Input: payable.” Id. at 1, Further, the Mortgage provides that Debtors’ promise to pay Villa Donna “at the place for payment and according to the terms of payment the principal amount plus interest at the rates stated above. All unpaid amounts shall be due by the final scheduled payment date.” Id. at 2. Explicitly, the Mortgage provides for prepayment, stating that “[o]n any ,.. permitted prepayment, any such excess shall be canceled automatically as of the ... prepayment or, if already paid, credited on the principal of the debt, or if the principal of the debt had been paid, refunded.” Id. at 6. Our sister court examined whether paying off a home mortgage during the life of a chapter 13 plan would violate § 1322(b)(2). In re Gaetje, 2015 WL 3825972, at *5 (Bankr. S.D. Tex. June 18, 2015) (<HOLDING>); see also In re Bellamy, 126 B.R. 134, 135-36 Holdings: 0: holding that there is no impermissible modification of the note because the very terms of the note allow for prepayment without a penalty 1: holding that when a mortgage contains a provision specifically allowing full prepayment early repayment is not an impermissible modification 2: holding that a mortgagee could enforce mortgage covenants requiring the mortgagors to keep the property free of encumbrances even after it foreclosed by advertisement and purchased the property for the full amount of the mortgage debt because the mortgage covenants concerned title to the mortgaged property rather than repayment of the debt 3: holding that a mortgage or modification of a mortgage is not a good or a service under the dtpa 4: holding mortgage lenders claim for a postdefault postacceleration prepayment premium pursuant to escape clause in mortgage documents that prohibited debtor from evading prepayment fee by tendering full amount of debt postforeclosure had to be disallowed because the debtor in proposing to pay mortgage debt over time in plan of reorganization was not tendering full amount of debt and was not attempting to prepay this accelerated debt


Input: C. Procedural Due Process In Count III, Wilson alleges that he was deprived of property and liberty without procedural due process when his DNA specimen was collected and his DNA profile disclosed in CODIS without a predeprivation hearing. The district court rejected the claim, observing that due process is a flexible concept and concluding that, since Wilson had diminished privacy interests as a prisoner, the degree of intrusion was minimal, and the risk of erroneous deprivation was slight, no pre-deprivation hearing was required. In support, the district court observed that the Sixth Circuit has already upheld the Ohio DNA statute against procedural due process challenge in an unpublished opinion, Williams v. Dep’t of Rehabilitation and Correction, 3 Fed.Appx. 415, 417 (6th Cir.2001) (<HOLDING>). In addition, the district court cited similar Holdings: 0: holding that collection of a dna blood sample was a de minimis taking not entitled to extensive due process protections 1: recognizing that in prior decisions the court had used the term inconclusive to mean that dna evidence did not exclude an individual but clarifying that in the future the term inconclusive would be used only when a dna sample does not contain enough dna to draw a conclusion dna is degraded or for other reasons a dna test yields no results or the examiner draws no conclusion 2: holding that due process protections do not apply where a public employee is not fired 3: holding that fiveday suspension was not a de minimis deprivation 4: holding that retroactively applying new version of dna act authorizing collection of defendants dna as a condition of supervised release did not constitute a sentence in excess of the statutory maximum


Input: on her behalf was in her best interests. ¶ 37 Pender filed a motion to dismiss the second complaint for failure to comply with the statute of limitations. After the trial court granted his motion, Pender obtained a judgment against Renee for $86.00 in costs. ¶ 38 Renee, through new counsel, filed a malpractice action against Moak on January 17, 2001. The parties settled the case, and Moak paid Renee $20,000 as a condition of settlement. ¶39 These facts reveal additional serious ethical misconduct. Moak disregarded his duty of loyalty owed to Jacob Luster, his former client, by initiating a cause of action against him in the same matter as the prior representation without consent. See Ariz. R. Sup.Ct. 42, ER 1.9; Foulke v. Knuck, 162 Ariz. 517, 522, 784 P.2d 723, 728 (App.1989) (<HOLDING>). Also, by filing the complaint without Renee’s Holdings: 0: holding er 19a prohibits subsequent representation of an individual whose interests are substantially adverse to those of the former client 1: holding that an attorney may only undertake to represent a new client against a former client  where there is no confidential information received from the former client that is in any way relevant to representation of the current client 2: holding attorneys motion to intervene in former clients tort suit untimely because attorney had clear and early notice that former client would not adequately represent his interests 3: holding that an individual whose ability to lift is substantially impaired qualifies as a disabled person within the meaning of the ada 4: holding that an attorney whose office staff incorrectly instructed a client that he need not appear in court for trial provided incompetent representation


Input: the disqualifying factors exists under section 3—9008 involves the exercise of the court’s discretion. McNulty, 60 Ill. App. 3d at 704. The authority of a special State’s Attorney is strictly limited to the special matter for which he was appointed. Lavin v. Board of Commissioners, 245 Ill. 496, 501-02 (1910). It is proper for a court to disqualify a special State’s Attorney as “unable to attend” to his duties when he is unwilling to represent the interests of the county board. See People ex rel. Narczewski v. Bureau County Merit Comm’n, 154 Ill. App. 3d 732, 737 (1987) (stating that court could appoint a special State’s Attorney when State’s Attorney was unwilling to represent the interests of the commission); Suburban Cook County Regional Office of Education, 282 Ill. App. 3d at 575 (<HOLDING>). Respondent was appointed in this case to Holdings: 0: holding that application of section 39008 is proper when states attorney is unwilling to support the position of a public body 1: holding that an attorney is a fiduciary under section 523a4 2: holding that a states governor and attorney general were not proper defendants when they had no power to enforce the challenged statute 3: holding that the proper review for the trial courts application of the law is de novo 4: holding that hearing is appropriate when application contains assertions of fact that a petitioner is in a position to establish by competent evidence


Input: that, “ ‘[d]uring and in relation to any drug trafficking crime, a person who uses, wears, carries, or transports a firearm is guilty of a separate felony....’” Id. at 143 n. 3, 626 A.2d 946 (emphasis added). The Court of Appeals reversed the petitioner’s conviction under the statute, holding that “ ‘use’ requires that the defendant ‘carry out a purpose or action’ or ‘make instrumental to an end or process’ or ‘apply to advantage’ the firearm.” Id. at 157, 626 A.2d 946 (citation omitted). Notably, the codification at issue in Harris did not contain a provision comparable to C.L. § 5-621(b)(l), which makes it a crime to “possess a firearm under sufficient circumstances to constitute a nexus to the drug trafficking crime.” (Emphasis added.) See Johnson, 154 Md.App. at 306, 839 A.2d 769 (<HOLDING>). In its interpretation of Art. 27, § 281A(b), Holdings: 0: holding that a firearm could be used both to protect the defendants spouse and to facilitate the defendants drug trafficking crimes 1: recognizing that the terms controlled substance offense and drug trafficking offense have nearly identical ussg definitions and using past decisions interpreting drug trafficking offense to analyze a challenge involving a controlled substance offense because the issues raised in those past decisions were closely analogous to the issue in the present case 2: recognizing that in 1996 in response to harris the general assembly amended section 281ab by expanding the crime to include a person who possesses a firearm in conjunction with a drug trafficking offense 3: recognizing the connection between guns and drug trafficking 4: holding that carries a firearm includes one who knowingly possesses and conveys a firearm in a vehicle


Input: to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6, 20). The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Id. § 1532(16). The term “distinct population segment” (“DPS”) is not defined in the ESA, but has been interpreted in a 1996 joint policy issued by FWS and the National Marine Fisheries Service (“NMFS”). See Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (“DPS Policy”), 61 Fed.Reg. 4722 (Feb. 7, 1996); see also Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1145 (9th Cir.2007) (<HOLDING>). The DPS Policy identifies three elements to Holdings: 0: holding that claim construction is an issue of law for the court not a question of fact for the jury 1: holding that claim construction is a matter of law for the court to determine 2: recognizing that a clause in an insurance policy was susceptible to a construction in favor of the insured but that such a construction would be unreasonable absurd and produce results never intended or contemplated by the parties 3: holding that review of the construction of a sentencing statute is de novo 4: holding that the dps policy is a reasonable construction of distinct population segment


Input: the possible certification of settlement classes that need not meet the requirements of Rule 23(b)(3). See Fed.R.Civ.P. 23(b)(4) (Draft Aug. 15, 1996); see also Samuel Estreicher, Foreword, Federal Class Actions After 30 Years, 71 N.Y.U.L.Rev. 1, 6 & n.26 (1996) (noting that proposed (b)(4) category would allow trial courts to certify class actions for purposes of settlement, even though the requirements of subdivision (b)(3) might not be met for trial); Edward H. Cooper, Rule 23: Challenges to the Rulemaking Process, 71 N.Y.U.L.Rev. 13 (1996) (discussing proposed changes to Rule 23). We observe that this idea has met with substantial opposition from a number of quarters. See, e.g., In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 786-94 (3d Cir.) (<HOLDING>), cert. denied, — U.S. -, 116 S.Ct. 88, 133 Holdings: 0: recognizing district courts authority to police class member contacts and to prohibit defendant from engaging in unsupervised unilateral communications with plaintiff class members to solicit exclusion requests from rule 23 class 1: holding that under present rule settlement class must meet all rule 23 requirements and expressing concern about dangers of overrewarding attorneys and undereompensating class members 2: holding that class claims that fail to meet the requirements of rule 23 may be properly dismissed by granting a rule 12b6 motion 3: holding that a class could not be certified because the definition made class members impossible to identify prior to individualized factfinding and litigation and thereby failed to satisfy one of the basic requirements for a class action under rule 23 4: holding that entry of settlement decree without notice to putative class members violated the due process rights of the class members


