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https://www.courtlistener.com/api/rest/v3/opinions/7224351/ | MEMORANDUM OPINION AND ORDER
JOHN W. DARRAH, United States District Court Judge
Plaintiff LoggerHead Tools, LLC (“LoggerHead”) filed suit against Sears Holding Corporation (“Sears”) on November 9, 2012, alleging eight separate counts against Sears. Sears filed a Motion to Dismiss Counts II, III, and VIII of the Complaint, which stated claims of common law fraud, tortious interference with business relations and prospective advantage, and unjust enrichment, respectively. These three counts were dismissed without prejudice on May 1, 2013, and LoggerHead was given leave to amend its Complaint to replead those three counts, if it could do so consistent with Fed. R. Civ. Pro. 11. (May 1, 2013 Mem. Op. and Order ' at 13.) LoggerHead filed its Amended Complaint on May 31, 2013, alleging twelve separate counts against Sears, four separate counts against newly added Defendant Apex Tool Group, LLC (“Apex”), and one count of civil conspiracy against Sears and Apex jointly.
Sears moves to dismiss Counts XI, XII, XIII, and XVII of the Amended Complaint, and Apex moves separately, pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6), to dismiss Counts XV, XVI, and XVII of the Amended Complaint. Apex further moves to strike Paragraphs 75 and 83-89 of LoggerHead’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(f) for constituting immaterial, impertinent, and scandalous matter. These motions have been fully briefed.
*779BACKGROUND
The following facts are based on LoggerHead’s Amended Complaint and exhibits and are accepted as true for purposes of ruling on a motion to dismiss. See Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 763 (7th Cir.2010).
LoggerHead is a corporation based in Palos Park, Illinois. (Am.ComplJ 1.) Sears is a Delaware corporation based in Hoffman Estates, Illinois. (Id. ¶ 2.) Apex is a Maryland corporation located in Sparks, Maryland. (Id. ¶ 3.) Apex is a supplier of hand tools and power tools and supplies Sears with its Craftsman-branded tools. (Id. ¶ 73.)
Daniel Brown (“Brown”) invented a tool called the Bionic Wrench. (Id. ¶ 9.) Brown was issued two patents by the U.S. Patent and Trademark Office: U.S. Patent No. 6,889,579 and U.S. Patent No. 7,992,470, issued on May 10, 2005, and August 9, 2011, respectively. (Id. ¶¶ 9, 11.) These patents were assigned to LoggerHead, the company founded by Brown. (Id. ¶¶ 9, 11, 13.) The Bionic Wrench is a hand tool that allows “a user to complete work without the wrench slipping off and damaging the bolt.” (Id. ¶ 18.) The Bionic Wrench permits a user to use one tool for many different sizes of nuts and bolts. (Id.) The Bionic Wrench is manufactured in the United States with American-made components. (Id. ¶ 19.) LoggerHead sells the Bionic Wrench on its website and to retailers, including Sears, Canadian Tire, QVC, Costco, Amazon, Ace Hardware, True Value, and Menards. (Id. ¶ 26.) Sears purchased and sold 15,000 Bionic- Wrenches from LoggerHead in 2009, 75,000 in 2010, and over 300,000 in 2011. (Id. ¶¶ 30-31, 35.)
Following three years of growing sales, Sears’s hand-tool buyer, Amanda Campana (“Campana”), informed Brown that Sears wanted to enter into a 2012 supply agreement with LoggerHead for the Bionic Wrench. (Id. ¶ 37.) Campana also indicated that Sears wanted to run a Direct Response TV campaign to promote the Bionic Wrench during Father’s Day and Christmas of 2012. (Id. ¶ 3 8.) Between December 2011 and May 2012, Sears provided LoggerHead oral and written representations that Sears would purchase at least 300,000 Bionic Wrenches in 2012. (Id. ¶ 39.)1 Additionally, Sears’s employees, including Campana, repeatedly told LoggerHead that Sears would enter into a written supply agreement for 2012. (Am. Compl. at 11-12.) For example, on December 21, 2011, Campana sent Brown an email, reconfirming Sears’s forecast of 73,-000 Bionic Wrench units for Father’s Day 2012. (Id. at 12.) Campana moved to another division in Sears and was replaced by Stephanie Kaleta. (Id.) Kaleta also told Brown that Sears was forecasting 73,-000 Bionic Wrenches for Father’s Day 2012, and that Sears would commit to purchasing 300,000 total Bionic Wrench units in 2012. (Id.) On February 10, 2012, Sears began issuing purchase orders for the 73,-000 Bionic Wrenches it agreed to buy for Father’s Day, and LoggerHead worked to fulfill that order. (Id. at 13.) Though a 2012 supply agreement had not been signed, Sears and LoggerHead produced and ran Father’s Day Direct Response TV advertising for the Bionic Wrench. (Id. at 17.) Sales for the Bionic Wrench during the Father’s Day season met or exceeded Sears’s forecasts. (Id. at 16.)
On March 6, 2012, LoggerHead sent Kaleta a draft 2012 Supply Agreement, *780which indicated that Sears would purchase 300,000 units in 2012. (Id. at 13.) The following day, LoggerHead sent a First Agreement Revision to Sears, based on changes requested by Sears. {Id.) A week later, on March 13, 2012, Brown’s son, Dan Brown, Jr., inquired as to the status of the First Agreement Revision to the 2012 Supply Agreement; Kaleta advised Brown she was waiting for the signoff. {Id.) A Second Agreement Revision incorporating additional changes requested by Sears was prepared the following week, on March 19, 2012. {Id. at 14.) In April of 2012, Third and Fourth Agreement Revisions were exchanged between Sears and LoggerHead. (Id.) Throughout these exchanges, Sears asked LoggerHead multiple times if it was selling the Bionic Wrench to its competitors, specifically Home Depot and Lowes; LoggerHead confirmed it was not. {Id. at 16.)
On May 15, 2012, Sears sent LoggerHead a Christmas forecast for 213,519 Bionic Wrench units. (Id. at 15.) Despite the lack of a signed supply agreement, LoggerHead began to take the measures needed to ramp up production to meet Sears’s forecast. (Id.) However, on June 20, 2012, Sears sent LoggerHead a revised Christmas forecast of 2,971 Bionic Wrench units. (Id. ¶ 46.) LoggerHead was surprised by this drastic reduction in the forecast. (Id. ¶ 48.) Sears, in an email from Kaleta, falsely stated that Sears reduced the forecast because of a purported inability to reach agreement regarding the holiday TV ad campaign. (Id. ¶ 49.) Sears’s last communication with LoggerHead regarding the 2012 Bionic Wrench purchases was on July 19, 2012. (Id. ¶ 53.)
In September 2012, Sears introduced its Craftsman “Max Axess Locking Wrench,” which LoggerHead asserts is a virtual copy of the Bionic Wrench. (Id. ¶ 54.) Sears had partnered with Apex to create the Max Axess wrench. (Id. ¶ 55.) LoggerHead asserts that while Sears appeared to be negotiating with LoggerHead regarding its holiday 2012 order of Bionic Wrenches, it secretly partnered with Apex to have a “knockoff’ wrench made in China. (Id. ¶ 57.) Due to this fraudulent omission of information and concealment of Sears’s arrangement with Apex, LoggerHead lost substantial sales and profits. (Id. ¶ 59.) Additionally, LoggerHead asserts Sears continues to use LoggerHead’s registered trademark for the Bionic Wrench in commerce, confusing customers and infringing on the trademark. (Id. ¶¶ 62, 67.) LoggerHead contends Sears and Apex conspired to willfully infringe LoggerHead’s Bionic Wrench patents. (Id. ¶¶ 78-83.)
Apex filed a declaratory judgment action, seeking declarations of non-infringement and invalidity of LoggerHead’s Bionic Wrench patents; this complaint was dismissed. (Id. ¶ 76.)
LoggerHead filed suit against Sears on November 9, 2012. In an opinion issued on May 1, 2013, this Court granted Sears’s Motion to Dismiss Counts II, III and VIII of the original Complaint, which asserted claims of common law fraud, tortious interference with business relations and prospective advantage, and unjust enrichment, respectively, and these claims were dismissed without prejudice. In the May 1, 2013 Memorandum Opinion and Order, the Court provided, “LoggerHead may amend its Complaint to replead these three counts, if it can do so consistent with Fed. R.Civ.P. 11, on or before May 31, 2013.” (May 1, 2013 Mem. Op. and Order at 13.)
LoggerHead filed its Amended Complaint on May 31, 2013, adding Apex as an additional defendant and asserting seventeen claims. Sears moves to dismiss Counts XI, XII, XIII, and XVII, which are claims of common law fraud, fraud in the *781inducement,2 promissory fraud, and civil conspiracy, respectively, pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(6), and 15(a)(2), for failure to state a claim.3
Apex filed its own Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6), seeking to have dismissed Counts XV, XVI, and XVII, claims of tortious interference, aiding and abetting wrongful acts, and civil conspiracy, respectively. Apex further moves to strike Paragraphs 75 and 83-89 of LoggerHead’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(f) for constituting immaterial, impertinent, and scandalous matter.
LEGAL STANDARD
“When evaluating the sufficiency of the complaint, we construe it in the light most favorable to the nonmoving party, accept well-pleaded facts as true, and draw all inferences in her favor.” Reger Dev., 592 F.3d at 763 (citing Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008)). In order to defeat a motion to dismiss under Rule 12(b)(6), a plaintiff must plead sufficient factual matter to state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim has the requisite facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949.
Under Fed.R.Civ.P. 9(b), alleging fraud requires a plaintiff to assert supporting facts with particularity. The Seventh Circuit has characterized the particularity requirement as “the who, what, when, where, and how: the first paragraph of any newspaper story.” DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990).
“Rule 9(b) applies to ‘averments of fraud,’ not claims of fraud, so whether the rule applies will depend on the plaintiffs’ factual allegations.” Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir.2007). “A claim that ‘sounds in fraud’ — in other words, one that is premised upon a course of fraudulent conduct — can implicate Rule 9(b)’s heightened pleading requirements.” Id. (citations omitted).
ANALYSIS
Common Law Fraud
Counts XI and XII of the Amended Complaint allege a claim of common law fraud.4 “To state a fraud claim under Illinois law, a plaintiff must allege that the defendant: (i) made a false statement of material fact; (ii) knew or believed the statement to be false; (iii) intended to and, in fact, did induce the plaintiff to reasonably rely and act on the statement; and *782(iv) caused injury to the plaintiff.” Reger Dev., 592 F.3d at 766 (citing Redarowicz v. Ohlendorf, 92 Ill.2d 171, 65 Ill.Dec. 411, 441 N.E.2d 324, 331 (Ill.1982)).
LoggerHead’s initial fraud claim against Sears was dismissed for failure to state a claim of common law fraud because it had not sufficiently alleged LoggerHead’s reliance or damages. (May 1, 2013 Mem. Op. and Order at 7-9.) In particular, this Court held that LoggerHead could not reasonably rely on statements from Sears regarding purchase forecasts or future ad campaigns. “A statement which is merely an expression of opinion or which relates to future or contingent events, expectations or probabilities, rather than to pre-existent or present facts, ordinarily does not constitute an actionable misrepresentation under Illinois law.” Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1298 (7th Cir.1993) (quotations and citations omitted).
In the Amended Complaint, LoggerHead asserted additional factual information regarding Sears’s purported fraudulent concealment regarding the development of its own Craftsman wench. LoggerHead contends it relied on the omission of material facts Sears had a duty to disclose and did not disclose, including Sears’s plan to launch its own Craftsman wrench. LoggerHead asserts the ongoing Christmas 2012 negotiations were simply a sham to prevent LoggerHead from selling to Sears’s competitors. While Sears never placed a purchase order for the Christmas 2012 season and never signed a supply agreement, it did provide LoggerHead with forecasts, and adjusted that forecast, presumably, when it had determined that it would no longer need to sell as many LoggerHead Bionic Wrenches when Sears could sell its own Craftsman wrenches. The Amended Complaint provides more detailed information that sufficiently alleges adequate factual material that LoggerHead reasonably relied on its ongoing negotiations with Sears.
Moreover, “[t]o plead [fraudulent concealment] properly, in addition to meeting the elements of fraudulent misrepresentation, a plaintiff must allege that the defendant intentionally omitted or concealed a material fact that it was under a duty to disclose to the plaintiff.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 571 (7th Cir.2012) (citing Weidner v. Karlin, 402 Ill.App.3d 1084, 342 Ill.Dec. 475, 932 N.E.2d 602, 605 (Ill.App.2010)). “A duty to disclose would arise if ‘plaintiff and defendant are in a fiduciary or confidential relationship’ or in a ‘situation where plaintiff places trust and confidence in defendant, thereby placing defendant in a position of influence and superiority over plaintiff.’ ” Wigod, 673 F.3d at 571 (quoting Connick v. Suzuki Motor Co., 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584, 593(Ill.1996)). Here, LoggerHead has sufficiently alleged that such a duty existed. Based on the ongoing business negotiations, it is plausible LoggerHead could have reasonably relied on statements from Sears regarding the Bionic Wrench negotiations. As one of the primary vendors of its product, it is clear Sears was in a position of influence and superiority over LoggerHead, and Sears’s interest in LoggerHead’s other potential vendors demonstrated that LoggerHead might jeopardize its relationship with Sears if it were to enter into negotiations with Home Depot and Lowes. Accordingly, LoggerHead has sufficiently pled that a duty to disclose material information relating to the development of the Craftsman wrench arose on the part of Sears.
Furthermore, LoggerHead adequately pled in its Amended Complaint it *783suffered injury from its reliance on statements from Sears. LoggerHead asserts it had to forego soliciting to Sears’s competitors. LoggerHead has sufficiently pled that by the time it became clear to LoggerHead that it no longer had an arrangement with Sears, LoggerHead would not have had enough time to solicit these competitors and prepare for the production of other orders.
Accordingly, LoggerHead has stated a claim of common law fraud in the Amended Complaint, and Sears’s Motion to Dismiss Counts XI and XII is denied.
Promissory Fraud
Count XIII of the Amended Complaint asserts a claim of promissory fraud against Sears. “Promissory fraud is generally not actionable in Illinois unless the plaintiff also proves that the act was a part of a scheme to defraud.” Wigod, 673 F.3d at 570 (internal quotations omitted). To assert that a fraudulent scheme existed, a plaintiff must allege that at the time a promise was made, the defendant did not intend to fulfill it. Id. (citing Bower v. Jones, 978 F.2d 1004, 1011 (7th Cir.1992)). Evidence of a fraudulent scheme would include a “pattern of fraudulent statements, or one particularly egregious fraudulent statement.” Id. (quoting BP I Energy Holdings, Inc. v. IEC (Montgomery), LLC, 664 F.3d 131, 136 (7th Cir.2011)).
Here, Sears argues LoggerHead failed to assert facts demonstrating that a scheme to defraud existed. LoggerHead contends it adequately alleges promissory fraud by asserting that Sears’s false promises to and ongoing negotiations with LoggerHead were part of Sears’s scheme to defraud LoggerHead.
LoggerHead’s promissory fraud claim is facially plausible in ways similar to the stated claim of common law fraud. Representations regarding future conduct, in-eluding conduct regarding future sales, are not actionable under Illinois law. Meyer, 10 F.3d at 1298-1299. However, Sears’s actions went beyond projections of sales figures. It is plausible that Sears maintained its ongoing negotiations and discussions regarding the Bionic Wrench, all while secretly developing its own wrench, in order to prevent LoggerHead from being able to sell its Bionic Wrench to other competitors in time for the holiday sales. LoggerHead has adequately stated a claim of promissory fraud under Fed.R.Civ.P. 12(b)(6) by alleging that Sears’s actions were part of an ongoing scheme to defraud. Therefore, Sears’s Motion to Dismiss Count XIII of the Amended Complaint is denied.
Civil Conspiracy
Count XVII of the Amended Complaint alleges civil conspiracy on the part of both Sears and Apex, and both Defendants moved separately to dismiss this claim. “To succeed in a claim of civil conspiracy under Illinois law, the plaintiffs must establish: (1) an agreement between two or more persons for the purpose of accomplishing either an unlawful purpose or a lawful purpose by unlawful means; and (2) at least one tortious act by one of the co-conspirators in furtherance of the agreement that caused an injury to the plaintiff.” Borsellino, 477 F.3d at 509. To be liable for civil conspiracy in Illinois, a defendant must understand “the general objectives of the conspiratorial scheme, accept ] them, and agree[ ], either explicitly or implicitly to do its part to further those objectives.... ” Adcock v. Brakegate, Ltd., 164 Ill.2d 54, 206 Ill.Dec. 636, 645 N.E.2d 888, 894 (Ill.1994).
LoggerHead asserts Sears and Apex entered into a common scheme and agreement by willful infringement of LoggerHead’s Bionic Wrench patents and entered into a common scheme and agree*784ment to “maximize sales of the Max Axess Locking Wrench by unlawfully committing fraud against LoggerHead.” (Am. CompLIffl 190-91.) In particular, Apex contends there is no factual allegation that Apex entered into an agreement with Sears for an unlawful purpose, or a lawful purpose by unlawful means. Beyond the basic assertions in the Amended Complaint that Apex and Sears conspired to infringe LoggerHead’s patents and commit fraud, LoggerHead does not plead any factual content to state a claim of conspiracy that is plausible on its face. Iqbal, 129 S.Ct. at 1949. Moreover, a civil conspiracy sounding in fraud must be pled with particularity. Borsellino, 477 F.3d at 507. The Amended Complaint lacks any specific factual content to support a claim of civil conspiracy and, instead, simply asserts as a legal conclusion that Defendants committed civil conspiracy. Additionally, to the extent the underlying tort of the alleged civil conspiracy, fraud, is already alleged by LoggerHead, the civil conspiracy claim is rendered duplicative. “[A] conspiracy claim alleging a tort as the underlying wrongful act is duplicative where the underlying tort has been pled.” Thermodyne Food Serv. Prods., Inc. v. McDonald’s Corp., 940 F.Supp. 1300, 1310 (N.D.Ill.1996).
For these reasons, the civil conspiracy claim, Count XVII of the Amended Complaint, is dismissed as to both Defendants.
Tortious Interference with Business Relations
Count XV of the Amended Complaint asserts a claim of tortious interference with business relations against Apex, alleging that Apex purposefully and knowingly interfered with LoggerHead’s business relationship with Sears. (Am.Compl^ 180.)
In Illinois, the elements of a claim of tortious interference with a business relationship or expectancy are: (1) the plaintiff reasonably expected to enter into a business relationship; (2) the defendant was aware of the plaintiffs expectation; (3) the defendant purposefully prevented the plaintiffs business relationship from developing; and (4) the plaintiff has suffered harm as a result of the defendant’s interference. Botvinick v. Rush Univ. Med. Ctr., 574 F.3d 414, 417 (7th Cir.2009). Here, LoggerHead fails to plead any facts which demonstrate that Apex was aware of its seemingly private, ongoing negotiations with Sears in 2012, nor any suggestion that Sears informed Apex it was continuing to negotiate with LoggerHead. At most, LoggerHead contends that Apex would have had knowledge of the negotiations between Sears and LoggerHead from “publicly available” facts. (Am.ComplA 179.) LoggerHead also fails to allege that Apex’s relationship with Sears (which, as LoggerHead asserts in the Amended Complaint, went back years) was targeted at LoggerHead’s business. LoggerHead does not assert anything beyond conclusory allegations that Apex was aware of its ongoing negotiations with Sears. For this reason, LoggerHead fails to plead that Apex was aware of LoggerHead’s expectations and that Apex purposefully prevented LoggerHead from developing a relationship with Sears. Accordingly, Count XV of the Amended Complaint is dismissed for failure to state a claim.
Aiding and Abetting Wrongful Acts
Count XVI of the Amended Complaint asserts a claim against Apex of aiding and abetting wrongful acts, including aiding and abetting fraud, promissory fraud, and unfair competition on the part of Sears. (Id. ¶¶ 183-84.) “Under Illinois law, to state a claim for aiding and abetting, one must allege: (1) the party whom the defendant aids performed a wrongful *785act causing an injury, (2) the defendant was aware of his role when he provided the assistance, and (3) the defendant knowingly and substantially assisted the violation.” Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir.2006) (citing Thornwood, Inc. v. Jenner & Block, 344 Ill.App.3d 15, 278 Ill.Dec. 891, 799 N.E.2d 756, 767 (2003)). Again, LoggerHead pleads only conclusory allegations to support its claim that Apex aided and abetted Sears in its purported fraud and unfair competition. Other than alleging Apex participated in Sears’s concealment of its intentions to stop purchasing the Bionic Wrench, LoggerHead asserts no facts to support a claim that Apex aided and abetted Sears.
Therefore, Count XVI of the Amended Complaint for aiding and abetting is dismissed pursuant to Rule 12(b)(6) for failure to state a claim.
Rule 12(f)
Fed.R.Civ.P. 12(f) provides that a court may strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike are generally disfavored as they typically delay litigation. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir.1989).
Apex contends that paragraphs 75 and 83-89 of the Amended Complaint are “immaterial, impertinent, and scandalous, and should therefore be stricken under Rule 12(f).” (Apex’s Mot. to Dismiss at 14.) Paragraph 75 notes that Bain Capital, LLC, which reportedly purchased Apex for $1.6 billion, “intimately mesh[e]”s with Apex and Sears’s business models because of Bain’s expertise as a “pioneer[ ] in the practice of shipping work from the United States.” (Am.Comply 75.) Paragraphs 83-98 of the Amended Complaint refer to previous lawsuits filed against Sears, some more than 30 years ago.
Here, the disputed material is impertinent and has no relevance to LoggerHead’s remaining claims. As such, Apex’s Motion to Strike paragraphs 75 and 83-89 is granted.
CONCLUSION
For the reasons set forth above, Sears’s Motion to Dismiss Count XVII of the Amended Complaint, civil conspiracy, is granted, and this claim is dismissed with prejudice. As to Count XVII, the civil conspiracy claim alleged against Apex, Apex’s Motion to Dismiss Count XVII is granted, and that claim is dismissed against Apex with prejudice. Apex’s Motion to Dismiss Counts XV and XVI, the tortious interference and aiding and abetting claims, respectively, is also granted, and those claims are dismissed without prejudice and with leave to replead if LoggerHead can do so within 30 days of the entry of this Memorandum Opinion and Order consistent with Fed.R.Civ.P. 11.
. In the Amended Complaint, LoggerHead devotes approximately six pages of text to paragraph number 39; for the sake of clarity, citations to this portion of the Amended Complaint are indicated by page number.
. LoggerHead's Amended Complaint contains thirteen counts against Sears, including Count XI (common law fraud) and Count XII (fraud in the inducement). However, LoggerHead conceded "there is authority for treating the claims the same,” and agreed to merge those two counts into one count for common law fraud. (PL’s Resp. to Sears’s Mot. to Dismiss at 5, n.3.)
. In addition, Sears argues that Counts XII, XIII, and XVII should be dismissed because LoggerHead did not have permission to add these claims when it was given leave to re-plead its complaint. (Sears’s Mot. to Dismiss ¶¶ 2-4). Dismissal on this basis is denied.
.Because, as previously stated, LoggerHead and Sears indicated they would treat the claims of common law fraud and fraud in the inducement as one claim of common law fraud, this analysis is applicable to both Counts XI and XII. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217380/ | PER CURIAM.
Curtis D. Davis appeals the district court’s orders denying relief on his motion for amendment and correction of the pleadings and denying reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Davis, No. CR-99-55 (E.D. Va. Oct. 10, 2002; Jan. 21, 2003). We decline to consider Davis’s claim, asserted for the first time on appeal, that he was improperly sentenced under the Sentencing Guidelines.* See Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir.1999) (issues not raised in district court will generally not be considered on appeal). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
U.S. Sentencing Guidelines Manual (2002). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217382/ | PER CURIAM.
Steven R. Dewitt, Sr., appeals the district court’s order accepting the recommendation of the magistrate judge to dismiss without prejudice Dewitt’s petition for writ of mandamus. The district court correctly reasoned that under the Supreme Court’s reasoning in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), Dewitt’s right of action, if any, has not accrued because he has not established that the validity of his disciplinary conviction has been reversed. Accordingly, we affirm the district court. See Dewitt v. Adduci, No. CA-02-942-3-24-BC (D.S.C. Aug. 13, 2002). Dewitt’s motion for appointment of counsel is denied. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217383/ | PER CURIAM.
James Darren Taylor seeks to appeal the district court’s order denying relief on his motion filed under 28 U.S.C. § 2255 (2000). We have independently reviewed the record and conclude that Taylor has not made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certifícate of appealability and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217384/ | PER CURIAM.
William M. Lewis, Jr., appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Lewis v. Ugly Duckling Car Sales, No. CA-02-741-3 (E.D.Va. Dec. 12, 2002). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217386/ | PER CURIAM.
Dean Anthony Beckford seeks to appeal the district court’s order and order on reconsideration denying relief his 28 U.S.C. § 2255 (2000) motion. This Court may only grant a certificate of appealability if the appellant makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2) (2000). The relevant inquiry is whether “‘reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’” See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). We have independently reviewed the record and conclude that Beckford has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217387/ | PER CURIAM.
George E. Carter-El appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Carter-El v. Ulep, No. CA-02-741 (E.D. Va. filed Feb. 10, 2003 & entered Feb. 14, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217390/ | PER CURIAM.
David Graham appeals the district court’s order dismissing Graham’s amended 42 U.S.C. § 1983 (2000) complaint pursuant to 28 U.S.C. § 1915A (2000). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Graham v. Robbins, No. CA-02-1619AM (E.D.Va. Dec. 18, 2002). We dispense with oral argument because the facts and legal contentions are adequately presented *551in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217391/ | ORDER
Walthal Wood, a Florida resident, appeals pro se a district court order dismissing a diversity legal malpractice claim as barred by the statute of limitations. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Wood filed a complaint in July 2001 seeking declaratory and monetary relief from the attorney and law firm which had represented him in a criminal proceeding in Ohio in 1995. Wood had entered a guilty plea to a charge of voluntary manslaughter with a firearm specification, and was sentenced to five to twenty-five years and three years of imprisonment, respectively. In April 1998, Wood filed a delayed appeal from his conviction, arguing that his plea was involuntary because the trial court judge had not advised him of his rights, and because he had received ineffective assistance of counsel from defendants. The Ohio Court of Appeals found merit in the argument that the judge had not advised Wood of his rights, and vacated his conviction in January 2000. In July 2001, Wood entered a new plea bargain *561agreement which resulted in a two to ten year sentence, and he was released from incarceration shortly thereafter.
Defendants moved to dismiss the complaint on the ground that it was barred by the one-year statute of limitations applicable to malpractice claims in Ohio. Ohio Rev.Code § 2805.11(A)(1). Wood moved to dismiss defendants’ motion on the ground that he did not receive a copy of one of the attached unpublished cases cited in the motion. The district court granted the motion to dismiss, concluding that Wood’s cause of action accrued when he filed his delayed appeal in April 1998, and that the complaint filed in July 2001 was barred by the statute of limitations.
On appeal, Wood argues that the statute of limitations did not begin to run in this ease until he received the new sentence in July 2001. He also argues that his failure to receive a copy of the unpublished case cited in the motion to dismiss prevented him from responding to the motion.
Upon review, we conclude that this complaint was properly dismissed as barred by the one-year statute of limitations. Wood was clearly aware that he had a legal problem that may have been caused by defendants when he filed his delayed appeal in April 1998 raising that claim. Therefore, the district court properly held that the statute of limitations began to run at that time. See F.D.I.C. v. Alexander, 78 F.3d 1103, 1107 (6th Cir.1996). Wood’s argument that he had to wait until he received the new sentence before he could file is without merit. In Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 538 N.E.2d 398, 402 (Ohio 1989), the Ohio Supreme Court held that a trial court ruling that a prenuptial agreement was invalid put the client on notice that he had a legal malpractice claim, and he did not need to wait until all appeals had been exhausted before filing his cause of action. In the instant case, neither the decision of the Ohio Court of Appeals nor the resentencing were necessary to put Wood on notice that he had a potential legal malpractice claim, as neither relied on ineffective assistance. Wood’s delayed appeal demonstrated that he was aware of his alleged claim.
Wood’s argument regarding the failure to receive a copy of an unpublished case cited in defendants’ motion to dismiss is also meritless. As the district court noted, Wood is no longer incarcerated and could have obtained a copy of the decision on his own. The alleged failure to attach a copy of this decision to the motion Wood received did not change the outcome of the suit, as it was obvious from the face of the complaint that it was barred by the statute of limitations.
Accordingly, the district court’s order dismissing this complaint is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217392/ | GIBBONS, Circuit Judge.
Bruce Peck was convicted by a jury of sixty counts of filing false claims for tax refunds, in violation of 18 U.S.C. § 287, and twenty counts of filing false and fraudulent tax returns, in violation of 26 U.S.C. § 7206(2). Peck appeals his conviction on the grounds that the district court erred in denying him a continuance, failing to consider whether he was qualified for appointed counsel, and admitting evidence of uncharged crimes. Peck also argues that reversal is required because the prosecutor made statements in closing arguments that improperly commented on Peck’s right to silence. For the reasons set forth below, we deny Peck’s appeal and affirm his conviction.
I.
On February 7, 2000, a federal grand jury returned a sixty-count indictment against Peck charging him with filing false claims for tax refunds, in violation of 18 U.S.C. § 287. After Peck’s arrest, the magistrate judge held a detention hearing and released Peck on bond with strict conditions. The conditions of Peck’s release prohibited him from preparing tax returns. On April 13, 2000, the United States moved to revoke Peck’s bond. The district court scheduled a bond revocation hearing for April 19, 2000. Peck failed to appear at the hearing in violation of the conditions of his release. Peck was arrested in Minnesota on May 4, 2000. On June 28, 2000, the magistrate judge held a hearing on the United States’ motion to revoke Peck’s bond. The evidence presented at the hearing established that Peck had fled the jurisdiction, refused to return, and possibly attempted to fake his own death. The evidence further revealed that Peck had prepared tax returns in violation of the conditions of his release. Based on the evidence presented, the magistrate judge found that Peck had violated numerous conditions of his bond and ordered that his bond be revoked. Peck appealed the magistrate judge’s ruling revoking his bond, and the district court affirmed on the grounds that there was probable cause to believe that Peck had violated the conditions of his bond by preparing tax returns and that Peck was unlikely to abide by any condition or combination of conditions of release.
On June 5, 2000, the grand jury returned a superseding indictment adding twenty-three counts to the sixty counts brought in the original indictment. One of the eighty-three counts, count sixty-one, which relates to Peck’s failure to appear at the April 19, 2000, hearing on the United States’ motion to revoke Peck’s bond, was later severed on Peck’s motion. Counts one through sixty of the superseding indictment charged Peck with filing sixty federal income tax returns which claimed fraudulent tax refunds during 1994, 1997, *564and 1998. The indictment alleged that Peck used the names and social security numbers of minor children of his tax clients and others to claim income tax refunds on a false or fraudulent basis. Counts sixty-two through eighty-three charged Peck with manufacturing false tax losses and deductions relating to various companies and claiming such losses and deductions to reduce the tax owed by his clients.
Peck was originally represented by Scott Cox, who was later allowed to withdraw. The order allowing Cox to withdraw also appointed a federal public defender to represent Peck. The federal defender represented Peck until Peck retained Brian Davis. Davis entered an appearance as counsel for Peck on June 28, 2000. Also on June 28, 2000, Peck signed a waiver of assignment of counsel acknowledging that he was voluntarily waiving his right to appointment of counsel. On October 6, 2000, Davis filed a motion to withdraw stating that Peck had advised Davis that Peck wished to represent himself in this case. The district court granted Davis’s motion to withdraw, but the court appointed Davis as “stand-by counsel for the defendant to assist him at future hearings or trial as may be necessary.” In granting Peck’s request that the court permit him to represent himself, the court advised Peck in open court “of the hazards and disadvantages that follow self-representation” and “strongly urge[d]” Peck not to represent himself. The district court followed the Benchbook for United States District Judges in conducting an inquiry on the record regarding Peck’s decision to represent himself. The district court specifically asked Peck whether his decision to represent himself was “entirely voluntary.” Peck responded, ‘Yes, sir.”
At the time the district court granted Peck’s request to represent himself, Peck’s case was set for trial on November 29, 2000. The trial was subsequently continued until January 8, 2001. Trial proceedings began on January 8, 2001, and lasted for approximately two weeks.
At trial, the United States presented evidence that Peck filed false tax returns, which claimed fraudulent refunds, under the names and social security numbers of Peck’s tax clients. Peck filed several of the false returns in the names of minor children, including his own children and grandchildren. In carrying out his scheme, Peck used several different addresses as the taxpayer’s address, all of which were either connected to Peck or were his own personal addresses. Peck had access to the mail at all of the addresses listed on the false returns. Peck also created false W-2 forms for each taxpayer and submitted the W-2 forms along with the returns. Individuals employed, or previously employed, by the companies listed on the W-2 forms testified that the companies did not employ the individual listed on the W-2 form submitted by Peck or that the company was out of business at the time the return was filed. Peck’s handwriting was present on most of the returns at issue. In addition, Peck’s fingerprints were on many of the relevant documents, including the returns. While these false tax returns claimed refunds, none of the federal refunds for 1994 were issued because they were removed as suspicious at the IRS Service Center. Only one federal refund check for 1997 issued.
The United States also presented evidence at trial that Peck “sold” interests to his tax clients in companies that he claimed had tax losses. Peck advised his clients that he had purchased companies with tax losses and that he could sell the client an interest in one of these compa*565nies, thereby allowing the client to use part of the losses on his or her tax return to decrease the client’s tax liability. Peck informed clients of the amount the client “owed” him for the purchase of the loss and requested that the client send him a check for that amount after the client received his or her refund check. The evidence showed that Peck essentially used four companies to carry out this scheme: Advantage Mobile Homes, Ace-in-the-Hole, Corzine, and Sundial. The original owners of each of these companies testified that these companies did not experience the losses claimed by Peck and, moreover, the companies were not in business in the years the losses were reported on the charged returns. Furthermore, the owners testified that no part of or interest in the companies was ever sold to Peck or anyone else.
On January 18, 2001, the jury found Peck guilty on eighty of the eighty-two counts in the superseding indictment. The district court entered the final judgment in the case on May 10, 2001, imposing a term of imprisonment of ninety-seven months, a supervised release period of three years, restitution of $350,120, and special assessments totaling $8,000. This timely appeal followed.
II.
Peck first claims that the district court erred in failing to grant him a continuance of the trial. The decision of whether to grant or deny a continuance in order to give the defense additional time to prepare is within the discretion of the trial court, and the trial court’s decision is entitled to great deference. See United States v. Martin, 740 F.2d 1352, 1360 (6th Cir.1984); see also United States v. Cronic, 466 U.S. 648, 662 n. 31, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (noting that a “trial court’s refusal to grant the defense additional time to prepare for trial” must be given “great deference.”) This court reviews a trial court’s decision regarding the grant or denial of a continuance for an abuse of discretion. See Martin, 740 F.2d at 1360 (citations omitted). In determining whether the trial court abused its discretion, this court considers whether the defendant “suffered any actual prejudice as a result of the denial, whether additional time would have produced more witnesses or have added something to the defendant’s case.” Martin, 740 F.2d at 1361.
On the morning of trial, Peck requested that the district court grant him a continuance. The court did not grant Peck’s request and proceeded with the trial. Peck claims that the denial of the continuance prevented him from having a reasonable opportunity to prepare a defense in light of the complexity of the case, the fact that he was in custody, and the government’s service of additional exhibits on him a few days prior to trial. Based on the court’s denial of a continuance, Peck argues that his conviction should be overturned.1
General allegations that the complexity of a case requires additional preparation time are insufficient to establish abuse of discretion by a trial court in failing to grant a continuance. See Martin, 740 F.2d at 1361. In Martin, this court held that the trial court did not abuse its discre*566tion, despite the defendant’s allegations regarding the complexity of the case, when counsel had more than a week to prepare for trial and “presumably had access to the fruits of appointed counsel’s earlier preparation efforts.” Id. In addition, when a defendant chooses to assert the right of self-representation, he forfeits the benefits associated with representation by legal counsel. See Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). For example, this court has specifically held that the government has no obligation to provide access to a law library to defendants who wish to represent themselves in criminal trials. See United States v. Sammons, 918 F.2d 592, 602 (6th Cir.1990).
In the present case, the superseding indictment was issued more than seven months prior to Peck’s trial date and, while acting as his own counsel, Peck had seventy-seven days to prepare his case for trial. Peck also presumably had access to the fruits of the preparation efforts of his three prior attorneys. The district court specifically advised Peck that his detention would be a hindrance to his preparation. Peck informed the court that he understood, but still insisted on representing himself. Furthermore, contrary to Peck’s assertions, the government did not submit seventeen “new” exhibits days before trial. Instead, the exhibits were summary exhibits of figures to which Peck previously had access.
Peck has failed to establish that he suffered actual prejudice as a result of the district court’s denial of a continuance or that additional time would have produced more witnesses or added something to his case. Here, Peck had adequate time to prepare for trial despite the complexity of the case and his custody status. The government’s submission of summary exhibits a few days before trial did not affect his defense. Accordingly, the district court did not abuse its discretion in denying Peck’s motion for a continuance.
Peck next argues that the district court erred in failing to properly advise Peck regarding his decision to represent himself by failing to inquire about his eligibility for appointed counsel and further interfered with Peck’s right to counsel or self-representation by appointing stand-by counsel and severely limiting stand-by counsel’s role during trial. In Faretta v. California, the Supreme Court held that the Sixth Amendment implies a right of self-representation. 422 U.S at 821, 95 S.Ct. 2525. When a defendant chooses to invoke the right of self-representation, he foregoes, as a factual matter, the benefits associated with representation by legal counsel. Id. at 834, 95 S.Ct. 2525. Because these benefits are of the utmost importance in a criminal proceeding, an individual who wishes to represent himself must waive the right to counsel “knowingly and intelligently” on the record. Id. at 835, 95 S.Ct. 2525.
Peck does not argue that his waiver of his right to counsel was not knowing, intelligent, and voluntary. As the record demonstrates, Peck waived his right to counsel with a clear understanding of the nature of the charges, the possible punishment, the requirements that he adhere to the Federal Rules of Evidence and Criminal Procedure, and the dangers and disadvantages of self-representation. According to the record, the district court properly ensured that Peck understood the significance and consequences of his decision to represent himself. Although the decision to represent himself may not have been in Peck’s best interest, the record supports the district court’s conclusion that Peck was competent to make that choice, and that he did so knowingly and voluntarily.
*567Peck instead argues that the district court erred in failing to inquire about Peck’s ability to afford retained counsel and eligibility for appointed counsel after he expressed that one of the reasons he was electing to represent himself was to avoid putting any undue financial hardship on his family. Because Peck acknowledges that his waiver of counsel was knowing and voluntary, the court’s failure to inquire further about Peck’s eligibility for appointed counsel is reviewed for an abuse of discretion. See United States v. Pleasant, No. 99-1880, 2001 WL 391969, (6th Cir. April 12, 2001) (noting that a district court’s denial of a defendant’s request for self-representation after the defendant unequivocally waived his right to self-representation is reviewed for abuse of discretion). Peck offers no support for his assertion that a trial court is required to inquire, sua sponte, about a defendant’s eligibility for appointed counsel upon an assertion by a defendant that he is waiving his right to counsel for financial reasons. In this case, even if the district court was required to conduct such an inquiry, Peck had previously waived his right to appointed counsel. After Peck’s first attorney, Cox, was permitted to withdraw, the court appointed the federal defender.2 The government opposed the appointment of counsel arguing that Peck had adequate financial resources to retain counsel. Before the district court had an opportunity to determine whether Peck should be denied appointment of counsel, Peck signed a waiver of appointment of counsel and retained Davis as his attorney. Because Peck’s decision to waive his right to appointment of counsel was voluntary, he did not attempt to revoke his waiver of appointment of counsel, and he has failed to establish that he would have accepted or even been entitled to appointment of counsel if the district court had asked about his financial condition, the district court did not abuse its discretion in failing to inquire about Peck’s financial status.
Peck also claims that his request that his stand-by counsel take a more active role in the trial acted as a revocation of his waiver of counsel before the trial began. In response to Peck’s request that standby counsel become more involved in his defense, the district court advised Peck that he could either choose to be represented by a lawyer or he could represent himself. The court stated that if Peck chose to be represented by a lawyer, then he would be required to pay legal fees. Peck contends that the district court’s statements that he would be required to pay for a lawyer infringed on his right to counsel.
Peck offers no legal support for his contention that his request that stand-by counsel assume a more active role in the defense acted as a revocation of his waiver of his right to counsel. This court has held that:
The right to defend pro se and the right to counsel have been aptly described as “two faces of the same coin,” in that waiver of one right constitutes a correlative assertion of the other. While it may be within the discretion of a District Court to permit both a criminal defendant and his attorney to conduct different phases of the defense in a criminal trial, for purposes of determining wheth*568er there has been a deprivation of constitutional rights a criminal defendant cannot logically waive or assert both rights.
United States v. Conder, 423 F.2d 904, 908 (6th Cir.1970) (citations omitted). Whether to allow a defendant to participate in his own defense along with counsel in “hybrid representation” is a matter committed to the sound discretion of the trial court. United States v. Mosely, 810 F.2d 93, 97-98 (6th Cir.1987) (citations omitted).
In the instant case, Peck never attempted to revoke his waiver of his right to counsel. Instead, Peck mentioned that he had “some thought” of having his standby counsel, Davis, act as “co-counsel.” In response, the district court advised Peck that he could hire Davis as his counsel, but Davis could not act as his co-counsel. The district court reminded Peck that he was free to “elect a lawyer to represent” him and advised Peck that if he did not have the funds to hire a lawyer, the court would have Davis represent Peck and “assess the costs to [Peck] at the end of the trial.” In addition, the court had previously advised Peck that the court would not permit “a hybrid type trial.”
As this court has pointed out, “[t]here are obvious justifications for the refusal to allow hybrid representation in criminal trials,” including the “potential for undue delay and jury confusion” and inevitable “conflicts and disagreements as to trial strategy.” Mosely, 810 F.2d at 98. Here, Peck did not revoke his waiver of his right to counsel. The district court assured Peck that he would be able to “call on” his stand-by counsel and that stand-by counsel would be present at trial. Therefore, the district court did not abuse its discretion in refusing to allow hybrid representation and limiting the role of standby counsel.
In addition, the district court’s statements that Davis could represent Peck, but the costs of Davis’s representation would be assessed to Peck did not infringe on Peck’s right to request counsel. As an initial matter, after Peck requested that he be permitted to represent himself and the court granted his request, Peck never asked the court to appoint counsel. Instead, Peck inquired about the possibility of Davis acting as co-counsel. Peck has failed to present any evidence that he was not financially capable of either retaining counsel or paying Davis after trial. While it is not permissible to condition a defendant’s right to court-appointed counsel upon the prepayment of legal fees or costs, “when court-appointed counsel is provided, it is constitutionally permissible to require the defendant to repay the expense incurred by the state in providing the representation if the defendant later becomes able to repay.” Hanson v. Passer, 13 F.3d 275, 279-80 (8th Cir.1994) (finding that the trial court erred by conditioning the defendant’s right to court-appointed counsel upon the prepayment of $1000, but noting that if the trial court had “immediately appointed counsel and required [the defendant] sometime in the future to contribute toward the cost of his defense ... the arrangement would have passed constitutional muster.”)
In the present case, the district court stated that if Peck decided not to represent himself, then Peck could “use Mr. Davis,” but the court would assess the costs of Davis’s representation to Peck at the end of trial. The district court’s offer to have Davis act as counsel for Peck on the condition that Peck pay the costs of his defense in the future, as opposed to prepayment or immediate payment, was not error.
With respect to Peek’s third assignment of error, Peck asserts that the district *569court admitted evidence regarding uncharged crimes in violation of Rule 404(b) of the Federal Rules of Evidence. Specifically, Peck contends that the district court deprived him of his right to a fair trial when it refused to exclude evidence relating to state tax returns. At trial, the government argued that evidence relating to state tax returns was admissible because such evidence was “intrinsic to what happened to these federal returns.” The government maintained that the admission of the evidence relating to state tax returns was “not an issue of 404(b).” In denying Peck’s motion to exclude evidence of any state tax returns, the district court stated that it was “going to let them come in for what value they might have.” The district court further stated that the jury would be admonished in that regard.
Where the challenged evidence is inextricably intertwined with evidence of the crimes charged, Rule 404(b) is not implicated. See United States v. Everett, 270 F.3d 986, 992 (6th Cir.2001). Peck fails to present any support for his argument that the evidence relating to state tax refunds was not “inextricably intertwined” with evidence of his federal tax fraud scheme. The record shows that Peck created and executed a comprehensive tax fraud scheme. Peck not only filed false federal returns, he created numerous other documents in an effort to create the appearance that the federal returns were legitimate, including state tax returns. Therefore, the district court did not abuse its discretion in refusing to exclude the evidence. See also United States v. Tarwater, 308 F.3d 494, 516-17 (6th Cir.2002) (finding that challenged evidence relating to Medicare and Medicaid fraud was inextricably intertwined with evidence of the crimes charged, tax fraud, and, therefore, the district court did not abuse its discretion in refusing to exclude such evidence).
Finally, Peck contends that the prosecutor made improper statements during closing arguments sufficient to require reversal. Peck, however, failed to object to the prosecutor’s statements during trial. When a defendant fails to object to prosecutorial comments during trial, the defendant waives any error for purposes of appeal unless he can show plain error. Fed. R.Crim.P. 52(b); see also United States v. Thomas, 11 F.3d 620, 630 (6th Cir.1993) (discussing the Rule 52(b) analysis).
Direct comment on a defendant’s failure to testify is forbidden by the Fifth Amendment. See Griffin v. California, 380 U.S. 609, 613-14, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). “[Wjhen a prosecutor makes indirect references to a defendant’s failure to testify ... the prosecutor’s comments constitute error when the statement was either manifestly intended or was of such character that the jury would necessarily construe it as a comment on the failure of the defendant to testify.” United States v. Randolph, 173 F.3d 857, Nos. 97-5990/59991, 1999 WL 98564, at *6 (6th Cir. Jan.27, 1999) (citing United States v. Ursery, 109 F.3d 1129, 1134 (6th Cir.1997)). In addition, a prosecutor may comment on a defendant’s failure to call a witness or to otherwise present exculpatory evidence so long as the comment was not manifestly intended or was not of such character that the jury would necessarily take it to be a comment on the defendant’s failure to testify. See Ursery, 109 F.3d at 1135 (establishing that it is permissible for a prosecutor to comment on the defense’s failure to present exculpatory evidence provided that the statement was not manifestly intended or was not of such character that the jury would necessarily construe it as a comment on the defendant’s failure to testify); see also United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir.2000).
*570Peck contends that, during closing arguments, the prosecutor improperly commented on his right to silence. Specifically, Peck complains about the prosecutor’s statement in rebuttal that:
The reason why Mr. Peck found it extremely difficult to confine his closing argument to the evidence in this case is because there is virtually no evidence that supports him. In fact, the unanimous, all, virtually every bit of evidence that came in points in one singular direction, and that is directly at Bruce Peck.
Before the prosecutor made the challenged statement in rebuttal arguments, the district court admonished Peck on several occasions during his closing argument to confine his remarks to the evidence and the inferences that could be drawn from it. Peck repeatedly attempted to inform the jury of facts that were not introduced as evidence during trial. In rebuttal, the prosecutor responded to Peck’s inability to limit his argument to the evidence.
When viewed in context, the prosecutor’s comment was not manifestly intended to reflect on Peck’s decision not to testify and the comment was not of such character that the jury would necessarily view the statement as a reflection on Peck’s silence. See Randolph, 1999 WL 98564, at * 6. Moreover, the prosecutor’s comment was isolated, inadvertent, and there was strong independent evidence of Peck’s guilt. Therefore, there is no plain error.
III.
For all the reasons set forth above, we affirm the conviction of Bruce Peck.
. In support of his argument that the district court erred in failing to grant him a continuance, Peck relied on the Tenth Circuit’s opinion in United States v. Cronic, 675 F.2d 1126 (10th Cir.1982). Peck’s reliance on the Tenth Circuit’s opinion in Cronic is misplaced, however, because the opinion in that case was reversed by the United States Supreme Court in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the Supreme Court found circumstances analogous to the instant case insufficient to warrant reversal of the defendant’s conviction. Id. at 666-67, 104 S.Ct. 2039.
. The record does not reflect whether Peck ever made a formal request for appointed counsel. The record only reflects that the court appointed the federal defender, Peck filed a financial affidavit in support of a request for counsel, and the government filed a Memorandum in Opposition to Peck's Request for Appointment of Counsel. According to the government’s memorandum, Peck had "nearly $14,000 in cash in his accounts, over $25,000 in personal property, and an annual income of over $250,000 in recent years.” | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217393/ | ERIC L. CLAY, Circuit Judge,
concurring.
I agree with the Court’s conclusion and most of its reasoning. I write separately, however, to state that the evidence of Peck’s fraudulent state tax returns was not “inextricably intertwined” with the evidence of his federal tax fraud scheme. As the majority opinion correctly observes, Fed.R.Evid. 404(b) does not apply “when the challenged evidence is ‘inextricably intertwined’ with evidence of the crime charged.” United States v. Everett, 270 F.3d 986, 992 (6th Cir.2001) (citing United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir.1995)). As one court explained:
Acts satisfy the inextricably intertwined doctrine if they complete the stray of the crime on trial; their absence would create a chronological or conceptual void in the story of the crime; or they are so blended or connected that they incidentally involve, explain the circumstances surrounding, or tend to prove any element of, the charged crime.
United States v. Senffner, 280 F.3d 755, 764 (7th Cir.2002); see also United States v. Williams, 291 F.3d 1180, 1189 (9th Cir.2002) (“Evidence is ‘inextricably intertwined’ if it ‘constitutes a part of the transaction that serves as the basis for the criminal charge’ or “was necessary to ... permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.’ ”) (quoting United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012-13 (9th Cir.1995)) (alteration in Williams); United States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir.1984) (defining evidence as “intricately intertwined” when exclusion of it leaves a conceptual and chronological void).
The government argued that the state returns formed part of Peck’s complex tax fraud scheme because, along with the false W-2 forms and phony employer’s returns, the state forms helped make the federal returns appear legitimate. The government also felt the state returns were nec*571essary to establish Peck’s identity as the guilty party. Yet the government did not claim that the evidence was necessary to establish Peck’s intent. It is hard to believe the government needed the evidence to prove that Peck, an experienced tax preparer, did not “accidentally” file dozens of fraudulent federal returns; nor did the government need the fraudulent state return evidence to show Peck knew that what he was doing was illegal.
The state tax returns did not directly form the basis for the actual crimes charged and the government did not need to present this obviously prejudicial material to avoid “a chronological or conceptual void in the story of the crime.” Senffner, 280 F.3d at 764. The majority cites United States v. Tarwater, 308 F.3d 494, 516-17 (6th Cir.2002), in support of its conclusion that the evidence was “inextricably intertwined.” As the majority explains, Tarwater found “that challenged evidence relating to Medicare and Medicaid fraud was inextricably intertwined with evidence of the crime[ ] charged, tax fraud.” Tar-water was an accountant convicted of tax fraud for failing to properly report payments he received from a hospital that retained him to review various Medicare and Medicaid claims. Thus, unlike this case, leaving out the information about the defendant’s uncharged but suspicious activity would have created “a chronological or conceptual void in the story of the crime.” Senffner, 280 F.3d at 764.
Assuming Rule 404(b) did apply, the trial court erred by failing to “‘carefully identify, in its instructions to the jury, the specific factor named in the rule that is relied upon to justify admission of the other acts evidence, explain why that fact was material, and warn the jurors against using the evidence to draw the inferences expressly forbidden in the first sentence of Rule 404(b).’ ” Everett, 270 F.3d at 991-92 (quoting United States v. Spikes, 158 F.3d 913, 929 (6th Cir.1998)). The district court offered this limiting instruction:
The jury is admonished that [Peck] [i]s on trial for any wrongdoing which might have involved the [state returns] that the Government has introduced.... He is not on trial for those documents in any way. Thank you and you have to remember that when you’re trying the case. This is not a state violation at all that he’s on trial for. It is hard to do, but they [sic] must do it.
(J.A. at 205.) Under Everett, this instruction is insufficient because the trial court fails to explain to the jury how to properly use the evidence. 270 F.3d at 991-92.
Even so, the mistake was harmless because the government presented overwhelming evidence against Peck. First, multiple witnesses established that the federal returns were false. Peck did not contest this testimony. Second, the evidence that Peck prepared the federal returns is extremely persuasive. Each return contained an address associated with Peck. Each phony W-2 was filed on behalf of a company connected with Peck. Peck’s daughter testified that the documents were penned in Peck’s handwriting. A fingerprint expert identified Peck’s fingerprints on the documents. The overwhelming case against Peck minimizes the mistake with respect to the limiting instruction to the point where the error becomes harmless.
Although I agree with the majority’s conclusion and much of its reasoning, I concur separately to emphasize the importance of carefully considering whether to admit evidence of uncharged crimes. Only strict adherence to the rules of evidence guarantees that the jury has chosen to convict because the government met its burden with respect to the charged offense. See 1 J. Wigmore, Evidence 233 *572(1st ed. 1904) (“The natural and inevitable tendency of the tribunal-whether judge or jury-is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or take the proof of it as justifying a condemnation irrespective of guilt of the present charge.”). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217396/ | PER CURIAM.
Jesse James Mack appeals the rejection of his petition for a writ of habeas corpus, arguing that he did not knowingly and intelligently waive his right to counsel during his trial. The state argues that the district court’s decision that Mack’s habeas petition was timely filed was in error. For the following reasons, we affirm.
Mack was convicted by a jury of two counts of first-degree murder, one count of second-degree murder, and one count of felony firearm. Mack shot and killed William and Jacqueline Rice, the parents of eleven-year-old Tameka Rice. Mack subsequently kidnaped Tameka, sodomized her, and strangled her to death with a dog leash. After his conviction, Mack appealed to the Michigan appellate court, and to the state supreme court. His convictions were affirmed.
On March 14, 1997, Mack filed for state postconviction relief, which was denied. He appealed again to the Michigan appellate court, and to the state supreme court. His convictions were again affirmed. The state supreme court rendered its decision on August 31, 1999. On September 6, 1999, Mack filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 with the district court. The district court held that his petition was timely, but dismissed it, finding that his claims were either procedurally defaulted or were without merit. The district court also denied Mack’s motion for a certificate of appealability.
This court granted Mack’s motion for a certificate of appealability as to whether the trial court properly determined that the waiver of his right to counsel was knowing and intelligent. This court also sua sponte granted a certificate of appeal-ability as to whether Mack’s § 2254 petition to the district court was timely filed.
I
The state argues that Mack’s habeas petition is barred by the one-year statute of limitations under 28 U.S.C. § 2244(d)(1) because Mack did not have a “properly filed” or “pending” application that would toll the statute of limitations in the time between the denial of his motion in the trial court, and the date of the filing of his delayed application for leave to appeal.
The Supreme Court recently decided, in Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), that a petitioner’s claim is “pending” for the entire term of state court review, including those intervals between one state court’s judgment and the fifing of an appeal with a higher state court. Id. at 2138. Therefore, Mack’s habeas petition was timely *579filed, as the one-year statute of limitations was tolled for the entire time he pursued state court review.1
II
We turn now to Mack’s claim that his waiver of his right to counsel was not knowing and voluntary. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, a federal court may not grant a habeas petition with respect to any claim that was adjudicated on the merits in state court, unless the state court’s adjudication: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). To satisfy the “contrary to” test, a state court’s decision must be opposite to that reached by the Supreme Court on a question of law, or must arrive at an opposite result when facing a set of facts that are materially indistinguishable from a relevant Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The “unreasonable application” test is satisfied when a state court correctly identifies the governing legal principle in a case, but unreasonably applies that principle to the facts of the defendant’s case. Id. at 407.
This court reviews the district court’s denial of a writ of habeas corpus de novo. Buell v. Mitchell, 274 F.3d 337, 344 (2001).
Mack was appointed counsel for his trial. At the beginning of a hearing on motions that his appointed counsel had filed, Mack stated that his appointed counsel had not filed “things” that he had requested. He stated that his counsel had done nothing “except come here and pretend he my attorney.” After Mack continued to express his dissatisfaction with his counsel, he moved orally for a finding of “ineffective assistance of counsel.” The trial court told Mack that he had no right to the appointed counsel of his choice, but could hire counsel of his choice or represent himself. The trial court also informed Mack that he could go to prison for the rest of his life if convicted.
After he thought it over, Mack informed the court that he wanted to represent himself rather than continue to be represented by his current counsel. The trial court then gave him some more time to think and discuss the decision with his appointed counsel. The trial court ordered his appointed counsel to remain at the defense table throughout the proceedings. It also asked Mack to read a Miranda warning card out loud, and gave him the opportunity to speak with two defense attorneys. Mack declined to speak with them.
Numerous times during the trial, Mack told the court that he did not know what he was doing, and requested that new counsel be appointed. The court repeatedly advised him that his previously appointed counsel could resume representation, but that it would not appoint him new counsel.
After several days of trial, the trial court held a hearing to inquire into whether Mack had a legitimate basis to be dissatisfied with his appointed counsel. His appointed counsel, who had been ordered to serve as stand-by counsel, subsequently moved for a mistrial. The prosecution did not object. Mack was offered the opportu*580nity to discuss with another defense attorney the advisability of accepting a mistrial, and he refused. He also refused the mistrial and requested again that new counsel be appointed. The trial court made a statement for the record that Mack knew what he was doing, that he was committing a fraud on the system, and that the record now reflected that Mack wanted to continue to represent himself rather than have a new trial. Near the end of the trial, Mack requested that his appointed counsel, who had been observing throughout, resume representation.
