url
stringlengths 59
59
| text
stringlengths 0
1.13M
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8471254/ | THOMPSON, J.,
concurring separately.
I do not believe Ranes’s plea agreement waived his right to move to set aside his plea. But, on the merits, he failed to make a sufficient showing that his plea should be set aside, and so I concur in the court’s affirmance of the district court’s denial of his motion to withdraw his guilty plea. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471512/ | OPINION OF THE COURT
PER CURIAM.
Fernando Guzman-Lopez petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Guzman-Lopez was admitted to the United States in 1990 as a lawful permanent resident. In 2006, he was charged as removable as an aggravated felon based on his state court conviction for delivery of cocaine. An Immigration Judge (IJ) found Guzman-Lopez removable and ineligible for cancellation of removal. The BIA agreed with the IJ and dismissed the appeal. Guzman-Lopez filed a timely petition for review.
We have jurisdiction to consider whether Guzman-Lopez is an aggravated felon and exercise plenary review over the BIA’s conclusion. Garcia v. Attorney General, 462 F.3d 287, 290-91 (3d Cir.2006). If a state court conviction would be punishable as a felony under the federal Controlled Substance Act, it qualifies as an aggravated felony. Evanson v. Attorney General, 550 F.3d 284, 289 (3d Cir.2008). Guzman-Lopez was convicted of the unlawful delivery of 105 grams of cocaine in violation of 35 PA. STAT. ANN. § 780-113(a)(30). *839We have held that a conviction under that statute is analogous to 21 U.S.C. § 841(a)(1). Jeune v. Attorney General, 476 F.3d 199, 205 (3d Cir.2007).1 Section 841(a)(1) proscribes, inter alia, the distribution of cocaine.
Citing 18 U.S.C. § 3559, Guzman-Lopez argues that the amount of cocaine he was convicted of delivering would not necessarily be punishable as a felony under federal law because § 841(b)(1)(C), which sets the penalty for distributing any amount of cocaine,2 does not provide for a minimum sentence of at least a year. However, Section 3559(a)(3) provides that if the maximum term of imprisonment authorized for an offense is “less than twenty-five years but ten or more years,” the offense is graded as a Class C felony. Section 841(b)(1)(C) provides for a maximum sentence of twenty years, which is less than twenty-five years but more than ten years. Thus, a violation of 841(a) involving a detectable amount of cocaine is a Class C felony. Because Guzman-Lopez’s conviction would be punishable as a federal felony, he is an aggravated felon, removable as such, and ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3).3
For the above reasons, we will deny the petition for review.
.We determined that the alien's conviction in Jeune was not an aggravated felony because 21 U.S.C. § 841(b)(1)(D) and (b)(4) establish an exception for distributing small amounts of marihuana without remuneration — such offenses are punished as misdemeanors. Jeune, 476 F.3d at 205. In Jeune, it was not clear from the record whether remuneration was involved or whether the marihuana involved was more than a small amount. Section 841 does not provide such an exception for cocaine, the drug involved in Guzman-Lopez’s conviction.
. Because § 841(b)(1)(C) allows for prosecution of the distribution of any amount of cocaine, we need not reach Guzman-Lopez’s arguments regarding whether his conviction involved enough cocaine to be prosecuted under § 841 (b)( 1 )(A)(ii) or (B)(ii).
. Because Guzman-Lopez is an aggravated felon, our review of the BIA’s denial of relief is limited to constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C). Guzman-Lopez does not raise any such claims. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471244/ | MEMORANDUM **
Juan Carlos Peraza-Carrillo appeals from the 52-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.
Peraza-Carrillo contends that the district court proeedurally erred by imposing a sentence that it considered “reasonable” rather than one that was “sufficient, but not greater than necessary” to accomplish the goals of sentencing under 18 U.S.C. § 3553(a). We review for plain error, see United States v. Dallman, 533 F.3d 755, 761 (9th Cir.2008), and affirm because Per-aza-Carrillo has not established any error affected his substantial rights, see id. at 761-62.
As Peraza-Carrillo acknowledges, his contention that the sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is foreclosed. See United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir.2009) (per curiam).
We remand the case to the district court with instructions that it delete from the judgment the reference to 8 U.S.C. § 1326(b). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED; REMANDED to correct the judgment.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471246/ | MEMORANDUM *
John Courtney Breault (“Breault”) appeals his conviction for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and his lifetime term of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm the conviction and sentence.1
We review de novo the district court’s denial of Breault’s motion to suppress, United States v. Crews, 502 F.3d 1130, 1135 (9th Cir.2007), and conclude that the warrant to search his home and computer for items showing the sexual exploitation of a child in violation of California Penal Code § 311.3 was supported by probable cause.2 In determining whether to issue a search warrant, the magistrate is tasked with making “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citation omitted).
Here, the affidavit explained that just prior to his police interview, Breault had been surreptitiously videotaping children on an elementary school playground while “touching” himself. The affidavit also explained that Breault admitted that he (1) was sexually attracted to girls around the age of 11 and 12; (2) “hunted” on the internet using the search term “Lolitas,” which revealed images of “clothed and unclothed” young girls, and (3) had done so using the computer at his home. These facts established a fair probability that his computer would contain materials depicting the sexual exploitation of a child in violation of California Penal Code § 311.3. Breault’s admissions and conduct distinguish this case from those where probable cause was based solely on the description of images on a suspect’s computer. See, e.g., United States v. Battershell, 457 F.3d 1048, 1051, 1052-53 (9th Cir.2006) (holding that an affidavit’s description of an image must meet the statutory definition of child pornography to establish probable cause). From the totality of circumstances in this case, we conclude that probable cause existed to issue the warrant.
We also affirm the district court’s findings that Breault was not in custody during his initial encounter with the police or during his interview at the police station. We review for clear error the district court’s determination that both encounters were consensual and not custodial. United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir.1986). The record supports the district court’s findings: the officers who confronted Breault on the beach never told him that he was under arrest, never used handcuffs, and did not display their firearms. Even assuming that the officers’ continued questioning of Breault amounted to an investigative detention, *361such questioning was reasonable under the circumstances and did not unlawfully prolong the purported detention. See Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005). The officers had been called to the scene in response to complaints that a man was surreptitiously filming elementary school children, and they determined after initial questioning that Breault was not wearing underwear, had wet spots on his shirt and KY-jelly on his hand, had been “touching” himself while filming the children, and had recently taken methamphetamine. These facts were sufficient to create a reasonable suspicion that Breault was engaged in some kind of criminal activity and may have posed a danger to the children, thus justifying further investigation. See United States v. Turvin, 517 F.3d 1097, 1103-04 (9th Cir.2008). More importantly, subsequent to this initial encounter, Breault unequivocally told the detectives who interviewed him that he had come to the police station of his own volition and understood that he was not under arrest.
We review for reasonableness the district court’s imposition of the lifetime term of supervised release, United States v. Cope, 527 F.3d 944, 952 (9th Cir.2008), and we affirm. We find no significant procedural error in the imposition of the term and cannot say that it is substantively unreasonable. See United States v. Daniels, 541 F.3d 915, 921 (9th Cir.2008) (citations omitted). The district court’s references to the pre-sentence report and the parties’ position papers served as sufficient explanation for its imposition of the term of supervised release. Id. at 921-22. Moreover, the district court clearly expressed its view that the lifetime term was appropriate, citing “congressional intent” to that effect and the nature of Breault’s offense. See 18 U.S.C. § 3583(k) (providing for a term of supervised release ranging from five years to life for sex offenses).
The lifetime term was reasonable regardless of the district court’s indication that Breault could move to modify it at a later date. The United States Sentencing Guidelines indicate a preference for the lifetime term, and the record shows that Breault was not merely an idle viewer of child pornography. Not only was he apprehended after surreptitiously filming elementary-aged children for prurient reasons, but he admitted in the police interview that his inappropriate interest with children was “progressing.”
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the parties are familiar with the facts of this case, we repeat them here only as necessary.
. We reject the government's contention that Breault waived his present challenge to the warrant by failing to raise it in district court. Breault’s objections in district court that the warrant lacked probable cause were sufficient to preserve the probable cause arguments raised here. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471248/ | MEMORANDUM **
Juan Jimenez appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Jimenez alleges that Almendarez-Torres v. United States, 523 U.S. 224, 227, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), was effectively overruled or limited by the doctrine of avoidance of constitutional doubt, and 8 U.S.C. § 1326(b) is unconstitutional. Jimenez concedes that his contentions are foreclosed by our prior decisions, see United States v. Grisel, 488 F.3d 844, 847 (9th Cir.2007) (en banc) (holding that the date of a prior conviction is part of the “fact” of a prior conviction for Apprendi purposes); United States v. Salazar-Lopez, 506 F.3d 748, 751 n. 3 (9th Cir.2007); United States v. Maciel-Vasquez, 458 F.3d 994, 995-96 (9th Cir.2006) (holding that 8 U.S.C. § 1326(b)(2) is constitutional); and that he raises them to preserve them for potential future review.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471250/ | MEMORANDUM **
Hector Baca-Quiroz appeals the sentence imposed following his guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a). Baca-Quiroz contends that the district court erred by failing to consider that the lack of a “fast-track” program in the District of Montana creates an unwarranted sentencing disparity contrary to the requirements of 18 U.S.C. § 3553(a)(6). Baca-Quiroz acknowledges that his contention is foreclosed by United States v. Gonzalez-Zotelo, 556 F.3d 736, 740-41 (9th Cir.2009), and that he raises it to preserve it for potential future review.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471255/ | MEMORANDUM *
The defendant Thomas P. Ranes appeals the district court’s denial of his motion to withdraw a guilty plea, and claims ineffective assistance of counsel.
The government argues that Ranes’ appeal of the motion to withdraw is barred by a waiver in the plea agreement. An appellate waiver that “does not specifically contemplate the possibility of an appeal based on the district court’s denial of a motion to withdraw [a plea]” may nonetheless preclude such an appeal if its language is sufficiently broad. United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir.2005).
Ranes’s plea agreement waived “the right to appeal the convictions resulting from the entry of guilty pleas.” If his guilty plea were withdrawn, the resulting conviction would fail too, rendering the waiver meaningless. The waiver’s language is broad enough to indicate that, by waiving the right to challenge the conviction, Ranes also waived the right to challenge the denial of his motion to withdraw his guilty plea.
On direct review we decide ineffective assistance of counsel claims only “(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.” United States v. Daychild, 357 F.3d 1082, 1095 (9th Cir.2004). Neither condition applies here. The record is inadequately developed with respect to Ranes’s attorney’s competence, and there is no obvious flaw in his representation.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471256/ | THOMPSON, J.,
concurring separately.
I do not believe Ranes’s plea agreement waived his right to move to set aside his plea. But, on the merits, he failed to make a sufficient showing that his plea should be set aside, and so I concur in the court’s affirmance of the district court’s denial of his motion to withdraw his guilty plea. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471513/ | OPINION OF THE COURT
PER CURIAM.
Fernando Guzman-Lopez petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Guzman-Lopez was admitted to the United States in 1990 as a lawful permanent resident. In 2006, he was charged as removable as an aggravated felon based on his state court conviction for delivery of cocaine. An Immigration Judge (IJ) found Guzman-Lopez removable and ineligible for cancellation of removal. The BIA agreed with the IJ and dismissed the appeal. Guzman-Lopez filed a timely petition for review.
We have jurisdiction to consider whether Guzman-Lopez is an aggravated felon and exercise plenary review over the BIA’s conclusion. Garcia v. Attorney General, 462 F.3d 287, 290-91 (3d Cir.2006). If a state court conviction would be punishable as a felony under the federal Controlled Substance Act, it qualifies as an aggravated felony. Evanson v. Attorney General, 550 F.3d 284, 289 (3d Cir.2008). Guzman-Lopez was convicted of the unlawful delivery of 105 grams of cocaine in violation of 35 PA. STAT. ANN. § 780-113(a)(30). *839We have held that a conviction under that statute is analogous to 21 U.S.C. § 841(a)(1). Jeune v. Attorney General, 476 F.3d 199, 205 (3d Cir.2007).1 Section 841(a)(1) proscribes, inter alia, the distribution of cocaine.
Citing 18 U.S.C. § 3559, Guzman-Lopez argues that the amount of cocaine he was convicted of delivering would not necessarily be punishable as a felony under federal law because § 841(b)(1)(C), which sets the penalty for distributing any amount of cocaine,2 does not provide for a minimum sentence of at least a year. However, Section 3559(a)(3) provides that if the maximum term of imprisonment authorized for an offense is “less than twenty-five years but ten or more years,” the offense is graded as a Class C felony. Section 841(b)(1)(C) provides for a maximum sentence of twenty years, which is less than twenty-five years but more than ten years. Thus, a violation of 841(a) involving a detectable amount of cocaine is a Class C felony. Because Guzman-Lopez’s conviction would be punishable as a federal felony, he is an aggravated felon, removable as such, and ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3).3
For the above reasons, we will deny the petition for review.
.We determined that the alien's conviction in Jeune was not an aggravated felony because 21 U.S.C. § 841(b)(1)(D) and (b)(4) establish an exception for distributing small amounts of marihuana without remuneration — such offenses are punished as misdemeanors. Jeune, 476 F.3d at 205. In Jeune, it was not clear from the record whether remuneration was involved or whether the marihuana involved was more than a small amount. Section 841 does not provide such an exception for cocaine, the drug involved in Guzman-Lopez’s conviction.
. Because § 841(b)(1)(C) allows for prosecution of the distribution of any amount of cocaine, we need not reach Guzman-Lopez’s arguments regarding whether his conviction involved enough cocaine to be prosecuted under § 841 (b)( 1 )(A)(ii) or (B)(ii).
. Because Guzman-Lopez is an aggravated felon, our review of the BIA’s denial of relief is limited to constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C). Guzman-Lopez does not raise any such claims. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471259/ | MEMORANDUM **
California state prisoner David W. Aris-man appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). We review for abuse of discretion a district court’s decision whether to appoint counsel. Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1102 (9th Cir.2004). We affirm in part, vacate in part, and remand.
The district court properly determined that Arisman’s complaint failed to allege facts suggesting that defendant Perry deprived Arisman of property. See Parratt v. Taylor, 451 U.S. 527, 536-37, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (noting that a deprivation of life, liberty, or property is a prerequisite to a valid due process claim), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The district court also properly determined that the complaint stated no claim against defendant Morgan because it merely alleged that Morgan violated an institutional regulation in limiting the number of books Arisman could order at one time. See id.
However, Arismaris claims against Walker, Muñoz, Woodford, and Grannis were sufficient to proceed beyond dismissal under section 1915A. Arisman alleged that Walker, as property officer, notified Arisman that he would dispose of the property at issue if Arisman did not do so himself, and did later dispose of the property. He further alleged that Muñoz, Walker’s supervisor, denied his grievances and approved of the property disposal, and that Woodford, then warden, and Grannis, chief of inmate appeals, denied and ignored his grievances and thus refused to stop the property disposal. Liberally construed, these allegations are sufficient to state a claim for intentional deprivation of property without due process of law. See Zinermon v. Burch, 494 U.S. 113, 136-38, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (holding that defendants cannot escape section 1983 liability where the deprivation of liberty was predictable, the creation of a pre-deprivation process was not impossible, and the defendants had the power and authority to effect the very deprivation complained of).
Because Arisman failed to plead either his retaliation or state-law claims in his complaint, we do not consider them. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005) (“[Cjourts, when ruling on a motion to dismiss, must disregard facts that are not alleged on the face of the complaint or contained in documents attached to the complaint.”).
The district court did not abuse its discretion in denying Arismaris request for appointment of counsel because Arisman *369did not demonstrate extraordinary circumstances. See Agyeman, 390 F.3d at 1103 (determining extraordinary circumstances based on the likelihood of the plaintiffs success on the merits and an evaluation of the plaintiffs ability to articulate his claims in light of the complexity of the legal issues involved).
Arisman’s remaining contentions are unpersuasive.1
Arisman shall bear his own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. We note with regret the delay in the district court in the disposition of these matters. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471261/ | MEMORANDUM **
Fermín Hawee appeals the sentence imposed following his guilty plea to assault*370ing a federal officer in violation of 18 U.S.C. § 111.
Hawee contends that the district court erred in treating the sentencing Guidelines as mandatory, and its application of U.S.S.G. § 3A1.2(c)(l) constituted impermissible double-counting.
As part of his written plea, Hawee waived his right to appeal his conviction and sentence. Hawee makes no argument that his plea agreement and appeal waiver were invalid. The district court’s plea colloquy confirms that Hawee knowingly and voluntarily waived the right to appeal. Accordingly, we enforce the appeal waiver. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir.2007).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471263/ | MEMORANDUM **
Ivan Turner, a California state prisoner, appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action alleging that a prison doctor acted with deliberate indif*371ference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We affirm.
The district court properly dismissed the action because Turner did not properly exhaust available prison remedies before filing suit in federal court. See McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir.2002) (per curiam) (holding that inmates may not satisfy exhaustion requirements while the federal action is pending); see also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir.2005) (“[T]he obligation to exhaust available remedies persists as long as some remedy remains available.”).
Turner’s remaining contentions are unpersuasive.
Turner’s motion for appointment of counsel is denied as moot.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471267/ | MEMORANDUM **
Melvin Ray Brummett, Jr., a California prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that Shasta County Jail personnel violated his Eight Amendment rights by assigning him an upper bunk and by acting with deliberate indifference to his medical needs. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004). We affirm.
The district court properly granted summary judgment on Brummett’s failure to protect claim because he failed to allege facts from which a reasonable jury could conclude that defendant Johnson was responsible for assigning the upper bunk, or that defendants Blankenship, Miller, and Teske had actual knowledge that the assignment posed a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”).
The district court properly granted summary judgment on Brummett’s deliberate indifference claim because he failed to raise a genuine issue of material fact as to whether defendants were deliberately indifferent to his medical needs after he fell. See Toguchi, 391 F.3d at 1057 (affirming summary judgment where there was no evidence that the defendant was subjectively aware that her actions created a substantial risk of serious harm); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989) (explaining that a difference of medical opinion concerning treatment does not amount to deliberate indifference). Brum-mett’s claim that defendant Miller was verbally abusive to him fails as a matter of law. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987) (explaining that mere insults do not rise to the level of Eighth Amendment protection).
The district court properly granted summary judgment on Brummett’s negligence claim because Brummett failed to raise a triable issue that defendant Johnson breached any duty owed to Brummett by stepping away from her medical post. See Ileto v. Glock Inc., 349 F.3d 1191 (9th Cir.2003) (“In order to establish negligence under California law, a plaintiff must establish four required elements: (1) duty; (2) breach; (3) causation; and (4) damages.”). Further, the district court did not err by not considering a negligence claim against the other defendants because Brummett’s operative complaint alleged a cause of action for negligence against Johnson only.
Brummett’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471303/ | MEMORANDUM **
Ashot Galstyan and Emma Galstyan, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals (“BIA”) order denying their motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to reconsider. The motion failed to specify an error of fact or law with respect to the BIA’s dis-positive determination that petitioners’ motion to reopen was untimely and that they failed to establish they were entitled to equitable tolling. See 8 C.F.R. § 1003.2(b)(1); see also Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471514/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Defendant Tyrone Wells appeals his sentence of 143 months’ imprisonment, arguing that the District Court erroneously believed that the Sentencing Guidelines were mandatory. Although Wells acknowledges that the District Court properly applied a recently-enacted amendment to the Guidelines that permits a two-point reduction in his base offense level based on the crack-cocaine disparity,1 Wells contends that the District Court assumed — ■ incorrectly — that a further reduction in his sentence fully to account for the crack-cocaine disparity was prohibited. He urges that, had the District Court known that an additional reduction in Wells’s sentence were permissible, the District Court would have reduced his prison term further. Accordingly, Wells asks the Court to vacate his sentence and remand the case to the District Court for a determination of whether the crack-cocaine disparity warrants a further reduction of his sentence.2
The unique history of this case, which is before our Court for the fourth time in five years, deserves some discussion. In April 2004, Wells pled guilty to conspiracy to possess, with intent to distribute, 50 grams or more of crack cocaine in violation of 21 U.S.C. § 846. Treating the Sentencing Guidelines as mandatory, the District Court sentenced Wells to a term of 210 months’ imprisonment. Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we vacated Wells’s sentence and remanded for reconsideration in light of Booker. See United States *841v. Wells (“Wells I”), 156 Fed.Appx. 519 (3d Cir.2005). On remand, the District Court reduced Wells’s sentence to 174 months— 36 months less than the minimum term prescribed under the Guidelines. Wells appealed, arguing that the Court failed meaningfully to consider the 18 U.S.C. § 3553(a) factors. We concluded, however, that the sentence imposed was reasonable, and that no procedural error occurred. United States v. Wells (“Wells II”), 216 Fed.Appx. 204 (3d Cir.2007). Wells filed a petition for writ of certiorari to the United States Supreme Court. During the pendency of his petition, the Supreme Court issued its opinion in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), holding that a district court may depart from the Guidelines based on the crack-cocaine disparity. The Supreme Court vacated our decision in Wells II and remanded the case for reconsideration. Wells v. United States (“Wells III”), 552 U.S. 1090, 128 S.Ct. 862, 169 L.Ed.2d 711 (2008). On remand, we stated, “[W]e have no basis on which to conclude that the District Court understood that it had discretion to consider the crack/eocaine disparity in imposing the sentence on Wells.” United States v. Wells (“Wells IV”), 279 Fed.Appx. 100, 103 (3d Cir.2008). Accordingly, we directed the District Court to reconsider Wells’s sentence in light of Kimbrough. At Wells’s re-sentencing, the District Court, applying the two-point Guideline reduction permitted under the November 2007 amendment, reduced Wells’s term of imprisonment to 143 months. Wells has appealed.
In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), the Supreme Court stated that, “Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard.” The Court explained, further, that this standard governs both the “procedural soundness” of a sentence and its “substantive reasonableness.” Id. Wells’ appeal implicates the former issue — the procedural propriety of his sentence.3
In United States v. Gunter, we held that a District Court commits procedural error when it imposes a sentence under a belief that it lacks discretion to consider the crack-cocaine disparity. 462 F.3d 237, 248 (3d Cir.2006). Wells contends that the District Court assumed — erroneously— that its discretion to depart from the Guidelines based on the crack-cocaine disparity was limited to the two-point reduction prescribed in the November 2007 amendment to the Guidelines, and that a further reduction in Wells’s sentence was impermissible. For his position, Wells relies on Judge Caldwell’s statement during re-sentencing, “I’m sorry that I have to send you back to prison, but my hands are pretty much tied.” A. 64. Wells contends that the Court’s reasoning contravenes Kimbrough, which made clear that the Guidelines are advisory, that the November 2007 amendment merely effected a “partial remedy” for the crack-cocaine disparity, and that a further reduction in a defendant’s sentence may be warranted under § 3553(a) in certain circumstances. 128 S.Ct. at 561.
*842We conclude, however, that Wells’s argument is premised on an unsupported assumption — that the District Court believed that its authority to depart from the Guidelines range was limited to the two-point reduction permitted under the November 2007 amendment. As noted, Wells’s argument relies entirely on Judge Caldwell’s remark that his hands were “tied.” There is no indication, however, that Judge Caldwell perceived the November 2007 amendment itself as tying his hands. Rather, we read Judge Caldwell’s comment that, “I have to send you back to prison” as referring to the statutory minimum term of imprisonment, ten years.
We find it especially unlikely that Judge Caldwell misapprehended his discretion to depart from the Guidelines because we vacated Wells’ prior sentence precisely on that ground, stating, “[W]e have no basis on which to conclude that the District Court understood that it had discretion to consider the crack/eocaine disparity in imposing the sentence on Wells.” United States v. Wells, 279 Fed.Appx. 100, 103 (3d Cir.2008). The District Court signaled its awareness of this issue on remand. A. 61. Further, in our order remanding the case, we specifically cited Kimbrough, which held that the November 2007 amendment authorized — but did not limit a district court’s authority — to reduce a defendant’s sentence to reflect the crack-cocaine disparity. The District Court’s discretion to depart from the Guidelines range, moreover, was stressed by the government and defense counsel at the sentencing hearing. A. 56, 60.4 On these facts, we conclude that the District Court rejected a further reduction in Wells’s sentence not because it misapprehended its authority to do so, as Wells contends, but rather because, as defense counsel admitted, “[Tjhere is nothing extraordinary about the facts. It is a crack cocaine case.” A. 57. The fact that the District Court imposed the guideline sentence prescribed under the November 2007 amendment means that he believed it to be the appropriate sentence; it in no way indicates that he believed he could not go lower. The District Court properly appreciated its discretion to reduce Wells’s sentence based on the crack-cocaine disparity, and we conclude that no procedural error occurred.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The 2007 Amendments to the Sentencing Guidelines had the effect of reducing, by two points, the base offense level for all crack offenses. Compare U.S. Sentencing Guidelines Manual § 2Dl.l(c)(4) (2002) (amended Nov. 2007), with U.S.S.G. § 2D1.1(c)(5).
. The District Court exercised jurisdiction under 18 U.S.C. § 3231, and our jurisdiction is proper under 28 U.S.C. § 1291.
. Wells also contends that he is entitled to a new sentencing hearing because the District Court failed adequately to consider the § 3553(a) factors at his re-sentencing. Our remand, however, was narrow in scope. We directed the District Court solely to determine whether the crack-cocaine disparity warranted a reduction in Wells’s sentence under Kim-brough, 128 S.Ct. 558. We did not identify any other deficiency in the Court's original analysis of the § 3553(a) factors, the adequacy of which is not disputed on appeal. Accordingly, the District Court did not err in confining its inquiry on remand to the crack-cocaine disparity.
. For example, Defense counsel specifically argued,
Because this is a complete resentencing, Your Honor, the court does have the discretion to not only consider this two-level reduction that’s been put into place by the sentencing commission, but all of the factors pursuant to 18 U.S.C. § 3553(a). As the Court recognized in Kimbrough, Your Honor, one of the, couple of portions from that opinion that the modest amendment which became effective on November 1, 2007[,] yields sentences for crack offenses between two and five times longer than sentences for equal amounts of powder. The commission thus noted that it is only a partial remedy to the problems generated by the crack/powder disparity, and the court then went on to state that given the commission's departure from its empirical approach in formulating the crack guidelines and its subsequent criticism of the crack/powder disparity, it would not be an abuse of discretion to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence greater than necessary to achieve section 3553(a)'s purposes, even in a mine-run case.
A. 56-57. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471260/ | MEMORANDUM **
California state prisoner David W. Aris-man appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). We review for abuse of discretion a district court’s decision whether to appoint counsel. Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1102 (9th Cir.2004). We affirm in part, vacate in part, and remand.
The district court properly determined that Arisman’s complaint failed to allege facts suggesting that defendant Perry deprived Arisman of property. See Parratt v. Taylor, 451 U.S. 527, 536-37, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (noting that a deprivation of life, liberty, or property is a prerequisite to a valid due process claim), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The district court also properly determined that the complaint stated no claim against defendant Morgan because it merely alleged that Morgan violated an institutional regulation in limiting the number of books Arisman could order at one time. See id.
However, Arismaris claims against Walker, Muñoz, Woodford, and Grannis were sufficient to proceed beyond dismissal under section 1915A. Arisman alleged that Walker, as property officer, notified Arisman that he would dispose of the property at issue if Arisman did not do so himself, and did later dispose of the property. He further alleged that Muñoz, Walker’s supervisor, denied his grievances and approved of the property disposal, and that Woodford, then warden, and Grannis, chief of inmate appeals, denied and ignored his grievances and thus refused to stop the property disposal. Liberally construed, these allegations are sufficient to state a claim for intentional deprivation of property without due process of law. See Zinermon v. Burch, 494 U.S. 113, 136-38, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (holding that defendants cannot escape section 1983 liability where the deprivation of liberty was predictable, the creation of a pre-deprivation process was not impossible, and the defendants had the power and authority to effect the very deprivation complained of).