Input: whom must be a physician) to determine whether the HMO’s actions were “reasonable.” These distinctions are fatal to the external review law. The external review hearing more closely resembles “contract interpretation or evidentiary litigation before a neutral arbiter” than “a practice (having nothing to do with arbitration) of obtaining another medical opinion.” Rush Prudential, 536 U.S. at 383, 122 S.Ct. 2151. More damaging, however, is the right of either party to seek judicial review. For example, a claimant who is denied benefits pursuant to Hawaii’s external review law can appeal that denial to the courts, allowing for a judicial determination of the claimant’s entitlement to benefits. This is precisely the type of adjudication barred by Pilot Life, 481 U.S. at 52, 107 S.Ct. 1549 (<HOLDING>). See HRS § 432E-6; 215 Ill. Comp. Stat. Holdings: 0: holding that  1132a is the exclusive vehicle for actions by erisaplan participants and beneficiaries asserting improper processing of a claim for benefits 1: holding erisa preempts state contract and tort actions based on improper processing of claims for benefits 2: holding negligent misrepresentation claim was not preempted because it neither sought benefits under plan nor alleged improper processing of benefits 3: holding that state law causes of action arising from improper processing of a claim for benefits are preempted 4: holding that state common law causes of action asserting improper processing of a claim for benefits under an employee benefit plan are removable to federal court


Input: tract ten in 1996. In 1996, Hawkins alone owned tracts four, five, and eight. Hawkins and thirty-three relatives owned tract ten. Hawking's share of tract ten was a mere 1/120th interest in that thirteen and one-third acres. We fail to see how unity of title could exist when Hawkins owned a one hundred percent interest in tracts four, five, and eight, but owned less than a one percent interest in tract ten. Finally, an easement of necessity arises, if ever, only at the time that the parcel is divided and only becaus ite unity of title required for implication of an easement of necessity, we need not determine whether Cockrell established the required necessity. The trial court's judgment denying Cockrell's claim was not contrary to law. See, eg., McConmell, 5746 N.E.2d at 1302 (<HOLDING>). For the foregoing reasons, we affirm the Holdings: 0: holding that the trial court did not err when it refused to find an implied easement by necessity because the plaintiff did not demonstrate necessity 1: holding that the trial court did not err by granting defendants motion for summary judgment 2: holding that an easement agreement and an unrecorded easement plan created an easement 3: holding that trial court did not err 4: holding that trial court did not err in refusing to give charge because plaintiff failed to demonstrate that his requested charge was tailored to the evidence


Input: right to privacy has been violated. Powell, 175 F.3d at 112. Here, however, plaintiff does not allege, and the record does not indicate, that word of plaintiffs condition spread through the prison as a result of the in-cell exam or that he experienced discriminatory or violent action from other inmates. See Leon v. Johnson, 96 F.Supp.2d 244, 252 (W.D.N.Y.2000) (no constitutional violation of inmate’s right to privacy where plaintiff failed to present evidence that the nature of his condition was disclosed to other inmates). Nor is this is a ease in which plaintiff claims his right to bodily privacy was violated by the presence of a staff member of the opposite sex. Both the physician and nurse were men, as was plaintiffs cellmate. See Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir.1980) (<HOLDING>); Covino, 967 F.2d at 78 (same); Colman v. Holdings: 0: recognizing inmates limited right to bodily privacy that included freedom from involuntary viewing of private parts of the body by guards of the opposite sex 1: recognizing that the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private 2: recognizing private right of action 3: recognizing privacy interest in medical records requested under freedom of information act 4: recognizing state constitutional right of individual privacy that    may be asserted to prevent unwanted infringements of bodily integrity


Input: “(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial.” Id. at 1489 (footnote omitted) (quoting Caldwell v. Unified Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 281 (9th Cir.1996)) (internal quotation marks omitted). Some of our cases indicated that a three-judge panel could rely on these exceptions to overrule the law of an earlier published opinion, so long as no subsequent panel had yet relied on it. See id. at 1492-93; see also Mendenhall v. NTSB, 213 F.3d 464, 469 n. 3 (9th Cir.2000); Tahoe-Sierra Pres. d X Internet Servs., 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (<HOLDING>). 5 . See Articles of Confederation of 1781, Holdings: 0: holding that when a statutes terms are clear and unambiguous on their face there is no room for statutory construction and a court must apply the statute according to its literal meaning 1: holding that to foreclose a conflicting agency interpretation a prior court decision must hold that its construction follows from the unambiguous terms of the statute 2: holding that the doctrine of contemporaneous construction means that where an administrative agency has the responsibility of interpreting a statute that is in some manner ambiguous the agency is restricted to any longstanding construction of the provisions of the statute it has made previously  3: holding that a courts prior judicial construction of a statute trumps an agency construction otherwise entitled to chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion 4: holding that if words of statute are unambiguous there is no room for judicial construction


Input: bid was superior to RHJI’s. 8 . This was the same spreadsheet presented to the special committee at the second meeting earlier that day. The two bids were based on the same APA (HHI's bid was submitted as a mark-up of the RHJI APA). As explained in greater detail below, the two bids were similar in all respects except three, most critically that the RHJI bid consisted of a $32 million cash component, while the HHI bid consisted of a $ . S.D.N.Y. 1994) (agreement subject to § 363(b)(1) "is not enforceable absent notice and a hearing”). 11 . Indeed, Donohoe testified at the July 27, 2009 hearing that RHJI would only be entitled to the break-up fee and expense reimbursement if the Court granted the Motion to Construe. 12 . See also In re Wintex, Inc., 158 B.R. 540, 545-47 (D.Mass.1992) (<HOLDING>). 13 . See also In re Broadmoor Place Invs., Holdings: 0: holding that to prove ineffectiveness where defendant rejected plea offer upon advice of counsel defendant must show he would have accepted the offer had counsel advised correctly the state would not have withdrawn its offer the court would have accepted the offer and the resulting sentence would have been less severe 1: holding that an offer to donate cannot be an offer to sell 2: holding that bankruptcy court properly considered competing bid that topped initial offer by less than 5 even though the topping bid did not comply with bid procedures order requiring counteroffers to exceed the initial offer by at least 10 3: holding because an initial order contemplated the subsequent entry of a judgment the initial order was not considered a final adjudication 4: recognizing that negotiations after initial acceptance of a bid postponed the date of the final award


Input: financial standards specified by the Secretary,” 42 U.S.C. § 1395w-3(b)(2)(A)(ii) — the text itself provides no more guidance beyond this general statement. Where Congress “has ‘not specified the level of specificity expected of the agency, the agency is entitled to broad deference in picking a suitable level.’ ” Cement Kiln Recycling Coalition v. EPA 493 F.3d 207, 217 (D.C.Cir.2007); see also Animal Legal Defense Fund, Inc. v. Glickman, 204 F.3d 229, 235 (D.C.Cir.2000) (“[W]e accord agencies broad deference in choosing the level of generality at which to articulate rules.”). Similarly, if the underlying statutory language does not require a particular methodology, the Court cannot demand that the agency implement such a test. See New Mexico v. EPA 114 F.3d 290, 295 (D.C.Cir.1997) (<HOLDING>). Thus, for example, in Cement Kiln the D.C. Holdings: 0: holding that epa need not incorporate particular tests when evaluating applications if relevant statutory language does not explicitly require such tests 1: holding that these tests are directed at ensuring that particular anticompetitive mechanisms operate because of a deliberate and intended state policy 2: holding that blood tests do not infringe significant privacy interests 3: holding breachofcontract claim preempted because contract did not explicitly incorporate a federallaw provision 4: holding that the best interest of the child was the proper standard to apply in determining whether blood tests should be conducted


Input: the validity of his prior conviction or its use to increase his sentence, operates to give the defendant enough information for him to decide intelligently and knowingly whether to plead guilty or go to trial, knowing in advance the consequences of a potential guilty verdict. E.g., United States v. Williams, 584 F.3d 714, 715 (7th Cir.2009); United States v. Morales, 560 F.3d 112, 115 (2d Cir.2009) (per curiam); United States v. Arnold, 467 F.3d 880, 887 (5th Cir.2006); United States v. Hamilton, 208 F.3d 1165, 1168 (9th Cir.2000); United States v. Kennedy, 133 F.3d 53, 59 (D.C.Cir.1998); United States v. Williams, 59 F.3d 1180, 1185 (11th Cir.1995); United States v. Johnson, 944 F.2d 396, 407 (8th Cir.1991); see also United States v. Gonzalez, 512 F.3d 285, 290 (6th Cir.2008) (<HOLDING>); United States v. Campbell, 980 F.2d 245, 252 Holdings: 0: recognizing this presumption 1: recognizing this method 2: recognizing this distinction 3: recognizing this purpose albeit implicitly 4: recognizing this rule


Input: see 40 C.F.R. §§ 124.10-.14, public participation requirements related to lists of impaired waters, see 40 C.F.R. § 130.7(d)(2), and public participation requirements for States and the EPA in the water quality standards revision process, see 40 C.F.R. §§ 131.20-.22. The Cities nonetheless argue that EPA has violated a nondiscretionary duty by declining to encourage public participation as to the 2009 Document in two ways: by recommending that New Hampshire use the 2009 Document without adopting it as state law and by precluding plaintiffs from participating in a federally-funded peer review of the Document that EPA conducted at New Hampshire’s request. A nondiscretionary duty must be “clear-cut” in addition to being mandatory. Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C.Cir.1987) (<HOLDING>). The D.C. Circuit has recognized that a Holdings: 0: holding that nonreadily ascertainable requirement imposes merely a general duty  that is not actionable under the clean air acts citizen suit provision 1: holding that puffery is not actionable under the securities laws 2: holding that an actionable  20a claim must be preceded by an actionable primary violation under  10b 3: holding that a hostile work environment is a form of discrimination that is actionable under the statute 4: holding that section 890041 is not a jurisdictional requirement rather a requirement to maintain suit


