did not abuse its discretion in finding the expert report adequate as to the vicarious liability claim against the hospital based on the actions of the doctors plaintiffs suit against the hospital including her claim that the hospital was vicariously hable for the actions of its nurses could proceed 3: holding that claim that hospital provided inadequate supervision leading to patients sexual assault by another patient constituted health care liability claim 4: holding issue of vicarious liability was for jury where patient did not have opportunity to choose physician who was provided by hospital


Input: If the trial court concludes that the agreement is procedurally unconscionable, the trial court must also determine whether the agreement is substantively unconscionable on the basis that it limits discovery and noneconomic damages. See, e.g., Prieto v. Healthcare & Ret. Corp. of Am., 919 So.2d 531, 533 (Fla. 3d DCA 2005) (“The agreement herein deprives the nursing home resident of significant remedies provided for by the statutes. Specifically, it limits non-economic [sic] damages, bars punitive damages and attorney’s fees, and restricts access to discovery necessary to prove statutory violations. For these reasons, we conclude that the agreement is substantively unconscionable.” (footnote omitted)); Romano ex rel. Romano v. Manor Care, Inc., 861 So.2d 59, 62-63 (Fla. 4th DCA 2003) (<HOLDING>); see also Woebse, 977 So.2d at 634-35 Holdings: 0: holding that appellate attorneys fees were incurred during the divorce proceedings and were awardable by the trial judge 1: holding agreement was substantively unconscionable because it prevented arbiter from awarding punitive damages and attorneys fees awards that were intended by the legislature to be awardable 2: holding that even though attorneys fees were not properly awardable under rule 68 costs excluding fees were mandatory 3: holding that the state is immune from punitive awards 4: holding that the arbitration provision was substantively unconscionable because it precluded the award of attorney fees which were authorized in the relevant ohio consumer protection statute


Input: there was no support in the text or history of § 1252 for such a construction. 533 U.S. at 351, 121 S.Ct. 2268. Accordingly, the Supreme Court affirmed the Second Circuit’s holdings that it lacked jurisdiction over a petition for direct review, and that § 1252 did not preclude the petitioners from pursuing habeas relief in the district court under § 2241. Id. at 349-50, 352, 121 S.Ct. 2268. Thus, we disagree with the government’s argument that Mr. Latu could have raised all the issues in his habeas corpus petition in a petition for direct review. We conclude that Mr. Latu properly filed a timely habeas petition to bring his constitutional claims that were not reviewable on direct review under § `1252(a)(2)(C). See Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1145-47 (10th Cir.1999) (<HOLDING>). B. Jurisdiction to review discretionary Holdings: 0: holding that review under  2241 is still available ndtwithstanding language in  1252a2c barring review by any court of final orders of removal for aliens deportable by reason of having committed a criminal offense and distinguishing between direct and collateral review 1: holding that noncriminal aliens could seek review of the agencys orders through either a petition for review or a  2241 petition 2: holding that a state court criminal judgment is final for purposes of collateral attack in federal court at the conclusion of review in the united states supreme court or when the time for seeking certiorari review expires 3: holding that the real id act gave us jurisdiction to review a criminal aliens petition for review of an order of removal raising a question of law 4: holding that iirira  309c4g repealed this courts jurisdiction over petitions for review filed by aliens who are deportable for having committed enumerated criminal offenses but did not repeal 28 usc  2241


Input: parole is not a consequence of a plea of guilty, but a matter of legislative grace or a consequence of the withholding of legislative grace [, and t]here is no co SE2d 609) (2008) (same). 6 See Rice, 277 Ga. 649; Williams, 301 Ga. App. at 850-51 (1). 7 Earley v. State, 310 Ga. App. 110, 112 (712 SE2d 565) (2011) (citation and punctuation omitted). 8 Murray v. State, 307 Ga. App. 621, 623-24 (705 SE2d 726) (2011) (footnote and punctuation omitted); see also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 9 Rios v. State, 281 Ga. 181, 181 (2) (637 SE2d 20) (2006) (punctuation omitted). 10 Murray, 307 Ga. App. at 624 (punctuation omitted). 11 Williams v. Duffy, 270 Ga. 580, 581 (1) (513 SE2d 212) (1999) (citations and punctuation omitted). 12 See id. at 582 (1) Holdings: 0: holding that counsels failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance 1: holding that ineffective assistance can render a guilty plea involuntary 2: holding that an attorney is required to advise a defendant of the direct consequences of a plea and will not be found ineffective for failing to advise of collateral consequences of the plea 3: holding that right to appeal claim of ineffective assistance of counsel alleging that counsel failed to convey plea negotiations timely and adequately inform of consequences of pleading guilty to jury for sentencing waived because plea of guilty to jury was independent of and not supported by alleged ineffective assistance of counsel claims 4: holding failure to advise of right to subpoena witnesses does not affect the validity of a guilty plea