Because Arisman failed to plead either his retaliation or state-law claims in his complaint, we do not consider them. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005) (“[Cjourts, when ruling on a motion to dismiss, must disregard facts that are not alleged on the face of the complaint or contained in documents attached to the complaint.”).
The district court did not abuse its discretion in denying Arismaris request for appointment of counsel because Arisman *369did not demonstrate extraordinary circumstances. See Agyeman, 390 F.3d at 1103 (determining extraordinary circumstances based on the likelihood of the plaintiffs success on the merits and an evaluation of the plaintiffs ability to articulate his claims in light of the complexity of the legal issues involved).
Arisman’s remaining contentions are unpersuasive.1
Arisman shall bear his own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. We note with regret the delay in the district court in the disposition of these matters. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471262/ | MEMORANDUM **
Fermín Hawee appeals the sentence imposed following his guilty plea to assault*370ing a federal officer in violation of 18 U.S.C. § 111.
Hawee contends that the district court erred in treating the sentencing Guidelines as mandatory, and its application of U.S.S.G. § 3A1.2(c)(l) constituted impermissible double-counting.
As part of his written plea, Hawee waived his right to appeal his conviction and sentence. Hawee makes no argument that his plea agreement and appeal waiver were invalid. The district court’s plea colloquy confirms that Hawee knowingly and voluntarily waived the right to appeal. Accordingly, we enforce the appeal waiver. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir.2007).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471264/ | MEMORANDUM **
Ivan Turner, a California state prisoner, appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action alleging that a prison doctor acted with deliberate indif*371ference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We affirm.
The district court properly dismissed the action because Turner did not properly exhaust available prison remedies before filing suit in federal court. See McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir.2002) (per curiam) (holding that inmates may not satisfy exhaustion requirements while the federal action is pending); see also Brown v. Valoff, 422 F.3d 926, 935 (9th Cir.2005) (“[T]he obligation to exhaust available remedies persists as long as some remedy remains available.”).
Turner’s remaining contentions are unpersuasive.
Turner’s motion for appointment of counsel is denied as moot.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471266/ | MEMORANDUM **
Terrance Jon Irby, a former pretrial detainee at Skagit County Jail, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action claiming that jail personnel were deliberately indifferent to his medical needs. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004). We affirm.
The district court properly granted summary judgment to defendant Dormer because Irby failed to raise a triable issue that Dormer intentionally gave him the wrong medication. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (explaining that deliberate indifference involves a purposeful act); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998) (holding that, because pretrial detainees’ Fourteenth Amendment rights are comparable to prisoners’ Eighth Amendment rights, the same standards apply). Moreover, insofar as Irby sought to bring a failure to protect claim against defendants Shand and Skagit County Jail based on how the jail dispenses medication, the district court properly granted summary judgment because no reasonable jury could conclude that the defendants deliberately exposed Irby to a serious risk of harm. See Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”).
The district court also properly granted summary judgment because there was no genuine issue of material fact regarding whether the treatments chosen by Dr. Leibrand were medically unacceptable. See Toguchi, 391 F.3d at 1058 (explaining that a difference of opinion about the best course of medical treatment is insufficient to raise a genuine issue that the treatment was medically unacceptable).
We deny Irby’s motion to submit the declaration of witness Marcus Everett. See United States v. Elias, 921 F.2d 870, 874 (9th Cir.1990) (“Documents or facts not presented to the district court are not part of the record on appeal.”).
*373Irby’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471268/ | MEMORANDUM **
Melvin Ray Brummett, Jr., a California prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that Shasta County Jail personnel violated his Eight Amendment rights by assigning him an upper bunk and by acting with deliberate indifference to his medical needs. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004). We affirm.
The district court properly granted summary judgment on Brummett’s failure to protect claim because he failed to allege facts from which a reasonable jury could conclude that defendant Johnson was responsible for assigning the upper bunk, or that defendants Blankenship, Miller, and Teske had actual knowledge that the assignment posed a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (“[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”).
The district court properly granted summary judgment on Brummett’s deliberate indifference claim because he failed to raise a genuine issue of material fact as to whether defendants were deliberately indifferent to his medical needs after he fell. See Toguchi, 391 F.3d at 1057 (affirming summary judgment where there was no evidence that the defendant was subjectively aware that her actions created a substantial risk of serious harm); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989) (explaining that a difference of medical opinion concerning treatment does not amount to deliberate indifference). Brum-mett’s claim that defendant Miller was verbally abusive to him fails as a matter of law. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987) (explaining that mere insults do not rise to the level of Eighth Amendment protection).
The district court properly granted summary judgment on Brummett’s negligence claim because Brummett failed to raise a triable issue that defendant Johnson breached any duty owed to Brummett by stepping away from her medical post. See Ileto v. Glock Inc., 349 F.3d 1191 (9th Cir.2003) (“In order to establish negligence under California law, a plaintiff must establish four required elements: (1) duty; (2) breach; (3) causation; and (4) damages.”). Further, the district court did not err by not considering a negligence claim against the other defendants because Brummett’s operative complaint alleged a cause of action for negligence against Johnson only.
Brummett’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471304/ | MEMORANDUM **
Ashot Galstyan and Emma Galstyan, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals (“BIA”) order denying their motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to reconsider. The motion failed to specify an error of fact or law with respect to the BIA’s dis-positive determination that petitioners’ motion to reopen was untimely and that they failed to establish they were entitled to equitable tolling. See 8 C.F.R. § 1003.2(b)(1); see also Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471269/ | MEMORANDUM **
Phillip Price, a former California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging the denial of due process at a parole revocation hearing and the imposition of a mandatory parole term. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order). We affirm.
The district court properly dismissed Price’s due process claims against defendant Roos because he is immune from suit. See Bermudez v. Duenas, 936 F.2d 1064, 1066 (9th Cir.1991) (“Although *376a section 1983 action may be maintained against officials acting in their individual capacities ... parole board officials are entitled to absolute immunity from liability for damages for their actions taken when processing parole applications.”).
The district court properly dismissed Price’s claim regarding the imposition of parole because parole was a mandatory consequence of his guilty plea. See Cal.Penal Code § 3000(a). Moreover, Price’s contention that his parole revocation violated the Sixth Amendment’s guarantee of a jury trial is erroneous. See United States v. Santana, 526 F.3d 1257, 1262 (9th Cir.2008) (“There is no Sixth Amendment right to jury trial for post-conviction determinations such as the finding of whether a releasee violated the terms of his release.”). To the extent Price seeks to invalidate his plea agreement, his claim is barred. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (precluding a section 1983 action when a judgment in favor of the plaintiff would necessarily imply invalidity of his sentence).
Price’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471271/ | MEMORANDUM **
Dale Owen Dustin, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failing to comply with Federal Rule of Civil Procedure 8. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for an abuse of discretion. McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.1996). We affirm.
The district court did not abuse its discretion because the prolix allegations in Dustin’s amended complaint did not comply with Federal Rule of Civil Procedure 8. See id. at 1177 (affirming dismissal with prejudice of plaintiffs complaint for repeated failures to correct noted pleading shortcomings). Moreover, the record indicates that further amendment would have been futile.
Dustin’s remaining contentions are unpersuasive.
All pending motions are denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471274/ | RAWLINSON, Circuit Judge,
dissenting:
I respectfully dissent. Although the Board of Immigration Appeals’ (BIA) decision was not a model of clarity, it was clear enough to allow meaningful review by this court. I am not particularly troubled by the BIA’s prefatory reference to the clear error standard of review. Indeed, that very reference answers one of the criticisms articulated by the majority — that the BIA failed to mention the Immigration Judge’s (IJ) adverse credibility determination. The BIA’s citation to 8 C.F.R. § 1003.1(d)(3) (providing that the Board views credibility finding for clear error) and Matter of A-S, 21 I. & N. Dec. 1106, 1109 (BIA 1998) (same) is an obvious reference to the standard the BIA applies when it reviews the IJ’s adverse credibility determination. Unlike the majority, I see nothing inappropriate in the BIA articulating the standard of review, determining that the standard has been satisfied and adopting the IJ’s decision.
The majority disposition also mentions the erroneous listing of Armenia as the country of removal and mistaken citation to the Uganda Country Report. However, the Petitioner did not rely on the erroneous listing of Armenia as the country of removal as a basis for relief. Moreover, in addressing the country report citation, Petitioner merely argued that “[i]f the BIA actually considered the Uganda country report” it erred. (Emphases added). But we know that the BIA did not actually consider the Uganda report because the exhibit referenced by the BIA corresponded to the Iran Country Report in the record.
*380Finally, I disagree that “irreconcilable differences” preclude our reading the BIA’s and IJ’s decisions together. The BIA’s adoption of the IJ’s adverse credibility determination can be reviewed without considering the lack of credible corroborating documents. Indeed, in the very case cited by the majority, Ahmed v. Keisler, 504 F.3d 1183, 1190-91 (9th Cir.2007), we expressly held that where the BIA’s phrasing suggests one standard of review and its analysis of the issue-or lack of analysis-suggests another standard, we look to the IJ’s decision to inform our review.
In this case, the IJ’s adverse credibility determination rested on the discrepancy about whether the Petitioner was hit in the face or in the stomach. Because this discrepancy goes to the heart of the Petitioner’s claim, it supports the adverse credibility determination. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir.2008) (holding that substantial evidence supports an adverse credibility determination when there is an inconsistency “concern[ing] events central to his version of why he was persecuted and fled” Iran) (citation omitted).
For these reasons, I would deny the petition. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471277/ | MEMORANDUM **
Andres Ernesto Hernandez appeals pro se from the district court’s final judgment in favor of Defendant Villicana after the jury returned a verdict denying Hernandez’s claim brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We affirm.
The facts of the case are known to the parties and we do not repeat them here.
*381Hernandez waived his right to challenge on appeal the jury’s verdict because he did not file a motion under Federal Rule of Civil Procedure 50(b). See Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir.2007); Desrosiers v. Flight Int’l of Fla. Inc., 156 F.3d 952, 956-57 (9th Cir.1998).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471279/ | MEMORANDUM **
Luis Rodriguez-Laguna appeals from the 60-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. *382§ 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm, but remand to correct the judgment.
Rodriguez-Laguna contends that the district court failed to verify that he had read and discussed the presentence report with his attorney, in violation of Fed. R.Crim.P. 32(i)(l)(A). Because Rodriguez-Laguna has made no affirmative allegation that he failed to read the report and review it with his attorney, and has not identified any disputed fact in the PSR, any error did not result in prejudice. See United States v. Soltero, 510 F.3d 858, 863-64 (9th Cir.2007) (per curiam).
We remand the case to the district court with instructions that it delete from the judgment the reference to 8 U.S.C. § 1326(b). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED; REMANDED to correct the judgment.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471281/ | MEMORANDUM *
Jereme Lee James appeals his conviction for knowingly concealing unlawfully imported Fiji Island Banded Iguanas (“Fiji Iguanas” or “iguanas”) in violation of 18 U.S.C. § 545, and for knowingly possessing Fiji iguanas traded contrary to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), Mar. 3,1973, 27 U.S.T. 1087, in violation of 16 U.S.C. §§ 1538(c)(1) and 1540(b)(1). We have jurisdiction pursuant *384to 28 U.S.C. § 1291, and we affirm in part and reverse in part.
James appeals three evidentiary rulings by the district court. We review the district court’s exclusion of James’s alleged “prior consistent statements” for abuse of discretion, Arizona v. Johnson, 351 F.3d 988, 998 (9th Cir.2003), and we affirm. The first proffered statement— which James made to a confidential informant after the United States Fish and Wildlife Service (“FWS”) seized iguanas from James’s home — was properly excluded because it was made after a “motive to fabricate” arose. See United States v. Washington, 462 F.3d 1124, 1135 (9th Cir.2006) (quoting Tome v. United States, 513 U.S. 150, 158, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995)). The other proffered statements, which James made prior to the FWS search and seizure, were also properly excluded because they were not “consistent” with his trial testimony; rather, they were made during the course of a conversation in which James continued to represent that he had smuggled the original iguanas from Fiji.
We also conclude that the district court did not abuse its discretion in admitting the testimony of the government’s expert witness, David Blair. See United States v. Boulware, 558 F.3d 971, 974 (9th Cir.2009). Blair had sufficient specialized experience to testify about Fiji iguanas, as he had been a reptile breeder and trader for over twenty-five years, continued to breed rare iguanas, attended over one hundred reptile trade shows, and had worked with Fiji iguanas on breeding loan from the San Diego Zoo. His testimony regarding the availability of such iguanas in the United States was limited to his own experience, and he did not speculate as to the legality of the iguanas in James’s possession or whether it was legally possible to possess such iguanas. See United States v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th Cir.2006) (noting that experience and specialized knowledge may render expert testimony sufficiently reliable); Diviero v. Uniroyal Goodrich Tire Co., 114 F.3d 851, 853 (9th Cir.1997) (noting that expert testimony may not be based on “unsubstantiated speculation”).
We conclude, however, that the district court erred in excluding the testimony of defense expert Harvey Fischer on the basis of relevance. See Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir.2007) (concluding that exclusion of expert testimony on the basis of relevance was in error where there was “a link between the expert’s testimony and the matter to be proved”) (internal quotation marks omitted). James was charged with obtaining and possessing endangered iguanas knowing that they had been traded contrary to law. The parties do not dispute that one may legally possess a Fiji iguana that existed in California prior to listing as an endangered species and which remained within the state.1 Fischer was prepared to testify that Fiji iguanas existed in the United States prior to their listing as an endangered species and that they bred among themselves. His experience as the former curator of the Los Angeles Zoo’s reptile house was sufficient to qualify him as an expert, and his testimony would have lent support to James’s defense — i.e., that he had lawfully obtained his iguanas in California. Although a government witness testified about the possi*385bility of legally obtaining iguanas through intrastate trade, there was a notable lack of evidence regarding the actual provenance of James’s original three iguanas, especially since James was acquitted on charges of smuggling the iguanas from Fiji. On this record, we cannot say that the exclusion of Fischer’s testimony was harmless. Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1066-67 (9th Cir.2002), amended by 319 F.3d 1073 (9th Cir.2003) (“If we are unable to say that the probabilities favor the same result and are unsure whether the error was harmless, a new trial is required.”).
AFFIRMED in part, REVERSED in part, and REMANDED for a new trial.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The parties also agree that the progeny of such an iguana may be legally traded within the confines of the state. We do not address these legal issues here as there seems to be no dispute between the parlies, and there is no allegation that the jury was wrongly instructed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471270/ | MEMORANDUM **
Phillip Price, a former California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging the denial of due process at a parole revocation hearing and the imposition of a mandatory parole term. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order). We affirm.
The district court properly dismissed Price’s due process claims against defendant Roos because he is immune from suit. See Bermudez v. Duenas, 936 F.2d 1064, 1066 (9th Cir.1991) (“Although *376a section 1983 action may be maintained against officials acting in their individual capacities ... parole board officials are entitled to absolute immunity from liability for damages for their actions taken when processing parole applications.”).
The district court properly dismissed Price’s claim regarding the imposition of parole because parole was a mandatory consequence of his guilty plea. See Cal.Penal Code § 3000(a). Moreover, Price’s contention that his parole revocation violated the Sixth Amendment’s guarantee of a jury trial is erroneous. See United States v. Santana, 526 F.3d 1257, 1262 (9th Cir.2008) (“There is no Sixth Amendment right to jury trial for post-conviction determinations such as the finding of whether a releasee violated the terms of his release.”). To the extent Price seeks to invalidate his plea agreement, his claim is barred. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (precluding a section 1983 action when a judgment in favor of the plaintiff would necessarily imply invalidity of his sentence).
Price’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471272/ | MEMORANDUM **
Dale Owen Dustin, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failing to comply with Federal Rule of Civil Procedure 8. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for an abuse of discretion. McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.1996). We affirm.
The district court did not abuse its discretion because the prolix allegations in Dustin’s amended complaint did not comply with Federal Rule of Civil Procedure 8. See id. at 1177 (affirming dismissal with prejudice of plaintiffs complaint for repeated failures to correct noted pleading shortcomings). Moreover, the record indicates that further amendment would have been futile.
Dustin’s remaining contentions are unpersuasive.
All pending motions are denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471275/ | MEMORANDUM *
Mayak Stepanian, a native of Iran and an adherent of the Armenian Christian faith, appeals from the Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“U”) order denying asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and we vacate and remand to the BIA for clarification.
1. We cannot meaningfully review the BIA’s decision because the BIA is unclear as to the standard of review it applies to the IJ’s decision. The BIA first purports to review the IJ’s decision for clear error. In such cases, “we review ... the reasons explicitly identified by the BIA, and then examine the reasoning articulated in the IJ’s oral decision in support of those reasons.” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008). The BIA also cites Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), however, which suggests that the BIA “adopts the IJ’s decision in its entirety,” Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir.2008) (internal quotation marks omitted), and which means that “we review the IJ’s decision as if it were that of the BIA,” Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.2005) (en banc) (internal quotation marks omitted). Here, the BIA fails to mention the singular ground on which the IJ denied the petition — the adverse credibility finding. If the BIA conducted an independent review, because it was “silent on the issue of credibility, despite an IJ’s explicit adverse credibility finding, we may presume that the BIA found the petitioner to be credible.” Krotova v. Gonzales, 416 F.3d 1080, 1084 (9th Cir.2005). If the BIA adopted the IJ’s decision under Burbano, we would review the IJ’s adverse credibility finding instead. See Abebe, 432 F.3d at 1040. Such inconsistencies prevent adequate appellate review and require clarification.
*3792. The incongruity with respect to the standard of review must be viewed in light of the other errors plaguing the BIA’s decision. The BIA noted Stepanian’s country of removal as Armenia, not Iran, and cited to the Uganda Country Report, not the Iran Country Report. Even if we were to credit the government’s description of these as typographical errors — and overcome concerns regarding boilerplate opinions, see Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995) — it remains that the BIA may have fundamentally misunderstood the IJ’s decision. The IJ expressly based its adverse credibility finding only on the inconsistency regarding where the police struck Stepanian and explicitly disavowed a credibility finding based upon the inadmissibility of corroborating documents. In contrast, the BIA expressly relies on the “lack of credible corroborating documents” as support for the IJ’s decision. Without acknowledging this inconsistency, the BIA specifically cites the page of the IJ’s decision on which the IJ declined reliance on a lack of corroborating documents. Cf. Abebe, 432 F.3d at 1040 (“If the BIA intends to constrict the scope of its opinion to apply to only one ground upon which the IJ’s decision rested, the BIA can and should specifically state that it is so limiting its opinion.”). Further, the government’s belated suggestion at oral argument that we read the BIA’s and the IJ’s decisions together — the approach we have taken in other cases in which the standard of review chosen by the BIA was unclear, see Ahmed v. Keisler, 504 F.3d 1183, 1190-91 (9th Cir.2007) — is practically unworkable in light of such irreconcilable differences. On remand, the BIA must choose a standard of review and must “provide a comprehensible reason for its decision sufficient for us to conduct our review and to be assured that the petitioner’s case received individualized attention.” Ghaly, 58 F.3d at 1430.
VACATED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471276/ | RAWLINSON, Circuit Judge,
dissenting:
I respectfully dissent. Although the Board of Immigration Appeals’ (BIA) decision was not a model of clarity, it was clear enough to allow meaningful review by this court. I am not particularly troubled by the BIA’s prefatory reference to the clear error standard of review. Indeed, that very reference answers one of the criticisms articulated by the majority — that the BIA failed to mention the Immigration Judge’s (IJ) adverse credibility determination. The BIA’s citation to 8 C.F.R. § 1003.1(d)(3) (providing that the Board views credibility finding for clear error) and Matter of A-S, 21 I. & N. Dec. 1106, 1109 (BIA 1998) (same) is an obvious reference to the standard the BIA applies when it reviews the IJ’s adverse credibility determination. Unlike the majority, I see nothing inappropriate in the BIA articulating the standard of review, determining that the standard has been satisfied and adopting the IJ’s decision.
The majority disposition also mentions the erroneous listing of Armenia as the country of removal and mistaken citation to the Uganda Country Report. However, the Petitioner did not rely on the erroneous listing of Armenia as the country of removal as a basis for relief. Moreover, in addressing the country report citation, Petitioner merely argued that “[i]f the BIA actually considered the Uganda country report” it erred. (Emphases added). But we know that the BIA did not actually consider the Uganda report because the exhibit referenced by the BIA corresponded to the Iran Country Report in the record.
*380Finally, I disagree that “irreconcilable differences” preclude our reading the BIA’s and IJ’s decisions together. The BIA’s adoption of the IJ’s adverse credibility determination can be reviewed without considering the lack of credible corroborating documents. Indeed, in the very case cited by the majority, Ahmed v. Keisler, 504 F.3d 1183, 1190-91 (9th Cir.2007), we expressly held that where the BIA’s phrasing suggests one standard of review and its analysis of the issue-or lack of analysis-suggests another standard, we look to the IJ’s decision to inform our review.
In this case, the IJ’s adverse credibility determination rested on the discrepancy about whether the Petitioner was hit in the face or in the stomach. Because this discrepancy goes to the heart of the Petitioner’s claim, it supports the adverse credibility determination. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir.2008) (holding that substantial evidence supports an adverse credibility determination when there is an inconsistency “concern[ing] events central to his version of why he was persecuted and fled” Iran) (citation omitted).
For these reasons, I would deny the petition. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471282/ | MEMORANDUM *
Jereme Lee James appeals his conviction for knowingly concealing unlawfully imported Fiji Island Banded Iguanas (“Fiji Iguanas” or “iguanas”) in violation of 18 U.S.C. § 545, and for knowingly possessing Fiji iguanas traded contrary to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), Mar. 3,1973, 27 U.S.T. 1087, in violation of 16 U.S.C. §§ 1538(c)(1) and 1540(b)(1). We have jurisdiction pursuant *384to 28 U.S.C. § 1291, and we affirm in part and reverse in part.
James appeals three evidentiary rulings by the district court. We review the district court’s exclusion of James’s alleged “prior consistent statements” for abuse of discretion, Arizona v. Johnson, 351 F.3d 988, 998 (9th Cir.2003), and we affirm. The first proffered statement— which James made to a confidential informant after the United States Fish and Wildlife Service (“FWS”) seized iguanas from James’s home — was properly excluded because it was made after a “motive to fabricate” arose. See United States v. Washington, 462 F.3d 1124, 1135 (9th Cir.2006) (quoting Tome v. United States, 513 U.S. 150, 158, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995)). The other proffered statements, which James made prior to the FWS search and seizure, were also properly excluded because they were not “consistent” with his trial testimony; rather, they were made during the course of a conversation in which James continued to represent that he had smuggled the original iguanas from Fiji.
We also conclude that the district court did not abuse its discretion in admitting the testimony of the government’s expert witness, David Blair. See United States v. Boulware, 558 F.3d 971, 974 (9th Cir.2009). Blair had sufficient specialized experience to testify about Fiji iguanas, as he had been a reptile breeder and trader for over twenty-five years, continued to breed rare iguanas, attended over one hundred reptile trade shows, and had worked with Fiji iguanas on breeding loan from the San Diego Zoo. His testimony regarding the availability of such iguanas in the United States was limited to his own experience, and he did not speculate as to the legality of the iguanas in James’s possession or whether it was legally possible to possess such iguanas. See United States v. Sandoval-Mendoza, 472 F.3d 645, 655 (9th Cir.2006) (noting that experience and specialized knowledge may render expert testimony sufficiently reliable); Diviero v. Uniroyal Goodrich Tire Co., 114 F.3d 851, 853 (9th Cir.1997) (noting that expert testimony may not be based on “unsubstantiated speculation”).
We conclude, however, that the district court erred in excluding the testimony of defense expert Harvey Fischer on the basis of relevance. See Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir.2007) (concluding that exclusion of expert testimony on the basis of relevance was in error where there was “a link between the expert’s testimony and the matter to be proved”) (internal quotation marks omitted). James was charged with obtaining and possessing endangered iguanas knowing that they had been traded contrary to law. The parties do not dispute that one may legally possess a Fiji iguana that existed in California prior to listing as an endangered species and which remained within the state.1 Fischer was prepared to testify that Fiji iguanas existed in the United States prior to their listing as an endangered species and that they bred among themselves. His experience as the former curator of the Los Angeles Zoo’s reptile house was sufficient to qualify him as an expert, and his testimony would have lent support to James’s defense — i.e., that he had lawfully obtained his iguanas in California. Although a government witness testified about the possi*385bility of legally obtaining iguanas through intrastate trade, there was a notable lack of evidence regarding the actual provenance of James’s original three iguanas, especially since James was acquitted on charges of smuggling the iguanas from Fiji. On this record, we cannot say that the exclusion of Fischer’s testimony was harmless. Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1066-67 (9th Cir.2002), amended by 319 F.3d 1073 (9th Cir.2003) (“If we are unable to say that the probabilities favor the same result and are unsure whether the error was harmless, a new trial is required.”).
AFFIRMED in part, REVERSED in part, and REMANDED for a new trial.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The parties also agree that the progeny of such an iguana may be legally traded within the confines of the state. We do not address these legal issues here as there seems to be no dispute between the parlies, and there is no allegation that the jury was wrongly instructed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471283/ | MEMORANDUM **
Humberto Lugo-Martinez appeals from the 60-month sentence imposed following *386his guilty-plea conviction for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and aiding in abetting, in violation of 18 U.S.C. § 2. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Lugo-Martinez contends that the district court erred at sentencing by miscalculating his criminal history category, and thus erred by determining that he was ineligible for “safety valve” relief under 18 U.S.C. § 3553(f). Lugo-Martinez further contends that the appeal waiver in his plea agreement does not preclude his appeal because: 1) the government breached the plea agreement; 2) the district court breached the plea agreement; and 3) the district court’s calculation error rendered the sentence illegal.
The plain language of the appeal waiver encompasses the grounds raised in this appeal and the record reflects that the waiver was knowing and voluntary. Moreover, the sentence comports with the terms of the plea agreement and is not illegal. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir.2007). Accordingly, Lugo-Martinez’s appeal is precluded by his valid appeal waiver. See id. at 623-24.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471285/ | MEMORANDUM **
Angel Mario Gonzalez-Medina appeals from the 60-month sentence imposed following his guilty-plea conviction for illegal entry and misuse of a passport, in violation of 8 U.S.C. § 1325 and 18 U.S.C. § 1544. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
As an initial matter, the government contends that Gonzalez-Medina’s appeal is barred by an appeal waiver contained in the plea agreement. The district court’s oral pronouncement that Gonzalez-Medina retained the right to appeal rendered the appeal waiver unenforceable. See United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir.1995).
Gonzalez-Medina contends that the district court erred during sentencing by relying on unreliable hearsay statements contained in the presentence report. The statements relied upon contained sufficient indicia of reliability. See United States v. Chee, 110 F.3d 1489, 1492 (9th Cir.1997). Moreover, the record reflects that the district court considered the challenged statements as only one aspect of an otherwise thorough 18 U.S.C. § 3553(a) analysis. Accordingly, the sentence is procedurally sound and substantively reasonable. See United States v. Stoterau, 524 F.3d 988, 999-1002 (9th Cir.2008).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*388ed by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471289/ | MEMORANDUM *
Shawn Jackson appeals his conviction for receipt of child pornography in viola*391tion of 18 U.S.C. § 2252A(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts, we recite them only as necessary.
The district court may have abused its discretion by overruling Jackson’s objection at trial to admitting into evidence the still photo images of child pornography found in his computers’ Temporary Internet Files and unallocated space. The government failed to present foundational evidence that Jackson “exercised dominion and control over the images.” United States v. Romm, 455 F.3d 990, 998 (9th Cir.2006); see United States v. Kuchinski, 469 F.3d 853, 863 (9th Cir.2006). However, in view of the properly admitted evidence that Jackson exercised dominion and control over thirteen videos of child pornography, any error was harmless. See United States v. Schales, 546 F.3d 965, 976 (9th Cir.2008) (holding that a district court’s erroneous ruling “will be reversed only if such error more likely than not affected the verdict”).