Input: 1998) (§ 1983 claim); Russo v. Palmer, 990 F.Supp. 1047, 1050 (N.D.Ill. 1998) (§ 1983 claim); White v. Fauver, 19 F.Supp.2d 305 (D.N.J.1998) (§ 1983 claim); Davis v. Woehrer, 32 F.Supp.2d 1078 (E.D.Wis.1999) (§ 1983 claim). 10 . § 1997e(a), prior to its amendment by the PLRA, provided as follows: (1) [s]ubject to the provisions of paragraph (2), in any action brought pursuant to [42 U.S.C. § 1983] by an adult convicted of a crime confi ress. As Senator Hatch explained, the PLRA was enacted to “wrest control of our prisons from the lawyers and the inmates and return that control to competent administrators appointed to look out for society's interests as weM as the legitimate needs of prisoners.” 141 Cong. Rec. S14408-01, S14418 (1995). See also Alexander, 159 F.3d at 1327, n. 11, 1327 (<HOLDING>). 20 . Strictly construing the exhaustion Holdings: 0: holding that va must follow its own regulations 1: holding that an agencys interpretation of its own regulations is entitled to deference 2: holding that although the bankruptcy court is the preferred forum because of its greater expertise state courts have concurrent jurisdiction 3: holding that the board is not free to ignore its own regulations 4: holding that exhaustion benefits courts because the prison systems expertise is first utilized in interpreting its own regulations and applying them to the facts


Input: community as a whole ..., but benefits instead primarily a definite segment thereof, namely, the funeral service industry by providing for it competently trained personnel”); Milward v. Paschen, 16 Ill.2d 302, 157 N.E.2d 1, 6 (1959) (denying tax exemption to foundation that “serve[d] mortuary profession[] and [was] designated to bring greater commercial success to that profession”); Winona Sch. v. Department of Revenue, 211 Ill.App.3d 565, 156 Ill.Dec. 47, 570 N.E.2d 523, 527 (1991) (denying real-estate tax exemption to operator of private photography school because operator “did not provide[ ] comprehensive course of study”), cert. denied, 141 Ill.2d 562, 162 Ill.Dec. 511, 580 N.E.2d 137 (1991); American Ass’n of Cereal Chemists v. County of Dakota, 454 N.W.2d 912, 915-16 (Minn.1990) (<HOLDING>); Nebraska State Bar Found. v. Lancaster County Holdings: 0: holding that to be exempt from property tax as a public or charitable use the property must meet the american museum test 1: holding that a charitable organizations religious purposes will not remove it from the purview of a property tax exemption 2: holding american association of cereal chemists and american phytopathological society was not entitled to realestate tax exemption as seminaries of learning even though their primary purpose was educational because the offerings were restricted to the limited area the organizations promote 3: holding that cemetery owned and operated by association of churches was not entitled to unemployment compensation tax exemption because services it provided were the same as those of secular cemeteries and therefore its primary purpose was not religious 4: holding that the tax was indirect even though the recipient could not shift the tax to others


Input: of the Holtee loading process. See Bluebonnet I, 266 F.3d at 1355; Indiana Michigan Power Co., 422 F.3d at 1373. Finally, Plaintiffs argue that if they are not awarded cask loading costs, they will be forced to pay for cask loading twice, as they will have to load DOE casks in the future when DOE performs. Pis.’ Post-Trial Br. 54-55. None of Plaintiffs’ canistered fuel is acceptable for pickup by DOE without an amendment to the Standard Contract, and neither party knows what the terms of any amendment to the Standard Contract might be. While Plaintiffs may incur additional damages in the future due to the Government’s failure to perform, that potential does not entitle them to damages now. See Yankee Atomic, 536 F.3d at 1281-82; see also Indiana Michigan Power Co., 422 F.3d at 1376-78 (<HOLDING>). For the above reasons, the Court denies Holdings: 0: holding that the plaintiff had standing to pursue its takings claim while granting plaintiffs motion for partial summary judgment that the government was liable for partial breach of contract 1: recognizing that where a plaintiff failed to perform because of the defendants breach the plaintiff could recover damages caused by the defendants breach 2: holding that in a partial breach case the plaintiff cannot recover prospective damages for anticipated future nonperformance 3: holding that the government was liable for partial breach of contract 4: holding that if the breach of an entire contract is only partial the plaintiff can recover only such damages as he or she has sustained leaving prospective damages to a later suit in the event of further breaches


Input: other than dismissal, which entails an analysis of other sanctions; and (6) the meritoriousness of the claim. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984); see also Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir.2002); Huertas v. United States Dep’t of Educ., 408 Fed.Appx. 639 (3d Cir.2010) (not published). The court must balance the factors and need not find that all of them weigh against plaintiff in order to dismiss the action. Emerson, 296 F.3d at 190 (3d Cir. 2002). Because dismissal for failure to prosecute involves a factual inquiry, it can be appropriate even if some of the Poulis factors are not satisfied. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir.1988); Curtis T. Bedwell & Sons, Inc. v. Int’l Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir.1988) (<HOLDING>). IV. DISCUSSION The court finds that the Holdings: 0: holding a sentencing court is not obligated to expressly weigh on the record each of the factors set out in  3553a 1: holding that ninemonth period not sufficient to weigh in favor of finding closedended continuity 2: holding that not all poulis factors must weigh in favor of dismissal 3: recognizing trial court should not weigh evidence 4: holding upward deviation reasonable where supported by proper factors even though some  3553a factors operated in defendants favor


Input: doctors’ actions vis-a-vis the § 2151.421 report shock the conscience because they: 1) deliberately, intentionally, and recklessly, 2) fabricated evidence that 3) was false, and 4) in so doing, they went beyond their roles as diagnosticians and treatment providers, thereby supplanting CSB’s function as investigator of child abuse. For the reasons discussed in the following subsections, I conclude that plaintiffs have failed to plead any of the components of their substantive due process claim adequately. ii. Mens Re First, with regard to plaintiffs’ assertions about the defendants’ state of mind, the insufficiency under Iqbal/Twom-bly, supra, of conclusory allegations applies to claims about mindset. Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 377 (6th Cir. 2011) (<HOLDING>); Warren v. Lexington-Fayette Urban Cty. Gov’t, Holdings: 0: holding vague and conclusory allegations of nefarious intent and motivation are insufficient to state a claim 1: holding that vague conclusory statements are insufficient 2: holding vague allegations of bias insufficient 3: holding that allegations against nondiverse defendants must be factual not conclusory because conclusory allegations do not state a claim 4: holding affidavits based on conclusory allegations insufficient at summary judgment


Input: v. Richards, 5 F.3d 1369, 1371 (10th Cir.1993) (“A person cannot be actually innocent of a noncapital sentence .... ”). The Court agrees wit d Cir.2003) (involving misapplication as a career offender, but pointing out that there was no suggestion the crimes were not violent felonies). Duval does not claim to be actually innocent of the crime for which he was sentenced or innocent of the predicate crimes upon which his ACCA status was based; instead, he claims to be actually innocent of being an armed career criminal. He claims that his assault does not qualify as a violent felony, making it legally ineligible for the ACCA. Some courts have rejected similar claims. The Fourth Circuit held, “This argument ... is not cognizable as a claim of actual innocence.” Pettiford, 612 F.3d at 284 (<HOLDING>). See also McKay, 657 F.3d at 1199 (“[E]ven if Holdings: 0: holding that  2255 movant claiming his prior conviction for assault was not a violent felony did not qualify for actual innocence exception 1: holding that burglary is violent felony 2: holding that in determining whether a prior conviction is a violent felony a court generally must look only to the fact of conviction and the statutory definition of the prior offense 3: holding a burglary must be of a building or structure in order to qualify as a violent felony for acca purposes 4: holding that fourthdegree aggravated assault is a violent felony


Input: is to examine, in light of agistrate in issuing search warrant “is to make a practical, common sense decision whether, given all the circumstances set forth in the warrant’s supporting affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place”). However, when an affidavit in support of a search warrant based on information obtained from an informant fails to state when the affiant received the information from the informant, when the informant obtained his information, or when the incident described took place, the affidavit is inadequate to support the issuance of a search warrant. See Schmidt v. State, 659 S.W.2d 420, 421 (Tex.Crim.App.1983) (<HOLDING>). Here, Officer Brinson’s affidavit supporting Holdings: 0: holding warrant valid where search warrant application affidavit was signed and probable cause existed for issuance of warrant 1: holding that all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of the affidavit 2: holding affidavit insufficient when it failed to state when affiant received information from informant when informant obtained information or when described incident took place 3: holding that a search warrant is invalid if not based on an affidavit 4: holding affidavit that failed to recite when incident described took place insufficient to support issuance of search warrant


Input: any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.” Id. at 526, 104 S.Ct. 3194. Specifically, the Court noted that prison administrators must be free to take measures to ensure the safety of staff, personnel, and visitors to the prison, which would be impossible if prisoners had any expectation of privacy in their cells. Id. at 526-28, 104 S.Ct. 3194. Although the Court stated: “We hold that the Fourth Amendment has no applicability to a prison cell,” id. at 536, 104 S.Ct. 3194, it remains unclear whether the holding is limited by the rationale of preserving institutional safety. [¶ 18 9 N.W.2d 216, 220-21 (1995) (<HOLDING>). Courts have also held that Hudson’s Fourth Holdings: 0: recognizing that police officers generally do not need warrant to search person they have lawfully arrested 1: holding that although the automobile exception is based in part on exigence where police have probable cause to search a ear they need not get a search warrant even if they have the time and opportunity 2: holding warrant valid where search warrant application affidavit was signed and probable cause existed for issuance of warrant 3: holding that inventory search could not be condemned insofar as department policy permitted opening box for the standard purposes of inventory searches 4: holding that police do not need probable cause or a warrant to search items that have already been searched for inventory purposes