In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a criminal defendant has the constitutional right to defend himself. Id. at 886. However, the Court held that “in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” Id. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). The Court went on to state that the defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Ibid. (quoting Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).
A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
Johnson, 304 U.S. at 464.
The Michigan Court of Appeals concluded that it was “inconceivable that defendant did not know what he was doing.” People v. Mack, 190 Mich.App. 7, 475 N.W.2d 830, 836 (1991) (quoting People v. Riley, 156 Mich.App. 396, 401 N.W.2d 875 (1986)). It held that the trial court did not err in allowing Mack to represent himself at trial. Ibid.
The precise question before us is whether the Michigan Court of Appeals came to a decision that was contrary to, or an unreasonable application of, Faretta and Johnson. The trial court did not expressly determine that Mack’s waiver was voluntary and intelligent. While this court has previously directed this circuit’s federal trial courts to conduct a formal inquiry, United States v. McDowell, 814 F.2d 245, 250 (6th Cir.1987), the question of the necessity of such a searching inquiry has not yet reached the Supreme Court. Thus, no clearly established federal law, as determined by the Supreme Court, requires a specific colloquy to determine whether a defendant’s waiver is made with “eyes open.”
The trial court in this case repeatedly warned Mack that proceeding without counsel was unwise. The trial court also advised Mack that a conviction could result in life imprisonment. In spite of these warnings, Mack insisted on representing himself rather than continuing on with his appointed counsel. Moreover, after Mack experienced self-representation through several days of trial, he was afforded the opportunity to accept a mistrial and begin again. He refused this opportunity, and again insisted on representing himself, even though he had been protesting to the court that he did not know what he was doing.
“Presuming waiver from a silent record is impermissible.” Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). However, the record before us is not silent. Mack’s conduct throughout his trial indicates that he voluntarily and *581intelligently chose to represent himself. The Michigan court’s conclusion to this effect was not contrary to or an unreasonable application of Faretta or Johnson.
Ill
For all of the above reasons, we affirm the decision of the district court that Mack’s habeas petition was timely filed, and its decision denying habeas relief.
. Mack's delayed petition for leave to appeal was denied by the Michigan Court of Appeals on the merits and not because of the delay. Therefore, it was "properly filed" for purposes of tolling the statute of limitations. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217398/ | ORDER
Kenneth J. Schulte appeals a restitution order that was imposed after he was convicted of aiding and abetting mail fraud, wire fraud, and securities fraud. His appeal has been referred to a panel of this court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed in this case. Fed. R.App. P. 34(a).
In 1997, Schulte was sentenced to fifty-one months of imprisonment and two years of supervised release. He was also ordered to pay over seven million dollars in restitution, under the Mandatory Victims Restitution Act of 1996. Schulte’s convictions were affirmed on direct appeal, but the case was remanded for further consideration of his request for a downward departure from the applicable sentencing guideline range.
In 2000, the district court issued an amended judgment and sentenced Schulte to thirty months of imprisonment. The original judgment was unchanged with regard to his supervised release and restitution. Schulte’s reduced sentence of imprisonment and term of supervised release were subsequently affirmed. However, the restitution order was vacated and the case was remanded again, so that the amount of restitution could be reassessed under the Victim and Witness Protection Act of 1982,18 U.S.C. §§ 3663-3664.
On February 14, 2002, the district court issued an amended order, which reduced the amount of restitution to $3,620,879.65. It is from this order that Schulte now appeals.
Schulte’s attorney has filed a motion to withdraw with a brief indicating that there are no colorable issues to appeal. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, counsel suggests that Schulte may wish to argue that the court abused its discretion by issuing its current restitution order. Schulte did not file a timely response to counsel’s motion, and an independent *584review of the record reveals no issue that would support a direct appeal in this case.
Our court has already affirmed Schulte’s convictions and reduced sentence of imprisonment. Thus, appellate review is limited to the district court’s amended restitution order. The court was required to “consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” 18 U.S.C. § 3664(a) (1995). However, it was not required to make specific findings regarding Schulte’s financial condition, and Schulte had the burden of showing that he cannot afford to pay restitution. See United States v. Jackson-Randolph, 282 F.3d 369, 386 (6th Cir.2002).
The district court found that the victims had lost $7,241,759.30. The court acknowledged Schulte’s resources and the financial needs of his family. However, it noted that he had earned over $100,000.00 per year, and opined that his youth, education and experience gave him the potential to secure another high-paying job. Even so, the court reduced the amount of restitution to only half of the victims’ total loss. In light of this analysis, we conclude that the district court did not abuse its discretion. See id. at 386-87; United States v. Hart, 70 F.3d 854, 862-63 (6th Cir.1995).
Accordingly, counsel’s motion to withdraw is granted and the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217399/ | ORDER
Ajamu M. Kafele, a pro se Ohio resident, appeals a district court order dismissing a portion of his complaint filed under 15 U.S.C. § 1692, the Fair Debt Collection Practices Act (FDCPA); a district court order denying his motion for injunctive relief and/or restraining order; and a district court order dismissing his amended complaint. This case has been referred to a panel of the court pursuant to Rule 84(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Kafele alleged that he was served with foreclosure proceedings against three properties which he owned. Kafele stated that a summons and complaint filed with each foreclosure action was accompanied by a notice under the FDCPA. However, Kafele alleged that the notices did not comply with the requirements of § 1692(g)(a). The district court dismissed Kafele’s complaint as being time-barred with respect to two of the properties. The court also dismissed Kafele’s second amended complaint as Kafele had failed to seek the court’s permission to file it. Finally, the district court denied Kafele’s request for an emergency injunction noting that Kafele’s requested relief, the reversal of the state foreclosure actions, was not available under the FDCPA. It is from these three decisions that Kafele appeals. Kafele’s allegations regarding an alleged violation of the FDCPA as to the third property is still pending with the district court.
In his timely appeal, Kafele challenges each of the district court’s decisions for several reasons.
This court’s jurisdiction is based on the denial of Kafele’s request for an injunction. Under 28 U.S.C. § 1292(a)(1), the denial of an injunction is immediately appealable. See Booher v. N. Ky. Univ. Bd. of Regents, 163 F.3d 395, 397 (6th Cir.1998).
The standard for issuance of a preliminary injunction, set forth by this circuit in Vittitow v. City of Upper Arlington, 43 F.3d 1100, 1108-09 (6th Cir.1995), requires analysis of the following factors: 1) whether the applicant has demonstrated a likelihood of success on the merits; 2) whether the applicant will be irreparably injured absent an injunction; 3) whether issuance of the injunction will substantially injure the other interested parties (including defendant); and 4) whether the public interest is advanced by the issuance of the injunction. In his request for injunctive relief, Kafele asked that the district court void the state court’s foreclosure proceedings. However, this form of relief is not available under the FDCPA. At most, Kafele would be entitled to $1,000 in damages. See 15 U.S.C. § 1692K. As the relief sought by Kafele was unavailable, the district court did not err in denying him injunctive relief. Thus, the appeal should be dismissed. Booher, 163 F.3d at 397.
One of Kafele’s claims is still pending before the district court. We therefore will not address the other claims raised in this appeal, as to do so would result in a piecemeal appellate review. Id.
Finally, we note that Kafele has recently filed with this court a Motion for Produe*586tion of Documents, which has engendered a flurry of additional motions, including the appellees’ motion to strike and demand for sanctions and Kafele’s own motion for sanctions. We deny each of those motions.
Accordingly, we affirm the district court’s order denying the request for injunctive relief and decline to address Kafele’s remaining arguments until the district court issues its final judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217401/ | ORDER
Gerald Alan Hayes appeals his conviction and sentence for bank fraud in violation of 18 U.S.C. § 1344. The parties have expressly waived oral argument, and upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
On September 13, 2001, Hayes was charged by information with bank fraud for engaging in a check kiting scheme involving an Ohio financial institution, Centennial Bank, from approximately May 12, 1999, to May 20, 1999. Hayes waived his right to an indictment and pleaded guilty pursuant to a written plea agreement on November 2, 2001. In a judgment entered May 2, 2002, Hayes was ordered to serve 26 months in prison and 4 years of supervised release, and to pay $31,800 in restitution.
On appeal, counsel contests the assessment of one criminal history point for a Texas conviction, arguing that it was related to the instant offense. Hayes has filed a pro se supplemental brief, arguing that trial counsel rendered ineffective assistance, the government violated his right to a speedy trial, and the district court lacked jurisdiction.
This court reviews a district court’s application of the Sentencing Guidelines de novo and its factual findings concerning a defendant’s role in an offense for clear error. United States v. Caseslorente, 220 F.3d 727, 734 (6th Cir.2000).
The claim presented by counsel concerns a Texas conviction for theft by check. On September 20, 1998, in San Antonio, Texas, Hayes had written a check from a closed account in order to buy merchandise. He was arrested on November 23, 2000, and was sentenced in state court on January 18, 2001. Counsel contends that the state and federal offenses were related in time, that the object in both offenses was to obtain funds by writing worthless checks, and that the Texas offense likely would have been consolidated with the federal offenses if it had been prosecuted in federal court.
The Sentencing Guidelines provide that “[pjrior sentences imposed in related cases are to be treated as one sentence for purposes of § 4Al.l(a), (b), and (c).” USSG § 4A1.2(a)(2). “Prior sentences are considered related if they resulted from of*590fenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing.” Id. at n. 3. In United States v. Irons, 196 F.3d 634, 638 (6th Cir.1999), this court held that prior offenses are part of a single common scheme or plan if they were jointly planned or if “the commission of one would entail the commission of the other.”
The district court properly concluded that the Texas offense was not related. Hayes does not contend that the offenses occurred on the same occasion or were consolidated, and he has provided no evidence that they were jointly planned or that the commission of one would entail the commission of the others. The arguable temporal proximity of Hayes’s offenses does not provide definitive evidence that he jointly planned the offenses. Id. at 640. Furthermore, offenses which are merely part of the same crime spree are not deemed to be related, nor are offenses which have the same purpose, such as the acquisition of money. Id. at 638-39. Although Hayes possibly has been sentenced more harshly than he would have been if the federal government had charged him with the Texas offense and then listed all offenses in one indictment, this court may not provide relief. See United States v. Carter, 283 F.3d 755, 760 (6th Cir.), cert. denied, — U.S. -, 123 S.Ct. 286, 154 L.Ed.2d 126 (2002). The prevention of any such sentencing disparity in future cases is a matter for the Sentencing Commission to consider. Id.
Hayes’s pro se arguments lack merit. First, we decline to consider his claim of ineffective assistance because such claims are disfavored on direct appeal and are more appropriately brought by filing a 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. United States v. Carr, 5 F.3d 986, 993 (6th Cir.1993). Second, his claim that the government violated his right to a speedy trial by not charging him until 16 months after the offense is frivolous. There is simply no constitutional right to be arrested. Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Third, Hayes’s challenge to the district court’s jurisdiction is also frivolous. The district court had jurisdiction because Centennial was insured by the Federal Deposit Insurance Corporation, a fact which Hayes conceded at his plea hearing. See United States v. Ali, 266 F.3d 1242, 1245 (9th Cir.2001); United States v. Scott, 159 F.3d 916, 921 (5th Cir.1998); see also United States v. Hoglund, 178 F.3d 410, 412-13 (6th Cir.1999) (listing elements of offense).
Accordingly, the district court’s judgment is affirmed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217402/ | ORDER
Lawrence E. Wilson, an Ohio prisoner proceeding pro se, appeals a district court judgment dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
The magistrate judge’s thorough and well-reasoned report and recommendation sets forth the facts in detail. Suffice it to say that Wilson is an inmate in Southeastern Correction Institution (“SCI”) and brings this action under the Eighth and Fourteenth Amendments to the United States Constitution for denial of dental care. Specifically, he alleges that he was denied adequate dental treatment for broken teeth, inflamed bleeding gums, sore gums, loose teeth, deep carious lesions, malocclusion, and periodontal disease in violation of his Eighth Amendment rights. He names as defendants Reginald Wilkinson, Director of the Ohio Department of Rehabilitation and Correction (“ODRC”); Paul Gaston, Medical Services Dental Director of ODRC; Robert Hurt, Warden of SCI; and Dr. Jacinto Beard, a Contract Dentist for SCI. The defendants moved for summary judgment, and the magistrate judge recommended granting the motion. Upon de novo review and in light of Wilson’s objections, the district court accepted the recommendation, and granted summary judgment to the defendants. This appeal followed.
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). We review de novo a grant of summary judgment. Brooks v. American Broad. Cos., 999 F.2d 167, 174 (6th Cir.1993).
Upon review, we conclude that the defendants were entitled to judgment as a *592matter of law on Wilson's Eighth Amendment claim. In order to prevail on this claim, Wilson must establish that the defendants were deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). However, the Constitution does not prohibit medical malpractice. Estelle, 429 U.S. at 104. A difference in opinion between a prisoner and the medical staff about treatment does not state a cause of action. Id. at 107. Federal courts are reluctant to second guess medical judgments where a prisoner has received some medical attention and the dispute concerns the adequacy of that treatment. See Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976).
The record in this case is undisputed that, from April 1999 through January 2001, Wilson underwent either examination or treatment by a dentist at SCI on at least nine occasions. Defendant Beard,, the only dentist named as a defendant, apparently examined or treated Wilson on seven occasions. Moreover, Dr. Beard has expressed his professional opinion that there is “no medical evidence to substantiate Wilson’s claims that his symptoms are urgent or life threatening in nature. Rather, Wilson’s symptoms can be remedied through preventive and corrective treatment.” Although it is also clear that there was no dentist at SCI at different periods of time, it cannot be said that Wilson thereby suffered deliberate indifference to a serious medical need. Moreover, the delay in treatment promised in response to Wilson’s November 1999 informal complaint was not deliberate on the part of any defendant. Indeed, that delay is perhaps more appropriately attributed to Wilson’s improper resort to the prison grievance procedures. Finally, to the extent that Wilson complains of the adequacy of the treatment provided him, such claims amount to no more than dental malpractice which does not give rise to a constitutional violation. See Estelle, 429 U.S. at 106; Westlake, 537 F.2d at 860 n. 5.
The remaining arguments on appeal are patently without merit.
Accordingly, the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217403/ | ORDER
Shanda P. Gains appeals the sentence imposed upon her convictions. The parties have expressly waived oral argument, and upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
A grand jury indicted Gains on one count of marijuana distribution (Count 1), two counts of cocaine distribution (Counts 2 and 4), and one count of unauthorized acquisition of food stamp coupons (Count 5). On May 23, 2002, she pleaded guilty pursuant to a written plea agreement to Counts 2 and 5, in exchange for the dismissal of the other counts. The plea agreement specified in a non-binding provision that Gains’s base offense level for the cocaine charge was 12. The presentence investigation report, however, attributed responsibility for 9.6 grams of marijuana and 5.3 grams of cocaine to Gains, converted the cocaine quantity into a marijuana equivalent, and used the drug equivalency table in the sentencing guidelines commentary to set the base offense level for the cocaine charge at 10. See USSG § 2D1.1 comment, (nn.6 and 10). The government objected to the conversion, arguing that the lowest base offense level set forth in the guidelines for cocaine was 12. See 2Dl.l(c) (drug quantity table). The district court sustained the objection at the sentencing hearing on October 18, 2002, and held that the guideline took precedence over the commentary. Gains was sentenced to 6 months in prison, 3 years of supervised release, and a $200 special assessment. Judgment was entered October 24, 2002.
In her timely appeal, Gains argues that the district court incorrectly calculated her base offense level for the cocaine charge because the plain language of USSG § 2D1.1, comment, (n.6) requires a drug other than marijuana to be converted into a marijuana equivalent when more than one drug is involved in the offense.
This court reviews a district court’s application of the Sentencing Guidelines de novo and its factual findings concerning a defendant’s role in an offense for clear error. United States v. Caseslorente, 220 F.3d 727, 734 (6th Cir.2000).
The district court properly concluded that the cocaine quantity should not be converted into a marijuana equivalent. To hold otherwise would have required the district court to give more weight to the guidelines commentary, where the drug equivalency table and conversion rule are found, than to a guideline. See USSG § 2Dl.l(c) and comment, (nn. 6 and 10). Guidelines commentary is not authoritative where “it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guide*594line.” Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Guideline § 2Dl.l(c) clearly establishes that the lowest base offense level for any quantity of cocaine is 12. See United States v. Davis, 981 F.2d 906, 911 (6th Cir.1992). Application of the commentary in Application Notes 6 and 10 to the instant case produces a lower base level of 10 which is inconsistent with the guideline. Thus, the commentary is not authoritative in this case and the use of the guideline must prevail. Furthermore, use of the commentary would produce a result inconsistent with the Guidelines’ policy of “proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity.” USSG Ch.l, Pt.A, intro, comment. 3. If Gains’s offense level were calculated pursuant to the commentary and the cocaine were converted to a marijuana equivalent, she would receive a lower base offense level and thus a lower sentence than another defendant who had possessed a lesser amount of cocaine, but had not possessed any marijuana. An interpretation of the Guidelines which produces an absurd result such as this must be avoided. See United States v. Hayter Oil Co., Inc., 51 F.3d 1265, 1274 (6th Cir.1995) (citing United States v. Jennings, 945 F.2d 129, 136 (6th Cir.1991), modified, 966 F.2d 184 (6th Cir.1992)).
Accordingly, the district court’s judgment is affirmed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217404/ | ORDER
Jerry Randall Roalin appeals his conviction and sentence. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
After a grand jury indicted Roalin and others on firearms charges, Roalin pleaded guilty pursuant to a written plea agreement to two counts of aiding and abetting the receipt of stolen firearms, in violation of 18 U.S.C. §§ 922(j), 924(a), and 2, and one count of possessing firearms as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Roalin and the government agreed prior to sentencing that Roalin should be held accountable for no more than seven firearms. Based in part on this stipulation, the district court at sentencing determined that Roalin’s total offense level was 21, his criminal history category was VI, and the resulting sentencing guidelines range of imprisonment was 77 to 96 months. Roalin was then sentenced to 77 months in prison and 3 years of supervised release.
Roalin’s court-appointed counsel has filed an appellate brief with this court and also a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After a review of the entire record, counsel was of the opinion that there were no meritorious grounds for appeal, but nonetheless raised the issues of whether a factual basis existed for the plea, whether Roalin could contest his sentence, and whether the district court wrongfully failed to depart downward. Roalin has not filed a response, despite being advised of his right to do so.
Upon review, we conclude that counsel’s motion to withdraw must be granted as counsel has filed an acceptable Anders brief.
Counsel first challenges the sufficiency of the factual basis. Evidence is sufficient to support a conviction if any rational trier of fact would accept the evidence as establishing each essential element of the crime. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The elements for aiding and abetting are: “(1) an act by a defendant which contributes to the execution of a crime; and (2) the intent to aid in its commission.” United States v. Lowery, 60 F.3d 1199, 1202 (6th Cir.1995); see also 18 U.S.C. § 2. The elements for receiving stolen firearms under § 922(j) are: 1) the receipt or possession of stolen firearms; 2) which moved or were shipped in interstate commerce before or after being stolen; and 3) knowledge or reasonable cause to believe that they were stolen. See 18 U.S.C. § 922(j); United States v. Hodges, 315 F.3d 794, 799 (7th Cir.2003) (citations omitted). The elements for possessing a firearm as a convicted felon under § 922(g) are: 1) the defendant had a previous felony conviction; 2) the defendant possessed a firearm; and 3) the firearm had traveled in or affected interstate commerce. United States v. Kincaide, 145 F.3d 771, 782 (6th Cir.1998).
The government’s description of the offenses in conjunction with Roalin’s admissions provided sufficient evidence. At the plea hearing, the government stated that witnesses “would have testified that on November 28th of 2000 and again on November 29th of 2000, that Mr. Jerry Hard-castle and Mr. David White stole firearms in Smith, Trousdale and Macon Counties in Tennessee and transported them to Al*596len County[, Kentucky] where they were sold to Mr. Roalin” and that the proof would be that “Mr. Roalin knew and had reasonable cause to believe that those weapons were, in fact stolen based on the fact that Mr. Hardcastle and Mr. White are basically thieves, and secondly, that the price he paid for those guns was less than minimal.” In response, Roalin admitted that he was a convicted felon, that he knew or had reasonable cause to believe that the guns were stolen, and that he had possessed the firearms. Thus, each element for each offense has been established.
Counsel next raised the issue of whether Roalin’s sentence was proper and whether his sentence could be reviewed in light of his failure to raise objections at sentencing.
Where a criminal defendant fails to object below, the defendant must show that the sentencing error was plain before this court may exercise its discretion to correct the error. See Fed.R.Crim.P. 52(b); United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998). A defendant may only appeal his sentence on the grounds that: 1) it was imposed in violation of law; 2) it was imposed as a result of an incorrect application of the Sentencing Guidelines; 3) it represented an upward departure from the applicable guideline range; or 4) it is a plainly unreasonable sentence imposed for an offense for which there is no sentencing guideline. See 18 U.S.C. § 3742(a); United States v. Lively, 20 F.3d 193, 196-97 (6th Cir.1994). No error occurred as Roalin’s sentence falls within none of these categories.
Counsel last posits whether the district court wrongfully failed to depart downward. At sentencing, counsel requested a sentence at the low end of the guidelines range, “unless there’s any other reason to sentence [Roalin] lower than that.” As previously mentioned, the court sentenced Roalin within the range and did not depart downward.
No error occurred. First, we decline to construe counsel’s remark as a motion for a downward departure because he did not offer any reason for departing. Second, even if counsel’s remark were so construed, the court’s failure to depart would not be cognizable on appeal because the district court properly sentenced Roalin and was aware that it had discretion to depart from the guidelines range. See 18 U.S.C. § 3742(a); United States v. Brannon, 7 F.3d 516, 521-22 (6th Cir.1993); United States v. Davis, 919 F.2d 1181, 1187 (6th Cir.1990).
Accordingly, counsel’s motion to withdraw is granted, and the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217406/ | ORDER
Joseph Webster, a pro se Michigan prisoner, appeals a district court judgment dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Seeking monetary relief, Webster sued Michael J. Crowley, warden of the Baraga Maximum Correctional Facility; parole board member Margie McNutt; and inspector Ezrow. Webster alleged that his food was being poisoned and that he was being assaulted by other prisoners. Webster contends that he requested protection from prison officials as a result of the assaults. The district court dismissed McNutt as a defendant as the parole board had no jurisdiction regarding a prisoner’s safety. Crowley was dismissed as a defendant because he was not served with the summons and the complaint. Inspector Ezrow subsequently moved for summary judgment. Upon de novo review of a magistrate judge’s report, the district court granted judgment to Ezrow.
In his timely appeal, Webster argues that the district court erred by concluding that Ezrow had no knowledge that he sought protective custody from other inmates. Webster contends that there is no evidence to establish that Ezrow lacked knowledge of Webster’s request for protection.
The district court’s judgment is reviewed do novo. See Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir.1999). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c).
Ezrow was entitled to summary judgment as a matter of law. Webster alleged that he was twice assaulted by other inmates on June 6, 2000. He claimed that he made written letters of complaint on January 27, 2002, April 29, 2002, and May 1, 2002, to request protection from specific prisoners. Webster contends that the de*600fendants were deliberately indifferent to the serious threat of assault. Webster claimed that the first incident occurred on June 6, 2000, after prison employees directed prison kitchen workers to poison his lunch. Webster claimed that after he ate the lunch, he became dizzy and nauseated. Webster stated that he left the dining hall, only to be followed back to his housing unit by three prisoners who worked in the kitchen. Webster alleged that one of the kitchen workers struck him in the face with a sharp object while the other two prisoners watched. Webster claimed that he went to the bubble area of the prison and requested protection from custodial staff. Webster identified his attackers, who were gang members, by name and number. Not one of the named defendants was in the bubble area.
Webster alleged that the second assault occurred during dinner. Webster again claimed that he felt nauseated and dizzy after consuming his food. Webster stated that he was struck from behind by a kitchen worker before losing consciousness. Webster claimed that he regained consciousness only to find two prisoners still attacking him with a sharp object. Prison staff then arrived to break up the fight. Webster claimed that he again requested protection.
In his motion for summary judgment, Ezrow presented evidence that Webster had not given him prior notice of a specific threat from other prisoners. Although Webster contends that he was assaulted and poisoned, he never indicated to Ezrow that he needed protection from other prisoners prior to either assault.
Ezrow met with Webster in May 2000 regarding a letter of complaint that Webster had written to Crowley. The letter did not seek protection from other inmates. Instead, Webster alleged that prison staff had sexually assaulted him by putting human waste in his food. Webster further complained that the staff was putting human waste everywhere in his cell and shower, that they were yelling at him in his cell through an intercom twenty-four hours a day, that they were threatening to assault him, and that they were forcing him to cause a disturbance. After his investigation, Ezrow concluded that Webster’s allegations were unfounded and recommended that Webster be referred to medical services for psychological intervention. Webster had made similar allegations in the past. Those allegations were investigated by the Michigan state police and were determined to be unfounded.
Webster contends that Ezrow’s failure to provide him protection violated his Eighth Amendment rights. In order to constitute a claim under the Eighth Amendment, the offending conduct must reflect an unnecessary and wanton infliction of pain. See Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). Such a claim has both an objective and subjective component. Wilson v. Seiter, 501 U.S. 294, 297-303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). The objective component of an Eighth Amendment claim requires that the pain be serious. Id. at 298, 111 S.Ct. 2321. The Supreme Court addressed the objective component in Rhodes v. Chapman, 452 U.S. 337, 346-49, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). The subjective component, in contrast, constitutes the deliberate indifference standard of Estelle v. Gamble, 429 U.S. 97, 101-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). See Wilson, 501 U.S. at 302, 111 S.Ct. 2321. The subjective component provides that the offending conduct be wanton.
The record establishes that Ezrow was not involved in investigating Webster’s complaint regarding the assaults. Ezrow’s *601responsibility concerned investigating Webster’s allegation of poisoning. Webster did not inform Ezrow that he feared physical attacks from inmates and Webster fails to show how Ezrow had any prior knowledge that he needed protection from specific inmates. As Webster failed to present evidence that Ezrow even knew about the assaults, Webster failed to establish that Ezrow’s conduct was wanton.
Accordingly, we affirm the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217408/ | ORDER
Scottie R. Hurst, a pro se Tennessee prisoner, appeals the district court order granting summary judgment to the defendant in this action brought under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Seeking monetary and injunctive relief, Hurst sued Knox County, Tennessee, Chief Jailer Alex Warren in July 2000. Hurst alleged that Warren violated his constitutional rights by removing Hurst’s legal materials from his cell in December 1998, January and February 1999, and February 2000. Hurst also alleged that Warren refused to permit him to go before a judge to take out warrants against Knox County officials. Both parties moved for summary judgment. The district court granted summary judgment to Warren, holding that Tennessee’s one-year statute of limitations barred any claim arising in 1998 or 1999, and that Hurst failed to show that he exhausted his administrative remedies with respect to the February 2000 incident.
In his timely appeal, Hurst argues that: (1) the statute of limitations did not bar his claims because he filed a motion in the district court on January 8, 1999; (2) he exhausted his administrative remedies; and (3) the district court judge was biased against him.
This court reviews an order granting summary judgment de novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c).
Upon review, we conclude that the district court properly granted summary judgment to Warren. First, the statute of limitations barred any claim that arose before July 1999 because the statute of limitations for actions arising in Tennessee and brought under the federal civil rights statutes is one year. See Tenn.Code Ann. § 28—3—104(a)(3); Merriweather v. City of Memphis, 107 F.3d 396, 398 (6th Cir.1997). The statute of limitations begins to run when the aggrieved party knows or has reason to know of the injury that is the basis of his action. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir.1996). In his complaint, Hurst alleged that Warren took his legal materials on four occasions: December 1998, January 1999, February 1999, and February 2000. Because his first three claims accrued more than one year before he filed his district court complaint in July 2000, those claims are barred.
Hurst’s argument that the statute of limitations is not a bar because he filed a motion in the district court in January 1999 is without merit. Hurst submitted an unfiled copy of a motion for a temporary restraining order and a note addressed to a Mr. Hawkins asking that the motion be filed with the magistrate judge. First, the *605allegations in Hurst’s January 8, 1999, motion and his July 5, 2000, complaint were different. Hurst’s motion referred to access to the law library while his complaint referred to the seizure of his legal papers. Second, the motion was never filed in the district court, a fact Hurst was or should have been aware of. Hurst’s claims from 1998 and 1999 were barred by the statute of limitations because he did not file his district court complaint until July 2000.
We also agree with the district court that Hurst failed to demonstrate that he exhausted his administrative remedies for the claim that arose in 2000. See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). In his complaint, Hurst alleged that he had filed grievances, but he did not attach copies of any grievances or responses or describe the administrative proceedings. See Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir.2000); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998) (per curiam). In later pleadings, Hurst attached copies of grievances he filed from February to May 1999, and notes addressed to Warren from April through June 2000. The notes from 2000 were not filed on the jail’s grievance forms and bore no indication that they were processed as grievances. Thus, Hurst did not establish that he exhausted his administrative remedies with respect to the one claim that was not barred by the statute of limitations.
Hurst’s attempts to excuse his lack of proof are unavailing. Hurst alleged that he filed grievances but did not always get a response and that it was pointless for him to file grievances because the jail’s grievance procedure was ineffective. The record shows that the jail had a grievance policy, Hurst knew how to use it, and he had received responses. Hurst’s decision to abandon the grievance procedure did not substitute for proof of exhaustion. See Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir.1999).
Finally, Hurst’s argument that the district court judge was biased against him is without merit. Hurst waived this issue by failing to raise it in the district court. See Enertech Elec., Inc. v. Mahoning County Comm’rs, 85 F.3d 257, 261 (6th Cir.1996).
For the foregoing reasons, we affirm the district court’s decision to grant summary judgment to Warren. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217411/ | KRUPANSKY, Circuit Judge.
Plaintiff-Appellant, George Sexton (“Sexton”), has challenged the district court’s dismissal of his products liability claim, pursuant to Fed.R.Civ.P. 41(b), against defendants-appellees, Uniroyal Chemical Company and R.T. Vanderbilt Company (collectively “Uniroyal,” or “Company”), for his failure to provide the required expert witness reports under the district court’s scheduling order and Fed. R.Civ.P. 26(a)(2)(B). The appellant has maintained that while he failed to comply with Rule 26(a) he, nevertheless, provided information through interrogatories regarding the proposed testimony and qual*616ifications of his expert witnesses. Appellant has also asserted that defendants suffered no harm in having to respond to vague interrogatory responses rather than the necessary, complete expert witness reports, appellant contends the court should have imposed a less precipitous sanction. For the reasons considered below, this court finds no abuse of discretion in the district court’s order of dismissal and, therefore, affirms the district court’s sanction.
This products liability suit arose out of appellant’s alleged exposure to chemicals manufactured by Uniroyal and Vanderbilt and used in the rubber industry where Sexton worked for a number of years. Appellant has alleged that he developed sensitivity to these products, including an allergic reaction which forced him to leave his employment. Sexton avers that the chemicals used in his employment failed to carry adequate warnings and presented an unreasonable danger.
Appellant had filed a previous lawsuit on April 8, 1996 (No. 3:96-CV-551 and 552), averring claims identical to those in the case sub judice. During discovery proceedings in that action, appellant failed to provide defendants with the required, Rule 26, information on plaintiffs expert witness Dr. Tidence Lane Prince. Consequently on March 15, 1999, the district court granted appellees’ motion to disallow Prince’s testimony as a sanction for plaintiffs failure to comply with the reporting requirements of Rule 26(a)(2)(B) and the court’s scheduling order.1 J.A. at 82. Recognizing the difficulty of proving his products liability case without Dr. Prince’s testimony, plaintiff moved for a voluntary dismissal of that action under Fed.R.Civ.P. 41(a)(2), which the court granted without prejudice on April 27, 1999. J.A. 88, 85.
On April 25, 2000, the appellant commenced the instant action in state court and appellees removed to the district court. The district court scheduled appellant’s case for trial on May 21, 2001. The court’s scheduling order, entered August 4, 2000, imposed a full and complete disclosure of expert testimony in conformity with Rule 26(a) by February 20, 2001, ninety calendar-days prior to trial. J.A. at *61730. Appellees submitted their list of expert witnesses together with their written reports, as required, on February 20, 2001. J.A. at 87. The appellant ignored the court’s scheduling order and failed to file a list of his expert witnesses or their written reports.
Nevertheless, in a letter to defendants on March 19, 2001, Sexton announced that he would present Dr. Tidence L. Prince, Dr. Carl Zenz and Mr. Louis Beliczky at trial as independent experts. J.A. at 80-81. The only information appellant provided appellees regarding these three expert witnesses, in the case sub judice, was incorporated into a vague response to interrogatories submitted to appellees on September 11, 2000, wherein the appellant stated that the experts “will rely upon the facts revealed in the pleadings, motions, responses, depositions, and discovery papers, along with their attachments and exhibits produced in this cause in combination with the medical and scientific literature available in the field, and their own education, training and experiences.” J.A. at 102. Consequently, on April 13, 2001, appellees filed a motion to exclude the testimony of witnesses Prince and Beliczky. J.A. at 86. Appellant filed a motion for continuance on April 24, 2001. J.A. at 91.
The district court conducted a hearing on appellees’ motion to exclude on May 11, 2001. J.A. at 123. At the hearing, Sexton admitted his failure to comply with the “clear” requirements of Rule 26. Appellant also conceded that he could not confirm the experts’ testimony. Finally, plaintiff also acknowledged, during the hearing, that disallowing testimony from Prince and Beliczky “would be tantamount to dismissal.” J.A. at 124.
Appropriately, on May 23, 2001 the district court dismissed appellant’s complaint, pursuant to Rule 41(b), for failure to prosecute and for failure to comply with the court’s scheduling order. J.A. at 20. Appellant filed this timely appeal.
Jurisdiction is proper under 28 U.S.C. § 1291, which generally grants appellate jurisdiction to the courts of appeals of all final decisions of the district courts of the United States.
This court reviews a district court’s decision to dismiss pursuant to Rule 41(b) for an abuse of discretion. King v. Ford Motor Co., 209 F.3d at 900; Little v. Yeutter, 984 F.2d 160, 162 (6th Cir.1993); Regional Refuse Systems, Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-55 (6th Cir.1988) (observing that “if a party has the ability to comply with a discovery order and does not, dismissal is not an abuse of discretion”). An abuse of discretion occurs when “(1) the district court’s decision is based on an erroneous conclusion of law, (2) the district court’s findings are clearly erroneous, or (3) the district court’s decision is clearly unreasonable, arbitrary or fanciful.” Beil v. Lakewood Eng’g & Mfg. Co., 15 F.3d 546, 551 (6th Cir.1994).
The district court dismissed appellant’s claim, pursuant to Fed.R.Civ.P. 41(b), for failure to prosecute and to comply with the court’s Rule 26(a)(2)(B) order governing the disclosure of expert testimony during discovery. In pertinent part, Rule 26 provides that:
Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case ... be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the *618opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Fed.R.Civ.P. 26(a)(2)(B) (emphasis added). Rule 26(a)(2)(C) directs that:
These disclosures shall be made at the times and in the sequence directed by the court.
Fed.R.Civ.P. 26(a)(2)(C).
This circuit has recognized that Rule 41(b) provides courts the authority, as in the instant case, to dismiss a claim for “failure of the plaintiff to prosecute or to comply with these rules or any order of the court.” Harmon v. CSX Transp., Inc., 110 F.3d 364, 366-67 (6th Cir.1997); see also Bendix Aviation Corp. v. Glass, 32 F.R.D. 375 (E.D.Pa.1961), aff'd, 314 F.2d 944, cert. denied 375 U.S. 817, 84 S.Ct. 51, 11 L.Ed.2d 52 (1963) (observing that “ ‘failure to prosecute’ under the rule does not mean that the plaintiff must have taken any positive steps to delay the trial or prevent it from being reached by operation of the regular machinery of the court. It is quite sufficient if he does nothing, knowing that until something is done there will be no trial.”). “This measure [41(b) ] is available to the district court as a tool to effect ‘management of its docket and avoidance of unnecessary burdens on the tax-supported courts [and] opposing parties ... A district court must be given substantial discretion in serving these tasks.’” Knoll v. A.T.T. Co., 176 F.3d at 363. By repeatedly refusing to abide by the court’s Rule 26(a) order, the testimony of Prince and Beliczky was subject to exclusion. As appellant’s counsel acknowledged, such a court-imposed sanction would be tantamount to dismissal of the instant action.
In the context of a dismissal pursuant to Rule 41(b), this circuit has relied for guidance on the four factors applied in Regional Refuse Systems, Inc., 842 F.2d at 153-55: (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal was ordered. See Mulbah v. Detroit Bd. of Ed., 261 F.3d 586, 589 (6th Cir.2001); Stough v. Mayville Community Schs., 138 F.3d 612, 615 (6th Cir.1998); Harmon, 110 F.3d at 366-67.2 In the instant case, the *619record demonstrates to this court the presence of all four Regional Refuse factors in support of the district court’s Rule 41(b) dismissal for failure to prosecute and to comply with the court’s discovery orders.
With regard to the first element of the Regional Refuse analysis, the record sustains appellant’s dilatory and contumacious conduct. Even though appellant sought to present the same expert witnesses as in his first suit, initiated some four years earlier, he again intentionally disregarded the district court’s scheduling order. Second, as the district court noted in its dismissal, the appellant’s continued refusal to comply with the district court’s order enforcing Rule 26 extended even beyond the May 21 trial date, despite the court’s clear admonition to the appellant during the May 11 exclusion hearing. This circuit has recognized dismissal as a sanction for failing to comply with discovery because it “accomplishes the dual purpose of punishing the offending party and deterring similar litigants from such misconduct in the future.” Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir.1995) (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976)).
The appellant has offered no justification for his repeated refusal to provide the necessary expert witness report from Dr. Prince. In the plaintiffs previous suit, on March 15, 1999, the district court granted appellees’ motion to disallow the testimony of Dr. Prince for the same delinquency that compelled the disallowance of Prince’s testimony in the instant case, namely, appellant’s failure to comply with Rule 26(a)(2)(B). Appellant has claimed that Mr. Beliczky, his second expert witness, could not participate in discovery because he was being treated for depression. Plaintiff knew he intended to use Beliczky prior to the dismissal of the first suit in 1999 and yet. did not seek an extension of time from the court prior to the expiration of the February 2001 deadline. Nor did appellant provide any indication that Mr. Beliczky was ill at the time the expert witness reports were due in the current action. The plaintiffs pointed disregard of the court’s scheduling order demonstrated the contumacy necessary to justify dismissal of the appellant’s suit.
The appellant has relied upon this court’s decision in Freeland v. Amigo, 103 F.3d 1271 (6th Cir.1997), to sustain his contention that the district court’s dismissal amounted to an abuse of discretion. In Freeland, the plaintiff failed to provide a list of expert witnesses and exhibits in a final pretrial statement. The district court excluded the witness testimony which resulted in an effective dismissal under Fed. R.Civ.P. 37. This court concluded the record did not clearly demonstrate willful delay or contumacious conduct. Id. at 1277. However, in Freeland the court relied on several facts that distinguish it from the instant case. First, the pretrial order in Freeland allowed the parties to waive the filing dates by oral agreement. Id at 1278. In the instant case, no such flexibility existed in the court’s scheduling order which admonished the parties to observe that “[ijnitial disclosures, disclosure of expert testimony and pretrial disclosures must be made in conformity with Rule 26(a). Witnesses not disclosed in conformity with Rule 26(a)(3) may not be used at trial without first obtaining leave of court to use them based upon good cause shown for not disclosing them earlier.” J.A. at 30. Second, the plaintiff in Freeland did file his pretrial statement, albeit late. In the instant case, the appellant never provided the required expert disclosures, exhibiting *620■willful disregard of the court’s scheduling order and the strictures of Rule 26(a). Third, unlike the instant case, the Free-land defendant’s own considerable dilatory conduct served to mitigate the sanctions this court viewed as appropriate. Id. at 1277.
Sexton’s repeated unwillingness to provide defendants with the required qualifications, testimony and written reports of its expert witnesses directly offended the second instruction of Regional Refuse and unfairly prejudiced defendants’ ability to serve court and client. Appellant’s conduct was therefore not harmless. Contrary to appellant’s contention, Rule 26(a)(2)(B) does not allow answers to interrogatories to substitute for an expert witness report. Nor did the appellant’s response to interrogatories meet the Rule 26 mandate for a “complete statement of all opinions to be expressed and the basis and reasons therefor,” for supporting data or for witness qualifications. Fed.R.Civ.P. 26(a)(2)(B).
Throughout his previous action and the instant litigation, appellant received numerous warnings that his continued dilatory conduct would lead to exclusion of his expert witnesses and dismissal of his suit. Voluntary dismissal of his earlier action resulted from his failure to comply with Rule 26 as it related to Dr. Prince’s testimony in that action. Moreover, defendants’ motion to exclude expert testimony and the court’s scheduled hearing of May 11 placed plaintiff on notice that the court would consider dismissal of his claim. Plaintiffs counsel admitted during the hearing that exclusion of Dr. Prince and Mr. Beliczky would effectively force a dismissal of the case.3 Finally, the record demonstrated that plaintiff was placed on notice regarding his repeated dilatory conduct.
Finally, in accord with Regional Refuse, the district court reasonably concluded that plaintiff’s repeated, intentional contumacious conduct warranted dismissal of the suit rather than a lesser sanction. This circuit has determined that where dismissal is the sanction of last resort, a district court does not abuse its discretion by dismissing a case when other sanctions might be workable as long as dismissal is supported by the facts. Beil v. Lakewood Eng’g & Mfg. Co., 15 F.3d at 552. The record in the instant case reflects that the court permitted appellant to voluntarily dismiss his previous lawsuit in lieu of a court dismissal for the same contumacious conduct exhibited here. The result of those proceedings fairly put the appellant on notice that sanctions would result from his failure to comply with Rule 26(a). Moreover, the voluntary dismissal was a less drastic sanction for appellant’s initial, but obviously unyielding disregard for the district court’s discovery requirements.
Additionally, this circuit has determined that the failure of the district court to impose or make explicit its consideration of lesser sanctions is not fatal. See Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1079 (6th Cir.1990); Harmon, 110 F.3d at 367 (insisting that “the imposition of lesser sanctions is & factor in our review, not a sine qua non for affirmance”).
Appellant’s counsel has urged this court to consider the hardship afforded his client should the district court’s dismissal be affirmed. This court, in Harmon, has expressed a reluctance, “to uphold the dis*621missal of a case merely to discipline an errant attorney because such a sanction deprives the client of his day in court.” Harmon, 110 F.3d at 367. Nevertheless, the Harmon court’s hesitation in denying the plaintiff his “day in court” did not restrain it from concluding that no abuse of discretion infected the district court’s dismissal of appellant’s claim as a means of sanctioning the attorney’s bad faith and contumacious conduct. See also Allen v. Murph, 194 F.3d 722, 724 (6th Cir.1999) (noting that “[t]he Supreme Court has expressly rejected a suggestion previously made by this court that ‘it would be inappropriate to penalize [the clients] for the omissions of their attorney:’ on the contrary, the Court held, clients must ‘be held accountable for the acts and omissions of their chosen counsel’ ”) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)); Link v. Wabash R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (explaining that a party ultimately assumes responsibility for the actions of its freely selected agent); Knoll, 176 F.3d at 366. In addition, any sanction short of dismissal would permit the repeatedly recalcitrant appellant to benefit from his tactical obstruction. Finally, another discovery order would only needlessly multiply the proceedings. The clear record of delay in the instant case compels this court, following Harmon, to affirm the district court’s sanction of dismissal.
Moreover, as this court has discussed, in the analogous context of excusable neglect, appellant has not necessarily forfeited his “day in court” solely by reason of his lawyer’s misconduct, when Sexton has a legal basis to initiate an action for professional malpractice against his willfully dilatory counsel. See Allen, 194 F.3d at 729 (Krupansky, concurring) (discussing petitioners’ opportunity to timely initiate an action for professional malpractice against their dilatory counsel who provided initial discovery three months after it was due, failed to provide further requested discovery, and failed to respond to the government’s motion to strike, even after the district court sua sponte granted an extension of time).
For the foregoing reasons, this court affirms the determination of the district court.
. The court may exercise sanctions for failure to report expert witness testimony under Fed. R.Civ.P. 37(c)(1), which states in pertinent part:
A party that without substantial justification fails to disclose information required by Rule 26(a) ... is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing or on a motion any witness or information not so disclosed.
This circuit has established that Rule 37(c)(1) mandates that a trial court sanction a party for discovery violations in connection with Rule 26(a) unless the violations were harmless or were substantially justified. Plaintiff has not demonstrated that his failure to abide by Rule 26(a) was either harmless or justified. See Knoll v. A.T.T. Co., 176 F.3d 359, 363 (6th Cir.1999); Salgado v. General Motors Corp., 150 F.3d 735, 742 n. 6 (7th Cir.1998) (holding that Rule 37(c)(1) puts teeth into Rule 26 and that "the district court acted well within its discretion when it decided to impose the sanction of precluding the witnesses from testifying” since "the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless”); Ames v. Van Dyne, No. 95-3376, 1996 WL 662899 at *4 (6th Cir. Nov.13, 1996) (unpublished) (observing that "Rule 37 is written in mandatory terms and is designed to provide a strong inducement for disclosure of Rule 26(a) material”); King v. Ford Motor Co., 209 F.3d 886, 900 (6th Cir.2000), cert. denied, 531 U.S. 960, 121 S.Ct. 386, 148 L.Ed.2d 298 (2000) (affirming the district corut’s exclusion of expert testimony under Rule 37(c)(1) for failure to comply with strictures of Rule 26(a)). The appellant’s counsel acknowledged in the May 11 exclusion hearing that excluding Dr. Prince and Mr. Beliczky was tantamount to dismissing the case sub judice, as these witnesses were essential to the plaintiff's demonstration of proof.
. In their brief, appellees have mistakenly relied on a series of unpublished opinions from this circuit to validate their legal conclusions. Vaughn v. City of Lebanon, No. 99-6670, 2001 WL 966279 (6th Cir. Aug.16, 2001); Bowe v. Consolidated Rail Corp., No. 99-4091, 2000 WL 1434584 (6th Cir. Sept.19, 2000); Vance v. United States, No. 98-5488, 1999 WL 455435 (6th Cir. June 25, 1999); Rowev. Case Equipment Corp., No. 95-6315, 1997 WL 2647 (6th Cir. Jan 2, 1997). In each of these disputes, the court granted defendant’s motion for summary judgment as sanction for plaintiff’s discovery violations. The courts applied this sanction when the plaintiff exhibited willful disregard for, or contumacious behavior toward the discovery rules and the conduct was not harmless but resulted in prejudice to the adversarial party. This two prong assessment is effectively the rule under Regional Refuse, when involving, as it does in the case sub judice, willful, contumacious conduct that is not harmless. Harris v. Call-wood, 844 F.2d 1254, 1256 (6th Cir.1988); Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1079 (6th Cir.1990). However, the legal precedent relied on by the appellees adhere only in summary judgment dispositions. As the court in Vance pointed out, when the question of sanctions for dilatory conduct arises under either Rule 37(b) or Rule 41(b), *619the court should apply the Regional Refuse test. Vance, 1999 WL 455435, *6.
. MR. SEALS: Your Honor, I appreciate the court’s dilemma and ours as well. A ruling in this case disallowing us or not granting us a continuance-
THE COURT: Would be tantamount to dismissal. You can’t go without an expert. I know that. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217413/ | ORDER
Bobby N. Lambdin, through counsel, appeals a district court judgment that affirmed the Commissioner’s denial of his claim for social security benefits. The parties have expressly waived oral argument pursuant to Rule 34(j)(3), Rules of the Sixth Circuit, and we agree that oral argument is not necessary. Fed. R.App. P. 34(a).
Lambdin filed his application for benefits in January 2000, claiming that he could not work because of back pain. At the time of his hearing before an Administrative Law Judge (“ALJ”), Lambdin was fifty-three years old, had a sixth-grade education, and had past work experience as a coal miner. Lambdin testified that he could not read, except for some “little words.” He stated that he understood some road signs. The record shows that the ALJ assumed that Lambdin had personally completed the necessary forms for applying for benefits.
Following a review of the medical and other evidence, the ALJ found that Lamb-din was disabled. The Appeals Council reopened the ALJ’s decision on its own motion, noting several “discrepancies” between the record evidence and the ALJ’s decision. Lambdin’s lay representative objected to reopening the decision and argued that Lambdin fit into the grids because he was functionally illiterate.
Reversing the decision of the ALJ, the Appeals Council concluded that Lambdin was not disabled.
The district court granted the Commissioner’s motion for summary judgment, relying in part on the ALJ’s assumption that Lambdin possessed the level of academic functioning necessary to complete the application for social security benefits.
In his timely appeal, Lambdin argues that the Commissioner’s ultimate decision is not supported by substantial evidence. He also moves for a remand under sentence six of 42 U.S.C. § 405(g).
The standard of review that applies to Lambdin’s case was articulated by this court in Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679 (6th Cir.1989):
Judicial review of the [Commissioner]’s decision is limited to determining whether the [Commissionerj’s findings are supported by substantial evidence and whether the [Commissioner] employed the proper legal standards in reaching her conclusion. Substantial ev*625idence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The scope of our review is limited to an examination of the record only. We do not review the evidence de novo, make credibility determinations nor weigh the evidence.
Id. at 681 (citations omitted). If supported by substantial evidence, the Commissioner’s decision must be affirmed, even if a reviewing court would decide the matter differently, see Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.1983), and even if the claimant’s position is also supported by substantial evidence. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986). In cases like this one, where the Appeals Council has disagreed with the ALJ’s determination, the issue for review is whether the Appeals Council’s findings—not those of the ALJ—are supported by substantial evidence. Id. at 546.
Upon review, we conclude that there is not substantial evidence to support the Appeals Council’s decision. Under the Social Security Regulations:
Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.
20 C.F.R. § 404.1564(b)(1). The record evidence reveals that Lambdin stopped attending school during the seventh grade. Cf. Skinner v. Secretary of Health & Human Servs., 902 F.2d 447, 450-51 (6th Cir.1990) (concluding that a claimant who reads below the third-grade level and whose math computational skills place him in the first percentile of his age population is illiterate). The ALJ found Lambdin to be a credible witness, and his testimony indicates that he may meet the criteria of § 404.1564(b)(1). Although the Appeals Council found “discrepancies” in Lamb-din’s testimony, it relied upon the cold record developed by the ALJ to make credibility assessments. Clearly the ALJ had an advantage in making these findings.
Upon review, we conclude that the Commissioner failed to develop the record adequately regarding Lambdin’s claim of illiteracy. Of particular concern to us was the district court’s need to rely on Lamb-din’s having filled out the complex forms needed to apply for benefits. It appears to us from the record that the application may have actually been completed by someone on Lambdin’s behalf. We are also of the view that the district court may have considered the literacy test to be more restrictive than some of the easelaw indicates is appropriate.
There are a few special circumstances— when a claimant is without counsel, not capable of presenting an effective case, and unfamiliar with hearing procedures— where the ALJ has a special duty to develop the record. Lashley v. Secretary of Health and Human Servs., 708 F.2d 1048, 1051-52 (6th Cir.1983). Lambdin was not represented by counsel before the ALJ, and it is unclear whether he was able to present an effective case. Although whether the Commissioner failed in its duty in this case is a close question, this record cries out for clarification.
Accordingly, the judgment of the district court is REVERSED and the case is REMANDED with instructions that the district court remand it to the Commissioner for further proceedings not inconsistent with this decision. Lambdin’s motion for a remand is denied as moot. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217414/ | ORDER
Albert Harper appeals his judgment of conviction and sentence. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
In April 2001, Harper pleaded guilty to conspiring to possess with intent to distribute cocaine, cocaine base, and marijuana in violation of 21 U.S.C. § 846. In February 2002, the court held a sentencing hearing, granted Harper a five-level downward departure and sentenced Harper to 78 months of imprisonment. Harper has filed a timely appeal.
On appeal, Harper’s counsel has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and submits the following issue for review: whether trial counsel rendered ineffective assistance so as to render Harper’s guilty plea and waiver of appeal rights involuntary. Harper has not responded to counsel’s motion.
Upon review, we conclude that Harper’s ineffective assistance claim is not renewable on direct appeal. Harper appears to allege that counsel rendered ineffective assistance during the plea process, resulting in an involuntary guilty plea and waiver of his appeal rights. Generally, ineffective assistance of counsel claims are not cognizable on direct appeal because the record is inadequate to permit review; therefore they are more properly raised in a motion to vacate under 28 U.S.C. § 2255; United States v. Barrow, 118 F.3d 482, 494 (6th Cir.1997); United States v. Tucker, 90 F.3d 1135, 1143 (6th Cir.1996). Here, Harper has not identified any specific portion of the record to support a claim that trial counsel rendered ineffective assistance. Thus, it would appear that any claim of ineffective assistance would depend on matters outside of the record. Therefore, we believe that the present record is inadequate to permit this court to properly analyze Harper’s ineffective assistance claim.
We have reviewed the record, however, and have discovered no other error warranting reversal of Harper’s conviction or sentence.
Accordingly, we grant counsel’s motion to withdraw and affirm the judgment of conviction and sentence. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217415/ | ORDER
This is an appeal from a district court judgment denying a motion for injunctive relief. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
On March 29, 2002, Tennessee inmate Benny L. Linder moved in federal court for injunctive relief directed to the conditions of his confinement. On August 21, 2002, the district court summarily denied the motion on jurisdictional grounds. Linder then moved for an extension of time in which to file an appeal. On September 6, 2002, the district court denied the motion for additional time again because it lacked jurisdiction due to Linder’s pending appeal. Nevertheless, Linder did file a timely appeal and he has filed a brief in this court without benefit of counsel.
The district court concluded that it lacked subject matter jurisdiction over the motion for injunctive relief as well as the motion for extension of time. This court reviews de novo a district court’s dismissal of an action for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Hedgepeth v. Tennessee, 215 F.3d 608, 611 (6th Cir.2000).
Linder filed a civil rights action in 2002 against the Governor of Tennessee (Don Sundquist) and numerous prison officials claiming that the defendants had deprived (and were continuing to deprive) Linder of his First and Eighth Amendment rights. The district court eventually dismissed Linder’s complaint, pursuant to 42 U.S.C. § 1997e, because he did not establish that he had exhausted his administrative remedies. Linder took a timely appeal from this decision. Linder then filed a motion for injunctive relief, raising essentially the same First and Eighth Amendment concerns, in the district court during the pendency of the direct appeal. The district court observed that it lacked jurisdiction to consider the motion and ordered the matter dismissed on August 21, 2002. Linder’s appeal from this order, and the ensuing order of September 19, 2002, denying Linder’s request for more time in which to file an appeal, is presently before the court. (A panel of this court affirmed the underlying district court decision to dismiss the underlying action on September 18, 2002. Linder v. Sundquist, No. 02-5303, 2002 WL 31096730, 46 Fed.Appx. 343 (6th Cir. Sept. 18, 2002) (order).)
The instant appeal lacks merit. In Pittock v. Otis Elevator Co., 8 F.3d 325 (6th *628Cir.1993), a panel of this court noted that, “[a]s a general rule, a district court no longer has jurisdiction over an action as soon as a party files a notice of appeal, and at that point the appellate court assumes jurisdiction over the matter.” Id. at 327. The panel also noted that there are exceptions to the general rule because “the district court retains jurisdiction when the appeal is untimely, presents issues that the appellate court had previously decided in the same case, or is from a non-final, nonappealable order.” Id. None of these exceptions apply to Linder’s motion for injunctive relief. The district court correctly determined that it lacked jurisdiction to consider Linder’s request for relief.
Accordingly, the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217416/ | ORDER
Walter Hillman, an Ohio plaintiff, appeals a district court judgment granting summary judgment to the defendant in his amended age discrimination action brought under Ohio Rev.Code §§ 4112.01, 4112.02, and 4112.99. Claiming diversity jurisdiction under 28 U.S.C. § 1332(a)(1), the defendant removed the case to the United States District Court for the Northern District of Ohio. The parties have expressly waived oral argument, and this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Hillman began working for the defendant, Safeco Insurance Company (“Safe-co”), in 1997 when Safeco acquired Hill-man’s previous employer, American States Insurance Company (“American States”). Hillman worked for American States from 1983 as a claims representative, and while working for American States, his supervisors gave him adequate performance reviews.
After Safeco took over American States, it instituted its own procedures, which included closing most of the central field offices and having claims representatives work from their homes using company ears and equipment. Once those procedures were in place, Safeco assigned Hill-man to handling automobile damage claims in the field. Hillman worked as a field claims representative until he resigned on September 25, 2001, at which time he was earning $46,500 per year—an increase from the $42,019 he earned at the time Safeco acquired American States.
Hillman claims that Safeco discriminated against him based on his age, intentionally inflicted severe emotional distress, and wrongfully discharged him from his position as a claims representative. Spe*629cifically, Hillman claims that Safeco’s treatment of him by, among other things, increasing his workload, placing him on a performance plan ostensibly to improve his job performance, and making disparaging age-based comments, forced him to resign his position with the company. At the time of his resignation from Safeco, he was fifty-four years old. The district court granted Safeco’s motion for summary judgment, and Hillman filed this timely appeal.