Additionally, the district court did not abuse its discretion by questioning Agent Weg, and therefore, did not commit judicial misconduct. See Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.1995) (holding that it “is perfectly appropriate for a judge to take part where necessary to clarify testimony and assist the jury in understanding the evidence”); United States v. Parker, 241 F.3d 1114, 1119 (9th Cir.2001).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided *391by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471516/ | *847Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kesiena Tani appeals the district court’s orders dismissing his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Tani v. Cedar, No. 1:07-cv-01924-CCB, 2008 WL 1990772 (D. Md. March 31, 2008) & (Aug. 8, 2008) We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471284/ | MEMORANDUM **
Humberto Lugo-Martinez appeals from the 60-month sentence imposed following *386his guilty-plea conviction for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and aiding in abetting, in violation of 18 U.S.C. § 2. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Lugo-Martinez contends that the district court erred at sentencing by miscalculating his criminal history category, and thus erred by determining that he was ineligible for “safety valve” relief under 18 U.S.C. § 3553(f). Lugo-Martinez further contends that the appeal waiver in his plea agreement does not preclude his appeal because: 1) the government breached the plea agreement; 2) the district court breached the plea agreement; and 3) the district court’s calculation error rendered the sentence illegal.
The plain language of the appeal waiver encompasses the grounds raised in this appeal and the record reflects that the waiver was knowing and voluntary. Moreover, the sentence comports with the terms of the plea agreement and is not illegal. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir.2007). Accordingly, Lugo-Martinez’s appeal is precluded by his valid appeal waiver. See id. at 623-24.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471286/ | MEMORANDUM **
Angel Mario Gonzalez-Medina appeals from the 60-month sentence imposed following his guilty-plea conviction for illegal entry and misuse of a passport, in violation of 8 U.S.C. § 1325 and 18 U.S.C. § 1544. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
As an initial matter, the government contends that Gonzalez-Medina’s appeal is barred by an appeal waiver contained in the plea agreement. The district court’s oral pronouncement that Gonzalez-Medina retained the right to appeal rendered the appeal waiver unenforceable. See United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir.1995).
Gonzalez-Medina contends that the district court erred during sentencing by relying on unreliable hearsay statements contained in the presentence report. The statements relied upon contained sufficient indicia of reliability. See United States v. Chee, 110 F.3d 1489, 1492 (9th Cir.1997). Moreover, the record reflects that the district court considered the challenged statements as only one aspect of an otherwise thorough 18 U.S.C. § 3553(a) analysis. Accordingly, the sentence is procedurally sound and substantively reasonable. See United States v. Stoterau, 524 F.3d 988, 999-1002 (9th Cir.2008).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*388ed by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471288/ | MEMORANDUM **
Earlene Short-Dille appeals pro se the district court’s decision affirming the deni*389al of her application for supplemental security income payments. Because substantial evidence supports the determination that Short-Dille is not disabled for purposes of obtaining such benefits, we affirm.
DISCUSSION
Short-Dille is disabled only if she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... for a continuous period of not less than 12 months.” See Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1222 n. 3 (9th Cir.2009) (quoting 42 U.S.C. § 1382c(a)(3)(A)). An Administrative Law Judge (ALJ) applied the requisite five-step sequential review process to determine whether she met that standard. See id. (citing 20 C.F.R. § 416.920). The ALJ concluded at step one that Short-Dille’s attempts at part-time work did not amount to substantial gainful activity so as to disqualify her for benefits on that ground. At step two, the ALJ found that Short-Dille’s impairments are severe, but for purposes of step three, her impairments do not automatically direct a finding of disability. At step four, after reviewing the medical and testimonial evidence, the ALJ determined that Short-Dille has the residual functional capacity for a reduced range of sedentary exertional level work and therefore could not return to her past relevant work. Finally, at step five, after consulting a vocational expert, the ALJ ruled that given Short-Dille’s age, education, and exertional capacity for light unskilled work, she could perform identifiable jobs that exist in significant numbers in the economy.
Short-Dille first argues the ALJ erred by not fully crediting her testimony that her pain precludes her from working. We disagree. The ALJ explained that Short-Dille’s activities, including her part-time work “are more consistent with those of an individual able to sustain light or sedentary work than they are of a totally disabled person.” Moreover, the ALJ noted the various CAT scans and MRIs taken over the years showed “only mild/minimal disc bulging with no cord impingement, with no significant spinal stenosis, [and] with no focal herniation.” Finally, the ALJ reasoned that Short-Dille’s “regularly treating physicians ultimately concluded she was capable of work.” These are “clear and convincing” reasons sufficient to support the ALJ’s decision not to credit Short-Dille’s subjective claim of total disability. See Carmickle v. Commissioner, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir.2008) (noting standard).
Short-Dille next contends the ALJ erred by not crediting the opinions of several of her doctors regarding her ability to work. The ALJ rejected Dr. Pylman’s statement because it was based on Short-Dille’s subjective complaints rather than objective medical criteria and because it was inconsistent with her testimony. The ALJ rejected Dr. Manuelle’s opinion because he “unquestioningly accepted” Short-Dille’s claim of disability that was not supported by the medical evidence. Finally, the ALJ gave less weight to the opinion offered by Dr. Northrup, a chiropractor internist, because it conflicted with Short-Dille’s treating chiropractor, Dr. Hodges, who saw her more frequently over a longer period of time. Again, these are “clear and convincing” reasons that are amply supported by substantial evidence in the record. See Ryan v. Commissioner of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.2008) (noting standard).
Short-Dille also argues the ALJ improperly rejected the lay testimony of two of her friends. An ALJ “must consider competent lay testimony but in reject*390ing such evidence, he need only provide reasons for doing so that are germane to [the] witness.” Carmickle, 533 F.3d at 1164 (internal quotation marks omitted). The AJLJ did so here by recounting the substance of the testimony but concluding it was not consistent with the medical evidence. See id. (concluding ALJ did not err by rejecting lay testimony inconsistent with other evidence).
Finally, Short-Dille argues the jobs identified by the vocational expert are not available where she lives in rural Oregon. That argument — “that the number of jobs must be considered in the context of the geographical area at issue”- — -has been rejected by this court. See Barker v. Secretary of Health and Human Servs., 882 F.2d 1474, 1479 (9th Cir.1989).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471290/ | MEMORANDUM *
Shawn Jackson appeals his conviction for receipt of child pornography in viola*391tion of 18 U.S.C. § 2252A(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts, we recite them only as necessary.
The district court may have abused its discretion by overruling Jackson’s objection at trial to admitting into evidence the still photo images of child pornography found in his computers’ Temporary Internet Files and unallocated space. The government failed to present foundational evidence that Jackson “exercised dominion and control over the images.” United States v. Romm, 455 F.3d 990, 998 (9th Cir.2006); see United States v. Kuchinski, 469 F.3d 853, 863 (9th Cir.2006). However, in view of the properly admitted evidence that Jackson exercised dominion and control over thirteen videos of child pornography, any error was harmless. See United States v. Schales, 546 F.3d 965, 976 (9th Cir.2008) (holding that a district court’s erroneous ruling “will be reversed only if such error more likely than not affected the verdict”).
Additionally, the district court did not abuse its discretion by questioning Agent Weg, and therefore, did not commit judicial misconduct. See Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.1995) (holding that it “is perfectly appropriate for a judge to take part where necessary to clarify testimony and assist the jury in understanding the evidence”); United States v. Parker, 241 F.3d 1114, 1119 (9th Cir.2001).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided *391by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471292/ | MEMORANDUM **
Willie Keith Jackson appeals pro se from the district court’s order reducing his sentence to 180 months imprisonment pursuant to 18 U.S.C. § 3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The government’s contention that we lack jurisdiction to review the district court’s discretionary decision regarding the sentence reduction is foreclosed. See United States v. Colson, 573 F.3d 915, 915-16 (9th Cir.2009) (Order).
Jackson contends that the district court abused its discretion under 18 U.S.C. § 3582(c)(2) by, among other things, not reducing his sentence further. The record reflects that the district court did not abuse its discretion because it considered the factors under 18 U.S.C. § 3553(a) and sentenced Jackson consistently with the applicable policy statements issued by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2); see also United States v. Hicks, 472 F.3d 1167, 1171 (9th Cir.2007). Jackson’s contention that the district court erred by failing to conduct a full resentencing hearing, at which he was entitled to personally appear, also fails. See Fed.R.Crim.P. 43(b)(4); see also Hicks, 472 F.3d at 1171 (noting that § 3582(c)(2) proceedings do not constitute full re-sentencings).
We decline to consider Jackson’s remaining contentions as they are not properly within the scope of this appeal. See U.S.S.G. § 1B1.10 n. 2.
Jackson’s motion for the court to take judicial notice of docketing errors is denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471517/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Demorris Tyrese Allen was convicted of conspiracy to possess with intent to distribute cocaine base. The district court imposed a 324-month sentence. Allen appeals, contending that the evidence was insufficient to support the verdict and that the district court’s factual findings at sentencing violated his Sixth Amendment rights. Finding no error, we affirm.
In order to support Allen’s conviction for conspiracy to possess with intent to distribute crack cocaine, the Government had to prove that he entered into an agreement with one or more persons to engage in conduct that violated 21 U.S.C. § 841(a)(1) (2006), that he had knowledge of the conspiracy, and that he knowingly and voluntarily participated in the conspiracy. United States v. Burgos, 94 F.3d 849, 857 (4th Cir.1996) (en banc). Allen concedes that the evidence supported possession with intent to distribute, but contends that the evidence was insufficient to prove that he was a member of a conspiracy. He argues that the evidence established a mere buyer/seller relationship between himself and others.
In United States v. Reid, 523 F.3d 310 (4th Cir.), cert. denied, — U.S.—, 129 S.Ct. 663, 172 L.Ed.2d 637 (2008), we held that “[ejvidence of a buy-sell transaction coupled with a substantial quantity of drugs, would support a reasonable inference that the parties were co-conspirators.” Id. at 317 (internal quotation marks, alteration, and citation omitted). Similarly, continued relationships and repeated drug transactions between parties are indicative of a conspiracy, particularly when the transactions involve substantial amounts of drugs. Id.
At trial, two cooperating witnesses described Allen’s purchases of cocaine base. One witness testified that, on one occasion, he sold 56 grams of crack to Allen. The other witness testified to numerous transactions between Allen and himself, amounting to a total of approximately 560 grams of crack. Although the individual transactions between Allen and this witness do not involve substantial quantities, the amounts of each transaction were significantly more than user quantities and, over the course of their six months of dealings, this witness provided Allen with a substantial amount of crack cocaine. We find that this evidence, viewed in the light most favorable to the Government, was sufficient to prove that Allen was part of the conspiracy. See United States v. Higgs, 353 F.3d 281, 313 (4th Cir.2003).
Allen also challenges his sentence, contending that the district court’s finding that he was responsible for 510 grams of crack cocaine was in violation of his Sixth Amendment right to a jury trial, when the jury made the specific finding that Allen was responsible for between five and fifty grams of crack.
“Sentencing judges may find facts relevant to determining a Guidelines range by a preponderance of the evidence, so long as that Guidelines sentence is treated as advisory and falls within the statutory maximum authorized by the jury’s verdict.” United States v. Benkahla, 530 F.3d 300, 312 (4th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 950, 173 L.Ed.2d 146 (2009); see also United States v. Perry, 560 F.3d 246, 258 (4th Cir.2009) (holding that, after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), district courts may “continue to make factual findings by a preponderance of the evidence,” including relying on acquitted conduct). As long as the sentence imposed does not exceed the statutory maximum authorized by the jury’s verdict, the district court does not violate the Sixth Amendment by imposing a sentence based on a higher drug quanti*846ty than was determined by the jury. United States v. Webb, 545 F.3d 673, 677 (8th Cir.2008).
Here, the jury made the specific finding that Allen was responsible for between five and fifty grams of crack cocaine. The maximum sentence allowed under the statute based on this finding is life imprisonment. See 21 U.S.C. §§ 841(b)(1)(B), 851 (2006) (authorizing sentence of ten years to life for offenses involving more than five grams of cocaine base if defendant had a prior felony drug offense). The sentencing court determined by a preponderance of the evidence that Allen was responsible for conspiring to possess 510 grams of cocaine base. The 324-month sentence imposed by the court after this finding was within the maximum authorized by the jury’s verdict and therefore does not violate the Sixth Amendment.
Accordingly, we affirm Allen’s conviction and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475663/ | OPINION
SLOVITER, Circuit Judge.
This appeal challenges the District Court’s grant of partial summary judgment based upon the New York in pari delicto doctrine. Because the parties have settled all remaining issues, the matter is ripe for appeal. For the reasons stated below, we will affirm.
I.
Oakwood Homes Corporation (“Oak-wood”) produced and sold manufactured homes, the purchasers of which were often low-income individuals with poor credit. In the 1990s, Oakwood expanded its business to include mortgage financing. Oak-wood retained Merrill Lynch to securitize the payment streams on the mortgage loans that it financed. Securitization is a process by which expected payment streams are pooled together and restructured into securities, which are then sold to investors. By securitizing the payment streams, Oakwood was able to obtain liquidity to fund its operations. In 1994, Oakwood retained Appellee Credit Suisse (“Credit Suisse”) to perform future periodic securitizations. Oakwood accomplished the securitizations in the ordinary course of business with the tacit approval of its Board of Directors, which was comprised of legal and business professionals from real estate development companies, law firms, and investment banks. By the late 1990s, Oakwood’s annual revenue grew to nearly $1 billion.
Oakwood’s business deteriorated in 1999 when the market for manufactured housing collapsed and purchasers began to default on their loans. Oakwood incurred costs in repossessing, refurbishing, and refinancing the homes. Meanwhile, investor demand for Oakwood’s securities was waning, and Oakwood had a surplus of unsold home inventory at its sales centers and factories. Oakwood’s Chief Financial Officer “emphasized [unfavorable] current market conditions ... and uncertainty with regard to [Oakwood] existing in the marketplace.” App. at 774-75. Ratings agencies questioned Oakwood’s creditworthiness and downgraded its credit rating. Oakwood announced operating losses in its SEC filings and in press releases.
Facing a liquidity shortage, Oakwood contacted Credit Suisse in late 1999 and proposed a stop-gap financing transaction that would provide Oakwood with immediate liquidity. In assessing the proposed transaction, James Xanthos of Credit Suisse prepared an internal memorandum (the “Xanthos Memo”) that summarized Oakwood’s credit risk. The Xanthos Memo discussed the deteriorating market conditions, mentioned the risk of bankruptcy, and recommended against the transaction. The Xanthos Memo was consistent with the market’s unfavorable perception of Oakwood: its stock was trading at about a quarter of its book value. Oak-wood was not given a copy of the Xanthos Memo, a fact it emphasizes in its brief. However, the proposed transaction discussed in the Xanthos Memo never materialized.
At the end of 2000, Credit Suisse was “the only game in town” that was willing to provide stop-gap financing for Oakwood. App. at 2141. Oakwood negotiated a financing package with Credit Suisse. *625Douglas Muir, who had been an Oakwood officer with responsibility over Oakwood’s securitization program, testified that the financing package “was in [Oakwood’s] best interests,” and that Oakwood’s Board agreed. App. at 2141. The financing enabled Oakwood to maintain “business as usual,” i.e., to continue its periodic securiti-zations. App. at 1557. As one of Oak-wood’s Board members described, “[t]he securitization program had been an integral part of [Oakwood’s] operation for a long time.... [T]he [B]oard was fully aware of how the [securitization] program operated, how it was doing and at no time undertook to mandate the discontinuance of it.” App. at 1391.
In 2001, Oakwood turned to Credit Suisse again to facilitate a short-term financing transaction. Oakwood “ultimately closed a transaction that was — that worked for everyone,” according to Muir. App. at 2136. Later that year, Credit Suisse negotiated a different transaction to re-securitize and sell some of Oakwood’s most subordinated securities at a fraction of their par value. “It was the unanimous consensus of [Oakwood’s] Board that the transaction be completed.” App. at 810. Oakwood tried to stem the rising tide of defaults by diverting loans into its existing loan assumption program, but the effort resulted in “significant adverse liquidity effects.” App. at 891. Although Credit Suisse “on occasion” corresponded with Oakwood and its attorneys regarding various transactions and issues, Credit Suisse did not control Oakwood or tell it what to do. App. at 1535. Indeed, Oakwood did not formally engage Credit Suisse as its financial adviser until after the events at issue.
On November 15, 2002, Oakwood filed for bankruptcy under 11 U.S.C. §§ 101, et seq. It stated that it did so “based primarily upon the continued poor performance of loans originated, the extremely weak conditions in the manufactured housing industry and the deteriorating financial terms in the asset-backed securitization market,” in addition to “the general economic recession.” App. at 445-46. Oakwood moved for permission in the Bankruptcy Court to continue engaging in the securitizations and other financing transactions with Credit Suisse. In support thereof, Oak-wood asserted that “[historically, securiti-zation transactions have provided the most effective and least expensive financing technique for satisfying [Oakwood’s] tremendous liquidity needs.” App. at 182. “In fact,” Oakwood noted, “[Oakwood] historically made a material profit on its secu-ritization transactions,” and “[a]lthough that profit has been reduced or even eliminated, the securitization transactions ... still remain the least expensive method for financing [Oakwood’s] operations.” App. at 182. The court granted Oakwood’s motion.
On November 13, 2004, Oakwood’s successor-in-interest (a liquidation trust, which is the Appellant in this appeal) objected to proofs of claim filed by Credit Suisse in the Bankruptcy Court and asserted, inter alia, counterclaims of common law negligence, breach of fiduciary duty, and breach of implied contract.1 *626Oakwood alleged, and continues to allege, that Credit Suisse knew the transactions it was structuring were “value-destroying” and “would eventually drive Oak-wood into bankruptcy,” and that Credit Suisse “never bothered to undertake further due diligence about the effects of those transactions, never conveyed its superior understanding of the transactions to Oakwood, and never behaved in accordance with the fiduciary position it had assumed by refusing to participate in further value destruction.” Appellant’s Br. at 6. Oakwood sought $50 million for the diminution in the value of its assets and $21 million in fees that it paid to Credit Suisse for the transactions. The Bankruptcy Court held that Oakwood was entitled to a jury trial on these claims, see In re Oakwood Homes Corp., 378 B.R. 59, 73 (Bankr.D.Del.2007), and the bankruptcy reference was withdrawn so that the ease could be heard in the District Court.
In the District Court, Credit Suisse filed a motion for partial summary judgment which the Court granted based on the in pari delicto doctrine. The bankruptcy claims were referred back to the Bankruptcy Court, where the parties reached a settlement. Oakwood brought this appeal challenging the District Court’s grant of partial summary judgment on the common law claims.2
II.
We review a district court’s decision to grant summary judgment de novo, and we apply the same standard the district court should have applied in determining whether summary judgment was appropriate. State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir.2009) (citation omitted). Summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). “In reviewing the District Court’s grant of summary judgment, we view the facts in a light most favorable to the nonmoving party,” in this case, Oakwood. Busch v. Marpie Newtown Sch. Dist., 567 F.3d 89, 95 n. 7 (3d Cir.2009) (citations omitted).
III.
The doctrine of in pari delicto refers to “[t]he principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing.” Black’s Law Dictionary (8th ed.2004). It derives from the Latin, in pari delicto potior est conditio defenden-tis: “In case of equal or mutual fault ... the position of the [defending] party ... is the better one.” Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985) (quotation and citation omitted). The doctrine is recognized as a defense under New York common law.3 See Jackson v. Assoc. Dry Goods Corp., 13 N.Y.2d 112, 242 N.Y.S.2d 210, 192 N.E.2d 167, 170 (1963), overruled on other grounds by D Ambrosio v. City of N.Y., 55 N.Y.2d 454, 450 N.Y.S.2d 149, 435 N.E.2d 366, 369 (1982); Abright v. Shapiro, 214 A.D.2d 496, 626 N.Y.S.2d 73, 74 (App.Div.1995). Under *627New York law, the in pari delicto doctrine “does not necessarily apply where there is a difference in the quality of the fault.” Iroquois Gas Corp. v. Int’l Ry. Co., 240 A.D. 432, 270 N.Y.S. 197, 198 (App.Div.1934); see also McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 757 (3d Cir.1990) (noting that a court “may not forbid recovery [on grounds of in pari delicto ] on account of a plaintiffs activities in a separate setting”) (citation omitted).
Oakwood’s negligence and implied contract claims do not survive summary judgment under New York’s in pari delic-to doctrine. During the relevant time period, Oakwood decided to use securitization transactions to bolster its liquidity as it had done successfully throughout the 1990s. The decision to do so came from Oakwood and its Board of sophisticated business and legal professionals, who recognized that the transactions were in Oak-wood’s best interest. The District Court aptly observed that Oakwood’s allegations “are entirely based on [its] financing strategies and transactions, all of which were authorized and directed by Oakwood’s Board and Management....” App. at 74. Even after declaring bankruptcy, Oakwood asked the Bankruptcy Court for permission to continue the transactions as “the most effective and least expensive financing technique for satisfying [Oakwood’s] tremendous liquidity needs.” App. at 182. That Credit Suisse provided Oakwood with the mechanism for carrying out this aspect of its business plan does not lessen Oak-wood’s culpability. As the District Court noted, Credit Suisse merely “assisted Oak-wood’s implementation of its ‘flawed’ business plan by structuring and executing these transactions, transactions which provided the liquidity necessary for Oak-wood’s continued operation, exactly what Oakwood employed Credit Suisse to do.” App. at 65-66. To the extent the financing decisions were blameworthy, Oakwood was at least as culpable as Credit Suisse: Oak-wood routinely approved the “value-destroying” transactions as an appropriate way to raise liquidity when the company was in financial turmoil. The in pari de-licto doctrine bars the claims. See, e.g., Granite Partners, L.P. v. Bear, Stearns & Co., 17 F.Supp.2d 275, 309 (S.D.N.Y.1998) (finding that in pari delicto bars claim by investment funds against broker-dealers under New York law where “[t]he Funds were active and voluntary participants in the securities purchases about which they now complain”); Buechner v. Avery, 38 A.D.3d 443, 836 N.Y.S.2d 1, 2-3 (App.Div. 2007) (finding that in pari delicto bars claim “based upon the cooperation of the management ... with defendant third parties in committing the alleged wrongs”).
Oakwood seeks to avoid the consequences of in pari delicto by arguing that Credit Suisse was an “insider.” Appellant’s Br. at 39. The in pari delicto doctrine generally does not apply when one party controls the other — the so-called “insider” exception4 — because it would allow a defendant that controlled a plaintiff to avoid liability by blaming the plaintiff it controlled. See, e.g., Kalb, Voorhis & Co. v. Am. Fin. Corp., 8 F.3d 130, 133 (2d Cir.1993) (noting, under Texas law, that “where the parties do not stand on equal terms and one party controls the other, the in pari delicto doctrine does not apply”). New York courts have recognized the exception. See, e.g., Buechner, 836 N.Y.S.2d at 3; see also Center v. Hampton Affiliates, Inc., 66 N.Y.2d 782, 497 *628N.Y.S.2d 898, 488 N.E.2d 828, 829-30 (1985) (recognizing similar exception in the context of an agent who defrauds his principal). Credit Suisse was not an “insider” for purposes of in pari delicto because Oakwood retained total control over its decisions. The undisputed evidence above, and the deposition testimony recited at length by the District Court, demonstrate Oakwood’s control over its decision-making process.
Oakwood’s reliance on a bankruptcy definition of “insider” is misplaced. See Schubert v. Lucent Techs., Inc. (In re Winstar Commc’ns, Inc.), 554 F.3d 382, 395 (3d Cir.2009). In Schubert, we considered the meaning of “insider” under the Bankruptcy Code, 11 U.S.C. § 101(31)(B). Id. The Bankruptcy Code provides that a trustee can avoid the transfer of property interests from a debtor to an “insider.” 11 U.S.C. § 547(b)(4)(B). We noted that when Congress defined “insider” in § 101(31), it used language to indicate “a category of creditors, sometimes called ‘non-statutory insiders,’ who fall within the definition but outside of any of the enumerated categories.” Schubert, 554 F.3d at 395. We thus rejected the argument that only a “person in control” could be an insider, holding that “the question is whether there is a close relationship [between debtor and creditor] and ... anything other than closeness to suggest that any transactions were not conducted at arm’s length.” Id. at 396-97 (citations and quotations omitted). The reasoning in Schubert does not apply to the meaning of “insider” under New York’s in pari delicto doctrine. The justification for the doctrine here is not based on the statutory provision or legislative history. Instead, the justification relates to the control that others exert over a corporation that does not act on its own.
IY.
The in pari delicto doctrine does not apply to Oakwood’s breach of fiduciary duty claim. With regard to this claim, the alleged wrongdoing is Credit Suisse’s failure to provide its opinion about the transactions with Oakwood, and summary judgment was warranted because of a lack of proximate causation. According to a member of Oakwood’s Board, the Board was “fully aware” of the securitizations and how they operated as an “integral part of [Oakwood’s] operation,” and the Board “at no time undertook to mandate the discontinuance of [the transactions].” App. at 2221. Credit Suisse did not divest Oak-wood of its decision-making authority, and there is no testimony that Oakwood would have changed its business plan had Credit Suisse actually offered its advice. Moreover, Oakwood attributed its bankruptcy to “extremely weak [market] conditions”— not to any supposed “value-destroying” transactions. App. at 445. The undisputed facts undermine a proximate causal link between Credit Suisse’s omissions and Oakwood’s injury. See LNC Invs., Inc. v. First Fid. Bank, N.A., 173 F.3d 454, 465 (2d Cir.1999) (“[W]here damages are sought for breach of fiduciary duty under New York law, the plaintiff must demonstrate that the defendant’s conduct proximately caused injury in order to establish liability.”) (citations omitted); Northbay Const. Co. v. Bauco Const. Corp., 38 A.D.3d 737, 832 N.Y.S.2d 280, 281 (App.Div.2007) (noting same). A reasonable jury could not find in favor of Oakwood.
y.
For the above-stated reasons, the judgment of the District Court will be affirmed.
. Although Oakwood's successor-in-interest brought the action underlying this appeal, we refer to the successor-in-interést as "Oak-wood” for ease of reference. Doing so does not affect our analysis. See Official Comm. of Unsecured Creditors v. R.F. Lafferty & Co., 267 F.3d 340, 357 (3d Cir.2001) (holding that as a matter of federal bankruptcy law, the debtor-in-possession succeeds to the claims and defenses of the debtor as they existed at the filing of the bankruptcy petition, including any in pari delicto defenses that may be asserted against it). We recognize that this is a minority view as it relates to the in pari delicto doctrine. See Official Comm. of Unsecured Creditors of AHERF v. Pricewaterhouse-Coopers, LLP, No. 07-1397, 2008 WL 3895559, at *5 (3d Cir. July 1, 2008) (noting, *626in a certification of question of law to the Pennsylvania Supreme Court, that “Lafferty’s view of in pari delicto is a minority one”). However, we are bound by our precedent.
. The District Court had jurisdiction under 28 U.S.C. § 1334(b) and 157(d). We have jurisdiction under 28 U.S.C. § 1291.
. The parties do not dispute the District Court’s determination that New York law applies.
. The exception derives from the fact that corporations act through their directors, officers, and controlling stockholders. See generally Unencumbered Assets, Trust v. JP Morgan Chase Bank (In re Nat’l Century Fin. Enter., Inc., Inv. Litig.), 617 F.Supp.2d 700, 712-13 (S.D.Ohio 2009) (collecting cases). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477802/ | ORDER
Petitioner having filed the required Statement Concerning Discrimination, it is,
ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Respondent’s brief is due within 21 days from the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471295/ | MEMORANDUM **
Joel Cervantes Arroyo, Silvia Contreras Cruz, and their two adult children, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we grant the petition for review.
The BIA abused its discretion because it failed to provide “specific and cogent reasons for its decision” denying petitioners’ motion to reopen to present new evidence regarding petitioner Silvia Contreras Cruz’s medical condition. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005). The BIA failed to provide a rea*395soned explanation and instead merely restated the standard of “prima facie eligibility” rather than explaining why petitioners failed to meet that standard. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002) (reversing denial of a motion to reopen where the BIA “merely repeated petitioners’ claims and summarily dismissed them”). We therefore grant the petition for review and remand for reconsideration of petitioners’ motion to reopen.