Input: to provide “methods for determining just compensation” under this section, section 633(b)(1)(D), and would have required that such regulations consider the extent of physical occupation, the long-term damage, and the extent of interference with normal use and enjoyment of the property caused by the cable system. The House Committee Report explains that this subsection of section 633 was a conscious attempt to create a mechanism for providing just compensation to property owners. See House Report No. 934 at 80-81; 1984 U.S.Code Cong. & Admin.News at 4717-18. The Report states that Congress included the compensation mechanism “[i]n order to comply with the constitutional requirements” of Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (<HOLDING>). House Report No. 934 at 81; 1984 U.S.Code Holdings: 0: holding that a new york law requiring building owners to permit cable companies to install cable facilities on their premises constituted a taking 1: holding that new york law granting cable television companies right to place wires across private property worked a taking of private property 2: holding that a new york law which required a landlord to permit a cable television company to install its cable facilities on his property was a taking 3: holding that new yorks law requiring landlords to allow television cable companies to place cable facilities in their apartment buildings constituted a taking even though the facilities occupied at most only vk cubic feet of the landlords property 4: recognizing private right of action


Input: was the colonists’ response to the unlimited intrusions by the British government into their privacy in the 1700s. Using a Writ of Assistance, British customs officials were able to enter any home and search the premises for evide he requirement for particularized and focused suspicion as a prerequisite for search. Board of Education v. Earls, 536 U.S. 822, 829-30, 122 S.Ct. 2559, 2564-65, 153 L.Ed.2d 735, 744 (2002); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); Natl. Treasury Employees Union v. Von Raab, 489 U.S. 656, 666, 109 S.Ct. 1384, 1391, 103 L.Ed.2d 685, 703 (1989); Skinner v. Railway Labor Executives’ Ass’n. 489 U.S., 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 3 L.Ed.2d at 670-71 (<HOLDING>); drug testing of students, Earls, 536 U.S. at Holdings: 0: holding that reinstatement of the grievant a railroad employee terminated for drug and alcohol use violated the welldefined and dominant public policy against a railroads employment of individuals whose impaired judgment due to the use of drugs or alcohol could seriously threaten public safety and placed the railroad at risk of violating the federal railroad administration regulations 1: holding railroad rate exempt from state regulation 2: holding that random drug testing for student athletes did not violate their fourth amendment rights 3: holding railroad regulation requiring random drug testing without particularized suspicion to be reasonable in light of connection to public safety 4: recognizing a selfevaluative privilege to railroad companys investigation of an accident in light of the publics stake in the improvement of railroad safety


Input: MLS is the “person” that used the “enterprise” of USSF to engage in racketeering activities. See, 18 U.S.C. §§ 1961(3) and 1961(4). ChampionsWorld alleges that since about 1993, MLS has exerted control over USSF and sought to perpetuate the false premise that USSF has legal authority to govern U.S. professional soccer. MLS officials allegedly drafted the USSF policy of charging sanctioning fees and performance bonds of MLS’s competitors, such as ChampionsWorld. ChampionsWorld alleges that MLS committed extortion under the Hobbs Act, 18 U.S.C. § 1951, obtaining money from ChampionsWorld on at least two dozen occasions by the wrongful use of fear through economic threats and the color of official right. See, Evans v. United States, 504 U.S. 255, 261, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) (<HOLDING>). ChampionsWorld also alleges mail and wire Holdings: 0: holding that congress cannot confer the executives standing to enforce public rights on private individuals through citizensuit provisions 1: recognizing that congress desired a broad definition of a claim  2: holding that a bop definition of nonviolent offense was legislative because it did not merely explain statutory meaning but expanded the reach of a regulation to bar offenders from early release 3: holding because legislature knew how to include terms within statutory definition and did not do so statutory definition did not include terms in light of the terms contemporaneous inclusion of the same terms in a separate provision 4: holding that congress has expanded eommonlawr definition of extortion to include acts by private individuals


Input: in tension with the great weight of Massachusetts contract law. The central mantra of that law is that contract terms must be interpreted according to their plain meaning. See, e.g., S. Union Co., 941 N.E.2d at 640. Only if their meaning is indeterminate may the court look to a provision’s broader purpose for clarification. Id. Section 7.3(c) plainly applies to monetary recoveries only. Even if this is because the parties considered no other kind, that omission does not render the scope of § 7.3(c)—which imposes an affirmative obligation on BSC—ambiguous. The contract simply does not require BSC to share the proceeds of a settlement-in-kind, and we cannot supplement the contract terms. Cf. Winchester Gables, Inc. v. Host Marriott Corp., 70 Mass.App.Ct. 585, 875 N.E.2d 527, 535 (2007) (<HOLDING>). It is true that this reading allows BSC to Holdings: 0: holding that the more substantively oppressive the contract term the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable and vice versa 1: holding that there can be no implied contractual term at variance with an express term of a contract 2: holding that an additional term did not materially alter the contract because the plaintiff cannot profess to be surprised by an additional term in an invoice when the price quotation contained the identical term 3: holding that when a term is not defined in a contract the presumption is that the term is to be given its ordinary meaning and significance 4: holding that although the literal application of the contract to an unforeseen situation produced an extreme result the court is not free to substitute a more rational term


Input: complaint to state a claim for recovery. See Hartwell, supra. However, by not responding to the requests, Defendant admitted the matters requested, including, inter alia, that (1) there was a valid contract for the sale of the property that is the subject of this litigation, (2) Plaintiffs were ready, willing, and able to close on the agreed upon date or within a reasonable time thereafter, and (3) Defendant failed to appear for the scheduled closing or to sign the documents necessary for the closing to be completed, as required by the contract. From these admissions, Plaintiffs established the elements of their breach of contract claim against Defendant. See Lake Mary Ltd. P’ship v. Johnston, 145 N.C. App. 525, 536, 551 S.E.2d 546, 554 (quotation marks and citation omitted) (<HOLDING>), disc. review denied, 354 N.C. 363, 557 S.E.2d Holdings: 0: holding that trial court erred by dismissing breach of contract claim because appellee made promises to perform specific acts in contract the breach of which would give rise to a breach of contract action 1: recognizing that the elements of a claim for breach of contract are 1 existence of a valid contract and 2 breach of the terms of that contract 2: recognizing that breach of contract cause of action accrues at time of the breach 3: holding that a cause of action for breach of contract accrues at the time of the breach 4: holding failure to establish terms of an oral loan agreement precluded the existence of a breach of contract claim


Input: analysis. No statute or court-ordered bar kept Roy’s trial counsel out of the courtroom for those seven minutes following lunch on the second day of trial. And no statute or court order interfered with the ability of Roy’s counsel to make independent decisions about how to conduct the defense. 2. The Gonzalez-Lopez, Woods, and Williams Decisions The dissenting opinion also relies heavily on the Supreme Court’s decision in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), which did not involve an attorney’s brief absence from the courtroom. Instead, it involved a complete violation of “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144, 126 S.Ct. at 2561; see id. at 143-44, 126 S.Ct. at 2561 (<HOLDING>); ⅛ at 146, 126 S.Ct. at 2562 (“[T]he right at Holdings: 0: holding that a criminal defendant has a sixth amendment right to counsel at trial 1: recognizing that the sixth amendment guarantees a defendant the right to counsel and the right to waive counsel 2: holding that the sixth amendment right to counsel embodies the right to effective assistance of counsel 3: holding that the district courts erroneous rulings violated respondents sixth amendment right to paid counsel of his choosing 4: holding that the fourteenth amendment incorporated the sixth amendment right to counsel


Input: may not be based on “subjective opinions about future ‘quality of life’ of a . . . disabled person.” 45 C.F.R. pt. 1340 app. A state may avoid the regulations by electing not to receive CAPTA funds. Neither party has briefed the applicability of CAPTA in this case. According to public records, Washington State is a recipient of CAPTA funds. See Office of Family & Children’s Ombudsman, available at http://www.govemor.wa.gov/ofco/gal/galsum.htm (last visited Oct. 29, 2007). 4 The Natural Death Act recognizes the right of a competent adult to refuse, by advance directive, life-sustaining medical treatment when the adult is in a terminal or permanently unconscious condition. RCW 70.122.030. The act does not apply here because Liam is not a competent adult. 5 Cruzan, 497 U.S. at 278 (<HOLDING>); Washington v. Glucksberg, 521 U.S. 702, 117 Holdings: 0: holding that a person has a constitutionally protected liberty interest in refusing unwanted medical treatment 1: recognizing the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment 2: holding that a prisoners loss of privileges for thirty days was not a property right that would constitute a violation of his constitutionally protected liberty interest 3: recognizing a competent persons constitutionally protected liberty interest in refusing lifesaving medical intervention 4: holding parental rights are constitutionally protected fundamental interest


Input: an individual may never place his income in a Special Needs Trust. Appellant's Br. at 22. The SMM rules provide that an individual’s income stream may be placed in a Special Needs Trust and sheltered from post-eligibility consideration if the income is irrevocably assigned to the trust. See SMM 3259.7(B)(1) Note. Wong has not invoked this rule, see Appellant’s Br. at 34, and we therefore need not determine whether the Social Security Act's anti-alienation provision would prevent Wong from irrevocably assigning his SSDI income to a Special Needs Trust in this way. See 42 U.S.C. § 407(a) ("The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity.”); see also Reames v. Oklahoma, 411 F.3d 1164, 1172-73 (10th Cir.2005) (<HOLDING>). We need only note that, regardless of whether Holdings: 0: holding that  407a prevents ssdi recipient from assigning benefits to special needs trust 1: holding that a third party who receives trust property on inquiry notice that a trustee has misappropriated trust funds is also liable for breach of trust 2: holding that  407a imposes a broad bar against the use of any legal process to reach all social security benefits 3: holding that the express language of  407a and the clear intent of congress that social security benefits not be attachable 4: holding that drug testing of customs employees falls within the special needs exception for similar reasons