Upon review, we conclude that the district court properly granted summary judgment for the defendant. No genuine issue exists as to any material fact and the defendant is entitled to judgment as a matter of law. Strouss v. Michigan Dep’t of Corr., 250 F.3d 336, 341 (6th Cir.2001). Hillman neither shows direct evidence of age discrimination, nor establishes a prima facie case of age discrimination. See Byrnes v. LCI Communication Holdings Co., 77 Ohio St.3d 125, 672 N.E.2d 145, 148 (1996); Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 664 N.E.2d 1272, 1279 (1996); Barker v. Scovill, Inc., Schrader Bellows Div., 6 Ohio St.3d 146, 451 N.E.2d 807, 808-09 (1983); Ahern v. Ameritech Corp., 137 Ohio App.3d 754, 739 N.E.2d 1184, 1194-95 (2000). Further, for the reasons that Hillman cannot prove his claim of age discrimination, his state-law claims for intentional infliction or emotional distress and wrongful discharge similarly fail. See Miller v. Premier Indus. Corp., 136 Ohio App.3d 662, 737 N.E.2d 594, 603 (2000); Mayo v. Kenwood County Club, Inc., 134 Ohio App.3d 336, 731 N.E.2d 190, 197 (1999); Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 677 N.E.2d 308, 321 (1997).
Accordingly, we affirm the district court’s judgment. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217417/ | ORDER
John O. Gillenwater, a pro se Florida resident, appeals a district court judgment upon a jury’s verdict for defendant entered following trial in this civil action filed under the district court’s diversity of citizenship jurisdiction, 28 U.S.C. § 1332. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
*630Plaintiff filed his complaint in the district court alleging, inter aha, that defendant Siddens intentionally or negligently shot him in 1998. The case proceeded to a jury trial in July 2002. After the district court instructed the jury, the jury returned a verdict in favor of the defendant, and a judgment was entered accordingly. Plaintiff filed a timely notice of appeal. On appeal, plaintiff asserts that the district court erred: (1) in instructing the jury regarding defendant’s right to use deadly force in the defense of a third person; and (2) in denying him a rebuttal witness. Defendant responds that plaintiff’s claims on appeal cannot be reviewed without a trial transcript and are otherwise without merit.
An appeal having been brought by appellant pro se, and this Court having found that a transcript is necessary for the appeal, it is hereby ordered that the present appeal is dismissed without prejudice to reinstatement. If, within thirty days, appellant provides this Court with: (1) the trial transcript; or (2) proof that he has ordered the trial transcript, the appeal will be reinstated. See Gayle v. Walker, 148 F.3d 214 (2nd Cir.1998).
For the forgoing reasons, the district court’s judgment is affirmed. See Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217498/ | ORDER
LINN, Circuit Judge.
The Office of Personnel Management moves to waive Fed. Cir. R. 27(f) and to dismiss Lillian B. Ruiz’s petition for review for lack of jurisdiction. Ruiz opposes. OPM replies.*
The Merit Systems Protection Board affirmed OPM’s denial of Ruiz’s application for a disability retirement annuity. Ruiz petitioned this court for review.
Although we generally have subject matter jurisdiction over a petition for review of a Board affirmance of an OPM disability benefit denial, our review is limited by statute. See 5 U.S.C. § 8347(d)(2). In her brief, Ruiz challenges only the factual determination that she did not show that she is disabled for purposes of receiving disability benefits. Pursuant to 5 U.S.C. § 8347 and Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985), this court has no jurisdiction to review factual issues. See Lindahl, 470 U.S. at 791 (“the factual underpinnings of [5 U.S.C.] § 8347 disability determinations may not be judicially reviewed”); Anthony v. Office of Personnel Management, 58 F.3d 620, 626 (Fed.Cir.1995) (holding this court’s review of disability determinations limited to deciding whether there has been a substantial departure from important procedural rights or error of law; and precluded as to factual underpinnings).
Accordingly,
IT IS ORDERED THAT:
(1) OPM’s motion to waive Fed. Cir. R. 27(f) is granted.
(2) OPM’s motion to dismiss is granted.
(3) Each side shall bear its own costs.
OPM’s motion for an extension of time to file a reply is granted. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217420/ | OPINION
COLE, Circuit Judge.
Plaintiff-Appellants Janet Tomaskovich, Lauren Stayer, and Lisa Hulten (“Plaintiffs”) brought this action against Defendant-Appellee AT&T Wireless Services, Inc. (“AT&T”). In December of 1999, AT&T began a reorganization process that involved significant changes to its business model. As a result of this restructuring, many employees of AT&T were assigned new responsibilities, new clients, and new customer accounts. Plaintiffs were dissatisfied with their positions after the restructuring, and assert that the allocation of sales quotas and customer accounts favored male employees. Tomaskovich also contends that AT&T discriminated against her by awarding two separate post-reorganization promotions to other individuals. The plaintiffs filed a complaint alleging, among other things, sex discrimination in violation of Ohio Revised Code § 4112.02(A), age discrimination in violation of Ohio Revised Code § 4112.02(A), and breach of implied contract. The district court granted summary judgment in favor of the defendant.
We believe that the lengthy and thorough district court opinion granting summary judgment in favor of AT&T on all counts adequately explains the factual history relevant to this case and properly describes and applies the relevant law and legal standards. After conducting a de novo review, and independently researching and analyzing the issues presented, we believe that the district court opinion provides an articulate and exhaustive analysis, the repetition of which would be merely redundant. We therefore affirm the grant of summary judgment in favor of AT&T on all counts brought by the Plaintiffs for the reasons stated in the district court opinion.
Additionally, we note that we find no error in the decision of the district court to maintain a sealed record in this case. The district court is given broad discretion regarding the decision to seal records. See generally In re Boston Herald, Inc., 321 F.3d 174, 190 (1st Cir.2003). There is nothing in the record before us to indicate that this decision was an abuse of discretion, and the Plaintiffs cite to no legal authority to support the contention that the record should not be sealed.
We therefore AFFIRM the judgment of the district court granting summary judgment to AT&T on all of the Plaintiffs’ claims. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217422/ | PER CURIAM.
In this appeal, we are called upon to consider the denial of a writ of habeas corpus. Having had the benefit of oral argument and having carefully considered the record on appeal, the briefs of the parties, and the applicable law, we are not persuaded that the district court erred in denying a writ to the petitioner.
Because the reasoning which supports the denial of that writ of habeas corpus has been articulated by the district court, the issuance of a detailed written opinion by this court would be duplicative and serve no useful purpose.1 Accordingly, the judgment of the district court is affirmed upon the reasoning employed by that court in its Opinion and Order denying the writ of habeas corpus dated December 18, 2001.
. This court does remark, however, that the district court's reliance on its earlier decision in Hardaway v. Withrow, 147 F.Supp.2d 697 (E.D.Mich.2001), has been strengthened since that decision has since been affirmed by this court’s decision in Hardaway v. Withrow, 305 F.3d 558 (6th Cir.2002). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217423/ | ORDER
Pro se Michigan resident Larry Miller appeals a district court order that granted summary judgment in favor of the defendant, his employer. The case has been referred to this panel pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. We unanimously agree that oral argument is not needed. Fed. R.App. P. 34(a).
The grant of summary judgment for the General Motors Corporation is AFFIRMED for the reasons stated by the district court in the opinion entered on December 16, 2002. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217425/ | ORDER
Carl F. Young pleaded guilty to charges of conspiracy with intent to distribute and to distribute methamphetamine and possession of a firearm by a convicted felon. The district court sentenced Young to 188 months for the drug conspiracy offense and 46 months for the firearm offense, to run consecutively. Young appeals, claiming the court erred in its sentencing determination and that the government breached the plea agreement. For the reasons explained below, we reverse and remand.
BACKGROUND
On August 18, 1999, a grand jury indicted Young for conspiracy to possess with intent to distribute and to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 846. While Young was on *642pretrial release, he was arrested while in possession of a firearm. He was later indicted on March 8, 2000 in a second indictment for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and committing an offense while on pretrial release, in violation of 18 U.S.C. § 3147. Young pleaded guilty to conspiracy with intent to distribute and to distribute methamphetamine and possession of a firearm by a convicted felon. In exchange for Young’s guilty plea, the government promised, inter alia, to dismiss the § 3147 violation in the second indictment, recommend a sentence at the minimum level of the sentencing guidelines for all offenses, and apprise the court of the nature and extent of the acceptance of responsibility demonstrated by Young. Young pleaded guilty pursuant to the plea agreement on March 23, 2001.
The probation officer prepared a presentence investigation report (PSR) prior to sentencing. The PSR noted that Young’s adjusted offense level for the conspiracy charge was 36. The base offense level for the felon in possession charge was 20. Three offense levels were added to the possession charge pursuant to U.S.S.G. § 2J1.7 because Young committed the offense while he was on pretrial release. After denying the acceptance of responsibility reduction, the PSR determined that the two counts should be grouped pursuant to U.S.S.G. § 3D1.2(b). Under the grouping rules of the sentencing guidelines, the higher offense level applied, which was the adjusted offense level for the conspiracy conviction, 36. With a criminal history category of I, Young’s guideline range was 188 to 235 months. In addition, the PSR contended that the sentences for the two counts were to run consecutively based on 18 U.S.C. § 3147. This was not required.
The district court held a sentencing hearing on August 17, 2001. At the hearing, the government failed to recommend the low end of the guidelines and did not recommend a three level reduction for acceptance of responsibility as it had promised in the plea agreement. The district court sentenced Young to 188 months for the drug conspiracy offense and 46 months for the firearm offense, to run consecutively-
ANALYSIS
A Imposition of the Sentence
Young believes the district court erred in its sentencing determination for three reasons. He first maintains the court erred when it imposed his sentence for the firearm count to run consecutively with the sentence for the conspiracy count. Young next argues that the court failed to properly calculate his sentencing guidelines range. Finally, Young contends the dismissal of the § 3147 violation rendered the count impotent. The government agrees with Young’s first two arguments but disputes Young’s contention concerning the effect of the § 3147 dismissal.
We review a district court’s application of the sentencing guidelines de novo. United States v. Ellison, 113 F.3d 77, 79 (7th Cir.1997). However, Young failed to make objections to certain arguments he raises in this appeal, warranting plain error review. United States v. Wilson, 966 F.2d 243, 246-47 (7th Cir.1992). The applicable standard of review does not affect our conclusion as the government admits that the district court committed plain error in calculating Young’s sentence.
The parties both assert that the district court erred when it determined the sentences had to run consecutively. 18 U.S.C. § 3147 does not require that the sentence for the actual offense committed while on release run consecutively to all other sentences. However, § 3147 does require the *643sentence received as punishment for committing an offense while on release run consecutively to the other sentences; i.e., the amount of the sentence attributable solely to the sentencing enhancement must run consecutively to any other sentence.
The second mistake concerns the calculation of the guidelines range. The sentencing guidelines implement 18 U.S.C. § 3147 through U.S.S.G. § 2J1.7. The guidelines instruct that in order to comply with 18 U.S.C. § 3147, a sentencing court “should divide the sentence on the judgment form between the sentence attributable to the underlying offense and the sentence attributable to the enhancement. The court will have to ensure that the ‘total punishment’ (ie., the sentence for the offense committed while on release plus the sentence enhancement under 18 U.S.C. § 3147) is in accord with the guideline range for the offense committed while on release, as adjusted by the enhancement in this section.” U.S.S.G. § 2J1.7, Application Note 2.
As both parties point out, the district court had to determine the amount of the total sentence attributable to the underlying offense and the amount attributable to the sentencing enhancement. See United States v. Wilson, 966 F.2d 243, 249 (7th Cir.1992). The sentence for conspiracy should have been considered before the other sentences. Young had an adjusted offense level of 36 and a criminal history category of I, which put Young’s guidelines range between 188 to 235 months. As noted below, the government would be required by the plea agreement to recommend 188 months, the low end of the guidelines range.
Following this calculation, the court then should have determined the sentence for the felon in possession conviction. With an adjusted offense level of 20 and a criminal history category of I, Young’s guidelines range for the felon in possession conviction and the sentencing enhancement would be 33 to 41 months. The range for the felon in possession conviction without the enhancement would be 24 to 30 months. As both parties concluded, the government would have to recommend 24 months for the underlying felon in possession charge and 33 months for the total punishment, leaving the consecutive sentencing enhancement at 9 months.
As denoted above, the parties in this appeal are almost in complete agreement. At oral argument, the parties stated that the sole point of contention is the effect of the dismissal of the § 3147 violation. The court, per the plea agreement, dismissed this count. The question left remaining is how that dismissal should affect Young’s sentence. The result of this dismissal is relevant because without the effect of the § 3147 violation, the district court has complete discretion as to whether to run the sentences concurrently or consecutively.
Young argues that the government bargained away the effect of § 3147 in the plea agreement and the count did not apply to him. The government contends it did not intend to bargain away the § 3147 offense, citing the plea agreement. The problem lies in the fact that the plea agreement is ambiguous. The specific provisions in the plea agreement that address this issue cannot be reconciled.
When queried by the court at oral argument, both parties agreed that the best approach is to discuss and resolve the contradictory provisions of the plea agreement on remand. We agree.
B. Breach of the Plea Agreement
Young also believes he is entitled to specific performance of the plea agreement and he argues that the government *644breached the plea agreement. Whether a plea agreement has been breached is a question of law we review de novo. United States v. Williams, 102 F.3d 923, 927 (7th Cir.1996). Young admits he failed to properly preserve all his arguments, causing part of our review to be for plain error. United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000).
There are two instances of breach claimed by Young that we address.1 The first argument, subject to de novo review, is that the government failed to recommend the low end of the sentencing guidelines range. The government’s brief is silent on this point, for good reason. The seventh provision of the plea agreement plainly states “the government agrees to recommend a sentence at the minimum level of the applicable sentencing guidelines range for all offenses to which the defendant pleads guilty.” At the sentencing hearing, however, the government argued a “fair sentence” would be “234 months, and that’s the top range of the sentencing guidelines....” In addition, the government noted that “the benefit of falling into Category I and getting a sentence at the bottom of the range ... [was] inappropriate.”
We find it impossible to reconcile these statements with the unambiguous provision of the plea agreement. These statements were in direct contradiction to the plea agreement. Plea agreements must be scrupulously honored. Wilson v. Washington, 138 F.3d 647, 651 (7th Cir.1998) (quoting United States v. Cahill, 920 F.2d 421, 425 (7th Cir.1990)). Young’s plea agreement provides that the government “recommend a sentence at the minimum level of the applicable sentencing guidelines range for all offenses to which the defendant pleads guilty.” The failure to recommend the low end of the guideline range was a substantial breach of the plea agreement. On remand, the government shall abide by this provision.
Young also argues, though he failed to object at sentencing, that the prosecutor failed to recommend a sentence reduction for acceptance of responsibility on the felon in possession charge. Young seeks, and the government concedes it should recommend on remand, a three-level reduction for acceptance of responsibility. The plea agreement plainly provides that Young is entitled to a three-level reduction for acceptance of responsibility with respect to Count I of the 2000 indictment. We agree with both parties that the government recommend a three-level reduction for acceptance of responsibility in accordance with the plea agreement.
CONCLUSION
For the foregoing reasons, the district court’s judgment is VACATED and we REMAND this case to the district court for resentencing in accord with this opinion.
. Young also claims the government breached the plea agreement by failing to dismiss Count II of the 2000 indictment and failing to dismiss the notice filed pursuant to 21 U.S.C. § 851. The district court’s judgment clearly denotes that Count II, the § 3147 violation, "is dismissed on the motion of the United States.” With regard to the § 851 notice, Young admits the failure to dismiss the notice had no effect on his sentence since the statutory enhancement was not applied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217426/ | ORDER
Having failed in his motion to suppress crucial evidence, Robert Keith pleaded guilty to possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a)(1). He was sentenced to 84 *646months’ imprisonment and fined $100,000. Keith appeals his conviction and sentence, but his appointed attorney has moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), claiming that he is unable to identify a nonfrivolous issue for appeal. Keith responded to counsel’s motion, see Circuit Rule 51(b), and we confine our review of the record to the potential issues identified in counsel’s facially adequate brief and Keith’s response. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam).
Counsel first asserts that any argument challenging Keith’s conviction - including any argument that the court incorrectly denied Keith’s motion to suppress - would be frivolous because Keith entered into an unconditional, knowing, and voluntary plea of guilty, pursuant to a plea agreement, and the district judge fully complied with Federal Rule of Criminal Procedure 11 when accepting Keith’s plea. Having reviewed the transcript of the plea colloquy, we agree that the district court substantially complied with the requirements of Rule 11, and that Keith’s plea was knowing and voluntary.
Keith claims, however, that his plea was not unconditional, and that he reserved, or at least believed that he was reserving, his right to appeal the court’s denial of his motion to suppress. He points out that, as part of the negotiations over his plea agreement, the government agreed to remove the paragraph concerning waiver, under which Keith would have waived the right to appeal or otherwise attack his sentence. Keith says, however, that he believed that he was reserving his right to appeal not only his sentence but also any prior adverse decisions that led to his conviction. He quotes the judge’s explanation that by pleading guilty without the waiver paragraph, “you [Keith] would still retain any and all rights you would have to the [sic] either file a direct appeal of what happened here or to attempt to collaterally attack it through a petition for habeas corpus.” This shows, Keith argues, that the court shared his understanding that the plea agreement reserved all of his appeal rights, including his right to appeal the denial of his motion to suppress.
Rule 11(a)(2) allows a defendant, “[w]ith the approval of the court and the consent of the government, [to] enter a conditional plea of guilty ..., reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion.” Fed.R.Crim.P. 11(a)(2). Although the rule says that the reservation is to be in writing, we have upheld the validity of a conditional plea without such written reservation when it was sufficiently clear from the sentencing transcript or some other documentary material in the record that the guilty plea was conditional, and that it was entered into with the approval of the court and the assent of the government. See United States v. Markling, 7 F.3d 1309, 1313-14 (7th Cir.1993); United States v. Yasak, 884 F.2d 996, 999-1000 (7th Cir.1989).
The record in this case is more ambiguous than in Markling or Yasak. In each of those cases, although the right to appeal was not reserved in writing, the reservation was made explicitly and unambiguously in the oral proceedings, and specified the particular rulings over which the right to appeal was reserved. We find no such specificity in the transcript of Keith’s change-of-plea hearing, and we are therefore reluctant to say that he did in fact reserve the right to appeal the denial of his motion to suppress. However, we need not reach that question, because even if Keith had reserved that right to appeal, we nevertheless believe that any such chai*647lenge to the district court’s ruling would be frivolous.
Keith moved to suppress evidence found in his residence and in a garbage can on his property. The police discovered the garbage can during a search of a shed belonging both to Keith and to his son Nick. Nick consented to the search of the shed, but told the police the garbage can belonged exclusively to his father. The police nevertheless lifted a heavy tarp off of the garbage can and removed a blanket stuffed inside. They quickly noticed the smell of anhydrous ammonia, a chemical used in the manufacture of methamphetamine.
The police then asked Nick if they could speak with his father. When Nick went into the nearby trailer to wake up his father, the police followed Nick into the trailer’s kitchen, where they saw in plain view on the countertop a bag containing lithium batteries, which are also used to manufacture methamphetamine. The police asked Keith if he knew about the garbage can containing anhydrous ammonia, and Keith replied that he did not. After going outside with the police to look at the garbage can, Keith asked if he was under arrest. The police told him that he was not. They did ask him, however, if there might be other toxic chemicals on his property of which he was unaware. Expressing concern for the safety of his grandchild, Keith consented to a search of his trailer. The police found various items that are used to make methamphetamine, along with a coffee filter containing a white powdery substance and two plastic bags containing a methamphetamine mixture. Keith was then placed under arrest and, having been read his Miranda warnings, admitted to manufacturing and using methamphetamine.
At the hearing on the motion to suppress, Keith convinced the district court that Nick did not have authority to consent to the search of the garbage can. The court concluded that because the can was not only covered by a heavy tarp but also had a blanket stuffed inside of it, it was a closed container and thus removed from the scope of the general consent to search the shed. The court suppressed the anhydrous ammonia found in the can. Although Keith also argued that the materials found in the search of the trailer were “fruit of the poisonous tree,” the court concluded that under the circumstances, and especially given the police’s reassurance to Keith that he was not under arrest, Keith’s consent to the search of the trailer was voluntary.
We do not believe Keith could reasonably challenge the court’s decision not to suppress the methamphetamine discovered in the trailer. We believe the district court correctly concluded that his consent was voluntary, and that it broke the chain between the discovery of the anhydrous ammonia and the discovery of the methamphetamine. See United States v. Liss, 103 F.3d 617, 621 (7th Cir.1997) (consent to search not invalidated merely because request for consent had its origin in results of earlier, impermissible search).
We next consider whether Keith could raise any nonfiivolous issues concerning his sentence. Counsel and Keith both discuss the court’s decision to deny Keith a three-level reduction for acceptance of responsibility. Keith draws particular attention to the government’s failure to recommend a reduction as it had agreed to do as part of the plea agreement. But that agreement was conditioned on Keith’s not committing any bond violations, and Keith was later found to have both used and distributed methamphetamine while on pre-sentencing release. Therefore, not only was the court justified in denying the acceptance-of-responsibility *648reduction, see United States v. McDonald, 22 F.3d 139, 141-44 (drug use can justify court’s denial of aeceptance-of-responsibility level reduction), the government was also justified in opposing the reduction.
Next, Keith raises a potential issue concerning the amount of methamphetamine used to construct his sentence. The court found him responsible for between 50 and 200 grams of methamphetamine, only 5.9 grams of which was included in the charge to which he had pleaded guilty (possession with intent to distribute). The bulk of methamphetamine for which Keith was held responsible involved earlier episodes in which, according to the findings of the probation officer, Keith and his friends manufactured and shared methamphetamine among themselves. Keith insists that his lawyer should have challenged these inclusions. He cites our holding in United States v. Wyss, 147 F.3d 631, 632 (7th Cir.1998), that possession of illegal drugs for personal use should not be included in the relevant quantity in sentencing a defendant for possession with intent to distribute.
However, Keith did not merely possess additional drugs for his personal use, as was the case in Wyss. Rather, he assisted in an ongoing process of manufacturing and sharing those drugs. Having pleaded guilty to possession of methamphetamine with intent to distribute - that is, to share it, see United States v. Washington, 41 F.3d 917, 919 (4th Cir.1994) (sharing drugs with another constitutes “distribution” under 21 U.S.C. § 841(a)(1)) - it was clearly reasonable for the district court to conclude that the earlier manufacture and sharing were part of the same course of conduct, and thus to include the earlier quantities for purposes of sentencing.
Keith also identifies a potential ineffective-assistance claim. He acknowledges that such a claim is generally not appropriate for direct appeal, but argues that in his case the record supports the claim. See United States v. Schuh, 289 F.3d 968, 976 (7th Cir.2002). He suggests that his trial counsel’s ineffectiveness is shown by his failure to object to the drug quantities, and by his failure to properly explain to Keith the legal definition of “intent to distribute.” However, because the record does not indicate what explanation counsel gave to Keith as to the meaning of “intent to distribute,” and does not offer any hints as to why counsel might have chosen not to object to the drug-quantity determination, we do not believe that this claim would be appropriately raised on direct appeal.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217427/ | ORDER
Kenneth Richard Payne pleaded guilty to five counts of mail fraud and one count of money laundering. His plea agreement with the government reserved the question of the financial loss caused by his fraud for determination by the district court at the sentencing phase. At sentencing, the district court concluded that Payne’s criminal conduct caused losses of over $20 million. Based on this calculation, the district court sentenced Payne to 211 months’ imprisonment. Payne appeals, and we affirm.
I.
Kenneth Richard Payne was the founder and president of Heartland Financial Services, Inc. (“Heartland”), an investment and financial planning firm located in Indianapolis, Indiana. From 1991 until its closure in September 2000, Heartland sold various investment securities to more than 600 clients. As of January 1996, Payne managed most of the assets of Heartland as a classic Ponzi scheme. Payne and his subordinates received funds from investors by promoting certain investment packages and securities offered by the company, but the vast majority of these funds were never invested. Instead, most of the investors’ funds were deposited into an escrow bank account controlled by Heartland. The funds were then disbursed for the personal use of Payne and his colleagues, or to further the scheme by paying Heartland’s operating expenses, travel for investors, or artificial returns on investments.
On August 10, 2000, the Securities and Exchange Commission (“SEC”) filed a civil action to shut down Heartland’s business operations. Shortly thereafter, a receiver was appointed by the court to oversee the liquidation of Heartland’s inventory/assets and to make distributions to the company’s investors and creditors. On October 25, 2000, Payne was indicted for 11 counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 1342, and 20 counts of money laundering in violation of 18 U.S.C. §§ 1956(a)(l)(A)(i) and (2). He was then *650charged by information on January 7, 2002 with one count of money laundering in violation of 18 U.S.C. § 1957. Payne entered into a plea agreement with the government that same day, pursuant to Fed. R.Crim.P. 11(e)(1)(C), pleading guilty to counts 1 through 5 of the indictment (mail fraud) and to the single count information (money laundering). The plea agreement provided for a maximum of 262 months’ imprisonment, but reserved the question of financial loss to investors for determination by the district court at the sentencing phase, noting:
The parties dispute the amount of loss involved in this [case]. The defendant contends that the loss is more than 10 million dollars but less than 20 million dollars and that the increase should therefore be 15 levels pursuant to U.S.S.G. § 2Fl.l(b)(l)(P). The government contends that the amount of loss is $27,295,680.76 and that the offense level should therefore be increased by 16 levels pursuant to U.S.S.G. § 2Fl.l(b)(l)(Q).1
Vol. I, R4, 5 para. C.
On March 8, 2002, the district court conducted a hearing to ascertain the amount of loss caused by Payne’s scheme under U.S.S.G. § 2Fl.l(b) (1998).2 In support of its assertion that the loss caused by Payne was greater than $20 million, the government offered the testimony of Erica Gaffin, the certified public accountant hired by the receiver in the SEC civil action to reconstruct Heartland’s records/activities and recover assets. Ms. Gaffin reconstructed Heartland’s records from computer data base files, backup diskettes, actual investor files containing notes, letters and other papers, bank information obtained through subpoenas, and questionnaires completed by individual investors.3 After procuring this information, Ms. Gaffin and her accountants made a prehminary loss computation. Statements reflecting these preliminary calculations were then sent to each investor for verification. Investors were advised to contact Ms. Gaffin if there was a dispute in the computation. To calculate the aggregate loss amount, Ms. Gaffin, based on amounts derived from her audit, subtracted the total funds paid by Heartland to its investors from the total money received from investors. According to Ms. Gaffin, Heartland received $56,799,869.29 from all investors and paid out $33,813,215.71 to them, for a *651net loss of $22,986,153.58. She explained that these figures only reflected funds to and from investors and did not include any other monies paid out by Heartland. She also noted that her loss calculation would have been much higher had it been limited to investors who suffered a net loss. Finally, Ms. Gaffin testified that she was confident her calculations were true and accurate and consistent with accounting standards, stating “[biased on the information that we had, as well as the fact that we had sent statements out to the investors also for them to verify the numbers, I feel confident that our numbers are accurate.”4 In response, Payne argued, at both the loss and sentencing hearings, that including a number representing a margin of error in Gaffin’s calculations would further reduce the government’s loss figure below $20 million. The district court, however, ultimately disagreed with Payne’s margin of error theory, concluding that the loss caused by his criminal conduct exceeded $20 million. Based on this determination, the court sentenced Payne to 211 months’ imprisonment. Payne appeals.
II.
Payne makes two arguments on appeal. First, he argues that the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), required the government to prove the amount of loss caused by this his criminal conduct beyond a reasonable doubt. Second, he contends that the district court erred in not making independent findings regarding the accuracy and reliability of the evidence presented by the government at his loss hearing. We will briefly address each of these arguments.
At the outset, we note that Payne concedes he failed to challenge the district court’s use of the preponderance of the evidence standard in determining the amount of loss in this case. Having forfeited the issue, we review it on appeal only for plain error. United States v. Johnson, 289 F.3d 1034, 1041 (7th Cir.2002).5 Under this standard, a defendant must establish: (1) there was error; (2) the error was plain; (3) the error affected a substantial right; and (4) the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Arocho, 305 F.3d 627, 638 (7th Cir.2002).
Payne faces an uphill battle in asserting that the district court plainly erred in applying a preponderance of the evidence standard to calculate the amount of loss caused by his fraudulent conduct. It is well established that “during sentencing, the Government must prove the facts underlying a sentencing adjustment only by a preponderance of the evidence.” United States v. Brumfield, 301 F.3d 724, 730 (7th Cir.2002). Proof “by a preponderance of the evidence” requires a showing that some event or fact is “more likely than not.” United States v. Saulter, 60 F.3d 270, 280 (7th Cir.1995). This was the applicable standard of proof prior to Apprendi, see, e.g., United States v. Loscalzo, 18 F.3d 374, 386 (7th Cir.1994), and it remains the standard except where a sentencing factor increases the sentence above the statutory maximum penalty. Apprendi, *652530 U.S. at 490 (holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”); United States v. Knox, 301 F.3d 616, 620 (7th Cir.2002) (holding that “a particular sentence does not even implicate Apprendi unless it exceeds a default statutory maximum”); United States v. Partee, 301 F.3d 576, 578 (7th Cir.2002) (holding that “Apprendi only applies to sentences beyond the prescribed statutory maximum”).
Here, because Payne’s sentence does not exceed the statutory maximum for mail fraud (five years on five counts) and money laundering (ten years for one count),6 the holding of Apprendi is inapplicable.7 United States v. Lamarre, 248 F.3d 642, 650 (7th Cir.2001) (holding that defendant’s “sentence does not exceed the maximum term for bank fraud ... so Apprendi does not apply”). We, therefore, conclude that the district court did not plainly err in applying a preponderance of the evidence standard to calculate the amount of loss caused by the defendant’s criminal conduct.
We now turn to Payne’s second argument, that, even if the preponderance of the evidence standard applies, “the court should nonetheless find that the district court incorrectly applied the [Sentencing] Guidelines at the loss hearing by not independently assessing the reliability of Ms. Gaffin’s testimony.” A district court’s calculation of loss amount under the sentencing guidelines is a question of fact, which we review for clear error. United States v. Mantas, 274 F.3d 1127, 1131 (7th Cir.2001); United States v. Vivit, 214 F.3d 908, 914 (7th Cir.2000). A defendant appealing a loss calculation “carries the heavy burden of showing that the calculation was not only inaccurate, but also outside the realm of permissible computation.” Mantas, 274 F.3d at 1131. See also Vivit, 214 F.3d at 914 (holding that clear error will only be found “when we are ‘left with the definite and firm conviction that a mistake has been made” ’) (citation omitted). This is a burden the defendant simply cannot meet.
In this case, the district court concluded that “the preponderance of the evidence shows that a reasonable estimate of the loss attributable to Defendant Payne ... exceeds $20,000,000.” In reaching this determination, the court began by explaining that, consistent with this court’s holding in United States v. Lauer, 148 F.3d 766, 767-68 (7th Cir.1998), an argument could be made that the loss caused by Payne was actually in excess of $56 million because that was the amount placed at risk by his misappropriations. The court then noted that even under the more conservative “net loss formula,” which gives a criminal defendant credit for investor funds that are returned to other investors as false profits, see United States v. Holiusa, 13 F.3d 1043, 1046 (7th Cir.1994)), the loss caused by Payne would still be approximately $23 million.
*653In determining whether the district court’s calculation of loss was clearly erroneous, we begin by noting that “the valuation of loss ‘need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information.’ ” Vivit, 214 F.3d at 915 (quoting U.S.S.G. § 2F1.1 application note 9); see also United States v. Hassan, 211 F.3d 380, 383 (7th Cir.2000) (same). Moreover, in order “[t]o succeed on a claim that a sentencing court considered inaccurate information, a defendant must demonstrate that the information before the court was inaccurate and that the court relied on it.” United States v. Simpson, 8 F.3d 546, 552 (7th Cir.1993). This is something Payne does not even attempt to do. Instead, he argues that the district court’s calculation of loss is questionable because: (1) Ms. Gaffin “was never introduced or qualified as an expert”; and (2) the government did not introduce the evidence relied upon by Gaffin in her testimony. These arguments are wholly without merit. As we have repeatedly emphasized, the Federal Rules of Evidence do not apply at sentencing hearings “and the judge may consider information that would not be admissible at trial, including uncorroborated hearsay.” United States v. Martin, 287 F.3d 609, 618 (7th Cir.2002). All that is required is that the information bear “sufficient indicia of reliability to support its probable accuracy.” United States v. Smith, 280 F.3d 807, 810 (7th Cir.2002). Because neither of the defendant’s arguments calls into question the reliability of Ms. Gaffin’s testimony, they provide no basis for reversing the district court.8
Furthermore, contrary to Payne’s assertions on appeal, the district court thoroughly analyzed the reliability of the loss evidence presented by the government, and concluded that Ms. Gaffin’s forensic accounting firm had undertaken “a very vigorous and detailed approach” and arrived at “reasonably precise and accurate loss figures” following “laborious efforts.” In rejecting Payne’s argument that an appropriate margin of error might lower the loss calculation to less than $20 million, the court noted that such a theory “disregards the fact that this accounting firm is well experienced at these forensic accounting projects ... [and] had many more sources of information than would ordinarily be available”-i.e., bank records from the institutions used by Heartland; various types of investor records; documentation regarding the company’s income and expenditures; “extensive contact with [defrauded] investors to verify information”; and the assistance of the company’s former bookkeeper “with the compilation of all ... information.” Given the reliability of this information, the court concluded that any margin of error would understate rather than overstate the loss caused by the defendant’s fraudulent conduct.
Given the foregoing, we conclude that the district court’s calculation of loss was not clearly erroneous.
III.
For the reasons noted herein, the district court’s decision is AFFIRMED.
. A loss computation of greater than $10 million but less than $20 million subjected the defendant to a sentencing range of 168 to 210 months. A loss computation in excess of $20 million resulted in a sentencing range of 188 to 235 months.
. The parties stipulated that the applicable sentencing guideline was the 1998 version of U.S.S.G. § 2F1.1. Ordinarily, the sentencing guidelines in effect at the time of sentencing are to be considered. U.S.S.G. § 1B1.11(a) (2002). Effective November 1, 2001, § 2F1.1 was deleted and instead incorporated in revised U.S.S.G. § 2B1.1. See U.S.S.G. Supp. App. C, amend. 617, 139-152 (2002). However, the current version of § 2B1.1 cannot be applied retroactively if doing so would violate the Ex Post Facto Clause of the federal Constitution-i.e., if applying the current version would produce a more detrimental result than applying the version in effect at the time of the commission of the offense. U.S.S.G. § 1B1.11(b)(1) (2002). See also United States v. Kosmel, 272 F.3d 501, 507 (7th Cir.2001). In such situations, the Sentencing Guidelines Manual in effect on the date of the offense must be applied in its entirety. U.S.S.G. § 1B1.11(b)(2) (2002). This appears to be the reason for the district court’s use of, and the parties' stipulation to the use of, the 1998 Sentencing Guidelines. In the absence of any argument to the contrary, we will not disturb this determination. United States v. Schaefer, 291 F.3d 932, 936 n. 1 (7th Cir.2002).
. Gaffin testified that these sources provided "all the data [she] needed to accurately make [the loss] computations.”
. According to Gaffin, the aggregate amount of funds left unresolved from the audit was no more than $40,000 and involved only 15 investors.
. The government argues that the defendant waived this issue, thus foreclosing appellate review. United States v. Rand Motors, 305 F.3d 770, 773 (7th Cir.2002). Having carefully reviewed the record, we are not satisfied that the defendant intentionally relinquished or abandoned this issue. Id.
. Thus, the statutory maximum for all six counts would have been 420 months’ imprisonment.
. The defendant contends that the district court’s loss calculation dramatically increased his sentencing range. We disagree. As noted supra, the defendant stipulated that his criminal conduct caused a loss to investors of between $10 to $20 million; subjecting him to a sentencing range of 168 to 210 months. Thus, the top end of the sentencing range stipulated to by the defendant is just one month under the sentence he actually received from the district court (211 months’ imprisonment).
. We also note that the defendant had the opportunity to question Gaffin's qualifications at sentencing, as well as the evidentiary summary submitted by the government in connection with her testimony, but declined to do so. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217430/ | ORDER
The only issue on this appeal is whether the district court correctly applied a 2-point obstruction of justice enhancement under U.S.S.G. § 3C1.1. We review cle novo whether the court made the appropriate findings to support the enhancement, while its underlying findings of fact are reviewed only for clear error. United States v. Owens, 308 F.3d 791, 794 (7th Cir.2002).
Ordinarily, a challenge to an obstruction enhancement rests on a claim that no obstruction actually occurred. When the enhancement is based on a claim that a defendant intentionally lied in a material manner during court testimony under oath, the usual defense is that lies were never in fact presented. But this case is a bit different: the defendant concedes that she lied, but she alleges that her lies must be excused because she made them while “her capacity to perceive and relate the truth was diminished.”
Julie Skow was indicted in March of 2001 for, among other things, possessing a precursor chemical, pseudoephedrine, which is used to make methamphetamine. She was free on bond while the charges were pending, but in May 2001 a pretrial services officer sought to revoke Skew’s bond because she tested positive for using methamphetamine, contrary to her pledge not to do so while on release status awaiting trial. A hearing on the matter (which *661as it turned out was joined with Show’s motion to suppress evidence) was held on May 22, 2001. And at this hearing, Skow told a bunch of fibs which formed the basis for the obstruction enhancement a year later when she pled guilty to one of the “pseudoephedrine” charges against her.
Skow’s lies during the May 2001 hearing covered a lot of ground. Although analysis of a drug sweat patch she was required to wear showed that Skow ingested methamphetamine, she explained that she had not used the drug but tested positive only because she was having sex during the time with her boyfriend, who was a user. But a toxicologist at the chemical lab reported that the amount of tainted semen required to make the kind of positive reading Skow registered would have been impossible for her boyfriend, or any human being, to produce.
On a number of points, Skow directly contradicted her pretrial services officer, Tim Easker, when he reported what she had told him about her drug use. If she was telling the truth on these points, Easker would have been lying through his teeth when he reported the conversation to the court at the hearing.
Finally, Skow also clearly lied at the hearing when she testified about the details of a search at her home which, inappropriately named for her, was located in Luck, Wisconsin.
At sentencing, Skow offered, as we said, a “diminished capacity” defense to excuse her lies at the detention/suppression hearing, and she points to events after the hearing to bolster her claim. Skow was remanded to custody at the conclusion of the hearing, and a week later her attorney filed a motion to determine her competency. The court granted the motion, and in August, based on a report from a federal medical facility, it found that Skow was not competent to stand trial.
A second report, 5 months later, found that she was competent, and the proceedings resumed. She resolved the charges against her by pleading guilty to one of the counts in the indictment, and the others were dismissed. At sentencing, with the obstruction enhancement in place, Skow’s guideline range was 30-37 months. She got 30. Without the enhancement, her range would have been 24-30 months. So, despite the fact that even if she’s correct in contending that the enhancement should not have been applied, she could still get the same sentence if we return the case to the district court for a do-over. Nevertheless, we soldier on.
Skow argues on appeal, as she did before the district court, that her false testimony at the hearing was not willful—that she could not have intended to lie because she suffered from a diminished mental capacity when she lied at the hearing.
First, as to burden of proof, a point we were concerned about during oral argument, the government, by seeking the enhancement, has the obligation to prove that it should be applied. United States v. Ewing, 129 F.3d 430, 434 (7th Cir.1997). And its burden is only that of a preponderance of the evidence, it is not “beyond a reasonable doubt.” United States v. Ebbole, 917 F.2d 1495 (7th Cir.1990).
A § 3C1.1 enhancement can be ordered whenever the preponderance of the evidence establishes that (1) a defendant provided false testimony under oath; (2) the false testimony was material; and (3) the defendant acted willfully, as opposed to acting out of confusion, mistake, or a faulty memory. United States v. Griffin, 310 F.3d 1017, 1023 (7th Cir.2002).
The gist of the defendant’s present argument is that it was impossible for her to have acted “willfully” if she had a diminished mental capacity when she gave her *662false testimony at the May 2001 hearing. To accept this argument, trial judges would have to excuse all defendants with a diminished mental capacity from the obligation to testify truthfully even if it was clear, under all the circumstances, that they seemed to know what they were doing. Looking at the totality of her testimony at the hearing, it seems clear that Skow knew what she was doing, for she only denied the existence of facts that would have moved the judge to revoke her bond and remand her to custody while her case was pending. That she denied absolutely all the incriminating evidence against her, but told the “truth” about everything else, supports the district court’s conclusion that she acted willfully when she told her lies despite the fact that she may have had a diminished capacity. Hers was not the conduct of a confused or mistaken person. She also pointedly denied all the evidence that supported the legality of the search of her home. She followed, rather perfectly, a course to distance herself from anything connecting her to the incriminating evidence found in her home. If Skow was suffering from a madness, it was a madness with a method.
On top of this, the doctor who said she had a diminished mental condition at the May 2001 hearing did not, or could not, say that the condition caused Skow to provide false testimony. In fact, the doctor stated, in a supplemental report, “Finally, I continue to be unable to provide an opinion regarding Ms. Skew’s specific motives for her testimony in May 2001. Her statements are consistent with the diagnoses previously provided, but other causes for her testimony, such as drug intoxication or self-serving interests cannot be completely ruled out.”
Upon this record, we conclude that the district court did not err when it found, at the government’s request by a preponderance of the evidence, that Skow acted willfully when she testified falsely about so many things during the May 2001 hearing. The obstruction enhancement, therefore, will not be vacated.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217556/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM.
Kamil A. Mesays appeals the district court’s order dismissing his civil rights action. We have reviewed the record and *167find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Mesays v. Ashcroft, No. CA-02-3436-DKC (D. Md. filed Feb. 4, 2003 & entered Feb. 5, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217431/ | *663ORDER
In January 1996 Harvey Wing was convicted of arson in violation of 18 U.S.C. § 844(i). The district court later sentenced him to 48 months’ incarceration and three years’ supervised release. This court affirmed Wing’s conviction in January 1997. See United States v. Wing, 104 F.3d 986 (7th Cir.1997). In August 2001 he filed a petition for a writ of error coram nobis under the All Writs Act, 28 U.S.C. § 1651(a), asking the district court to nullify his conviction. The court, however, denied his petition because he was still in custody. See Owens v. Boyd, 235 F.3d 356, 360 (7th Cir.2000). After completing his term of supervised release, Wing filed a second coram nobis request attacking his conviction, which the district court denied.
Wing now asserts that the district court erred in denying his petition, but we do not agree. A writ of coram nobis is an extraordinary remedy, one granted only under compelling circumstances, United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954); United States v. Keane, 852 F.2d 199, 202 (7th Cir.1988), and is limited to former prisoners who seek to escape the collateral civil consequences of wrongful conviction, Godoski v. United States, 304 F.3d 761, 762 (7th Cir.2002). Wing’s grounds for challenging his conviction are patently frivolous. His only intelligible argument is that the magistrate judge did not have the authority to preside over his arraignment, but he is wrong-28 U.S.C. § 636(b)(1)(A) and Local Rule 72.1 of the Western District of Wisconsin permit magistrate judges to arraign criminal defendants. See also Gomez v. United States, 490 U.S. 858, 868 n. 16, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (noting that Committee Report listed postindictment arraignment as a criminal pretrial matter handled by magistrates). Moreover, an arraignment error is a technical irregularity that does not warrant reversing a conviction unless it is raised before trial, Garland v. Washington, 232 U.S. 642, 646, 34 S.Ct. 456, 58 L.Ed. 772 (1914); Fed.R.Crim.P. 10 advisory committee’s note 3, which Wing failed to do.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217433/ | ORDER
On April 23, 2002, defendant Stephen Wolvin pleaded guilty to a charge of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). Wolvin’s plea was conditioned upon his being able to pursue an appeal on the constitutionality of this statute. The district court sentenced Wolvin to 27 months in prison. Wolvin now challenges the constitutionality of the felon-in-possession statute, claiming that the statute exceeds congressional authority under the Commerce Clause. Because the constitutionality of 18 U.S.C. § 922(g)(1) is well settled in the Seventh Circuit, we affirm.
I.
In March 2001, Stephen Wolvin placed a telephone call to Bureau of Alcohol, Tobacco, and Firearms (ATF) Special Agent William Temple. Wolvin informed Temple that he suspected Marquette County, Wisconsin, law enforcement officers of taking several of Wolvin’s guns while he was briefly jailed in July 1991. Fearing that Wolvin might visit some sort of retribution upon the officers, Temple contacted Wolvin’s state probation agent, Valerie Parsons.
A few days later, Parsons arrived at work to find a copy of a flier prepared by Wolvin stuck on her door. On the flier were a photograph of a developmentally disabled girl whom. Wolvin had been charged with sexually assaulting1 and a *668photograph of one of Wolvin’s missing guns. It also contained text accusing local law enforcement agents of framing Wolvin on the sexual assault, blaming the agents for the disappearance of his guns and suggesting that ATF would be investigating and rectifying these claims. That same day, Parsons and members of the Marquette County Sheriff’s Department found Wolvin in the Marquette County Courthouse distributing his fliers and took him into custody.
When Wolvin was booked at the Marquette County jail, one round of ammunition was found on his person. A search of Wolvin’s car revealed four more rounds, and a search of his house 63 additional rounds of ammunition.2 ATF conducted an “interstate nexus check” on the ammunition and found that the rounds had been manufactured variously in Illinois, Minnesota, Arkansas, Missouri, South Africa and China.
A grand jury returned an indictment against Wolvin for three counts of being a felon in possession of ammunition in violation of 18 U.S.C. 922(g)(1).3 Wolvin entered into a plea agreement, under which he pleaded guilty to one count of the indictment and reserved his right to appeal the constitutionality of the statute, Fed. R.Crim.P. 11(a)(2).
II.
We review de novo the constitutionality of a federal statute. United States v. Wilson, 73 F.3d 675, 678 (7th Cir.1995). However, as Wolvin concedes, “[tjhis Court has clearly and recently stated its position on the constitutionality of 18 U.S.C. § 922(g) under the Commerce Clause.” Appellant’s Reply Br. at 1 (citing inter alia United States v. Lemons, 302 F.3d 769 (7th Cir.2002), cert. denied, — U.S. -, 123 S.Ct. 642, 154 L.Ed.2d 523 (2002)). Our prior decisions are controlling, and, only as a panel, we may not overrule Circuit precedent. United States v. Walton, 255 F.3d 437, 443 (7th Cir.2001); cf. United States v. Carlos-Colmenares, 253 F.3d 276, 277 (7th Cir.2001) (overruling a precedent, after a 7th Cir. R. 40(e) circulation of the overruling opinion to all active members of the court, on the ground that all other circuits that have since considered the same issue have come to a contrary conclusion).
Wolvin argues that his ammunition’s crossing of state lines at some undetermined time prior to his purely local possession of the ammunition when he was detained provides an insufficient nexus to interstate commerce to bring the possession within the authority of Congress under the Commerce Clause. Wolvin’s argument is based primarily on three Supreme Court cases. The first and most important of these is United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, the Supreme Court found § 922(q), the Gun Free School Zones Act of 1990, to be outside the bounds of Congress’s Commerce Clause authority because it “neither regulate[d] a commercial activity nor contain[ed] a requirement that the possession be connected in any way to interstate commerce.” *669Id. at 551, 115 S.Ct. 1624. The Supreme Court examined the limits of Commerce Clause authority again in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). In Morrison, the Court overturned a part of the Violence Against Women Act that provided a federal civil remedy for the victims of gender-motivated violence, stating that Congress may not “regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Id. at 617, 120 S.Ct. 1740. The third case Wolvin relies on is Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). In Jones, the Supreme Court construed a federal arson statute to apply only to property currently used in commerce or in an activity affecting commerce. Id. at 859, 120 S.Ct. 1904. The Court imposed this construction reasoning that a broader reading of the statute would raise grave and doubtful constitutional questions about its constitutionality in light of Lopez. Id. at 857-58, 120 S.Ct. 1904.
The law in this Circuit, however, is clear. See, e.g., Lemons, 802 F.3d 769; United States v. Mitchell, 299 F.3d 632 (2002), cert. denied, — U.S. -, 123 S.Ct. 908, 154 L.Ed.2d 817 (2003); United States v. Wesela, 223 F.3d 656 (2000), cert. denied, 531 U.S. 1174, 121 S.Ct. 1145, 148 L.Ed.2d 1008 (2001). As we mentioned in Lemons, 302 F.3d at 772, the Supreme Court found notable in Lopez the absence of a jurisdictional element in the Gun Free School Zones Act statute, 514 U.S. at 561, 115 S.Ct. 1624. As we mentioned in Mitchell, 299 F.3d at 634, the Supreme Court made a similar observation about the offending portion of the Violence Against Women Act, noting further that “Lopez makes clear” that such a jurisdictional element would have lent support to the constitutionality of the Act. Morrison, 529 U.S. at 613, 120 S.Ct. 1740. The felon-in-possession statute, on the other hand, has a jurisdictional element that has been considered by the Supreme Court in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), and Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), the latter case holding that only a minimal nexus with interstate commerce satisfies the interstate commerce requirement of the felon-in-possession statute (then 18 U.S.C. § 1202). See Lemons, 302 F.3d at 770-71 (recognizing that the Supreme Court in those cases was “principally concerned” with congressional intent, but finding that “the constitutional question was not far from the Court’s mind”). Wolvin asks us to read the holding of Lopez more broadly, but his arguments are ones we have already rejected in Lemons after taking Lopez, Morrison and Jones into consideration.
While it appears that at least one of our sister circuits may be moving closer to accepting an argument like Wolviris, see United States v. McFarland, 311 F.3d 376 (5th Cir.2002) (en banc) (affirming the constitutionality of the federal Hobbs Act robbery and extortion statute by an equally divided court), cert. denied, — U.S. -, 123 S.Ct. 1749, 155 L.Ed.2d 515 (2003) (No. 02-8338), we are bound by Seventh Circuit precedent on this point. As stated in Lemons, “If, indeed, Lopez’s rationale calls into doubt our construction and application of section 922(g)(1), it is for the Supreme Court to so hold.” 302 F.3d at 773.
III.
The judgment of the district court is AFFIRMED.
. These charges were eventually dismissed by the Marquette County District Attorney.
. The four rounds were incorporated with New York City subway tokens and a decorative medallion into a necklace. See Record at 35, Objections to Presentence Report (including as exhibits photographs of the necklace); Record at 36, Mem. in Supp. of Adjustment Under 2K1.2 for Possession of Ammunition as a Collectable.
. Wolvin had earlier been convicted of a felony for stealing silverware from his mother, whom he initially had blamed for the disappearance of his guns. Appellant's Opening Br. at 4. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217434/ | ORDER
Reginald Lee says that while he was in jail awaiting trial prosecutors accused him of arranging a kidnapping and two shootings to intimidate potential witnesses. A *671prosecutor in the state criminal case obtained from the presiding judge an order restricting Lee’s telephone, mail, and visitation privileges. Lee responded by filing suit in the district court under 42 U.S.C. § 1983 against several corrections officers and administrators as well as assistant state’s attorney Catherine Bernard, who allegedly tipped off a reporter to Lee’s potential connection to the witness intimidation. The district court dismissed the case sua sponte under 28 U.S.C. § 1915(e)(2)(B), and although we agree with the court’s decision to stop Lee’s ease from proceeding, we conclude that some of his claims should have been stayed rather than dismissed.
According to Lee’s complaint, prosecutors believed that he arranged the shooting of Latoya Butler, the victim of the crime for which Lee was detained pending trial, as well as her brother. Prosecutors also believed that Lee ordered a kidnapping-it is not clear from Lee’s complaint whether Latoya or someone mistaken for her was kidnapped. Consequently, Lee alleges, Bernard filed a motion with the judge presiding over his criminal case to prohibit him from talking to anyone other than his attorney. The state court granted the motion, barred all visits and telephone calls except from Lee’s attorney, prohibited all outgoing mail, and directed that all incoming mail be read by jail personnel before delivery. Lee was moved to solitary confinement where he received no mail for almost three months, and because of the resulting psychological stress he attempted suicide by ingesting cleaning chemicals.
Lee contends that by enforcing the judge’s order jail personnel denied him liberty interests without due process. Lee also alleges that Bernard violated his right to a fair trial by generating prejudicial pretrial publicity. Lee sought compensatory and punitive damages, and an injunction preventing jail personnel from further enforcing the state judge’s order.
The district court dismissed Lee’s complaint under the Younger doctrine, which precludes federal courts from interfering with pending state judicial proceedings based upon principles of comity, absent extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 52-54, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Green v. Benden, 281 F.3d 661, 666 (7th Cir.), cert. denied, — U.S. -, 123 S.Ct. 100, 154 L.Ed.2d 29 (2002). Younger involved a federal suit seeking to enjoin the pending state criminal proceeding itself, id. at 53-54, 91 S.Ct. 746, but the doctrine has been extended to require abstention when faced with, among other types of suits, efforts to enjoin a correction facility’s restriction of privileges. Nelson v. Murphy, 44 F.3d 497, 501-02 (7th Cir.1995).
In Nelson, inmates confined to a mental health facility lost their off-grounds privileges after two fellow inmates escaped. Like Lee, the inmates sued to enjoin the restriction and for money damages. -'Id. at 499. Because at the time the plaintiffs in Nelson filed suit the state criminal court was required by law to supervise their confinement, we held that they were still active litigants and, under Younger, should have raised their claims in their state case: “an inmate already participating in state litigation must make his stand there.” Id. at 503. The proper forum for Lee’s claims involving the restrictions on his privileges is, therefore, his state criminal case. (We do not know if Lee’s state case is still pending, but that does not matter for our purposes, see Green, 281 F.3d at 666.)
On the other hand, Lee’s claim against Bernard for statements she allegedly made to a reporter is not so clearly subject to Younger abstention. But we *672need not decide whether Younger applies because the claim is premature. Lee alleged that Bernard relayed her statement to just one newspaper, and so, in the absence of pervasive pretrial publicity, Lee’s claim can succeed only if he establishes that her statements caused actual juror prejudice. See United States v. Allee, 299 F.3d 996, 1000 (8th Cir.2002); Willard v. Pearson, 828 F.2d 1141, 1146 (7th Cir.1987). According to Lee’s federal court complaint, however, his state criminal trial had not even begun when he filed this suit, and therefore he cannot yet establish actual juror prejudice. Willard, 828 F.2d at 1146.
Although we agree that Lee’s claim against Bernard was properly dismissed (though for a reason different than the one relied on by the district court), we disagree that Younger requires that his remaining claims also be dismissed. When a court abstains under Younger, it must stay, rather than dismiss, § 1983 claims for money damages that cannot be redressed in the state proceeding; otherwise, the plaintiffs claims may be time-barred by the time the state case is resolved. Deakins v. Monaghan, 484 U.S. 193, 202-03, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988); Majors v. Engelbrecht, 149 F.3d 709, 714 (7th Cir.1998). As far as we can tell, Lee has no opportunity to pursue money damages in his criminal trial, and therefore his claims involving the restrictions on his privileges should have been stayed, not dismissed. Simpson v. Rowan, 73 F.3d 134, 138 n. 9 (7th Cir.1995) (§ 1983 claims stayed because plaintiff had no opportunity to pursue money damages in a murder trial).
Accordingly, we AFFIRM dismissal of Lee’s claim against Bernard, VACATE the dismissal of Lee’s claims against the remaining defendants, and REMAND the case to the district court with instructions to stay Lee’s § 1983 claims against all of the defendants except Bernard. Because we have partially vacated the district court’s judgment, Lee has not incurred a strike for filing a frivolous complaint. 28 U.S.C. § 1915(g). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217435/ | ORDER
In plaintiff Michael Brandon’s prior appeal before this Court, we reversed the district court’s grant of judgment as a matter of law in favor of defendant Anesthesia & Pain Management Associates (APMA), and remanded the case for reinstatement of the jury verdict and a separate jury trial on punitive damages. See 277 F.3d 936, 947 (7th Cir.2002) (“Brandon /”). On remand, the district court vacated its May 9, 2000, judgment in favor of defendant APMA, reinstated the jury verdict, and set a jury trial on punitive damages for April 23, 2002. On April 12, 2002, APMA for the first time filed a motion for a new trial pursuant to Fed R. Civ. P. 59. The district court denied this motion on the basis that it was untimely, and in the alternative, held that the law of the case required that the motion be denied. The trial on punitive damages went forward, and the jury delivered a verdict in favor of Brandon for $495,000. In this successive appeal, we agree with the district court that APMA’s motion for a new trial was *674untimely, and affirm the full amount of punitive damages awarded to Brandon.
Rule 59 requires that any motion for a new trial must be filed “no later than 10 days after the judgment.” Fed R. Civ. P. 59(b). This language, standing alone, might present somewhat of a dilemma for parties prevailing on a renewed, post-verdict motion for judgment as a matter of law (JML) under Rule 50. Generally, a party that prevailed on a motion for JML would not want a motion for a new trial to be considered unless the appellate court disagreed with the district court and reversed the district court’s grant of JML. To address this situation, Rule 50 further provides:
If the renewed motion for judgment as a matter of law is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered.
Fed R. Civ.P. 50(c). Thus, in addition to a renewed motion for JML under Rule 50, parties also have the option of filing a motion for a new trial under Rule 59 in the alternative. See Fed R. Civ. P. 50(b); see, e.g., Houben v. Telular Corp., 309 F.3d 1028, 1029 (7th Cir.2002). Under Rule 50(c), any grant of a new trial motion would be conditional, depending on the ultimate disposition of the JML motion. By filing both the JML and new trial motions for the district court’s consideration (as well as ours), the moving party is able to satisfy the timeliness requirement of Rule 59, while risking nothing if she were to ultimately prevail on the motion for JML. Fed R. Civ. P. 50(c). Filing both motions also promotes judicial economy by preventing piecemeal litigation of the sort that is threatened here. See Arenson v. Southern Univ. Law Center, 43 F.3d 194, 196-98 (5th Cir.1995).