Because we remand this matter to the BIA, we do not address petitioners’ remaining contentions.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471297/ | MEMORANDUM **
Washington state prisoner Allan Parme-lee appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Parmelee contends that the state’s revocation of his in forma pauperis (IFP) status prior to appeal, and its failure to provide him with the trial transcript and an attorney to challenge the denial of his IFP status, violated his due process and equal protection rights under the federal constitution. Even assuming this claim is cognizable in a habeas petition, the contention fails because Parmelee has not shown that the trial court’s revocation of his IFP status was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “based on an unreasonable determination of the facts.” See 28 U.S.C. § 2254(d).
Parmelee contends that the district court erred by dismissing his ineffective assistance of counsel claim as unexhausted. The district court did not err. See 28 U.S.C. § 2254(b), (c).
Parmelee’s remaining motions are denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471299/ | MEMORANDUM **
The ALJ gave specific, clear, and convincing reasons for his adverse credibility determination, which was supported by substantial evidence in the record. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.2007). Castaneda claimed he had difficulty standing and walking and that he used a cane and a back brace. The ALJ noted, however, that Castaneda was not using an ambulatory device or back brace at the hearing and that no doctor had prescribed the use of a cane. Cf. Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir.1999).
The ALJ was not required to call a medical expert to testify whether Castaneda’s impairment met or equaled Listing 1.04(A) or (C). According to Social Security Ruling (SSR) 96-6p, when the ALJ determines that an individual’s impairment is not equivalent to any listing, the ALJ may satisfy the duty to receive expert opinion evidence into the record by obtaining the signature of a state medical consultant on the appropriate form (Disability Determination and Transmittal Form, SSA-831U5). Here, the ALJ determined that Castaneda’s impairment was not equivalent to any listing because Castaneda did not have an inability to ambulate effectively as defined in the relevant Listing, 20 C.F.R. pt. 404, subpt P, App. 1, § 1.00(B)(2), and did not have a positive straight-leg raising test for purposes of Section 1.04(A) of the Listing, 20 C.F.R. pt. 404, subpt P, App. 1, § 1.04(A). These determinations were supported by substantial evidence. Because the ALJ did not err in concluding that Castaneda’s impairment did not meet or equal Listing 1.04(A) or (C), and because the state’s non-examining medical experts signed the required SSA-831-U5 forms, the ALJ satisfied the requirement under SSR 96-6p.
The ALJ did not err in relying on the assessments of the examining physician, Dr. Cunningham, and on the non-examining state agency physicians, Drs. Hughes and Vivian. Even assuming Dr. Cunningham did not review Castaneda’s October 2003 MRI, the ALJ did not err in considering Dr. Cunningham’s report. Dr. Cunningham’s assessment rested on his own independent examination of Castaneda and was consistent with the record as a whole. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.2001).
Moreover, contrary to Castaneda’s argument that the non-examining state agency physicians relied solely on Dr. Cunningham’s examination, the Case Development Sheet (CDS) signed by Dr. Hughes provides an extensive summary of Castaneda’s medical record, including reports from Clinica Adelante, St. Joseph’s Surgery Center, and Dr. Papadopoulos. The CDS also confirms that Dr. Hughes reviewed Castaneda’s October 2003 MRI. ER 137. Dr. Hughes stated that he based his determination that Castaneda’s condition failed at Step Two of the SSA’s five-step process for determining disability, see 20 C.F.R. § 404.1520, on Dr. Papadopoulos’s normal exam, and the CDS provided substantial evidence supporting Dr. Hughes’s determination that Castaneda retained a residual functional capacity (RFC) for medium work. The non-examining *399state agency physicians’ determination that Castaneda had a medium RFC was consistent with other evidence in the record, and constitutes substantial evidence supporting the ALJ’s conclusion that Castaneda was not disabled. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002).
The ALJ did not err in failing to further develop the record. While “the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant’s interests are considered,” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983), the duty to develop the record is “triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir.2001). In this case, the medical record before the ALJ was not ambiguous or conflicting (other than the report by Nurse Ridge, discussed below). Nor was the record inadequate; it included the opinions of a state examining physician and two non-examining physicians. See Tonapetyan, 242 F.3d at 1149.
Finally, contrary to Castaneda’s claim, the ALJ acknowledged Nurse Ridge’s role in Castaneda’s medical treatment. The ALJ did not err, however, in giving her report little weight because a nurse practitioner is not an “acceptable medical source,” see Gomez v. Chater, 74 F.3d 967, 971 (9th Cir.1996), and Ridge’s RFC determination was brief and conclusory. “When evaluating conflicting medical opinions, an ALJ need not accept the opinions of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005). Accordingly, the ALJ did not err in giving probative weight to the reports of Drs. Cunningham, Vivian, and Hughes, and rejecting the inconsistent report from Nurse Ridge. See Thomas, 278 F.3d at 957.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471301/ | MEMORANDUM *
Leslie Kakinami appeals the district court’s order denying her 28 U.S.C. § 2255 motion to vacate, set aside or correct sentence. In her § 2255 motion, Kakinami specifically requested that she be transferred to federal custody and that she receive credit against her federal sentence for time served in state custody since the imposition of her federal sentence on August 17, 2006. On April 24, 2008, subsequent to the district court’s order, Kakina-mi was transferred to federal custody. The Bureau of Prisons has recomputed Kakinami’s federal sentence to begin nunc pro tunc on August 17, 2006, the date of imposition. Kakinami’s appeal of the district court’s denial of that aspect of her motion is accordingly dismissed as moot.
Kakinami also requests credit for time spent in official custody between October 12, 2005 and August 17, 2006, the date her federal sentence was imposed. Although Kakinami’s § 2255 motion generally stated that she was being “denied Federal ‘credit’ time,” she did not specifically argue in the district court her entitlement to credit for this time served. Accordingly, we remand to the district court for consideration of this issue in the first instance.
DISMISSED IN PART; REMANDED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471518/ | PER CURIAM: *
The attorney appointed to represent Johnnvez Demon Bradford has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Bradford has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471296/ | MEMORANDUM **
Joel Cervantes Arroyo, Silvia Contreras Cruz, and their two adult children, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we grant the petition for review.
The BIA abused its discretion because it failed to provide “specific and cogent reasons for its decision” denying petitioners’ motion to reopen to present new evidence regarding petitioner Silvia Contreras Cruz’s medical condition. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005). The BIA failed to provide a rea*395soned explanation and instead merely restated the standard of “prima facie eligibility” rather than explaining why petitioners failed to meet that standard. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002) (reversing denial of a motion to reopen where the BIA “merely repeated petitioners’ claims and summarily dismissed them”). We therefore grant the petition for review and remand for reconsideration of petitioners’ motion to reopen.
Because we remand this matter to the BIA, we do not address petitioners’ remaining contentions.
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471298/ | MEMORANDUM **
Washington state prisoner Allan Parme-lee appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Parmelee contends that the state’s revocation of his in forma pauperis (IFP) status prior to appeal, and its failure to provide him with the trial transcript and an attorney to challenge the denial of his IFP status, violated his due process and equal protection rights under the federal constitution. Even assuming this claim is cognizable in a habeas petition, the contention fails because Parmelee has not shown that the trial court’s revocation of his IFP status was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “based on an unreasonable determination of the facts.” See 28 U.S.C. § 2254(d).
Parmelee contends that the district court erred by dismissing his ineffective assistance of counsel claim as unexhausted. The district court did not err. See 28 U.S.C. § 2254(b), (c).
Parmelee’s remaining motions are denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471300/ | MEMORANDUM **
The ALJ gave specific, clear, and convincing reasons for his adverse credibility determination, which was supported by substantial evidence in the record. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.2007). Castaneda claimed he had difficulty standing and walking and that he used a cane and a back brace. The ALJ noted, however, that Castaneda was not using an ambulatory device or back brace at the hearing and that no doctor had prescribed the use of a cane. Cf. Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir.1999).
The ALJ was not required to call a medical expert to testify whether Castaneda’s impairment met or equaled Listing 1.04(A) or (C). According to Social Security Ruling (SSR) 96-6p, when the ALJ determines that an individual’s impairment is not equivalent to any listing, the ALJ may satisfy the duty to receive expert opinion evidence into the record by obtaining the signature of a state medical consultant on the appropriate form (Disability Determination and Transmittal Form, SSA-831U5). Here, the ALJ determined that Castaneda’s impairment was not equivalent to any listing because Castaneda did not have an inability to ambulate effectively as defined in the relevant Listing, 20 C.F.R. pt. 404, subpt P, App. 1, § 1.00(B)(2), and did not have a positive straight-leg raising test for purposes of Section 1.04(A) of the Listing, 20 C.F.R. pt. 404, subpt P, App. 1, § 1.04(A). These determinations were supported by substantial evidence. Because the ALJ did not err in concluding that Castaneda’s impairment did not meet or equal Listing 1.04(A) or (C), and because the state’s non-examining medical experts signed the required SSA-831-U5 forms, the ALJ satisfied the requirement under SSR 96-6p.
The ALJ did not err in relying on the assessments of the examining physician, Dr. Cunningham, and on the non-examining state agency physicians, Drs. Hughes and Vivian. Even assuming Dr. Cunningham did not review Castaneda’s October 2003 MRI, the ALJ did not err in considering Dr. Cunningham’s report. Dr. Cunningham’s assessment rested on his own independent examination of Castaneda and was consistent with the record as a whole. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.2001).
Moreover, contrary to Castaneda’s argument that the non-examining state agency physicians relied solely on Dr. Cunningham’s examination, the Case Development Sheet (CDS) signed by Dr. Hughes provides an extensive summary of Castaneda’s medical record, including reports from Clinica Adelante, St. Joseph’s Surgery Center, and Dr. Papadopoulos. The CDS also confirms that Dr. Hughes reviewed Castaneda’s October 2003 MRI. ER 137. Dr. Hughes stated that he based his determination that Castaneda’s condition failed at Step Two of the SSA’s five-step process for determining disability, see 20 C.F.R. § 404.1520, on Dr. Papadopoulos’s normal exam, and the CDS provided substantial evidence supporting Dr. Hughes’s determination that Castaneda retained a residual functional capacity (RFC) for medium work. The non-examining *399state agency physicians’ determination that Castaneda had a medium RFC was consistent with other evidence in the record, and constitutes substantial evidence supporting the ALJ’s conclusion that Castaneda was not disabled. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002).
The ALJ did not err in failing to further develop the record. While “the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant’s interests are considered,” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983), the duty to develop the record is “triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir.2001). In this case, the medical record before the ALJ was not ambiguous or conflicting (other than the report by Nurse Ridge, discussed below). Nor was the record inadequate; it included the opinions of a state examining physician and two non-examining physicians. See Tonapetyan, 242 F.3d at 1149.
Finally, contrary to Castaneda’s claim, the ALJ acknowledged Nurse Ridge’s role in Castaneda’s medical treatment. The ALJ did not err, however, in giving her report little weight because a nurse practitioner is not an “acceptable medical source,” see Gomez v. Chater, 74 F.3d 967, 971 (9th Cir.1996), and Ridge’s RFC determination was brief and conclusory. “When evaluating conflicting medical opinions, an ALJ need not accept the opinions of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005). Accordingly, the ALJ did not err in giving probative weight to the reports of Drs. Cunningham, Vivian, and Hughes, and rejecting the inconsistent report from Nurse Ridge. See Thomas, 278 F.3d at 957.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471519/ | PER CURIAM: *
The attorney appointed to represent Johnnvez Demon Bradford has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Bradford has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471520/ | PER CURIAM: *
Plaintiffs-appellants, who suffered injuries due to the flooding associated with Hurricane Katrina, appeal the district court’s dismissal of their tort and admiralty claims against the United States for lack of subject matter jurisdiction due to appellants’ failure to exhaust administrative remedies. For the following reasons, we AFFIRM.
I. FACTS AND PROCEEDINGS BELOW
On August 29, 2005, Hurricane Katrina battered the Louisiana and Mississippi Gulf coasts. New Orleans was hit especially hard, in large part due to the catastrophic flooding that resulted when numerous levees around the city failed. Appellants are a group of Louisiana citizens who lost property and loved ones in the flooding. Appellants brought a class-action suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., and the Suits in Admiralty Act, 46 U.S.C. app. § 741 et seq. (current version at 46 U.S.C. § 30901 et seq.), alleging that the United States Army Corps of Engineers (the Corps) negligently designed, constructed, and maintained several man-made canals in the New Orleans area, thereby causing their injuries.1
The district court consolidated appellants’ suit with a number of other similar actions within In re: Katrina Canal Breaches Consolidated Litigation (E.D.La. No. 05-4182). The district court later dismissed appellants’ claims for lack of subject matter jurisdiction, because appellants had failed to exhaust their administrative remedies both for their tort claims under the FTCA and for their admiralty claims, which the district court determined arose, if at all, under the Admiralty Extension Act, 46 U.S.C. app. § 740 (current version at 46 U.S.C. § 30101). Without any certification of final judgment under Federal Rule of Civil Procedure 54(b), appellants filed this timely appeal.
*3II. APPELLATE JURISDICTION
Before addressing the merits of this appeal, we must first consider whether this court has appellate jurisdiction. As noted above, this action was consolidated with numerous other cases within In re: Katrina Canal Breaches Consolidated Litigation. The Government argues that, because this suit is part of a consolidation and appellants failed to obtain a Rule 54(b) certification, the district court’s order dismissing appellants’ complaint was not a final judgment affording us appellate jurisdiction under 28 U.S.C. § 1291. The Government stresses that there are numerous proceedings still pending before the district court in this consolidated action, a number of which were filed by the same appellants now before this court. Therefore, the Government contends that the district court’s order of dismissal was interlocutory and we have no jurisdiction.
Except in limited circumstances, this court may only exercise appellate jurisdiction over the final judgments of district courts.2 See 28 U.S.C. §§ 1291-1292. In order to be final, a judgment “must adjudicate the rights and liabilities of all parties properly before the court.” Witherspoon v. White, 111 F.3d 399, 401 (5th Cir.1997). However, where there are multiple parties or claims in a single suit, upon request the district court may enter a final judgment as to certain parties or claims without deciding the entire case, thereby rendering those decisions final and appealable. Fed. R.CivP. 54(b). When a suit is part of a consolidated action, whether or not a Rule 54(b) certification is required as a predicate for appeal depends largely upon the extent to which the suits are consolidated. See Rd. Sprinkler Fitters v. Cont’l Sprinkler, 967 F.2d 145, 149 (5th Cir.1992).
As a general rule, suits that are consolidated merely for reasons of convenience and judicial economy retain their separate character for purposes of appeal. In re Transtexas Gas Corp., 303 F.3d 571, 577 (5th Cir.2002) (citing Johnson v. Manhattan Ry. Co., 289 U.S. 479, 53 S.Ct. 721, 727-28, 77 L.Ed. 1331 (1933)). However, if the suits have essentially merged so as to become a single action, this court will deny appellate jurisdiction in the absence of a Rule 54(b) certification. E.g., Rd. Sprinkler, 967 F.2d at 149-50; Ringwald v. Harris, 675 F.2d 768, 771 (5th Cir.1982). In determining whether a Rule 54(b) certification is necessary, this court follows no “rigid rule,” but rather “inquire[s] into the nature of and extent of consolidation intended by the court.” Rd. Sprinkler, 967 F.2d at 149. The seminal case in this circuit to address this issue is Ringwald, in which we considered “whether a post-consolidation single judgment or order that disposes of all parties and claims in one of the originally separate suits, but not the other, is governed by ... Rule 54(b).” 675 F.2d at 770. We held that where
“there is a proper consolidation of causes that could have been filed as a single suit, and the consolidation is clearly for all purposes, the provisions of Rule 54(b) must be complied with notwithstanding that the judgment or order in question disposes of all the claims and parties in one of the original actions.”
Id. at 771.
In this particular suit, the district court dismissed all claims against the only defen*4dant, the United States.3 The fact that this action was incorporated into In re: Katrina Canal Breaches Consolidated Litigation does not render the district court’s judgment interlocutory. That consolidation encompasses dozens of suits filed by literally thousands of plaintiffs. As a practical matter, it is highly unlikely that all of those actions could have originally been filed as a single suit. See id. Moreover, it is clear from the district court’s various consolidation orders that these suits were clearly not consolidated “for all purposes.” See id. Rather, the cases were consolidated solely for purposes of convenience and judicial economy due to the vast number of related eases filed in the Eastern District of Louisiana following Katrina.4
Therefore, we find that the district court’s judgment was final, and it was unnecessary for appellants to obtain a Rule 54(b) certification in order for this court to exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.
III. STANDARD OF REVIEW
We review de novo a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, applying the same standards as the district court. LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir.2005). The party asserting jurisdiction has the burden to prove that jurisdiction is proper when challenging a Rule 12(b)(1) motion. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001).
IV. DISCUSSION
Appellants claim that the district court erred when it dismissed (without prejudice) both their FTCA and their admiralty claims for lack of subject matter jurisdiction. We address each of those arguments in turn.
A. Federal tort claims
The FTCA waives sovereign immunity for federal tort claims brought against the United States. 28 U.S.C. § 2674. A district court has no jurisdiction to consider FTCA claims unless the claimant has exhausted his administrative remedies with the appropriate federal agency prior to filing suit. Id. § 2675(a); Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir.1981). Here, appellants readily admit that they have not exhausted their administrative remedies, but they argue that they should not be required to do so because those efforts would be futile. We decline this invitation to circumvent the jurisdictional limitations established by Congress when it chose to subject the United States to tort liability under the FTCA. As the Supreme Court has stated in response to a *5similar argument, “we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.” Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 1825 n. 6, 149 L.Ed.2d 958 (2001). Thus, the district court did not err in dismissing appellants’ federal tort claims for lack of jurisdiction.
B. Admiralty Claims
Respecting the asserted admiralty claims, the district court stated:
“Plaintiffs also contend that this Court has jurisdiction over these claims pursuant to 28 U.S.C. § 1331(1) and pursuant to the Suits in Admiralty Act (46 U.S.C. § 741, at seq.) (‘SAA’). However, because all the damages alleged by plaintiffs occurred on land, in order to pursue such a claim, a litigant must file an administrative claim under the Admiralty Extension Act, 46 U.S.CApp. § 740 (‘AEA’).
The AEA provides in pertinent part:
The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.
In any such case suit may be brought in rem or in personam according to the principles of law and the rules of practice obtaining in cases where the injury or damage has been done and consummated on navigable water: Provided, That as to any suit against the United States for damage or injury done or consummated on land by a vessel on navigable waters, the Public Vessels Act or Suits in Admiralty Act, as appropriate, shall constitute the exclusive remedy for all causes of action arising after June 19, 1948, and for all causes of action where suit has not been hitherto filed under the Federal Tort Claims Act: Provided further, That no suit shall be filed against the United States until there shall have expired a period of six months after the claim has been presented in writing to the Federal agency owning or operating the vessel causing the injury or damage.
46 App. U.S.C. § 740.
The AEA clearly provides that when a suit is brought pursuant to SAA and the resulting damage occurs on land, no suit shall be filed against the United States until six months after the filing of an administrative claim which has been presented in writing to the appropriate federal agency. Loeber v. Bay Tankers, Inc., 924 F.2d 1340 (5th Cir.1991). Thus, the Motion to Dismiss is meritorious in this respect as well.”
We agree.
The district courts are vested with original jurisdiction over suits arising in admiralty. 28 U.S.C. § 1333(1). Traditionally, a tort must have occurred on navigable waters to be actionable in admiralty. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 1047, 130 L.Ed.2d 1024 (1995). Based on that general rule, the Suits in Admiralty Act (SAA) waives sovereign immunity for the United States in admiralty cases arising from injuries occurring on navigable waters. 46 U.S.C. app. § 742. However, with the passage of the Admiralty Extension Act (AEA) in 1948, Congress extended admiralty jurisdiction, and the United States’ waiver of sovereign immunity, to suits involving injuries on land caused by a vessel on navigable waters. Id. at 1047-48; see also 46 U.S.C. app. § 740.
Here, appellants expressly disclaim any *6reliance on the AEA.5 Thus, if we are to find admiralty jurisdiction at all, it must be under the SAA, unaided by the AEA. A tort is deemed to have occurred “where the alleged wrong took effect rather than to the locus of the allegedly tortious conduct.” Egorov, Puchinsky, Afanasiev & Juring v. Terriberry, Carroll & Yancey, 183 F.3d 453, 456 (5th Cir.1999). Because the complained-of injuries in this case occurred on land, admiralty jurisdiction cannot attach under the SAA, unaided by the AEA. Therefore, the district court did not err in dismissing appellants’ admiralty claims for lack of subject matter jurisdiction because they had not filed administrative claims as required by the AEA. Loeber v. Bay Tankers, Inc., 924 F.2d 1340, 1342 (5th Cir.1991).
V. CONCLUSION
We conclude that, despite the fact that this suit is part of a consolidated action with numerous ongoing proceedings in district court, the dismissal of appellants’ claims was a final judgment affording this court appellate jurisdiction pursuant to 28 U.S.C. § 1291. We also hold that, as appellants did not exhaust their administrative remedies as required under the FTCA, the district court correctly determined that it lacked jurisdiction to consider appellants’ federal tort claims. Finally, because appellants’ injuries did not take effect on navigable waters but rather all on land, and because they did not file administrative claims against the United States under the AEA and disclaim jurisdiction thereunder, we find that appellants have failed to establish admiralty jurisdiction under the SAA. Therefore, the district court’s judgment dismissing appellants’ claims for lack of subject matter jurisdiction is
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.
. The district court noted that:
"The focus of plaintiffs' allegations concern the Government's alleged failure to 'ensure the competent design, construction, inspection, maintenance and operation of an entire navigable waterway system, consisting of the MRGO, the Gulf Intracoastal Waterway, the Industrial Canal, the London Avenue Canal and the Seventeenth Street Canal.’ (Complaint, fXII). Plaintiffs also allege that the Government failed to ‘properly prepare for and respond to the needs of the People, prior to and in the aftermath of Hurricane KATRINA.”' (Complaint, ¶ XIII).”
. Appellants argue in the alternative that, should this court determine that the district court’s order was interlocutory and we lack jurisdiction under 28 U.S.C. § 1291, we still have jurisdiction pursuant to 28 U.S.C. § 1292(a)(3), which furnishes this court with jurisdiction over interlocutory decrees "determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed." Because we ultimately conclude that we have jurisdiction under 28 U.S.C. § 1291, we need not and do not consider this argument.
. This key fact distinguishes this case from O’Dwyer, et al. v. United States, et al., in which we refused to exercise appellate jurisdiction under 28 U.S.C. § 1291. See 277 Fed.Appx. 512, 514 (5th Cir.2008) (unpublished). In that case, the same appellants now before this court brought similar claims against the United States and various private parties. See id. The district court dismissed the claims against the United States, but not those brought against the other defendants. Id. On appeal, we determined that the district court’s judgment was not final and that we lacked appellate jurisdiction, because there remained numerous claims against the other defendants still pending in the district court. Id. In contrast, here the United States is the sole defendant, and there are no outstanding claims remaining in the district court.
. We also note that, on at least two occasions, this court has exercised appellate jurisdiction over other suits arising from within In re: Katrina Canal Breaches Consolidated Litigation, despite the apparent lack of a Rule 54(b) certification. See, e.g., In re Katrina Canal Breaches Litigation, 324 Fed.Appx. 370 (5th Cir.2009); In re Katrina Canal Breaches Litigation, 495 F.3d 191 (5th Cir.2007).
. For example, appellants expressly assert in their brief, inter alia, that “the Admiralty Extension Act is inapplicable to appellants' claims against the Government” and "nowhere in appellants' pleadings, as supplemented and amended, is the Admiralty Extension Act mentioned in any way, shape or form.” Thus, we need not determine whether any proximate causation by one or more vessels on navigable waters is alleged. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471307/ | *404MEMORANDUM **
Leticia Morales de Bolanos and Pedro Bolanos Yllescas, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen or reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to reconsider because the motion failed to identify any errors of fact or law in the BIA’s April 10, 2006, order denying their motion to reopen. See 8 C.F.R. § 1003.2(b)(1). Petitioners have waived any challenge to the BIA’s conclusion that, construed as a motion to reopen, the motion was numerically barred. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471309/ | MEMORANDUM **
Pedro Roman Vazquez and Francisca Roman, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying Roman Vazquez’s motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny the petition for review.
The BIA acted within its discretion in denying Roman Vazquez’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s December 29, 2005, order.' See 8 C.F.R. § 1003.2(b)(1).
We lack jurisdiction to review the BIA’s underlying order dismissing petitioners’ direct appeal from the immigration judge’s decision denying their applications for cancellation of removal because this petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471311/ | MEMORANDUM **
Andrew Winston Alies and his family (“Petitioners”), natives and citizens of Sri Lanka, petition for review of the Board of Immigration Appeals’ (“BIA”) November 15, 2005 per curiam decision dismissing Petitioners’ appeal from an Immigration Judge’s (“IJ”) June 28, 2004 decision that denied Petitioners’ applications for asylum, withholding of removal, and protection under the United Nations’ Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, as amended by section 106 of the Real ID Act of 2005, 119 Stat. 231, 305, and we deny the petition for review.1
To be eligible for asylum, a petitioner must show past persecution based on a protected ground and an objectively reasonable fear of future persecution. See 8 U.S.C. § 1101(a)(42)(A); Padash v. INS, 358 F.3d 1161, 1166 (9th Cir.2004). Here, it is questionable whether Alies has dem*407onstrated an objective basis for his claim of past persecution because he continued to reside in Sri Lanka for ten years after his brother’s assassination. The only claimed persecution during this period by the Janatha Vimukthi Perama (“JVP”) political party were telephone threats that were never carried out.
Even if Alies is determined to have demonstrated past persecution, thus giving rise to a presumption of future persecution, the record rebuts the presumption. See 8 C.F.R. § 1208.13(b)(l)(i)(A); Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir.2004). The only reason proffered by Alies for his alleged persecution by the JVP was his support for the government. However, the JVP has been part of the Sri Lankan coalition government since 2001. See Kazlauskas v. INS, 46 F.3d 902, 906 n. 3 (9th Cir.1995) (noting conditions in the country of origin are relevant to the likelihood of future persecution). Thus, even accepting Alies’ claims of past persecution by the JVP, we conclude that he has failed to show a reasonable probability of future persecution because he has not shown the JVP continues to oppose citizens who support the government.
Alies also alleges that he fears future persecution because he is Christian. Alies, however, did not present any evidence that he or his family were persecuted because of their religion while in Sri Lanka. Moreover, the evidence of two church burnings in Sri Lanka is too attenuated to compel a finding of reasonable fear of religious persecution on Petitioners’ part.
In sum, Petitioners have failed to show that the record compels a reversal of the BIA determination that they do not have a reasonable fear of future persecution. See Katana v. INS, 232 F.3d 1107, 1112 (9th Cir.2000) (“[T]he applicant must show that the evidence not only supports, but compels the conclusion that the asylum decision was incorrect”).
Because Petitioners have not shown they should be granted asylum, they do not meet the standard for withholding of removal, as the evidence in the record does not support a clear probability that they will face political or religious persecution if returned to Sri Lanka. See de Leon-Barrios v. INS, 116 F.3d 391, 394 (9th Cir.1997) (stating that when petitioners fail to satisfy the standard for asylum, they necessarily fail to satisfy the more rigorous standard for withholding of deportation). Also, Petitioners are not entitled to relief under the CAT because they have not presented any evidence of torture or likelihood of future torture. See Zhang v. Ashcroft, 388 F.3d 713, 722 (9th Cir.2004).