Input: to the enjoyment of the parcel previously benefitted. Hansuld II, ¶ 10, 245 P.3d at 298 (quoting Hansuld I, ¶ 15, 81 P.3d at 218). [¶ 37] Although the Miners appear to contest only the second element, we will address each element separately. 1. Unified Ownership followed by Separating Conveyance [¶ 38] The evidence in the record is clear that Ms. Jaycox owned all of Lot 1 before she divided the lot for financing the construction of apartment buildings on the North Parcel and the South Parcel. Although Ms. Jaycox had encumbered the North and South Parcels with mortgages in 2005, under Wyoming law, her ownership interest remained unified until 2008 when the North and South Parcels were sold in foreclosure. See Robinson Mercantile Co. v. Davis, 26 Wyo. 484, 187 P. 931, 932 (1920) (<HOLDING>). In 2008, when the parcels were sold to the Holdings: 0: holding that foreclosure of prior mortgage extinguished second mortgage 1: holding that in wyoming the mortgage simply creates a lien upon the land and it must be sold on foreclosure to pass the title 2: holding that despite foreclosure judgment providing that the holder of a junior mortgage had no interest in or lien on or claim to said premises the lack of foreclosure sale meant that the junior mortgage was not extinguished 3: holding that even though the complaint sought money damages and land was actually recovered the attorneys lien attached to the land 4: holding that the note and the mortgage must coexist to give the mortgage validity


Input: or any Tennessee official, attesting to the authenticity and accuracy of the material therein contained. Counsel for appellant timely objected to this document as not being in compliance with the Parole Board’s rules. The objection was overruled, and the document admitted into evidence. The State contends that this issue does not rise to the level of a due process violation. The State cites language from the United States Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472, —, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995), wherein that court indicated “that the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause.” Sandin involved a defendant who (<HOLDING>); McGriff v. Board of Probation and Parole, 149 Holdings: 0: holding exclusion was harmless error 1: holding that denial of a prerevocation parole violation hearing harmless beyond a reasonable doubt 2: holding that any error was harmless and thus not plain error 3: holding that any error in parole board not following its rules regarding notice of hearing was harmless 4: holding that disclosure of grand jury materials to parole commission was harmless error


Input: the counse- lee and is unable to provide the appropriate counseling. Doctor Frederick M. Miller, a psychiatrist, testified in the jury trial that the beneficial counseling Bohrer needed at age twelve had been postponed for six years as a direct result of DeHart’s failure to afford her proper counseling. His opinion was that DeHart’s counseling activities aggravated her already poor relationship with her parents, made her susceptible to the sexual conduct DeHart pursued, impaired her ability to trust others, and contributed to her emotional and physical distress. DeHart should have recognized the boundaries of the counseling relationship, advised her to seek another counselor, and ceased counseling her. See St. Paul Fire & Marine Ins. Co. v. Love, 459 N.W.2d 698, 700, 702 (Minn.l990)(<HOLDING>). Instead, DeHart breached the boundaries of Holdings: 0: holding that the plaintiffs asserted legal basis for coverage is irrelevant to the determination of whether the insurance policy provides coverage and instead looking to the facts underlying the claim for coverage 1: holding that insurance agents owe no duty to procure coverage for persons with no written or oral agreement with the agent to procure coverage or who have never contacted the agent about insurance coverage 2: holding that new yorks public policy does not bar insurance coverage for disparate impact employment discrimination but noting that the state of new york insurance department has stated that it is against public policy to provide insurance coverage for intentional acts of discrimination 3: holding that insurers failure to deny existence of insurance coverage under policy at issue was to admit that coverage existed 4: recognizing insurance coverage for counselors inappropriate response to his counselees best interest


Input: Moreover, Alvin’s contention that by the end of 1995 the Provost’s Office had simply stopped deal ing with him is not supported. Rather, Alvin was indisputedly the party that ended the process when he precipitously wrote to Maher, informing him that he would be pursuing his complaints through litigation. There is no other way to read this letter. Furthermore, Alvin did not even attempt to pursue an appeal of the conflict of interest decision (or refusal to decide, as he characterizes it) through the grievance process provided in the Faculty Handbook. Therefore, even if we were to accept his argument that the Provost’s office had failed him through direct review of Suzuki’s decision, he was obligated to trigger the formal process before bringing this claim. See Dykes, 68 F.3d at 1571 (<HOLDING>). D. Other Claims Alvin admittedly did not Holdings: 0: holding that 18month delay in filing forfeiture action did not violate due process 1: holding that federal prisoners need not exhaust their administrative remedies before filing suit in federal court 2: holding that the effective date of an award of secondary service connection was evidence that the secretary considered the claim before the varo at that time 3: holding that filing of a verified complaint was similar to a policeman filing an arrest warrant and did not initiate judicial process 4: holding that failure of lower levels of process do not justify skipping secondary levels before filing a federal action


Input: years triggered a Miller individualized sentencing hearing. 836 N.W.2d 88, 96 (Iowa 2013). After the Ragland-Null-Pearson trio, we went on to consider juvenile sentencing under the Iowa Constitution in a number of other cases. In Lyle, we held that all mandatory minimum sentences of imprisonment for juveniles are unconstitutional under article I, section 17 of the Iowa Constitution. 854 N.W.2d at 400. We also summarized the background of change in the area of juvenile sentencing reform and touched on the topic of parole briefly. Id. at 399-400. We noted that the United States Supreme Court has recognized that the opportunity for parole lessens the severity of a sentence. Id. at 399; see also Rummel v. Estelle, 445 U.S. 263, 280-81, 100 S.Ct. 1133, 1142-43, 63 L.Ed.2d 382 (1980) (<HOLDING>). We ultimately concluded that the “heart of Holdings: 0: holding that the state courts decision to uphold the parole boards denial of parole was an unreasonable determination of the facts in light of the evidence 1: holding defendant does not waive fourth amendment protection by signing parole agreement but the search condition does confirm right of parole officer to conduct reasonable searches within scope of parole mission 2: holding unconstitutional defendants sentence of death based upon the holding in roper supra and remanding for the montgomery circuit court to set aside the defendants death sentence and to sentence him to the only other sentence available  life in the penitentiary without the possibility of parole 3: recognizing the opportunity for parole however slim mollifies the severity of the sentence 4: holding sentences of life without parole unique in their severity


Input: Luzviminida Metzala, a native and ci 0) (per curiam) (<HOLDING>). Metzala’s contention that the in absentia Holdings: 0: holding that a party is not bound by the testimony of a witness it calls 1: holding that a panel of this court is bound by a holding of a prior panel but is not bound by a prior panels dicta 2: holding a party is bound by a concession in his brief 3: holding that agency is bound by its regulations 4: holding that each party is deemed bound by the acts of his lawyeragent


Input: topic, the court must then look to the third prong of the McMahon Framework: whether there is an inherent conflict between each purpose of the two federal acts.” Id. Of the three indicia of congressional intent, Debtor asserts that only the third applies here: that an inherent conflict exists between the proposed arbitration and the Bankruptcy Code’s underlying purpose. The Sixth Circuit has not addressed the McMahon exception in the bankruptcy context. However, opinions from other circuits and a bankruptcy court within this circuit provide instructive analyses. Some cases finding no inherent conflict betwéen arbitration and the Bankruptcy Code’s underlying purpose focus on the lack of an underlying bankruptcy issue impacting plaintiffs claims. See, e.g., Mintze, 434 F.3d at 231-32 (<HOLDING>); No Place Like Home, 559 B.R. at 875 (finding Holdings: 0: holding that bankruptcy courts have inherent power to sanction and affirming sanctions imposed by bankruptcy court against a nonparty 1: holding that the bankruptcy court has the inherent power to award sanctions for badfaith conduct in a bankruptcy court proceeding 2: recognizing inherent power of bankruptcy courts to equitably surcharge a debtors exemption to protect integrity of the bankruptcy process and to ensure that debtor does not exempt amount greater than allowed under bankruptcy code 3: holding that effect of discharge of debt under bankruptcy code is the same as it was under the 1898 bankruptcy act it is not an extinguishment of the debt but only a bar to enforcement of the debt as a personal obligation of the debt or 4: holding that because debt or did not raise statutory claims created by the bankruptcy code there was no bankruptcy issue to be decided and no inherent conflict with arbitration


Input: a prosecutor cannot misstate the law. See, e.g., Whiting v. State, 797 S.W.2d 45, 48 (Tex.Crim.App.1990) (prosecutor misstated State’s burden of proof on defensive issue). Zuniga teaches that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Zuniga, 144 S.W.3d at 485. Thus, contrary to the prosecutor’s argument, the notion exists that a jury can believe — by a preponderance of the evidence — that the defendant is guilty but the State did not prove the elements of the crime beyond a reasonable doubt, the burden of proof that must be met. We conclude that the trial court erred in overruling Abbott’s objection to the prosecutor’s statement. Cfi Gore v. State, 719 So.2d 1197, 1200 (Fla. 1998) (<HOLDING>). The law on the burden of proof is Holdings: 0: holding that the following prosecutors argument misstated the burden of proof and was error its simple and it comes down to this in simplicity if you believe his story hes not guilty if you believe hes lying to you hes guilty its that simple 1: holding that it is not extortion to threaten economic harm when you have a legal right to engage in the activity you threaten 2: holding the prosecutors argument if it was there they can bring it to you was not an improper jury argument 3: holding that if you do not qualify under the hup test you never get to the statute 4: holding that prosecutors remarks that defense counsel was a zealot in the courtroom and thank god hes a defense attorney and not part of the government were improper