In this case, defendant APMA filed a renewed motion for JML under Rule 50, but it did not file a motion for a new trial under Rule 59 within ten days of the district court’s grant of JML. It was not until April 12, 2002—nearly two years after the district court granted JML in favor of APMA—that APMA filed a motion for a new trial under Rule 59. Because APMA did not file a motion for a new trial within ten days of the entry of the judgment, the motion is untimely and waived. Id. at 198; Henderson v. DeRobertis, 940 F.2d 1055, 1056 n. 1 (7th Cir.1991) (“As we have said before, where the motion for a new trial is not pressed on the trial court after the grant of JNOV, it is abandoned.”); Oberman v. Dun & Bradstreet, Inc., 507 F.2d 349, 353 (7th Cir.1974) (same). On this basis, we affirm the district court’s denial of APMA’s new trial motion and move on to the issue of punitive damages, which fares no better.
On remand, the district court reinstated the jury verdict, awarding Brandon $1,034,000 for compensatory damages and $1,000,000 for pain and suffering. Pursuant to our instructions, a second jury separately tried the issue of punitive damages and returned a verdict of $495,000 in Brandon’s favor. The district court entered judgment in this amount, and APMA subsequently moved for a new trial or remittitur on grounds that the punitive damages award was excessive and that the court erred in excluding evidence of Brandon’s alleged poor job performance. The dis*675trict court, which may vacate a jury’s verdict for excessiveness only if it determines that “the award was monstrously excessive or that there was no rational connection between the evidence on damages and the verdict denied this motion,” denied APMA’s motion. Frazier v. Norfolk & Western Ry. Co., 996 F.2d 922, 925 (7th Cir.1993) (citations and internal quotations omitted). Our review of the district court’s refusal to order a new trial or remittitur is governed by an “extremely limited” abuse of discretion standard. Id.
Generally, the amount of punitive damages awarded to a plaintiff is a matter reserved for the discretion of the jury, and the court may reduce the award only when it is “clearly excessive.” West v. Western Cas. & Sur. Co., 846 F.2d 387, 399 (7th Cir.1988). Defendant bears the burden of establishing that an award is clearly excessive. Id. at 400. Under Illinois law, which governs this diversity case, three factors are especially relevant: (1) the nature and enormity of the wrong; (2) the financial status of the defendant; and (3) the potential liability of the defendant resulting from multiple claims. See Ross v. Black & Decker, Inc., 977 F.2d 1178, 1189 (7th Cir.1992). These factors are not exclusive, however, and we must analyze the specific circumstances of each case. Id.
APMA argues that under our decision in Stafford v. Puro, 63 F.3d 1436 (7th Cir.1995), any award greater than one percent of the defendant’s net worth is excessive. Because APMA presented testimony that its net worth was only approximately $45,000, it argues that a punitive damages award of $495,000 is clearly excessive. We disagree with APMA’s reading of Stafford, which did not assess punitive damages according to a one-percent net-worth rule. Illinois courts have emphasized that “financial status is but one factor for the jury to consider,” Ford v. Herman, 316 Ill. App.3d 726, 249 Ill.Dec. 942, 737 N.E.2d 332, 339 (2000), and we followed that rule in Stafford. There, we looked at the totality of circumstances, including the financial status of the defendant, the nature and enormity of the wrong, and the potential liability of the defendant resulting from multiple claims. 63 F.3d at 1445. Because we found uncontradicted the fact that the defendant had few or no assets, that the jury had relied on impermissible considerations in determining the nature and enormity of the wrong, and that the district court judge himself concluded that the amount seemed high, we reduced the punitive damages award from $500,000 to $250,000. Id. The situation here is different: this jury heard conflicting testimony about APMA’s financial status, indicating that APMA was worth far more than it contended. The jury was free to discredit APMA’s self-serving testimony regarding its financial status. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Moreover, APMA does not allege any jury error, and as we found in Brandon I, there was sufficient evidence of the egregiousness of defendant’s offense for the jury to credit. 277 F.3d at 946. APMA further does not allege any potential liability of the defendant resulting from multiple claims. Viewing these factors together, the district court did not find that the award of $495,000 was clearly excessive. Under our deferential standard of review, we find no abuse of discretion.
Finally, APMA challenges the punitive damages award on grounds that the district court improperly excluded evidence regarding Brandon’s alleged poor performance in order to show that APMA had legitimate reasons for firing Brandon. We disagree. The district court correctly reasoned that the first jury had already concluded that Brandon was fired for com*676plaining about the shareholders’ fraudulent billing practices, and not because of his alleged performance, Brandon I, 277 F.3d at 940, which the first jury could reasonably have believed was pretextual. Thus the issue on remand was not liability, which the first jury had already concluded in Brandon’s favor, but whether APMA’s conduct was so “intentional, deliberate and outrageous” that an award of punitive damages could be supported. Id. at 946 (citing Cornell v. Langland, 109 Ill.App.3d 472, 65 Ill.Dec. 130, 440 N.E.2d 985, 987 (1982)). The district court found that the introduction of evidence of Brandon’s alleged work performance would aHow the defendant to re-Htigate the issue of fiabfiity, and so it conditionaUy excluded this evidence on plaintiffs motion in limine. If the plaintiff made Brandon’s performance an issue at trial, the district court was prepared to allow APMA to bring in evidence of Brandon’s poor performance. We review evidentiary rulings for an abuse of discretion, Bradley v. Work, 154 F.3d 704, 708-09 (7th Cir.1998), and find no abuse here. The findings of the first jury are generaUy not to be reexamined by another. See In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1303 (7th Cir.1995). Furthermore, APMA’s argument fails to demonstrate prejudice because on cross examination, the district court did aHow APMA to raise some doubt about Brandon’s work performance. Harmless errors are not grounds for ordering a new trial or remittitur. See Collins v. Kibort, 143 F.3d 331, 339 (7th Cir.1998).
The judgment of the district court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217437/ | ORDER
Donald McGraw appeals from his conviction and sentence for distribution of cocaine base and theft of over $8,500.
In November 1999, McGraw and two co-defendants, John Rose and Gerald Ward, *680were indicted. Soon afterwards, Rose struck a deal with the government and a superseding indictment was issued against Ward and McGraw. McGraw was charged in count 1 with possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), in count 2 with conspiracy in violation of 21 U.S.C. § 846, and in count 3 of theft in violation of 18 U.S.C. §§ 641 and 2. He was tried, convicted, and sentenced to 121 months imprisonment on counts 1 and 2 and 120 months imprisonment of count 3, all to run concurrently.
During the 1990s, McGraw, Rose, and Ward were officers with the Chicago Housing Authority (CHA) Police Department. In 1998 a drug dealer named Nazario Hernandez became an informant for Rose. Rose paid Hernandez for information by providing him with single-use bags of heroin, crack cocaine, and marijuana. Rose said McGraw supplied two of the bags of crack cocaine with which he paid Hernandez.
As we said, after the original indictment was returned and before the superseding indictment was issued, Rose began to cooperate with the government. In that role, he provided information that in November 1998 McGraw notified him and Ward that there was drug dealing at a CHA housing development known as the Wells Extensions. The three officers went to that location, where they encountered teenagers Able Collins and Willie Martin in the lobby of the building. Collins was holding a bag of crack cocaine. The officers apprehended Collins and seized the bag. Meanwhile, Martin had run up the stairs, and the officers pursued him into an apartment. The officers searched the apartment and found a semi-automatic pistol and a ball of crack cocaine that Rose described as being slightly smaller than a ping-pong ball. Rose testified that Ward handed the ball of cocaine to McGraw, who put it in his pocket. The crack was never inventoried as evidence. Instead, Rose and McGraw agreed that McGraw would sell it and the two would share the proceeds. A day or two later, McGraw gave Rose $150, which Rose assumed was his share of the proceeds from the sale.
In February 1999, Rose, Ward, McGraw, and McGraw’s partner responded to a call concerning squatters in an apartment in the CHA’s Robert Taylor Homes. When the officers entered the apartment, they saw a man named Smith throw something out the window. Searching the ground outside the window, the officers found 10 small packages of crack cocaine. The officers searched the apartment, and Rose found a quart-sized, zip-top bag with a picture of an apple on it. Inside the bag were 273 small pink plastic bags containing crack cocaine as well as a ball of crack, which weighed about a quarter of an ounce. Rose testified that when they left the apartment, McGraw was holding the crack cocaine they had seized. Later in the day, McGraw showed Rose the crack. Rose took the larger zip-top bag containing the ball of cocaine and McGraw kept the smaller bags.
What Rose did not know is that by this time-February 1999—his informant Hernandez had begun to cooperate with the FBI. The FBI recorded several conversations involving Rose and Hernandez, including a telephone call between them on February 26, 1999. During the call, Rose told Hernandez that he had a “boulder” or a “ball” for him. At trial, Rose explained that these were references to the ball of cocaine seized from Smith the day before. Rose intended to use the ball of crack to pay Hernandez for two jackets. Rose met with Hernandez at a McDonald’s and gave him an “eight ball,” which is a three-to-four gram ball of crack cocaine, in exchange for the two jackets. Rose testified *681that this was the same ball of crack cocaine obtained the day before at the Robert Taylor Homes.
The meeting at the McDonald’s was being watched by FBI Special Agent Dennis Timony. SA Timony testified that he followed Rose and Hernandez when they left the parking lot, drove around for a half hour, and then returned to the lot. Rose left the lot and SA Timony picked up Hernandez, who gave him a zip-top bag containing a marble-sized ball of what appeared to be crack cocaine. SA Timony had the ball in his possession for a couple minutes and then turned it over to FBI Special Agent Patrick Murphy. At trial, SA Murphy testified that government exhibit 3 was that same ball of crack cocaine in the zip-top bag.
Rose also testified at McGraw’s trial that he received a telephone call from Hernandez on March 5, 1999, in which Hernandez informed him that someone was cooking crack cocaine in apartment 708 of the CHA’s Harold Ickes development. Hernandez also told him that about $10,000 was hidden in a heater vent in the apartment. Rose told McGraw about the money. Rose, McGraw, and a Reginald Harris went to the apartment, where they found the cooking operation. None of the drug paraphernalia was collected as evidence. What the officers looked for instead was the money. Rose found it and gave it to McGraw. The three officers then went to McGraw’s house and divided the loot. Needless to say, the money was not logged in as evidence.
In this court, McGraw’s appeal challenges first the admission into evidence of the ball of crack cocaine seized at the Robert Taylor Homes, government exhibit 3 at his trial. He contends that the exhibit was not connected by any credible evidence to him, specifically because at trial there was no testimony from Hernandez that he received the drugs from Rose. In response, the government argues that there was sufficient circumstantial evidence to support the admission of the exhibit to allow the jury to consider whether the exhibit was, in fact, the cocaine that McGraw and the others confiscated from Smith. We agree.
Our review of the district court’s evidentiary ruling is for an abuse of discretion. United States v. Smith, 308 F.3d 726 (7th Cir.2002). Under Rule 901(a) of the Federal Rules of Evidence, the “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The Advisory Committee notes to the rule state that the requirement of proving authenticity “falls in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b)” of the Federal Rules of Evidence. Under Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), in determining whether there is sufficient evidence to meet the requirements of Rule 104(b), the “court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence.” The court’s role is to examine the evidence to determine whether the jury could reasonably find the conditional fact by a preponderance of the evidence.
McGraw contends that what the district court did in this case was to improperly apply a presumption of regularity which applies in ordinary chain of custody cases to this situation. We disagree. The district judge specifically noted that there was a difference between the typical chain of custody case and this case, in which “the chain is broken really between two eon-*682fessed drug dealers.” For that reason, the judge stated that he was approaching the issue cautiously.
We find that there was sufficient circumstantial evidence of authenticity. That evidence included, among other things, that Smith testified that the zip-top bag marked exhibit 3 looked exactly like the bag taken from him except that by the time of trial it was coated with black fingerprint powder. Rose testified that he took a zip-top bag with an apple pictured on it during the search of Smith’s apartment. He also testified that he gave it to McGraw while they were still in the apartment and that later in the day he retrieved the bag from McGraw. He testified that the following day he gave the bag to Hernandez. SA Timony testified that he picked up Hernandez within minutes after the meeting between Hernandez and Rose. Hernandez gave him the bag. Within a few minutes, SA Timony gave it to SA Murphy. Murphy testified to that effect. We find that the jury could reasonably have concluded that the exhibit and the bag seized from Smith were one and the same.
McGraw also mounts a challenge to his sentencing proceedings. He contends that the district judge erred in relying on the presentence report regarding the amount of drugs for which he was held accountable. He said it was not foreseeable to him that the conspiracy would involve more than five grams of crack cocaine. The district judge found that there was sufficient evidence in the record to support the jury’s determination that the conspiracy involved more than five grams of the drug. He then adopted the analysis and conclusion set out in the presentence investigation report that McGraw was accountable for more than 35 but less than 50 grams. We must uphold that finding unless it is clearly erroneous. United States v. Wash, 231 F.3d 366 (7th Cir.2000).
We have repeatedly upheld similar findings. See, e.g., United States v. Brumfield, 301 F.3d 724 (2002); United States v. Taylor, 135 F.3d 478 (1998); United States v. Pippen, 115 F.3d 422 (1997). Reference to the findings and rationale in a presentence report is sufficient to satisfy the requirements of Rule 32 of the Federal Rules of Criminal Procedure and to allow us to review the court’s findings. Taylor. We find no error.
Accordingly, the judgment of conviction and the sentence are AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217438/ | ORDER
Cevin and Rosa Palmer reported in their joint income tax returns for 1994 and 1995 that they had unpaid tax liabilities. The IRS summarily assessed the liabilities, but its attempts to collect the amounts due were unsuccessful. The Palmers then filed amended returns for both years, claiming that they had inaccurately reported their liabilities and that they in fact owed nothing. They argued that the remuneration they received from their employers did not constitute “gross income” because it did not come from a “taxable source” listed in 26 C.F.R. § 1.861-8.
The IRS notified the Palmers that it considered their amended 1995 tax return *684frivolous1 and that it would assess a $500 penalty against them if they did not correct it within thirty days. See 26 U.S.C. § 6702. When the Palmers failed to correct the return, the IRS assessed the penalty. Instead of paying it, however, the Palmers requested that the penalty be abated because they were denied their due process rights and because the underlying return was not frivolous. The IRS did not abate the penalty but instead notified the Palmers that it intended to levy against their property to satisfy the liabilities. After two hearings, one informal and the other pursuant to 26 U.S.C. § 6330, the IRS issued a notice of determination approving the levy to satisfy the Palmers’ tax liabilities for 1994 and 1995, but not for the $500 penalty.
The Palmers then filed suit in the district court, purportedly pursuant to 26 U.S.C. §§ 6330(d)(1)(B) and 7422(a), in which they sought refunds for the 1994 and 1995 tax years, an abatement of the $500 penalty, compliance by the IRS with the administrative procedural requirements, and a “redetermination” of their due process hearing. Although not specifically listed in their request for relief, it appears that the Palmers also sought a reversal of the levy against their property. The district court dismissed the case, holding that it lacked subject-matter jurisdiction because the Palmers did not comply with the conditions required to waive the sovereign immunity of the United States. Specifically, the court held that it lacked jurisdiction to reverse the levy because a federal district court may hear such a claim only when the Tax Court does not have jurisdiction over the underlying tax liability. As for the remaining claims, the district court held that it lacked jurisdiction because the Palmers faded to pay the full amount of the assessed taxes.
On appeal the Palmers argue that the district court erred in dismissing their case for lack of subject-matter jurisdiction. Our review of such a dismissal is de novo. LaBonte v. United States, 233 F.3d 1049, 1052 (7th Cir.2000). Because the IRS is a United States agency, jurisdiction depends on whether it waived sovereign immunity and whether the Palmers complied with the conditions required by the waiver. Id. at 1051; Kuznitsky v. United States, 17 F.3d 1029, 1031 (7th Cir.1994).
The United States has waived its sovereign immunity regarding suits for the refund of internal revenue taxes or penalties “erroneously or illegally assessed or collected,” 28 U.S.C. § 1346(a)(1), but to sue in a federal district court the taxpayer must first pay the full amount of the tax liability, Flora v. United States, 362 U.S. 145, 177, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960); Employers Ins. of Wausau v. Browner, 52 F.3d 656, 664 (7th Cir.1995). If the taxpayer chooses not to pay, he must sue in Tax Court after receiving a notice of deficiency. 26 U.S.C. § 6213(a); Flora, 362 U.S. at 163 (recognizing that “there is one tribunal for prepayment litigation and another for post-payment litigation”). The Palmers, however, could not sue in Tax Court because their liabilities were not deficiencies, i.e., the IRS did not assess that they owed more than what they originally self-reported; they simply did not pay their reported amount, which is not deemed a deficiency. See 26 U.S.C. §§ 6211(a) & 6213(a); Murray v. Commissioner, 24 F.3d 901, 903 (7th Cir.1994). Thus, the Palmers could sue only in a district court, but they had to prepay then-tax liabilities. See Flora, 362 U.S. at 177. Because they did not do so, the district court was without subject-matter jurisdic*685tion to hear claims based on those liabilities.2
The district court also lacked subject-matter jurisdiction over the Palmers’ challenges to the levy against their property and the administrative procedures leading up to the levy. An appeal from an IRS decision to levy against property must be taken to the Tax Court unless that court “does not have jurisdiction of the underlying tax liability.” 26 U.S.C. § 6330(d)(1). Only then may a taxpayer appeal to the district court. Id. In the present case it may appear that jurisdiction was proper in the district court because, as there was no deficiency, the Tax Court lacked jurisdiction over the Palmers’ underlying liabilities. That is not the case. As long as the Tax Court has jurisdiction over the “type of tax” involved in the underlying tax liability, such as income or estate tax, then the Tax Court has jurisdiction to review levy determinations relating to such taxes. 26 C.F.R. § 301.6330-l(f)(2), Q & A F3; accord Downing v. Commissioner, 118 T.C. 22, 27-28, 2002 WL 15574 (2002). Thus, because the Palmers’ underlying tax liabilities were income taxes, the Tax Court had jurisdiction over their claims based on the levy, and, according to § 6330(d)(1), the district court did not.3 See Downing, 118 T.C. at 27-28.
In response to the jurisdictional arguments, the Palmers contend that the IRS waived any jurisdictional defect because, through correspondence, it instructed them that they could file suit in the district court. Their argument is better understood as one of estoppel, not waiver. In any event, the argument has no merit, even assuming that the IRS made such a representation, because a party cannot be estopped from contesting subject-matter jurisdiction. Estate of Kunze v. Commissioner, 233 F.3d 948, 952 (7th Cir.2000) (concluding that plaintiff could not “manufacture subject matter jurisdiction based solely on a government agent’s misinterpretation of tax statutes”). The Palmers also argue that the district court could have exercised supplemental jurisdiction over their claims pursuant to 28 U.S.C. § 1367(a). But that argument lacks merit because § 1367(a) cannot be used to waive sovereign immunity unless specifically allowed by Congress. Wilkerson v. United States, 67 F.3d 112, 119 n. 13 (5th Cir.1995).
Finally, to the extent that any of the Palmers’ claims can be interpreted to request either an injunction or a declaratory judgment, the district court lacked jurisdiction to provide such relief. See 26 U.S.C. § 7421(a) (no court may grant an injunction, with inapplicable exceptions, regarding the collection of any tax); 28 U.S.C. § 2201 (barring declaratory relief in controversies “with respect to Federal taxes”).
Accordingly, we AFFIRM the district court’s dismissal for lack of subject-matter jurisdiction. We also ORDER the Palmers to show cause why they should not be *686sanctioned for filing a frivolous appeal. See Fed. R.App. P. 38. They have 21 days to file a response.
. The notice did not mention the Palmers’ amended 1994 return.
. The district court erroneously concluded that it would have had jurisdiction to refund the Palmers’ frivolous-return penalty if they had followed the partial payment procedure outlined in 26 U.S.C. § 6703(c)(1) & (2). Those subsections, however, were amended in 1989 to exclude payments for frivolous-return penalties. In any event, the Palmers did not pay any amount of the penalty.
. Although the Tax Court does not have jurisdiction to review a levy in satisfaction of a penalty for filing a frivolous return. Van Es v. Commissioner, 115 T.C. 324, 328-29, 2000 WL 1520321 (2000), the IRS here approved the levy to satisfy the 1994 and 1995 liabilities only, not the penalty. Thus, we need not determine whether the district court would have had jurisdiction to review a levy to satisfy the penalty. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217440/ | ORDER
Ellen Swartz Godfrey, as trustee of the William Swartz Trust (“Trust”), sued the Trust’s former trustees, alleging various state law claims. The district court granted the defendants summary judgment, concluding that Godfrey lacked standing to sue because the suit was not joined by the Trust’s co-trustee, or alternatively that her claims were barred by the statute of limi*694tations, laches, or on the merits. Godfrey appeals. We affirm.
I.
Before William Swartz’s death in November 1987, he established the William Swartz Trust (“Trust”). The terms of the Trust provided that upon William’s death, his wife, Mary Swartz, was to receive all trust income during her lifetime and as much principal as necessary for her support and care, as determined by the trustees. The Trust further provided that on Mary’s death, their two daughters, Ellen Swartz Godfrey and Diane Swartz Williams, and their son, Robert Swartz, would divide equally the remaining Trust assets.
During his lifetime, William served as the sole trustee of the Trust. After his death, pursuant to the terms of the Trust, Herbert Olfson, a partner in the law firm of Jenner & Block, and Robert Swartz, William’s son, were named co-trustees of the Trust. In 1991, Olfson suffered a stroke and was replaced under the terms of the Trust by Chester Kamin, another partner at Jenner & Block. Kamin remained as co-trustee (along with Robert) for about five years.
Over time, various disputes arose as to the handling of the Trust. This prompted Kamin in April 1997 to send a letter to Godfrey and Williams stating that he had agreed to become the successor co-trustee of the Trust because of the long-standing relationship between Jenner & Block and the family and because of his understanding that the family was in agreement as to how the Trust would be administered. However, Kamin stated that he was resigning as co-trustee due to Godfrey and Diane’s threats of litigation and the “disharmony” in the family. Godfrey and Williams did not respond, so Kamin sent a second letter confirming his resignation.
After Kamin resigned, Robert remained a trustee and Harris Bank was appointed as a corporate co-trustee, pursuant to the terms of the Trust. Godfrey and Williams then filed suit against Kamin, Olfson and Jenner & Block, seeking an accounting and alleging that the defendants breached their fiduciary duties to the Trust by: (1) investing the fund exclusively in municipal bonds and related instruments; (2) making imprudent loans; and (3) engaging in improper transactions. This court held that since Godfrey and Diane were only contingent remainder beneficiaries of the trust, they lacked standing to sue. Godfrey v. Kamin, 19 Fed.Appx. 435 (7th Cir.2001).
Following the dismissal of that suit, both Robert and Harris Bank resigned as trustees of the Trust. Godfrey was then appointed as the successor individual trustee on May 2, 2001. In that capacity, she filed the present suit on May 8, 2001. This suit alleges the same breach of fiduciary duty claims as the suit she had filed as a contingent beneficiary. After she filed suit, on July 23, 2001, Comerica Bank was appointed as the successor corporate co-trustee. The defendants then filed a motion for summary judgment, arguing that Godfrey lacked standing to sue because the corporate trustee did not authorize this suit. Alternatively the defendants maintain that Godfrey’s suit is barred based on the statute of limitations, laches, or based on Godfrey’s consent to the trustee’s alleged inappropriate conduct. The district court granted the defendants summary judgment, first concluding that Godfrey lacked standing to sue, but also ruling alternatively that her claims were barred by the statute of limitations and laches, and on the merits. Godfrey appeals.
II.
Under Illinois law, which the parties agree applies, “a co-trustee cannot exer*695cise a joint power individually.” Madden v. University Club of Evanston, 97 Ill. App.3d 330, 52 Ill.Dec. 963, 422 N.E.2d 1172, 1174 (1981). The right to sue on behalf of a trust is one such joint power. Id. Thus, in Madden, the court held that a co-trustee did not have standing to pursue a claim on behalf of the trust where the other co-trustees had not authorized the litigation. Id.
Godfrey does not dispute this law, but instead argues that because at the time that she filed suit on behalf of the Trust she was the only trustee in place, she could maintain the action on her own. That would be true if the trust at issue in this case did not mandate the appointment of a successor corporate trustee. As the court in Rubinson v. Rubinson, 250 Ill.App.3d 206, 190 Ill.Dec. 10, 620 N.E.2d 1271, 1278 (1993), stated:
Illinois law has long held that if two or more persons are named as trustee and one or more of them fails to become trustee or dies, resigns, is removed or otherwise ceases to be trustee, the power conferred upon the trustees can properly be exercised by the remaining trustee or trustees, unless it is otherwise provided by the terms of the trust.
(Internal quotations omitted.)
The court in Rubinson further explained this point, noting that “[o]ur supreme court has construed this rule to allow a surviving trustee to act alone where, as here, the trust instrument initially names two trustees and authorizes the naming of successor trustees.” Id. But that “where the terms of the trust imperatively require that a vacancy of a co-trustee be filled, ... [the] court [will] invalidate the actions of the surviving trustee who acts prior to the appointment of a successor trustee.” Id. (emphasis added). Thus, under Illinois law, whether a co-trustee may act unilaterally prior to the appointment of a successor co-trustee depends on whether the appointment is mandated under the terms of the trust. Id. See also, First National Bank of Chicago v. Edgeworth, 94 Ill. App.3d 873, 50 Ill.Dec. 264, 419 N.E.2d 372, 378 (1981) (“It is only when the terms of the power creating the trust imperatively require the vacancy to be filled, that the acts of the survivors will be held invalid.”) (quoting Golder v. Bressler, 105 Ill. 419 (1883)). Accordingly, we turn to the terms of the Trust agreement.
After William’s death, the Trust agreement provided for two trustees, a family trustee and a professional trustee. The initial family trustee was Robert, and in the event that Robert ceases to continue to act as a trustee, the Trust appointed Godfrey and Williams as a successor trustee, if either or both are “able and willing to act” in such capacity. The Trust then provided that “if for any reason neither of them acts or continues to act as trustee, that vacancy shall not be filled.” As to the professional trustee, as noted above, the Trust appointed Olfson. The Trust then stated:
If HERBERT B. OLFSON is removed as a trustee or if for any other reason he does not act or continue to act as a trustee, his successor shall be CHESTER T. KAMIN, and if CHESTER T. KAMIN is removed as a trustee or if for any other reason he does not act or continue to act as a trustee, his successor shall be HARRIS TRUST AND SAVINGS BANK. If HARRIS TRUST AND SAVINGS BANK or any successor corporate trustee is removed as a trustee or for any other reason does not act or continue to act as such, a successor corporate trustee shall be appointed as provided in the Illinois Trusts and Trustees Act ...
(Emphasis added.)
Thus, under the terms of the Trust, a successor family trustee was not required *696to be appointed, but a successor corporate trustee “shall” be appointed. As the court in Edgeworth explained, “[i]t has been held that ‘[generally, the use of the word ‘shall’ is regarded as indicative of a mandatory intent.’” 50 Ill.Dec. 264, 419 N.E.2d at 378 (quoting People v. Youngbey, 82 Ill.2d 556, 45 Ill.Dec. 938, 413 N.E.2d 416, 419 (1980)). Accordingly, the court in Edge-worth concluded that the “shall be appointed” language in the trust at issue in that case imperatively required the appointment of a successor trustee, and that the surviving co-trustees’ actions during the vacancy were invalid. 50 Ill.Dec. 264, 419 N.E.2d at 378. Similarly, in this case, because the Trust agreement stated that a “successor corporate trustee shall be appointed,” a corporate co-trustee was an imperative, and Godfrey lacked standing to bring this suit on behalf of the Trust on her own.
In response, Godfrey claims that because, following Comerica’s appointment as co-trustee, Comerica acknowledged its knowledge of this suit and did not object to it, it has ratified the suit. However, Comerica’s failure to object to this litigation is insufficient under the terms of the Trust to allow Godfrey to represent the Trust unilaterally. Specifically, the Trust provides “[a]ny trustee may from time to time, by signed revocable instrument, delegate to one or more of the other trustees the exercise of all or less than all of the powers conferred upon the trustees jointly.” Because Comerica did not sign a revocable instrument delegating authority to Godfrey to sue on behalf of the Trust, “its
acquiescence,” as Godfrey puts it, is insufficient to grant Godfrey standing.
Godfrey next responds by quoting 760 ILSC 5/13 of the Illinois Trusts and Trustees Act, which provides that “[i]n the event of the death, resignation, or refusal or inability to act of any trustee: (1) the remaining trustee, if any, shall continue to act, with all the rights, powers and duties, of all of the trustees.” 760 ILCS 5/13. However, that section only applies in absence of contrary Trust provisions. See 760 ILCS 5/3 (“A person establishing a trust may specify in the instrument the rights, powers, duties, limitations and immunities applicable to the trustee, beneficiary and others and those provisions where not otherwise contrary to law shall control, notwithstanding this Act.”). Accordingly, because the Trust in this case mandated the appointment of a successor trustee, 760 ILCS 5/13, does not authorize Godfrey’s unilateral action.
Finally, Godfrey makes the practical argument that prohibiting her from acting on behalf of the Trust prior to the appointment of a successor co-trustee would mean that the Trust could not pay taxes, file a tax return, or even file for an extension to file taxes. Obviously, there are some functions that timing may necessitate the unilateral action by a co-trustee, and in those cases, Illinois law may mandate a different outcome.1 However, we are not faced with those circumstances in this case, and because this is an issue of state law, we decline to enter that fray. Rather, applying the principles of Illinois law set forth above, we conclude that since the Trust agreement mandated the appointment of a *697successor corporate trustee, Godfrey could not, individually, file suit on behalf of the Trust. Accordingly, we AFFIRM the district court’s decision granting the defendants summary judgment because Godfrey lacked standing.2
. Godfrey also claims prohibiting her from filing suit on behalf of the Trust would prevent the Trust from being able to file suit against the defendants before the statute of limitations expired. Had Comerica wished to authorize this suit, it could have done so after Godfrey filed it. Alternatively, she may have had an equitable argument for tolling the statute of limitations until the co-trustee was appointed. However, in this case, since Comerica has not authorized the suit, we need not consider Godfrey’s statute of limitations argument.
. Moreover, we agree with the district court’s alternative grounds for ruling in favor of the defendants, but need not further analyze those issues because we conclude Godfrey lacked standing to sue in the first instance. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217442/ | ORDER
Agwu Nwoke brought suit under 42 U.S.C. § 1983, claiming that Ray Lewis, an Illinois State Police Officer, violated his civil rights by presenting false grand jury testimony against him. The district court dismissed his complaint, Fed.R.Civ.P. 12(b)(6), on the basis of res judicata and testimonial immunity. We affirm.
In June 2001 Nwoke filed a complaint in the Circuit Court of Cook County alleging that Lewis “violated [his] rights as a resident of the United States” by testifying falsely to a grand jury. Specifically, Nwoke alleged that on April 18, 1997, Lewis testified to a grand jury that Nwoke had been subpoenaed to appear that same day but had failed to do so. In fact, Nwoke alleged he was never subpoenaed to appear that day and Lewis’s false statement led the grand jury to subpoena his phone records. In January 2002 the Illinois court dismissed the complaint with prejudice, concluding that testimonial immunity protected Lewis from being sued for his grand jury testimony. In February 2002 Nwoke filed this suit in federal court, repeating the allegations he had made in the Illinois suit. The district court dismissed Nwoke’s complaint, explaining in a minute order that his suit was barred by the doctrines of res judicata and testimonial immunity.
Nwoke argues on appeal that the res judicata ruling was erroneous because the state court did not render a final decision on the merits of the case. Fundamental fairness, he contends, requires that the federal court reach the merits of his claim.
A federal court must give the same preclusive effect to state-court judgments as would the state court, 28 U.S.C. § 1738, and therefore we look to Illinois law to determine whether Nwoke’s previous judgment bars his current claims. See Licari v. City of Chicago, 298 F.3d 664, 666 (7th Cir.2002). Under Illinois law, the doctrine of res judicata bars a subsequent lawsuit if the previous suit: (1) was resolved by a court of competent jurisdiction with a final judgment on the merits; (2) was brought under an identical cause of action; and (3) involved the same parties or their privies. Id. Nwoke challenges only the first requirement, asserting without elaboration that “[d]ue to the dismissal of the state complaint, the state case was not fully litigated.”
Illinois Supreme Court Rule 273 provides that “an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication on the merits.” Ill. Sup.Ct. R. 273. The state court’s dismissal of Nwoke’s complaint on grounds of Lewis’s testimonial immunity was thus an adjudication on the merits-a final judgment. See Robertson v. Winnebago County Forest Pres. Dist., 301 Ill.App.3d 520, 234 Ill.Dec. 745, 703 N.E.2d 606, 608, 612 (1998) (dismissal of wrongful death action brought against numerous governmental entities, on the basis that the entities were *704protected by statutory immunity, was a final judgment on merits and operated under res judicata to bar subsequent survival action brought by the plaintiffs against the same entities). And, although Nwoke doubts that the Illinois court correctly dismissed the case, res judicata operates irrespective of the correctness of the previous judgment. See Bond v. Dunmire, 129 Ill.App.3d 796, 84 Ill.Dec. 862, 473 N.E.2d 78, 82 (1984).
Nwoke also argues without elaboration that “fundamental fairness” requires that he be able to reHtigate his claim. In support, he cites People v. Somerville, 42 Ill.2d 1, 245 N.E.2d 461 (1969), in which the Illinois court considered claims that could have been deemed res judicata. In Somerville the defendants tried to raise a claim of ineffective assistance for the first time before the Illinois Supreme Court. The court noted that the claim could properly be deemed res judicata because it could have been raised on appeal, but the court nevertheless went on to consider the merits of the ineffective assistance claims, stating that the doctrine of res judicata could be “relaxed” when fundamental fairness requires it. Id. at 464. UnKke Somerville, in which no court had yet addressed the defendants’ claim that they had been denied their right to effective assistance of counsel, in this case the state court and the federal district court have already considered Nwoke’s argument that testimonial immunity does not apply. Given this earlier judicial scrutiny, we do not beHeve that the case presents an issue of fundamental fairness, as in Somerville.
Nwoke also challenges the district court’s alternative basis for dismissing the complaint-that testimonial immunity would shield Lewis from HabHity for his grand jury testimony. Because we affirm the court’s dismissal based on res judicata, we need not address Nwoke’s argument that testimonial immunity does not apply. See, e.g., Stericycle, Inc. v. City of Delavan, 120 F.3d 657, 660-61 (7th Cir.1997).
Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217443/ | ORDER
Former Wisconsin inmate Garritt Forstner brought this suit, see 42 U.S.C. § 1983, claiming that five prison officials violated his Eighth Amendment rights by failing to treat his injured knee for 20 months. The district court dismissed the complaint against one defendant for lack of personal jurisdiction and entered summary judgment in favor of the others on the ground that Forstner could not establish that his injury was sufficiently serious or that any defendant was deliberately indifferent. We affirm.
In September 1999 Forstner fell in the shower and injured his knee. At the time he was a Wisconsin inmate housed in Texas. Five days after the injury, Dr. String-fellow, a physician at the Texas prison, sent Forstner to St. Michaels Hospital for x-rays. A St. Michael’s doctor reported that Forstner had joint effusion, but an otherwise normal knee with no fractures. A few weeks later Dr. Stringfellow requested permission from Dr. Daley, the Medical Director for the Wisconsin Department of Corrections, to send Forstner to an orthopedic specialist. Dr. Daley approved the visit, and the specialist recommended that Forstner receive an “MRI on an expedient basis.” However, Forstner did not receive the MRI before his January 2000 transfer to Fox Lake Correctional Institution (FLCI) in Wisconsin.
At FLCI nurses gave Forstner a “knee sleeve” to wear. In May he met with Dr. Luy, an FLCI physician. Dr. Luy ordered an orthopedic consultation and an MRI, which occurred respectively in July and August. The orthopedist determined that Forstner needed surgery, so Dr. Luy requested and received permission from Dr. Daley to schedule it. Dr. Luy then scheduled an appointment with an orthopedic surgeon for September 22.
On September 6 Forstner was transferred to the Supermax Correctional Institution (SMCI) (now named Wisconsin Secure Program Facility). Two days later he met with Dr. Riley, an SMCI physician. Dr. Riley sent Forstner to his September 22 appointment with the orthopedic surgeon. Forstner was placed on the University of Wisconsin’s surgery waiting fist in November, and his surgery was scheduled for July 2001. In May 2001 Forstner complained about his care to Gerald Berge, the warden at SMCI. The hospital cancelled Forstner’s July appointment because of scheduling problems, and he did not receive the surgery until November 2001.
Forstner filed a complaint in the Western District of Wisconsin in May 2001 against Drs. Stringfellow, Luy, Daley, and Riley, and Warden Berge. Dr. String-*706fellow filed a motion to dismiss for lack of personal jurisdiction, and the remaining defendants moved for summary judgment. Forstner reportedly was unable to respond to these motions due to his unexpected release from prison and return to Florida, so the court dismissed the case without prejudice, subject to reopening when Forstner became able to file his responses. The matter was reopened when Forstner filed his responses and his own motion for summary judgment. The court ultimately dismissed the complaint against Dr. Stringfellow for lack of personal jurisdiction, reasoning that he treated Forstner in Texas, not Wisconsin, and lacked sufficient contacts with Wisconsin. The court also granted summary judgment to the remaining defendants after concluding that Forstner lacked evidence of a serious medical need or of deliberate indifference.
At the outset we note that Forstner does not challenge the dismissal of the complaint against Dr. Stringfellow in his opening brief. He attempts to raise the issue in his reply brief, but arguments raised for the first time in a reply brief are waived. APS Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir.2002). So, here we will address only Forstner’s challenge of the court’s grant of summary judgment to the remaining four Wisconsin officials, and our review is de novo. Boyce v. Moore, 314 F.3d 884, 888 (7th Cir.2002). Forstner argues generally that the court erred because there were disputes about material facts that warranted a trial. To survive summary judgment, Forstner needed to present evidence that prison officials were deliberately indifferent to a serious medical need. Id. at 889. Deliberate indifference contains both subjective and objective elements. First, the prisoner must have an objectively serious medical need. Boyce, 314 F.3d at 889. Second, the prison official must have acted with a “sufficiently culpable state of mind,” Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir.2002); that is, he must have been aware of the medical need and disregarded an excessive risk to the prisoner’s health or safety. Wynn v. Southward, 251 F.3d 588, 593 (7th Cir.2001).
The district court concluded that Forstner failed to meet his burden on either prong. We need not decide whether Forstner satisfied the first prong because we agree with the court’s analysis of the second. Although a delay of 26 months between the injury and surgery is troubling, Forstner failed to show that any of the four Wisconsin officials recklessly disregarded an excessive risk to his health or safety. Wynn, 251 F.3d at 593. Whatever the cause of the delay-be it the timing of his transfers or scheduling problems with outside physicians-Forstner did not present evidence that the Wisconsin officials acted with deliberate indifference.
First, Dr. Luy treated Forstner while he was housed at FLCI. Dr. Luy met with him in May, ordered the orthopedic consult that occurred in July, and then followed the orthopedist’s advice to schedule Forstner for an MRI and then surgery. These facts reveal that Dr. Luy did not disregard Forstner’s injury, but rather that he treated him for it without any significant delay.
Second, Dr. Riley began treating Forstner when he arrived at SMCI. Dr. Riley met with him two days after the transfer, sent him to an orthopedic specialist two weeks later, and filled out the paperwork to have Forstner placed on the University of Wisconsin Hospital’s surgery waiting list in November. Without consulting Dr. Riley, the hospital scheduled Forstner for surgery in July and then had to reschedule the surgery for November. Dr. Riley was not responsible for the hospital’s delay, and there is no indication that he could *707have prevented it. These facts reveal that Dr. Riley was not deliberately indifferent to Forstner.
Third, Dr. Daley never personally treated Forstner. As the Medical Director for the Wisconsin Department of Corrections, he was involved in Forstner’s care only to the extent that he approved requests for orthopedic consults, the MRI, and the surgery. Rather than showing that Dr. Daley neglected Forstner in any way, the evidence shows that Dr. Daley approved every treatment request that he received for him. There is no indication that he was responsible for any of the delays in care or that Forstner ever complained to him that he was dissatisfied with his medical treatment.
Finally, Berge, SMCI’s warden, was never involved with Forstner’s medical care. Forstner said in his verified complaint that he “put Defendant Berge on notice about this incident” in May 2001, but he provided no further information about any communication with Berge. And, it is not clear what Forstner expected Berge to do for him because in May 2001 Forstner was already under the care of a surgeon at the University of Wisconsin, and he was scheduled to have surgery two months later. In any case, there is no evidence that Berge disregarded an excessive risk to Forstner’s safety.
Forstner presents two additional arguments that are without merit. Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217444/ | ORDER
Elbert Coleman pleaded guilty to conspiracy and counterfeiting in connection with a scheme to fabricate and negotiate worthless checks, see 18 U.S.C. §§ 371, 513(a), and was sentenced to a total of 76 months’ imprisonment. Coleman appeals, but his counsel moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he is unable to discern a nonfrivolous argument for appeal. Our review is limited to the potential issues discussed in counsel’s Anders brief and in Coleman’s response filed pursuant to Circuit Rule 51(b). See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). For the reasons set forth below, we grant counsel’s motion to withdraw and dismiss this appeal.
The facts as summarized in Coleman’s presentence report are as follows. As early as 1998, before the start of the charged conspiracy, Coleman was acquiring blank checks and completing them with fictitious information before depositing them at his *710bank or using others to negotiate them. In 2000 Coleman shifted to replicating legitimate checks on his computer and sharing the proceeds with co-conspirators who would deposit the counterfeits at their own banks and withdraw the funds before the fraud was discovered. Coleman personally negotiated two counterfeit checks by depositing them in his own bank accounts, and numerous individuals told authorities that Coleman gave them counterfeit checks to cash.
Counsel first considers whether Coleman could argue that the district court failed to comply with Federal Rule of Criminal Procedure 11(c) during his change-of-plea colloquy. Counsel identifies several purported omissions by the district court during the colloquy, but concludes that any challenge would be frivolous because the court substantially complied with Rule ll’s requirements. Because Coleman did not move in the district court to withdraw his guilty pleas, we would review the plea colloquy only for plain error. See United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002).
Counsel erroneously suggests that the district court failed to admonish Coleman of his rights to persist with his not-guilty pleas and to have the assistance of counsel at every stage of the proceedings, see Fed.R.Crim.P. 11(c)(2), (3), and also failed to query Coleman whether his willingness to plead guilty resulted from prior discussions with the government, see id. 11(d). Our review of the transcript of the plea colloquy shows the potential argument to be frivolous because the district court adequately covered all of these areas. The court told Coleman that he had “an absolute right to plead not guilty to these charges” and “the right to be assisted by an attorney, the right to counsel” during the proceedings. And the court discussed with Coleman his written plea agreement “to make sure that it reflect[ed] everything that [had] been offered to encourage [him] to plead guilty.” After the court went over the agreement with him line-by-line, Coleman agreed that it contained “everything [he] had been promised” in exchange for his guilty pleas and that nobody had suggested “anything else that [he] might get as a benefit for pleading guilty.”
With respect to Rule 11, counsel also questions whether Coleman could assert that the district court failed to adequately explain the charges, especially the concept of a conspiracy. Again we conclude that such a contention would be frivolous because the court explicitly explained to Coleman the idea of a conspiracy. After outlining the statutory elements of a counterfeiting conspiracy, the court asked Coleman if he “disagree[d] that there was this conspiracy or understanding” among him and the other individuals. Asked by Coleman to elaborate, the court explained:
The indictment alleges there was a conspiracy, which is sometimes referred to as an agreement or an understanding among various individuals to accomplish, or attempt to accomplish some criminal goal. And it’s described in the indictment about this check, this organization, this group of people that made phony checks and attempted to pass them.
In response to questioning from his attorney, Coleman then admitted he was party to an agreement to make and deposit counterfeit checks and split the proceeds. Coleman’s admission demonstrates that the district court adequately described the concept of conspiracy in layman’s terms. See United States v. Stotts, 323 F.3d 520, 522 n. 1 (7th Cir.2003); United States v. Sanchez, 251 F.3d 598, 601 (7th Cir.), cert. denied, 534 U.S. 933, 122 S.Ct. 300, 151 L.Ed.2d 223 (2001).
*711One potential issue regarding the Rule 11 colloquy not mentioned by counsel is whether Coleman could challenge his guilty pleas because the district court did not advise him that any false answers he gave during the change-of-plea hearing could subject him to prosecution for perjury. See Fed.R.Crim.P. 11(c)(5). But this argument would be frivolous because there is no suggestion that Coleman is the subject of a current or prospective prosecution for perjury resulting from his testimony at the change-of-plea hearing. United States v. Graves, 98 F.3d 258, 259 (7th Cir.1996). Although the district court did specifically refer Coleman’s testimony from the sentencing hearing to the federal and state authorities for consideration of prosecution for perjury, that would not affect the validity of his guilty plea.
Counsel also examines whether Coleman could challenge his guilty pleas on the basis that his plea agreement incorrectly stated in one paragraph that he was pleading guilty to Counts I, V, and IX when in reality he pleaded guilty only to counts I and V. But Coleman can demonstrate no prejudice from this error because the judgment of conviction correctly states the he pleaded guilty to counts I and V, only, and he received no punishment stemming from Count IX.
Counsel next questions whether Coleman could assert that alleged defects in the indictment render his guilty pleas void. Counsel correctly recognizes that this potential argument is also frivolous because defects in an indictment do not deprive a district court of jurisdiction over the case, United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002), and Coleman waived any non-jurisdictional challenges to the indictment by failing to present them in the district court, United States v. Elizalde-Adame, 262 F.3d 637, 639 (7th Cir.2001).
Coleman’s Circuit Rule 51(b) response also identifies a concern about his guilty pleas. Coleman asserts that the prosecution coerced him to plead guilty and violated his right to procedural due process by threatening to prosecute him or his mother in a separate matter unless he agreed to plead guilty in this case. See, e.g., Politte v. United States, 852 F.2d 924, 929-30 (7th Cir.1988) (noting dangers posed when there are third-party beneficiaries to plea agreements). Coleman alleges that the government had no probable cause to charge his mother with any crime and that its threat to prosecute her was thus improper. But Coleman’s assertion that the government had no probable cause to charge his mother with any crime relies on a criminal complaint and supporting affidavit from a different criminal matter that Coleman attached to his Circuit Rule 51(b) response in this case. These materials were never part of the district court record, however, so we could not consider Coleman’s arguments on direct appeal. See Galbraith v. United States, 313 F.3d 1001, 1007-08 (7th Cir.2002). If Coleman wishes to pursue his assertions of improper governmental conduct, he must do so in a collateral proceeding under 28 U.S.C. § 2255. See id. (on direct appeal, appellate court is limited to considering evidence in the trial record and cannot consider extrinsic evidence); United States v. Bell, 966 F.2d 914, 918 (5th Cir.1992) (challenge to guilty plea relying on evidence outside the trial court record not proper on direct appeal). We note, however, that this claim would likely be without merit because Coleman affirmed at his change-of-plea hearing that he had not been coerced to plead guilty, a statement which would be presumed true. See United States v. Malave, 22 F.3d 145, 148 (7th Cir.1994).
*712Counsel also identifies a number of potential challenges to Coleman’s sentence but concludes that all would be frivolous. He first questions whether Coleman could challenge the admission at sentencing of a document that allegedly was seized illegally, but correctly recognizes that the argument would be frivolous because we have held that the exclusionary rule does not apply in sentencing proceedings. United States v. Brimah, 214 F.3d 854, 858-59 (7th Cir.2000). Counsel further examines whether Coleman could argue that several witnesses who testified at sentencing were unbelievable and that the court should have credited his testimony instead. But this contention would be frivolous because we would defer to the district court’s credibility determinations. United States v. Willis, 300 F.3d 803, 806 (7th Cir.2002).
Counsel also questions whether Coleman could challenge the district court’s calculation of his sentence under the United States Sentencing Guidelines. He first examines whether Coleman could challenge the district court’s determination of the amount of loss caused by the conspiracy. The court determined that the intended loss was over $500,000 and accordingly increased Coleman’s offense level by 10 points pursuant to U.S.S.G. § 2Fl.l(b)(l)(K).1 Information contained in Coleman’s presentence report established that the total amount of checks produced by the conspiracy was approximately $524,000, but Coleman testified at sentencing that he was involved with only two checks and should not be responsible for the entire amount of intended loss. However, the district court chose not to believe Coleman’s testimony and accepted the other information provided by witnesses and the presentence report. Because the court accepted one plausible version of the facts over another, we could not find any clear error in the court’s loss determination or in its application of § 2Fl.l(b)(l)(K), Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), and this potential argument would also be frivolous.
Counsel next considers whether the district court erred by applying a two-level adjustment under § 2Fl.l(b)(2) because the offense involved “more than minimal planning” or “a scheme to defraud more than one victim.” Coleman forfeited this objection by not raising it in the district court, so we would only review the court’s determination for plain error. United States v. Williams, 258 F.3d 669, 672 (7th Cir.), cert. denied, 534 U.S. 981, 122 S.Ct. 414, 151 L.Ed.2d 314 (2001). We could find no error here, plain or otherwise, because Coleman admitted at sentencing that he attempted to deposit phony checks at two different banks. He thus admitted that he had intent to defraud more than one victim, and any challenge would be frivolous.
Counsel also examines whether Coleman could argue that the district court erred in determining that he was an organizer or leader of the conspiracy and that his offense level should be increased by four points under U.S.S.G. § 3Bl.l(a). Both evidence contained in the presentence report and elicited by the government at Coleman’s sentencing hearing supports the district court’s determination that he was an organizer or leader. For example, several witnesses testified at the sentencing hearing that they received numerous checks from Coleman, and the presentence report recounts that Coleman *713created many of the fake checks and recruited numerous individuals to cash them. This evidence showed that Coleman was one of the masterminds of the conspiracy, and an adjustment under § 3B1.1 was appropriate. See United States v. Frost, 281 F.3d 654, 658 (7th Cir.2002). Although Coleman testified at sentencing that he was only involved with two false checks and was not involved in planning the conspiracy, the district court chose to credit evidence to the contrary. We could not find clear error on the district court’s part, see Anderson, 470 U.S. at 574, and agree that this assertion would be frivolous.
Counsel next examines whether Coleman could challenge the district court’s determination that he was not entitled to a two-point reduction in his offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. As counsel correctly notes, this argument would also be frivolous. A two-point reduction under § 3E1.1. is appropriate only if the defendant “clearly demonstrates acceptance of responsibility for his offense,” but there is a presumption that a defendant whose offense level was increased under U.S.S.G. § 3C1.1 for obstruction of justice did not accept responsibility. United States v. Partee, 301 F.3d 576, 580-81 (7th Cir.2002). Here, the district court not only increased Coleman’s offense level pursuant to § 3C1.1 for obstructing justice, but also upwardly departed from the guideline imprisonment range because Coleman engaged in extraordinary obstruction. Coleman would rely on the fact that he pleaded guilty before trial in urging that the court should have found that he accepted responsibility for his actions, but simply pleading guilty is not enough when a defendant makes repeated false statements to the court. Partee, 301 F.3d at 581. In light of the district court’s findings that Coleman repeatedly lied throughout the sentencing hearing, we could not say that it clearly erred by denying him a two-point reduction for acceptance of responsibility.
Counsel also questions whether Coleman could argue that the district court erred at sentencing when it departed upward the equivalent of two offense levels from the applicable guideline range in determining his sentence. The court did so because it found that Coleman had repeatedly perjured himself, produced an altered record during the proceedings, and provided false information to the court “time and again.” The court characterized Coleman’s conduct as “clearly outside the guidelines and not adequately taken into consideration under the guidelines,” and further noted that stopping with a two-level increase under § 3C1.1 would be “grossly inadequate.” We would review the district court’s decision to depart upward only for an abuse of discretion, Koon v. United States, 518 U.S. 81, 91, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), and we agree with counsel that any challenge to the court’s determination would be frivolous. We have previously held that a defendant’s extraordinary obstruction of justice is a permissible ground for an upward departure, even though obstruction of justice is taken into consideration by the guidelines, United States v. Furkin, 119 F.3d 1276, 1283 (7th Cir.1997); see also United States v. King, 150 F.3d 644, 650 (1998) (case may be outside the heartland if a factor considered under the guidelines is present “in an exceptional way.”). Here, the court reasoned that Coleman had, throughout the sentencing proceedings, given perjurous testimony, and that the extent of his perjury was “unusual, both in type and degree.” Given the extent to which Coleman lied during the proceedings, we could not find that the district court abused its discretion by departing upward. Id.
*714Counsel last considers whether Coleman could argue that his trial counsel provided ineffective assistance. He correctly notes that no evidence in the record supports such a claim, and that Coleman must raise the issue, if at all, in a collateral proceeding. Galbraith, 313 F.3d at 1007.
Accordingly, for the foregoing reasons, counsel’s motion to withdraw is GRANTED, and Coleman’s appeal is DISMISSED.
. Although U.S.S.G. § 2F1.1 was repealed effective November 1, 2001, Coleman’s sentencing hearing was completed on October 26, 2001. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217445/ | ORDER
Proceeding pro se, inmate Bruce Bieber contends in this action under 42 U.S.C. § 1983 that the Wisconsin Department of Corrections, Secretary Jon Litscher, Dr. Gert Hasselhof, Nurse Pam Bartels, and Security Director Gary Boughton denied him constitutionally adequate medical care by refusing to allow him to wear a knee brace in prison and by delaying surgery on his knee. Bieber also claims that two prison guards-Officers W. Brown and T. Belz-in one instance used excessive force to restrain him. The district court resolved each of the claims in favor of the defendants, and Bieber appeals.
In August 2000 Bieber injured his knee when police arrested him for assaulting a public bus driver in Milwaukee. An MRI taken the following April revealed a torn anterior cruciate ligament and degeneration of the lateral meniscus, so Milwaukee physicians prescribed a rigid brace for stability and allegedly recommended that Bieber have surgery to repair the injury. In the meantime Bieber was convicted on charges stemming from his assault on the bus driver, and in June 2001 he began serving a five-year term at Dodge Correctional Institute.
In July Bieber began filing grievances demanding physical therapy and surgery for his knee. The grievances were denied because prison medical personnel—upon obtaining his MRI results from Milwaukee—scheduled Bieber for an evaluation at the orthopedic clinic associated with the University of Wisconsin Hospital. The soonest available appointment was in October, and until then prison physicians prescribed pain medication. Bieber meanwhile had gotten into a fight at Dodge, and officials in September transferred him to Supermax Correctional Institution.
When Bieber transferred to Supermax, he promptly was screened at the prison’s health services unit and examined by Dr. Hasselhof. Dr. Hasselhof noted that Bieber had complained of knee pain and that *716he would “follow up” to see if Bieber had been scheduled for surgery. The prison’s medical director, Nurse Bartels, also telephoned Security Director Boughton to see if Bieber could wear the rigid knee brace that he had been given in Milwaukee and had brought along during the transfer. Boughton responded that the brace posed a security risk because it contained metal and so could be fashioned into a weapon. Boughton, according to the averments in his affidavit, then asked Nurse Bartels about alternatives to the brace, and she replied that an elastic sleeve would be “medically acceptable” and “serve the same purpose.”
In October the sleeve was ordered, and Bieber visited the orthopedic clinic at the University of Wisconsin Hospital as scheduled. There an orthopedic surgeon, Dr. James Keene, reported that Bieber complained of constant pain and “catching” and “shifting” in his knee. Dr. Keene also noted that Bieber was not allowed to wear his brace in prison, but he did not suggest that the restriction was medically unacceptable. Nor did Dr. Keene recommend surgery immediately. He instead concluded that Bieber would be a surgical candidate only after he completed a course of physical therapy, reduced his current pain medications (to ensure that he did not become resistant to drugs used to manage postoperative pain), and supplied a copy of his MRI to the clinic (presumably so that doctors could further assess the damage to his knee). The prison’s medical staff accordingly arranged physical therapy and prescribed analgesic balm in lieu of the narcotics that Bieber had been taking. According to a note in Bieber’s medical file, the staff also “worked on getting the MRI pictures sent.”
Then, on November 27, Bieber had an altercation with Officers Brown and Belz, as a result of which Bieber suffered a broken wrist and aggravated his existing knee injury. According to the allegations in Bieber’s sworn complaint, the officers took him to be searched in a “strip cell,” and when he refused to kneel (on account of his bad knee), Brown slammed him into the cell door, Belz yanked his leg irons into the air, and as Bieber was falling to the ground, Brown jumped on him and applied a choke-hold. Following the alleged assault, medical staff administered Valium, applied ice, splinted Bieber’s right forearm and knee, and arranged for him to be taken to the University of Wisconsin Hospital. At the hospital doctors placed a cast on Bieber’s wrist but found no new instability in his knee.