Finally, the BIA did not abuse its discretion in denying Petitioners’ motion to remand the matter to the IJ because Petitioners’ proffered evidence regarding changes in general country conditions in Sri Lanka did not contain information directly affecting Petitioner’s claim for relief. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005) (the BIA does not abuse its discretion if it provides a reasoned explanation for its actions). Moreover, the BIA made clear that the additional family certificates Petitioners sought to present did not add information to the record that was not already available to the IJ.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the parties are familiar with the facts of this case, we do not restate them here except as necessary to explain our disposition. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471313/ | MEMORANDUM **
Javier Tizón Puig Jr., a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. We dismiss the petition for review.
We lack jurisdiction to review the agency’s discretionary determination that Puig’s aggravated felony conviction for “lewd or lascivious acts with a child under 14 years of age” in violation of California Penal Code section 288(a) is a particularly serious crime rendering him ineligible for withholding of removal. See 8 U.S.C. § 1252(a)(2)(B)(ii); Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir.2001).
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471315/ | MEMORANDUM **
Mony Neth, a native and citizen of Cambodia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and reissue its prior order denying his motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo questions of law. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Neth’s motion as untimely because it was filed over 90 days after the BIA issued its final administrative order, see 8 C.F.R. § 1003.2(c)(2), and Neth failed to demonstrate that he qualified for any of *410the regulatory exceptions to the time limit on filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(i)-(iv).
We do not consider the equitable tolling contentions Neth set forth for the first time in his reply brief because he did not raise them in his opening brief. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996) (per curiam).
We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen removal proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
Neth’s contention that the REAL ID Act’s (“RIDA”) repeal of habeas jurisdiction over final removal orders violates the Suspension Clause is foreclosed by our precedent. See Singh v. Mukasey, 533 F.3d 1103, 1109 (9th Cir.2008) (holding that aliens such as petitioner, who were previously without a right to judicial review of a removal order except by habeas corpus, had 30 days from the date of the RIDA’s enactment to file a petition for review).
To the extent Neth seeks review of the BIA’s April 22, 2005, order denying his motion to reconsider, we lack jurisdiction because this petition for review is not timely as to that order. See 8 U.S.C. § 1252(b)©; Singh, 533 F.3d at 1110.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471317/ | MEMORANDUM ***
Mario Rodriguez-Rangel appeals his conviction for assaulting a federal officer under 18 U.S.C. § 111 and the resulting 51-month sentence. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.
Rodriguez-Rangel first argues the district court erred by admitting improper lay and expert witness opinion testimony. Because Rodriguez-Rangel’s counsel did not object to this evidence at trial, we review only for plain error. See United States v. Olano, 507 U.S. 725, 735-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
Rodriguez-Rangel claims the district court erred by admitting the testimony of Officers Ferguson and McNeel because neither officer was qualified to offer a medical opinion. The officers each testified that they had previously observed people having seizures and that Rodriguez-Rangel’s behavior was inconsistent with their previous observations. Assuming these statements constituted lay opinions, they were “rationally based on the perception of the witnesses]” and “helpful to a clear understanding of the witness[es]’ testimony or the determination of a fact in issue.” Fed.R.Evid. 701. The district court did not plainly err in admitting them.
*412Rodriguez-Rangel also claims the district court erred by allowing Officers Ferguson and McNeel, and medical expert witness Dr. Fernandez, to testify to the ultimate issue: whether Rodriguez-Rangel formed the requisite intent to assault. All three witnesses testified that RodriguezRangel’s behavior during the altercation was inconsistent with the symptoms of a seizure. They did not “state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto.” Fed. R. Evid. 704(b). That inference was properly left for the jury. See United States v. Cohen, 510 F.3d 1114, 1125-26 (9th Cir.2007). Moreover, even if admitting this testimony was error, Rodriguez-Rangel cannot demonstrate prejudice to his substantial rights in light of the other evidence admitted against him at trial. See Olano, 507 U.S. at 734, 113 S.Ct. 1770. The district court did not plainly err in admitting this testimony.
Rodriguez-Rangel next argues the district court erred in refusing to allow the defense to introduce the victim’s allegedly prior inconsistent statements regarding the offense. The defense asked Special Agent Sloan, who investigated the event and prepared the case for prosecution, whether Officer McNeel’s testimony at trial was the same as his statements during the investigation. The district court sustained the prosecution’s hearsay objection. We review a district court’s evidentiary rulings for abuse of discretion. United States v. Fleming, 215 F.3d 930, 938 (9th Cir.2000).
The hearsay statement elicited was not admissible under Federal Rule of Evidence 801(d) because McNeel’s original statement made out of court was not under oath and subject to the penalty of perjury. The district court properly sustained the objection on this ground. Rodriguez-Ran-gel suggests on appeal the prior statement should have been admitted for the purpose of impeaching Officer McNeel. However, defense counsel did not lay a proper foundation by affording Officer McNeel “an opportunity to explain or deny the statement.” Fed. R. Evid. 613(b). Nor did counsel proffer the allegedly impeaching information. Therefore, the argument is waived. See United States v. Boulware, 558 F.3d 971, 974 (9th Cir.2009) (“Counsel must also ‘articulate every ground on which the evidence is admissible, since a ground not identified at trial will not provide a basis for reversal on appeal.’ ”) (citation omitted). The district court did not abuse its discretion in excluding this testimony.
Finally, Rodriguez-Rangel claims his 51-month sentence is unreasonable. We review all sentencing decisions for abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008). The district court considered the factors listed in 18 U.S.C. § 3553(a), including Rodriguez-Rangel’s history and characteristics, and gave sufficient explanation of its reasoning. See 18 U.S.C. § 3553(a)(1); Carty, 520 F.3d at 992. The within-guidelines sentence imposed was procedurally and substantively reasonable.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471522/ | PER CURIAM: *
Maria Guadalupe Mendoza-Marquez and her three children, Fernando Alonso Monterosa-Mendoza, Jorge Alberto Alfa-ro-Mendoza, and Edgargo Alexander Ca-lero-Mendoza, petition this court for a review of the decision of the Board of Immigration Appeals (BIA) which overturned the Immigration Judge’s grant of asylum and ordered the petitioners removed to El Salvador. The BIA concluded that the petitioners had not met their burden of demonstrating eligibility for relief because they failed to demonstrate that membership in their family group, which has been targeted by the Mara Salvatrucha gang in El Salvador, constituted membership in a “particular social group” under 8 U.S.C. § 1101(a)(42)(A). The BIA concluded that the petitioners’ family lacked the required social visibility to qualify as a particular social group. Accordingly, the BIA concluded that the petitioners had not demonstrated the required nexus between their well-founded fear of persecution and a protected ground.
The Secretary of Homeland Security or Attorney General is authorized, in his discretion, to grant asylum to aliens who qualify as refugees. 8 U.S.C. § 1158(b)(1). An alien is a “refugee” when he is outside of his country and “is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” § 1101(a)(42)(A).
The BIA has provided the following factors to consider when determining whether a “particular social group” exists: (1) “whether the group’s shared characteristic gives the members the requisite social visibility to make them readily identifiable in society” and (2) “whether the group can be defined with sufficient particularity to delimit its membership.” In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 69 (BIA 2007). A factor in determining social visibility “is whether the members of the group are perceived as a group by society.” Matter of S-E-G-, 24 I. & N. Dec. 579, 586 (BIA 2008). The BIA rejected arguments that “persons resistant to gang membership” and “[Salvadoran] youths who have resisted gang recruitment, or family members of such Salvadoran youth” constitute social groups, after determining that the proposed groups lacked the required social visibility. In re E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2007); S-E-G-, 24 I. & N. Dec. at 582, 587. We will defer to the BIA’s construction of a statute that it administers if the BIA’s interpretation is reasonable. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
The petitioners argue that their family membership places them in a particular social group because their family membership is an immutable trait. The BIA’s holding did not rest on a finding regarding the proposed group’s immutability. The petitioners do not address the issue of social visibility or any of the administrative cases cited by the BIA in its analysis of the subject. The petitioners have therefore failed to meaningfully challenge the BIA’s conclusion that membership in their family does not constitute membership in a “particular social group” for asylum. Conclusional and inadequate*33ly briefed arguments are waived. See Chambers v. Mukasey, 520 F.3d 445, 448 n. 1 (5th Cir.2008); Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir.2003).
Even if we consider the petitioners’ argument, it lacks merit. The petitioners have not demonstrated membership in a particular social group or that the BIA’s interpretation of that term is unreasonable. See Ramos-Lopez v. Holder, 563 F.3d 855, 859-62 (9th Cir.2009); Santos-Lemus v. Mukasey, 542 F.3d 738, 745-47 (9th Cir.2008). The petition for review is DENIED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471527/ | WHITE, Circuit Judge,
dissenting.
I respectfully dissent, and would affirm.
The order of summary suspension ordered that Lai’s license to practice medicine in Michigan “shall be and hereby is summarily suspended commencing the date this order is served upon Respondent.” The order was served on Lai on March 31, 1997. On that same day, a circuit court stayed the order until it could hold a hearing. On April 7, the court entered an amended order staying the order of summary suspension until after hearing and decision by the administrative agency. On July 30, an Administrative Hearing Officer signed a stipulated order lifting the order of summary suspension and restricting Lai’s authority to prescribe and dispense narcotic medication, pending a final determination by the Disciplinary authority. The July 30 order was amended on August 28. The Board of Medicine Disciplinary Subcommittee entered its Final Order on January 17, 2003, suspending Lai’s license for six months and one day. The order stated “this order shall be effective 30 days from the date” of signing.
On the basis of these facts, the district judge concluded that the circuit court’s order staying the order of summary suspension operated to preserve the status quo, “the last, uneontested status preceding commencement of the eontroversy[,]” Lal v. United States Life Ins. Co., No. 1:05-CV-853, 2006 WL 3542670, at *3 (W.D.Mich. Dec.7, 2006), citing Blaylock v. Cheker Oil Co., 547 F.2d 962, 965 (6th Cir.1976), and that Lai’s license was not effectively suspended on March 31, 1997. Thus, the court concluded, the policy remained in effect until February 16, 2003, the effective date of the suspension. The majority rejects this reasoning, concluding instead that Lai’s license was suspended from the time the order of summary suspension was served until the stay order was entered, and that this suspension triggered the termination clause. I would affirm the district court.
The policy states:
TERMINATION — Date Insurance Ends
Your insurance will end on the earliest of:
1. the date the group policy ends;
2. the end of the period for which the last premium has been paid by you;
3. the date you retire;
4. the certificate anniversary coinciding with or next following the date you attain age 75;
5. the date you cease to be an Eligible Member and not Actively at Work;
6. upon the suspension or revocation in any state of your license to practice medicine as a result of a criminal act, ethical violation, or gross malpractice; or upon your surrender of your li*149cense to practice medicine in any state prior to, during, or in lieu of any medical licensure board inquiry, investigation or other action pertaining to a criminal act, ethical violation, or gross malpractice.
Although the terms “actively at work” and “retired” are defined by the policy, “suspension” and “revocation” are not. Nevertheless, all the terminating events contemplate either that the policy expires or that the insured is no longer covered due to age or inactivity. It is not clear that Lai’s license was suspended on March 31, 1997, even for a brief period of time.
Although the policy does not use the term “final suspension,” it also does not use the term “take action to suspend.” The term “suspension” connotes that one’s privilege to practice has been abrogated or withheld. Had the Board of Medicine decided on a lesser sanction in its Final Order, one could certainly have debated whether Lai’s license was ever suspended at all under the policy.
The order of summary suspension stated that Lai’s license would be suspended “commencing the date [the] order is served;” it did not state “upon service.” A court of competent jurisdiction stayed the order the same date it was served. Thus, even by the terms of the orders, it is unclear whether Lai’s license was ever suspended. The district court concluded that the effect of the stay was to preserve “the status quo so that Lai’s license was not suspended pursuant to the Order of Summary Suspension.” Lai, 2006 WL 3542670, at *3. Given the timing of the orders, this was a sound conclusion. While the Board of Medicine took action to summarily suspend Lai’s license, that action was stayed by the court. Notwithstanding the order of summary suspension, as a consequence of the circuit court’s order, Lai’s license continued to be in effect until it was suspended on February 16, 2003. I would affirm. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471306/ | MEMORANDUM **
Candido Vergara Trujillo, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Reyes v. Ashcroft, 358 F.3d 592, 595 (9th Cir.2004), and review de novo claims of due process violations, Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006). We deny in part and dismiss in part the petition for review.
*403The BIA did not abuse its discretion in denying Vergara Trujillo’s motion to reopen claiming ineffective assistance of counsel because he did not satisfy the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the alleged ineffective assistance is not “obvious and undisputed on the face of the record.” See Reyes, 858 F.3d at 597. It follows that Vergara Trujillo has not shown a due process violation. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to establish a due process violation).
We lack jurisdiction to review the BIA’s order summarily dismissing Vergara Trujillo’s appeal because the petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471308/ | *404MEMORANDUM **
Leticia Morales de Bolanos and Pedro Bolanos Yllescas, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen or reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to reconsider because the motion failed to identify any errors of fact or law in the BIA’s April 10, 2006, order denying their motion to reopen. See 8 C.F.R. § 1003.2(b)(1). Petitioners have waived any challenge to the BIA’s conclusion that, construed as a motion to reopen, the motion was numerically barred. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471312/ | MEMORANDUM **
Andrew Winston Alies and his family (“Petitioners”), natives and citizens of Sri Lanka, petition for review of the Board of Immigration Appeals’ (“BIA”) November 15, 2005 per curiam decision dismissing Petitioners’ appeal from an Immigration Judge’s (“IJ”) June 28, 2004 decision that denied Petitioners’ applications for asylum, withholding of removal, and protection under the United Nations’ Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, as amended by section 106 of the Real ID Act of 2005, 119 Stat. 231, 305, and we deny the petition for review.1
To be eligible for asylum, a petitioner must show past persecution based on a protected ground and an objectively reasonable fear of future persecution. See 8 U.S.C. § 1101(a)(42)(A); Padash v. INS, 358 F.3d 1161, 1166 (9th Cir.2004). Here, it is questionable whether Alies has dem*407onstrated an objective basis for his claim of past persecution because he continued to reside in Sri Lanka for ten years after his brother’s assassination. The only claimed persecution during this period by the Janatha Vimukthi Perama (“JVP”) political party were telephone threats that were never carried out.
Even if Alies is determined to have demonstrated past persecution, thus giving rise to a presumption of future persecution, the record rebuts the presumption. See 8 C.F.R. § 1208.13(b)(l)(i)(A); Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir.2004). The only reason proffered by Alies for his alleged persecution by the JVP was his support for the government. However, the JVP has been part of the Sri Lankan coalition government since 2001. See Kazlauskas v. INS, 46 F.3d 902, 906 n. 3 (9th Cir.1995) (noting conditions in the country of origin are relevant to the likelihood of future persecution). Thus, even accepting Alies’ claims of past persecution by the JVP, we conclude that he has failed to show a reasonable probability of future persecution because he has not shown the JVP continues to oppose citizens who support the government.
Alies also alleges that he fears future persecution because he is Christian. Alies, however, did not present any evidence that he or his family were persecuted because of their religion while in Sri Lanka. Moreover, the evidence of two church burnings in Sri Lanka is too attenuated to compel a finding of reasonable fear of religious persecution on Petitioners’ part.
In sum, Petitioners have failed to show that the record compels a reversal of the BIA determination that they do not have a reasonable fear of future persecution. See Katana v. INS, 232 F.3d 1107, 1112 (9th Cir.2000) (“[T]he applicant must show that the evidence not only supports, but compels the conclusion that the asylum decision was incorrect”).
Because Petitioners have not shown they should be granted asylum, they do not meet the standard for withholding of removal, as the evidence in the record does not support a clear probability that they will face political or religious persecution if returned to Sri Lanka. See de Leon-Barrios v. INS, 116 F.3d 391, 394 (9th Cir.1997) (stating that when petitioners fail to satisfy the standard for asylum, they necessarily fail to satisfy the more rigorous standard for withholding of deportation). Also, Petitioners are not entitled to relief under the CAT because they have not presented any evidence of torture or likelihood of future torture. See Zhang v. Ashcroft, 388 F.3d 713, 722 (9th Cir.2004).
Finally, the BIA did not abuse its discretion in denying Petitioners’ motion to remand the matter to the IJ because Petitioners’ proffered evidence regarding changes in general country conditions in Sri Lanka did not contain information directly affecting Petitioner’s claim for relief. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005) (the BIA does not abuse its discretion if it provides a reasoned explanation for its actions). Moreover, the BIA made clear that the additional family certificates Petitioners sought to present did not add information to the record that was not already available to the IJ.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the parties are familiar with the facts of this case, we do not restate them here except as necessary to explain our disposition. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471314/ | MEMORANDUM **
Javier Tizón Puig Jr., a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. We dismiss the petition for review.
We lack jurisdiction to review the agency’s discretionary determination that Puig’s aggravated felony conviction for “lewd or lascivious acts with a child under 14 years of age” in violation of California Penal Code section 288(a) is a particularly serious crime rendering him ineligible for withholding of removal. See 8 U.S.C. § 1252(a)(2)(B)(ii); Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir.2001).
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471316/ | MEMORANDUM **
Mony Neth, a native and citizen of Cambodia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and reissue its prior order denying his motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo questions of law. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Neth’s motion as untimely because it was filed over 90 days after the BIA issued its final administrative order, see 8 C.F.R. § 1003.2(c)(2), and Neth failed to demonstrate that he qualified for any of *410the regulatory exceptions to the time limit on filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(i)-(iv).
We do not consider the equitable tolling contentions Neth set forth for the first time in his reply brief because he did not raise them in his opening brief. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996) (per curiam).
We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen removal proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
Neth’s contention that the REAL ID Act’s (“RIDA”) repeal of habeas jurisdiction over final removal orders violates the Suspension Clause is foreclosed by our precedent. See Singh v. Mukasey, 533 F.3d 1103, 1109 (9th Cir.2008) (holding that aliens such as petitioner, who were previously without a right to judicial review of a removal order except by habeas corpus, had 30 days from the date of the RIDA’s enactment to file a petition for review).
To the extent Neth seeks review of the BIA’s April 22, 2005, order denying his motion to reconsider, we lack jurisdiction because this petition for review is not timely as to that order. See 8 U.S.C. § 1252(b)©; Singh, 533 F.3d at 1110.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471318/ | MEMORANDUM ***
Mario Rodriguez-Rangel appeals his conviction for assaulting a federal officer under 18 U.S.C. § 111 and the resulting 51-month sentence. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.
Rodriguez-Rangel first argues the district court erred by admitting improper lay and expert witness opinion testimony. Because Rodriguez-Rangel’s counsel did not object to this evidence at trial, we review only for plain error. See United States v. Olano, 507 U.S. 725, 735-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
Rodriguez-Rangel claims the district court erred by admitting the testimony of Officers Ferguson and McNeel because neither officer was qualified to offer a medical opinion. The officers each testified that they had previously observed people having seizures and that Rodriguez-Rangel’s behavior was inconsistent with their previous observations. Assuming these statements constituted lay opinions, they were “rationally based on the perception of the witnesses]” and “helpful to a clear understanding of the witness[es]’ testimony or the determination of a fact in issue.” Fed.R.Evid. 701. The district court did not plainly err in admitting them.
*412Rodriguez-Rangel also claims the district court erred by allowing Officers Ferguson and McNeel, and medical expert witness Dr. Fernandez, to testify to the ultimate issue: whether Rodriguez-Rangel formed the requisite intent to assault. All three witnesses testified that RodriguezRangel’s behavior during the altercation was inconsistent with the symptoms of a seizure. They did not “state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto.” Fed. R. Evid. 704(b). That inference was properly left for the jury. See United States v. Cohen, 510 F.3d 1114, 1125-26 (9th Cir.2007). Moreover, even if admitting this testimony was error, Rodriguez-Rangel cannot demonstrate prejudice to his substantial rights in light of the other evidence admitted against him at trial. See Olano, 507 U.S. at 734, 113 S.Ct. 1770. The district court did not plainly err in admitting this testimony.
Rodriguez-Rangel next argues the district court erred in refusing to allow the defense to introduce the victim’s allegedly prior inconsistent statements regarding the offense. The defense asked Special Agent Sloan, who investigated the event and prepared the case for prosecution, whether Officer McNeel’s testimony at trial was the same as his statements during the investigation. The district court sustained the prosecution’s hearsay objection. We review a district court’s evidentiary rulings for abuse of discretion. United States v. Fleming, 215 F.3d 930, 938 (9th Cir.2000).
The hearsay statement elicited was not admissible under Federal Rule of Evidence 801(d) because McNeel’s original statement made out of court was not under oath and subject to the penalty of perjury. The district court properly sustained the objection on this ground. Rodriguez-Ran-gel suggests on appeal the prior statement should have been admitted for the purpose of impeaching Officer McNeel. However, defense counsel did not lay a proper foundation by affording Officer McNeel “an opportunity to explain or deny the statement.” Fed. R. Evid. 613(b). Nor did counsel proffer the allegedly impeaching information. Therefore, the argument is waived. See United States v. Boulware, 558 F.3d 971, 974 (9th Cir.2009) (“Counsel must also ‘articulate every ground on which the evidence is admissible, since a ground not identified at trial will not provide a basis for reversal on appeal.’ ”) (citation omitted). The district court did not abuse its discretion in excluding this testimony.
Finally, Rodriguez-Rangel claims his 51-month sentence is unreasonable. We review all sentencing decisions for abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008). The district court considered the factors listed in 18 U.S.C. § 3553(a), including Rodriguez-Rangel’s history and characteristics, and gave sufficient explanation of its reasoning. See 18 U.S.C. § 3553(a)(1); Carty, 520 F.3d at 992. The within-guidelines sentence imposed was procedurally and substantively reasonable.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471524/ | ROGERS, Circuit Judge.
Niranjan Lai obtained a judgment that U.S. Life wrongfully refused to pay him disability benefits under an insurance contract. U.S. Life appeals, claiming that coverage under the contract terminated when Michigan briefly suspended Lai’s license to practice medicine several years before the onset of Lai’s disability. Because that conclusion is required by the most natural reading of the contract, judgment for Lai was not warranted.
I.
Lai, a nephrologist (kidney doctor), is a citizen of Michigan. U.S. Life is a New York corporation with principal place of business in New York. Lai’s membership in the AMA made him eligible for a disability insurance policy underwritten by U.S. Life, under which coverage began in 1983. The insurance policy required U.S. Life to pay income replacement benefits if Lai became disabled while the policy was in force.
The policy provided that coverage would end “upon the suspension or revocation in any state of [Lai’s] license to practice medicine as a result of a criminal act, ethical violation, or gross malpractice.... ” The insurance contract also stated that it was governed by Illinois law.
In April 1996, Michigan police received a tip that Lai might be wrongfully prescribing painkillers. Throughout the remainder of 1996 an undercover officer posed as a patient and repeatedly requested that Lai give him prescriptions for Vicodin. By the time Lai finally refused to continue prescribing Vicodin for the undercover officer in December, Lai had written prescriptions for a total of 500 Vicodin pills, notwithstanding statements from the undercover officer such as that the officer *146“just wanted to get some more Vicodin,” that his pain was gone but he “just liked having [the Vicodin] around,” and even that the officer was selling the drug for $5 per pill.
On March 27, 1997, Michigan’s Department of Consumer & Industry Services, Board of Medicine and Disciplinary Subcommittee ordered that Lai’s license to practice medicine in Michigan be summarily suspended. The order was to take effect “commencing the date [it was] served upon” Lai. Shortly after service of the order on March 81, Lai petitioned for and received an order from the county circuit court that stayed the suspension order subject to limits on Lai’s ability to prescribe narcotics.
Michigan pursued criminal charges, and eventually obtained a jury verdict against Lai for “three counts of delivery of a prescription form” and a sentence of eighteen months of probation. The conviction occurred in March 1999; the Michigan Court of Appeals affirmed in November 2000.
After Lai’s conviction, the Michigan medical regulatory establishment conducted various administrative proceedings. Eventually, on January 17, 2003, the Michigan Board of Medicine Disciplinary Subcommittee issued an order that fined Lai $5000 and suspended his license to practice medicine for six months and one day, effective 30 days after the order was signed. This suspension took effect on February 16, 2003. The medical licensing board restored Lai’s license on October 9, 2003.
Meanwhile, Lai’s chronic pancreatitis worsened. Serious attacks sent him to hospital emergency rooms in 1999, 2000, and 2001. Lai testified that his pancreati-tis was under control from 2001 until early 2003. But in January 2003 his condition took a turn for the worse, and at the beginning of February his condition became so bad that he ceased working. Lai’s physician found that Lai was disabled from practicing medicine as of February 4, 2003.
Lai filed for disability benefits under his insurance contract with U.S. Life. U.S. Life concluded that coverage had terminated because of the 1997 suspension and refused to pay, though it did refund the premiums Lai had paid for coverage since 1997.
Lai filed a two-count complaint against U.S. Life in Michigan court. Lai claimed that U.S. Life breached the insurance contract by withholding payment for his valid claim of disability and that its failure to pay violated Michigan’s Uniform Trade Practices Act. U.S. Life removed in December 2005. In December 2006, the district court denied U.S. Life’s motion for summary judgment and found that as a matter of law Lai’s license to practice medicine was first suspended so as to terminate the insurance contract on February 16, 2003, rather than in 1997.
The district court conducted a bench trial in June 2007. The court concluded that Lai became unable to work as a physician as of February 4, 2003. The court further found that U.S. Life breached its contract because Lai met all necessary conditions under the policy, including that he was under the regular care of a physician for his disability. The court held that U.S. Life was not liable under the Michigan Uniform Trade Practice Act because, under then-governing precedent, claims “reasonably in dispute” were not subject to the 12% interest penalty provided by that Act for late payment.
Lai appeals, claiming that a subsequent change in Michigan law requires that he receive a 12% interest rate on his judgment. U.S. Life also appeals, claiming that Lai was not under the regular care of a physician for his disability as the con*147tract requires, and that the contract terminated in 1997 when Michigan suspended Lai’s license. The last issue is dispositive.
II.
The 1997 suspension of Lai’s license, though short-lived, was sufficient to trigger the termination clause in the contract and thus requires judgment for U.S. Life.
The contract term at issue provides that coverage ends “upon the suspension or revocation in any state of [Lai’s] license to practice medicine as a result of a criminal act, ethical violation, or gross malpractice .... ”
The 1997 suspension went into effect after Lai received service of the order of summary suspension on March 81, 1997. Later that day, the state circuit court entered an order:
Ex Parte Order Staying the Order of Summary Suspension
This matter having come before the Court on a Petition for Ex Parte Order to Stay the Order of Summary Suspension and the Court having been fully advised in the premises, IT IS HEREBY ORDERED as follows:
The Order of Summary Suspension filed in the above captioned matter on March 27, 1997, bearing Complaint Number 43 97 0316 00 is hereby stayed until April H, 1997 at 1:30 p.m. heaving on this petition. Petitioner shall not prescribe any narcotic or pain medicine, [italicized material handwritten]
All further proceedings until 2003 did not result in the suspension of Lai’s license. Such proceedings as occurred in other agencies do not shed light on the legal reasoning behind the circuit court order.
The unambiguous language of the contract said that Lai’s contract terminated once his license was suspended for ethical violations. Nothing in the language suggests that an extremely short period of suspension is not sufficient to trigger termination.
Lai does not argue that the contract language is ambiguous, though if the language were ambiguous it would be interpreted in his favor. See Aurelius v. State Farm Fire & Cas. Co., 384 Ill.App.3d 969, 323 Ill.Dec. 739, 894 N.E.2d 765, 769 (2008). Rather, Lai argues that the language is unambiguous in his favor. But Lai’s claim that the state merely “took action” to suspend his license in 1997 rather than “suspending” it cannot be reconciled with the unambiguous meaning of those terms, particularly given that the contract refers to both suspension and revocation. Lai’s argument implies that only revocation would terminate coverage, a position not reconcilable with the language of the contract.
Lai argues that the provision should be read as not immediately terminating coverage if the state suspends a license wrongfully or without legal justification. But whether or not such a liberal reading is warranted, in this case Lai had committed ethical and criminal violations before the 1997 suspension. The only thing that suggests that the 1997 suspension was improper is the state court’s stay of that suspension — but that court did not provide its reasoning in staying the suspension, and the record as a whole provides no reason to conclude that the state acted wrongfully by suspending Lai’s license in 1997.