Input: at *7 (S.D.Oh. Apr. 7, 2009) (finding that plaintiff did not step outside her role as human resources manager where she alerted the company about alleged FLSA violations as part of her job duties and did not complain about these alleged violations on behalf of herself or other women employees from a standpoint adversarial to the company); Bradford v. UPMC, Civ. A. No. 04-316, 2008 WL 191706, at *4 (W.D.Pa. Jan. 18, 2008) (noting that neither investiga tions of another employee’s EEO complaint regarding racial discrimination nor her recommendations to supervisors regarding the complaint constitutes protected activity, as plaintiff was not stepping outside her role as human resources manager); Cook v. CTC Comm’ns Corp., Civ. A. No. 06-58, 2007 WL 3284337, at *6 (D.N.H. Oct. 30, 2007) (<HOLDING>); Hill v. Belk Stores Svcs., Inc., Civ. A. No. Holdings: 0: holding that a plaintiff could not show that she engaged in protected activity because she did not present evidence that she informed her employer that her complaints were based on race or age discrimination 1: holding that the plaintiff made out a prima facie case of age discrimination based upon a showing that she was a member of the protected group she was qualified and capable of doing her job she was discharged and that her manager called her old woman thus evincing agebased animus sufficient to demonstrate discriminatory intent 2: holding that a plaintiff can show that she is qualified by presenting credible evidence that she continued to possess the objective qualifications she held when she was hired 3: holding that in order to show protected activity the plaintiff had to establish that she acted outside of her role as a human resources manager when she advocated on behalf of an employees userra rights 4: holding that in order for plaintiff to prove that she was similarly situated to three other employees she had to demonstrate that all of the relevant aspects of her employment situation were nearly identical to those of the other employees


Input: of the detec id not present evidence of flight or any other evidence to support an inference of his consciousness of guilt, Elliott argues that it was error for the trial court to prevent him from establishing a lack of consciousness of guilt. He concludes that appellate counsel was ineffective for failing to pursue on direct appeal this meritorious and preserved claim, and that, had counsel raised the issue on appeal, there is a reasonable probability that this Court would have granted a new trial. The PCRA court denied relief on this claim, finding that the trial court’s instruction was proper, considering the case law rendering references to lie detector tests inadmissible. PCRA Court Opinion, Oct. 13, 2010, at 15 (citing Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325, 333 (1971) (<HOLDING>)). The PCRA court further emphasized that trial Holdings: 0: holding that the rule in pennsylvania is that reference to a lie detector test or the result thereof which raises inferences concerning the guilt or innocence of a defendant is inadmissible 1: holding that the apprendi rule was not implicated because a juvenile transfer proceeding does not involve sentencing or a determination of guilt or innocence 2: holding a consequence instruction is not necessary because the consequences of the verdict have no bearing upon the guilt or innocence of the defendant 3: holding that the interest must be that created by a claim to the demand in suit or some part thereof  which is the subject of litigation 4: holding that an informants identity does not need to be disclosed unless the defendant demonstrates a reasonable possibility that the anonymous informant could give evidence on the issue of guilt or innocence which might result in the defendants exoneration


Input: Judge. 1 . Both parties read A.R.S. § 11-974 as limiting fee and cost awards pursuant to A.R.S. §11-972(A) to condemnation proceedings initiated and abandoned in the course of projects for which "federal financial assistance is to defray all, or part of, the costs____” See A.R.S. § 11-974(A). The parties debate whether any part of the costs of the Sedona sewer extension project was to be federally defrayed within the meaning of the statute. We need not consider the matter of federal funding, however, because we conclude that these condemnation proceedings were not abandoned by the City. In the absence of an abandonment of proceedings, questions of federal funding are immaterial. 2 . See Montgomery County v. McQuary, 26 Ohio Misc. 239, 265 N.E.2d 812, 814 (Ohio Ct. of Common Pleas 1971) (<HOLDING>). 3 . County of Kern v. Galatas, 200 Cal.App.2d Holdings: 0: holding that since defendant failed to timely remove the original complaint which was removable based on federal question jurisdiction defendant thereby waived its right to file a subsequent removal even though the complaint was amended to add a new federal claim where the amendment to the complaint did not change the nature of the action so as to constitute a substantially new suit since the new allegations and claims were not substantially different from those in the original complaint 1: holding that amendment of condemnors original complaint to substitute a new and different easement route was tantamount to abandonment of the original proceeding 2: holding original complaint was admission where it alleged an accident occurred on a different date than the amended complaint 3: holding that the amended complaint could not relate back to the original complaint in which all claims were barred by the statute of limitations 4: holding that as a matter of law claim stated in amended complaint did not relate back to original complaint


Input: notes it is a violation of California law to ride on highways without seat-belts, and that therefore GET should be held liable for his injuries given it was responsible to provide a motoreoaeh with seatbelts. C. Defendant GET’s Reply GET contends Ramage fails to rebut GET’s showing that no question of material fact exists regarding GET’s liability for breach of warranty, negligence and negligent selection. First, GET contends that Ramage’s argument that the disclaimer is not printed in sufficient size is frivolous as is Ramage’s contention that he did not know the significance of what he was signing. Scrugham Affidavit, Exhibit B. The only requirement is that the disclaimer be “reasonably communicated.” Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 910 (3rd Cir.1988) (<HOLDING>). Moreover, Ramage’s claim that he did not read Holdings: 0: holding that ontrack dormitory rooms for racetrack employees were homes under the fourth amendment even though they were small temporary located near stables and accessible to track authorities by master keys 1: holding that police officers statements concerning hazardous conditions at a firing range were made within their official duties since they were obligated to report that type of information up the chain of command 2: holding that contractual conditions printed on cruise ticket were valid even though they were in small type 3: holding that film negatives and master recordings were tangible personal property even though they were valued in part for their intellectual content because they were also physically useful in the manufacturing process 4: holding invalid claims amended to include structures not within the invention described in the application even though the variations were small


Input: psychological, financial and cultural reasons women do not bring complaints or drop them prior to hearings). That is why the Legislature deemed the certification of the applicant to be sufficient and why it specifically did not require a prior domestic violence order as a basis for ACP protection. N.J.S.A. 47:4-4(a). We think the same reasoning is applicable when a litigant seeks address confidentiality in a judicial proceeding involving custody and visitation: the failure of a party to institute or to pursue a domestic violence proceeding to conclusion is of no consequence. To be sure, the entry of a prior domestic violence restraining order adjudicating a claim may be given preclusive effect by a court, if warranted. J.F. v. B.K., 308 N.J.Super. 387, 392, 706 A.2d 203 (App.Div.1998) (<HOLDING>). However, that is a far cry from the Holdings: 0: holding that plaintiff was precluded under principles of res judicata and collateral estoppel from relitigating in proceedings under prevention of domestic violence act allegations which had been decided adversely to her in earlier hearing 1: holding that res judicata and collateral estoppel apply to arbitration award 2: holding that previous domestic violence finding did not have res judicata effect in proceeding to modify visitation because domestic violence and visitation modification proceedings are different causes of action 3: recognizing exception to application of res judicata and collateral estoppel principles to decisions of administrative proceedings where there has been manifest error in the record 4: holding that a summary judgment is a determination on the merits for res judicata and collateral estoppel purposes


Input: to Bickham or any individual, however, and could apply equally to the settling defendant Acock or others. The jury charge, as proposed by Francis, did not include a question asking the jury to determine whether Bickham was Coastal’s employee. See Comm. on PatteRN Jury Charges, State Bae of Tex., Agency and Special Relationships, Texas Patteen JURY Charges PJC (7.1) (2002 ed.) (question concerning status as employee); see also Tex.R. Civ. P. 279 (waiver of grounds or defenses not submitted to jury). The charge Francis submitted did not sufficiently present Bickham’s claimed status as an employee or agent and completely disregarded the status that the record indicates Bickham held, that of an independent contractor. See Oliver v. Marsh, 899 S.W.2d 353, 357 (Tex.App.-Tyler 1995, no writ) (<HOLDING>); see also Comm, on PatteRN JURY Charges, State Holdings: 0: holding that the disputed issue with respect to the state law bar was properly submitted to the jury 1: recognizing that status as independent contractor presents inferential rebuttal issue that is properly submitted to jury by instruction rather than question 2: holding that when agreement is reasonably susceptible to more than one construction issue is properly submitted to jury for resolution as a matter of fact 3: holding it is reversible error for a trial court to exclude a definition on new and independent cause an inferential rebuttal defense when supported by the evidence 4: holding that party that failed to object to instruction that jury not answer a question based on its answer to the prior question waived that partys right to have the jury make findings as to the subsequent question


Input: presumed to be reasonable. United States v. Jeremiah, 446 F.3d 805, 807 (8th Cir.2006) (citing, in part, United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). 11 . Even if Defendant's repeated denial of relevant conduct were insufficient to deny him a reduction for acceptance of responsibility, the court would nonetheless decline to grant him such a reduction. The court was deeply troubled that Defendant called his mother to testify as an alibi witness. Ms. Bradford's testimony was not credible. It was patently false. The court believes Ms. Bradford perjured herself and that Defendant knowingly presented the court with a false alibi. This also indicates a lack of acceptance of responsibility. Cf. United States v. Jagim, 978 F.2d 1032, 1038 (8th Cir.1992) (<HOLDING>); United States v. Lato, 934 F.2d 1080, 1083 Holdings: 0: holding that a defendant should not receive an acceptance of responsibility adjustment when there is contradicting obstructive conduct 1: holding that courts mention of a guilty plea and acceptance of responsibility to defense counsel was not reversible error 2: holding defendant was not entitled to acceptance of responsibility despite his plea of guilty where he attempted to suborn perjury 3: holding defendant was not entitled to acceptance of responsibility in part because he suborned perjury 4: holding that defendant was not entitled to reduction for acceptance of responsibility where he failed to fully account for the proceeds of his crime and attempted to delay a longscheduled hearing based on an incredible claim of innocence