Bieber returned to the prison the following day in a wheelchair, which Nurse Bartels did not allow Bieber to use in the prison because she apparently believed that Bieber did not need the device for ambulation. The medical staff, however, did issue an order to the guards that Bieber could not kneel, cross his legs, or bend his left knee. The staff also sent Bieber back to the hospital for a scheduled check of his wrist and continued sending him for scheduled physical therapy on his knee. But on December 28 the physical therapist determined that further therapy was unwarranted. The therapist reported that conservative treatment had “reached maximum benefit” and that Bieber “may benefit” from surgery. The therapist also noted that if Bieber could not wear his rigid knee brace in prison for security reasons, then his current “functional deficits” would not improve.
Over the next two months the medical staff twice scheduled Bieber to return to the orthopedic clinic, but the clinic can-celled both appointments and rescheduled him for April 12. After that visit the attending physician, Dr. Smith, reiterated that Bieber appeared to have a tom ante*717rior cruciate ligament. To treat the injury, he recommended that Bieber wear his rigid knee brace “at all times,” that the prison either obtain Bieber’s MRI or arrange to have a new MRI performed, and that Bieber return to the clinic when the MRI had been obtained. According to Bieber, the medical staff to this day has not obtained his MRI or otherwise complied with these instructions.
Meanwhile, Bieber had been filing grievances complaining that the medical staff had “confiscated” his knee brace and unnecessarily delayed surgery for his knee. He also charged that Officers Brown and Belz had used excessive force to restrain him in the strip cell. After unsuccessfully appealing each grievance to Secretary Litscher (the head of the Department of Corrections), Bieber brought this action. The district court promptly dismissed Bieber’s claims against the department as barred by the Eleventh Amendment but permitted him to proceed as to the remaining defendants. Bieber then asked the court to enlist counsel to help him obtain evidence that would support his claims. He also filed a “Discovery Motion,” requesting that the district court order the defendants to produce his knee brace, dozens of records from his prison medical file, and two videotapes allegedly made on November 27 by security cameras mounted in the strip cell.
The district court denied Bieber’s request for counsel because he had not attempted to secure private counsel and because the ease appeared factually and legally straightforward. The judge, however, did not rule on Bieber’s discovery motion. Then upon the defendants’ motions, the court granted summary judgment on Bieber’s medical-care claims, concluding that Bieber had not established a genuine issue whether he had an objectively serious medical condition or whether the authorities acted with deliberate indifference to that condition. But with respect to Bieber’s excessive-force claims, the court determined that there was a triable question whether Brown and Belz used force for the sole purpose of causing harm to Bieber. So after quashing subpoenas sent by Bieber to various doctors and prison staff, the court held a jury trial on June 14. The jury returned a special verdict finding that Brown and Belz had not used excessive force.
On appeal Bieber offers no reason to think that the district court improperly dismissed the Department of Corrections. Nor does he explain how Secretary Litscher was personally involved in any constitutional wrongdoing. Boyce v. Moore, 314 F.3d 884, 888 (7th Cir.2002). Bieber’s principal contentions instead concern the grant of summary judgment on his medical-care claims against Security Director Boughton, Dr. Hasselhof, and Nurse Bartels, as well as the district court’s handling of his request for counsel and motion for discovery. These arguments are considered in turn.
To avoid summary judgment on his medical-care claims, Bieber had to present evidence that prison officials acted with deliberate indifference toward his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). He therefore needed to show that he had an objectively serious medical condition and that prison officials knew of a risk posed by the condition and disregarded that risk. Farmer v. Brennan, 511 U.S. 825, 834-37, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Although the district court concluded that Bieber had not presented sufficient evidence to withstand summary judgment on either the objective or subjective prongs of this test, we think that with respect to the objective prong, at *718least, he did enough. The record reflects that without his rigid brace Bieber’s injured knee caused him significant pain, and that by itself raises a triable question whether he had an objectively serious medical condition. Walker v. Benjamin, 293 F.3d 1030, 1039-40 (7th Cir.2002) (discussing cases involving serious pain).
As for the subjective prong, Bieber contends that he made the necessary showing in two ways. First, Bieber says that the medical staff knew of and disregarded the risk that his knee injury would worsen by refusing to allow him to wear his knee brace. Bieber’s theory is that doctors outside the prison system prescribed this device and the prison’s staff deliberately ignored those orders. See, e.g., Murphy v. Walker, 51 F.3d 714, 720 (7th Cir.1995) (removing a cast without a doctor’s approval states a claim for deliberate indifference); Lawson v. Dallas County, 286 F.3d 257, 263 (5th Cir.2002) (jail nurses acted with deliberate indifference by ignoring doctor’s orders).
The problem is that Bieber has not supplied evidence that either Security Director Boughton, Dr. Hasselhof, or Nurse Bartels believed that the brace was essential to treat his injury. The prison’s medical staff plainly knew that Bieber’s knee, if left unsupported, jeopardized his physical well-being. The staff, however, gave Bieber an elastic sleeve as a substitute for the brace because they believed that metal in the brace posed a security risk. It may be that the sleeve was inadequate-as Bieber’s physical therapist suggested in December and as Dr. Smith reiterated in April. Yet absent evidence that the defendants were aware of the inadequacy, Bieber has no claim. At most he has shown a difference of medical opinion, which raises questions under tort law but not the Constitution. Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir.1996); see also Walker v. Peters, 233 F.3d 494, 501 (7th Cir.2000).
Bieber’s second theory is that prison officials have deliberately ignored his condition by delaying surgery for his knee. Specifically, Bieber contends that the defendants have canceled his appointments with the orthopedic clinic and failed to obtain copies of his MRI. A delay in necessary treatment can establish deliberate indifference, but only if “verifying medical evidence” exists to show how the delay adversely affected a patient’s condition. Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir.1996) (emphasis and internal quotation omitted). Here, however, it is not even clear that the prison’s medical staff was responsible for any delays. After all, it was the clinic that canceled Bieber’s two appointments. And even if the prison has held up surgery (by failing, for example, to obtain the MRI results), Bieber has not introduced medical evidence to show the effect—if any—of the delay on his condition. Without such evidence, Bieber could not overcome summary judgment on his medical-care claims.
Turning to the excessive-force claims, Bieber does not argue that the jury verdict was unsupported by the evidence. Nor could he make such an argument, for he has not included a complete transcript of the trial as part of the record on appeal. Fed. R.App. P. 10(b)(2); see LaFollette v. Savage, 63 F.3d 540, 544 (7th Cir.1995). Bieber’s objection instead is that the district court forced him to try the ease without a lawyer and thus denied him “effective assistance of counsel.” There is of course no right to effective legal assistance in civil cases. See, e.g., Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir.2001). But what Bieber apparently means is that the district court denied him a fair trial by refusing to recruit an attorney to help him *719conduct discovery and by ignoring his own “Discovery Motion.”
Neither objection has merit. With respect to his motion to enlist counsel, Bieber has offered no evidence that he adequately tried to obtain private counsel or that circumstances prevented his doing so, so the district court did not abuse its discretion by denying the request. Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.1995); Jackson v. County of McLean, 953 F.2d 1070, 1072-73 (7th Cir.1992). Bieber says that his efforts somehow were “sabotaged” by Supermax employees. But he does not elaborate on this contention or provide any evidence for the charge, and without a developed argument the point is waived. Fed. R.App. P. 28(a)(9); see Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001).
That leaves Bieber’s argument that the district court improperly ignored his discovery motion. To obtain discovery, Bieber needed to serve his requests on the defendants, which he allegedly did. Then if the defendants refused to produce the requested materials, he needed to file-after appropriate notice-a motion to compel under Federal Rule of Civil Procedure 37(a). Bieber did not take this final step. Nor did he file an affidavit in support of a request for additional time to respond to the defendants’ summary judgment motions. Fed.R.Civ.P. 56(f); DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir.1993) (holding that unrepresented litigants have an obligation to seek extensions under Rule 56(f)). Given that pro se plaintiffs, like counseled litigants, must follow clear procedural rules, McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Gleash v. Yuswak, 308 F.3d 758, 761 (7th Cir.2002), we do not think that the district court’s handling of Bieber’s discovery request provides a ground for reversal.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217446/ | ORDER
Manuel Meraz-Virrueta (“Meraz”), a Mexican citizen, pleaded guilty to being present in the United States without permission after having been deported, in violation of 8 U.S.C. § 1326. The district court sentenced him to 80 months’ imprisonment, three years of supervised release, a $200 fine, and a $100 special assessment. Meraz appeals, but his appellate counsel moves to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern any nonfrivolous issue for appeal. Meraz was notified of his counsel’s motion, see Cir. R. 51(b), but he has not responded. Therefore, we limit our review to the potential issues identified in counsel’s facially adequate Anders brief. United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997). Because we agree that the potential issues counsel discusses would be frivolous, we grant counsel’s motion to withdraw and dismiss the appeal.
In his brief counsel considers whether Meraz could argue that his guilty plea should be set aside because of noncompliance with Federal Rule of Criminal Procedure 11. But Meraz has given no indication that he wishes to withdraw his guilty plea, and we have held that counsel should not raise a Rule 11 argument on appeal, or even explore the question in an Anders submission, unless certain that the defendant wishes the plea set aside. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002). In any event we agree with counsel that raising a Rule 11 violation would be frivolous, because the transcript of the plea colloquy confirms that the district court substantially complied with Rule 11.
Counsel also questions whether Meraz could challenge the constitutionality of § 1326. Meraz pleaded guilty unconditionally, and the district court accepted the *721plea. Because a guilty plea waives all non-jurisdictional defects occurring before the plea, see Bousley v. United, States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); St. Pierre v. Walls, 297 F.3d 617, 635 (7th Cir.2002), we agree that this argument would be frivolous. Moreover, as counsel correctly points out, any challenge to the facial validity of § 1326 or its application here would not rise to the level of plain error. See United States v. Hernandez-Guerrero, 147 F.3d 1075, 1076-78 (9th Cir.1998).
Counsel also examines whether Meraz could challenge his prison sentence but concludes that any such challenge would be frivolous because in his plea agreement Meraz waived his right to appeal the term imposed. Meraz’s plea agreement contains his promise to forego appealing his sentence insofar as it is within the máximums allowed by § 1326, see United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir.2000), which the term of imprisonment is. A waiver of appeal is valid and enforceable if it is express and unambiguous and if the record demonstrates that it was made knowingly and voluntarily. United States v. Woolley, 123 F.3d 627, 632 (7th Cir.1997). Here, Meraz’s plea agreement clearly set forth the wavier, the district court explained that waiver to Meraz during the plea colloquy, and Meraz acknowledged that he understood. Meraz’s waiver of appeal was therefore valid, and any attempt to challenge his prison sentence would be frivolous.
Finally, counsel notes that Meraz could argue that he received ineffective assistance of counsel. But we will not consider a claim of ineffective assistance in a direct appeal from a sentence where trial and appellate counsel are the same, as a lawyer “can hardly have been expected to accuse himself of ineffective assistance.” United States v. Rezin, 322 F.3d 443, 445 (7th Cir.2003). Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217447/ | ORDER
Indira Adusumilli filed complaints against two of her previous employers, Discover Financial Services, Inc., and Swedish Covenant Hospital (the “Hospital”), alleging sexual harassment and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. District Judge Robert W. Gettleman granted Discover’s motion for summary judgment, and District Judge Blanche M. Manning granted the Hospital’s motion to dismiss Adusumilli’s complaint for failure to state a claim. We have consolidated Adusumilli’s appeals and affirm both judgments. Moreover, because this is not the first time that Adusumilli has raised nearly identical allegations and because she has been informed on numerous occasions that they are en*723tirely without merit, we grant Discovers motion for sanctions under Rule 38 of the Federal Rules of Appellate Procedure.
Adusumilli’s Title VTI action against Discover is her second since beginning permanent employment as an administrative assistant in November 1997. Her present complaint, like the earlier one filed in 1998, alleged that co-workers had “inappropriately ogled” her legs and “inappropriately polked [sic]” her fingers while handing her a set of keys. Adusumilli claimed that she notified management about this purported harassment and was fired in May 2000 in retaliation. Discover admitted firing Adusumilli because of her complaint but countered that she had been told repeatedly-—most recently by the district court when she lost her 1998 lawsuit against Discover—that “ogling” and accidental touching do not violate Title VII and that Discover’s sexual harassment policy prohibits only conduct actionable under Title VII. Discover contended, therefore, that Adusumilli’s dismissal was not retaliatory but instead a permissible response to her abusing Discover’s sexual harassment policy by repeatedly complaining of conduct not in violation of Title VTI. Judge Gettleman, after rejecting Adusumilli’s harassment claim as untimely, granted summary judgment for Discover on the retaliation claim. The court reasoned that Adusumilli could not establish that she sincerely or reasonably believed that the conduct she complained of actually violated Title VII.
Meanwhile, Adusumilli had gone to work for the Hospital a few months after Discover fired her, and in July 2001—while her ease against Discover proceeded in district court—she also filed a Title VII action against the Hospital. Adusumilli complained that her co-workers had “inappropriately touched” her fingers, hands, and hips during normal workplace interactions, had “ogled” her breasts and her “groin area,” and had stared at her face. She also alleged that a co-worker once touched her hip with his penis, but she provided no details about this encounter suggesting that the contact was intentional. In addition, Adusumilli alleged that she was denied a transfer and was unjustly punished for attending a funeral over her lunch hour in retaliation for filing an EEOC charge concerning her co-workers’ behavior. In granting the Hospital’s motion to dismiss for failure to state a claim, Judge Manning noted that Adusumilli was complaining of “conduct remarkably similar to perceived offenses that the courts have repeatedly discounted in her previous lawsuits.” The court again reminded Adusumilli that, regardless of her subjective perceptions, the incidents she cited did not rise to the level of sexual harassment. The court concluded that Adusumilli’s retaliation claim also failed because she had stated no facts to support her allegation that these actions were taken for retaliatory reasons.
In neither of these appeals does Adusumilli address the reasons for the district court’s adverse rulings. In the Discover suit Adusumilli reasserts her claim that she was fired for engaging in protected activity, and against the Hospital she maintains that her co-workers’ conduct is properly characterized as actionable harassment. But nowhere does Adusumilli explain how her contentions in these most recent suits are different from the nearly identical claims she unsuccessfully litigated in previous cases. Indeed, Adusumilli devotes the bulk of both briefs to arguing that she has lost all of her lawsuits because of federal judges who are incompetent and unfair. Adusumilli’s failure to identify any theory in her appellate brief as to why the district courts’ decisions were wrong on the merits is enough for us *724to affirm the decision of the district court in both cases. See Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir.2000) (arguments not raised in appellate brief are abandoned); United States v. McClellan, 165 F.3d 535, 550 (7th Cir.1999) (this court is “not in the business of formulating arguments for the parties”).
But Discover has filed a motion for sanctions against Adusumilli under Rule 38, so we must gauge whether her allegations are so frivolous as to justify sanctions for pursuing them on appeal. See Fed. R.App. P. 38; Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d 635, 642 (7th Cir.2002). An appeal is frivolous “ ‘when the result is obvious or when the appellant’s argument is wholly without merit.’ ” Id. (quoting Spiegel v. Cont’l Ill. Nat’l Bank, 790 F.2d 638, 650 (7th Cir.1986)). To have succeeded on a claim of either retaliation or sexual harassment, Adusumilli would have been required to show-at a minimum-that she held an objectively reasonable belief that the conduct of which she complained violated Title VII. See Hamner v. St. Vincent Hosp. and Health Care Ctr., 224 F.3d 701, 706-07 (7th Cir.2000) (to succeed on a retaliation claim, plaintiffs belief that she opposed unlawful practice must be sincere and objectively reasonable); Quantock v. Shared Mktg. Serv., Inc., 312 F.3d 899, 903 (7th Cir.2002) (per curiam) (to qualify as “hostile,” work environment must be both subjectively and objectively offensive). And in these cases Adusumilli could not reasonably have concluded that the incidents she complained about violated Title VII.
Adusumilli has been told repeatedly and unequivocally both by us and the district court that the kind of conduct ascribed to her former co-workers at Discover and the Hospital—“ogling,” staring, and accidental touching—is not severe or pervasive enough to be actionable under Title VIL See Adusumilli v. Ill. Inst. of Tech, No. 97-C-8507, 1998 WL 601822, at *4 (N.D.Ill. Sept. 9, 1998) (unpublished opinion) (granting motion to dismiss Title IX claim of sexual harassment because Adusumilli’s allegations that professors and students “ogled” her and touched her hand, shoulder, back, leg, and breast failed to state a claim), aff'd, No. 98-3561, 1999 WL 528169 (7th Cir. July 21, 1999) (unpublished opinion); Adusumilli v. City of Chicago, No. 95-C-7680, 1997 WL 769457 (N.D.Ill. Dec. 5, 1997) (unpublished opinion) (granting summary judgment for city where Adusumilli’s allegations that coworkers “ogled” her, made ambiguous comments, and touched her arm, fingers, and buttocks did not give rise to a Title VII claim), aff'd, 164 F.3d 353 (7th Cir.1998); Adusumilli v. Discover Fin. Servs., Inc., No. 98-C-6129, 1999 WL 286289 (N.D.Ill. April 19, 1999) (unpublished opin ion) (granting motion to dismiss Title VII claim of sexual harassment because allegations that Adusumilli’s supervisor “ogled” her breasts, legs, and groin and engaged in other “inappropriate behavior” failed to state a claim). Adusumilli admits that she read and understood the rulings in her prior litigation, and she could not reasonably have believed that her similar allegations in these new lawsuits were any closer to coming within the scope of actionable harassment. Only a single incident alleged by Adusumilli in either case—when a co-worker at the Hospital allegedly touched his penis against her—could be deemed serious, and only then if Adusumilli’s perception was correct and her coworker had not simply brushed against her unintentionally. But even if the contact was intentional it would not be actionable because, as we have explained to Adusumilli before, employers are not responsible for allegedly harassing conduct that is “ ‘too tepid or intermittent or equivocal to make a reasonable person believe that she *725has been discriminated against on the basis of her sex.’ ” Adusumilli v. City of Chicago, 164 F.3d at 362 (quoting Galloway v. Gen. Motors Serv. Parts Operations, 78 F.3d 1164, 1168 (7th Cir.1996)); see also Koelsch v. Beltone Elecs. Corp., 46 F.3d 705, 708 (7th Cir.1995) (no actionable sexual harassment where supervisor intentionally grabbed plaintiffs buttocks); Saxton v. Am. Tel. and Tel. Co., 10 F.3d 526, 534-35 (7th Cir.1993) (environment not objectively hostile where supervisor rubbed his hand along plaintiffs upper thigh and forcibly kissed her).
Although our focus here is on the case against Discover, we note that in both appeals Adusumilli’s only explanation for pressing forward after being told yet again that her allegations have no merit is that the federal judges who have considered her cases have consistently misinterpreted Title VII. She reasons that these judges have reached the wrong result because they “lack basic skills necessary to perform the job of a federal judge” and have “united to ruin [her] life.” Adusumilli has been warned on two previous occasions that continuing to file or appeal frivolous lawsuits could entitle the prevailing party to attorneys’ fees or sanctions. Indeed in her first case against Discover, Judge Gottschall declined to order sanctions only because Discover had not filed an appropriate motion, but she circulated a copy of her warning to Adusumilli that sanctions were warranted to every judge in the district. This time Discover came prepared. Accordingly, we GRANT Discover’s motion for sanctions under Rule 38, but in lieu of attorneys’ fees we order Adusumilli to pay damages of $1500 for filing a frivolous appeal. See Berwick Grain Co., Inc. v. Ill. Dept. of Agric., 217 F.3d 502, 506 (7th Cir.2000) (per curiam). Within fourteen days of this order, Adusumilli must tender to counsel for Discover a check payable to Discover for the full amount of the sanction. We warn Adusumilli that if she fails to pay the sanctions by the due date, this court will enter an order directing the clerks of all federal courts in this circuit to return unfiled any papers submitted either directly or indirectly by or on behalf of the appellant unless and until she pays in full the sanction that has been imposed against her. See Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir.1995) (per curiam).
For the foregoing reasons, we AFFIRM both judgments and award Rule 38 sanctions to Discover in the amount of $1500. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217448/ | ORDER
Craig McFadin and his mother, Lena, owned property in Posey County, Indiana. When Lena died, Craig inherited her share. He then sold the property to David Eaton. Eaton soon discovered, however, that because Lena’s share had not been through probate, title to the property was unmerchantable. Eaton therefore sued McFadin in Posey Circuit Court, seeking enforcement of the sale agreement. When McFadin did not appear, the court entered default judgment, commissioning attorney David Givens to take the steps necessary to convey merchantable title. Acting on the court’s instructions, Givens opened an estate for Lena, paid the appropriate taxes, perfected title, and transferred the property to Eaton.
McFadin moved to set aside the default judgment, asserting improper service. His motion was denied, however, as was his subsequent appeal to the Court of Appeals of Indiana. McFadin v. Eaton, No. 65A01-9712-CV-425, 706 N.E.2d 1128 (Ind.App. Dec. 11, 1998) (unpublished decision). McFadin then sued in federal court, challenging Givens’ sale of the property and administration of the estate and alleging numerous constitutional, common-law, and statutory violations. The district court dismissed the case, finding that McFadin’s claims against Givens were barred under the Rooker-Feldman doctrine. See Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 68 L.Ed. 362 (1923).
The district court was correct. McFadin’s suit against Givens is based entirely on *727Givens’ execution of his responsibilities under the circuit court’s order. In effect, McFadin is attacking the state-court order under which Givens acted. The lower federal courts have no jurisdiction over such claims. See Epps v. Creditnet, Inc., 320 F.3d 756, 759 (7th Cir.2003).
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217449/ | ORDER
After George Marasas violated the conditions of his supervision for the second time, the district court revoked his supervised release and sentenced him to 12 months’ incarceration followed by a new supervised release term of 24 months. Marasas’ appointed counsel has moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), claiming that any appeal would be frivolous. Because Marasas declined our invitation to file a response, see Cir. R. 51(b), we confine our review to the potential issues raised in counsel’s facially adequate brief. United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997). We agree with counsel that none of these issues provides a nonfrivolous ground for appeal and therefore grant counsel’s motion and dismiss the appeal.
In 1997 Marasas pleaded guilty to bank fraud, 18 U.S.C. § 1344(1), and the district court sentenced him to 18 months’ imprisonment and five years’ supervised release. In addition, the court ordered Marasas to pay a $4,000 fine. Nearly two years into his supervised release term, Marasas’ probation officer recommended that the district court revoke Marasas’ release because he had failed to report to the probation office when requested and left the judicial district without permission. Marasas contested the probation officer’s allegations. After a hearing, the district court found that Marasas indeed had violated the conditions of his supervision, but declined to revoke his release. Instead, the court modified those conditions to require that Marasas be gainfully employed, that he undergo a psychiatric assessment and treatment if necessary, that he reside at the Salvation Army for 10 months and participate in its work release program, and that he obtain his bachelor’s degree.
The following year Marasas’ probation officer again recommended that supervised release be revoked—this time because Marasas lied to the Salvation Army and to the officer about his employment, and stopped making payments toward his fine. Marasas admitted at his revocation hearing that he committed those violations, and the district court revoked his supervised release. The court went on to sentence *729Marasas to a 12-month prison term followed by 24 months’ supervised release with the conditions that Marasas pay his fine and participate in a counseling program for gambling addiction. The court also recommended to the Bureau of Prisons that Marasas be permitted to serve the last three months of his prison term at the Salvation Army.
In his Anders brief, counsel first considers whether Marasas could make a nonfrivolous argument that the district court erred in revoking his supervised release. Counsel correctly observes that having admitted that he violated the conditions of his release, Marasas could challenge the revocation only by arguing that he did not knowingly and voluntarily waive his rights under Federal Rule of Criminal Procedure 32.1 to contest the alleged violations. Under Rule 32.1, a defendant is entitled to a revocation hearing as well as written notice of the alleged violation; disclosure of the evidence against him; an opportunity to appear, present evidence, and question adverse witnesses; and notice of the right to be represented by counsel. Fed.R.Crim.P. 32.1(a)(2); United States v. LeBlanc, 175 F.3d 511, 515 (7th Cir.1999). We have held that a waiver of those rights must be knowing and voluntary. LeBlanc, 175 F.3d at 515. In determining whether a waiver is knowing and voluntary, we consider the “totality of the circumstances in which the waiver occurred.” Id. at 517. Here, Marasas was provided with the probation officer’s report detailing the alleged violations, and he reviewed that report with his attorney prior to the revocation hearing. At the hearing, the district court reviewed with Marasas the alleged violations and the supporting evidence, and, with his attorney present, Marasas responded that he understood the allegations and admitted that he committed the violations. The court then permitted Marasas to present mitigating evidence. True, the district court did not specifically advise Marasas of his rights under Rule 32.1 if he wished to contest the alleged violations. But a formal colloquy like that required by Federal Rule of Criminal Procedure 11 is not required in revocation proceedings, see id., and as counsel points out, Marasas undoubtedly was aware of the rights he was relinquishing by admitting guilt given his experience at the first revocation hearing. Nor has Marasas intimated that his admission was anything but knowing and voluntary. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002). Under these circumstances it would be frivolous for Marasas to argue that he did not knowingly and voluntarily waive his rights under Rule 32.1.
Counsel next examines whether Marasas could challenge his post-revocation sentence as exceeding that authorized by statute or resulting from an incorrect application of the sentencing guidelines. In determining the sentence to be imposed upon revocation, a district court must consider the imprisonment range suggested by U.S.S.G. § 7B1.4(a), but “is thereafter free to impose a sentence outside the designated range, subject to the maximum sentence allowable under 18 U.S.C. § 3583(e)(3).” United States v. Hale, 107 F.3d 526, 529 (7th Cir.1997). The district court in this case considered the suggested range, determining that Marasas’ conduct constituted a Grade C violation, U.S.S.G. § 7Bl.l(a)(3), which when coupled with the criminal history category of V calculated at his original sentencing, yielded an imprisonment range of 7 to 13 months, U.S.S.G. § 7B1.4(a). Marasas’ 12-month prison term fell within that range as well as the 3-year maximum allowed by § 3583(e)(3). Marasas’ 24-month supervised release term, in turn, was authorized by 18 U.S.C. *730§ 3583(h), which allowed the court to impose an additional supervised release term upon revocation so long as that term did not exceed the 5-year statutory maximum for Marasas’ underlying offense of bank fraud, see § 3583(b)(1), less the 12-month prison term it already imposed.
Counsel also assesses whether Marasas could argue that the district court erred calculating the suggested imprisonment range under § 7B1.4 by assigning him a criminal history category of V rather than category I. In this regard counsel notes that at Marasas’ original sentencing the court departed downward to category I pursuant to U.S.S.G. § 4A1.3, and could have done so upon revocation as well. See U.S.S.G. § 7B1.4, comment, (n.2) (“Departure from the applicable range of imprisonment in the Revocation Table may be warranted when the court departed from the applicable range for reasons set forth in § 4A1.3 (Adequacy of Criminal History Category) in originally imposing the sentence.”). A Grade C violation, combined with a criminal history category of I, would have yielded a lesser range of 3 to 9 months’ imprisonment. But Marasas did not make that argument in the district court, and thus would have to establish that plain error warrants reversal. United States v. Marvin, 135 F.3d 1129, 1135 (7th Cir.1998). An argument that the district court plainly erred here would be frivolous. Upon revocation the district court was not bound by its original decision to depart; the guideline range for the violation is based on the actual criminal history category calculated at the initial sentencing. See U.S.S.G. § 7B1.4, comment. (n.2); United States v. LeBlanc, 45 F.3d 192, 193 n. 1 (7th Cir.1995). Given that the district court imposed a prison term at the high end of the recommended range, it is unlikely that the court would have departed downward from that range. See United States v. Buckowich, 243 F.3d 1081, 1083 (7th Cir.2001). In any case, unlike a guideline range for an offense of conviction, the policy statements set forth in Chapter 7, Part B, of the sentencing guidelines do not bind the district court. See Marvin, 135 F.3d at 1139. Pursuant to 18 U.S.C. § 3583(e)(3), the district court could have sentenced Marasas to up to 3 years in prison notwithstanding any recommended range under § 7B1.4.
Where, as here, the district court considered the appropriate range suggested by U.S.S.G. § 7B1.4(a), and imposed a sentence within statutory parameters, we would affirm the sentence unless it is “plainly unreasonable.” United States v. Huusko, 275 F.3d 600, 602 (7th Cir.2001); Hale, 107 F.3d at 529. Nothing in the record suggests that Marasas’ sentence was unreasonable, much less plainly so. The district court had extensive experience with Marasas, having presided over his bank fraud prosecution and both revocation proceedings. The court’s comments at sentencing reflect that it considered the factors outlined in 18 U.S.C. § 3553(a). See Hale, 107 F.3d at 530. In particular, the court noted that Marasas had repeatedly lied about having complied with the conditions of his supervision. Thus, any argument that the court’s sentencing decision was plainly unreasonable would be frivolous.
Finally, counsel considers whether Marasas could argue that his trial counsel was ineffective for failing to request the criminal history departure. We agree with counsel that such a claim, although unlikely to succeed for the reasons stated above, would depend on information concerning counsel’s motivations that is not in the record and, thus, should not be brought on direct appeal. United States v. Schuh, 289 F.3d 968, 976 (7th Cir.2002); United States v. Cruz-Velasco, 224 F.3d *731654, 664 (7th Cir.2000). Based upon our review of the record, we find no reason to disagree with counsel’s assessment that any other ineffective assistance claims that Marasas might make on direct appeal would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Marasas’ appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217451/ | PER CURIAM.
Yericho Yisrael appeals the district court’s1 dismissal of his 42 U.S.C. § 1983 action against the University of Missouri and several of its officers, curators and personnel. Having carefully reviewed the record and the parties’ briefs, we conclude that dismissal was proper. Accordingly, we affirm. See 8th Cir, R. 47B.
A true copy.
. The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217452/ | PER CURIAM.
Oscar D. Heffner appeals from the district court’s1 dismissal of his civil complaint. Having carefully reviewed the record de novo and having considered the parties’ briefs, we conclude that the district court properly dismissed Heffner’s complaint and that an extended opinion is not warranted in this case.
The judgment is affirmed. See 8th Cir. R. 47B.
. The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217453/ | MEMORANDUM *
Defendant Isagani Dela Pena, Jr. appeals his conviction and sentence on a series of drug and firearms-related charges, citing a number of grounds. We affirm. Because the parties are familiar with the facts, we recite them only as necessary.
Dela Pena contends that he was prejudiced by the presentation to the jury of expert urinalysis testimony, even though the district court instructed the jury to disregard that testimony at the close of trial. Dela Pena’s trial counsel did not object to the expert’s testimony and participated in drafting the jury instruction. Where proper limiting instructions are given, “juries are presumed to follow their instructions.” Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (citation omitted). Dela Pena argues that despite the limiting instruction, the presentation was so strong and so visually enhanced, it must have affected the verdict. We disagree. The drugs and drug paraphernalia found in Dela Pena’s possession, including in the house and car, were sufficient to support a reasonable inference by the jury that Dela Pena was a drug user.
The district court did not err in denying Dela Pena’s motion to suppress the physical evidence obtained from the search of his home, for a valid search warrant had been obtained. The district court properly found that the warrant was supported by probable cause and that the search was not overbroad. The language of the warrant specifically permitted agents to search for and seize narcotics and related paraphernalia, firearms, and ammunition. A search of a residence pursuant to a warrant may include all other buildings and all other objects “within the curtilage of that residence,” even if not specifically referenced in the search warrant. United States v. Cannon, 264 F.3d *756875, 881 (9th Cir.2001), cert. denied, 584 U.S. 1148, 122 S.Ct. 1097, 151 L.Ed.2d 994 (2002). The closed rooms in Dela Pena’s home and the objects in the safe were therefore within the purview of the search warrant. The district court did not err in admitting evidence found pursuant to the valid search.
Dela Pena argues for the first time on appeal that evidence taken from the automobile search should have been excluded because the vehicle stop was pretextual. Because no objection was made at trial, this Court may only reverse if the admission of the evidence constituted plain error. Fed.R.Crim.P. 52(b); see also United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). There is no plain error here. Following an arrest based on probable cause, an inventory search of the vehicle occupied by the arrested person is permitted, regardless of whether the stop is “a mere pretext for a narcotics search.” Arkansas v. Sullivan, 532 U.S. 769, 772, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001) (quoting Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). At the time Dela Pena was apprehended by the officers, they had a warrant for his arrest. This means that a probable cause determination had already been made by a judge. The actual motivations of the individual officers for making the stop of the car are irrelevant since “[sjubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren, 517 U.S. at 813.
Dela Pena argues that he received ineffective assistance of counsel, in violation of his Sixth Amendment rights. Ineffective assistance claims are ordinarily left for collateral habeas proceedings due to the lack of a sufficient evidentiary record as to why counsel acted in a particular way, and what, if any, prejudice resulted. See United States v. Pope, 841 F.2d 954, 958 (9th Cir.1988). The record is not sufficiently developed here. Dela Pena’s counsel was not so inadequate as to obviously deny Dela Pena his Sixth Amendment right to counsel, so we decline to consider Dela Pena’s claims of ineffective assistance on direct appeal. See United States v. Sager, 227 F.3d 1138, 1149 (9th Cir.2000).
Dela Pena contends that there was insufficient evidence to support his conviction for conspiracy to distribute over 50 grams of methamphetamine hydrochloride. In considering a challenge to the sufficiency of the evidence, we decide “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). To find a defendant guilty of a drug conspiracy, the jury only needs to find an agreement to violate a narcotics law. United States v. Shabani, 513 U.S. 10, 16, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994). Once a conspiracy is shown, the government need only prove a “slight” connection between the defendant and the conspiracy. United States v. Berberian, 851 F.2d 236, 238 (9th Cir.1988), cert. denied, 489 U.S. 1096, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989). Here, the evidence for conspiracy included the testimony of co-conspirators, wire-tapped conversations, and corroborative physical evidence such as quantities of drugs, drug paraphernalia, and packaging materials. Taken together, this evidence can support the finding that there was more than a “slight” connection between the defendant and the conspiracy to violate narcotics laws. A reasonable trier of fact could conclude that Dela Pena conspired to distribute methamphetamine.
*757Dela Pena’s argument that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), also fails. Although the Government could only directly account for the 49.1 grams of methamphetamine hydrochloride Dela Pena sold to the cooperating witness, the jury was persuaded that Dela Pena was involved in other related transactions. Because the jury found that Dela Pena was engaged in a conspiracy, he was properly held responsible for “all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook.” U.S.S.G. § 1B1.3, comment, (n. 2) (2002). Where a defendant fails to object to his sentence before the district court, the Court of Appeals reviews his appeal of the sentence for plain error. United States v. Pinela-Hernandez, 262 F.3d 974, 977 (9th Cir.2001). Since the jury believed the Government’s testimony as to Dela Pena’s involvement with the alleged transactions, its determination that he was guilty of conspiracy to distribute was valid. Accordingly, his sentence was proper in reflecting the quantity of substances attributed to the conspiracy as a whole. His sentence was still below the applicable statutory maximum of life imprisonment and did not violate Apprendi.
Dela Pena’s argument that the district court should have declared a mistrial due to the phone call received by one of the jurors also fails. Denials of mistrial motions based on allegations of jury tampering are reviewed for abuse of discretion. See United States v. Angulo, 4 F.3d 843, 846-47 (9th Cir.1993) (citing Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 98 L.Ed. 654 (1954)). “Substantial weight” is given to the district court’s assessment of the effect of extraneous information on the jury. United States v. LaFleur, 971 F.2d 200, 206 (9th Cir.1991), cert. denied, 507 U.S. 924, 113 S.Ct. 1292, 122 L.Ed.2d 683 (1993) (citation omitted). Here, the district court assessed the effect of the outside contact with the jury and reasonably concluded that because the only two jurors who knew of the contact had been discharged, appropriate measures had been taken to prevent any undue influence.
Dela Pena’s final claim is that the cumulative effect of the alleged trial errors prevented a fair trial. This claim is unsupportable, as this Court has found no errors to accumulate. Consequently, Dela Pena’s conviction and sentence cannot be reversed on this basis.
For the reasons discussed above, we AFFIRM the conviction and sentence of the district court.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217454/ | MEMORANDUM *
Betty Lou Lewis (“Lewis”), Terry Crandall Mincey (“Mincey”), and Calvin Roberts (“Roberts”) (collectively, “Appellants”) appeal their jury convictions and sentences for multiple counts of conspiring to aid and abet the manufacture of a controlled substance and related offenses, in violation of 21 U.S.C. §§ 841(a)(1), (d)(2) and 846, and conspiracy to launder money, in violation of 18 U.S.C. § 1956 (“ § 1956”). Lewis, Mincey, and Roberts were employees, and Mincey and Roberts were part owners, of Custom Lab Supply (“CLS”), a chemical retailer who sold chemicals that were diverted to illegal drug manufacturing. We have jurisdiction under 28 U.S.C. § 1291, and upon careful consideration of the entire record, we affirm.
I Issues Applicable to All Appellants
A. Entrapment-by-Estoppel
We review de novo the district court’s refusal to instruct the jury on the defense of entrapment-by-estoppel. United States v. Hancock, 231 F.3d 557, 561 (9th Cir.2000). The defense of entrapment-by-estoppel applies when (1) an authorized government official tells the defendant that certain conduct is legal, and (2) the defendant reasonably relies on the official’s statement. Id. at 567-68. “It is not sufficient that the government official’s comments were vague or even contradictory”; a “defendant must demonstrate affirmative misleading on the part of the government official.” Id. at 567 (internal quotation marks and citations omitted). Appellants have not alleged, and the record does not demonstrate, that any government official made an affirmative statement or representation to anyone at CLS that their sales were legal. Thus, the district court did not err by refusing to instruct the jury on the entrapment-byestoppel defense.
B. Admission of Industry Witnesses’ Testimony
We review for an abuse of discretion a district court’s admission of lay opinion testimony, United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir.2001), and we hold that the district court did not abuse its discretion by allowing industry witnesses to testify as to their own business conduct. Given Appellants’ claim of mistake and lack of knowledge and intent, the government was correctly permitted to rebut this defense by showing that their business practices were irregular in fair comparison with others. See United States v. Erickson, 75 F.3d 470, 475-76 (9th Cir.1996).
C. Admission of the Newspaper Article
We review for an abuse of discretion the district court’s evidentiary rulings during trial. United States v. Parks, 285 F.3d 1133, 1138 (9th Cir.2002).
*7611. Relevancy
The district court may exclude relevant evidence if its probative value is “substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. “Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.” United States v. Yazzie, 59 F.3d 807, 811 (9th Cir.1995) (internal quotation marks and citation omitted). Here, the district court did not abuse its discretion by admitting the partially redacted article because the article was highly probative of Appellants’ knowledge that the chemicals they sold were being diverted to illegal drug manufacturing. Appellants are carelessly mistaken when they argue that the article bears a 1997 publication date. Also, the article was not unfairly prejudicial, and therefore did not adversely affect the jury’s attitude toward Appellants apart from their judgment of guilt as to the crimes charged.
2. Hearsay
Hearsay evidence is generally not admissible. Fed.R.Evid. 802. A statement is only hearsay, however, if it is offered “to prove the truth of the matter asserted.” Fed.R.Evid. 801. Here, the district court did not abuse its discretion because the government introduced the partially redacted article to show Appellants’ knowledge and not for the truth of the allegations in the article.
D. Venue for the Money Laundering Conspiracy Charge
Venue is a question of law we review de novo. United States v. Williams, 291 F.3d 1180, 1188 (9th Cir.2002). The government bears the burden of proving venue by a preponderance of the evidence. United States v. Jones, 231 F.3d 508, 516 (9th Cir.2000). Venue for conspiracy to launder money is proper in any district where an overt act in furtherance of the conspiracy takes place, even if the act is taken by a co-conspirator and the defendant did not enter or commit acts within the district. 18 U.S.C. § 1956(i)(2); see also United States v. Cabrales, 524 U.S. 1, 8-9, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998).
The government carried its burden to prove proper venue by a preponderance because the government presented evidence that, as part of the conspiracy, CLS’s customers exchanged money from drug sales in the Eastern District of California, which they used to purchase chemicals at CLS in the Northern District of California, and then the purchasers brought the chemicals to the Eastern District to manufacture more drugs. Thus, the acts in the Eastern District were in furtherance of the money laundering conspiracy.
E. Forfeiture
In imposing judgment on a person convicted of § 1956, 18 U.S.C. § 982(a)(1) authorizes the district court to order that person to forfeit to the United States any property involved in the offense. Pursuant to § 982(a), the district court entered a judgment of forfeiture for $20,435,850 against each Appellant jointly and severally-
1. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)
In Apprendi, the Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to *762a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). Here, the district court’s forfeiture judgment did not violate Apprendi. The district court’s determination of the amount laundered had an impact on the forfeiture judgment and on calculation of Appellants’ sentences under the Sentencing Guidelines. The amount, however, did not change the maximum penalty prescribed by § 1956(a)(1). Apprendi simply does not apply to guideline calculations that increase a sentence if it is not increased beyond the statutorily authorized maximum. United States v. Hernandez-Guardado, 228 F.3d 1017, 1027 (9th Cir.2000).
2. Constitutionally Excessive Fine
We review de novo whether a fine is constitutionally excessive and therefore violates the Eighth Amendment’s Excessive Fines Clause. United States v. Bajakajian, 524 U.S. 321, 336-37, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). In Bajakajian, the Supreme Court held that a fine violates the Excessive Fines Clause if it is “grossly disproportional to the gravity of the defendant’s offense.” Id. at 334, 118 S.Ct. 2028. We conclude that the forfeiture amount was not grossly disproportionate to the gravity of the offenses of which Appellants were convicted.
F. Sufficiency of the Evidence
We review sufficiency of the evidence claims de novo. United States v. Carranza, 289 F.3d 634, 641 (9th Cir.2002). There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On these facts, we find that there was sufficient evidence to convict Lewis, Mincey, and Roberts.
II Issues Raised by Mincey Only
A. Constructive Amendment/Variance
Because Mincey did not object at trial that there was a variance or constructive amendment of the indictment, we only review for plain error. United States v. Choy, 309 F.3d 602, 607 (9th Cir.2002). A constructive amendment occurs if there is a change in the terms of the indictment, whether literal or in effect. United States v. Dipentino, 242 F.3d 1090, 1094 (9th Cir.2001). A variance occurs when the proof introduced at trial differs materially from the facts alleged in the indictment. Jones v. Smith, 231 F.3d 1227, 1232 (9th Cir.2000).
Mincey alleges a variance because he argues the evidence at trial demonstrated an offense different from that charged, and does not point to any facts showing the terms of the indictment were altered. There was no plain error, however, because sufficient evidence supported Mincey’s conviction of the charged offenses.
B. Admission of the Chemical Handler’s Manual
Because Mincey did not object at trial to the admission into evidence of the Chemical Handler’s Manual (“CHM”), we review only for plain error. United States v. Crawford, 239 F.3d 1086, 1090 (9th Cir.2001). The CHM was relevant as a source of information available and known to Mincey, and on these facts, there was no plain error.
C. Admission of Testimony and Exhibits That Reflected the Nature and Scope of CLS’s Obligations as a Chemical Retailer
Because Mincey did not object to the introduction of certain laws and regulations that reflected the nature and scope of *763CLS’s obligations as a chemical retailer, we review only for plain error. Id. at 1090. We conclude that on these facts, there was no plain error.
D. Judicial Misconduct
The standard for reversing a verdict because of judicial misconduct during trial is stringent, and to sustain such a claim there must be “an ‘extremely high level of interference’ by the trial judge which creates ‘a pervasive climate of partiality and unfairness.’ ” Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.1995) (citation omitted). Mincey argues that the district judge interfered with his right to a fair trial because of two discrete instances involving the district judge’s interaction with Mincey’s counsel and expert witness. Neither incident showed the district judge’s active participation in the proceeding, and certainly did not show that he created “a pervasive climate of partiality and unfairness.” Id. at 740.
E. Prosecutorial Misconduct
1. Grand Jury Proceedings
Because Mincey did not raise his claim before trial that the grand jury’s indictment was a product of prosecutorial misconduct, he waived that claim. Fed. R.Crim.P. 12(b), (f); United States v. Ross, 206 F.3d 896, 900 (9th Cir.2000).
2. At Trial
Where Mincey objected to the prosecutor’s alleged misconduct, we review for harmless error. United States v. Sanchez, 176 F.3d 1214, 1218 (9th Cir.1999). On the other hand, where Mincey did not object, we review for plain error. Id. Reversal based on prosecutorial misconduct is appropriate only if it appears more probable than not that prosecutorial misconduct materially affected the fairness of the trial. United States v. Sayakhom, 186 F.3d 928, 943 (9th Cir.1999), amended on other grounds, 197 F.3d 959 (9th Cir.1999). Mincey fails to cite any parts of the record, or any other facts, that would show prosecutorial misconduct. Thus, under either standard of review, there is no basis for us to conclude that Mincey’s conclusory allegations of prosecutorial misconduct materially affected the fairness of his trial.
F. Ineffective Assistance of Counsel
Claims of ineffective assistance of counsel are generally inappropriate on direct appeal. Ross, 206 F.3d at 900. We only review such claims (1) “when the record on appeal is sufficiently developed to permit review and determination of the issue,” or (2) “when the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel.” Id. (internal quotation marks and citation omitted). Mincey’s legal representation was not so inadequate that it obviously denied him his right to counsel. In fact, we are not sure whether the legal representation was ineffective at all. We decline to address the issue on this appeal because we do not have a sufficiently developed record to determine the issue.
Ill Issues Raised by Roberts Only
A. Sentencing Reduction
We review for an abuse of discretion the district court’s application of the Sentencing Guidelines to the facts of a particular case. United States v. Alexander, 287 F.3d 811, 818 (9th Cir.2002). Whether a defendant is a minor participant under U.S.S.G. § 3B1.2 is a factual determination we review for clear error. United States v. Rodriguez-Cruz, 255 F.3d 1054, 1059-60 (9th Cir.2001). The district court’s conclusion that Roberts was not a minor participant is not clearly erroneous. Id.
B. Decision on Forfeiture
Roberts argues that because the money laundering count was pled in the alterna*764tive, alleging a violation of §§ 1956(a)(1)(A)® (promotional laundering) and (B)(i) (concealment laundering), whereas the forfeiture count only alleged a violation of § 1956(a)(1)(A)®, it is impossible to know whether the district court’s forfeiture determinations are consistent with the jury’s verdict on money laundering because it is impossible to know under which violation the jury found Roberts guilty. We review de novo a district court’s interpretation of the federal forfeiture laws. United States v. Kim, 94 F.3d 1247, 1249 (9th Cir.1996).
Appellants waived their right to have the jury decide the forfeiture issues. At sentencing, the district court sitting as the finder of fact found that there was sufficient evidence to support either money laundering theory in the money laundering count. Thus, the district court did not err in entering the forfeiture judgment. AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217455/ | MEMORANDUM *
Defendant Marcus Dickerson was found guilty by a jury of several offenses related to the possession and distribution of cocaine and was sentenced to 151 months in prison. He appeals his conviction and sentence on multiple grounds. Because the parties are familiar with the facts, we recite them only as necessary. We reverse his conviction as to the charge contained in Count Four of the Second Superseding Indictment (violation of 21 U.S.C. *766§ 841(a)(1), possession of cocaine with the intent to distribute, related to the June 15, 1997 incident) and affirm the remainder of the judgment. As it appears that the reversal of the conviction on Count Four does not affect Dickerson’s sentence, we affirm that sentence as well.
First, Dickerson challenges the sufficiency of the evidence as to the counts alleging possession with intent to distribute. We “review the evidence presented against the defendant in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Hernandez-Herrera, 273 F.3d 1213, 1218 (2001) (citation omitted). As to Count Five, it is clear that a rational jury could have found the elements of the charges against Dickerson beyond a reasonable doubt. Physical and testimonial evidence supported the conclusion that on August 2, 1997, Dickerson possessed cocaine in large enough quantities to suggest that he had the requisite intent to distribute it. Dickerson was seen carrying a soda carton after meeting with his alleged supplier. After he attempted to evade police following a vehicle stop, the soda carton was found empty nearby and approximately one kilogram of cocaine was found in his line of flight. The jury made a reasonable and legitimate inference that Dickerson had purchased and possessed that cocaine.
By contrast, with respect to Count Four, even drawing all inferences in favor of the government, there is insufficient evidence that Dickerson had possessed any illegal substance on June 15, 1997. Under extensive surveillance, Dickerson was observed leaving the alleged supplier’s apartment without any object in his possession. Further, the government never recovered any actual or circumstantial evidence that Dickerson in fact possessed any illegal substance on June 15, 1997. The evidence as to that particular episode appears limited to cryptic wiretapped telephone discussions between Dickerson and his alleged supplier, suggesting that Dickerson was lining up a purchase of a substantial quantity; observation of Dickerson going into the apartment building in which his alleged supplier lived, remaining inside for about 15 minutes, and departing, without carrying anything in his hands or anything that could be seen on his body; and observation of Dickerson running a red light while driving away from the alleged supplier’s apartment. Although perhaps suspicious and possibly supportive of the charge of conspiracy, that evidence is insufficient to establish the element of “possession,” which was charged in Count Four. We thus conclude that it is necessary to reverse Dickerson’s conviction on that count.
The reversal on Count Four will not affect Dickerson’s sentence. The district court explicitly disregarded the quantity allegedly purchased and possessed on that day in calculating the sentence to be imposed upon Dickerson. Thus, our reversal of the conviction on Count Four does not require us to vacate Dickerson’s sentence.
Second, Dickerson challenges the use of testimony by a government informant because he alleges that the informant was given something of value in exchange for his trial testimony, in violation of 18 U.S.C. § 201(c)(2), bribery of public officials and witnesses. That argument has previously been rejected by this court. United States v. Mattarolo, 209 F.3d 1153, 1160 (9th Cir.2000); United States v. Smith, 196 F.3d 1034, 1040 (9th Cir.1999).
Third, Dickerson contests the two-level enhancement of his sentence for possession of a firearm during the commission *767of a drug offense under U.S.S.G. § 2Dl.l(b)(l). We review a district court’s finding that defendant possessed firearms in connection with a drug conspiracy for clear error. United States v. Cazares, 121 F.3d 1241, 1244 (9th Cir.1997). There was no error here. We have recognized the likely connection between firearms and drug trafficking and have held that “[i]n applying this enhancement, the court need not find a connection between the firearm and the offense. If it finds that the defendant possessed the weapon during the commission of the offense, the enhancement is appropriate.” United States v. Lopez-Sandoval, 146 F.3d 712, 715-16 (9th Cir.1998) (citation omitted). Proof is not required that the firearm was present at the scene of the offense. “[T]he key is whether the gun was possessed during the course of criminal conduct, not whether it was ‘present’ at the site.” Id. at 715 (citation omitted). Dickerson was found guilty of a conspiracy that continued up to and including September 4, 1997. Less than a week later, on September 10, 1997, law enforcement personnel confiscated numerous weapons, including a stolen handgun, during a search of Dickerson’s residence. It was reasonable to infer that Dickerson possessed those firearms during the conspiracy period. Dickerson did not offer any evidence to the contrary, notably anything to suggest that the firearms had not been in his possession during the relevant period.
Finally, Dickerson argues that the district court erred in failing to grant him a number of downward departures. He contends that he is entitled to a sentencing reduction under U.S.S.G. § 3B1.2(b), “[i]f the defendant was a minor participant in any criminal activity.” We review for clear error. United States v. Ruelas, 106 F.3d 1416 (9th Cir.1997) (en banc). The district court did not err in determining that Dickerson did not play a minor role. See id. at 1419. Dickerson was an active, leading participant in the charged offenses.
Dickerson also argues that the district court erred in refusing to grant any downward departures on the grounds that his criminal history was over-represented, and that extraordinary rehabilitation, family ties, and acceptance of responsibility should have been mitigating factors in his sentencing. A district court’s discretionary refusal to depart from the sentencing guidelines is not reviewable on appeal. United States v. Romero, 293 F.3d 1120, 1126 (9th Cir.2002).
We REVERSE the conviction on Count Four, but AFFIRM the remainder of the judgment against Dickerson, including the sentence.
AFFIRMED IN PART and REVERSED IN PART.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217788/ | Affirmed by unpublished PER CURIAM opinion.
PER CURIAM.
Joseph Donald Lee Greene appeals the district court’s order denying relief on his civil rights complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Greene v. McGraw, No. CA-02-626-7 (W.D.Va. June 20, Aug. 16, Oct. 15 & Nov. 13, 2002). We deny Greene’s motion for leave to amend and to add a party. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217456/ | CLIFTON, Circuit Judge,
concurring in part and dissenting in part.
I concur with most of the memorandum, but respectfully dissent from the reversal of the conviction on Count Four. I do not believe that it was unreasonable for the jury to conclude that Dickerson purchased and possessed cocaine on June 15, 1997 with intent to distribute. The similarity between the June and the August episodes, notably in the wiretapped telephone conversations and the visit to the source’s apartment, is striking. The fact that the alleged supplier to Dickerson insisted in a telephone conversation just prior to their meeting on June 15 that Dickerson come to the supplier’s apartment alone and leave any companions in the truck outside—a procedure Dickerson agreed to and followed by leaving his brother sitting alone for approximately 15 minutes while he went inside by himself—particularly supports a conclusion that the meeting was not a casual or innocent social call. It is *768also noteworthy that after leaving the alleged supplier’s apartment complex, Dickerson stopped at a red traffic light at an intersection of two busy roads, signaled for a left turn, but then went straight across the intersection against the red light, despite the traffic. That maneuver could easily be inferred to have been a deliberate and evasive effort by Dickerson to avoid observation or search while he was carrying illegal drugs. Indeed, the evasive maneuver was successful. That’s how Dickerson lost the investigator who had been watching him.
That Dickerson was not seen to be carrying anything after meeting with the alleged seller on June 15 and that no drugs were seized or found that day certainly weigh against the government’s case on Count Four, but too much should not be made of those “non-observations.” They do not make a compelling case that he had not obtained illegal drugs from the seller. The opportunity to observe Dickerson that day was limited. The quantity allegedly purchased was not so great that it could not have been hidden under his shirt when he walked from the apartment building to his truck in the parking lot. His subsequent dash in his truck across the intersection against the red light prevented surveillance beyond that point. It is more difficult to obtain a conviction for murder when the victim’s body is never found, but it is not impossible. The absence of the drugs themselves on June 15 does not mean that the evidence here was insufficient. I would affirm the entire judgment. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217457/ | MEMORANDUM**
Alexander Predtechensky petitions for review of a decision of the Board of Immigration Appeals (“BIA”), adopting and affirming a decision of an Immigration Judge (“IJ”) denying Predtechensky’s motion to reconsider his motion to reopen his application for asylum and withholding of deportation, which had been withdrawn. We review the decision of the IJ. See Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir.1995).
I.
Predtechensky claims that the withdrawal of his application for asylum and withholding of deportation was “without informed consent” and arose from the ineffective assistance of his former counsel, Garish Sarin. Predtechensky argues that due process requires that he be permitted to pursue the application.
“Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. Due process challenges to deportation proceedings require a showing of prejudice to succeed.” Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226 (9th Cir.2002) (citations and internal quotations omitted). In addition, Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988), imposes certain procedural prerequisites upon motions to reopen based on claims of ineffective assistance of counsel.
The IJ held that Predtechensky had complied with Lozada, but found that Predtechensky’s account of the events surrounding the withdrawal of his application *770for asylum and withholding of deportation was not credible, and that Sarin’s account of those same events was credible. Having discredited Predtechensky and credited Sarin, the IJ determined that the withdrawal was “knowing and voluntary.”1
II. Discrediting Predtechensky.
The IJ discredited Predtechensky’s account because the IJ determined that Predtechensky’s motion to reopen, which claimed that Predtechensky had “no idea what was happening” when he withdrew his application, was “inconsistent with [his] conduct on March 27, 2000,” when the application was withdrawn. Predtechensky describes the March 27 hearing as follows:
Mr. Sarin ... stated to the Immigration Judge that he was requesting a continuance to pursue adjustment of status rather than advise the Judge, as we had discussed, that I wanted to pursue my asylum claim as my wife had filed for divorce. I was shocked at his statement and did not know how to react or what I should do. My wife has not yet obtained a divorce and I didn’t know if it was still alright to pursue the petition she had filed. I was extremely confused and nervous. The Immigration Judge then stated that I would probably be withdrawing my asylum application on some future date. Although Mr. Sarin was not asked to withdraw my application on March 27, 2000, he did so anyway. I have no idea why. The Immigration Judge then asked me if that is what I wanted to do and I had no idea what to say. I thought Mr. Sarin knew what he was doing so I said yes. However, I realize now that he should have advised the Immigration Judge that my wife had filed for divorce and that he never should have withdrawn my asylum application.
This account explains how and why Predtechensky mistakenly acquiesced in the withdrawal of his application. Contrary to the IJ’s assessment, this account is entirely consistent with Predtechensky’s conduct, as described in the IJ’s decision. Furthermore, the IJ did not even identify whatever it was that she found inconsistent. Because an IJ “must have a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief,” Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir.1998) (citations and internal quotations omitted), substantial evidence does not support the IJ’s decision to discredit Predtechensky’s testimony that his withdrawal was not knowing and voluntary.
III. Crediting Sarin.
The IJ credited Sarin’s account of what happened in the spring of 2000, finding that Sarin had “appeared before this Court many times” and was “a straightforward, conscientious individual and zealous advocate for his clients.”