In refusing U.S. Life’s motion for summary judgment below, the district court evidently concluded that the state court stayed the suspension nunc pro tunc, effectively “unsuspending” Lai retroactively for the few hours between the suspension taking effect and the entry of the stay. But *148the order did not explicitly say that it acted retroactively and gave no reason to assume that it so acted. Even if the court were to have issued its order with the intent of retroactively shielding any unlicensed practice of medicine Lai may have committed on March 31, it is hardly clear that the court could ex parte reinstate Lai’s coverage with U.S. Life in contravention of the terms of his contract.
Because coverage terminated once the state suspended Lai’s license, the district court should have granted summary judgment to U.S. Life. The remaining issues raised on appeal and cross-appeal are therefore moot.
III.
For these reasons, we reverse the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471525/ | WHITE, Circuit Judge,
dissenting.
I respectfully dissent, and would affirm.
The order of summary suspension ordered that Lai’s license to practice medicine in Michigan “shall be and hereby is summarily suspended commencing the date this order is served upon Respondent.” The order was served on Lai on March 31, 1997. On that same day, a circuit court stayed the order until it could hold a hearing. On April 7, the court entered an amended order staying the order of summary suspension until after hearing and decision by the administrative agency. On July 30, an Administrative Hearing Officer signed a stipulated order lifting the order of summary suspension and restricting Lai’s authority to prescribe and dispense narcotic medication, pending a final determination by the Disciplinary authority. The July 30 order was amended on August 28. The Board of Medicine Disciplinary Subcommittee entered its Final Order on January 17, 2003, suspending Lai’s license for six months and one day. The order stated “this order shall be effective 30 days from the date” of signing.
On the basis of these facts, the district judge concluded that the circuit court’s order staying the order of summary suspension operated to preserve the status quo, “the last, uneontested status preceding commencement of the eontroversy[,]” Lal v. United States Life Ins. Co., No. 1:05-CV-853, 2006 WL 3542670, at *3 (W.D.Mich. Dec.7, 2006), citing Blaylock v. Cheker Oil Co., 547 F.2d 962, 965 (6th Cir.1976), and that Lai’s license was not effectively suspended on March 31, 1997. Thus, the court concluded, the policy remained in effect until February 16, 2003, the effective date of the suspension. The majority rejects this reasoning, concluding instead that Lai’s license was suspended from the time the order of summary suspension was served until the stay order was entered, and that this suspension triggered the termination clause. I would affirm the district court.
The policy states:
TERMINATION — Date Insurance Ends
Your insurance will end on the earliest of:
1. the date the group policy ends;
2. the end of the period for which the last premium has been paid by you;
3. the date you retire;
4. the certificate anniversary coinciding with or next following the date you attain age 75;
5. the date you cease to be an Eligible Member and not Actively at Work;
6. upon the suspension or revocation in any state of your license to practice medicine as a result of a criminal act, ethical violation, or gross malpractice; or upon your surrender of your li*149cense to practice medicine in any state prior to, during, or in lieu of any medical licensure board inquiry, investigation or other action pertaining to a criminal act, ethical violation, or gross malpractice.
Although the terms “actively at work” and “retired” are defined by the policy, “suspension” and “revocation” are not. Nevertheless, all the terminating events contemplate either that the policy expires or that the insured is no longer covered due to age or inactivity. It is not clear that Lai’s license was suspended on March 31, 1997, even for a brief period of time.
Although the policy does not use the term “final suspension,” it also does not use the term “take action to suspend.” The term “suspension” connotes that one’s privilege to practice has been abrogated or withheld. Had the Board of Medicine decided on a lesser sanction in its Final Order, one could certainly have debated whether Lai’s license was ever suspended at all under the policy.
The order of summary suspension stated that Lai’s license would be suspended “commencing the date [the] order is served;” it did not state “upon service.” A court of competent jurisdiction stayed the order the same date it was served. Thus, even by the terms of the orders, it is unclear whether Lai’s license was ever suspended. The district court concluded that the effect of the stay was to preserve “the status quo so that Lai’s license was not suspended pursuant to the Order of Summary Suspension.” Lai, 2006 WL 3542670, at *3. Given the timing of the orders, this was a sound conclusion. While the Board of Medicine took action to summarily suspend Lai’s license, that action was stayed by the court. Notwithstanding the order of summary suspension, as a consequence of the circuit court’s order, Lai’s license continued to be in effect until it was suspended on February 16, 2003. I would affirm. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471319/ | MEMORANDUM *
After a jury verdict for the defendant Anchorage Police Department on the plaintiff Carolyn Mitchell’s § 1983 claim, Mitchell made a renewed motion for summary judgment under Rule 50(b). The district court denied the motion orally. Mitchell’s opening brief before us failed to indicate precisely that she appeals the post-verdict summary judgment denial. Failure to raise an issue in an opening brief does not preclude review “if the failure ... did not prejudice the defense of the opposing party.” Laboa v. Calderon, 224 F.3d 972, 985 (9th Cir.2000) (quoting United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992)). The Police Department’s brief reveals that it was not prejudiced by *414Mitchell’s imprecision. We review her appeal on the merits.
Mitchell’s federal Fourth Amendment rights are unaltered by state law. Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 1604-05, 170 L.Ed.2d 559 (2008). That the Police Department falsely arrested Mitchell under Alaska state law does not mean she was arrested in violation of the Fourth Amendment.
In analyzing an arrest, the trier of fact considers the totality of circumstances, including “not only how intrusive the stop was, but also whether the methods used [by police] were reasonable given the specific circumstances.” Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir.2002) (quoting Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir.1996)). The Police Department was responding to an armed bank robbery that occurred just minutes earlier. Mitchell’s physical characteristics were not identical to those of the suspect, but were a rough match. She was detained only as long as was necessary for police to complete the show-up. See United States v. Torres-Sanchez, 83 F.3d 1123, 1129 (9th Cir.1996). The district court did not err in finding that she was not entitled to summary judgment.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471321/ | MEMORANDUM **
Steven Stockwell (“Appellant”) appeals the district court’s order affirming the Commissioner of Social Security’s final decision that Appellant was not disabled under Title 2 of the Social Security Act. Appellant makes several challenges to the Administrative Law Judge’s (“ALJ”) determination that he was not disabled. We address each in turn.
First, Appellant asserts that the ALJ erred in finding his testimony not entirely credible as to his incapacity to work. Because the evidence demonstrates that Appellant’s treatment was generally successful in controlling his pain, that Appellant’s testimony as to his limitations was inconsistent with his daily activities, and that Appellant’s testimony as to his abilities to lift, sit, stand, and walk was inconsistent with his assertion he could not work, the ALJ’s determination was sufficiently supported by the- record and free from legal error. See Tommasetti v. Astrue, 533 F.3d 1035, 1038-40 (9th Cir.2008).
Second, Appellant argues that the ALJ erred in evaluating the medical evidence, specifically, the September 20, 2006 opinion by Appellant’s physician concluding that Appellant could not work in any available vocation as well as a physical therapist’s report that Appellant would need to shift positions “at will.” Because the ALJ gave clear and convincing reasons for rejecting as inconsistent the opinion of the physician, who had previously indicated that Appellant could engage in light work and had managed his pain, we reject *416Appellant’s argument that there was not substantial evidence to support the ALJ’s interpretation of the medical evidence. See Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir.2002) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989)). In addition, even if it were error for the ALJ not to include the “at will” limitation of Appellant’s ability, it was harmless error and would not have changed the ALJ’s overall determination. See Carmickle v. Comm’r., Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.2008).
Appellant asserts that because the ALJ erred in evaluating his testimony and the evidence from his physician and physical therapist, the ALJ’s determination of his residual functional capacity, Appellant’s ability to perform past relevant work, and his ability to perform other jobs in the national market were also improper. However, the ALJ properly made these determinations after taking into account those limitations of Appellant for which there was credible record support. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.2005).
Accordingly, we AFFIRM the judgment.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471325/ | MEMORANDUM **
Defendant-appellant Jeriehmie J. Frane-tich appeals the sentence imposed upon his plea of guilty to being a felon in possession of a firearm. Because the district court did not err in sentencing Franetich, we affirm.
On May 24, 2007, Franetich pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). [ER 84, 90] At sentencing, the district court calculated a total adjusted offense level of 19, based in part on the court’s conclusion that a 2003 conviction for felony “riot-domestic violence” under R.C.W. § 9A.84.010 constituted a prior “crime of violence” under the Sentencing Guidelines. After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the district court ultimately imposed a sentence of 102 months imprisonment. [ER 55-61] Franetich timely appealed his sentence, arguing that his 2003 conviction for felony riot under R.C.W. § 9A.84.010 was not a “crime of violence” for sentencing purposes. We review de novo the district court’s determination that Franetich’s pri- or conviction qualifies as a “crime of violence” under the Guidelines. United States v. Rodriguez-Guzman, 506 F.3d 738, 740-41 (9th Cir.2007) (citation omitted).
In determining whether a state criminal conviction constitutes a crime of violence under the Guidelines, we apply a categorical and, where appropriate, a modified categorical approach. See generally Perez v. Mukasey, 512 F.3d 1222, 1225-27 (9th Cir.2008). Under the categorical approach, a court “compare[s] the elements of the statute of conviction ... to the generic crime ... and then [ ] determine^] whether the ‘full range of conduct covered by the criminal statute falls within the meaning of that term.’ ” Perez, 512 F.3d at 1225 (quoting Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002)) (internal quotation marks and brackets omitted). Under the modified categorical approach, “where a statute of conviction is divisible into several different *418crimes, one or more of which may constitute a ‘crime of violence,’ ” Perez, 512 F.3d at 1226 (quoting Navarro-Lopez v. Gonzales, 508 F.3d 1063, 1073 (9th Cir.2007) (en banc)), a court “look[s] beyond the statute of conviction and considers] ‘a narrow specified set of documents that are part of the record of conviction’ to determine whether the defendant was convicted of the necessary elements of the generic crime.” Perez, 512 F.3d at 1226 (quoting Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004)).
Washington’s felony riot statute does not define a crime of violence under the categorical approach. R.C.W. § 9A.84.010(1) provides that “[a] person is guilty of the crime of riot if, acting with three or more other persons, he or she knowingly and unlawfully uses or threatens to use force, or in any way participates in the use of such force, against any other person or against property” (emphasis added).1 By contrast, under the Guidelines, “[t]he term ‘crime of violence’ means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(l). Because a defendant can be convicted of felony riot under R.C.W. 9A.84.010 for using force “against property,” Washington’s felony riot statute is categorically over-broad with respect to the Guidelines definition of crime of violence, which subsumes only ciimes “ha[ving] as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(l) (emphasis added).
Where a crime of conviction is over-broad under the categorical approach, a court may apply the modified categorical approach “where a statute of conviction is divisible into several different crimes, one or more of which may constitute a ‘crime of violence.’ ” Perez, 512 F.3d at 1226 (quoting Navarro-Lopez, 503 F.3d at 1073). Washington’s riot statute is so divisible, as it encompasses (1) crimes involving force against persons, and (2) crimes involving force against property, respectively. Thus, the modified categorical approach is appropriate here.
In applying the modified categorical approach, a court is “generally limited to reviewing the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding made by the trial judge to which the defendant assented.” Perez, 512 F.3d at 1226. Here, the charging document underlying Franetich’s 2003 conviction states that “on or about August 05, 2003, being armed with a beer can, a deadly weapon, while acting with three or more persons, [Franetich] did knowingly and unlawfully, use and threaten to use force against [the victim], a human being.” [SER 3] Franetich also made a written statement as part of his guilty plea stating: “[The victim] and I were arguing. She burned my face with a cigarette. I threw a can that hit her in the face. She then hit me numerous times with a baseball bat.” [SER 10] These and other documents before the district court at sentencing conclusively demonstrate that when Franetich was convicted of felony riot in 2003, he was convicted for directing violent force at a person — to wit, the throwing of a full can of beer at a young woman’s head. Frane-tich’s 2003 conviction therefore qualifies as *419a prior felony “crime of violence” under the Guidelines.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. R.C.W. § 9A.84.010(2)(b) adds that "[t]he crime of riot is a class C felony if the actor is armed with a deadly weapon.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471326/ | MEMORANDUM **
Michelle Wing appeals from the district court’s judgment revoking her supervised release and imposing a 3-month sentence of imprisonment, plus a new 33-month term of supervised release. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Wing’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No *420pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471328/ | MEMORANDUM *
Reno Police Officer Brent Coss appeals the district court order denying him qualified immunity for arresting plaintiff Robert Wheeler. The district court granted partial summary judgment to Wheeler, holding that there was no probable cause for his arrest and that Coss was not entitled to qualified immunity. We agree with the district court and, reciting the facts only as necessary, affirm its decision.
Coss argues that he had probable cause to arrest Wheeler for harassment and, even if probable cause was lacking, he was entitled to qualified immunity because it would not have been clear to a reasonable officer that the arrest was unlawful.
“Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested.” Rodis v. City & County of San Francisco, 558 F.3d 964, 969 (9th Cir.2009) (internal quotation omitted). “In establishing probable cause, officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but must independently investigate the basis of the witness’ knowledge or interview other witnesses.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001). In Nevada, a person is guilty of harassment if he or she, without lawful authority, knowingly threatens another person with future bodily injury, and the targeted person is placed in reasonable fear that the threat will be carried out. Nev.Rev.Stat. § 200.571(1). Thus, to have probable cause to arrest Wheeler for harassment, Coss needed trustworthy evidence derived from independent investigation that Wheeler had threatened his wife, Tina Brown.
The district court listed several specific facts upon which Coss based his probable cause determination. Coss knew that Brown had called the police and reported that Wheeler had said he was coming home to “deal with her.” He also knew from the caller ID box she showed him that Wheeler had indeed called the house that day. He observed that she was behaving like she was actually scared of Wheeler, and Brown told Coss that Wheeler had been acting unstable and had access to guns. However, in the middle of Coss’s discussions with Brown, he received a call from dispatch informing him that Wheeler was at the local police substation requesting a police escort home to keep the peace. After a brief discussion with Wheeler at the substation, in which he observed that Wheeler seemed very upset, Coss arrested Wheeler.
The district court noted that Coss “admitted he had no idea who was telling the truth” and that he failed to investigate Wheeler’s purported instability, access to firearms, or alleged statement to his wife. Based on the totality of the circumstances, the district court concluded that Coss lacked probable cause. We agree. The *422•record contains no evidence that Coss or any of the other police officers ever asked Wheeler whether he actually made the alleged threatening statement. Even if Wheeler’s statement to Brown that he was coming home to “deal with her” could constitute a threat of future harm, Wheeler’s subsequent act of going to the substation-to seek a police escort to help keep the peace between him and Brown cast significant doubt on Brown’s allegations that the statement was a threat, that Wheeler was violent, or that her fear of him was reasonable. Without further investigation revealing facts indicating a crime had been committed, Coss did not have probable cause to arrest Wheeler for harassment.
We also must consider whether despite the lack of probable cause, Coss’s belief that he had probable cause was reasonable. See Rodis, 558 F.3d at 970. Coss argues that a reasonable officer would have thought he had probable cause to arrest Wheeler for harassment or violation of a temporary protective order. In light of the ambiguous, allegedly threatening language and Wheeler’s request for police assistance to avoid violence, no reasonable police officer would have thought there was probable cause to arrest Wheeler for harassment. In regard to the reasonableness of arrest for violation of a protective order, Brown provided Coss paperwork that included an order scheduling a hearing to determine whether a protective order should issue. The hearing was scheduled to occur two days after Coss made the arrest. No reasonable officer would have concluded he had probable cause to arrest a person for violating a protective order that did not exist. See Beier v. City of Lewiston, 354 F.3d 1058, 1069-70 (9th Cir.2004) (requiring an arresting officer to read a protective order or ascertain its terms from a law enforcement source before making an arrest based on the order).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471329/ | HAWKINS, Circuit Judge,
dissenting:
Because I believe that Officer Coss had probable- cause to arrest Wheeler for the crime of harassment, I respectfully dissent.
“The test for whether probable cause exists is whether at the moment of arrest the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man believing that the [accused] had committed ... an offense.” United States v. Jensen, 425 F.3d 698, 704 (9th Cir.2005) (internal citation omitted). Here, Officer Coss had reason to believe that Wheeler had knowingly threatened to cause bodily injury to Brown and had put Brown in reasonable fear that the threat would be carried out. See Nev.Rev.Stat. § 200.571; Reno Mun.Code § 8.08.025.
Although ambiguous, Wheeler’s statement he was “going to come home and take care of [Brown]” could imply an intent to harm, especially if uttered by an angry, estranged husband. Threats have everything to do with context, as our sister circuits have recognized, so facially innocuous statements may in fact constitute threats based on the surrounding circumstances. See United States v. Cothran, 286 F.3d 173, 175-76 (3d Cir.2002) (“[T]he use of ambiguous language does not preclude a statement from being a threat.” (quoting United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir.1997))).
Moreover, after Wheeler’s phone call, Brown was frightened to the point where she took her children and left the house, refusing to enter it again until it had been searched by the police. Even assuming *423Brown may have overreacted to Wheeler’s statement, from Officer Coss’s perspective at the time her behavior indicated at least a genuine subjective fear, from which Coss could reasonably infer that Wheeler must have said something in such a way as to instill a reasonable fear the threat would be carried out.
The majority is correct that “officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but must independently investigate the basis of the witness’ knowledge or interview other witnesses.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001). However, “a sufficient basis of knowledge is established if the victim provides facts sufficiently detailed to cause a reasonable person to believe a crime had been committed and the named suspect was the perpetrator.” Peng v. Mei Chin Penghu, 335 F.3d 970, 978 (9th Cir.2003) (internal quotation omitted). Brown’s statements regarding what transpired on the phone with Wheeler were sufficiently definite and descriptive to establish that a crime had been committed. Although Wheeler himself was the only witness to the conversation, Brown’s complaint was corroborated by the Caller ID and by her behavior immediately following the conversation. When asked, Wheeler admitted he had called Brown and discussed some financial issues with her. Thus, overall, Brown’s statements were sufficiently specific and sufficiently corroborated for Officer Coss to rely on them to establish probable cause for the crime of harassment.
The majority relies heavily on Wheeler going to the police substation and requesting a police escort home to undermine the reasonableness of the arrest. Although this action may have indicated Wheeler did not actually intend to harm Brown that evening or that he changed his mind after making the statement he did, the crime of harassment does not require an intention to carry out the threat — it is the making of the threat that violates the statute, so long as the words place the recipient in reasonable fear the threat will be carried out. Wheeler’s later actions are simply irrelevant to whether Officer Coss reasonably believed Wheeler had harassed Brown with the earlier phone call.
I would conclude that the district court erred in denying Coss’s motion for summary judgment on the basis of qualified immunity. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471333/ | MEMORANDUM **
Noel Roman Gimeno appeals from the district court’s denial of his motion to reduce his 140-month sentence under 18 U.S.C. § 3582(c)(2). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Gimeno’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Gimeno’s pro se request for counsel, received in this court on May 8, 2009, is deemed filed and is denied.
Counsel’s motion to withdraw is GRANTED, and the district court’s order is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*425ed by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471528/ | ORDER
Gloria Dickerson, an African-American woman, sued Walgreen for firing her, claiming that the firing violated 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e et seq., because it was racially discriminatory and unlawfully retaliatory. Walgreen explained that it had fired Dickerson, a store manager, for violating company policy when she authorized the use of coupons and cash that had been found in the store to cover shortages of money in cash drawers. The district court granted summary judgment for Walgreen, and Dickerson appeals.
Dickerson’s pro se appellate brief is deficient in an unusual way: Dickerson has reused, verbatim, 19 pages from the 21-page brief her former counsel filed in opposition to summary judgment in the district court. Aside from being deficient, the brief ill serves Dickerson because it does not engage the district court’s comprehensive opinion. Nevertheless, the brief is sufficient to give notice of the issues that Dickerson wishes to raise on appeal — that may be why Walgreen has not complained — and so we consider those issues.
The district court granted summary judgment on Dickerson’s discrimination claim because the only Walgreen employee she accused of discrimination was a former supervisor who was not involved in the decision to terminate her. Of the nineteen examples of this supervisor’s conduct that the district court considered, only one even comes close to suggesting discrimination: the supervisor apparently stated that he had pushed Dickerson harder than he had pushed other managers. To survive summary judgment under the direct method, Dickerson had to present evidence that “allows a jury to infer intentional discrimination by the decisionmaker.” Phelan v. Cook County, 463 F.3d 773, 779-80 (7th Cir.2006). Dickerson’s evidence was insufficient because, at most, it showed discrimination only by someone who was not the decisionmaker.
The district court did not explicitly consider the indirect method of proving discrimination, but our consideration of it does not aid Dickerson. Under the indirect method, if Dickerson were to present a prima facie case of discrimination, the burden would shift to Walgreen to offer a nondiscriminatory reason for the discharge. Once it did so, the burden would shift back to Dickerson to submit evidence showing that the nondiscriminatory reason was a pretext for discrimination. See Fane v. Locke Reynolds, LLP, 480 F.3d *180534, 538 (7th Cir.2007). Even assuming that Dickerson put enough evidence in the record to support a prima facie case of discrimination, her evidence did not rebut Walgreen’s nondiseriminatory explanation, because she did not dispute that, in violation of company policy, she authorized her subordinates to use money that a customer had found to cover a shortage in a cash drawer. This concession ends her discrimination case. See Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir.2006) (where plaintiff was fired for violating company policy admitted the violation, she could not rebut employer’s nondiscriminatory reason for the firing).
Next, we affirm the district court’s ruling on Dickerson’s retaliation claim under both the direct and indirect methods of proof. Under the direct method, Dickerson’s evidence fails to show a causal connection between any protected conduct and her termination. The only potentially protected activities were Dickerson’s complaints about the conduct by her former supervisor that she took to be discriminatory. , But those complaints came more than one year before Walgreen fired Dickerson. The district court correctly ruled that no jury could reasonably find that these year-old events supported a direct case of retaliation. See Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 851 (7th Cir.2008).
The district court also found that Dickerson did not present enough evidence under the indirect method of proving retaliation. To establish a pñma facie case under the indirect method, Dickerson had to present evidence showing, among other things, that a similarly situated employee who did not engage in protected activity received more favorable treatment. See id. at 850. The district court was correct that Dickerson supplied no evidence of such a person. First, the subordinates whom she identified were not similarly situated to her. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.2002). Dickerson also pointed to a white store manager who was fired after threatening to kill her supervisor but who received some benefits after termination that Walgreen did not also give to Dickerson. That evidence might help Dickerson if her claim were about being denied benefits after termination, but Dickerson’s claim was about the termination itself. In any event, the district court correctly found that Dickerson and this store manager were not similarly situated. In addition to threatening to kill her supervisor, the other store manager had threatened to kill herself, and so Walgreen wanted to help her receive mental health treatment. Dickerson, in contest, has never claimed that she suffered from any mental illness. See Cassimy v. Board of Educ. of Rockford Public Schools, Dist. No. 205, 461 F.3d 932, 938 (7th Cir.2006) (plaintiff and employee with more severe illness not similarly situated). Dickerson and this other manager were also not similarly situated because different decisionmakers were involved in their terminations. See Ellis v. United Parcel Service, Inc., 523 F.3d 823, 826 (7th Cir.2008). Accordingly, the district court correctly granted summary judgment on this claim as well.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471532/ | ORDER
John Blameuser claimed that Chicago police officers used excessive force when arresting him, resulting in severe injuries that required hospitalization. The officers had their own version of events (they claimed he slipped and fell while evading arrest), and the case went to trial. Shortly before trial, Blameuser disclosed that he wanted to present the testimony of Dr. James Prieto, the physician who treated him at the hospital. But the district court granted defendants’ motion in limine, which precluded his testimony, finding that it amounted to “expert testimony” on causation and Rule 26(a)(2)(B) required an expert report. Although treating physicians are not required to file expert reports, we conclude that any error committed by the district court was harmless and does not merit reversal. So, we affirm the district court’s judgment.
I. BACKGROUND
On the evening of January 24, 2005, officers responded to a citizen’s call reporting that his garage was being burglarized. The responding officers (Officers Regina Reyes and John Lepkowski) saw John Bla-meuser and another individual attempting to break into the garage. The officers chased the thieves as they attempted to flee.
Officer Frederick Hasenfang, who arrived with other officers to provide backup, saw Blameuser jump out of the truck and chased him into a backyard where Officer Hasenfang eventually arrested him. During the course of these events, Blameuser was injured. The officers placed him in an ambulance, which took him, unconscious, to the emergency room at Advocate Christ Hospital. There, Dr. Prieto treated Bla-meuser for various injuries.
The cause of Blameuser’s injuries was the critical issue at trial. According to Bla-meuser, he was beaten, punched, and kicked by the officers until he was unconscious, even though he was not resisting arrest. The officers’ version of the story was that Blameuser, who was heavily intoxicated, slipped and fell while trying to run away from them. The officers maintained that Blameuser injured himself in the fall. Blameuser sued the City of Chicago and various officers, claiming that the officers’ use of force was excessive and violated his Fourth Amendment rights.
Although discovery was initially set to close on November 30, 2006, the district court granted several motions extending the discovery cut-off. Shortly before the last cut-off date, July 31, 2007, Blameuser sought to extend discovery so he could depose Dr. Prieto. This time the court denied the motion, citing the many extensions it already had granted, and finding that there was no excuse for Blameuser’s delay.
Three months after the final discovery cut-off date and thirty-two months after Dr. Prieto treated him, Blameuser deposed Dr. Prieto. During that videotaped deposition, Dr. Prieto testified that although he did not remember treating Blameuser, his chart showed that he gave Blameuser medication for pain and that he had examined Blameuser’s spine and noted tenderness. The chart also indicated that Dr. Prieto had made a “differential diagnosis of assault.” However, when questioned by opposing counsel, Dr. Prieto admitted he did not know the basis for that diagnosis. He then explained that a “differential diagnosis” is a potential diagnosis consistent with the treater’s findings on history and *186physical examination. Blameuser’s counsel asked Dr. Prieto whether Blameuser’s injuries were consistent with Blameuser’s statement that he was kicked in the face and body. Dr. Prieto responded the findings “could be” consistent with this statement.
At trial, Blameuser sought to have Dr. Prieto testify as a witness via videotaped deposition, and defendants objected. In granting defendants’ motion in limine, the court ruled that “any expert testimony by Dr. Prieto concerning causation or his medical diagnosis of ‘assault’ would not comply with the requirements of Fed. R. Civ. Pro. 26(a) or Fed.R.Evid. 702 and 703.”
By the time the case was tried, Blameu-ser had dismissed his claims against every defendant except Officer Hasenfang. The jury heard the testimony of Officer Hasen-fang, Blameuser, the paramedic who took Blameuser to the hospital, and two nurses who treated Blameuser at the hospital. The defense also called Dr. Richard Goldberg, who testified, as an expert, that Blameuser’s injuries were not consistent with his allegations that he was beaten by the police.
At trial, Blameuser wanted Dr. Prieto to testify on the issue of causation, but the district court rejected that request and only admitted Dr. Prieto’s chart into evidence. The jury returned a verdict in favor of Officer Hasenfang, and Blameuser appeals the district court’s ruling excluding Dr. Prieto’s testimony.
II. ANALYSIS
We review the district court’s decision to exclude expert testimony for abuse of discretion. Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir.2004). Under this standard, we will not reverse the district court’s ruling unless “(1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary.” Id. However, “[ejven an erroneous eviden-tiary ruling can be deemed harmless if the record indicates that the same judgment would have been rendered regardless of the error.” Goodman v. Ill. Dept. of Fin. and Prof'l Regulation, 430 F.3d 432, 439 (7th Cir.2005).