Input: over the state law claims under 28 U.S.C. § 1367(c)(3). Plaintiffs now appeal. Analysis 1. The Stored Communications Act provides a cause of action against anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided ... and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage.” 18 U.S.C. §§ 2701(a)(1), 2707(a). “[Electronic storage” means either “temporary, intermediate storage ... incidental to ... electronic transmission,” or “storage ... for purposes of backup protection.” Id. § 2510(17). The Act exempts, inter alia, conduct “authorized ... by the person or entity providing a wire or electronic communications service,” i Cir.1991) (<HOLDING>). We interpret federal statutes in light of the Holdings: 0: holding that district court is not required to word jury instructions in any particular way so long as it correctly states the law 1: holding that reasonable access includes general facility access without notice and patient access with twentyfour hour notice 2: holding that attendance is a minimum function of any job 3: holding that it is not an appellate courts function to make findings of fact 4: holding access unauthorized where it is not in any way related tothe systems intended function


Input: desired immediate relief based on his perceived need to avoid irreparable harm of losing his driving privilege, the trial court inappropriately acquiesced in his attorney’s tactic of bypassing the Maryland Rules and the law of injunction. The circuit court’s premature adjudication, enjoining the MVA to grant the relief Baptist sought, was produced as a result of the procedural shortcomings of Baptist’s lawsuit. We need not resolve all of the claims lodged by MVA to reach the conclusion that the proceedings below were patently flawed. Among other things, the court issued a permanent injunction after an unrecorded, twenty-minute telephonic hearing, without affording the MVA the opportunity for a trial on the merits. See NCAA v. Johns Hopkins Univ., 301 Md. 574, 483 A.2d 1272 (1984) (<HOLDING>). In addition, we have no idea as to the basis Holdings: 0: recognizing the importance of a determination on the merits with respect to the issuance of a permanent injunction 1: holding that the standard for permanent injunction is the same as that for preliminary injunction with the one exception being that the plaintiff must show actual success on the merits rather than likelihood of success 2: recognizing a permanent injunction as a means of ordering specific performance 3: recognizing the importance of the employers knowledge of the disability 4: holding that the failure of the applicant to file a bond before the issuance of the temporary injunction renders the injunction void ab initio


Input: The key question is whether the named plaintiffs have been “excluded from participation in or ... denied the benefits of the services, programs, or activities of [the TEA].” Id. To answer that question, we must decide whether driver education is a service, program, or activity of the TEA. We hold that it is not, although this is a close question for which the statutes, regulations, and case law provide little concrete guidance. Starting with the plain text of Title II of the ADA, the phrase “services, programs, or activities of a public entity” is undefined. The Supreme Court has interpreted the phrase with reference to what “services, programs, or activities” are provided by the public entity. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (<HOLDING>). Here, the TEA itself does not teach driver Holdings: 0: holding that a physician under contract with north carolina to provide medical services to prison inmates was a state actor for purposes of  1983 1: holding that venue was proper in kansas because both of the defendants conducted many of their activities with the plaintiff through the mail despite that fact that the defendants activities may have been more substantial in california 2: holding that prisons have programs services or activities because they provide inmates with many recreational activities medical services and educational and vocational programs  3: holding that conversion would lie for copying and taking of computer programs even if defendant never took the tapes embodying the programs 4: holding that employers knowledge of employees injury followed by the employers failure to provide the necessary medical services sufficient to impose liability upon the employer for medical services selected by the employee


Input: The court, however, did not suggest that any hearing was required before termination of the contract itself. In the case at bar, of course, only the contract was terminated, Dr. Boucvalt was not deprived of his medical staff privileges. We decline to apply the predeprivation hearing requirement of Louder-mill/Roth/Sindermann so as to federalize all contract law. See Casey v. Depetrillo, 697 F.2d 22, 23 (1st Cir.1983); Findeisen, 749 F.2d at 240-41 (concurring opinion); Vail, 706 F.2d at 1456 (dissenting opinion). In the present case, the traditional postdeprivation contract remedy constitutes all the process that was due. Cf. Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984); Parrott v. Taylor, 451 U.S. 527, 543-44, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981) (<HOLDING>). If Boucvalt was entitled to some Holdings: 0: holding that a prison guards intentional destruction of a prisoners possessions did not give rise to a federal due process claim because state law provided an adequate postdeprivation tort remedy 1: holding that postdeprivation tort remedy constitutes all the process that is due for unauthorized negligent and intentional torts by state officials 2: holding that meaningful postdeprivation hearing is sufficient to remedy unauthorized intentional deprivations of inmates property 3: holding postdeprivation remedy is adequate even when deprivation was intentional 4: holding that deprivation of property does not violate due process if a meaningful postdeprivation remedy is available and explaining that state tort actions are meaningful postdeprivation remedies


Input: WL 549077 (Tex.App.-Corpus Christi Feb.27, 2003, no pet.) (after stating Young standard of review, court conducted ineffective assistance of counsel analysis, rejected claim but court did not explain reasoning concerning Young waiver issue); Starr v. State, No. 13-99-381-CR, 2000 WL 34253854, at *2-3 (Tex.App.-Corpus Christi, Apr. 13, 2000, pet. ref'd) (not designated for publication) (same). 5 . On appeal, appellant does not appear to request a new trial on guilt-innocence, but instead requests in his prayer for relief that we order the State to reinstate its 15-year plea offer and order the trial court to allow him to replead guilty. 6 . Nothing in this opinion restricts appellant’s right to a writ of habeas corpus review. See Ex parte Lemke, 13 S.W.3d 791, 793 (Tex.Crim.App.2000) Holdings: 0: holding appellant who pleads guilty to offense may file application for writ of habeas corpus alleging denial of effective assistance of counsel on ground that attorney did not convey pleabargain offer made by state 1: 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 2: holding that managing conservator while in texas to seek return of child by writ of habeas corpus may not be served with civil process and is subject to jurisdiction of court in which habeas corpus is pending and only for purpose of prosecuting writ of habeas corpus 3: holding that court had jurisdiction to consider appeal from denial of habeas corpus relief even though trial court proceeded to adjudicate appellant guilty before hearing his writ 4: holding on appeal from a habeas corpus denial that counsel was not ineffective for failure to file a notice of appeal because of defendants escape


Input: then it should consider whether that complaint includes sufficient factual allegations to state a claim for relief against any of the individual defendants in their personal capacities in connection with the two constitutional claims we have remanded for further proceedings. b.Appointment of counsel On the day he filed his complaint, De-Brew also filed a motion to appoint counsel. The district court never expressly ruled on that motion, and DeBrew argues the court erred by not considering the matter. We are unable to determine from the record whether the district court overlooked the motion or whether it intended implicitly to deny the motion when it denied DeBrew’s request to proceed in for-ma pauperis. On remand the district court should rule expressly on DeBrew’s mo Cir.1975) (<HOLDING>); see also Georgiades v. Martin-Trigona, 729 Holdings: 0: holding that where a defendant fails to challenge his plea in district court he must establish plain error 1: holding that it is the burden of the party who failed to preserve his argument to demonstrate plain error 2: holding that it is error to certify class when named class representatives are not members of the class they purport to represent 3: recognizing cause of action by class member against class counsel for negligence in providing notice 4: holding it was plain error for the district court to allow an imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action


Input: inquiring whether Congress has spoken to the precise question at issue. Clearly it has not. The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (“INA”), does not define the term “spouse,” nor does it dictate criteria for the USCIS to use in examining the validity of a marriage. Thus, USCIS has had to interpret the ambiguous terms of the INA to determine what choice of law rule to apply when determining the validity of a marriage for immigration purposes. Turning to the second step of the Chevron analysis, the Court finds that US-CIS’s interpretation of the INA is reasonable. In determining whether a marriage is valid for immigration purposes, USCIS applies the laws of the place where the marriage was celebrated. See, e.g., Matter of Hosseinian, 19 I. & N. Dec. 453 (BIA 1987) (<HOLDING>); Matter of Bautista, 16 I. & N. Dec. 602, 603 Holdings: 0: recognizing a privacy interest in the intimacies of the marital relationship 1: holding the function of a public utility is controlling not how the term is defined 2: holding that it is not 3: holding family court has wide discretion in determining how marital property is to be distributed 4: holding that the wellestablished rule is that it is the function of the state to determine how its residents may enter into the marital relationship


Input: aggravating circumstances, at least one of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed, includes a finding that “[t]he murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.” The trial judge in Pizzuto’s case found that this factor, along with four others, existed beyond a reasonable doubt. The petitioner asserts that this aggravating factor is unconstitutionally vague. The Supreme Court has held that the state must “channel a [capital] senteneer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and ‘make rationally reviewable the proce lding “depravity of mind” to be unconstitutionally vague language); Moore v. Clarke, 904 F.2d 1226, 1230 (8th Cir.1990) (<HOLDING>). The issue in contention is whether the Idaho Holdings: 0: holding that exceptional depravity is unconstitutionally vague 1: holding factor b is not unconstitutionally vague 2: holding that attorney disciplinary rule was unconstitutionally vague as applied 3: holding that  2320 as a whole is not unconstitutionally vague 4: holding that essentially equivalent is unconstitutionally vague


Input: convinced that it would not.” Neither doctor was present at the Gulf Coast Medical Center at the time KE.W. was taken into custody and neither pointed to any specific actions taken by K.E.W. at the center as a basis for rendering an opinion. Stone cited the incident at the center as a behavior by K.E.W. that made him believe that K.E.W. could be a harm to others, but merely described that KE.W. had an MHMR appointment, had met with Pugh, and had been so threatening that Pugh felt that K.E.W. needed to be immediately admitted to the hospital. S psychiatric expert opinion of a potential danger to others is insufficient to support a commitment” and there must be facts in record to justify conclusion that appellant was likely to cause serious harm); see also Broussard, 827 S.W.2d at 622 (<HOLDING>). Thus KE.W.’s beliefs, and his adherence to Holdings: 0: holding that bare psychiatric expert opinion of potential danger to others insufficient to support commitment 1: holding bare allegation of social friendship insufficient 2: holding that bare baseless opinions will not support a judgment 3: holding that an opinion of a potential danger to others is not sufficient to support a commitment under this standard 4: holding that a complaints bare assertions alone were insufficient for certification