The question is whether the record contains substantial evidence in support of the IJ’s conclusion that Sarin’s account of his own behavior should be credited. Predtechensky’s current attorney, Paula Harris, called the IJ’s attention to several aspects Sarin’s behavior, alleging that they evidenced professional misconduct and served as grounds for discrediting Sarin. *771The IJ did not address those allegations. And so while we express no opinion on the propriety of Sarin’s behavior, we nonetheless conclude that the IJ’s familiarity with Sarin’s character generally is irrelevant to whether Sarin behaved appropriately in this case specifically. Indeed, the IJ’s personal views of Sarin were based on experiences not reflected in the record, and on which she was not permitted to rely. Thus, there was not substantial evidence to support the IJ’s decision to credit Sarin.2
IV.
Because there was not substantial evidence to support the IJ’s decisions to discredit Predtechensky and to credit Sarin, there was not substantial evidence to support the conclusion that the withdrawal of the asylum application was “knowing and voluntary.” Predtechensky contends, and the INS does not dispute, that if he did not voluntarily withdraw his asylum application, then it would violate due process to deem his application withdrawn. Predtechensky also has shown prejudice, because if the asylum application were deemed withdrawn, then Predtechensky would be deprived of a right he otherwise would have had, that is, the right to have his asylum claim adjudicated on the merits. Thus the IJ abused her discretion in denying Predtechensky’s motion to reconsider his motion to reopen.
Predtechensky should be allowed to pursue his application for asylum and withholding of deportation. We grant the petition for review, vacate the decision of the BIA affirming the IJ’s decision, and remand to the BIA with instructions to reopen Predtechensky’s application for asylum and withholding of deportation and to order a hearing on the merits of those claims before the IJ.
PETITION FOR REVIEW GRANTED. VACATED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. The parties do not dispute the standard that the IJ applied, i.e. that in order to be valid, an alien’s withdrawal of an asylum application must be "knowing and voluntary.” Cf. Walters v. Reno, 145 F.3d 1032, 1037 & n. 2 (9th Cir.1998) (noting, in deportation context, that waivers of constitutional rights are only valid "if the government demonstrates that the alien intentionally relinquished a known right or privilege”).
. The INS attempts to shore up the reasoning of the IJ by arguing that Predtechensky’s account of what happened in the spring of 2000 is inconsistent with the language of the May 2000 contract between Sarin and Predtechensky. This argument is unpersuasive because if Sarin was providing ineffective assistance of counsel to Predtechensky, it would be no surprise for Predtechensky to sign a legal services contract that he did not understand. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217458/ | MEMORANDUM *
Judy Hughes appeals the district court’s grant of summary judgment against her. We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s determination de novo and affirm in part and reverse in part.
The administrator of Hughes’ pension plan excluded certain incentive (“over-excellence”) compensation from the calculation of her pension. Hughes argues the district court improperly reviewed the plan administrator’s decision for abuse of discretion. We find it unnecessary to reach this issue because the administrator’s decision is in accord with the pension plan’s unambiguous language and thus proper even under de novo review. Local Motion, Inc. v. Niescher, 105 F.3d 1278, 1280 (9th Cir.1997); Atwood v. Newmont Gold Co., 45 F.3d 1317, 1324 (9th Cir.1995). The pension plan included incentive compensation “to the extent the payment effective date is within the applicable measuring period [June 30, 1991 to June 30, 1996].” (Emphasis added.) The Sales Compensation Plan expressly stated that over-excellence bonuses “will not be paid until end of year close out.”
Hughes alternatively argues that she was misled to believe over-excellence compensation would be included in her pension and that she relied on this misinformation in deciding to take early retirement. Taken in the light most favorable to Hughes, Charles Maley’s voicemail raises a triable issue of material fact regarding a breach of fiduciary duty. See Wayne v. Pacific Bell, 238 F.3d 1048, 1055 (9th Cir.2001). Maley, the Director of Pension and Savings Plans, could be understood to have represented that commissions on sales made before July 1, 1996 would be included in pension calculations, because it is the “sales effective date” that is relevant even if payment was actually made after July 1. Moreover, Hughes presented sufficient evidence of reliance to survive summary judgment and Pacific contests this only with evidence outside the record. Finally, *773Pacific’s argument that Hughes’ misrepresentation claim is barred under Bowles v. Reade, 198 F.3d 752 (9th Cir.1999), and Cline v. Industrial Maintenance Engineering & Contracting Co., 200 F.3d 1223, 1229 (9th Cir.2000), is misplaced. This claim is made in the alternative and, as we have already held, no other relief is available. See Varity Corp. v. Howe, 516 U.S. 489, 509-15, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996); Forsyth v. Humana, Inc., 114 F.3d 1467, 1474-75 (9th Cir.1997).
We therefore remand to the district court for trial on Hughes’ breach of fiduciary duty claim and otherwise affirm summary judgment as to her other claims. The parties shall bear their own costs on appeal.
AFFIRMED IN PART and REVERSED IN PART.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217459/ | MEMORANDUM**
Ladislao Salguero-Castro is a native of Guatemala who entered the United States without inspection in 1991. He petitions for review of an order of the Board of Immigration Appeals (BIA) denying his application for asylum and withholding of deportation. Because deportation proceedings were commenced before April 1, 1997, and the final order was issued after October 30, 1996, we have jurisdiction pursuant to former 8 U.S.C. § 1105a(a), as amended by the transitional rules for judicial review in § 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997). We deny the petition.
I
Salguero-Castro points to an incident in 1991 when he was shot at by a military airplane in the vicinity of a guerilla camp that he was riding by while running an errand on horseback, threats by soldiers in the Guatemalan military, and the death in 1995 of a friend he had met in Los Angeles who had returned to Guatemala. However, these incidents do not compel a reasonable factfinder to find past persecution. INS v. Elias-Zacarias, 502 U.S. 478, 481-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Salguero-Castro was never involved in any type of political organization. His family lives in Guatemala unharmed. He testified that his problems began because guerillas ambushed soldiers on his father’s property in 1990. The property was overrun, and soldiers told his father that Salguero-Castro would be arrested as a guerilla if the property were not cleared. Nothing happened to Salguero-Castro. Nor was he injured by the gunfire; a reasonable factfinder could conclude that Salguero-Castro was simply at the wrong place at the wrong time. See Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988) (“Persecution is found ‘only when there is a difference between the persecutor’s views or status and that of the victim; it is oppression which is inflicted on groups or individuals because of a difference that the persecutor will not tolerate.’ ” (quoting Hernandez-Ortiz v. INS, 777 F.2d 509, 516 (9th Cir.1985))). The only explicit threat occurred after that, when a military officer visited his house, accused him of being a guerilla, and told Salguero-Castro’s mother that he would be killed if caught. Cf., e.g., Gui v. INS, 280 F.3d 1217, 1229 (9th Cir.2002) (finding past persecution when an applicant was first threatened and then survived, without injury, a staged car crash that could have resulted in severe injury); Ruano v. Ashcroft, 301 F.3d 1155, 1160-61 (9th Cir.2002) (finding past persecution when an applicant was first threatened and then “was hunted down (albeit unsuccessfully) by men with pistols who were out to harm him”). This threat, while menacing, was not combined with confrontation or other mistreatment. Cf. Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000) (“Our court generally treats unfulfilled threats, without more, as within that category of conduct indicative of a danger of future persecution, rather than as past persecution itself.”). Accordingly, we cannot say that a finding of persecution was compelled.
Likewise, the evidence does not compel the conclusion that Salguero-Castro has a well-founded fear of future persecution on account of his actual or imputed *775political opinion. There is no question that Salguero-Castro has satisfied the subjective prong of the future persecution test in this case, as he testified credibly. However, the country condition report upon which the BIA relied provides substantial evidence in support of the conclusion that future persecution is not a reasonable possibility. Although Guatemalan country condition reports, standing alone, may have limited value when used to rebut a presumption of future persecution, Rios v. Ashcroft, 287 F.3d 895, 901-02 (9th Cir.2002), these reports may provide substantial evidence in cases in which the burden remains on the applicant. Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.2002). The IJ also relied on evidence that Salguero-Castro’s family members have lived in Guatemala without incident, and that Salguero-Castro was never harmed by the Guatemalan military. Both facts constitute substantial evidence in support of the IJ’s conclusion. Aruta v. INS, 80 F.3d 1389, 1395 (9th Cir.1996). Moreover, Salguero-Castro’s claim that his family is not similarly situated is undermined by his father’s interaction with the military following the ambush that took place on his father’s land. Finally, Salguera-Castro’s testimony only indicates that a friend was killed in 1995 and that he believes the government killed his friend because it thought his friend was a guerilla. However, Salguera-Castro has no direct knowledge of his friend’s activities in Guatemala, or of what happened to him upon his return. A reasonable factfinder is not compelled to find either that the government was responsible, or that Salguera-Castro has a well-founded fear based on the fate that befell his friend from California.
II
Having failed to satisfy the lower standard of proof to establish eligibility for asylum, Salguero-Castro necessarily cannot show eligibility for withholding of deportation. Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir.1995).
PETITION DENIED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217460/ | PAEZ, Circuit Judge,
dissenting.
Because Salguero-Castro established past persecution by the military on account of an imputed political opinion, I would reverse and remand for additional findings on changed country conditions.
I.
Neither the Immigration Judge (IJ) nor the Board of Immigration Appeals (BIA) made a negative credibility finding; therefore we must accept Salguero-Castro’s testimony as true. Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000). Salguero-Castro testified that after the guerillas ambushed soldiers on his father’s land, an army officer approached Salguero-Castro and his father and demanded that they clear the brush in the area where the ambush occurred. After his father explained that Salguero-Castro would be responsible for the clearing, but that he would also need to help with the harvest, the army officer said that Salguero-Castro had to keep the area clear or he would take SalgueroCastro as a guerilla, “and you know very well what it is that we do to guerillas.” Salguero-Castro testified that he knew this meant he would be killed “because it is known that every person that they take to be a guerilla they kill.” Furthermore, after the officer’s threat, Salguero-Castro and his father came upon a large hole filled with human remains in clothing that suggested they were the bodies of guerillas or civilians.
Salguero-Castro testified that the guerillas approached him several times and forced him to attend meetings to encourage him to join their forces. A couple of *776days after a visit from the guerillas, Salguero-Castro was stopped at a check point by the guerillas and held for several hours. Again, Salguero-Castro refused to join them and proceeded to go into town to run an errand for his father. On his way home, he passed through the area where he had been held by the guerillas hours before and a military plane descended and started strafing his location.
A few days after the shooting incident, Salguero-Castro’s mother told SalgueroCastro that an army officer came to the house looking for him, stating that “he [Salguero-Castro] was a guerilla and that he would kill him.” Salguero-Castro then fled to the mountains and subsequently to the United States. He testified that he knows he is on an army fist as a guerilla, and that if he returns he will be killed. Salguero-Castro also testified that his father had written him a letter telling him that the army had come back to the house looking for him.
“In asylum and withholding of deportation cases, we have consistently held that death threats alone can constitute persecution.” Ernesto Navas v. INS, 217 F.3d 646, 658 (9th Cir.2000). Although it is true that “[o]ur court generally treats unfulfilled threats, without more, as within that category of conduct indicative of a danger of future persecution, rather than as past persecution itself,” Lim, 224 F.3d at 936, here Salguero-Castro testified to threats “with more”—the threats were menacing and were combined with an (albeit unsuccessful) attempt by the military to shoot and kill Salguero-Castro.
As the majority notes, in Gui v. INS, we found past persecution when an applicant was first threatened and then survived a staged car crash. 280 F.3d 1217, 1229 (9th Cir.2002). The reasoning in Gui supports a finding of past persecution here: “The fact that [Salguero-Castro] did not in fact die or suffer serious injury in [the shooting incident] should not mitigate the severity of the acts. Had he been maimed in the [shooting incident], persecution would be established easily.” Gui, 280 F.3d at 1229. See also Del Carmen Molina v. INS, 170 F.3d 1247 (9th Cir.1999)(holding that where petitioner testified that some of her cousins had been killed because they served in the military and that she had received two threatening notes, she had demonstrated past persecution); Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997)(finding that petitioner demonstrated past persecution as a result of the threats of violence and death he received from a terrorist group, but denying asylum for failure to satisfy on account of prong).
II.
Salguero-Castro also testified credibly that he suffered this persecution on account of an imputed political belief. See Ernesto Navas, 217 F.3d at 658. In both death threats, the army referred to him as a “guerilla.” See id. at 659 (explaining that an applicant can establish imputed political opinion “where the persecutors’ conduct or statements show that they are imputing a particular opinion to their victim.”). Salguero-Castro testified to several interactions with the guerillas that would support the army’s belief that he was a guerilla or a guerilla supporter.
III.
The fact that Salguero-Castro’s family is living unharmed in Guatemala, while relevant, is certainly not dispositive. “The fact that the [Salguero-Castro] family is safe does not refute his claims of persecution.” Ceballos-Castillo v. INS, 904 F.2d 519, 521 (9th Cir.1990) (citation omitted). In Lim, we explained that ongoing family safety mitigates a well-founded fear when the family is similarly situated “and thus *777presumably subject to similar risk.” Lim, 224 F.3d at 935. Here, however, there is no evidence in the record that either of petitioner’s parents or his brother were ever accused of being guerillas by the military, recruited by the guerillas, compelled to attend a guerilla meeting, shot at by a military plane, or threatened with death by a military official. Indeed, the brother, who would presumably be most likely to be similarly situated, was a member of the Guatemalan army. As in Lim, “nothing in the record supports an inference that their safety ensures that [petitioner] will be safe.” Lim, 224 F.3d at 935.
IV.
Showing past persecution is sufficient to create a presumption of a well-founded fear of persecution. Singh v. INS, 134 F.3d 962, 967 (9th Cir.1998). However, the INS may defeat this presumption by demonstrating that conditions have changed in the country where the persecution took place, and so persecution is no longer likely. Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir.1995); INA § 208.13(b)(l)(i)(A). Because the Supreme Court in INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002), raised substantive objections to our interpretation of and reliance on the 1997 State Department’s Country Conditions Report on Guatemala to show a lack of change in country conditions, I would remand to the BIA for additional evidentiary findings on country conditions. The Court described the 1997 State Department Report as “at most, ambiguous” about whether country conditions had sufficiently changed. Ventura, 123 S.Ct. at 356. The Court also described contradictory statements in the Report as to the current state of conditions between the guerillas and the government and concluded that “remand could lead to the presentation of further evidence of current circumstances in Guatemala—evidence that may well prove enlightening given the five years that have elapsed since the report was written.” Id. (citing 8 C.F.R. §§ 3.1, 3.2). In sum, I would grant the petition for review and remand to the BIA. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217461/ | MEMORANDUM *
Neal Pearson appeals from the grant of summary judgment in favor of Provident Life & Accident Insurance Company on his claim alleging he was wrongfully denied occupational disability benefits under his insurance policy. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the grant of summary judgment de novo and we reverse and remand.1
Provident contends Pearson is not entitled to benefits because he failed to show that he is unable to perform the substantial and material duties of the occupation of chief executive officer of a food processing company. We disagree. There remains a material dispute of fact as to whether Pearson is capable of performing the duties of the occupation, rather than merely the particular job at Enway, given the unusual and noncustomary way he performed that job. McHorse v. Portland Gen. Elec. Co., 268 Or. 323, 521 P.2d 315, 317 (1974); cf. Gammill v. Provident Life & Accident Ins. Co., 346 Ark. 161, 55 S.W.3d 763, 768 (2001) (reliance on coworkers may be sufficiently unusual and noncustomary to render individual disabled). Pearson testified his disability rendered him incapable of working during normal business hours and handling stressors common to the occupation as those stressors arose. Taking the evidence as a whole and in the light most favorable to Pearson, his statement that he was “get[ting] the job done” could mean that he was able to address only routine aspects of his work rather than the material and substantial duties of a CEO, such as on-site executive management and supervision, problem resolution and interaction with customers, suppliers and regulatory agencies. Moreover, at least some of Provident’s own psychiatrists suggested that Pearson’s condition left him capable of performing work as a consultant rather than as a CEO.
We express no opinion on whether summary judgment would be appropriate on the issue of adequate care. Neither party addressed the issue before the district court and Provident urges that the district court did not base its decision on this issue.
REVERSED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. Pearson does not argue the district court improperly denied his own motion for summary judgment and thus we do not review that determination. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217462/ | MEMORANDUM *
Appellant Rigoberto Femandez-Castillo (“Fernandez”) challenges his conviction of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Fernandez asserts his rights under the Speedy Trial Act, 18 U.S.C. § 3161, were violated and contends the district court erred in allowing testimony at trial of his prior bad acts. We affirm.1
I
The Speedy Trial Act requires the trial of a defendant to “commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court.” 18 U.S.C. § 3161(c)(1). If required by the ends of justice, the court may grant a continuance and declare certain days excludable from the seventy-day Speedy Trial clock. Id. § 3161(h)(8)(A). In determining whether the ends of justice warrant delaying a trial, one factor the court must consider is whether the failure to grant a continuance would deny defense counsel “the reasonable time necessary for effective preparation.” Id. § 3161(h)(8)(B)(iv).
*780On February 14, 2001, Fernandez moved for a continuance. The district court granted the continuance the next day, postponing the trial from February 27, 2001, until April 30, 2001. The court found the delay excludable under 18 U.S.C. § 3161(h)(8) and cited as its reason defense counsel’s need for more time to adequately prepare for trial.
The granting of this continuance effectively superseded the prior sua sponte one-day continuance, rendering it a nullity and implicitly finding as of February 14 that the “ends of justice” would be served by delaying the start of trial as Fernandez requested. Fernandez cannot claim he was prepared for trial on February 26 but not February 27. The Speedy Trial Act is a shield, not a sword. United States v. Shetty, 130 F.3d 1324, 1331 (9th Cir.1997); see also United States v. Lewis, 980 F.2d 555, 562 (9th Cir.1992) (“Where a defendant’s own actions contribute to the need for an ‘ends of justice’ continuance under the [Speedy Trial Act] the defendant cannot complain that a continuance violates his or her speedy trial rights.”). Fernandez received a timely trial when he was ready for it under the Speedy Trial Act.
II
The district court acted within its discretion and properly admitted the testimony of Jim and Patricia Rhone under our four-factor test used to determine the admissibility of evidence of prior bad acts under Fed.R.Evid. 404(b). See, e.g., United States v. Bibo-Rodriguez, 922 F.2d 1398, 1400 (9th Cir.1991). The evidence adduced at trial tended to prove Fernandez’s knowledge (that the methamphetamine was in his vehicle) and his intent (to distribute the drug). The district court properly considered the prejudicial impact of the evidence and determined that it did not substantially outweigh the probative value. See Fed.R.Evid. 403.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. In a separate published opinion, we address Fernandez's argument that his car was stopped in violation of the Fourth Amendment. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217463/ | MEMORANDUM***
Amrik Singh Shergill, a native and citizen of India, petitions for review of the *782Board of Immigration Appeals’s (BIA’s) dismissal of his appeal from the immigration judge’s (IJ’s) denial of his application for asylum and withholding of deportation, and denial of his motions to remand to the IJ. We have jurisdiction under 8 U.S.C. § 1252(b). We grant the petition and remand to the BIA for further proceedings.
I.
Because the parties are familiar with the facts, we discuss them only insofar as necessary to reach our decision. We review the BIA’s negative credibility determination, a finding of fact, for substantial evidence. Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir.1988); Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987). We conclude that the BIA did not establish a sufficient foundation for a negative credibility determination, and hence the BIA erred in determining that Shergill was not eligible for asylum.1
Neither Shergill’s failure to mention his prior arrests in his asylum application nor his omission at the hearing of the three body searches that he described in his asylum application justify a negative credibility determination. The “failure to file an application form that was as complete as might be desired cannot, without more, properly serve as the basis for a finding of a lack of credibility.” Aguilera-Cota v. INS, 914 F.2d 1375, 1382 (9th Cir.1990); see also Akinmade v. INS, 196 F.3d 951, 956 (9th Cir.1999); Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996). Inconsistencies must be substantial and go to the heart of the asylum claim in order to form the basis for a negative credibility finding. Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1990); cf. Pal v. INS, 204 F.3d 935, 938 (9th Cir.2000). The events that were “at the heart of’ Shergill’s claim to persecution—the severe beatings and physical disablement of his brother and the incident in which the village was cordoned off and both brothers’ houses searched while they were beaten— were described consistently in both his application and testimony. In contrast, neither the searches nor his brief, uneventful arrests go to the heart of his claim, and thus his failure to reiterate them in every explanation of his asylum claim does not affect his credibility.
Additionally, the discrepancies noted by the BIA with regard to Shergill’s views on the necessity of creating an independent Sikh state of Khalistan do not justify a negative credibility determination. In Damaize-Job v. INS, we held that discrepancies “that are attributable to the applicant’s language problems or typographical errors and cannot be viewed as attempts by the applicant to enhance his claims of persecution have no bearing on credibility.” 787 F.2d 1332, 1337 (9th Cir.1986). Mistranslations and miscommunications cannot form the basis for a negative credibility finding. Akinmade v. INS, 196 F.3d at 956-57; Vilorio-Lopez v. INS, 852 F.2d at 1142.
Shergill’s application for asylum reflects the fact that he is not fluent in English, but only Punjabi. As the transcript of the asylum hearing establishes, he testified through an interpreter. It is significant that throughout his testimony Shergill consistently and repeatedly declared that he did not advocate for the creation of Khalistan or desire its creation. Although Shergill’s asylum application *783stated that he “demanded the peaceful creation of an independent Sikh State of Khalistan,” in his testimony Shergill explained that on one occasion, while speaking with members of his gurdwara about the arrests and mistreatment of his brother and other innocent Sikhs, he had said that if Khalistan were created it would “be better than this.” It is fully consistent for an individual who has been subjected to persecution to believe that “it would be better” if the government did not include his harassers, without having any intention of advocating for their removal. Shergill’s testimony reflects that this is what occurred here. Shergill’s asylum application was prepared by a legal assistant, who apparently failed to appreciate this fine distinction. This misunderstanding did not enhance Shergill’s claims of persecution, nor did it bear upon his fear for his safety; thus, as in Damaize-Job, it had “no bearing on credibility.” 787 F.2d at 1337. Because the BIA’s negative credibility determination is not supported by substantial evidence, we must regard Shergill’s testimony as credible. Salaam v. INS, 229 F.3d 1234, 1239 (9th Cir.2000); Vilorio-Lopez, 852 F.2d at 1142.
Shergill’s testimony regarding his objective and subjective fear of persecution on account of political opinion establishes that he is eligible for asylum. Shergill was arrested, searched, beaten, humiliated, and warned to cease voicing opinions contrary to the government. His brother was severely beaten by the police numerous times, ultimately causing him to become permanently disabled. The persecution of both Shergill and his brother occurred for the same reason: they were politically active in advocating for the rights of Sikhs. Thus, “the pattern of persecution [of petitioner’s brother was] closely tied to the petitioner.” Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir.1991); see also Mgoian v. INS, 184 F.3d 1029, 1036 (9th Cir.1999) (holding that an individual could establish a well founded fear of persecution based solely upon persecution of family members). The combination of the severe persecution of Shergill’s brother and abuse of Shergill constitutes past persecution. Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.2000) (holding that cumulatively, incidents may constitute persecution that individually would not rise to that level).
Shergill established that the persecution that he experienced was motivated by actual and imputed political opinion. Singh v. Ilchert, 63 F.3d 1501, 1508-09 (9th Cir.1995) (holding that imputed political opinion constitutes a protected ground and finding persecution on account of imputed political opinion where petitioner was falsely suspected of being a militant Sikh). The police arrested the brothers, beat them, and searched their homes because they believed that the brothers supported militants who advocated for the creation of Khalistan through violence. Additionally, the brothers were arrested and beaten for their actual political opinion in support of the boycott against the February 1992 elections.
We conclude that Shergill is eligible for asylum, and remand for the exercise of the Attorney General’s discretion.
II.
We also hold that Shergill is entitled to withholding of deportation. Past persecution triggers a presumption that an applicant is entitled to withholding of deportation. 8 C.F.R. § 208.16(b)(l)(i) (“If the applicant is determined to have suffered past persecution in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion, it shall be presumed that the applicant’s life *784or freedom would be threatened in the future in the country of removal on the basis of the original claim.”); see also Salazar-Paucar v. INS, 281 F.3d 1069, 1077 (9th Cir.2002) (noting that threats to life or freedom that constitute past persecution raise a presumption of future persecution sufficient to entitle petitioner to withholding of deportation), amended by 290 F.3d 964; Duarte de Guinac v. INS, 179 F.3d 1156, 1164 (9th Cir.1999) (same); Surita v. INS, 95 F.3d 814, 821 (9th Cir.1996) (same). Because the INS does not rebut this presumption, it is “more likely than not that [Shergill] would be subject to persecution” upon return to India, INS v. Stevic, 467 U.S. 407, 424, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), and we grant him withholding of deportation.2
PETITION GRANTED AND REMANDED.
This disposition is not appropriate for publi*782cation and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. When, as here, the BIA conducts a de novo review of the record, we review its decision rather than the IJ’s. Lal v. INS, 255 F.3d 998, 1001 (9th Cir.2001).
. Because we grant Shergill's request for withholding of deportation, we need not reach Shergill’s motions to remand due to indiscernible testimony or to apply for relief under the Convention Against Torture. However, we note that despite the INS’s representations to the contrary, the BIA’s treatment of the Convention Against Torture claim runs precisely contrary to our holding in Kamalthas v. INS, 251 F.3d 1279 (9th Cir.2001). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217465/ | MEMORANDUM**
The Board of Immigration Appeals (“BIA”) dismissed James Tavera Kho’s appeal from the decision of an Immigration Judge (“IJ”) denying his application for asylum and withholding of deportation. Kho petitions for review.
The IJ found Kho’s testimony incredible, but the BIA disagreed, concluding that a negative credibility determination was not supported by the record. We therefore assume that Kho’s factual contentions are true. Navas v. INS, 217 F.3d 646, 652 n. 3 (9th Cir.2000).
I. Asylum
Under 8 U.S.C. § 1158, Kho is eligible for asylum if he is a “refugee,” that is, if he is unable or unwilling to return to the Philippines “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or *787political opinion.” 8 U.S.C. § 1101(a)(42)(A). We hold that Kho qualifies for asylum because he has a well-founded fear of future persecution on account of political opinion.
A. “On account of’ political opinion. Assuming that Kho risks persecution, see infra Part I.B, we conclude that such persecution would be “on account of’ political opinion. The BIA offered several reasons for concluding otherwise, but substantial evidence does not support the BIA’s findings.
The BIA found that the NPA did not know Kho’s political opinions. This conclusion is not supported by substantial evidence. Kho’s conversation with “Fredo,” the phone calls Kho received from the NPA threatening him for being a government informant, and the subsequent shooting of Kho’s water tank together compel the conclusion that the NPA knew that Kho supported the government.
The BIA -wrote that it doubted that the NPA knew Kho was an informer because if they had suspected Kho of being an informer, the NPA “would have shot him instead of his water tank,” and because the police report does not offer independent confirmation of the shooting of the water tank. The first reason must be rejected as pure speculation and conjecture. The second is relevant only to Kho’s supporting documentation, and “an applicant may establish his case through testimony alone.” Navas, 217 F.3d at 655.
The BIA also found that the NPA sought to harm Kho for purely economic reasons. This conclusion is also not supported by substantial evidence. The phone calls Kho received compel the conclusion that the NPA’s motives were at least in part political. And, as we held in Lim v. INS, 224 F.3d 929, 934 (9th Cir.2000), and Borja v. INS, 175 F.3d 732, 737 (9th Cir.1999) (en banc), an alien can prove persecution on account of political opinion even where his persecutors were also motivated in part by economic reasons. Here, as in Lim and Borja, the evidence compels the conclusion that the NPA persecuted Kho in part because of Kho’s support for the government.
The BIA distinguished Borja on two grounds: first, that Kho did not affirmatively voice his opposition to the NPA or his support for the government; and second, that the NPA did not wound Kho. The first ground is untenable. Once Kho’s testimony concerning the threatening phone calls is credited, it is clear that the NPA knew Kho opposed them as clearly as they knew Borja did. The second ground is also untenable. The extent of the persecution Kho suffered, that is, whether or not he suffered physical injury, is irrelevant to the motivation for that persecution.
The BIA also rejected Kho’s claim that, as an alternative basis for relief, he had a well-founded fear of future persecution as a member of a particular social group based on his status as a government informer. We need not address this aspect of the BIA’s decision, because Kho’s status as a government informer may serve as the basis for his claim of a well-founded fear of future persecution based on political opinion. Lim, 224 F.3d at 934; Briones v. INS, 175 F.3d 727, 728-29 (9th Cir.1999) (en banc).
B. Well-Founded Fear of Future Persecution. We also hold that Kho’s fear of future persecution is both subjectively genuine and objectively reasonable, and thus “well founded.” See Lim, 224 F.3d at 934. The BIA did not doubt that Kho’s fear was subjectively genuine. And while the BIA did find that Kho’s fear was not objectively reasonable, substantial evidence did not support that conclusion.
*788Kho was repeatedly confronted by armed belligerents and repeatedly received vivid death threats. His property was riddled with gun-fire late at night, and he had a gun pressed to his side when he was accosted on his way to work early in the morning. “[A] reasonable factfinder would be compelled by this scenario to conclude that [Kho’s] fear is ... objectively well-founded.” Lim, 224 F.3d at 935 (citations and internal quotations omitted).
Contrary to the BIA’s finding, Kho’s delays in departing the Philippines do not obviate the objective reasonableness of Kho’s fear. Kho testified that the NPA continued to threaten his family while he was in Singapore, that the NPA sent him a death threat in the form of a funeral dress upon his return from Singapore, and that Kho and his family left the Philippines as soon after that final death threat as possible. Clearly, the danger to Kho was not diminishing with time. See Lim, 224 F.3d at 935 (“[A] post-threat harmless period need not vanquish an asylum claim, particularly where significant evidence suggests that the threats are becoming more menacing.”)
The BIA also addressed the question of changed country conditions. Relying on the State Department’s March 1996 Profile of Asylum Claims & Country Conditions, the BIA noted the percentage of the Philippines in which the NPA was active in 1996, and purported to calculate the percentage of the Philippine population who were members of the NPA in 1996. The BIA wrote that because those two percentages were so small, it could not conclude that Kho “would face NPA-administered persecution on a country-wide basis” in 2002.
In Lim and Briones “we addressed the same country and the same time frame,” and indeed State Department materials containing assertions nearly identical to those relied upon by the BIA here. We concluded that the NPA, “ ‘although somewhat weaker than before, remains capable of killing its opponents.’ ” Lim, 224 F.3d at 935 (quoting Briones, 175 F.3d at 729). We follow Lim and Briones and hold that “despite some evidence that might mitigate the probability of persecution,” Kho has established a well-founded fear of future persecution on account of political opinion. See Lim, 224 F.3d at 934 (“[E]ven a one-tenth possibility of persecution might effect a well-founded fear.”).
C. Past Persecution. Substantial evidence supports the BIA’s finding that the threats here did not constitute past persecution, whether on the basis of political opinion, or on the basis of membership in the social group consisting of government informers. While an alien need not show that a physical injury occurred to make out a claim of persecution, see Ruano v. Ashcroft, 301 F.3d 1155, 1159-61 (9th Cir.2002), “[o]ur court generally treats unfulfilled threats, without more, as within the category of conduct indicative of a danger of future persecution, rather than as past persecution itself.” Lim, 224 F.3d at 936.
II. Withholding of Deportation
An alien is not entitled to mandatory withholding of deportation “unless there is a ‘clear probability’—i.e. unless ‘it is more likely than not’—that he will be subject to persecution.” Lim, 224 F.3d at 938 (citations omitted). We conclude that the mitigating factors cited by the BIA and described above “provide substantial evidence to mitigate the risk” of persecution in this case “to something less than fifty percent.” Lim, 224 F.3d at 938.
III. Conclusion
We grant Kho’s petition for review in part. We affirm the denial of withholding *789of deportation but remand so that the Attorney General may exercise his discretion under § 208(a) of the Immigration and Nationality Act.
PETITION FOR REVIEW GRANTED IN PART; REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217466/ | *790MEMORANDUM *
The district court did not err when it applied the “more than minimal planning” and “abuse of trust” enhancements. Donohoue’s criminal behavior continued for a lengthy period of time and was sufficiently sophisticated to qualify as an offense involving “more than minimal planning.” United States v. Lindholm, 24 F.3d 1078, 1086 (9th Cir.1994) (citation omitted). In addition, Donohoue occupied a position of trust with his employer that provided him with “the freedom to commit a difficult-to-detect wrong.” United States v. Medrano, 241 F.3d 740, 746 (9th Cir.2001) (citation omitted).
The district court’s calculation of total loss for restitution purposes was not clearly erroneous. The unauthorized check was properly included in the court’s calculation of total loss as a loss resulting from factors extraneous to Donohoue’s criminal conduct. See United States v. Sarno, 73 F.3d 1470, 1500 (9th Cir.1995). In addition, Donohoue’s tax evasions in 1998 and 1999 were part of the same course of conduct as the 1997 tax evasion charge to which he pled guilty, and were therefore properly included in the total loss calculation for restitution purposes. See Chang v. I.N.S., 307 F.3d 1185, 1190 (9th Cir.2002). However, at oral argument the government candidly disclosed that the intended loss figure was calculated incorrectly for purposes of sentencing.1 When closely related counts are involved, they must be grouped, rather than aggregated, for purposes of determining the specific offense characteristic level. See U.S.S.G. § 3D1.2, U.S.S.G. ch. 3, pt. D, illus. 2 (2000). In this case the government concedes that the loss amounts for the taxes were impermissibly aggregated with the embezzlement loss amounts to determine the specific offense characteristic level. The tax loss amounts and the embezzlement loss amounts are to be aggregated to determine the base offense level, but, to determine the specific offense characteristic level, the total loss amount should have reflected only the higher of the two amounts, which was $83,850.00. Use of that amount would have resulted in an eight-level increase to the base offense level rather than the nine-level increase calculated in the Addendum to the Presentence Report.
Accordingly, Donohoue’s sentence is affirmed in part and vacated and remanded for the sole purpose of correcting the specific offense characteristic level. The total loss amount should be $83,850.00, warranting an eight-level increase, rather than nine levels. The district court should impose a corrected sentence to reflect the eight-level increase. No other aspect of Donohoue’s sentence may be considered on remand.
AFFIRMED IN PART; VACATED AND REMANDED FOR THE SOLE PURPOSE OF CORRECTING THE INTENDED LOSS AMOUNT AND IMPOSING A CORRECTED SENTENCE.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. The 2000 edition of the Guidelines Manual was used by the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217469/ | MEMORANDUM***
Petitioner Irina Makaeva, a Russian citizen and ethnic Ossetian, appeals the denial of her application for asylum and withholding of removal by the Board of Immigration Appeals (“BIA”). Makaeva claimed that she had been persecuted on the basis of her ethnicity by Russian Cossacks and ethnic Ingush. The BIA found that Makaeva had not shown past persecution or a well-founded fear of future persecution. We find that the BIA made factual and legal errors in its decision, requiring us to vacate the BIA’s order and remand for reconsideration.
‘Where, as here, the BIA reviews the [Immigration Judge’s] decision de novo, our review is limited to the BIA’s decision.” Singh v. Ashcroft, 301 F.3d 1109, 1111 (9th Cir.2002). The BIA’s determination that Makaeva did not show past persecution or a well-founded fear of persecution is a factual question reviewed for substantial evidence. Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000).
*798The BIA’s finding that Makaeva has not shown past persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion,” 8 U.S.C. § 1101(a)(42)(A), is supported by substantial evidence. The employment discrimination and harassment suffered by Makaeva does not rise to the level of persecution. See Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995). The attacks on Makaeva—characterized as attempted kidnappings—were not obviously carried out on the basis of her ethnicity. Although a reasonable fact-finder might conclude that Makaeva was targeted because she was Ossetian, it is not the case that “any reasonable adjudicator would be compelled” to reach this conclusion. 8 U.S.C. § 1252(b)(4)(B) (emphasis added).
The BIA’s finding that Makaeva had not shown a well-founded fear of future persecution, however, is undermined by an obvious factual error. The BIA gave two reasons for concluding that Makaeva’s fear of persecution was not well-founded: that her parents and brother continued to live unmolested in Russia, and that the secondary materials submitted by the government did not support her claims. But Makaeva told the IJ, and the government concedes, that her family now lives in the United States as legal immigrants. No reasonable factfinder could come to the conclusion that Makaeva’s family continued to reside in Russia.
We also note that, as to the use of secondary materials, the BIA has committed legal error. The BIA considered several U.S. government reports, and found that “nothing in these reports establishes a reasonable possibility that the respondent would be specifically targeted for death.” Under the caselaw of this Circuit, secondary materials need not establish the eligibility of an asylum claimant; we do “ ‘not require corroborative evidence’ ... from applicants for asylum and withholding of deportation who have testified credibly.” Ladha v. INS, 215 F.3d 889, 899 (9th Cir.2000) (citation omitted); see also Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th Cir.1999) (“[T]he purpose of country conditions evidence, such as the State Department Report and Profile submitted here, is not to corroborate specific acts of persecution (which can rarely be corroborated through documentation), but to provide information about the context in which the alleged persecution took place, in order that the factfinder may intelligently evaluate the petitioner’s credibility.”). There is no indication in the BIA’s opinion that Makaeva was not credible.
Because we cannot be sure whether the BIA would have reached the same conclusion regarding Makaeva’s fear of future persecution if it had found that Makaeva’s family was not still living in Russia, and if it had not improperly required that the secondary materials corroborate Makaeva’s testimony, we will remand to the BIA for reconsideration. As the Supreme Court has counseled, “ ‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.’ ” INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 355, 154 L.Ed.2d 272, 277 (2002) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985)).
The BIA’s dismissal of Makaeva’s appeal is therefore vacated and remanded with directions to reconsider whether she has shown a well-founded fear of persecution. If the BIA finds that she has, it should then determine whether to exercise its discretion to grant her asylum, and whether she is eligible for withholding of deportation.
*799VACATED and REMANDED with directions.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217472/ | MEMORANDUM**
Jesus Benitez-Navarrete appeals his one-hundred sixty-two month sentence imposed following his guilty plea conviction for conspiracy, 18 U.S.C. § 371, hostage taking, 18 U.S.C. § 1203, and use and possession of a firearm in commission of a violent crime, 18 U.S.C. § 924(c). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.
Benitez-Navarrete contends that the district court erred by enhancing his sentence pursuant to U.S.S.G. § 2A4.1(b)(l) for making a ransom demand because § 2A4.1(b)(l) is inapplicable to the offense of hostage taking. Benitez-Navarrete also contends that the district court’s factual findings are insufficient to sustain the ransom demand enhancement. We review the district court’s interpretation of the sentencing guidelines de novo, and the factual findings underlying the sentencing decision for clear error. United States v. Jordan, 256 F.3d 922, 926 (9th Cir.2001).
Contrary to Benitez-Navarrete’s contention, making a ransom demand need not be an element of the charged offense in order to be properly considered at sentencing. See United States v. MorenoHernandez, 48 F.3d 1112, 1115 (9th Cir.1995). Moreover, the district court did not clearly err in finding that Benitez-Navarrete made a ransom demand. As the district judge recognized, because Benitez-Navarrete was not the original smuggler, any amount he demanded constituted a ransom demand regardless of whether it was an increase over the original smuggling fee. Cf. United States v. Lopez-Flores, 63 F.3d 1468, 1476 (9th Cir.1995) (noting that, where the original smuggler coerces payment from a victim over what the victim initially agreed to pay, the smuggling is no longer consensual). Accordingly, the district court properly enhanced Benitez-Navarrete’s sentence after finding that he made a ransom demand. See United States v. Sierra-Velasquez, 310 F.3d 1217, 1221 (9th Cir.2002) (holding that the ransom enhancement applies anytime a defendant demands money for the release of a victim).
Benitez-Navarrete also contends that the district court erroneously denied him an additional 1-level reduction for acceptance of responsibility under U.S.S.G. § 3El.l(b). We review for clear error. United States v. Hock, 172 F.3d 676, 681 (9th Cir.1999).
The district court did not clearly err by denying Benitez-Navarrete an additional one-level reduction for acceptance of *806responsibility because Benitez-Navarrete provided incomplete and evasive information to the government concerning his involvement in the offense, see United States v. Chee, 110 F.3d 1489, 1494 (9th Cir.1997), and Benitez-Navarrete did not notify the government of his intent to plead guilty until the day trial was set to commence, see United States v. Kimple, 27 F.3d 1409, 1413 (9th Cir.1994).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224353/ | Memorandum Opinion and Order
John J. Tharp, Jr., United States District Judge
In this case, a pension fund and one of its trustees seek a declaratory judgment and injunction to bar an arbitration initiated by the defendant employer concerning the employer’s withdrawal liability to the pension fund. The gist of the dispute is whether the defendant initiated the arbitration within the statutorily prescribed period, and the defendant has moved to *794dismiss the complaint on a variety of grounds. The plaintiffs, in turn, have raised by motion a threshold issue that must be addressed before the Court can address the merits of the motion to dismiss, namely, whether the timeliness of the employer’s initiation of the arbitration proceeding is a question that should be determined by the arbitrator or this Court. Agreeing with the plaintiffs that this is a question for the Court under controlling Seventh Circuit authority, the Court grants the plaintiffs motion to stay the arbitration pending the Court’s ruling on the timeliness issue.
Background
Plaintiff Central States, Southeast and Southwest Areas Pension Fund (“the Plan”) is a multiemployer pension plan (meaning that a number of different employers contribute to the plan on behalf of their employees; see 29 U.S.C. § 1801(a)(3)). Plaintiff Bunte is a trustee of the Plan and he and his fellow trustees are the “plan sponsor” of Central States. 29 U.S.C. § 1301(a)(10)(A). For a period between approximately 2004 and 2008, Allega Concrete Corporation, the defendant in this case, was required to contribute to the Plan by virtue of collective bargaining agreements governing a Teamsters local comprising some of Allega’s employees. In 2012, pursuant to the requirements of the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”), the Plan determined that as of December 6, 2009, Allega had effected a “complete withdrawal” from the circumstances requiring it to contribute to the Plan. Pursuant to 29 U.S.C. § 1381(b), the Plan determined that Allega had incurred withdrawal liability in the amount of $371,570.83.1 The Plan sent notice of this withdrawal liability to Allega on or about November 8, 2012.
Under the MPPAA, an employer has 90 days after receipt of notice of a withdrawal liability assessment to request review of that ■ assessment. 29 U.S.C. § 1399(b)(2)(A). If there remains a dispute about the assessment of withdrawal liability after the 90-day review period, the employer may “initiate” arbitration of the dispute within a 60-day period beginning 120 days after the date that the employer requested review of the withdrawal liability.2 29 U.S.C. § 1401(a)(1). If the employer fails to timely initiate arbitration, the assessment becomes due and owing and the plan sponsor may bring an action in a state or federal court to collect the assessment. 29 U.S.C. § 1401(b).
On January 17, 2013, within the permitted 90-day period after notice of the withdrawal liability, Allega requested review of the withdrawal liability assessment. In addition to setting out grounds for the requested reconsideration, Allega stated that “depending on the outcome of the request for reconsideration, it is the intention at this juncture for the employer to demand arbitration under 29 U.S.C. §§ 1401 et. seq.” Ex. B, Def.’s Mem., Dkt. 16-1. Over the next six months, Allega *795also sent seven required withdrawal liability progress payments to the Plan via overnight express mail;3 each of these mailings included a cover letter that reiterated Mega’s “intention ... to demand arbitration” in the event that its request for review was denied. Ex. C, Def.’s Mem., Dkt. 16-1.
Based on the date of its request for review, Mega had 180 days, until July 16, 2013, to initiate an arbitration to resolve its dispute concerning withdrawal liability.4 On July 9, 2013, Mega sent a letter to the Plan stating, in part, that “[n]o information [in response to Mega’s request for review] was forthcoming from the Fund, thus necessitating this demand for arbitration.” Ex. D, Def.’s Mem., Dkt. 16-1. About three weeks later, on July 29, 2013, Mega submitted its claim to the American Arbitration Association (“AAA”). Ex. B, Pl.’s Reply, Dkt. 27-2; Ex. H, Def.’s Mem., Dkt. 16-1. The Plan, in turn, notified the AAA on August 13, 2013, that it “.disputes the AAA’s jurisdiction of this case due to the fact that Mega Concrete did not timely initiate arbitration.” Ex. A, PL’s Reply, Dkt. 27-1. Notwithstanding its objection to the AAA’s “jurisdiction,” the Plan participated in a conference call with the arbitrator and Mega’s counsel on September 23, during which it objected to the arbitrator’s adjudication of the question of whether Mega had timely initiated the arbitration. The Plan then filed its complaint in this Court for declaratory judgment and to enjoin arbitration with the AAA on September 25, 2013, and two days later, on September 27, 2013, filed with the AAA a motion to stay the arbitration. Ex. B, PL’s Reply, Dkt. 27-2.
Under the MPPAA, the Pension Benefit Guaranty Corporation (“PBGC”) has the authority to promulgate implementing regulations. 29 U.S.C. §§ 1395, 1399(c)(7). Mega maintains that its July 9, 2013, arbitration demand was a timely initiation of arbitration and complied fully with the PBGC implementing regulations. The arbitration demand was sent to the Plan before the 60-day window closed and the PBGC rules require that the notice of arbitration be sent only to the opposing party, not to the arbitrator or any other person or entity. See 29 C.F.R. § 4221.3(c). The PBGC rules impose some limited requirements as to the contents of the notice of arbitration — see 29 C.F.R. § 4221.3(d)— but the Plan does not argue that the notice was deficient in that regard.5 Since it is undisputed that the Plan received the July 9 demand for arbitration before the 60-day arbitration initiation window closed on July 16, Mega maintains that it timely initiated arbitration and that the Plan is therefore required to arbitrate the issues pertaining to Mega’s purported withdrawal liability. Acceptance of Mega’s argument would require the granting of its motion to dismiss the complaint.
The Plan grounds its argument that Mega failed to initiate the arbitration before the deadline imposed by the MPPAA on a provision of the PBGC implementing regulations that allows a plan to adopt alternative rules to those promulgated by *796the PBGC itself. The PBGC regulations specifically provide that “an arbitration may be conducted in accordance with an alternative arbitration procedure approved by the PBGC.” 29 C.F.R. § 4221.14(a). In 1986, the PBGC approved the AAA’s arbitration rules. See 51 Fed Reg. 22,585 (June 20, 1986); Central States, Southeast & Southwest Areas Pension Fund v. Ditello, 974 F.2d 887, 892 (7th Cir.1992) (“Central States has adopted the AAA arbitration rules which, pursuant to 29 C.F.R. § 2641.13(c), have been approved by the PBGC.”).
The AAA rules provide, among other things, that to “initiate” an arbitration, the party demanding arbitration must file at any Regional Office of the AAA two copies of the arbitration demand (along with a required administrative fee). Ex. F, Def.’s Mem., Dkt. 16-1. Section 6(b)(1) of the Plan expressly adopts the AAA arbitration rules:
Manner of Initiation: Arbitration is initiated by written notice to the Chicago Regional Office of the American Arbitration Association (“AAA”) with copies to the Fund (or if initiated by the Fund to the Employer) and the bargaining representative (if any) of the affected employees of the Employer. Such arbitration will be conducted, except as otherwise provided in these rules, in accordance with the “Multiemployer Pension Plan Arbitration Rules” (the “AAA Rules”) administered by the AAA. The initial filing fee is to be paid by the party initiating the arbitration proceeding. Arbitration is timely initiated if received by the AAA along with the initial filing fee within the time period prescribed by ERISA Section 4221(a)(1).
Ex. G § 6(b)(1), Def.’s Mem., Dkt. 16-1. Allega did not provide notice of its arbitration demand to the AAA until July 29, 2013, almost two weeks after the close of the 60-day arbitration initiation window provided by § 1401(a)(1). Accordingly, the Plan argues, Alega failed to timely initiate the arbitration. It maintains, therefore, that Alega should be enjoined from proceeding with its arbitration proceeding against the Plan.
The Threshold Issue of the Arbitrability of the Timeliness of Allega’s Initiation of Arbitration
Before the Court can address the question of whether Alega’s arbitration request was timely, the Court must determine whether the issue of the timeliness of the arbitration initiation is an issue for the Court or an arbitrator to decide.6 Usually, when this question arises, it is in the context of an arbitration agreement between the parties, and in that context, the Supreme Court has said clearly that, absent a contrary intention clearly expressed in the agreement, the timeliness of arbitration is a question for the arbitrator. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (holding that question of whether NASD limitations rules barred private arbitration “is a matter presumptively for the arbitra*797tor, not for the judge”). That is because, the Court concluded, the parties to private arbitration agreements would likely expect that their agreement to arbitrate would encompass procedural questions that grow out of the dispute and bear on its final disposition of the issue. Id. at 84, 128 S.Ct. 588.
But here, the arbitration requirement derives not from a private agreement between the parties but from statute.7 The MPPAA requires arbitration only of a dispute “concerning a determination made under sections 1381 through 1399” of the Act. 29 U.S.C. § 1401(a)(3)(A). Those are the withdrawal liability provisions and do not include the provisions regarding the timing of arbitration initiation, which are set forth in section 1401. Thus, in the present context, there is no basis to infer an agreement between the parties to submit questions about the timeliness of the initiation of arbitration to an arbitrator: the statute requiring arbitration excludes the arbitration initiation provisions from the scope of arbitrable issues.
Consistent with the MPPAA’s limitation on the scope of required withdrawal liability arbitration, the Seventh Circuit and other courts have expressly held that the question of the timeliness of the initiation of withdrawal liability arbitration under the MPPAA is for courts, not arbitrators, to decide. See, e.g., Robbins v. Chipman Trucking, Inc., 866 F.2d 899, 902 (7th Cir.1988); Doherty v. Teamsters Pension Trust Fund of Phila. & Vicinity, 16 F.3d 1386, 1391 n. 4 (3d Cir.1994); Pension Plan for Pension Trust Fund for Operating Eng’rs v. Weldway Constr., Inc., 920 F.Supp.2d 1034, 1045 (N.D.Cal.2013); Trs. of the Laborers’ Local 310 Pension Fund v. Able Contracting Grp., Inc., No. 06CV1925, 2006 WL 3023031, at *5 (N.D.Ohio Oct. 23, 2006). In so holding, the Seventh Circuit explained,
if the question of whether arbitration was waived remained a question for the arbitrator, the time limits in the statute would be toothless; employers could ignore the 120-day statutory limit for initiating arbitration and then move to dismiss the pension fund’s subsequent collection suit, claiming that the matter had to return to the arbitrator for a determination of whether the failure to file constituted a waiver. Our decision [committing the question of the timeliness of the initiation of the arbitration] allows the statutory time limit to retain its bite.
Chipman Trucking, Inc., 866 F.2d at 902.
Although Allega cites Howsam in its opening brief in support of its motion to dismiss and appears to assert there that the question of the timeliness of its initiation of arbitration should be determined by the arbitrator (Pl.’s Mem. 13, Dkt. 16), in its reply brief it expressly concedes that “the issue of whether an employer followed the controlling ‘initiation of arbitration’ rule is for Article III courts to resolve, rather than experienced withdraw [sic] liability arbitrators.” Pl.’s Reply 9, Dkt. 20. Consistent with that concession, Allega opposes the plaintiffs’ motion to stay the arbitration proceeding pending that determination only on the ground that the plaintiffs have effectively waived their right to seek a judicial determination of the timeliness of the arbitration notice by participating in the arbitration.
That argument has no merit. While it is true that a party that submits an issue to arbitration may be deemed to have waived the right to a judicial adjudi*798cation of that issue, there is no waiver of the right to litigate an issue in court when a party expressly objects to arbitration and participates only to the degree necessary to protect its rights. AGCO Corp. v. Anglin, 216 F.3d 589, 593 (7th Cir.2000) (If “a party clearly and explicitly reserves the right to object to arbitrability, his participation in the arbitration does not preclude him from challenging the arbitrator’s authority in court.”). And here, it appears that the plaintiffs did everything in their power to object to the arbitration. As they detail in their reply brief, they objected to the arbitration by letter to the AAA on August 13, 2013; they objected to the arbitrator’s adjudication of the timeliness issue in a conference call with the arbitrator on September 23, 2013; they filed a motion in the arbitration seeking to stay the arbitration so that the timeliness issue could be adjudicated in court; and — last but certainly not least— the plaintiffs filed a law suit in this court seeking to enjoin the arbitration altogether (and in which they filed the instant motion to stay the arbitration proceedings pending adjudication of the timeliness issue by the court). In light of these actions, Allega’s effort to characterize the plaintiffs as playing a “heads I win, tails you lose” game of deception regarding their willingness to arbitrate flirts with the outer boundaries of permissibly zealous advocacy. The plaintiffs were not required to stand by while Allega proceeded with an arbitration against them in absen-tia; they were entitled to, and did, participate in the arbitration under protest and while actively seeking to stop the arbitration from proceeding. Nothing more could have been expected from them.
*****
For the reasons set forth above, the Court grants the plaintiffs’ “Motion for Order Enjoining Defendant from Arbitrating Its Claim,” which despite its title, seeks only to bar further proceedings in the arbitration until the Court has addressed the question of the timeliness of Allega’s initiation of the arbitration. Further proceedings on the arbitration claim submitted by Allega to the AAA on or about July 29, 2013, concerning Allega’s purported withdrawal liability owed to the Plan, are hereby stayed pending further order of this Court.
. The MPPAA provides that when an employer withdraws from a multiemployer plan, it must pay “withdrawal liability” in an amount roughly equal to its proportionate share of the plan’s unfunded vested benefits, which is the difference between the present value of a pension plan's assets and the present value of the benefits it will be obligated to pay in the future. See 29 U.S.C. §§ 1381-82, 1391; Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 217, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986).
. More completely, the employer is required to initiate arbitration within a 60-day period after the earlier of 120 days after the request for review, or the date of the response to such request. In this case, the earlier date is 120 days after the request for review; Allega complains that the Plan never responded to its request for review.
. Employers who have been assessed withdrawal liability are required to make periodic progress payments until the dispute over withdrawal liability has been resolved. See 29 U.S.C. § 1401(d).
. Calculated as follows: Date of request (January 17, 2013) + 120 days after request + 60-day arbitration window = maximum of 180 days after January 17, 2013, or July 16, 2013. Allega erroneously calculates this date as July 17, 2013.
.Allega did fail to include as an attachment the Plan’s assessment of withdrawal liability, as required by § 4221(d), but Allega rectified that omission by resending the notice on July 10 with that document.
. Allega raises a second threshold question regarding the Plan’s standing to assert the claims set forth in the complaint. Allega contends that ERISA’s remedial provisions permit only plan participants, beneficiaries, and fiduciaries to bring suit to enforce the statute's requirements. But the Seventh Circuit has squarely held that a multiemployer pension plan is a fiduciary under ERISA — see Line Constr. Benefit Fund v. Allied Elec. Contractors, Inc., 591 F.3d 576, 579 (7th Cir.2010) — so Allega’s standing argument goes nowhere. The argument would accomplish nothing even if it had merit, since Allega does not (and cannot) dispute that Plaintiff Bunte, a trustee of the Plan, is an ERISA fiduciary. Whether the Plan has standing or not, Bunte does and the suit may therefore go forward regardless.
. The arbitration provisions in the Plan mirror those of the statute, referring only matters of withdrawal liability to arbitration. See Ex. G § 6, PL’s Mem., Dkt. 16-1. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224354/ | MEMORANDUM OPINION AND ORDER
Harry D. Leinenweber, Judge, United States District Court
Before the Court are four Motions for Summary Judgment and two Motions to Strike, all filed by Defendants.
I. BACKGROUND
Plaintiff Steven Rusinowski (“Steven”) is (or at least was) an active user of “Battle-Cam.com,” a website where users broadcast themselves on camera and role-play with other users in aggressive, intimidating, and combative scenarios. On this website, users expect to see pranks, threats, and unusual behavior. Steven’s online role-playing overflowed into real life, leading ultimately to this nine-count lawsuit against five defendants.
The principal events took place on and shortly after March 4, 2011, but relevant background goes back somewhat further. Steven is twenty-nine years old, enrolled in classes at Elmhurst College, and lives with his father, Plaintiff Joseph Rusinowski, in Hillside, Illinois. On November 11, 2010, Hillside Police arrived unannounced at the Rusinowski home based on a “concerned citizen” report from a caller who claimed that Steven was suicidal. The Police entered the home and found Steven sleeping in his bedroom with no apparent suicidal thoughts. Joseph Rusinowski later learned from Hillside Police Chief Joseph Lukaszek (“Chief Lukaszek”) that Defendant Robert DiDomenico (“DiDomenico”) was the anonymous caller, though DiDo-menico disputes that he placed the call.
A few months later (the exact date is unclear), Elmhurst College security received a call stating that Steven was bringing weapons to and selling drugs on campus. The College’s security employees observed Steven on BattleCam.com and notified Elmhurst Police of their concerns about Steven.
This brings us to March 4, 2011. Starting around midnight, Steven was on Batt-leCam.com with DiDomenico, a user with whom Steven was acquainted. The two were online for more than eight hours *805straight. Steven was displaying a handgun, making lewd comments about other users, and drinking beer — all of which seem par for the BattleCam.com course. DiDomenico decided to call the Hillside Police — depending on whom you ask, DiDomenico was playing either a prank on Steven or concerned for Steven’s safety and well-being. DiDomenico spoke with Chief Lukaszek and told him that Steven could be seen on BattleCam.com drinking, waving loaded weapons, and threatening himself and others. Chief Lukaszek later testified that DiDomenico told him that Steven was suicidal.