We begin with Rule 26 of the Federal Rules of Civil Procedure. Rule 26 requires litigants to disclose the identity and contact information of potential fact witnesses, and the identity of “any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed.R.Civ.P. 26(a)(1)(A); 26(a)(2)(A). Additionally, a litigant who intends to introduce expert testimony must provide a written report, prepared and signed by the witness, “if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” Fed.R.Civ.P. 26(a)(2)(B). The rule also outlines the information that such a report must contain. Rule 37 provides that “[a] party that without substantial justification fails to disclose information required by Rule 26(a) ... shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.” Fed.R.Civ.P. 37(c)(1).
Although we have held that in some circumstances, treating physicians must be disclosed as experts pursuant to Rule 26(a)(2)(A), Musser, 356 F.3d at 758, we have never held that treating physicians must file expert reports. According to the Advisory Committee Notes to the 1993 *187amendments, Rule 26(a)(2)(B), which governs expert reports, applies only to those experts who are “retained or specially employed to provide such testimony in the case,” and treating physicians in particular “can be deposed or called to testify at trial without any requirement for a written report.” See also Fielden v. CSX Transp., Inc., 482 F.3d 866, 870 (6th Cir.2007) (expert report not required for treating physician testifying about causation); Watson v. United States, 485 F.3d 1100, 1107 (10th Cir.2007).
The district court precluded Dr. Prieto’s “expert testimony” on the ground that he did not file a Rule 26(a)(2)(B) report. Neither the district court nor Officer Hasen-fang makes clear why Dr. Prieto’s testimony amounts to “expert” testimony. His testimony (which relies almost exclusively on the chart he prepared for Blameuser during his visit to the emergency room) concerns his treatment of Blameuser and his putative diagnosis of assault, which he reached during the course of his treatment. Such testimony does not require an expert report. See, e.g., Davoll v. Webb, 194 F.3d 1116, 1138 (10th Cir.1999) (“A treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party.”); cf. United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir.2005) (noting that treating physician’s diagnosis of an injury is lay testimony while a hypothesis about the cause of injury might be expert testimony). And Dr. Prieto was not retained or specially employed to provide testimony in this case.
It is plausible that the district court thought Dr. Prieto went too far with his post-hoc conclusion that Blameuser’s injuries “could be” consistent with Blameuser’s account of what happened to him. An interesting question is what to do with a treating physician who proposes to testify in the manner of a hired expert, i.e., offering an opinion regarding what might have happened to the patient that does not rely on that physician’s personal treatment of the patient. See, e.g. Musser, 356 F.3d at 758 n. 3 (noting district court disagreement over the application of Rule 2(a)(2)(B) to treating physicians). But we need not delve too far into the limits of Rule 26(a)(2)(A) or (B) because any error by the district court in excluding Dr. Prie-to’s testimony was harmless in this case. It is plain from Dr. Prieto’s deposition testimony that he did not remember anything about Blameuser that was not recorded in his chart. That chart, which contained Dr. Prieto’s differential diagnosis of assault, was admitted into evidence, and nurses offered their first hand observations of Blameuser’s condition when he arrived at the emergency room. So Bla-meuser retained any material benefit that he might have derived from Dr. Prieto’s testimony. Therefore, we find no reversible error.
III. CONCLUSION
The judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471534/ | *189ORDER
This case involves the repeated run-ins of a father and son with local police over a motorized scooter, resulting in multiple citations and an arrest for obstruction of a peace officer. Following these events, Adam Holm and his teenage son Daniel sued the Village of Coal City, Illinois, and several local police officers, claiming that these defendants had conspired to violate their constitutional rights, used excessive force while arresting Adam, and illegally seized their scooter. The district court granted summary judgment for the defendants and we affirm.
One evening in July 2005, a Coal City police officer pulled Adam over for a routine traffic stop. The officer knew that Adam had an outstanding criminal complaint against him stemming from his refusal to accept two citations that Coal City police officers had issued to him and Daniel, following Daniel’s repeated misuse of a motorized scooter (riding without a license and riding in the road). After he was stopped, Adam promptly called family friends, who soon arrived and parked their car across the street. A second officer arrived to assist in the arrest, and together, the officers handcuffed Adam, forcefully took him by the elbow, and twice pushed him toward the police car.
Three weeks later a Coal City police officer again observed Daniel riding a motorized scooter on the road without a driver’s license. He therefore impounded the scooter, cited Daniel for riding without a license, and cited Adam, as the scooter’s owner, for permitting an unauthorized person to drive the vehicle. Both citations, however, were later dismissed.
The Holms then filed this suit under 42 U.S.C. § 1983, asserting a wide variety of civil rights claims, and the defendants moved to dismiss the complaint for failure to state a claim, see Fed.R.Civ.P. 12(b)(6). The court dismissed several of the Holms’ claims, ranging from an alleged violation of substantive due process to illegal seizure of the Holms’ car. Following the close of discovery, the court ultimately granted summary judgment for the defendants on the Holms’ remaining claims. Regarding Adam’s claim of excessive force, the court concluded that the officers’ use of force was objectively reasonable in light of Adam’s actions and, in any event, he had presented no evidence of a resulting injury. As for the Holms’ claims of false arrest and illegal seizure of the scooter, the court found that the officers’ actions in each instance were supported by probable cause. As for the Holms’ claim that the scooter’s impoundment violated their equal protection rights under a class-of-one theory, the court determined that they failed to identify anyone similarly situated to them who was treated differently. And finally, regarding the Holms’ claims of conspiracy and municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the court rejected these as a matter of law because the Holms had not established any constitutional violations.
On appeal the Holms contend that the district court ignored their version of events and overlooked unresolved issues of fact regarding their claims of excessive force, illegal seizure, equal protection, conspiracy, and municipal liability. To survive summary judgment, they had to present sufficient evidence of a genuine issue of material fact to counter the defendants’ assertions that they are entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir.2008); Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 627-28 (7th Cir.2006). And, as the non-moving party, the Holms could no longer rest on the allegations contained in their pleadings but were *190required to come forward with specific evidence to establish a genuine issue for trial. See Keri, 458 F.3d at 628.
Adam Holm first challenges the district court’s ruling on his excessive force claim, taking issue with the court’s finding that he escalated the situation by calling additional people to the scene, repeatedly yelling to them, and pausing on his way to the police car. He contends that he remained calm and cooperative, yelled only out of pain, and did not intentionally stop. Adam’s characterization of the facts, however, is inconsistent with the record evidence, and, as our review of the undisputed facts shows, the officers’ use of force was objectively reasonable. An officer’s right to arrest an individual includes the right to use some degree of physical force, but as the Fourth Amendment requires, that force must be objectively reasonable in light of the facts and circumstances of the particular situation. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir.2009). Here, Adam’s own deposition testimony shows that as he was escorted to the police car, he repeatedly yelled across the street to his friends, complained to the officers, and took a short pause. To guide him to the car, the officers “yanked” his arm, and issued two quick pushes to his back, and as Adam later testified, it was as if the officer was trying to “keep me going ... trying to hurry me up.” In light of these circumstances, the officers’ efforts to physically “hurry” him to the car, were not unreasonable.
Adam also takes issue with the court’s statement that he presented no evidence of an injury, pointing to hospital records from a visit shortly after his arrest and his deposition testimony that he experienced pain for several months in his right rotator cuff and upper back and neck and continues to have pain in his right arm. As for the records Adam relies upon to show that he was injured by the officers’ actions, we question their usefulness given that they document his visit to the emergency room following a subsequent car accident and contain inadmissible hearsay. See Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir.2007). But regardless, Adam had to do more than point to an injury or its seriousness; he had to “also ‘identify the specific unreasonable conduct that caused his or her injuries,’ ” Stainback, 569 F.3d at 772-73 n. 7 (quoting Abdullahi v. City of Madison, 423 F.3d 763, 770-71 (7th Cir.2005)), and this he has not done.
Next the Holms challenge the district court’s conclusion that the defendants’ impoundment of the scooter was supported by probable cause and thus did not violate the Fourth Amendment’s prohibition against unreasonable interferences with property. See Lee v. City of Chi., 330 F.3d 456, 460 (7th Cir.2003). Noting that the scooter citations were later dismissed, the Holms contend that the officer impounded the scooter without justification. They further argue that the provision of the Illinois Motor Vehicle Code regulating the operation of “motorized pedalcycles,” 625 III. Comp. Stat. 5/11-1403.1, was not yet in effect and therefore, they contend, Daniel could not have broken any law at the time.
The officer’s impoundment of the scooter did not violate the Fourth Amendment. An impoundment is permissible so long as it is supported by probable cause or is “consistent with the police role as ‘caretaker’ of the streets,” United States v. Duguay, 93 F.3d 346, 352 (7th Cir.1996). Although the citations were later dismissed, the officer’s uncontested testimony was that he stopped Daniel because he believed that Daniel was violating the general statutory prohibition against driving a motorized vehicle without a license, see 625 *191III. Comp. Stat. 5/6-101. Moreover, where, as here, there was no licensed driver available to remove the vehicle from the public roadway, an officer is authorized to remove it as part of his “community care-taking function.” See South Dakota v. Opperman, 428 U.S. 364, 868-69, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Duguay, 93 F.3d at 354 n. 2 (“Impoundment may be appropriate where no passenger has a valid license.”); United States v. Griffin, 729 F.2d 475, 480 (7th Cir.1984); see also Davis v. Novy, 433 F.3d 926, 930 (7th Cir.2006) (noting that “the Illinois Vehicle Code directs that a driver who is lacking both license and insurance ‘shall have his or her motor vehicle immediately impounded by the arresting law enforcement officer.’ 625 ILCS 5/6-101(d).”).
The Holms also contest the district court’s determination that the impoundment of the scooter did not violate their equal protection rights under a “class-of-one” theory. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam); United States v. Moore, 543 F.3d 891, 896 (7th Cir.2008). Under that theory, the Holms had to show (1) that they were intentionally treated differently from others similarly situated, and (2) that there is no rational basis for that differential treatment, or that the cause of the differential treatment is the defendants’ illegitimate animus toward them. See McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir.2004). The Holms insist that they identified a similarly situated individual who was treated differently — Samantha Cerda, who was also riding a motorized scooter when the officer stopped Daniel. But Cerda was not similarly situated because she was not “prima facie identical in all relevant respects.” Furze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002). Unlike Daniel, Cerda had not already received multiple warnings about driving the scooter in the road or been previously cited for such actions. See Levenstein v. Salafsky, 414 F.3d 767, 776 (7th Cir.2005) (rejecting claim by suspended employee for failing to show that other employees also accused of sexual harassment but who were not suspended or investigated were identical in all relevant respects).
Finally, the Holms argue that by ignoring their evidence purporting to show that the defendants violated their constitutional rights, the district court compounded its error by rejecting their claims of conspiracy and municipal liability. But as the Holms acknowledge, a showing of a constitutional violation is needed to recover on either a Monell claim for municipal liability or a § 1983 claim of conspiracy. See Reynolds v. Jamison, 488 F.3d 756, 764 & n. 4 (7th Cir.2007); Alexander v. City of South Bend, 433 F.3d 550, 557 (7th Cir.2006). And they have not successfully established that any constitutional violation occurred.
Accordingly, we AFFIRM the decision of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471538/ | ORDER
Anthony Martin applied for Supplemental Security Income, claiming that he is unable to work because of the lasting effects of multiple gunshot wounds and post-traumatic stress disorder (“PTSD”). An administrative law judge (“ALJ”) concluded that these severe impairments do not prevent Martin from performing a significant number of jobs involving light, unskilled work. Martin sought review in the district court, arguing that the ALJ failed to adequately develop the record and was prejudiced against him. A magistrate judge, presiding by consent, rejected Martin’s contentions, and Martin now appeals to this court. We affirm the judgment.
At the time of the administrative hearing in 2007, Martin was 27 years old, had obtained his GED, and had last worked in a warehouse for several months in 2000. In April 2003 Martin was shot 14 times in his abdomen, lower back, and legs. As a result of his injuries, he suffers from PTSD, has difficulty standing for long periods, and experiences back pain and numbness in his right leg. Martin filed his first application for benefits in July 2003, which the Social Security Administration (“SSA”) denied later that year. He did not appeal that decision, but in November 2004 he filed a second application alleging a disability onset date of April 14, 2003, the date of his shooting, and claiming that his injuries from the gunshot wounds and his PTSD prevent him from working.
In evaluating Martin’s claim, the SSA obtained records from his treating physicians and several consulting physicians. Records from Parkview Hospital in Fort Wayne, Indiana, show that Martin was treated in April 2003 for multiple gunshot wounds. In addition to the numerous wounds to his lower body, he suffered a liver laceration and, after surgery, was left with two bullets embedded in his lower back. Martin attended physical therapy at the Parkview Rehab Outpatient Clinic, where, three months after the shooting, his therapist noted that he did “not appear to have functional limitations, which would prevent him from searching [for] gainful employment.” In February 2005 Martin was again rushed to the emergency room at Parkview Hospital after a second shooting in which he was wounded in his left arm, left leg, and abdomen. Dr. Craig Marks surgically repaired new injuries to Martin’s diaphragm, colon, stomach, and liver, and continued to treat him in the following months for abdominal pain. Dr. Marks prescribed physical therapy in April 2005, and in September of that year, he referred Martin to Dr. Nikola Nenadovich, an orthopedic specialist. Dr. Nenadovich saw Martin twice before the end of 2005 and prescribed an anti-inflammatory and home exercises.
During the SSA’s review of Martin’s ini-tal application for benefits, he was referred to Dr. Barbara Gelder for a psychiatric exam in September 2003. Dr. Gelder diagnosed Martin with PTSD, recurrent major depression, alcohol abuse, and possible marijuana abuse. Dr. Gelder evaluated Martin again in January 2005 and once more diagnosed PTSD as well as a pain disorder due to physical and psychological factors. She ruled out a mental handicap but assigned him a score of 43 on the Global Assessment of Functioning scale, reflecting serious symptoms of mental ill*200ness or serious impairment in social functioning. See Am. Psychiatric Ass’n, Diagnostic & Statistical Manual Of Mental Disorders 30-32 (4th ed.1994). Martin also participated in outpatient counseling for drug and alcohol dependency at Bowen Center in 2003, and in December 2004 he was evaluated at Park Center, where he was diagnosed with cocaine and alcohol dependency in full remission, cannabis dependency, and pathological gambling.
In March 2005 Martin was also examined by three state-agency physicians to assess his residual functional capacity (“RFC”). Two doctors evaluated Martin’s physical RFC. Dr. Yaroslav Pogorelov concluded that Martin has difficulty sitting, standing, walking, and lifting due to abdominal and lower-back pain as well as nerve damage to his right leg and left arm. The physician opined that Martin would not be able to stand or walk for even two hours in an eight-hour day and noted also that he suffers from PTSD. Dr. T. Crawford concluded that Martin’s physical limitations, including a difficulty with fine-fingering manipulation, prevent him from climbing ladders, ropes, and scaffolds but do not preclude light work involving occasional postural activities. Finally, Dr. B.R. Horton, who assessed Martin’s mental RFC, concluded that he can perform simple repetitive tasks but is moderately limited in concentrating, understanding, and remembering detailed instructions.
The SSA denied Martin’s application initially and upon reconsideration. Martin requested that an ALJ take a fresh look at his claim, and a hearing was scheduled for September 2007. Just prior to the hearing, in July 2007, the ALJ requested updated records from Parkview Hospital and Dr. Marks. Those requests yielded records from treatment through the end of 2005, including Dr. Nenadovich’s progress notes that were in the possession of Dr. Marks.
At the hearing both Martin, who appeared pro se, and a vocational expert (“VE”) testified. The ALJ began by advising Martin that he could benefit from having a representative and explaining that a representative could receive payment only on a contingency basis and then only with the approval of the ALJ. Martin confirmed that he received a referral list for legal representation and declared that he wished to proceed without a representative. The ALJ then asked Martin if there were any new documents relevant to his claim. Martin answered that there were records from 2005 to the present from Parkview Hospital1, Dr. Nenadovich, and Park Center. Although he first testified that he had undergone an additional surgery at Parkview Hospital in late 2006 when the gunshot wound in his stomach had become infected, he stated later in the hearing that the surgery was performed at Parkview North Hospital, a different facility within the Parkview Health system, see Parkview Health, http://www.parkview. com/Locations/ Pages/ default.aspx (last visited Sept. 1, 2009). The ALJ probed him about his daily activities, educational and employment background, medical history, and specific physical and mental limitations, including his complaints of pain and anxiety. Martin testified that he has nerve damage in his left leg and hand. He said that standing causes his leg to go cold and numb, and moving causes pain in his back and legs that is unbearable on cold or rainy days. He has difficulty climbing *201stairs, he said, but conceded that his use of a cane to walk is infrequent. Martin added that he is in constant stress from the shootings and does not often leave his house.
After Martin testified, the ALJ asked the VE to consider a hypothetical person with Martin’s age, education, and work history who could perform light work with the ability to sit or stand at will but could not be exposed to dampness or temperature extremes. This hypothetical person, the ALJ added, would have only limited use of the fingers of the nondominant left hand and could not lift or carry more than ten pounds with that hand. Climbing of ladders, ropes, or scaffolds would be precluded, and only occasional balancing, stooping, kneeling, crouching, crawling, or climbing of ramps and stairs would be allowed. The ALJ also limited the individual to simple, routine, and repetitive tasks consistent with unskilled work; ruled out contact with the general public and jobs involving more than brief interactions with others; precluded jobs in fast-paced environments or with strict production requirements; and narrowed the permissible employment to positions requiring only simple work-related decisions and few workplace changes. The VE responded that a person with these limitations still could perform a significant number of jobs existing in the regional economy of northeast Indiana, including positions as a “wire worker” or an assembler of electrical accessories or small products. Even with the added restriction of sedentary instead of light work, said the VE, the person still could perform work as an “addresser in the clerical field,” an optical assembler, or surveillance monitor.
Before ruling, the ALJ continued the hearing and requested updated records from Parkview North Hospital and Park Center. Parkview North Hospital responded that Martin had not been a patient there since January 2005, and Park Center responded by sending duplicates of the records already in the administrative record from Martin’s treatment in 2004. The ALJ thus relied on the hearing testimony and Martin’s medical records from 2003 through 2005 to conclude that his impairments, although severe enough to prevent him from returning to his past work in a warehouse, do not preclude him from “making a successful adjustment to other work that exists in significant numbers in the national economy.” Accordingly, the ALJ found that Martin is not disabled.
Martin appeals pro se and raises two primary arguments. He contends, first, that the ALJ failed to adequately develop the record and, second, that the ALJ was prejudiced against him at the hearing. As to the first of these contentions, an ALJ has a general duty to “develop a full and fair record.” Smith v. Sec’y of Health, Educ. & Welfare, 587 F.2d 857, 860 (7th Cir.1978); see Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir.2009). Martin does not dispute that the ALJ satisfied that duty regarding medical records covering the 12 months preceding his November 2004 application for benefits. See 42 U.S.C. §§ 423(d)(5)(B), 1382c(a)(3)(H)(i); 20 C.F.R. § 416.912(d). Rather, says Martin, the ALJ should have but did not obtain medical records covering 2006 and 2007 from Parkview Hospital, Park Center, Vocational Rehab, and Indiana Surgical Specialists.
The ALJ met his burden to develop the record in this case. An ALJ is required to make a “reasonable effort” to ensure that the claimant’s record contains, at a minimum, enough information to assess the claimant’s RFC and to make a disability determination. See 20 C.F.R. §§ 416.912(d), 416.927(c)(3); S.S.R. 96-8p; *202Skinner v. Astrue, 478 F.3d 836, 843-44 (7th Cir.2007). Although the ALJ’s duty was heightened because of Martin’s pro se status, this court “generally upholds the reasoned judgment of the Commissioner on how much evidence to gather, even when the claimant lacks representation.” Nelms, 553 F.3d at 1098. Here, the ALJ made a concerted effort to probe Martin’s recent medical history and ongoing impairments by asking specific questions about his treatment, symptoms, and day-to-day activities. See Luna v. Shalala, 22 F.3d 687, 692-93 (7th Cir.1994) (holding that ALJ sufficiently developed record by probing all relevant issues, extensively questioning claimant about his pain, medication, and activities, and reviewing available medical records). The ALJ also requested updated records both before and after the hearing, and despite some apparent confusion about whether he visited Parkview Hospital or Parkview North Hospital, the ALJ’s various efforts to develop the record were reasonable. See S.S.R. 96-8p; 20 C.F.R. § 416.912(d); cf. Nelms, 553 F.3d at 1098-99 (holding that ALJ failed to adequately develop record where he did not question pro se claimant about recent medical history or make any attempt to gather additional records despite two-year evidentiary gap). And although in his appellate brief Martin names other medical facilities that he visited in 2006 and 2007, such as Vocational Rehab and Indiana Surgical Specialists, he failed to name these facilities at the healing despite the ALJ’s pointed questioning about his recent treatment. The ALJ, therefore, cannot be faulted for not obtaining records from these facilities. After all, “[ejven a pro se litigant bears some responsibility for making a record.” Johnson v. Barnhart, 449 F.3d 804, 808 (7th Cir.2006).
Thus, Martin must show that he was prejudiced by the absence of medical records dating after 2005, a hurdle he did not overcome. See Nelms, 553 F.3d at 1098; Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir.1997). Martin did not identify or provide additional records during the proceedings before the Appeals Council or the district court, and even now he has not attempted to detail what additional information about his condition the ALJ would have uncovered. See Nelms, 553 F.3d at 1098 & n. 1 (evaluating claimant’s additional records submitted for limited purpose of demonstrating prejudice). Moreover, Martin fails to explain how additional evidence could have led to a finding of disability. See id.; Johnson, 449 F.3d at 808; Nelson, 131 F.3d at 1236.
Martin’s second contention, that the ALJ was prejudiced, requires little discussion. In evaluating such claims, we begin with the presumption that ALJs are impartial, and to overcome that presumption, a claimant must show that the ALJ “displayed deep-seated and unequivocal antagonism that would render fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 556, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); see Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982); Keith v. Barnhart, 473 F.3d 782, 788 (7th Cir.2007). Martin asserts that both the ALJ and the VE made “a mockery” of his condition when, following an outburst from Martin describing flashbacks he has from the shootings and an outpouring of profanity at the end of the hearing, the VE stated, “Maybe next time it’ll kill him.” This statement was indeed unprofessional and inappropriate, but it was made by the VE, not the ALJ, and Martin does not point to anything said or done by the ALJ exhibiting prejudice. Rather, our review of the hearing transcript reveals that the ALJ thoroughly explored Martin’s impairments and recent medical history, and patiently at*203tempted to elicit information relevant to his application for benefits. See Keith, 473 F.3d at 788. Thus, Martin’s claim of prejudice is unavailing.
Finally, we have evaluated Martin’s remaining arguments and have determined that they are without merit. Accordingly, we AFFIRM the judgment of the district court.
. In his testimony Martin referred to Park-view Hospital by its former name, Parkview Memorial Hospital. For clarity we have used the current name. See Indiana Historical Society, Parkview Hospital 3 http://www3. indianahistory.org/HBR/ business_pdf/park-view_hospitai.pdf (last visited Sept. 1, 2009). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471322/ | MEMORANDUM *
After a jury verdict for the defendant Anchorage Police Department on the plaintiff Carolyn Mitchell’s § 1983 claim, Mitchell made a renewed motion for summary judgment under Rule 50(b). The district court denied the motion orally. Mitchell’s opening brief before us failed to indicate precisely that she appeals the post-verdict summary judgment denial. Failure to raise an issue in an opening brief does not preclude review “if the failure ... did not prejudice the defense of the opposing party.” Laboa v. Calderon, 224 F.3d 972, 985 (9th Cir.2000) (quoting United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992)). The Police Department’s brief reveals that it was not prejudiced by *414Mitchell’s imprecision. We review her appeal on the merits.
Mitchell’s federal Fourth Amendment rights are unaltered by state law. Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 1604-05, 170 L.Ed.2d 559 (2008). That the Police Department falsely arrested Mitchell under Alaska state law does not mean she was arrested in violation of the Fourth Amendment.
In analyzing an arrest, the trier of fact considers the totality of circumstances, including “not only how intrusive the stop was, but also whether the methods used [by police] were reasonable given the specific circumstances.” Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir.2002) (quoting Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir.1996)). The Police Department was responding to an armed bank robbery that occurred just minutes earlier. Mitchell’s physical characteristics were not identical to those of the suspect, but were a rough match. She was detained only as long as was necessary for police to complete the show-up. See United States v. Torres-Sanchez, 83 F.3d 1123, 1129 (9th Cir.1996). The district court did not err in finding that she was not entitled to summary judgment.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471323/ | RAWLINSON, Circuit Judge,
concurring:
I concur in the affirmance of the judgment in favor of the Defendants because, and only because, the jury considered all of the arguments made by Plaintiff Carolyn Mitchell, and found that her constitutional rights were not violated under the circumstances. Once the case has been presented to the jury, the district court’s denial of summary judgment is no longer an issue. See Dixon v. Wallowa County, 336 F.3d 1013, 1017 (9th Cir.2003). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471324/ | MEMORANDUM **
Defendant-appellant Jeriehmie J. Frane-tich appeals the sentence imposed upon his plea of guilty to being a felon in possession of a firearm. Because the district court did not err in sentencing Franetich, we affirm.
On May 24, 2007, Franetich pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). [ER 84, 90] At sentencing, the district court calculated a total adjusted offense level of 19, based in part on the court’s conclusion that a 2003 conviction for felony “riot-domestic violence” under R.C.W. § 9A.84.010 constituted a prior “crime of violence” under the Sentencing Guidelines. After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the district court ultimately imposed a sentence of 102 months imprisonment. [ER 55-61] Franetich timely appealed his sentence, arguing that his 2003 conviction for felony riot under R.C.W. § 9A.84.010 was not a “crime of violence” for sentencing purposes. We review de novo the district court’s determination that Franetich’s pri- or conviction qualifies as a “crime of violence” under the Guidelines. United States v. Rodriguez-Guzman, 506 F.3d 738, 740-41 (9th Cir.2007) (citation omitted).
In determining whether a state criminal conviction constitutes a crime of violence under the Guidelines, we apply a categorical and, where appropriate, a modified categorical approach. See generally Perez v. Mukasey, 512 F.3d 1222, 1225-27 (9th Cir.2008). Under the categorical approach, a court “compare[s] the elements of the statute of conviction ... to the generic crime ... and then [ ] determine^] whether the ‘full range of conduct covered by the criminal statute falls within the meaning of that term.’ ” Perez, 512 F.3d at 1225 (quoting Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002)) (internal quotation marks and brackets omitted). Under the modified categorical approach, “where a statute of conviction is divisible into several different *418crimes, one or more of which may constitute a ‘crime of violence,’ ” Perez, 512 F.3d at 1226 (quoting Navarro-Lopez v. Gonzales, 508 F.3d 1063, 1073 (9th Cir.2007) (en banc)), a court “look[s] beyond the statute of conviction and considers] ‘a narrow specified set of documents that are part of the record of conviction’ to determine whether the defendant was convicted of the necessary elements of the generic crime.” Perez, 512 F.3d at 1226 (quoting Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004)).
Washington’s felony riot statute does not define a crime of violence under the categorical approach. R.C.W. § 9A.84.010(1) provides that “[a] person is guilty of the crime of riot if, acting with three or more other persons, he or she knowingly and unlawfully uses or threatens to use force, or in any way participates in the use of such force, against any other person or against property” (emphasis added).1 By contrast, under the Guidelines, “[t]he term ‘crime of violence’ means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(l). Because a defendant can be convicted of felony riot under R.C.W. 9A.84.010 for using force “against property,” Washington’s felony riot statute is categorically over-broad with respect to the Guidelines definition of crime of violence, which subsumes only ciimes “ha[ving] as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(l) (emphasis added).
Where a crime of conviction is over-broad under the categorical approach, a court may apply the modified categorical approach “where a statute of conviction is divisible into several different crimes, one or more of which may constitute a ‘crime of violence.’ ” Perez, 512 F.3d at 1226 (quoting Navarro-Lopez, 503 F.3d at 1073). Washington’s riot statute is so divisible, as it encompasses (1) crimes involving force against persons, and (2) crimes involving force against property, respectively. Thus, the modified categorical approach is appropriate here.