Input: 9(c) of the Subcontract which makes payment by the Government to Clark a condition precedent to payment by Clark t f Suretyship Principles: An Uncertain Future for “Pay-When-Paid” and “Pay-If-Paid” Clauses in Public Construction Subcontracts, 38 Pub. Cont. L.J. 47, 53-54 (2008). In gener al, these types of clauses are “used by general contractors to condition payment to their subcontractors upon the general contractor’s receipt of payment from the owner.” Id.; see also MidAmerica Constr., 436 F.3d at 1261-62 (discussion both “pay-when-paid” and “pay-if-paid” clauses). In Maryland, such clauses in subcontracts are generally enforceable, at least in the context of private construction projects. Gilbane Bldg. Co. v. Brisk Waterproofing Co., Inc., 86 Md.App. 21, 585 A.2d 248, 251-52 (1991) (<HOLDING>); see also Koprince, supra, at 54, 79 Holdings: 0: holding that a clause making payment by the owner an express condition precedent to payment by the general contractor to the subcontractor was enforceable 1: holding that a provision making all payments to subcontractor by  contractor expressly contingent upon payment for the work by contractor from owner is a payifpaid clause under texas law 2: holding that a paywhenpaid clause does not preclude a subcontractors recovery under the miller act payment bond because the federal legislation conditions payment of the subcontractor not on payment by the government to the contractor but rather on the passage of time from completion of the work or provision of materials 3: holding that it was not essential to an action by a supplier on a payment bond under the miller act that a demand be made on the general contractor for payment  although there was evidence in the case from which it could be found that the materialman looked to the general contractor for payment  since the statute does not require a demand for payment but merely requires written notice of the claim 4: holding that a subcontractor could not recover on theory of quantum meruit for an implied contract against general contractor where condition precedent to payment under express contract was not satisfied


Input: consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another . ..." Wis. Stat. § 939.25(1). At the time Colstad was initially detained, the officer had neither smelled an odor of intoxicants nor observed Colstad exhibit any other sign of intoxication. There was no indication that Colstad was speeding, driving erratically, or deviating from his lane of traffic. At the same time, the unexplained nature of the colli sion, especially in fight of Colstad's assertion that he was driving slowly and looking out for children, was cause for some suspicion. 3 We note that courts in other jurisdictions permit an investigatory stop for civil infractions. See United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (<HOLDING>); Berge v. Comm'r of Pub. Safety, 374 N.W.2d Holdings: 0: holding that a police officer may stop a driver where the officer has a reasonable and articulable suspicion regarding the commission of a civil traffic violation 1: holding that a traffic stop is valid under the fourth amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring 2: holding that a traffic stop is reasonable under the fourth amendment when police have probable cause to believe a traffic infraction has occurred 3: holding that an officer has reasonable suspicion to conduct traffic stop even when his suspicion that a law has been violated is based on a reasonable mistake of law 4: holding this framework applies whether the traffic stop is based on probable cause or reasonable suspicion


Input: not be directly incriminating; a witness may assert the right to remain silent "[i]f the fact to which he is interrogated forms but one link in the chain of testimony which would convict him.” French v. Venneman, 14 Ind. 282, 283 (1860); cf. Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950) (reiterating chain of evidence test under Fifth Amendment). Indiana and federal law regulating immunized witnvqqvt: arp nbr, parallel Compare In re Caito, 459 N.E.2d 1179 (Ind.1984); Overman v. State, 194 Ind. 483, 488, 143 N.E. 604, 606 (1924) (grant of immunity must protect the witness "to the same extent" as the constitutional right); Wilkins, 14 Ind. at 156-57; and Frazee v. State, 58 Ind. 8, 12-13 (1877) (following Wilkins) with Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661 (<HOLDING>). The state right applies in pretrial settings, Holdings: 0: holding that juveniles request to call parent is assertion of fifth amendment privilege against selfincrimination 1: holding that the fifth amendment right against selfincrimination was not prejudiced by a prior administrative proceeding based on the same facts 2: holding that use and derivative use immunity were coextensive with fifth amendment right against selfincrimination and therefore sufficed to compel testimony over assertion of the right 3: holding that defendants exercise of right to testify in own behalf waives his fifth amendment privilege against selfincrimination 4: holding that the fifth amendments protection against selfincrimination is applicable to the states through the fourteenth amendment


Input: Cockrell Hill v. Johnson, 48 S.W.3d 887 (Tex.App.-Fort Worth 2001, pet. denied). We disagree. In Johnson, we held that, because an unpaid public official was not a public employee and the alleged violations of law at issue were committed in the elected public official’s personal capacity and did not relate to the affairs of the city itself, the Act did not apply. Id. at 896. In this case, Harkrider was a paid city employee. Further, the fact that both Harkrider and Appellee were police officers weighs in heavily on our decision. The evidence shows that Appellee acted in her official capacity as a police officer when she made the report because police officers are on duty 24 hours a day. See Turnage v. JPI Multifamily, Inc., 64 S.W.3d 614, 621 (TexApp.-Houston [1st Dist.] 2001, no pet.) (<HOLDING>). Appellee witnessed a felony being committed Holdings: 0: recognizing affirmative duty of a police officer to prevent the violation of constitutional rights by another officer 1: holding that police officers have a duty to prevent crime and arrest offenders 24 hours a day and that a public duty is triggered any time an officer observes a crime even outside the hours of his official work 2: holding police officer is a public official 3: holding that to state a claim for wage violations under the flsa plaintiffs must provide at least some approximation of the overtime hours that defendants required them to work and a time frame for when those hours were worked 4: holding that a plan administrators decision to deny benefits was arbitrary and capricious even though an attending physician had submitted a form stating the plaintiff could sit for six hours stand for two hours and walk for two hours


Input: prior occasions, Officer Horn stated that that information had not led to any arrests. Officer Horn failed to elaborate upon the nature of the informant’s prior information or to indicate whether that information had been verified to any degree. Moreover, he did not endeavor to explain why the prior information had not led to any arrests, if indeed the information related to criminal matters. While it is conceivable that, if the information did relate to criminal matters, the police could have chosen to forgo making any arrests for reasons quite apart from any lack of accuracy in the information, such an inference is entirely speculative and finds no support in the record. See, e.g., People v. Thomas, 24 Ill.App.3d 932, 321 N.E.2d 696 (1974), aff'd, 62 Ill.2d 375, 342 N.E.2d 383 (1975) (<HOLDING>). The record contains little to compensate for Holdings: 0: recognizing that arrests are often delayed in continuing undercover drug operations to protect the identity of confidential informants 1: recognizing the ability of corporations to protect property rights in federal court 2: recognizing drug traffickers will commonly possess firearms to protect their product to protect their drugs to protect their cash to protect their life and even to protect their turf alteration in original internal quotation marks omit ted 3: recognizing the continuing authority of rauscher 4: holding that because a  1326 violation constitutes a continuing offense venue may lie in any district in which the continuing conduct occurred


Input: should likewise provide relief to all those persons. A writ of mandamus is appropriate to compel the City Council to renew the eight-day period in which any and all aggrieved persons may file an administrative appeal. In order to afford fair and equitable relief to all those impacted by the City Council’s unlawful practice, I would grant this petition and direct the clerk of this court to issue a writ of mandamus directing the district court to recall its writs reinstating the planning commission decision and to issue a new writ of mandamus directing the City Council to provide a new appeal period, in which the City Council must accept for filing the challenges of parties who deem themselves aggrieved. 1 See generally Ham v. District Court, 93 Nev. 409, 416, 566 P.2d 420, 424 (1977) (<HOLDING>); State v. McMillan, 34 Nev. 264, 271, 117 P. Holdings: 0: holding judgment in violation of automatic stay void 1: recognizing that any action taken in violation of the automatic bankruptcy stay is void and without effect 2: holding statutory violation sufficient cause 3: recognizing that acts made in violation of statutory authority are void 4: holding that a contract made in violation of section 432070 is void rather than voidable


Input: entered upon the Order of Dismissal against Judge Geiger, and the other order was obviously intended to be final, this appeal is properly before us. See Van Valkenburg v. Paracelsus Healthcare Corp., 2000 ND 38, ¶ 8 n. 1, 606 N.W.2d 908 (treating order granting summary judgment as appealable final order where order was obviously intended to be final); Greenwood, Greenwood & Greenwood, P.C. v. Klem, 450 N.W.2d 745, 746 (N.D.1990) (treating appeal from order as properly before the Court where- subsequent consistent judgment was entered). [¶ 5] The right to appeal in this State is governed solely by statute. Mann v. N.D. Tax Comm’r, 2005 ND 36, ¶ 7, 692 N.W.2d 490. Without a statutory basis to hear an appeal, this Court must dismiss the appeal. Id. Generally, an order dism 674 N.W.2d 9 (<HOLDING>); Rodenburg v. Fargo-Moor-head Young Men’s Holdings: 0: holding appealable district courts dismissal for lack of subjectmatter jurisdiction over enrolled tribal members 1: holding that standing is component of subjectmatter jurisdiction and subjectmatter jurisdiction is essential to courts authority to hear case 2: holding that district court had subjectmatter jurisdiction and yet that judgment void for lack of jurisdiction to render the particular judgment 3: holding a district court lost subjectmatter jurisdiction over the merits of the case when it issued an order of dismissal without prejudice 4: holding appealable district courts order dismissing for lack of subjectmatter jurisdiction due to determination of exclusive tribal court jurisdiction