Input: satisfy the duly of fair representation implied by the National Labor Relations Act, 29 U.S.C. § 151 et seq. 7 . The relevant portion of Section 160(b) with which the Cannon court was concerned stated as follows: “No complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made ...” See 832 F.2d at 304 n. 2 (emphasis supplied). 8 . See Winkels v. George A. Hormel & Co., 874 F.2d 567, 569 (8th Cir.1989) (disagreeing with Cannon majority and ruling that there is no requirement that federal procedural rules be imposed when a hybrid case is initiated in state court); Gorwin v. Local 282, I.B.T., 838 F.Supp. 116, 123 (S.D.N.Y.1993) (<HOLDING>); Juliano v. Stroehmann Bakeries, Inc., 734 Holdings: 0: holding that outofstate defendants transmittal into new york of ceaseanddesist letter to new york plaintiff for purported trademark infringement was insufficient to create jurisdiction over defendant in a new york declaratory judgment action 1: holding that while the fourteenth amendment is directed against state action and not private action the state action requirement is met in a civil action where state law is applied whether by statute or common law 2: holding venue proper where proper when the action was commenced 3: recognizing forum selection clause providing that no such claim shall be commenced prosecuted or continued in any forum other than the courts of the state of new york located in the city and county of new york or in the united states district court for the southern district of new york as clear and unambiguous expression of parties selection of exclusive forum in affirming district courts dismissal of action commenced in united states district court for the district of new jersey 4: holding that plaintiffs hybrid  301fair representation action was not time barred where plaintiff commenced timely action in state court under new york civil rules


Input: is not available as a defense to claims alleging medical malpractice in providing subsequent treatment. In Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 15, 459 N.W.2d 178, 186-87 (1990), where a patient failed to follow the instructions of his doctor to lose weight, and his weight problem was causally related to a pulmonary embolism for which he obtained negligent treatment, the defense of contributory negligence was held inapplicable in a medical malpractice case “when a patient’s conduct provides the occasion for medical attention, care, or treatment ... or when the patient’s conduct contributes to an illness or condition for which the patient seeks the medical attention, care, or treatment on which a subsequent medical malpractice claim is based.” Likewi ist.Ct.App.1981) (<HOLDING>); Matthews v. Williford, 318 So.2d 480, 483 Holdings: 0: holding that plaintiffs claim that medical providers did not comply with baker act was not subject to medical malpractice statutes ajlthough a medical diagnosis is necessary in order to involuntarily commit a patient the process of complying with the statute does not require medical skill or judgment 1: holding that fault may not be assessed against a patient in a medical malpractice action in which a patients negligent conduct provides only the occasion for the medical attention care or treatment which is the basis for the action where the defendant doctor was treating the plaintiff patient for injuries sustained in a car accident negligently caused by the plaintiff who was driving while intoxicated 2: holding that the medical review panel is authorized to review the medical records and other submitted material pertaining to each defendants treatment of a patient and that while a medical malpractice plaintiff must as a prerequisite to filing suit present the  proposed complaint for review and expert opinion by a medical review panel there is no requirement for such plaintiff to fully explicate and provide the particulars or legal contentions regarding the claim 3: holding that conduct by the plaintiff contributing to his illness or medical condition and furnishing the occasion for medical treatment is not a defense to medical malpractice where a doctor negligently treated a man who had attempted to commit suicide 4: holding that because the warden and medical treatment director lacked medical expertise they cannot be liable for the medical staffs diagnostic decision not to refer plaintiff to a doctor to treat his shoulder injury


Input: Appendix at 200. On the other hand, if the arbitrator determines that the March 2002 claim qualifies as a “controver sy or claim arising out of or relating to services ... hereafter provided by us to you or at your request,” resolution of the claim is governed by the ADR provision. Id. In the event that the mediation required under the ADR provision is unsuccessful and the parties proceed with arbitration, the arbitrator will be required to rule upon Parkevich’s claims related to the March 2002 sale of the property. In doing so, the arbitrator would have to rule upon Parkevich’s claims, if they are presented, that the Engagement Letter violated the Ind. Rules of Professional Conduct and is against public policy. See, e.g., Trotter v. Nelson, 684 N.E.2d 1150, 1153 n. 4 (Ind. 1997) (<HOLDING>); W.R. Grace and Co. v. Local Union 759, Holdings: 0: holding that the restrictive covenants at issue are unenforceable as a matter of public policy 1: holding that the disciplinary rules of the code of professional responsibility are not laws of the state of texas for purposes of statute which excludes the admission of evidence obtained in violation of law 2: holding that an agreement in violation of explicit judicial declarations of indiana public policy in the rules of professional conduct are akin to contravening a statute and such agreements are unenforceable 3: holding that the rules of contract law are applicable to plea agreements 4: holding that a violation of the rules of professional conduct may not be used as evidence and citing terry cove north for the proposition that the sole remedy for a violation of the rules of professional conduct was the imposition of disciplinary measures