In response to the call, Chief Lukaszek drove to the Rusinowski house in his police vehicle. Once there, he stayed in his car and observed a live feed of Steven on BattleCam.com for 20-25 minutes. He saw Steven waving guns around, drinking, “acting obnoxious,” and threatening someone named Alex who lives in North or South Carolina. Chief Lukaszek did not hear Steven threaten suicide, but based on the circumstances, Chief Lukaszek was concerned for the safety of Steven and others.
Chief Lukaszek called the Rusinowski house several times, but nobody answered. He then approached the house and knocked on the front door. Steven answered the door, but did not open it the entire way, apparently because the door sticks easily. Chief Lukaszek could see only one of Steven’s hands, so he asked Steven to show both hands. Steven says that he complied with this order, but Chief Lukaszek contends that Steven refused eight commands to show both hands and responded with “why” and “but why” after each one. Lukaszek Dep. 87:13-88:14. Chief Lukaszek may have ordered Steven to get on the ground, but the record is unclear. The parties agree that, eventually, Chief Lukaszek grabbed Steven’s arm and pulled him outside. Steven fell forward and scraped his hand on the concrete, and then he was secured and taken to the Hillside Police Department. Hillside Police Officers then searched the Ru-sinowski house and recovered two handguns, one of which was loaded. After spending some time at the police department (the witnesses’ estimates range from thirty minutes to two hours), Steven consented to being transported to Elmhurst Memorial Hospital.
Events at the Hospital are disputed. Defendants contend that Steven was examined by Defendant Dr. David Andreski (“Dr.Andreski”), but Steven insists that Dr. Andreski never examined him. Steven does not contest, however, that he was examined by Melissa Kroll, a clinician consultant, who concluded that Steven posed a danger to himself and others. Chief Lu-kaszek was called to the hospital, and once there he spoke with medical staff and filled out a petition to have Steven committed for mental health evaluation. Dr. Andre-ski signed a certificate that indicated that he had examined Steven and determined that Steven was a danger to himself or others. Steven was transferred to Madden Health, where he remained until March 10, 2011.
Steven testified that these events exacerbated his anxiety. In the wake of his involuntary commitment, he suffered from pain, anguish, difficulty sleeping, humiliation, and loss of appetite. He failed a midterm examination in one of his courses, and had to drop the class. Steven and his father brought this nine-count Amended Complaint, alleging a variety of federal and state claims, against Chief Lukaszek, the Village of Hillside, Robert DiDomeni-co, Dr. Andreski, and Elmhurst Memorial Healthcare. All Defendants have now moved for summary judgment, and have *806moved to strike portions of Plaintiffs’ filings.
II. MOTIONS TO STRIKE
Defendants have filed Motions to Strike that take issue with Plaintiffs’ response to Defendants’ statements of material facts.
In this District, a motion for summary judgment must be accompanied by a “statement of material facts as to which the moving party contends there is no genuine issue.” Local Rule 56.1(a)(3). The opposing party must respond to the movant’s statement and support any disagreement with “specific references to the affidavits, parts of the record, and other supporting materials relied upon.” Local Rule 56.1(b)(8)(B). Local Rule 56.1 is supposed to facilitate this Court’s adjudication of summary judgment motions “by requiring the parties to nail down the relevant facts and the way they propose to support them.” Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir.2012).
While some of Plaintiffs’ answers comport with this requirement, others miss the mark completely. For example, the Village’s Statement 32 asserts that DiDomen-ico told Chief Lukaszek that Steven had loaded weapons and was suicidal. Village of Hillside L.R. 56.1 Statement of Facts (“Village SOF”) 32. The Village supports that statement with a citation to Chief Lukaszek’s deposition, in which he testified that DiDomenico told him Steven threatened suicide. Lukaszek Dep. 308-09. As we will see, the content of DiDomenico’s conversation with Chief Lukaszek is critical to whether Chief Lukaszek was justified in believing that Steven needed assistance because he was about to commit suicide.
Plaintiffs respond to Statement 32 not with any evidence that DiDomenico did not say that Steven was suicidal, but with the unhelpful declaration that “Plaintiff neither admits nor denies [statement 32] as Plaintiff lacks personal knowledge of what DiDomenico actually told the Hillside Police.” Plaintiffs’ L.R. 56.1 Statement of Facts (“PL SOF”) 32. Of course Plaintiff lacks personal knowledge of the phone call — he was not a party to it. Plaintiffs response should have indicated what basis, if any, Plaintiff has to contest Chief Lu-kaszek’s version of the phone call. If Plaintiff cannot marshal any evidence to show that DiDomenico did not tell Chief Lukaszek that Steven was suicidal, then the Court — whether on summary judgment or at trial — will have no choice but to rule on the basis of the evidence presented by the Village. In short, Plaintiffs non-response fails to show that there is a genuine factual dispute.
For many of Plaintiffs responses, Plaintiff has failed to provide evidence that controverts Defendant’s statements. The Court need not, at this point, go through each contested paragraph to determine whether or not to strike it. Rather, the Court will address any insufficient statements when they arise in the summary judgment analysis. Dimmitt & Owens Fin., Inc. v. Superior Sports Prods., Inc., 196 F.Supp.2d 731, 737 (N.D.Ill.2002). Therefore, the Motion to Strike is granted as discussed throughout the analysis, and denied without prejudice as to those paragraphs that do not arise in the summary judgment analysis.
III. MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Crv. P. 56(a). The Court construes all facts and draws all reasonable inferences in favor of the non-moving *807party. Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009).
A. Fourth Amendment Search and Seizure — Count I
1. Seizure
Chief Lukaszek argues that he is entitled to summary judgment on the illegal seizure claim because he had probable cause. The parties appear to agree that this issue should be governed by the familiar rule that a police officer has probable cause to arrest an individual when the facts and circumstances that are known to him support a reasonable belief that the individual has committed, is committing, or is about to be commit a crime. Holmes v. Village of Hoffman Estate, 511 F.3d 673, 679 (7th Cir.2007). Chief Lukaszek argues that he had probable cause to think that Steven was about to commit suicide.
For this case, the problem with the regular probable cause test, and with Chief Lukaszek’s proffered justification for the search and seizure, is that suicide is not a crime in Illinois. Royal Circle v. Achterrath, 204 Ill. 549, 68 N.E. 492, 498 (Ill. 1903) (noting that “suicide is not a crime under the statutes of this state”); People v. Peters, 180 Ill.App.3d 850, 129 Ill.Dec. 625, 536 N.E.2d 465, 468 (1989) (explaining that “suicide and attempted suicide are not crimes in this State”). The intrusion on Steven’s Fourth Amendment rights cannot be supported by any fear that he was about to commit a crime.
This case is better analyzed under precedent that governs police responses to emergency situations. As the Supreme Court has explained, “[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Exigent circumstances can justify a warrantless search “where the police reasonably feared for the safety of someone inside the premises.” United States v. Brown, 64 F.3d 1083, 1086 (7th Cir.1995). The officer must establish that the circumstances as they appeared at the moment of entry, viewed objectively, would have led “a reasonable, experienced law enforcement officer to believe that someone inside the house, apartment, or hotel room required immediate assistance.” United States v. Richardson, 208 F.3d 626, 629 (7th Cir.2000).
The Seventh Circuit addressed this issue recently in Fitzgerald v. Santoro, 707 F.3d 725 (7th Cir.2013). In that case, the plaintiff called the police non-emergency number and spoke with the late-night desk officer. Id. at 728. The officer could tell that the plaintiff was intoxicated, and noted that she sounded very depressed and possibly suicidal. Id. Two officers and two paramedics were' dispatched to the plaintiffs house, where they made a forcible, warrantless entry. Id. That conduct did not violate the Fourth Amendment because “the officers had an objectively reasonable belief that they needed to enter without a warrant in order to prevent serious injury.” Id. at 732.
It is uncontested that, during the early morning hours of March 4, 2011, Steven was on Battlecam.com and could be seen consuming alcohol and waving handguns. It is also uncontested that DiDo-menico called the police. Chief Lukaszek testified that DiDomenico told him that Steven was suicidal. Village SOF 32. As discussed above, Plaintiff has failed to present evidence showing a genuine dispute as to paragraph 32, and thus Chief Lukaszek’s testimony is deemed admitted. For the same reason, the Court considers *808it undisputed that Chief Lukaszek then, while in his police vehicle, viewed a live feed of Steven on Battlecam.com and confirmed that Steven was waving guns around and drinking. Village SOF 36. On these facts, it was objectively reasonable for Chief Lukaszek to believe that Steven was about to hurt himself and required immediate assistance.
It is important to note several facts that do not change the analysis. First, no material issue of fact is created by Steven’s testimony that he never threatened to harm himself. This analysis turns on the facts known to the officer at the time of entry. Just as in Fitzgerald, where the plaintiff argued that she did not actually threaten suicide, the officer’s actions are judged based on the information known to the officer at the time. Fitzgerald, 707 F.3d at 731.
Second, DiDomenico’s hazy memory of what he said to the police does not create a genuine factual dispute because it does not contradict Chief Lakuszek’s testimony. Plaintiffs have not directed the Court to any evidence that DiDomenico denies telling Chief Lakuszek that Steven was suicidal.
Third, Plaintiffs’ challenge to Chief Lakuszek’s credibility carries no weight on summary judgment, where the Court searches for genuine disputes as to material facts and does not assess the credibility of witnesses. Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir.2008).
Fourth, while previous false reports that Steven was suicidal could have given the police department some cause for skepticism of this newest report, even Plaintiff concedes that “[t]he information provided by DiDomenico may have warranted a well-being check and further investigation.” ECF No. 102 at 14.
Finally, it does not matter that Chief Lukaszek never observed Steven threaten suicide. Chief Lukaszek confirmed DiDo-menico’s reports that Steven was on Batt-lecam.com, drinking beer, and waving handguns; those corroborating facts entitled Chief Lukaszek to credit DiDomeni-co’s report and fear that Steven was suicidal. Illinois v. Gates, 462 U.S. 213, 242, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (explaining that “an officer may rely upon information received through an informant, rather than upon his direct observations, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge”).
Thus, the Court grants summary judgment in favor of Chief Lukaszek as to Fourth Amendment claims arising out of the seizure of Steven Rusinowski at the Rusinowski home.
2. Search
Separate issues arise due to the fact that Village police searched the Rusi-nowski house after they secured Steven. Chief Lukaszek argues that this search, during which the police recovered the weapons displayed on the webcam, was reasonable under the so-called “protective sweep exception.” As the Seventh Circuit explained recently, “a protective sweep is a quick and limited search of premises conducted to protect the safety of police officers or others.” United States v. Starnes, 741 F.3d 804, 807, 2013 WL 6731784, *2 (7th Cir.2013). Incident to an arrest, officers may “look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The search may extend beyond those immediately adjoining spaces when “articulable facts ... would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual *809posing a danger to those on the arrest scene.” Id.
It is uncontested that Chief Lukaszek pulled Steven out of the house and then handcuffed him. At that point, Chief Lu-kaszek and other officers had observed Steven drinking beer, waving around guns, and resisting police instructions to either show his hands or get on the ground. Officers then conducted a short, limited searched of the house to determine that the area was secure. Chief Lukaszek went directly to the room where Steven displayed the handguns and seized the handguns in question, then searched the house to make sure there were no victims in the house and no other occupants to pose a threat to the officers. There is no indication that the officers opened any cabinets or drawers or otherwise expanded the scope of the search. Even when the facts are viewed in the light most favorable to Steven, the search was permissible under the protective sweep exception. See also, Leaf v. Shelnutt, 400 F.3d 1070, 1086 (explaining that a protective sweep can be reasonable to protect the safety of officers and potential victims of violence). The Motion for Summary Judgment is granted as to Plaintiffs’ Fourth Amendment search claim in Count I.
B. Excessive Force — Count II
Chief Lukaszek has moved for summary judgment as to Count II, in which Steven alleges that Chief Lukaszek used excessive force when arresting him. This claim is analyzed under the Fourth Amendment’s objective-reasonableness standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The Court focuses its inquiry on the totality of the circumstances “to determine whether the intrusion on the citizen’s Fourth Amendment interests was justified by the countervailing governmental interests.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 861 (7th Cir.2010). Important factors include (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is “actively resisting arrest or attempting to evade arrest by flight.” Id.
The parties do not dispute that Chief Lukaszek knocked on the Rusinow-skis’ front door, and that Steven opened the inside wood door fully and the outside screen door halfway. At that point Chief Lukaszek instructed Steven to show both his hands. Chief Lukaszek testified in his deposition that Steven showed him only one hand and asked “why” and “but why” repeatedly. Lukaszek Dep. at 87-88. Steven testified that Chief Lukaszek and other officers asked him to get on the ground after he showed both hands. S. Rusinowski Dep. 444:7-9. It is undisputed that Chief Lukaszek then grabbed Steven’s forearm and pulled him out of the doorway, at which point Steven fell down the front steps. Steven scraped his hand on the concrete outside his home.
As discussed above, suicide is not a crime in Illinois. Thus, the Court is unable to assess the “severity of the crime at issue.” Viewing the facts in the light most favorable to the non-moving party, the Court must accept Steven’s testimony that he showed both hands. But even with both hands showing, Steven could have had a gun hidden — the officers had just seen Steven on camera drinking and waving a gun around. So the officers proceeded cautiously and asked Steven to get to the ground. When Steven resisted, the officers grabbed Steven’s arm and threw him to the ground. Even when these facts are viewed in the light most favorable to Steven, the Court sees no genuine dispute that the use of minimal force was justified by the threat that Steven posed to officer safety and Steven’s resistance to the in*810structions he was given by police. As to Count II, Defendant’s Motion for Summary Judgment is granted.
C. Battery—Count III
In Illinois, battery claims against police are limited by the principle that an arresting officer “generally may use any force reasonably necessary to effect an arrest.” People v. Sims, 374 Ill.App.3d 427, 312 Ill.Dec. 753, 871 N.E.2d 153, 157 (2007). However, an officer has no right to use excessive force. Id. As explained above, Chief Lukaszek is entitled to summary judgment on Steven’s excessive force claim. Thus, Defendant’s Motion for Summary Judgment is granted as to the battery claim as well.
D. Medical Negligence—Count IV
Under Illinois law, a plaintiff alleging medical malpractice must establish (1) the proper standard of care against which the defendant physician’s conduct is measured, (2) an unskilled or negligent failure to comply with the applicable standard, (3) a resulting injury, and (4) proximately caused by the physician’s want of skill or care. Sullivan v. Edward Hosp., 209 Ill.2d 100, 282 Ill.Dec. 348, 806 N.E.2d 645, 653 (Ill.2004).
1. Against Dr. Andreski
Steven argues that Dr. Andreski committed negligence per se by violating the Illinois Mental Health and Developmental Disabilities Code. The Code provides for involuntary commitment of a psychiatric patient who, due to mental illness, is a danger to himself or others. 405 Ill. Comp. Stat. 5/3-601. Involuntary commitment must be based on a petition that includes “[a] detailed statement of the reason for the assertion that the respondent is subject to involuntary admission on an inpatient basis.” Id. The petition “shall be accompanied by a certificate executed by a physician” or other qualified individual that indicates that the physician “personally examined the respondent” and details “clinical observations ... relied upon in reaching a diagnosis.” 405 Ill. Comp. Stat. 5/3-602.
It is uncontested that Chief Lu-kaszek filled out the petition, and that Dr. Andreski completed the certificate. Dr. Andreski testified that he examined Steven before completing the certificate. Andre-ski Dep. 28:3-5. Steven, however, insists that no such examination ever took place. S. Rusinowski Dep. 372:23-373:1. By affidavit, Steven states that he met Dr. An-dreski for the first time when he took his grandmother to Elmhurst Memorial Hospital in October 2012. S. Rusinowski Aff. ¶ 1, 3. At that meeting, Steven did not think that Dr. Andreski recognized him. Id. at ¶ 5, 7.
These competing positions are irreconcilable: either the examination took place, or it did not. They evidence a genuine dispute—on the evidence provided, a rational trier of fact could credit either version. This issue is material because it bears directly on whether Dr. Andreski complied with the statute’s requirement of a personal examination.
It does not matter that the evidence supporting Steven’s position comes from his deposition and affidavits. Defendants argue that a plaintiff cannot rely on self-serving evidence to defeat summary judgment, but as explained recently by the Seventh Circuit, “the term ‘selfserving’ must not be used to denigrate perfectly admissible evidence through which a party tries to present its side of the story at summary judgment.” Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir.2013) (overruling Albiero v. City of Kankakee, 246 F.3d 927 (7th Cir.2001)). As to this Count, the Motion for Summary Judgment is denied.
*811
2. Against Elmhurst Memorial Healthcare
Steven’s case against Elmhurst Memorial Healthcare (“Elmhurst” or “EMH”) is premised on an agency relationship between EMH and Dr. Andreski. Steven has not argued that Dr. Andreski was EMH’s employee, nor has he argued that Dr. Andreski was EMH’s actual agent. Thus, he must rely on a theory of apparent agency.
In Illinois, a hospital may be liable vicariously for the medical or professional negligence of a non-employee treating physician if there is an apparent agency relationship between the hospital and the treating physician. Gilbert v. Sycamore Mun. Hosp., 156 Ill.2d 511, 190 Ill. Dec. 758, 622 N.E.2d 788, 794 (Ill.1993). In Gilbert, the Illinois Supreme Court set out three elements that a plaintiff must prove to establish apparent agency:
(1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.
Id., at 795. The Court stressed that “[i]f a patient knows, or should have known, that the treating physician is an independent contractor, then the hospital will not be liable.” Id. at 794.
As an initial matter, Steven asserts that the Court should apply the borrowed servant doctrine of agency law. Steven cites to cases from Maryland that apply Maryland law. See, e.g., Rivera v. Prince George’s County Health Dept., 102 Md. App. 456, 649 A.2d 1212 (Md.App.1994). But Gilbert is well-settled in Illinois, and Steven gives the Court no reason to think that an Illinois court would apply the borrowed servant principles from Maryland law. Thus, the Court’s analysis will follow the framework established by Illinois courts in Gilbert and its progeny.
The parties do not dispute that, prior to March 4, 2011, Steven had been to the emergency room at Elmhurst Memorial Hospital on at least seven occasions. They agree that on six of these occasions, Steven signed consent forms that stated that:
[t]he emergency room physician, pathologist and radiologist are not hospital, Elmhurst Clinic, or Elmhurst Memorial Healthcare employees. They are independent physician specialists providing specialized treatment.
Elmhurst SOF 32. Steven signed a similar form on the seventh visit. Steven concedes that, had he read the consent forms, he would have understood that the hospital did not employ the doctors. Steven admits that no one at the hospital ever told him that the doctors were employed by the hospital.
The presence of this sort of disclaimer in a signed waiver, while not dis-positive, is an important factor for courts to consider when determining whether the hospital acted in a manner that would lead a reasonable person to conclude that the doctor was an employee or agent of the hospital. James v. Ingalls Mem’l Hosp., 299 Ill.App.3d 627, 233 Ill.Dec. 564, 701 N.E.2d 207, 210-11 (1998). In one case, the plaintiff signed a consent form with a similar disclaimer, then later asserted that she believed the doctor was a hospital employee, but did not point to any specific actions the hospital took that led her to that conclusion. Churkey v. Rustia, 329 *812Ill.App.3d 289, 263 Ill.Dec. 761, 768 N.E.2d 842, 846-47 (2002). The court granted summary judgment for the hospital on the apparent agency theory. Id.
Just like the Churkey plaintiff, Steven signed a waiver that explained that his doctors were not employed by the hospital. Steven points to no specific actions that the hospital took that reasonably would have given him the impression that Dr. Andreski was a hospital employee — again just as in Churkey. Accordingly, Elm-hurst Memorial Healthcare is granted summary judgment on Steven’s medical negligence claim.
E. EMTALA — Count V
The federal Emergency Medical Treatment and Active Labor Act (“EMTALA”) imposes two requirements on covered hospitals. First, they must “provide for an appropriate medical screening examination” for those individuals who come to the hospital’s emergency department and request treatment. 42 U.S.C. § 1395dd(a). Second, if the hospital determines that an individual has an emergency medical condition, the hospital must either treat the condition or arrange for the individual to be transferred to another medical facility. 42 U.S.C. § 1395dd(b)(1). Steven argues that EMH violated both of its duties under EMTALA.
1. Screening Requirement
The statute does not define what it means by “an appropriate medical screening examination.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 879 (4th Cir.1992). The Seventh Circuit has not addressed this issue. Other Circuits, however, agree that hospitals satisfy the screening requirement when they “apply their standard screening procedure for identification of an emergency medical condition uniformly to all patients.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 878 (4th Cir.1992); Marshall v. E. Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 322 (5th Cir.1998) (examination is judged by “whether it was performed equitably in comparison to other patients with similar symptoms”).
It is uncontested that Steven was evaluated by at least one nurse that Steven’s blood alcohol content was measured, and that Steven was evaluated by a clinician to determine whether Steven required psychiatric hospitalization. However, the parties dispute, as discussed above, whether Dr. Andreski examined Steven. In his sworn testimony, Steven has indicated repeatedly that Dr. Andreski never examined him. The Court must view this disputed fact in the light most favorable to Steven, the non-moving party.
It is reasonable to infer — given the hospital’s insistence that its physician examined Steven — that the hospital’s regular practice is for a physician to examine those patients presenting with symptoms similar to Steven’s. If Steven can show that Dr. Andreski never examined him — and thus that Dr. Andreski’s representations to the contrary were fabrications — then he should be able to show that the hospital treated him differently that it treats other patients presenting with similar symptoms. For this reason, the Court must infer that, if Steven’s version of his treatment is proven at trial, Steven can also show that his treatment was not performed equitably in comparison to other patients with similar symptoms. Elmhurst cites no authority for its argument that a screening examination can be adequate even if it was not conducted by a physician. Thus, EMH’s Motion for Summary Judgment is denied as to Steven’s EMTALA screening claim.
2. Stabilization and Transfer Requirements
To succeed on a claim that a hospital failed to comply with EMTALA’s stabilization and transfer requirements, a *813plaintiff must establish that the hospital detected an emergency medical condition, the patient was not stabilized before transfer, and the hospital neither obtained the patient’s consent to transfer nor completed a certificate indicating the transfer would be beneficial to the patient and was appropriate. Thomas v. Christ Hosp. and Med. Ctr., 328 F.3d 890, 893-94 (7th Cir.2003); Holcomb v. Monahan, 30 F.3d 116, 117 (11th Cir.1994). A hospital may not transfer the patient unless a physician:
has signed a certification that based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual.
42 U.S.C. § 1395dd(c)(1)(ii).
Steven has not provided evidence that the hospital detected an “emergency medical condition” as defined by the statute. To the contrary, Steven argues throughout his filings that he never threatened to harm himself or others and did not even need to be in the hospital. See, e.g., ECF No. 159-1 at 3.
Plaintiff bears the burden of proving the elements of an EMTALA violation. By pointing out the absence of evidence to support this claim, EMH placed the burden on Steven to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Because Steven has failed to present the Court with evidence to support a finding that he suffered from an emergency medical condition, there is no factual dispute for trial. Thus, EMH’s Motion for Summary Judgment is granted as to Steven’s EMTALA stabilization and transfer claim.
F. False Imprisonment — Count VI
In Count VI, Steven alleges a state law claim for false imprisonment against Chief Lukaszek and Elmhurst. To state a cause of action for false imprisonment under Illinois law, “the plaintiff must allege that his personal liberty was unreasonably or unlawfully restrained against his will and that defendant(s) caused or procured the restraint.” Arthur v. Lutheran Gen. Hosp., 295 Ill.App.3d 818, 230 Ill.Dec. 72, 692 N.E.2d 1238, 1243 (1998). Detention that is lawful pursuant to the provisions of Illinois law cannot be the basis of a false imprisonment claim. Sassali v. DeFauw, 297 Ill.App.3d 50, 231 Ill.Dec. 646, 696 N.E.2d 1217, 1218-19 (1998). Illinois law allows a peace officer to:
take a person into custody and transport him to a mental health facility when the peace officer has reasonable grounds to believe that the person is subject to involuntary admission on an inpatient basis and in need of immediate hospitalization to protect such person or others from physical harm.
405 Ill. Comp. Stat. 5/3-606.
Steven argues that there was no objectively reasonable justification for Chief Lukaszek’s actions. But, as discussed above, Chief Lakuszek seized Steven lawfully when he thought that Steven required immediate assistance. Chief Lu-kaszek’s actions were thus permissible under 405 Ill. Comp. Stat. 5/3-606, and cannot be the basis of a false imprisonment action. Against EMH, Steven relies on the same argument that he was never lawfully arrested by law enforcement. These arguments do not provide the Court with a basis to deny summary judgment.
In addition, Steven attempts to argue that the detention, even if initiated lawfully, became unlawful once Chief Lukaszek and Dr. Andreski signed false certifica*814tions. As to Chief Lukaszek, Steven has not presented any evidence that the certification was false — as discussed above, Chief Lukaszek’s testimony does not contradict DiDomenieo’s. And Dr. Andreski is not a Defendant as to this Count. Dr. Andre-ski’s conduct cannot be attributed to Elm-hurst because, as discussed in part III. D.2., Steven cannot rely on any agency theories to tie Dr. Andreski’s conduct to the hospital. Thus, both Chief Lukaszek’s and EMH’s Motions for Summary Judgment are granted as to Count VI.
G.Unlawful Detention — Count VII
In addition to the false imprisonment claim, Steven brings a federal claim for unlawful detention against Chief Lukaszek. As discussed above, Chief Lukaszek did not violate the Fourth Amendment when he seized Steven. Shortly thereafter, when asked by a Hillside officer if he wanted to go to Elmhurst Hospital, Steven responded that he wanted to go to the hospital. Within an hour or two of the seizure, Steven was taken to Elmhurst. Steven does not, at this point, contend that the detention at the police station was unreasonable.
Plaintiff argues that the detention was unlawful because Chief Lukaszek signed a false certification. His only support for that contention is his argument that some of Chief Lukaszek’s testimony was contradictory. But on summary judgment, Plaintiff must do more than challenge a witness’s credibility; he must show that there is a genuine dispute as to a material fact. Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir.2008). Because he has not presented any facts that show that the certification was false, the Court grants summary judgment for Chief Lu-kaszek on Count VII.
H.Municipal Liability — Count VIII
In Count VIII, Plaintiffs bring a claim against the Village of Hillside under Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell instructs that:
[a] local governing body may be liable for monetary damages under § 1983 if the unconstitutional act complained of is caused by: (1) an official policy adopted and promulgated by its officers; (2) a governmental practice or custom that, although not officially authorized, is widespread and well settled; or (3) an official with final policy-making authority.
Id. at 690, 98 S.Ct. 2018. As discussed above, the Court grants summary judgment for Chief Lukaszek on all of Plaintiffs’ constitutional claims, so Plaintiffs do not have any constitutional claims pending against Chief Lukaszek or the Village. But even if they did, the “policymaker” prong of Monell “requires more than the act of a policymaker.” McGreal v. Ostrov, No. 98 C 3958, 2002 WL 1784461, *3 (N.D.Ill. Aug. 1, 2002). Municipal liability lies only where the policymaker’s act “implements] ... the government’s policy.” Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir.1992). Plaintiff has failed to produce any evidence that Chief Lukaszek’s decisions to seize Steven in the manner that he did or search the house reflected the Village’s policy. Because there is no genuine dispute of material fact, Defendant Village of Hillside is granted summary judgment as to Count VIII.
I.Intentional Infliction of Emotional Distress — Count IX
Steven’s final Count, brought against Defendant Robert DiDomenico, is for Intentional Infliction of Emotional Distress (“IIED”). In Illinois, a Plaintiff succeeds on an IIED claim by proving four *815elements: (1) extreme and outrageous conduct; (2) intent or recklessness to cause emotional distress; (3) severe or extreme emotional distress suffered by the plaintiff; and (4) actual and proximate causation of the emotional distress by defendant’s outrageous conduct. Sornberger v. City of Knoxville, 434 F.3d 1006, 1030 (7th Cir. 2006) (citing Pub. Fin. Corp. v. Davis, 66 Ill.2d 85, 4 Ill.Dec. 652, 360 N.E.2d 765, 767-68 (1976)).
1. Extreme and Outrageous
To determine whether conduct is extreme and outrageous, courts evaluate the conduct against an objective standard, based on all the facts and circumstances. Graham v. Commonwealth Edison Co., 318 Ill.App.3d 736, 252 Ill.Dec. 320, 742 N.E.2d 858, 866 (2000).. “Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions or trivialities.” Id. A defendant will be liable only for conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Id.
It is undisputed that Steven and DiDo-menico were acquainted through Battle-Cam.com, a website where users assume various identities and nicknames and engage in aberrant behavior. On November 11, 2010, Hillside Police visited the Rusi-nowski home based on a report from a concerned citizen that Steven was suicidal. The police discovered Steven asleep in his bed, and determined that the call had been a prank and that Steven was not in any danger. It is also undisputed that on March 4, 2011, DiDomenico observed Steven’s behavior on BattleCam.com before he contacted the Hillside Police Department and spoke to Chief Lukaszek.
Despite these points of agreement, the parties dispute a variety of facts related to Steven’s IIED claim. Steven asserts that DiDomenico was the “concerned citizen” who called the police prior to their November 11, 2010 visit to the Rusinowski home. DiDomenico denies that accusation, but evidence in the record supports both sides. While there was no evidence to controvert Chief Lukaszek’s testimony that DiDomen-ico told him that Steven was suicidal, the record reflects a dispute over whether that report was truthful. In addition, the parties disagree over whether DiDomenico was responsible for the call to Elmhurst College.
It is not necessarily extreme and outrageous to make a false police report. Layne v. Builders Plumbing Supply Co., 210 Ill.App.3d 966, 155 Ill.Dec. 493, 569 N.E.2d 1104, 1108 (1991). Nonetheless, disputed facts are viewed in the light most favorable to Steven indicate that DiDo-menico perpetrated a campaign of harassment by calling in multiple false threats. A rational jury could understand that BattleCam.com is a roleplay website, where users expect unusual if not shocking conduct from other users, and still credit Steven’s version of the facts. When viewed in the light most favorable to the non-moving party, DiDomenico’s conduct was extreme and outrageous.
2. Intent
On this element, important facts remain disputed. There is evidence in the record that DiDomenico may have been responsible for not only the March 4, 2011 call to the Hillside Police, but also the November 11, 2010 call to Hillside Police and various prank calls to Steven’s school. DiDomenico concedes that he thought it was funny to call the police on Steven and have him sent to the hospital, but disputes that he laughed about the arrest when he spoke with Joseph Rusinowski. A reason- . able jury could view these facts and determine that DiDomenico intended to inflict *816severe emotional harm on Steven, or at the very least acted recklessly with regard to whether his actions would inflict severe emotional harm on Steven.
3.Severe Emotional Distress
To support an IIED claim, the emotional distress must be “so severe that no reasonable man could be expected to endure it.” Kleidon v. Rizza Chevrolet, Inc., 173 Ill.App.3d 116, 122 Ill.Dec. 876, 527 N.E.2d 374, 377 (1988). “The intensity and the duration of the distress are factors to be considered in determining its severity.” Id.
The evidence shows that the March 4 incident exacerbated Steven’s anxiety. Steven suffered from pain, anguish, difficulty sleeping, humiliation, and loss of appetite. He failed a midterm examination in one of his classes, and had to drop the class. A reasonable jury could examine this evidence and determine that Steven suffered from severe emotional distress.
4.Causation
Finally, Steven must prove that DiDo-menico’s extreme and outrageous conduct was the actual and proximate cause of his distress. Sornberger, 434 F.3d at 1030. DiDomenico argues that Steven’s distress was caused not by Defendant’s phone call, but by Steven’s failure to respond to lawful commands from police to come out of the house and show both hands. A reasonable jury could determine that DiDomenico called the Hillside Police only one time, and that Steven’s actions cut off the chain of causation. However, a reasonable jury could conclude instead that DiDomenico was responsible for a pattern of harassment, and that Steven’s emotional distress was a reasonably foreseeable consequence of DiDomenico’s actions. Accordingly, DiDomenico’s Motion for Summary Judgment is denied.
V. CONCLUSION
For these reasons stated herein, the Court rules as follows:
1. The Motions to Strike [ECF Nos. 168,174] are granted in part and denied in part;
2. The Motion for Summary Judgment brought by the Village and Chief Lukaszek [ECF No. 102] is granted.
3. The Motion for Summary Judgment brought by Elmhurst Memorial HealthCare [ECF No. 146] is granted in part and denied in part.
4. The Motion for Summary Judgment brought by Dr. Andreski [ECF No. 128] is denied.
5. The Motion for Summary Judgment brought by DiDomenico [ECF No. 143] is denied.
As a result of these rulings, summary judgment is granted in favor of Defendants on Count I, Count II, Count III, Count IV against Elmhurst Memorial Healthcare only, Count V for violations of the stabilization and transfer requirements only, Count VI, Count VII, and Count VIII. Summary judgment is denied as to Count TV against Dr. Andreski only, Count V for the alleged violation of the screening requirement only, and Count IX.
IT IS SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224355/ | Memorandum Opinion and Order
Gary Feinerman, United States District Judge
The City of Evanston, Illinois, filed this suit initially against Chevron U.S.A. Inc. and E-Town Community Ventures, alleging that they are responsible for contamination on and around a property in Evans-ton formerly occupied by a gasoline service station. Doc. 1. After questions were raised as to whether Chevron U.S.A. was a proper defendant, Evanston filed an amended complaint that kept E-Town as a defendant, dropped Chevron U.S.A. as a defendant, and added Chevron Corporation, Texaco, Inc., and Chevron Environmental Management Company (“Chevron EMC”) as defendants. Doc. 24. The three new defendants — which are affiliated and represented by the same lawyers, and which have filed joint pleadings — will be referred to collectively as “Chevron” unless the context requires otherwise. Count I of the amended complaint is a citizens suit under 42 U.S.C. § 6972(a) that seeks declaratory, injunctive, and other ancillary relief against Chevron for alleged violations of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. Doc. 24 at pp. 8-10. Counts II-IV allege claims against Chevron and E-Town under the Illinois common law of trespass and private nuisance and the Evanston Hazardous Substances Ordinance. Doc. 24 at pp. 11-14.
Chevron has moved to dismiss Counts IIV under Federal Rule of Civil Procedure 12(b)(6). Doc. 29. E-Town has joined Chevron’s motion with respect to Counts II-IV. Docs. 32, 35. The motion is denied in its entirety.
Background
In considering the motion to dismiss, the court assumes the truth of the amended complaint’s factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir.2012). The court must also consider “documents attached to the [amended] complaint, docu-*821merits that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice,” along with additional facts set forth in Evans-ton’s brief opposing dismissal, so long as those facts “are consistent with the pleadings.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir.2012). The following facts are set forth as favorably to Evanston as those materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir.2012).
From 1925 to the late 1990s, a gasoline and auto repair service station, most recently operated by Texaco, occupied the northeast corner of the intersection of Church Street and Darrow Street in Ev-anston (the “Texaco Station”). Doc. 24 at ¶¶2, 24-25. Texaco used underground storage tanks (“USTs”), “gasoline dispenser islands,” and piping under the station, as well as an “auto lift and grease pit.” Id. at ¶¶ 25-26. In the 1960s, during Texaco’s operation of the station, contaminants were leaked from at least two USTs. Id. at ¶¶ 27-30. The Texaco Station has been vacant since the late 1990s. Id. at ¶24. E-Town acquired legal title to the property in April 2002. Id. at ¶ 18.
In the meantime, in 2000, the Illinois State Fire Marshal conducted an “exploratory excavation” of the Texaco Station. Id. at ¶ 31. The Fire Marshal issued a Notice of Violation, concluding that “[a]t least two unregistered USTs were abandoned improperly” and that the “USTs contained water and gasoline” and were “leaking in close proximity to a sewer.” Id. at ¶ 31 & pp. 18-19. In April 2001, the Fire Marshal issued a report stating: “[NJothing has been done to this site. The tanks are still leaking and no caps are on the vents, fills[,] or product Unes. They are continuing to take on water.” Id. at ¶ 32.
In March 2012, an environmental consultant hired by Evanston issued a report noting the presence of petroleum exceeding the amounts allowed by state regulations. Id. at ¶ 35 & pp. 23-73. A subsequent report issued in July 2012 noted the presence of two 2,000-gallon USTs filled with water and gasoline and two 3,000-gallon USTs filled with sand. Id. at ¶ 36; see id. at pp. 75-83. That second report concluded that contamination was migrating from the Texaco Station to Church and Darrow Streets and could possibly affect commercial and residential properties to the east. Id. at ¶ 37.
As a result of Texaco’s conduct, the soil and groundwater at the Texaco Station and adjacent city-owned and privately-owned property are contaminated with petroleum, gasoline, and their byproducts, including benzene, toluene, ethylbenzene, xylene, polynuclear aromatic hydrocarbons, and lead. Id. at ¶¶ 5, 7-8. The contamination contains carcinogens. Id. at ¶11.
Discussion
I. Count I: RCRA Claim
A. Whether Count I Adequately Pleads a RCRA Claim
RCRA allows any person to file a citizen suit “against any person ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B); see generally Adkins v. VIM Recycling, Inc., 644 F.3d 483, 486-87 (7th Cir.2011). A § 6972(a) claim requires the plaintiff to show: “(1) that the defendant has generated solid or hazardous waste, (2) that the defendant is contributing or has contributed to the handling of this waste, and (3) that this waste *822may present an imminent and substantial danger to health or the environment.” Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 972 (7th Cir.2002). Chevron challenges only the third element, arguing that Evanston has not adequately alleged that the contamination at the Texaco Station presents an “imminent and substantial” threat because it has existed for fifty years, an ordinance prohibits extracting groundwater from wells, “most” of the station is covered by asphalt or concrete, and contaminated water has not reached the surface. Doc. 30 at 6-8.
Chevron’s argument cannot be resolved in its favor at the pleading stage. Precedent holds that “[imminence does not require an existing harm, only an ongoing threat of future harm.” Albany Bank & Trust, 310 F.3d at 972 (citation omitted). The amended complaint sufficiently alleges the threat of future harm, as it is plausible that contaminated subsurface water could migrate to the surface through the portions of the Texaco Station uncovered by asphalt or through adjacent properties to which the contamination has migrated and is migrating. It follows that the RCRA claim survives dismissal. See Forest Park Nat’l Bank & Trust v. Ditch-field, 881 F.Supp.2d 949, 975-76 (N.D.Ill.2012) (holding that even though no “traditional ‘exposure pathways’ ” existed—an ordinance banned drinking groundwater, the surface residence was unoccupied, and the property was “largely covered in pavement”—imminence presented a question of fact where the plaintiff alleged that a dry cleaner left a contaminant underground).
B. Burford Abstention
Chevron argues in the alternative that the court should abstain under the doctrine established by Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), from adjudicating the RCRA claim. Doc. 30 at 8-11. There are “two narrow situations in which federal courts may abstain under Burford.” Adkins, 644 F.3d at 504. The first is when “a federal court ... is faced with ‘difficult questions of state lav/ that implicate significant state policies.” Ibid. The second is “when concurrent federal jurisdiction would ‘be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’ ” Ibid. (quoting New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989)).
Chevron argues that the second basis of Burford abstention applies here because state regulations promulgated pursuant to the Illinois Environmental Protection Act (“IEPA”), 415 ILCS 5/1 et seq., “provide for the same relief that could be obtained under RCRA.” Doc. 30 at 9-10. To support its submission, Chevron notes the IEPA “allows an aggrieved person to file a citizen’s action ... before the Illinois Pollution Control Board and may seek to require the responsible party to remediate the release ... and to recover any investigation and cleanup costs.” Id. at 10 (citing 415 ILCS 5/31(d)-(e), 5/33(b)).
Chevron’s argument fails to persuade. As the Seventh Circuit has explained:
[F]or this second basis of Burford abstention to apply, the mere existence of a statewide regulatory regime is not sufficient. The state must “offer some forum in which claims may be litigated,” and this forum must “stand in a special relationship of technical oversight or concentrated review to the evaluation of those claims.” Property & Casualty Insurance Ltd. [v. Cent. Nat’l Ins. Co. of Omaha], 936 F.2d 319,] 323 [ (7th Cir.*8231991) ]. In other words, judicial review by state courts with specialized expertise is a prerequisite to Burford abstention. See International College of Surgeons [v. City of Chicago ], 153 F.3d 356,] 364 [ (7th Cir.1998) ] (Burford abstention was not appropriate because any court of general jurisdiction could review final administrative decisions).
Adkins, 644 F.3d at 504. Thus, the fact that Illinois allows environmental claims to be pursued before a specialized administrative body, the Illinois Pollution Control Board, is not sufficient to warrant Burford abstention. Rather, Burford abstention is appropriate only if a state court “with specialized expertise,” as opposed to a state court “of general jurisdiction,” is available to review the administrative body’s decisions. Ibid.; see also Int’l Coll. of Surgeons, 153 F.3d at 364 (holding Bur-ford abstention inappropriate where a local landmarks commission’s decisions were reviewed by a state court of general jurisdiction, the Circuit Court of Cook County, Illinois). The IEPA provides for judicial review of the Board’s decisions in the Appellate Court of Illinois, see 415 ILCS 5/41 (a), which is a court of general appellate jurisdiction, see Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 225 (7th Cir.1993). It follows that Burford abstention is inappropriate here. See Adkins, 644 F.3d at 505 (“[Burford] teaches that judicial review must, by state legislative design, be concentrated in a few particular courts for its narrow abstention doctrine to be applicable. The Indiana courts of general jurisdiction do not satisfy this essential condition of Burford abstention. The mere existence of a state regulatory regime, even one providing an option for special masters and specific relief, does not permit federal courts to abstain.”) (footnote and citation omitted).
C. Civil Penalties and Expert Costs
Chevron next argues that the court should strike Count I’s request for “appropriate civil penalties.” Doc. 30 at 11-12. RCRA’s citizen suit provision authorizes district courts to “apply any appropriate civil penalties under section 6928(a) and (g) of this title.” 42 U-.S.C. § 6972(a); see 42 U.S.C. § 6928(a) (allowing for a civil penalty “not [to] exceed $25,000 per day of noncompliance for each violation”), (g) (“Any person who violates any requirement of this subchapter shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. Each day of such violation shall, for purposes of this subsection, constitute a separate violation.”). Chevron maintains that civil penalties are available only in RCRA enforcement suits brought by the Administrator of the U.S. Environmental Protection Agency (“EPA”) given that § 6928 is the section that authorizes such suits.'
Although supported by Village of Riverdale v. 138th Street Joint Venture, 527 F.Supp.2d 760, 768 (N.D.Ill.2007), Chevron’s reading of § 6972(a) is incorrect. By providing that the court in a RCRA citizen suit may “apply any appropriate civil penalties under sections 6298(a) and (g),” Congress made clear that such civil penalties may be awarded not only in enforcement suits brought by the EPA Administrator, but also in citizen suits. This conclusion follows from U.S. Department of Energy v. Ohio, 503 U.S. 607, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992), where the Supreme Court addressed whether the United States had waived its sovereign immunity from civil penalties in citizen suits under RCRA and the Clean Water Act (“CWA”). The Court held that the United States had not waived its sovereign immunity; for present purposes, it is significant that the Court recognized that the *824“[RCRA and CWA citizen suit] sections’ incorporation of their respective statutes’ civil-penalties sections will have the effect of authorizing punitive fines when a polluter other than the United States is brought to a court by a citizen.” Id. at 619, 112 S.Ct. 1627. Here, Chevron allegedly is “a polluter other than the United States ... brought to court by a citizen.” It follows that Chevron is potentially liable for civil penalties authorized by § 6928(a) and (g). See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 58-59, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (holding that the CWA citizen suit provision, which cross-references the civil penalty provision in the section authorizing CWA enforcement actions by the EPA Administrator, see 33 U.S.C. § 1365(a), “supports ... our conclusion that citizens ... may seek civil penalties ... in a suit brought to enjoin or otherwise abate an ongoing violation”); Chico Serv. Station, Inc. v. Sol Puerto Rico Ltd., 633 F.3d 20, 28 (1st Cir.2011) (“In hearing suits under [§ 6972(a) ], district courts have statutory authority to ... impose civil penalties.”); City of N. Chicago v. Hanovnikian, 2006 WL 1519578, at *4 (N.D.Ill. May 30, 2006) (same); see also Supporters to Oppose Pollution, Inc. v. Heritage Grp., 973 F.2d 1320, 1324 (7th Cir.1992) (holding that § 6972(b)(1)(B) prohibits a RCRA citizen suit when the EPA is diligently prosecuting a RCRA action because, otherwise, a citizen suit “seekfing] ... civil penalties that the Administrator chose to forgo” would undermine the “federal agency[’s] [role] as principal enforcer”).
Chevron also argues that the court should strike in part Count I’s request for expert fees. The RCRA citizen suit provision states that “[t]he court, in issuing any final order in any action brought pursuant to this section, ... may award costs of litigation (including reasonable ... expert witness fees) to the prevailing or substantially prevailing party.” 42 U.S.C. § 6972(e). Chevron maintains the court should strike Evanston’s request for the expert fees “relate[d] to the investigation that Evanston voluntarily undertook to attempt to delineate the nature of the waste.” Doc. 30 at 11-12. Chevron is right that some expert costs, including those incurred in past voluntary cleanup efforts, are unrecoverable under RCRA. See Meghrig v. KFC W., Inc., 516 U.S. 479, 484-85, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996) (“It is apparent from the two remedies described in § 6972(a) that RCRA’s citizen suit provision is not directed at providing compensation for past cleanup efforts.”). However, the precise nature of the expert costs sought by Evanston is unclear at this stage of the litigation. Once Evanston delineates the expert costs it seeks to recover, Chevron may renew its argument that some or all of those costs may not be recovered under RCRA.
II. Counts II-IV: Municipal and State Law Claims
A. Supplemental Jurisdiction
Because the RCRA claim survives dismissal, the court has supplemental jurisdiction over Evanston’s municipal and state law claims pursuant to 28 U.S.C. § 1367(a). Relying on Dublin Scarboro Improvement Association v. Harford County, 678 F.Supp. 129 (D.Md.1988), Defendants argue that the court should relinquish its supplement jurisdiction because the “primary goal of RCRA is best served if all state law claims are dismissed.” Doc. 30 at 13; see also Doc. 39 at 6-7. It is true that Dublin Scarboro Improvement Association declined to exercise what was then called pendent jurisdiction over state law nuisance and trespass claims in a RCRA suit, primarily on the ground that the state law claims would be tried to a *825jury and the RCRA claims to the bench. 678 F.Supp. at 132. However, Dublin Scarboro Improvement Association was decided before Congress enacted the supplemental jurisdiction statute, 28 U.S.C. § 1367, and the court will apply that statute in deciding whether to retain supplemental jurisdiction over the non-federal claims.
Section 1367(c) permits the court to decline or relinquish supplemental jurisdiction if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). Defendants barely acknowledge § 1367(c), let alone show that any of its four grounds apply here, and no such grounds are apparent in any event. All Defendants argue is that because Ev-anston’s non-federal claims allow for a jury trial, adjudicating those claims together with the RCRA claims, wliich are tried to the bench, will frustrate RCRA’s goal of “the prompt abatement of imminent endangerment.” Doc. 30 at 13; Doc. 37 at 10. The argument is without merit. Because Evanston’s RCRA, state law, and municipal claims arise from the same facts, discovery can proceed simultaneously on them all. And the trial on all claims can proceed simultaneously as well, with the RCRA claims tried to the bench and the other claims to the jury. See, e.g., Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1137 (7th Cir.1992).
B. Nuisance and Trespass Claims
Chevron alternatively argues that the amended complaint fails to plead viable nuisance and trespass claims. Doc. 30 at 14-15. Chevron is wrong on both counts.
“A private nuisance is a substantial invasion of another’s interest in the use and enjoyment of his or her land.” In re Chi. Flood Litig., 176 Ill.2d 179, 223 Ill.Dec. 532, 680 N.E.2d 265, 277 (Ill.1997); see also Muscarello v. Ogle Cnty. Bd. of Commis, 610 F.3d 416, 425 (7th Cir.2010); Helping Others Maintain Envtl. Standards v. Bos, 406 Ill.App.3d 669, 346 Ill. Dec. 789, 941 N.E.2d 347, 367 (Ill.App. 2010). Under Illinois law, allegations that the defendant’s conduct threatens the plaintiffs land with environmental contamination are sufficiently state a nuisance claim. Vill. of Wilsonville v. SCA Servs., Inc., 86 Ill.2d 1, 55 Ill.Dec. 499, 426 N.E.2d 824, 836-37 (Ill.1981) (holding that a chem ical waste disposal site constituted a nuisance because it was “highly probable” that, “through migration” or other events, “highly toxic chemical wastes deposited at the site [could] escape and contaminate the air, water, or ground around the site”); City of Chicago v. Latronica Asphalt & Grading, Inc., 346 Ill.App.3d 264, 281 Ill. Dec. 913, 805 N.E.2d 281, 288-89 (Ill.App.2004) (holding that a waste dump constituted a nuisance because “[w]aste disposed of on the site could migrate onto adjacent properties through runoff from the site”); People ex rel. Burris v. C.J.R. Processing, Inc., 269 Ill.App.3d 1013, 207 Ill.Dec. 542, 647 N.E.2d 1035, 1039 (Ill.App.1995) (holding a waste storage facility to be a nuisance because the plaintiff alleged that “unsealed waste material could infiltrate nearby sewer systems and public water supplies in the event of a fire at [the defendant’s] facility”); Echtemavh v. D.H. Martin Petroleum Co., 1997 WL 627646, at *4 (N.D.Ill. Sept. 30, 1997) (finding a *826nuisance where petroleum leaked from the defendant’s USTs “infiltrated the soil, sewer system, groundwater, surface water, and air”); Dominick’s Finer Foods Inc. v. Amoco Oil Co., 1993 WL 524808, at *1, *8 (N.D.Ill.Dec. 15, 1993) (finding a nuisance where gasoline, oil, and their byproducts leaked from the defendant’s USTs into the plaintiffs land); see also Willmschen v. Trinity Lakes Improvement Ass’n, 362 Ill.App.3d 546, 298 Ill.Dec. 840, 840 N.E.2d 1275, 1282-83 (Ill.App.2005) (holding that public nuisances also constitute private nuisances “[w]hen the nuisance, in addition to interfering with the public right, also interferes with the use and enjoyment of the plaintiffs land”) (quoting Restatement (Second) Torts § 821C, cmt. e). By alleging that petroleum, gasoline, and their carcinogenic byproducts migrated and continue to migrate from the Texaco Station to Evanston’s adjacent property, Doc. 24 at ¶¶ 7, 9-11, 30, 37-38, 45^46, the amended complaint states a viable nuisance claim.
Chevron responds that the interference necessary to state a nuisance claim under Illinois must be “something perceptible to the senses.” In re Chicago Flood Litig., 223 Ill.Dec. 532, 680 N.E.2d at 278. This argument fails for two reasons. First, the cases cited above make clear that groundwater pollution is a nuisance due to the possibility of its migrating to the plaintiffs land. Second, the gasoline and other substances allegedly migrating from the Texaco Station are perceptible to the senses. Although the substances remain underground, the City is alleged to own part of the affected property, Doc. 24 at ¶¶ 3-4, and Illinois law holds that “the owner in fee owns to the center of the earth.” Jilek v. Chi., Wilmington & Franklin Coal Co., 382 Ill. 241, 47 N.E.2d 96, 100 (Ill.1943); see also Kankakee Cnty. Bd. of Review v. Prop. Tax Appeal Bd., 226 Ill.2d 36, 312 Ill.Dec. 638, 871 N.E.2d 38, 47 (Ill.App.2007) (same). The substances are perceptible at the place to which they have migrated.
Evanston’s trespass claim also survives dismissal. “A trespass is an invasion in the exclusive possession and physical condition of land.” Lyons v. State Farm Fire & Cas. Co., 349 Ill.App.3d 404, 285 Ill.Dec. 231, 811 N.E.2d 718, 725 (Ill. App.2004); see also Muscarello, 610 F.3d at 425; Helping Others Maintain Envtl. Standards, 346 Ill.Dec. 789, 941 N.E.2d at 367. Chevron argues that the amended complaint does not state a viable trespass claim because it fails to allege the alleged environmental contamination completely deprived Evanston the use of its land. Doc. 30 at 14 (arguing that the amended complaint “does not allege that the streets are not usable by Evanston or the public”). But a trespass claim does not require the plaintiff to allege and show total deprivation of the use of its land. See Millers Mut. Ins. Ass’n of Ill. v. Graham Oil Co., 282 Ill.App.3d 129, 218 Ill.Dec. 60, 668 N.E.2d 223, 230 (Ill.App.1996) (“Thus, as the Pipefitters [Welfare Education Fund v. Westchester Fire Insurance Co., 976 F.2d 1037, 1041 (7th Cir.1992),] court rec ognized, one need not intend to take possession of the encroached-upon premises or deprive occupants of their right to possess those premises to have committed a trespass under Illinois law.”). Instead, a trespass claim may be premised on the defendant having caused “a thing ... to enter the land of another ... through a negligent act.” Ibid. As the amended complaint alleges, the negligently leaked contaminants entered Evanston’s property, interfering with its otherwise exclusive possession thereof. See Zimmer v. Vill. of Willowbrook, 242 Ill.App.3d 437, 182 Ill. Dec. 840, 610 N.E.2d 709, 714-15 (Ill.App. 1993) (citing cases) (holding that water flowing onto adjacent land constitutes tres*827pass); Vill. of Roxana v. Shell Oil Co., 2013 WL 4510164, at *5 (C.D.Ill. Aug. 26, 2013) (holding that pollution flowing onto the plaintiffs land is a trespass). That is all the amended complaint needs to do to plead a trespass claim.
C. Statute of Limitations
Chevron next argues the non-federal claims are barred by the statute of limitations. Doc. 30 at 13. A five-year limitations period applies under Illinois law to claims seeking “to recover damages for an injury done to property, real or personal ... and all civil actions not otherwise provided for.” 735 ILCS 5/13-205. The limitations period applies to the municipal ordinance claim as well as to the state law claims. See Landis v. Mare Realty, L.L.C., 235 Ill.2d 1, 335 Ill.Dec. 581, 919 N.E.2d 300, 303-307 (Ill.2009) (applying statutes of limitation in the Illinois Code of Civil Procedure to ordinance violation claims). The period does not run “until the injured party knows or should have known of [the] injury.” Knox Coll. v. Celotex Corp., 88 Ill.2d 407, 58 Ill.Dec. 725, 430 N.E.2d 976, 979 (Ill.1981); see also In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir.2009) (Illinois law).
Evanston alleges that it did not learn of its alleged injuries until March 2012, when its consultant issued the first report. Doc. 24 at ¶ 35; Doc. 36 at 14. Chevron presents evidence to the contrary, Doc. 37-1, but that evidence adduces facts not referenced in the complaint and not subject to judicial notice, and thus not subject to consideration on a Rule 12(b)(6) motion. See Geinosky, 675 F.3d at 745 n. 1 (“A motion under Rule 12(b)(6) can be based only on the complaint itself, documents attached to the complaint, docu-ments that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice. If a moving party relies on additional materials, the motion must be converted to one for summary judgment under Rule 56.”) (citations omitted). Given the amended complaint’s allegation regarding when Ev-anston learned of its alleged injuries, the non-federal claims survive dismissal.
In any event, regardless of when Evanston became aware of its alleged injuries, the continuing violation doctrine would save its non-federal claims, at least in part, from dismissal on limitations grounds. “Under the ‘continuing violation rule,’ ... where a tort involves a continuing or repeated injury, the limitations period does not begin to run until the date of the last injury or the date the tortious acts cease.” Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325, 264 Ill.Dec. 283, 770 N.E.2d 177, 190 (Ill.2002); see also Northfield Ins. Co. v. City of Waukegan, 701 F.3d 1124, 1132 (7th Cir.2012) (Illinois law). Chevron argues Evanston’s claims accrued fifty years ago, when contaminants leaked from two USTs, and that the continued release of contaminants onto city property “is a re-injury from past tortious conduct.” Doc. 30 at 13; Doc. 37 at 12. It is true that “[a] continuing violation ... is occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial violation.” Bank of Ravenswood v. City of Chicago, 307 Ill.App.3d 161, 240 Ill.Dec. 385, 717 N.E.2d 478, 484 (Ill.App.1999); see also Hukic v. Aurora Loan Servs., 588 F.3d 420, 435 (7th Cir.2009) (Illinois law). But that principle is inapposite here because each discharge of contaminants onto the city’s property constitutes a separate instance of nuisance and trespass. See Meyers v. Kissner, 149 Ill.2d 1, 171 Ill.Dec. 484, 594 N.E.2d 336, 340 (Ill.1992) (holding that the defendant’s levees, which continually washed onto the plaintiffs land, fell “within the ordinary rules applicable to *828continuing nuisances and continuing trespasses and [the] plaintiff is not barred from recovering monetary damages for the five-year period preceding the filing of the complaint”); Raabe v. Messiah Evangelical Lutheran Church of Port Byron, 245 Ill.App.3d 539, 185 Ill.Dec. 720, 615 N.E.2d 15, 18-19 (Ill.App.1993) (“plaintiffs’ cause of action arises each time flooding occurs, and plaintiffs may select their own time for bringing suit”). Given that the amended complaint alleges that contaminants continue to leak from the Texaco Station onto Evanston’s property, Doc. 24 at ¶ 9, the continuing violation doctrine applies, at least at the pleadings stage.