Input: and the initiation of criminal proceedings against him, and seizing Colon-Andino’s property — e.g. his weapons permit and gun — without probable cause. Each one of these factual allegations alone clearly constitutes a plausible Fourth Amendment violation. Together the claims allege malicious prosecution on the part of defendants against Colon-Andino. The First Circuit Court of Appeals has “assumed without deciding that malicious prosecution can, under some circumstances, embody a violation of the Fourth Amendment and thus ground a cause of action under section 1983.” Nieves v. McSweeney, 241 F.3d 46, 54 (1st Cir.2001) (quoting Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir.1996)); Albright v. Oliver, 510 U.S. 266, 275-76, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)(<HOLDING>). To establish malicious prosecution under Holdings: 0: recognizing that an alleged deprivation of the right to be free from prosecution without probable cause might be judged under the fourth amendment 1: holding that the fourth amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person 2: holding that there is no substantive due process right under the fourteenth amendment to be free from malicious prosecution 3: holding fourth amendment protects right to be free from arrest without probable cause 4: holding that there is no fourteenth amendment substantive due process right to be free from malicious prosecution and suggesting that such a cause of action might lie under the fourth amendment


Input: hr" (Att, 4 at unnumbered page 4). According to Dr. Mash, the combined effects of PCP intoxication and Smith's low intellectual functioning and organic brain ' damage together impaired his higher order reasoning and judgment abilities such that "he could not adequately comprehend his Miranda rights or assess the ramifications of a waiver of those rights" (Att. 4 at unnumbered page 2). 1 24 We find that this proffered evidence is insufficient to show that trial counsel was ineffective. Specifically, we are convinced that expert testimony such as that contained in these two reports would not have changed the district court's decision on the voluntariness of Smith's waiver or our opinion on direct appeal affirming that decision. See Strickland, 466 U.S. at 693-94, 104 S.Ct. at 2067-68 (<HOLDING>). 125 In finding that Smith voluntarily waived Holdings: 0: holding that to establish stricklandpierce prejudice in the appellate representation context the petitioner must show that there is a reasonable probability that the outcome of the direct appeal proceeding would have been different but for counsels deficient performance 1: holding that to establish prejudice sufficient to warrant finding of ineffective assistance the defendant must show that there is a reasonable probability that but for counsels unprofessional errors the result of the proceeding would have been different 2: holding that for an ineffective assistance of counsel claim to be established a defendant must show that but for counsels error the outcome of his proceedings would have been different 3: holding that to satisfy the prejudice prong a petitioner must establish that but for counsels errors there is a reasonable probabil ity the result of the proceeding would have been different 4: holding that to show prejudice in a claim of ineffective assistance of appellate counsel the petitioner must show a reasonable probability that but for counsels errors the result of the proceeding would have been different


Input: other disputed items should be included in the property distribution. III. Inclusion of Property that Sue Disposed of Prior to the Dissolution. The parties disagree with respect to whether other assets should be included as part of the property awarded to Sue: (1) the Blazer sold or given to Jami; (2) the cash value received by Sue when she canceled the policy on David’s life; and (3) the funds from the liquidated mutual fund that were not attributable to Sue’s inheritance. We begin our consideration of this issue with the observation that a spouse’s disposal of assets that would otherwise be subject to division in the dissolution may properly be considered in making an equitable distribution of the parties’ property. See In re Marriage of Cerven, 335 N.W.2d 143, 146 (Iowa 1983) (<HOLDING>). A. The Blazer. The evidence shows that the Holdings: 0: holding that the fourth amendment protects property as well as privacy 1: holding that plaintiffs may have a property interest in real property 2: holding that an obligation is in the nature of alimony when it is intended to provide support for the spouse rather than an equalization of property rights 3: holding that spouse could not claim exemption in property that was only property of other spouses estate 4: holding that property transferred by a spouse to avoid support obligation may be considered on the issue of property distribution as well as alimony


Input: the total cost of the items ordered and the type of delivery the customer selected. The specific charges were identified based on the two. variables. As is apparent from J.C. Penney’s disclosures, the cost of the delivery charge as a percentage- of the amount of the order declined as the amount of the order increased, thereby serving as an incentive for consumers to purchase additional items to save on delivery charges. Nowhere in the website did J.C. Penney claim that its shipping and handling charges were based upon “actual cost.” Indeed, the matrix chart provided by J.C. Penney plainly demonstrated that the key variables were not weight or size but cost of the item and the chosen method of delivery. See Zuckerman v. BMG Direct Mktg., Inc., 290 A.D.2d 330, 737 N.Y.S.2d 14, 15 (2002) (<HOLDING>); see also Ciser v. Nestle Waters N. Am. Inc., Holdings: 0: recognizing that where fca forfeitures were allowed for numerous projects on which no actual pecuniary loss had been incurred the governments injuries of course included not merely the amount of the fraud itself but also ancillary costs such as the costs of detection and investigation that routinely attend the governments efforts to root out deceptive practices directed at the public purse 1: holding that billing consumers for shipping and handling an amount exceeding the sellers actual costs cannot be deceptive as a matter of law when the amounts are fully disclosed 2: holding that where an arbitration agreement between an employer and employee does not specifically provide for the handling of arbitration costs california courts should interpret the arbitration agreement  as providing  that the employer must bear the arbitration forum costs 3: holding that costs are not fixed until judgment is entered and interest can only run on costs when due 4: holding that it may be decided as a matter of law