D. Punitive Damages
Chevron asks the court to strike Evanston’s request for punitive damages. Doc. 30 at 15. “Generally, punitive damages are awarded when the underlying tort is accompanied by aggravating circumstances such as willful, wanton, malicious, or oppressive conduct.” Chi. Title Land Trust Co. v. JS II, LLC, 364 Ill.Dec. 709, 977 N.E.2d 198, 219 (Ill.App.2012); see also Brandon v. Anesthesia & Pain Mgmt. Assocs., Ltd., 277 F.3d 936, 947 (7th Cir.2002) (Illinois law). Evanston has plausibly alleged Chevron has knowingly allowed carcinogens to leak into the groundwater. Doc. 24 at ¶¶ 7, 9-10; Doc. 36 at 16-17. By permitting an inference that Chevron wantonly ignored a duty to control the contamination, the allegations are sufficient to ground Evanston’s punitive damages request at the pleading stage. See Rodrian v. Seiber, 194 Ill.App.3d 504, 141 Ill.Dec. 585, 551 N.E.2d 772, 775 (Ill.App.1990) (holding that a willful and wanton trespass supports punitive damages); First Nat’l Bank of Des Plaines v. Amco Eng’g Co., 32 Ill.App.3d 451, 335 N.E.2d 591, 593-94 (Ill.App.1975) (recognizing that punitive damages may be awarded for an intentional trespass).
III. Chevron Corporation and Chevron EMC
Finally, Chevron argues Chevron Corporation and Chevron EMC are not proper defendants. Chevron submits that because Texaco maintained a separate corporate existence as “a wholly-owned, indirect subsidiary of Chevron Corporation” after it merged with a Chevron subsidiary in 2001, Texaco is the only proper defendant for the alleged misconduct at the Texaco Station. Doc. 30 at 16-17 & n.4. Chevron may turn out to be right; a 2001 Securities and Exchange Commission filing shows that Texaco, Inc. was the “name of the surviving corporation” after the merger. Doc. 30^1 at 6.
However, Evanston counters with the plausible allegation that the merger produced ChevronTexaco, which changed its name to Chevron Corporation in 2005. Doe. 24 at ¶ 14; Doc. 36 at 18. Additionally, Evanston notes that Chevron EMC’s “corporate purpose is to manage Chevron’s environmental remediation activities and associated liabilities.” Doc. 36 at 19; see also Doc. 36-1 at 39, 43, 45. Evanston supports its argument with materials attached to its response brief, which can be considered on a Rule 12(b)(6) motion because Evanston is the nonmovant. See Geinosky, 675 F.3d at 745 n. 1. Those materials include a statement from Chevron’s website stating that on “Oct. 9, 2001, the shareholders of Chevron and Texaco voted to approve the merger, and Chev-ronTexaco Corp. began doing business that same day,” and another stating that “[i]n 2001, our two companies [Chevron and Texaco] merged to form ChevronTexa-co. The name was changed to Chevron in 2005 to convey a clearer, stronger and more unified presence around the world.” Doc. 36-1 at 8,10.
*829Evanston’s allegations and supplemental materials make it plausible that Chevron Corporation and Chevron EMC are proper defendants, which means that the court cannot determine on the pleadings whether Texaco is the only appropriate defendant in the corporate family. It bears mention that keeping the three Chevron entity defendants in the case at this stage will cause little additional cost, as all three are sharing counsel and filing joint briefs.
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is denied. Defendants shall answer the amended complaint by March 14, 2014. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224357/ | OPINION AND ORDER
PAUL R. CHERRY, United States Magistrate Judge.
This matter is before the Court on Defendant’s Motion for Judgment on the Pleadings [DE 15], filed by Defendant Dale E. Turner on February 25, 2014. *844For the reasons set forth below, the Court grants in part and denies in part the Motion.
PROCEDURAL BACKGROUND
On August 30, 2013, Plaintiff Manuel Ocasio, Jr. filed a Complaint against Defendant Dale E. Turner, a Senior Trooper with the Indiana State Police, bringing claims under 42 U.S.C. § 1983 for false imprisonment, excessive force, illegal search and seizure, and malicious prosecution.1 The claims arise out of a traffic stop by Turner on April 13, 2012, that led to the arrest and prosecution of Ocasio in state court on charges of resisting law enforcement and battery on a law enforcement officer. Turner filed an Answer on November 27, 2013, and an Amended Answer and Affirmative Defenses on March 4, 2014. On February 25, 2014, Turner filed the instant Motion for Judgment on the Pleadings. Ocasio filed a response on March 18, 2014, and Turner filed a reply on March 28, 2014.
The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. Fed.R.Civ.P. 12(c). A Rule 12(c) motion is evaluated by the same standard as a motion to dismiss for failure to state a claim under Rule 12(b)(6). Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir.2014) (citing Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir.2007)). Such a motion tests the sufficiency of the complaint and not the merits of the suit. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). The court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir.2012).
To survive the motion, the complaint must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice of what the ... claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir.2008). The United States Supreme Court explained that the “plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quotation marks and brackets omitted); see also Iqbal, 556 U.S. at 678-79, 129 *845S.Ct. 1937; Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.2009). Determining whether a complaint states a plausible claim for relief requires the court to draw on its judicial experience and common sense. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937; McReynolds, 694 F.3d at 885.
Generally, the Court considers only the pleadings, which “include the complaint, the answer, and any written instruments attached as exhibits.” N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir.1998). However, the Court may take judicial notice of matters of public record. Morris v. Huebsch, 3 F.Supp.3d 746, 749, 12-CV-319, 2014 WL 801448, at *1 (W.D.Wis. Feb. 28, 2014) (quoting United States v. Wood, 925 F.2d 1580, 1582 (7th Cir.1991)). Under the Federal Rules of Evidence, the Court “may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Taking judicial notice of public records does not convert the Rule 12(c) motion into a motion for summary judgment. See Gen. Electric Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080-81 (7th Cir.1997).
Turner asks the Court to take judicial notice of the state court record in the underlying criminal case. Ocasio argues that judicial notice of the facts recounted in the state court Information by Turner is inappropriate, reasoning that, because Ocasio disputes the facts as presented by Turner, the facts in the Information are not “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” However, Ocasio pleaded guilty “as charged,” which included the facts set forth in the charging document, the Information.
“Admissions in a guilty-plea hearing, being judicial admissions, bind the defendant in subsequent proceedings.... ” United States v. Evans, 576 F.3d 766, 770 (2009); see also Scholes v. Lehmann, 56 F.3d 750, 762 (7th Cir.1995) (“Admissions-in a guilty plea, as elsewhere-are admissions; they bind a party; and the veracity safeguards surrounding a plea agreement that is accepted as the basis for a guilty plea and resulting conviction actually exceed those surrounding a deposition.” (citing Country Mut. Ins. Co. v. Duncan, 794 F.2d 1211, 1215 (7th Cir.1986))). Under Indiana law, a state court can accept a defendant’s guilty plea only if the court determines that the plea is voluntarily and there is a sufficient factual basis to support the plea. Rhoades v. State, 675 N.E.2d 698, 700 (Ind.1996) (citing Ind.Code § 35-35-1-3); Norris v. State, 896 N.E.2d 1149, 1152 (Ind.2008) (“Indiana jurisprudence has insisted that a factual basis must exist for a guilty plea, and that a judge may not accept a guilty plea while a defendant claims actual innocence.” (citing Ross v. State, 456 N.E.2d 420, 423 (Ind.1983))).
Thus, for purposes of the Heck analysis below, Ocasio cannot now dispute the facts set forth in the Information that formed the basis of the charge of resisting law enforcement to which he pleaded guilty “as charged.” The Court may take judicial notice of those facts as well as the documents in the state court record. See Nolan v. Thomas, 11 CV 1565, 2011 WL 4962866, at *2-3, *2 n. 3 (N.D.Ill. Oct. 19, 2011) (taking judicial notice of the facts that formed the basis of the plaintiffs guilty plea (citing Palay v. United States, 349 F.3d 418, 425 n. 5 (7th Cir.2003) (recognizing that the Court is entitled to take judicial notice of matters in the public record))). The Court takes judicial notice *846of the indisputable fact that the state court documents exist, that they say what they say, and that they have legal consequences. See Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 943 (7th Cir.2012). The Court is not relying on these documents as proof of disputed facts, given that Ocasio accepted these facts by pleading guilty “as charged.” See United States v. Cohen, 08-3282, 2012 WL 505918, at *5-6 (C.D.Ill. Feb. 15, 2012) (“[T]he existence of public records such as court documents cannot be used to establish any disputed facts.” (citing Indep. Trust Corp., 665 F.3d at 943)).2
Accordingly, the Court takes judicial notice of the state court record in State v. Ocasio, Case NO. 45D12-1204-CM-00419 (Lake County, Ind.), including the Order of August 12, 2013, the Plea Agreement, the Order of April 20, 2012, the Informal Probation Conditions, the Information, and the Probable Cause Affidavit.
FACTUAL BACKGROUND
Based on the allegations of the Complaint, on April 13, 2012, Ocasio, a duly licensed commercial truck driver, was driving on Interstate Highway 65 in Lake County, Indiana. At 7:45 p.m., Turner conducted a traffic stop of Ocasio’s vehicle. During the stop, Turner placed part of his person inside the cabin of Ocasio’s vehicle. Turner placed Ocasio under arrest. Turner sprayed Ocasio with a chemical weapon spray. Ocasio alleges that Turner “used unreasonable and unnecessary physical force to effectuate the arrest.” (Compl. ¶ 12).
Ocasio also alleges in the Complaint that Turner “maliciously and without probable cause instituted or caused to be instituted charges against [him] for aggravated battery.” Id. at ¶ 13. However, the state court record does not show a charge of aggravated battery. Rather, on April 20, 2012, Ocasio was charged by Information with resisting law enforcement and battery on a law enforcement officer, both class A misdemeanors. As for the charge of resisting law enforcement, the Information charges:
Manuel Ocasio Jr. did knowingly, intentionally by force, resist, obstruct or interfere with a law enforcement officer by refusing to comply with orders to exit the truck, attempted to lock himself in his cab, and attempted to retreat into his sleeper berth for unknown means while said officer was lawfully engaged in the execution of his duties as an officer, contrary to section 35-44-3-3(1) of the Indiana Code.
(Def. Br., Exh. A, 7). As for the charge of battery on a law enforcement officer, the Information charges: “Manuel Ocasio, Jr. did knowingly or intentionally touch S/Trp Turner a law enforcement officer, in a rude, insolent or angry manner, while the said officer was engaged in the execution of his official duty, contrary to section 35-42-2-l(a)(l) of the Indiana Code.” Id.
*847The Information sets forth the following factual basis for the charges. Ocasio was driving south on Interstate Highway 65 when Turner observed him traveling in the passing lane when no vehicles were present in the right lane. Turner activated his emergency lights, but Ocasio did not yield. Turner then activated his siren and pulled next to the truck’s cab, at which time Ocasio pulled to the outer berm of the ramp to the southbound state of Indiana truck scales and came to a stop. Turner stepped up to talk to Ocasio, who provided his license. However, when Turner stepped down and instructed Ocasio to exit the truck, Ocasio attempted to shut his driver’s door. Turner prevented him from doing so and stepped back onto the truck.
When Ocasio then moved toward the cab’s sleeper compartment, Turner ordered him to turn around and show his hands. Ocasio refused. Turner ordered him to show his hands again, attempting to turn Ocasio to see his hands. A struggle ensued when Ocasio refused, with Ocasio throwing his shoulder back and moving further back into the sleeper compartment. Turner ordered him out and sprayed Oca-sio with a chemical spray. Ocasio then attempted to close the door with Turner standing between the door and the door jam. Turner again ordered him out of the truck and sprayed Ocasio a second time as he swung and kicked toward Turner. Another Indiana State Police trooper arrived, and Ocasio got out of the truck. Ocasio became combative again as the officers attempted to handcuff him. He was then held standing until an ambulance arrived to take him to a local hospital for medical clearance.
On August 9, 2013, after a jury trial but before the state court judge accepted the jury’s verdict, Ocasio pleaded guilty to resisting law enforcement “as charged” in the Information. The battery on a law enforcement officer charge and the two related infractions (failure to yield and truck in restricted lane) were dismissed pursuant to the plea agreement. The state court judge entered judgment of conviction on the plea of guilty on August 12, 2013.3
ANALYSIS
Defendant Senior Trooper Dale E. Turner asks the Court to enter judgment on the pleadings on all of Plaintiff Manuel Ocasio Jr.’s § 1983 claims as barred by his conviction for resisting law enforcement, pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Turner argues that, because Oca-sio pleaded guilty to resisting law enforcement “as charged” in the Information, he admitted that Turner was “lawfully engaged in the execution of his duties,” an element of the state law charge of resisting law enforcement, and, thus, his constitutional claims are barred under Heck as long as his conviction stands. Turner further argues that the malicious prosecution claim cannot survive because the underlying criminal proceedings did not terminate in Ocasio’s favor. Ocasio responds that he *848has pleaded a plausible cause of action for each of his claims.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: (1) he was deprived of a right secured by the Constitution or laws of the United States; and (2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir.2004)). Ocasio brings his § 1983 claims of false imprisonment, excessive force, and illegal search and seizure under the Fourth Amendment to the United States Constitution, which is applicable to state action through the Due Process Clause of the Fourteenth Amendment. The § 1983 malicious prosecution claim does not specify the constitutional or federal right on which the claim is based but alleges that Ocasio suffered damages, including the value of his lost liberty, exposure to public scandal and disgrace, damage to his reputation, mental and emotional suffering, humiliation, embarrassment, and anguish. The parties do not dispute that Turner was acting under color of state law.
Under Heck v. Humphrey, a plaintiff who has been convicted of a crime cannot seek damages under § 1983 for harm “caused by actions whose unlawfulness would render a conviction or sentence invalid” as long as the conviction stands. 512 U.S. at 486-87, 114 S.Ct. 2364. Thus, “the district court must consider whether a judgment in favor of the plaintiff [in the § 1983 case] would necessarily imply the invalidity of his conviction or sentence.” Id. at 487, 114 S.Ct. 2364 (emphasis added); see also Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289, 1298, 179 L.Ed.2d 233 (2011) (discussing the meaning and importance of “necessarily imply”) (citing Nelson v. Campbell, 541 U.S. 637, 647, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004)). If the answer is yes, the § 1983 complaint must be dismissed unless the plaintiff can show that the conviction or sentence has already been invalidated. Id. However, “if the [§ 1983] claim, even if successful, will not demonstrate the invalidity of the conviction, then the § 1983 action should be allowed to proceed.” Helman v. Duhaime, 742 F.3d 760, 762 (7th Cir.2014) (citing Heck, 512 U.S. at 487, 114 S.Ct. 2364; Skinner, 131 S.Ct. at 1298).
Heck does not inevitably apply to Fourth Amendment claims challenging the plaintiffs arrest rather than the conviction, such as the claims in this case. See East-erling v. Moeller, 334 Fed.Appx. 22, 24 (7th Cir.2009) (recognizing that a defendant who pleads guilty to a charge is often not precluded by Heck from subsequently raising a Fourth Amendment claim because the conviction did not depend on evidence allegedly obtained by unlawful conduct but rather on the defendant’s plea, yet not foreclosing the possibility of a civil plaintiff pleading himself “into a Heck bar by insisting on facts inconsistent with his guilt”); Evans v. Poskon, 603 F.3d 362, 364 (7th Cir.2010) (recognizing that, regarding an excessive force claim, a defendant convicted of resisting arrest could still complain that officers used unnecessary and unreasonable force during or after the arrest); VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir.2006) (noting that ... doctrines such as inevitable discovery, independent source, and harmless error could allow a conviction to stand despite illegal conduct).
Rather, to determine whether the Fourth Amendment claim is barred by Heck, a court must analyze the relationship between the civil claim and the charge on which the plaintiff was convicted:
*849[A] plaintiffs claim is Heck-barred despite its theoretical compatibility with his underlying conviction if specific factual allegations in the complaint are necessarily inconsistent with the validity of the conviction: ‘It is irrelevant that [the plaintiff] disclaims any intention of challenging his conviction; if he makes allegations that are inconsistent with the conviction’s having been valid, Heck kicks in and bars his civil suit.’
McCann v. Neilsen, 466 F.3d 619, 621-22 (7th Cir.2006) (quoting Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir.2003)); see also Helman, 742 F.3d at 762 (dismissing a Fourth Amendment excessive force claim that, as pleaded, necessarily implied the invalidity of the conviction for resisting law enforcement); Hardrick v. City of Bolingbrook, 522 F.3d 758, 762 (7th Cir.2008) (“A person convicted of resisting arrest or assaulting a police officer, however, is not precluded from bringing a § 1983 action ‘for excessive force stemming from the same confrontation’ so long as the § 1983 case does not undermine the validity of the criminal conviction” (internal citation omitted)); VanGilder, 435 F.3d at 691 (“To properly apply Heck’s bar against certain damage actions, a district court must analyze the relationship between the plaintiffs § 1983 claim and the charge on which he was convicted.”).
The United States Supreme Court explained that, under Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), “Fourth Amendment violations are generally not cognizable on federal habeas, but they are cognizable when the State has failed to provide the habeas petitioner ‘an opportunity for full and fair litigation of a Fourth Amendment claim.’ ” Wallace v. Kato, 549 U.S. 384, 395 n. 5, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Thus, the Supreme Court went on to recognize that “[a]t the time of a Fourth Amendment wrong, and at the time of conviction, it cannot be known whether a prospective § 1983 plaintiff will receive a full and fair opportunity to litigate his Fourth Amendment claim. It thus remains the case that a conflict with the federal habeas statute is possible, that a Fourth Amendment claim can necessarily imply the invalidity of a conviction, and that if it does it must, under Heck, be dismissed.” Id.
In Heck, the Supreme Court explained that its holding applies not only to a § 1983 claim for “damages directly attributable to conviction or confinement” but also to a § 1983 claim “whose successful prosecution would necessarily imply that the plaintiffs criminal conviction was wrongful.” 512 U.S. at 487 n. 6, 114 S.Ct. 2364. As an example of such a case, the Supreme Court offered a state defendant, like Ocasio, convicted of and sentenced for the crime of resisting arrest, which the Supreme Court defined as “intentionally preventing a peace officer from effecting a lawful arrest.” Id. The hypothetical state defendant then brings a damages action under § 1983 for a violation of his Fourth Amendment right to be free from unreasonable seizures. Id. The Supreme Court explained that, in order to prevail on such a claim, the individual would have to “negate an element of the offense to which he has been convicted,” and, “regardless of the state law concerning res judicata, the § 1983 action will not lie.” Id. (internal citation omitted).
The definition of resisting law enforcement under Indiana law mirrors that relied on in Heck: “A person who knowingly or intentionally ... forcibly resists, obstructs, or interferes with a law enforcement officer ... while the officer is lawfully engaged in the execution of [his] duties commits resisting law enforce-ment_” Ind.Code § 35-44-3-3 (empha*850sis added).4 A required element of the crime-and the one central to this Court’s Heck analysis-is that the officer was lawfully performing his duties. See K.W. v. State, 984 N.E.2d 610, 612 (Ind.2013) (recognizing that the five elements of resisting law enforcement include that “the officer was lawfully engaged in the execution of the officer’s duties”).
In Briggs v. State, the Indiana Court of Appeals reversed the conviction for resisting law enforcement because the police officers’ conduct in arresting Briggs on a “hunch” that he had a weapon amounted to an unreasonable seizure and, thus, the officers were not “lawfully engaged in the execution of their duties.” 873 N.E.2d 129, 133-34 (Ind.Ct.App.2007); see also Shoultz v. State, 735 N.E.2d 818, 824 (Ind. Ct.App.2000) (reversing a conviction for resisting law enforcement when the arresting officer used unconstitutionally excessive force in effecting the arrest and thus was not lawfully engaged in the execution of his duties);5 Adkisson v. State, 728 N.E.2d 175, 178 (Ind.Ct.App.2000) (reversing a conviction for resisting law enforcement because the warrantless arrest in the plaintiffs home was not in a public place and no exigent circumstances existed and, thus, the officer was not lawfully engaged in the execution of his duties); Casselman v. State, 472 N.E.2d 1310, 1318 (Ind.Ct.App.1985) (reversing a conviction for resisting law enforcement when the arresting officer, who was serving a writ to effect a civil arrest, entered the plaintiffs home without permission and, thus, the officer was not lawfully engaged in the execution of his duties).6
With these principles in mind, the Court considers each of Ocasio’s claims in turn.
1. Illegal Search and Seizure
Ocasio does not challenge the initiation of Turner’s traffic stop.7 Rather, in *851Count IV of the Complaint, Ocasio alleges that Turner’s actions during the stop were without probable cause or any other legal basis. See Compl. ¶¶ 9, 10, 29-31 (Facts; Count IV). Thus, whether Oca-sio’s Fourth Amendment claim against Turner for illegal search and seizure is barred by Heck turns on whether the claim necessarily implies the invalidity of Ocasio’s conviction for resisting law enforcement by negating an element of the crime. See VanGilder, 435 F.3d at 691-92 (discussing Nelson v. Campbell, 541 U.S. 637, 647, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004)). The Court finds that it does.
In his Complaint, Ocasio alleges that, “[d]uring the stop, without probable cause or any other legal basis, Defendant Turner placed a part of his person inside the cabin of Plaintiffs vehicle.” Compl. ¶ 9. In his brief, Ocasio similarly focuses on Turner’s “entry” into the cab of the truck. (PL Br. 6). Ocasio then argues that, because the illegal search and seizure took place during the course of the stop and not after or pursuant to his arrest, his claim is not barred by Heck. However, the facts to which he pleaded guilty demonstrate that Turner did not place his body inside the cab until Ocasio began resisting Turner’s lawful attempts to have Ocasio exit the cab as part of the stop. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (holding that a police officer may, as a matter of course, order tile driver of a lawfully stopped car to exit his vehicle).8
The charging facts, to which Ocasio pleaded guilty, detail Turner’s basis for initiating the traffic stop (Ocasio’s travel in the left-hand passing lane as well as his failure to pull over when Turner activated his lights); Ocasio’s refusal to come out of his truck at Turner’s request, Ocasio’s attempt to close the cab door, and Ocasio’s movement back into the cab’s sleeper compartment; Turner’s return to the steps of the cab to block the door from being closed, the orders to Ocasio to show his hands, and Ocasio’s second attempt to reach back into the sleeper compartment; the subsequent sequence of events leading to Turner’s use of the chemical spray; and, then, once the other officer had arrived, the arrest of Ocasio.
Like the Supreme Court’s example in Heck, if Ocasio is successful on his claim that the search and seizure by Turner was illegal (i.e. without probable cause), then Turner, by definition, was not “lawfully engaged in the execution of his duties” when he placed his body inside the cab after Ocasio resisted by refusing to exit the cab and attempting to shut the door and retreat inside the cab. Such a finding would negate an element of the crime of resisting law enforcement to which Ocasio pleaded guilty and necessarily challenge an element of his conviction. Under Heck, until his conviction for resisting law en-*852foreement is reversed, expunged, or invalidated by a state tribunal or called into question by a federal habeas writ, Ocasio cannot seek damages for illegal search and seizure. See, e.g., McCoy v. City of Fort Wayne, 1:11-CV-18, 2012 WL 1714355, at *4-5 (N.D.Ind. May 15, 2012) (granting summary judgment on an illegal search and seizure claim based on assertions that the officers fabricated the evidence against him and made false statements in the search warrant and probable cause affidavits because if that claim was successful, the evidence gathered from the search should have been inadmissible, undermining his conviction for dealing in cocaine or a narcotic drug that was premised on that evidence).
Therefore, the Court grants the Motion for Judgment on the Pleadings as to the illegal search and seizure claim (Count IV) and orders that the claim is dismissed without prejudice. See White v. Dowd, 1:13-CV-350, 2014 WL 1324336, at *2 (S.D.Ind. Mar. 28, 2014) (citing Perez v. Sifel, 57 F.3d 503, 505 (7th Cir.1995) (recognizing dismissal of Nec/c-barred claims is without prejudice)).
2. False Imprisonment/False Arrest
In Count I, titled “false imprisonment,” Ocasio alleges that Turner intentionally caused him to be arrested and imprisoned without probable cause or other justification in violation of the Fourth Amendment. In his brief, Ocasio treats this claim as one for false arrest. See Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (describing false arrest as a species of false imprisonment).
As explained above, a Fourth Amendment false arrest claim is not automatically Nee/c-barred by a subsequent conviction for the same offense, but, in those cases in which the grounds for the conviction flow from the same facts underlying the allegations of false arrest, the claim is barred. See Booker v. Ward, 94 F.3d 1052, 1056 (7th Cir.1996) (noting that a finding of wrongful arrest does not invalidate convictions that can be supported by other witnesses and evidence (citing Heck, 512 U.S. at 486-87, 114 S.Ct. 2364)); Puch v. Vill. of Glenwood, Ill., No. 05 C 1114, 2012 WL 2502688, at *4 (N.D.Ill. June 27, 2012) (granting judgment on the pleadings on the false arrest claim because probable cause is an absolute bar to a § 1983 claim for false arrest, the plaintiff had been convicted based on the testimony of the arresting officer, which was the same testimony supporting probable cause, and, thus, plaintiff could not prevail on the false arrest claim without undermining the criminal conviction); Baker v. McCarthy, No. 13C5232, 2014 WL 1409414, at *3 (N.D.Ill. Apr. 11, 2014) (recognizing that Heck can bar a Fourth Amendment claim when the civil rights claim was an element at issue in the state criminal conviction).
In his brief, Ocasio identifies two points in time for which he may allege false arrest: (1) the initial stop and (2) the time period when he was “resisting arrest” pursuant to his plea agreement. (PI. Br. 6). Ocasio argues that officers are not permitted to illegally seize a person “for no reason” and then create a scenario in which the individual resists the arrest so that the officer is not liable for the purportedly unlawful arrest. (PL Br. 6-7) (citing Bielanski v. Cnty. of Kane, 550 F.3d 632, 637 (7th Cir.2008)). Ocasio fails to acknowledge two facts. First, he is not challenging the initial traffic stop. Second, the facts set forth in the Information, to which Ocasio pleaded guilty “as charged,” set out the events that provide the probable cause for the arrest on the charges of resisting law enforcement.
*853“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001); see also Virginia v. Moore, 553 U.S. 164, 171, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (affirming a long line of cases holding that, when an officer has probable cause to believe a person has committed even a minor crime in his presence, the arrest is constitutionally reasonable); Jackson v. Parker, 627 F.3d 634, 638-40 (7th Cir.2010) (applying Moore and Atwa-ter to find no Fourth Amendment violation when the officer had probable cause to arrest the defendant after observing him driving a vehicle that was prohibited from using the roadway).
Accordingly, the existence of probable cause is an absolute bar to a claim of false arrest or false imprisonment under § 1983 or Indiana law. See Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir.2012) (noting that the presence of even “arguable probable cause” for the arrest presents an absolute bar to a claim for unlawful arrest and false imprisonment under § 1983 (citing Biddle v. Martin, 992 F.2d 673, 678 (7th Cir.1993); Stokes v. Bd. of Educ. of the City of Chi., 599 F.3d 617, 626 (7th Cir.2010))); Bentz v. City of Kendallville, 577 F.3d 776, 780 (7th Cir.2009) (recognizing the requirement of an absence of probable causé to establish a false imprisonment claim under § 1983 or Indiana law). The probable cause must have existed at the time of the arrest. Chelios v. Heavener, 520 F.3d 678, 686 (7th Cir.2008) (recognizing that probable cause must exist “at the time of the arrest”); Larsen v. Fort Wayne Police Dep’t, 825 F.Supp.2d 965, 974 (N.D.Ind.2010) (same).
Ocasio could not have been convicted of resisting law enforcement but for the facts in the Information. Ocasio pleaded guilty to those facts “as charged.” He cannot now challenge them. Those facts, which occurred in Turner’s presence, provide the probable cause for the arrest for and charge of resisting law enforcement. If Ocasio proves in this case that he did not resist Turner, that evidence will necessarily impugn the validity of his conviction for resisting law enforcement, which required that Turner be “lawfully engaged.” See Chriswell v. Vill. of Oak Lawn, No. 11 C 00547, 2013 WL 5903417, at *7 (N.D.Ill. Nov. 4, 2013) (finding a Fourth Amendment claim of unreasonable seizure to be barred by Heck when the plaintiff had pleaded guilty to aggravated battery of a police officer because the officer’s testimony of what took place in his presence provided proof of both probable cause and the plaintiffs guilt).
Ocasio argues that his claim of false arrest based on the other charge-battery on a law enforcement officer-should not be dismissed because he was not convicted of that charge. He is incorrect as the existence of probable cause for the traffic stop and for the arrest on the charge of resisting law enforcement also bar Ocasio’s claim for false imprisonment on the charge of battery on a law enforcement officer because the charges are closely related. “[E]ven if probable cause does not exist for the crime charged, proof of probable cause to arrest the plaintiff on a closely related charge is also a defense.” Kelley v. Myler, 149 F.3d 641, 647-48 (7th Cir.1998) (citing Biddle, 992 F.2d at 676); see also Fox v. Hayes, 600 F.3d 819, 837 (7th Cir.2010) (“[A]n arrest is reasonable under the Fourth Amendment so long as there is probable cause to believe that some criminal offense has been or is being committed, even if it is not the crime with *854which the officers initially charge the suspect.”); Ochana v. Flores, 347 F.3d 266, 271 (7th Cir.2003) (rejecting the plaintiffs “parade of horribles” argument).
Therefore, because a judgment in favor of Ocasio on his claim for false arrest would impugn the validity of his conviction, the Court grants the Motion for Judgment on the Pleadings on the claim of false arresVfalse imprisonment. See Gordon v. Miller, 528 Fed.Appx. 673, 674 (7th Cir.2013) (finding that, because the plaintiff was challenging his arrest on the basis that he never drove the vehicle, that proof would necessarily impugn the validity of the conviction that he drove the vehicle while intoxicated). The Court orders that the claim for false arrest/false imprisonment (Count I) is dismissed without prejudice. See White, 2014 WL 1324336, at *2 (citing Perez, 57 F.3d at 505 (dismissal of Nec/c-barred claims is without prejudice)).
3. Excessive Force
In Count II of the Complaint, titled “Excessive Force,” Ocasio alleges that the actions of Turner constituted unreasonable, unjustifiable, and excessive force against him in violation of the Fourth Amendment. Turner argues that Ocasio’s excessive force claim challenges the validity of his conviction for resisting law enforcement and must be dismissed pursuant to Heck. Ocasio responds that nothing in his plea agreement implies that his resis-tence merited the amount of force used by Turner against him. The Court finds that Heck does not bar Ocasio’s claim that, once Ocasio began resisting Turner, Turner used excessive force during and after the arrest.
Excessive force claims are analyzed under the Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “A police officer’s use of force is unconstitutional if, ‘judging from the totality of the circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to make the arrest.’ ” Payne v. Pauley, 337 F.3d 767, 778 (7th Cir.2003) (quoting Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir.1987)).
Recently in Helman, the Seventh Circuit Court of Appeals reaffirmed that, when a plaintiff has been convicted of resisting law enforcement, the plaintiff can only proceed with a § 1983 excessive force claim “to the extent that the facts underlying the excessive force claim are not inconsistent with the essential facts supporting the conviction.” 742 F.3d at 762 (citing Evans, 603 F.3d 362). Thus, when determining whether Heck requires dismissal of the excessive force claim, a court “must consider the factual basis of the claim and determine whether it necessarily implies the invalidity of [the plaintiffs] conviction.” Id. Both Helman and Evans were appealed from federal district courts in Indiana, and both involved a plaintiff who had been convicted of the Indiana crime of resisting law enforcement.
In Evans v. Poskon, the court considered three different contentions related to Evans’ excessive force claim based on the police entering Evans’ home on the belief that he was attempting to strangle someone and then arresting him after a struggle. 603 F.3d at 363. Evans brought a § 1983 action for excessive force, alleging that the officers violated the Fourth Amendment by using excessive force both during and after the arrest. He contended (1) that he did not resist being taken into custody, (2) that the police used excessive force to effect custody, and (3) that the police beat him severely even after reducing him to custody. Id. at 364. The court held that Evans could not maintain the § 1983 claim based on the first assertion— *855that he did not resist being taken into custody — because such a showing would be incompatible with his conviction for resisting law enforcement. Id.; see also Evans v. State, 855 N.E.2d 378, 383 (Ind.Ct.App.2006) (noting that Evans was convicted of the class D felony of resisting law enforcement). But, the court held that Evans could proceed on the second and third claims that the police used excessive force in effecting custody as well as after he was in custody because those claims are not inconsistent with his conviction for resisting law enforcement. Id. (citing Gilbert v. Cook, 512 F.3d 899 (7th Cir.2008); VanGilder, 435 F.3d at 692; Dyer v. Lee, 488 F.3d 876, 881 (11th Cir.2007)).
The qourt in Evans did not discuss the elements of the underlying crime of resisting law enforcement and whether Evan’s claim of excessive force was inconsistent with the element of the crime of resisting law enforcement that the officer be “lawfully engaged.” Likewise, the courts in VanGilder or Gilbert, on which Evans relies, did not discuss the elements of the crime of resisting law enforcement.
In VanGilder, also an Indiana case in which the plaintiff had pleaded guilty to and was convicted of resisting law enforcement, the Seventh Circuit Court of Appeals found that the civil action for excessive force did not imply the invalidity of the conviction. 435 F.3d at 692. In VanGilder, the plaintiff did not deny that he had resisted the officer’s orders nor did he challenge the factual basis presented at his change of plea hearing. Id. Rather, the plaintiff alleged that the officer’s response to his resistence was not objectively reasonable. Id. The court reasoned:
Were we to uphold the application of Heck in this case, it would imply that once a person resists law enforcement, he has invited the police to inflict any reaction or retribution they choose, while forfeiting the right to sue for damages. Put another way, police subduing a suspect could use as much force as they wanted — and be shielded from accountability under civil law — as long as the prosecutor could get the plaintiff convicted on a charge of resisting. This would open the door to undesirable behavior and gut a large share of the protections provided by § 1983.
Id.
Gilbert v. Cook, an Illinois case, concerned the plaintiffs continuing insistence that he did not punch a prison guard, which was inconsistent with the prison disciplinary tribunal’s finding that the plaintiff had punched a guard. 512 F.3d at 901.9 The court reasoned that “[a] contention that a guard struck back after being hit is compatible with Heck. Otherwise guards (and for that matter any public employee) could maul anyone who strikes them, without risk of civil liability as long as the private party is punished by criminal prosecution or prison discipline for the initial wrong.” Id. The Seventh Circuit Court of Appeals held that “Heck [ ] does not affect litigation about what happens after the crime is completed.” Id. The court explained, “Public officials who use force reasonably necessary to subdue an aggressor are not liable on the merits; but whether the force was reasonable is a question that may be litigated without transgressing Heck.... ” Id. (citing VanGilder, 435 F.3d at 692). Based on the position asserted by Gilbert in his § 1983 case that he “either did or did not hit a guard,” the court found that his claim did *856not “necessarily” imply the invalidity of his conviction. Id. at 902. The court explained that the trial judge could have instructed the jury that Gilbert struck the first blow (consistent with the tribunal’s finding), that any statements to the contrary should be ignored, and that the question for the jurors was whether the guards used more force than was reasonably necessary to protect themselves from an unruly prisoner. Id.
Recently in Helman, to determine if the excessive force claim was barred under Heck, the court considered the element of the crime of resisting law enforcement that requires the officer to be “lawfully engaged.” The theory Helman pursued on his § 1983 claim was that he did not attempt to draw his weapon on the police until after shots were fired at him. 742 F.3d at 762-63. The court found that theory to be inconsistent with his conviction for resisting law enforcement under Indiana Code § 35-44-3-3 and, thus, barred by Heck. The Court reviewed the statute and Indiana case law interpreting it, as this Court did above, noting the holding that an “officer is not ‘lawfully engaged in the performance of his duties’ if he is employing excessive force, and therefore a person who reasonably resists that force cannot be convicted under that provision.” Helman, 742 F.3d at 763 (citing Shoultz, 735 N.E.2d at 823-25). The court reasoned that Helman would not have been criminally liable under the statute if he had attempted to draw his weapon only after the police had fired at him; therefore, his conviction under that statute, which was by plea agreement, “necessarily entails a finding that at the time he drew his weapon, he did not face the use of excessive force by the officers.” Id. The court explained that “[i]t would have been objectively unreasonable for officers to open fire on a person who was not reaching for a weapon or otherwise acting in a threatening manner, and therefore the officers would have been employing excessive force if they did so.” Helman, 742 F.3d at 763 (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Common v. City of Chicago, 661 F.3d 940, 943 (7th Cir. 2011)).10
This Court then must consider the factual basis of Ocasio’s excessive force claim and determine whether it necessarily implies the invalidity of his conviction for resisting law enforcement. In paragraph 11 of the Complaint, Ocasio alleges that, “[w]ithout any legal basis, Defendant Turner sprayed the Plaintiff with his chemical weapon spray.” Compl. ¶ 11. In paragraph 12 of the Complaint, he alleges, “During the traffic stop, Defendant Turner used unreasonable and unnecessary physical force to effectuate the arrest of Plaintiff.” Compl. ¶ 12. In the facts in the Information, to which Ocasio adopted through his guilty plea, Turner sprayed Ocasio with the chemical spray while Oca-sio was in the truck after Ocasio attempted to evade Turner and struggled with Turner.
In the instant motion, Turner argues that, if Turner’s response to this struggle was reasonable, then Ocasio has no excessive force claim. Or, Turner argues that, *857if as Ocasio contends, the force was unreasonable and excessive, then Ocasio would not have been criminally liable under the resisting law enforcement statute. But the timing of Turner’s “lawfully engaged” analysis is misplaced. • The relevant point in time for analyzing whether Turner was “lawfully engaged” for purposes of the conviction for resisting law enforcement is prior to the point that Ocasio began resisting, not after Ocasio’s resistence began.
Like the plaintiff in Helman, Ocasio pleaded guilty to resisting law enforcement under Indiana Code § 35-44-3-3. And, like the plaintiff in Helman, Ocasio pleaded guilty to the specific fact that the officer was “lawfully engaged in the execution of his duties as an officer.” (Def. Mot., Exh. A.f. (Information)). But, allowing Ocasio to go forward on his excessive force claim for the time period beginning once Ocasio started resisting and Turner then began using force is consistent with Evans, VanGilder, and Gilbert as well as the more recent decision in Helman.
The Court starts with the specific language of the charge of resisting law enforcement to which Ocasio pleaded guilty:
Manuel Ocasio Jr. did knowingly, intentionally by force, resist, obstruct or interfere with a law enforcement officer by refusing to comply with orders to exit the truck, attempted to lock himself in his cab, and attempted to retreat into his sleeper berth for unknown means while said officer was lawfully engaged in the execution of his duties as an officer, contrary to section 35-44-3-3(1) of the Indiana Code.
(Def. Br., Exh. A.f (p. 7)). Accordingly, based on the plea agreement, Turner was lawfully engaged in his duties as an officer through the events described in that paragraph, which led to Turners use of force to arrest Ocasio. Like in Evans, Ocasio cannot now argue that he did not resist Turner by refusing to comply with the order to exit the truck, attempting to lock himself in the cab, or attempting to retreat back into the cab’s sleeper compartment. He cannot contradict these and the other facts set forth in the Information supporting his conviction for resisting law enforcement. Thus, Ocasio cannot now argue that Turner was not lawfully engaged in the exercise of his duties up to the point that Ocasio began resisting Turner in the cab but prior to Turner’s use of force. To do so would contradict an element of the crime of resisting law enforcement and would invalidate the conviction.
However, his guilty plea does not preclude Ocasio from arguing in this § 1983 suit that, once Ocasio resisted Turner by those actions, the force used by Turner during and after the arrest was unreasonable and excessive. Hardrick, 522 F.3d at 763-64 (recognizing that Heck does not apply to a § 1983 claim for excessive force that alleges the continued use of force after the criminal defendant’s resistance has stopped (citing VanGilder, 435 F.3d at 692 (“Were we to uphold the application of Heck in this case, it would imply that once a person resists law enforcement, he has invited the police to inflict any reaction or retribution they choose, while forfeiting the right to sue for damages.”))). Ocasio can argue that Turner’s use of the chemical weapon spray against him was “unnecessary physical force to effect the arrest.” (PI. Br. 9). He can also argue that his actions, but not inconsistent with those set out in the Information, did not merit the use of the chemical weapon spray. Indeed, the facts that Ocasio may offer to prove this claim are circumscribed by the facts set out in the background and the charging paragraph of the Information, which underpin his plea and conviction.
This holding is consistent with Helman, despite the contrary outcome. In Hel-*858man, the court was faced with a clear sequence of events concerning the use of deadly force that could have unfolded in only one of two ways-one that supported Helman’s conviction or the one he asserted in his § 1983 claim that would have invalidated his conviction. In Helman, the inquiry as to whether the officers were “lawfully engaged” looked at the actions of the officers up to the time that Helman pulled his gun and fired at the officers. If, as alleged in his § 1983 case, Helman drew his weapon only after the officers began firing at him, then the officers’ use of force at the time Helman pulled his gun could not have been reasonable, which means they would not have been “lawfully engaged” and Helman could not have been convicted of resisting law enforcement.11 In this case, whether Turner was “lawfully engaged” prior to Ocasio’s resistence does not entail an analysis of any use of force by Turner because he did not use any force prior to Ocasio’s resistence. To that extent, Ocasio is barred by Heck from asserting that Turner used excessive force prior to Ocasio’s resistence.
Finally, Ocasio argues in his brief that he has alleged two distinct acts of excessive force, one of which occurred after his arrest, citing paragraph 11 of his Complaint. Again, paragraph 11 provides: “Without any legal basis, Defendant Turner sprayed the Plaintiff with his chemical weapon spray.” Compl. ¶ 11. It appears that Ocasio may be arguing that Turner sprayed him with the chemical spray after the arrest occurred. There are no other references in the Complaint to any other use of force by Turner after Ocasio was arrested.
In his reply brief, Turner argues that the facts in the Information establish the reasonableness of Turner’s use of the pepper spray, namely Ocasio’s refusal to get out of the cab. Turner argues that he was justified in using pepper spray on this basis alone and that his actions were restrained because he did not use the pepper spray until Ocasio began striking him. First, because Turner did not raise this argument in his opening motion, it is not properly before the Court. Second, the argument is premature. Turner can make these arguments at summary judgment or at trial once the parties have had an opportunity to develop the facts and law. Notably, both cases cited by Turner for the finding that the use of pepper spray was reasonable were summary judgment rulings. See Brooks v. City of Aurora, 653 F.3d 478, 486 (7th Cir.2011) (noting that courts have found that the use of pepper spray against a suspect who is physically resisting arrest is a reasonable response (citing Vinyard v. Wilson, 311 F.3d 1340, 1348 & n. 12 (11th Cir.2002))); Padula v. Leimbach, 656 F.3d 595, 603 (7th Cir.2011).
Accordingly, the Court denies the Motion for Judgment on the Pleadings, as to Ocasio’s Fourth Amendment excessive force claim (Count II) with the limitations set forth in this Opinion.
A Malicious Prosecution
In the Facts section of the Complaint, Ocasio alleges: “Defendant Turner maliciously and without probable cause instituted or caused to be instituted charges against Plaintiff for aggravated battery;” “Defendant Turner improperly influenced the prosecutors to charge *859Plaintiff with aggravated battery;” “Defendant Turner made knowing misstatements to prosecutors in connection with the aggravated battery charge;” “Defendant Turner testified untruthfully at Plaintiffs criminal trial;” and “As a direct and proximate consequence of the unlawful actions of Defendant Turner, Plaintiff was injured including loss of freedom, humiliation, embarrassment, the deprivation of his constitutional rights and his dignity, lost time, attorneys’ fees, physical injuries, including the eyes, and emotional distress.” Compl. ¶¶ 13-16, 18. Count III then asserts a claim of malicious prosecution under § 1983, alleging that Turner knowingly and maliciously prosecuted Ocasio on false charges for which he knew there was no probable cause and that he performed these actions while on duty and while acting within the scope of his employment.
“[individuals do not have a federal right not to be summoned into court and prosecuted without probable cause.” Serino v. Hensley, 735 F.3d 588, 592 (7th Cir.2013). Thus, the Seventh Circuit Court of Appeals has emphasized that “ ‘[fjederal courts are rarely the appropriate forum for malicious prosecution claims.’ ” Id. (quoting Ray v. City of Chicago, 629 F.3d 660, 664 (7th Cir.2011)). A federal constitutional claim of malicious prosecution under § 1983 is actionable only when no adequate state-law remedy exists. Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir.2001) (discussing Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)). Such is the case in Indiana, because under Indiana Code § 34-13-3-3(6), the Indiana legislature granted absolute immunity to state officers and employees acting within the scope of their employment for the “initiation of a judicial or an administrative proceeding.” See Julian v. Hanna, 732 F.3d 842, 846 (7th Cir.2013). “‘[W]hen brought under federal law, the claim referred to colloquially and under state common law as ‘malicious prosecution’ is typically based on the deprivation of liberty without due process of law, in violation of the Fourteenth Amendment, and may seek redress through § 1983.’ ” Katz-Crank v. Haskett, 1:13-CV-159, 2014 WL 1324283, at *7 (S.D.Ind. Mar. 31, 2014) (quoting Freeman v. City of Crown Point, No. 2:13-CV-059, 2014 WL 545511, at *6 (N.D.Ind. Feb. 11, 2014)).
Ocasio’s malicious prosecution claim is based solely on the charge of battery on law enforcement officer. Ocasio alleges in paragraph 17 of his Complaint that “[t]he [battery on law enforcement officer] charge terminated by way of a not guilty verdict in Plaintiffs favor,” Compl. ¶ 17, and asserts in his response brief that he was found not guilty by the jury on some of the claims brought against him. However, no jury verdict was entered in Oca-sio’s favor, and any conclusions by the jury were neither accepted by the state court judge nor reduced to judgment. See Ind. Code § 35-38-1-1. Rather, the charge of battery on a law enforcement officer as well as the traffic infraction charges were dismissed as part of the plea agreement, and the state court entered judgment of conviction on the plea of guilty. See id.
As argued by Turner, Ocasio’s malicious prosecution claim must be dismissed because the action did not terminate in Ocasio’s favor. In Heck, the Supreme Court recognized that “[o]ne element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused.” 512 U.S. at 484, 114 S.Ct. 2364. Similarly in Julian v. Hanna, the Seventh Circuit Court of Appeals recognized that “[u]n-der both state and federal law a mali*860cious prosecution claim does not accrue until the criminal proceeding that gave rise to it ends in the claimant’s favor.” 732 F.3d at 845 (citing Heck, 512 U.S. at 484, 114 S.Ct. 2364; Brooks, 578 F.3d at 579; Butt v. McEvoy, 669 N.E.2d 1015, 1017 (Ind.Ct.App.1996)); Duvall v. Kroger Co., 549 N.E.2d 403, 406 (Ind.Ct.App.1990) (“If a prosecution is terminated pursuant to a compromise or entered voluntarily by the accused, the termination is not favorable.” (citing W. Page Keeton, § 119 Prosser and Keeton on the Law of Torts (5th Ed.) (1984)); Davis v. Chubb/Pacific Indemnity Group, et al., 493 F.Supp. 89, 91 (E.D.Pa.1980); Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir.1980), cert. denied (1981), 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347; Restatement of Torts (2d) § 660).12 Ocasio does not dispute in his response brief that this is a required element of a malicious prosecution claim.
Accordingly, the Court grants the Motion for Judgment on the Pleadings as to the claim of malicious prosecution. The Court does not reach the question of whether the malicious prosecution claim is barred by Heck. Nor does the Court consider whether Ocasio has otherwise pleaded a cognizable federal claim of malicious prosecution by alleging something that amounts to a constitutional violation. See Serino, 735 F.3d at 593; Katz-Crank, 2014 WL 1324283, at *7-8 (finding that the plaintiff had failed to allege a valid constitutional violation); Freeman, 2014 WL 545511, at *6 (“Courts have recognized that the harm caused by malicious prosecutions may implicate liberty and property interests, as contemplated by the Due Process Clause.” (citing Serino, 735 F.3d at 594-95)); Mudd v. Lyon, 1:12-CV-164, 2014 WL 218443, at *9-11 (N.D.Ind. Jan. 17, 2014) (finding, on summary judgment, that the plaintiff had failed to identify evidence of malice). The Court orders that the claim for malicious prosecution (Count III) is dismissed without prejudice.
5. State Law Claims
Ocasio’s Complaint states in the Introduction that “[t]his action also contains some attendant state claims.” Compl. ¶ 1. Yet, the Complaint contains four denominated counts, all of which are brought under § 1983 and none of which identify any state law basis for the claim. In the Complaint, Ocasio avers that Turner is sued in his individual capacity and alleges that Turner was acting within the scope of his employment at all times relevant to the allegations of the Complaint. See Compl. ¶¶ 5, 6. Turner argues that Ocasio’s state claims are barred under the Indiana Tort Claims Act (“ITCA”), because Ocasio can only bring these claims against the government agency and not Turner individually. Ocasio offers no response to this argument.
“The ITCA limits when a plaintiff may sue a governmental employee personally.” Wilson v. Isaacs, 917 N.E.2d 1251, 1257 (Ind.Ct.App.2009) (citing Bushong v. Williamson, 790 N.E.2d 467, 471 (Ind.2003)), summarily aff'd in part, 929 N.E.2d 200, 204 (Ind.2010). If a plaintiff alleges that an employee was acting within the scope of his employment, as Ocasio does in his Complaint, the plaintiff is barred from *861bringing a state law tort claim against the employee personally unless the governmental entity answers that the employee was acting outside the scope of his employment. See Ind.Code §§ 34 — 13—3—5(b), (c)(2);13 see also Townsend v. Wilson, No. 1:13-CV-315, 2014 WL 293808, at *1 (N.D.Ind. Jan. 27, 2014) (citing Wilson-El v. Majors, No. 1:12-CV-638, 2012 WL 5929983, at *3 (S.D.Ind. Nov. 27, 2012)); Long v. Barrett, 818 N.E.2d 18, 24 (Ind.Ct.App.2004), trans. denied. The State of Indiana has not done so. Thus, the Court grants the Motion for Judgment on the Pleadings as to Ocasio’s state law claims against Turner.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS in part and DENIES in part Defendant’s Motion for Judgment on the Pleadings [DE 15]. The Court DISMISSES without prejudice Ocasio’s claims against Turner under § 1983 for false imprisonment/false arrest (Count I), malicious prosecution (Count III), and illegal search and seizure (Count IV), as well as those claims brought under Indiana state law.
Ocasio’s § 1983 Fourth Amendment excessive force claim against Turner (Count II) REMAINS PENDING as set forth in this Opinion.
The Court LIFTS the stay of discovery.
. Although the Complaint identifies Dale E. Turner with the title "officer,” he is identified as "Senior Trooper Turner” in the Answer and Amended Answer as well as in the Information in the underlying state case.
. The two cases cited by Ocasio are inappo-site as neither addresses facts adopted by the plaintiff as part of a plea agreement; rather, both deal with findings of fact by another court. See Wright v. Charles Thompson, 4:12-CV-10, 2012 WL 2401532, at *1 (S.D.Ind. June 25, 2012) (denying motion to take judicial notice of facts established by the court of appeals in the underlying criminal matter (citing Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997))); Facebook, Inc. v. Teachbook.com LLC, 819 F.Supp.2d 764, 772 (N.D.Ill.2011) (noting that statements by a party made in one civil lawsuit are not a judicial admission in another (citing Kohler v. Leslie Hindman, Inc., 80 F.3d 1181, 1185 (7th Cir.1996) (finding that a deposition statement made in a prior lawsuit was an "admission” but not a "judicial admission” and could be used only as evidence in the subsequent lawsuit))).
. In the August 12, 2013 Order, the state court judge recognized that the jury returned verdicts of guilty of resisting law enforcement, unsigned as to guilty of battery on law enforcement, unsigned as to not guilty on resisting law enforcement, not guilty of battery on law enforcement, and not liable on the infractions of truck in restricted lane and failure to yield to an emergency vehicle. See (Def. Mot., Exh. A.b). The court then noted that, following the jury’s dismissal, the court advised the parties that no legal instructions were tendered to the jury pertaining to the charged offenses pursuant to the charging Information. Id. The parties discussed the matter privately with their clients, and, following a brief recess, the attorneys met with the judge in chambers to report that Ocasio had accepted the guilty plea proposal. Id.
. This is the version of the Indiana Code in effect at the time of Ocasio's offense. That provision, which was repealed as part of a comprehensive recodification of Indiana law, can now be found at Indiana Code § 35-44.1-3 — 1(a).
. Ocasio argues that Shoultz is actually contrary to Turner's position because the case recognizes that "[t]he general rule in Indiana is that 'a private citizen may not use force in resisting a peaceful arrest by an individual who he knows, or has reason to know, is a police officer performing his duties regardless of whether the arrest in question is lawful or unlawful. Thus, under that rule it is immaterial whether Shoultz' purported arrest for resisting law enforcement was supported by probable cause.” 735 N.E.2d 818, 823 (Ind.Ct.App.2000). But, Ocasio fails to cite the following paragraph of Shoultz: "However, in a circumstance such as this, the rule that a citizen may not resist a peaceful, though illegal, arrest was not ‘intended as a blanket prohibition so as to criminalize any conduct evincing resistance where the means used to effect an arrest are unlawful.’ ” Id. (citing Casselman v. State, 472 N.E.2d 1310, 1315 (Ind.Ct.App.1985); Adkisson v. State, 728 N.E.2d 175, 178 (Ind.Ct.App.2000)). Moreover, Ocasio was convicted under the statute, which requires that the officer have been "lawfully engaged.”
. The Indiana Supreme Court has since held that "the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.” Barnes v. State, 946 N.E.2d 572, 577 (Ind.2011). Thus, in Bames, the officers’ entry into his apartment did not negate an element of the crime and his conviction for resisting law enforcement was sustained. Id. at 578.
. In paragraph 8 of the Complaint, Ocasio alleges, “At approximately 7:45 p.m., Defendant Turner conducted a traffic stop of Plaintiff's vehicle.” Compl. ¶ 8. In his response brief, Ocasio writes, "On or about April 13, 2012, the defendant lawfully commenced a traffic stop on Ocasio, a commercial truck driver.” (PL Resp. 2); compare Chriswell v. Vill. of Oak Lawn, 11 C 00547, 2013 WL 5903417, at *7 (N.D.Ill. Nov. 4, 2013) (denying the motion to dismiss the illegal seizure claim based on the officer’s initial stop be*851cause there was a factual dispute as to whether the plaintiff had committed any violation at the time she was pulled over). The United State Supreme Court recently reiterated:
The Fourth Amendment permits brief investigative stops — such as the traffic stop in this case — when a law enforcement officer has "a particularized and objective basis for suspecting the particular person stopped of criminal activity.” The "reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of infer-mation possessed by police and its degree of reliability.” The standard takes into account “the totality of the circumstances— the whole picture.”
Navarette v. California, - U.S. -, 134 S.Ct. 1683, 1687-88, 188 L.Ed.2d 680 (2014) (internal citations omitted).
. To the extent that Ocasio’s illegal search and seizure claim is also challenging his arrest, the Court addresses that claim in the following section on false imprisonment/false arrest.
. In Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), the United States Supreme Court extended the doctrine established in Heck v. Humphrey to the decisions of prison disciplinary tribunals.
. In Shoultz, the court found that the force used by the officer was objectively unreasonable and unconstitutionally excessive under the Fourth Amendment standard set out in Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), in part, because the actions taken by Shoultz and the other individual present were not threatening to the officer before the officer began to use force. Shoultz v. State, 735 N.E.2d 818, 823-24 (Ind.Ct.App.2000). In effect, the officer began using force before Shoultz resisted arrest, within the meaning of the statute.
. Under the Fourth Amendment, an officer is only justified in using deadly force if faced with deadly force. Henning v. O’Leary, 477 F.3d 492, 496 (7th Cir.2007). (citing Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Jacobs v. City of Chicago, 215 F.3d 758, 774 (7th Cir.2000)).
. Under Indiana law, there are- four elements for a claim of malicious prosecution: "(1) the defendant [] instituted or caused to be instituted an action against the plaintiff [ ]; (2) the defendant acted with malice in doing so; (3) the defendant had no probable cause to institute the action; and (4) the original action was terminated in the plaintiff's favor.” Bugariu v. Town of St. John, Ind., 2:13-CV-355, 2014 WL 958025, at *3 (N.D.Ind. Mar. 12, 2014) (quoting City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind.2001)).
. Indiana Code § 34-13-3-5(b) provides, in relevant part:
A lawsuit alleging that an employee acted within the scope of the employee’s employment bars an action by the claimant against the employee personally. However, if the governmental entity answers that the employee acted outside the scope of the employee’s employment, the plaintiff may amend the complaint and sue the employee personally. Ind.Code § 34-13-3-5(b). In addition,
[a] lawsuit filed against an employee personally must allege that an act or omission of the employee that causes a loss is:
(1) criminal;
(2) clearly outside the scope of the employee’s employment;
(3) malicious;
(4) willful and wanton; or
(5) calculated to benefit the employee personally.
The complaint must contain a reasonable factual basis supporting the allegations.
Id. at § 34-13-3-5(c). Although Ocasio alleges in the Complaint that Turner acted “maliciously,” he does so only in paragraph 13 in the context of the claim of malicious prosecution, and, as noted above, Indiana state law grants absolute immunity to state officers and employees acting within the scope of their employment for the “initiation of a judicial or an administrative proceeding.” See Julian v. Hanna, 732 F.3d 842, 846 (7th Cir.2013) (citing Indiana Code § 34-13-3-3(6)). | 01-04-2023 | 07-25-2022 |