In applying the modified categorical approach, a court is “generally limited to reviewing the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding made by the trial judge to which the defendant assented.” Perez, 512 F.3d at 1226. Here, the charging document underlying Franetich’s 2003 conviction states that “on or about August 05, 2003, being armed with a beer can, a deadly weapon, while acting with three or more persons, [Franetich] did knowingly and unlawfully, use and threaten to use force against [the victim], a human being.” [SER 3] Franetich also made a written statement as part of his guilty plea stating: “[The victim] and I were arguing. She burned my face with a cigarette. I threw a can that hit her in the face. She then hit me numerous times with a baseball bat.” [SER 10] These and other documents before the district court at sentencing conclusively demonstrate that when Franetich was convicted of felony riot in 2003, he was convicted for directing violent force at a person — to wit, the throwing of a full can of beer at a young woman’s head. Frane-tich’s 2003 conviction therefore qualifies as *419a prior felony “crime of violence” under the Guidelines.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. R.C.W. § 9A.84.010(2)(b) adds that "[t]he crime of riot is a class C felony if the actor is armed with a deadly weapon.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471327/ | MEMORANDUM **
Michelle Wing appeals from the district court’s judgment revoking her supervised release and imposing a 3-month sentence of imprisonment, plus a new 33-month term of supervised release. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Wing’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No *420pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471330/ | MEMORANDUM *
Reno Police Officer Brent Coss appeals the district court order denying him qualified immunity for arresting plaintiff Robert Wheeler. The district court granted partial summary judgment to Wheeler, holding that there was no probable cause for his arrest and that Coss was not entitled to qualified immunity. We agree with the district court and, reciting the facts only as necessary, affirm its decision.
Coss argues that he had probable cause to arrest Wheeler for harassment and, even if probable cause was lacking, he was entitled to qualified immunity because it would not have been clear to a reasonable officer that the arrest was unlawful.
“Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested.” Rodis v. City & County of San Francisco, 558 F.3d 964, 969 (9th Cir.2009) (internal quotation omitted). “In establishing probable cause, officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but must independently investigate the basis of the witness’ knowledge or interview other witnesses.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001). In Nevada, a person is guilty of harassment if he or she, without lawful authority, knowingly threatens another person with future bodily injury, and the targeted person is placed in reasonable fear that the threat will be carried out. Nev.Rev.Stat. § 200.571(1). Thus, to have probable cause to arrest Wheeler for harassment, Coss needed trustworthy evidence derived from independent investigation that Wheeler had threatened his wife, Tina Brown.
The district court listed several specific facts upon which Coss based his probable cause determination. Coss knew that Brown had called the police and reported that Wheeler had said he was coming home to “deal with her.” He also knew from the caller ID box she showed him that Wheeler had indeed called the house that day. He observed that she was behaving like she was actually scared of Wheeler, and Brown told Coss that Wheeler had been acting unstable and had access to guns. However, in the middle of Coss’s discussions with Brown, he received a call from dispatch informing him that Wheeler was at the local police substation requesting a police escort home to keep the peace. After a brief discussion with Wheeler at the substation, in which he observed that Wheeler seemed very upset, Coss arrested Wheeler.
The district court noted that Coss “admitted he had no idea who was telling the truth” and that he failed to investigate Wheeler’s purported instability, access to firearms, or alleged statement to his wife. Based on the totality of the circumstances, the district court concluded that Coss lacked probable cause. We agree. The *422•record contains no evidence that Coss or any of the other police officers ever asked Wheeler whether he actually made the alleged threatening statement. Even if Wheeler’s statement to Brown that he was coming home to “deal with her” could constitute a threat of future harm, Wheeler’s subsequent act of going to the substation-to seek a police escort to help keep the peace between him and Brown cast significant doubt on Brown’s allegations that the statement was a threat, that Wheeler was violent, or that her fear of him was reasonable. Without further investigation revealing facts indicating a crime had been committed, Coss did not have probable cause to arrest Wheeler for harassment.
We also must consider whether despite the lack of probable cause, Coss’s belief that he had probable cause was reasonable. See Rodis, 558 F.3d at 970. Coss argues that a reasonable officer would have thought he had probable cause to arrest Wheeler for harassment or violation of a temporary protective order. In light of the ambiguous, allegedly threatening language and Wheeler’s request for police assistance to avoid violence, no reasonable police officer would have thought there was probable cause to arrest Wheeler for harassment. In regard to the reasonableness of arrest for violation of a protective order, Brown provided Coss paperwork that included an order scheduling a hearing to determine whether a protective order should issue. The hearing was scheduled to occur two days after Coss made the arrest. No reasonable officer would have concluded he had probable cause to arrest a person for violating a protective order that did not exist. See Beier v. City of Lewiston, 354 F.3d 1058, 1069-70 (9th Cir.2004) (requiring an arresting officer to read a protective order or ascertain its terms from a law enforcement source before making an arrest based on the order).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471331/ | HAWKINS, Circuit Judge,
dissenting:
Because I believe that Officer Coss had probable- cause to arrest Wheeler for the crime of harassment, I respectfully dissent.
“The test for whether probable cause exists is whether at the moment of arrest the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man believing that the [accused] had committed ... an offense.” United States v. Jensen, 425 F.3d 698, 704 (9th Cir.2005) (internal citation omitted). Here, Officer Coss had reason to believe that Wheeler had knowingly threatened to cause bodily injury to Brown and had put Brown in reasonable fear that the threat would be carried out. See Nev.Rev.Stat. § 200.571; Reno Mun.Code § 8.08.025.
Although ambiguous, Wheeler’s statement he was “going to come home and take care of [Brown]” could imply an intent to harm, especially if uttered by an angry, estranged husband. Threats have everything to do with context, as our sister circuits have recognized, so facially innocuous statements may in fact constitute threats based on the surrounding circumstances. See United States v. Cothran, 286 F.3d 173, 175-76 (3d Cir.2002) (“[T]he use of ambiguous language does not preclude a statement from being a threat.” (quoting United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir.1997))).
Moreover, after Wheeler’s phone call, Brown was frightened to the point where she took her children and left the house, refusing to enter it again until it had been searched by the police. Even assuming *423Brown may have overreacted to Wheeler’s statement, from Officer Coss’s perspective at the time her behavior indicated at least a genuine subjective fear, from which Coss could reasonably infer that Wheeler must have said something in such a way as to instill a reasonable fear the threat would be carried out.
The majority is correct that “officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but must independently investigate the basis of the witness’ knowledge or interview other witnesses.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001). However, “a sufficient basis of knowledge is established if the victim provides facts sufficiently detailed to cause a reasonable person to believe a crime had been committed and the named suspect was the perpetrator.” Peng v. Mei Chin Penghu, 335 F.3d 970, 978 (9th Cir.2003) (internal quotation omitted). Brown’s statements regarding what transpired on the phone with Wheeler were sufficiently definite and descriptive to establish that a crime had been committed. Although Wheeler himself was the only witness to the conversation, Brown’s complaint was corroborated by the Caller ID and by her behavior immediately following the conversation. When asked, Wheeler admitted he had called Brown and discussed some financial issues with her. Thus, overall, Brown’s statements were sufficiently specific and sufficiently corroborated for Officer Coss to rely on them to establish probable cause for the crime of harassment.
The majority relies heavily on Wheeler going to the police substation and requesting a police escort home to undermine the reasonableness of the arrest. Although this action may have indicated Wheeler did not actually intend to harm Brown that evening or that he changed his mind after making the statement he did, the crime of harassment does not require an intention to carry out the threat — it is the making of the threat that violates the statute, so long as the words place the recipient in reasonable fear the threat will be carried out. Wheeler’s later actions are simply irrelevant to whether Officer Coss reasonably believed Wheeler had harassed Brown with the earlier phone call.
I would conclude that the district court erred in denying Coss’s motion for summary judgment on the basis of qualified immunity. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471332/ | MEMORANDUM **
Noel Roman Gimeno appeals from the district court’s denial of his motion to reduce his 140-month sentence under 18 U.S.C. § 3582(c)(2). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Gimeno’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Gimeno’s pro se request for counsel, received in this court on May 8, 2009, is deemed filed and is denied.
Counsel’s motion to withdraw is GRANTED, and the district court’s order is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*425ed by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471335/ | MEMORANDUM **
Liza Laurensia Lie, and her husband, both natives and citizens of Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their application for withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evi*426dence, Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir.2003), and we grant in part and deny in part the petition for review.
The agency denied Lie’s asylum application as time-barred. Lie does not challenge this finding.
Substantial evidence supports the BIA’s conclusion that Lie failed to establish that she suffered past persecution in Indonesia. See Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir.2009). However, the BIA erred in holding that the disfavored group analysis was inapplicable to Lie’s withholding of removal claim, so we remand to the BIA for reconsideration of this claim. See id. at 1067; INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
Substantial evidence supports the agency’s denial of CAT relief because Lie failed to establish a likelihood of torture in Indonesia. See Wakkary, 558 F.3d at 1068.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471529/ | ORDER
Gloria Dickerson, an African-American woman, sued Walgreen for firing her, claiming that the firing violated 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e et seq., because it was racially discriminatory and unlawfully retaliatory. Walgreen explained that it had fired Dickerson, a store manager, for violating company policy when she authorized the use of coupons and cash that had been found in the store to cover shortages of money in cash drawers. The district court granted summary judgment for Walgreen, and Dickerson appeals.
Dickerson’s pro se appellate brief is deficient in an unusual way: Dickerson has reused, verbatim, 19 pages from the 21-page brief her former counsel filed in opposition to summary judgment in the district court. Aside from being deficient, the brief ill serves Dickerson because it does not engage the district court’s comprehensive opinion. Nevertheless, the brief is sufficient to give notice of the issues that Dickerson wishes to raise on appeal — that may be why Walgreen has not complained — and so we consider those issues.
The district court granted summary judgment on Dickerson’s discrimination claim because the only Walgreen employee she accused of discrimination was a former supervisor who was not involved in the decision to terminate her. Of the nineteen examples of this supervisor’s conduct that the district court considered, only one even comes close to suggesting discrimination: the supervisor apparently stated that he had pushed Dickerson harder than he had pushed other managers. To survive summary judgment under the direct method, Dickerson had to present evidence that “allows a jury to infer intentional discrimination by the decisionmaker.” Phelan v. Cook County, 463 F.3d 773, 779-80 (7th Cir.2006). Dickerson’s evidence was insufficient because, at most, it showed discrimination only by someone who was not the decisionmaker.
The district court did not explicitly consider the indirect method of proving discrimination, but our consideration of it does not aid Dickerson. Under the indirect method, if Dickerson were to present a prima facie case of discrimination, the burden would shift to Walgreen to offer a nondiscriminatory reason for the discharge. Once it did so, the burden would shift back to Dickerson to submit evidence showing that the nondiscriminatory reason was a pretext for discrimination. See Fane v. Locke Reynolds, LLP, 480 F.3d *180534, 538 (7th Cir.2007). Even assuming that Dickerson put enough evidence in the record to support a prima facie case of discrimination, her evidence did not rebut Walgreen’s nondiseriminatory explanation, because she did not dispute that, in violation of company policy, she authorized her subordinates to use money that a customer had found to cover a shortage in a cash drawer. This concession ends her discrimination case. See Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 697 (7th Cir.2006) (where plaintiff was fired for violating company policy admitted the violation, she could not rebut employer’s nondiscriminatory reason for the firing).
Next, we affirm the district court’s ruling on Dickerson’s retaliation claim under both the direct and indirect methods of proof. Under the direct method, Dickerson’s evidence fails to show a causal connection between any protected conduct and her termination. The only potentially protected activities were Dickerson’s complaints about the conduct by her former supervisor that she took to be discriminatory. , But those complaints came more than one year before Walgreen fired Dickerson. The district court correctly ruled that no jury could reasonably find that these year-old events supported a direct case of retaliation. See Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 851 (7th Cir.2008).
The district court also found that Dickerson did not present enough evidence under the indirect method of proving retaliation. To establish a pñma facie case under the indirect method, Dickerson had to present evidence showing, among other things, that a similarly situated employee who did not engage in protected activity received more favorable treatment. See id. at 850. The district court was correct that Dickerson supplied no evidence of such a person. First, the subordinates whom she identified were not similarly situated to her. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.2002). Dickerson also pointed to a white store manager who was fired after threatening to kill her supervisor but who received some benefits after termination that Walgreen did not also give to Dickerson. That evidence might help Dickerson if her claim were about being denied benefits after termination, but Dickerson’s claim was about the termination itself. In any event, the district court correctly found that Dickerson and this store manager were not similarly situated. In addition to threatening to kill her supervisor, the other store manager had threatened to kill herself, and so Walgreen wanted to help her receive mental health treatment. Dickerson, in contest, has never claimed that she suffered from any mental illness. See Cassimy v. Board of Educ. of Rockford Public Schools, Dist. No. 205, 461 F.3d 932, 938 (7th Cir.2006) (plaintiff and employee with more severe illness not similarly situated). Dickerson and this other manager were also not similarly situated because different decisionmakers were involved in their terminations. See Ellis v. United Parcel Service, Inc., 523 F.3d 823, 826 (7th Cir.2008). Accordingly, the district court correctly granted summary judgment on this claim as well.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471531/ | ORDER
Tramell Watson was riding in the passenger seat of a car that drew the attention of two police officers. The officers stopped the car and found that Watson, who had a felony conviction, was carrying a gun. He was charged with possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). After Watson unsuccessfully sought to have the gun suppressed, a jury was selected. During jury selection, the government used a peremptory strike to remove the lone African American from the jury pool. The jury eventually voted to convict Watson, and he was sentenced to 120 months’ imprisonment. Watson filed a notice of appeal, but his appointed lawyers move to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because they cannot discern any nonfrivolous ground for appeal. Watson did not accept our invitation to respond to his lawyers’ submission. See CiR. R. 51(b). Limiting our review to the potential issues identified in counsel’s facially adequate supporting brief, see United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009), we grant counsel’s motion and dismiss the appeal.
The first potential issue discussed by counsel is whether Watson could challenge the district court’s ruling on the suppression motion. The court denied the motion after hearing testimony from the police officers who stopped the car and from Jonathan Grant, the driver. Officer Richard Kennedy testified that on the night of January 3, 2007, he was driving a squad car with Officer Shalene Eagleson in the passenger seat when he saw a gold car in his rear-view mirror. The officers were driving at the speed limit, so when the gold car passed them, Kennedy knew that the driver was speeding. Both he and Eagleson saw that the driver was not wearing a seatbelt. Grant, the driver, testified that he was wearing his seatbelt. The officers followed the car for several blocks before Grant turned into a residential driveway. Kennedy testified that the officers turned on their emergency lights just before the car pulled into the driveway, Eagleson testified that they turned on the lights at least a block before reaching the driveway, and Grant testified that the lights went on after he turned into the driveway.
After the gold car stopped in the driveway, the officers parked their car in the driveway behind it and approached. While Grant produced an identification card, the *183officers shined their flashlights into the car. They saw one passenger in the front seat and one in the back. The officers were able to tell that the front-seat passenger was holding two open bottles, one of juice and one of cognac. Kennedy recognized the front-seat passenger as Watson from previous interactions. The officers ordered Watson to put his hands on the dashboard, but instead of following the officers’ orders, he reached into his jacket pockets and removed several handfuls of balled-up dollar bills, which he threw into the rear seat. The officers later totaled the cash at about $1,600. After removing the driver and the rear-seat passenger from the car, Kennedy approached the passenger side and told Watson to hand him the bottles. As Watson handed Kennedy the bottles, the officer saw the grip of a handgun in Watson’s lap. Kennedy then drew his weapon and told Watson not to move his hands. While Kennedy held his weapon against Watson’s head, he removed the gun he had seen in Watson’s lap.
In denying Watson’s motion to suppress the gun, the district court credited the officers’ testimony that Grant was not wearing a seatbelt. Thus, based on the officers’ reasonable belief that the driver had violated a traffic law, the court ruled that the stop was lawful. See United States v. Dowthard, 500 F.3d 567, 569-71 (7th Cir.2007). We would review the district court’s factual finding for clear error and its legal conclusion de novo. See United States v. Groves, 559 F.3d 637, 640 (7th Cir.2009). But the factual finding is unassailable. The officers’ testimony contained minor inconsistencies, but nothing that would lead us to question the court’s decision to credit the officers’ testimony over Grant’s. See United States v. House, 551 F.3d 694, 700 (7th Cir.2008). And because a driver’s failure to wear a seat-belt is a violation of Illinois law, see 625 ILCS 5/12-603.1, any argument against the district court’s legal conclusion would be frivolous. See Dowthard, 500 F.3d at 569-71. Counsel also consider challenging the stop based on its location in a private driveway, but because there was no evidence that Grant’s presence in the driveway was even authorized by the driveway’s owner, he had no reasonable expectation of privacy there. See Minnesota v. Olson, 495 U.S. 91, 99-100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); see also Bleavins v. Bartels, 422 F.3d 445, 454 (7th Cir.2005) (there is generally no right to privacy in a driveway).
The next issue counsel consider raising is the government’s use of a peremptory strike against the only African American in the venire. Watson objected to the strike under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although the district court ruled that Watson had not made a prima facie case of a racially discriminatory strike, the court asked the government to explain the strike in order to make a record for appeal. The prosecutor answered that the prospective juror had previously been fined for illegally possessing a gun in her car, so the government did not want her deciding a case involving the illegal possession of a gun in a car. Without explicitly deciding whether this justification was race-neutral, the district court excused the juror. The district court was correct that Watson failed to make a prima facie case because he did not point to any evidence of discrimination beyond the stricken juror’s race. See United States v. McMath, 559 F.3d 657, 664 (7th Cir.2009). Even if Watson had pointed to evidence that created an inference of discrimination, we see nothing in the record that would call into question the government’s race-neutral explanation for the strike. Accordingly, any *184argument that the court erred by allowing the strike would be frivolous.
Finally, counsel consider a challenge to Watson’s prison sentence of 120 months, the statutory maximum. See 18 U.S.C § 924(a)(2). The district court based its sentencing decision on, among others reasons, suspicion over Watson’s possession of about $1,600 even though he was unemployed, his history of noncompliance with conditions of his state probation and parole, and his history of violent and aggressive behavior. Because Watson’s guidelines range was above the statutory maximum sentence he received, we would review that sentence with a presumption of reasonableness. See United States v. Sawyer, 558 F.3d 705, 714-15 (7th Cir.2009). Counsel have not suggested any way, and we see none, that Watson could overcome the presumption.
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471535/ | *189ORDER
This case involves the repeated run-ins of a father and son with local police over a motorized scooter, resulting in multiple citations and an arrest for obstruction of a peace officer. Following these events, Adam Holm and his teenage son Daniel sued the Village of Coal City, Illinois, and several local police officers, claiming that these defendants had conspired to violate their constitutional rights, used excessive force while arresting Adam, and illegally seized their scooter. The district court granted summary judgment for the defendants and we affirm.
One evening in July 2005, a Coal City police officer pulled Adam over for a routine traffic stop. The officer knew that Adam had an outstanding criminal complaint against him stemming from his refusal to accept two citations that Coal City police officers had issued to him and Daniel, following Daniel’s repeated misuse of a motorized scooter (riding without a license and riding in the road). After he was stopped, Adam promptly called family friends, who soon arrived and parked their car across the street. A second officer arrived to assist in the arrest, and together, the officers handcuffed Adam, forcefully took him by the elbow, and twice pushed him toward the police car.
Three weeks later a Coal City police officer again observed Daniel riding a motorized scooter on the road without a driver’s license. He therefore impounded the scooter, cited Daniel for riding without a license, and cited Adam, as the scooter’s owner, for permitting an unauthorized person to drive the vehicle. Both citations, however, were later dismissed.
The Holms then filed this suit under 42 U.S.C. § 1983, asserting a wide variety of civil rights claims, and the defendants moved to dismiss the complaint for failure to state a claim, see Fed.R.Civ.P. 12(b)(6). The court dismissed several of the Holms’ claims, ranging from an alleged violation of substantive due process to illegal seizure of the Holms’ car. Following the close of discovery, the court ultimately granted summary judgment for the defendants on the Holms’ remaining claims. Regarding Adam’s claim of excessive force, the court concluded that the officers’ use of force was objectively reasonable in light of Adam’s actions and, in any event, he had presented no evidence of a resulting injury. As for the Holms’ claims of false arrest and illegal seizure of the scooter, the court found that the officers’ actions in each instance were supported by probable cause. As for the Holms’ claim that the scooter’s impoundment violated their equal protection rights under a class-of-one theory, the court determined that they failed to identify anyone similarly situated to them who was treated differently. And finally, regarding the Holms’ claims of conspiracy and municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the court rejected these as a matter of law because the Holms had not established any constitutional violations.
On appeal the Holms contend that the district court ignored their version of events and overlooked unresolved issues of fact regarding their claims of excessive force, illegal seizure, equal protection, conspiracy, and municipal liability. To survive summary judgment, they had to present sufficient evidence of a genuine issue of material fact to counter the defendants’ assertions that they are entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir.2008); Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 627-28 (7th Cir.2006). And, as the non-moving party, the Holms could no longer rest on the allegations contained in their pleadings but were *190required to come forward with specific evidence to establish a genuine issue for trial. See Keri, 458 F.3d at 628.
Adam Holm first challenges the district court’s ruling on his excessive force claim, taking issue with the court’s finding that he escalated the situation by calling additional people to the scene, repeatedly yelling to them, and pausing on his way to the police car. He contends that he remained calm and cooperative, yelled only out of pain, and did not intentionally stop. Adam’s characterization of the facts, however, is inconsistent with the record evidence, and, as our review of the undisputed facts shows, the officers’ use of force was objectively reasonable. An officer’s right to arrest an individual includes the right to use some degree of physical force, but as the Fourth Amendment requires, that force must be objectively reasonable in light of the facts and circumstances of the particular situation. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Stainback v. Dixon, 569 F.3d 767, 772 (7th Cir.2009). Here, Adam’s own deposition testimony shows that as he was escorted to the police car, he repeatedly yelled across the street to his friends, complained to the officers, and took a short pause. To guide him to the car, the officers “yanked” his arm, and issued two quick pushes to his back, and as Adam later testified, it was as if the officer was trying to “keep me going ... trying to hurry me up.” In light of these circumstances, the officers’ efforts to physically “hurry” him to the car, were not unreasonable.
Adam also takes issue with the court’s statement that he presented no evidence of an injury, pointing to hospital records from a visit shortly after his arrest and his deposition testimony that he experienced pain for several months in his right rotator cuff and upper back and neck and continues to have pain in his right arm. As for the records Adam relies upon to show that he was injured by the officers’ actions, we question their usefulness given that they document his visit to the emergency room following a subsequent car accident and contain inadmissible hearsay. See Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir.2007). But regardless, Adam had to do more than point to an injury or its seriousness; he had to “also ‘identify the specific unreasonable conduct that caused his or her injuries,’ ” Stainback, 569 F.3d at 772-73 n. 7 (quoting Abdullahi v. City of Madison, 423 F.3d 763, 770-71 (7th Cir.2005)), and this he has not done.
Next the Holms challenge the district court’s conclusion that the defendants’ impoundment of the scooter was supported by probable cause and thus did not violate the Fourth Amendment’s prohibition against unreasonable interferences with property. See Lee v. City of Chi., 330 F.3d 456, 460 (7th Cir.2003). Noting that the scooter citations were later dismissed, the Holms contend that the officer impounded the scooter without justification. They further argue that the provision of the Illinois Motor Vehicle Code regulating the operation of “motorized pedalcycles,” 625 III. Comp. Stat. 5/11-1403.1, was not yet in effect and therefore, they contend, Daniel could not have broken any law at the time.
The officer’s impoundment of the scooter did not violate the Fourth Amendment. An impoundment is permissible so long as it is supported by probable cause or is “consistent with the police role as ‘caretaker’ of the streets,” United States v. Duguay, 93 F.3d 346, 352 (7th Cir.1996). Although the citations were later dismissed, the officer’s uncontested testimony was that he stopped Daniel because he believed that Daniel was violating the general statutory prohibition against driving a motorized vehicle without a license, see 625 *191III. Comp. Stat. 5/6-101. Moreover, where, as here, there was no licensed driver available to remove the vehicle from the public roadway, an officer is authorized to remove it as part of his “community care-taking function.” See South Dakota v. Opperman, 428 U.S. 364, 868-69, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Duguay, 93 F.3d at 354 n. 2 (“Impoundment may be appropriate where no passenger has a valid license.”); United States v. Griffin, 729 F.2d 475, 480 (7th Cir.1984); see also Davis v. Novy, 433 F.3d 926, 930 (7th Cir.2006) (noting that “the Illinois Vehicle Code directs that a driver who is lacking both license and insurance ‘shall have his or her motor vehicle immediately impounded by the arresting law enforcement officer.’ 625 ILCS 5/6-101(d).”).
The Holms also contest the district court’s determination that the impoundment of the scooter did not violate their equal protection rights under a “class-of-one” theory. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam); United States v. Moore, 543 F.3d 891, 896 (7th Cir.2008). Under that theory, the Holms had to show (1) that they were intentionally treated differently from others similarly situated, and (2) that there is no rational basis for that differential treatment, or that the cause of the differential treatment is the defendants’ illegitimate animus toward them. See McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir.2004). The Holms insist that they identified a similarly situated individual who was treated differently — Samantha Cerda, who was also riding a motorized scooter when the officer stopped Daniel. But Cerda was not similarly situated because she was not “prima facie identical in all relevant respects.” Furze v. Vill. of Winthrop Harbor, 286 F.3d 452, 455 (7th Cir.2002). Unlike Daniel, Cerda had not already received multiple warnings about driving the scooter in the road or been previously cited for such actions. See Levenstein v. Salafsky, 414 F.3d 767, 776 (7th Cir.2005) (rejecting claim by suspended employee for failing to show that other employees also accused of sexual harassment but who were not suspended or investigated were identical in all relevant respects).
Finally, the Holms argue that by ignoring their evidence purporting to show that the defendants violated their constitutional rights, the district court compounded its error by rejecting their claims of conspiracy and municipal liability. But as the Holms acknowledge, a showing of a constitutional violation is needed to recover on either a Monell claim for municipal liability or a § 1983 claim of conspiracy. See Reynolds v. Jamison, 488 F.3d 756, 764 & n. 4 (7th Cir.2007); Alexander v. City of South Bend, 433 F.3d 550, 557 (7th Cir.2006). And they have not successfully established that any constitutional violation occurred.
Accordingly, we AFFIRM the decision of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471537/ | ORDER
David Bowers, a former inmate at the Green Bay Correctional Institution in Wisconsin, sued the warden and several staff members under 42 U.S.C. § 1983, claiming that they confined him in conditions that violated his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment right to due process. The district court granted summary judgment for the defendants, and we affirm.
Unless otherwise noted, the facts are not in dispute. Before entering Green Bay in November 2005, Bowers was housed at Dodge Correctional Institution, where he had a history of disruptive and self-harming behavior, including a propensity to insert objects into his penis. When Bowers swallowed a handful of pills and refused medical treatment, inserted teeth from a comb into his penis, and smeared feces in his cell, officials at Dodge sought to have him transferred to the Wisconsin Resource Center (“WRC”), a specialized mental-health facility. Just one week earlier, in evaluating Bowers’s competency to stand trial, a private forensic psychiatrist had diagnosed him with “bipolar disorder with psychotic features” and advised that Bowers should receive psychiatric treatment and monitoring to ensure that he was taking his medications. But a prison psychologist had also evaluated Bowers around the same time and concluded that, although he occasionally exhibited psychotic symptoms, his behavior raised a strong possibility that he was malingering and using manipulative behavior to “get to and from WRC.” WRC’s admissions coordinator apparently shared this view: he refused to admit Bowers to the facility because he believed that Bowers, who had been at WRC before, was “manipulative and not psychotic” and purposely engaged in disruptive behavior so that officials would transfer him to his preferred facility. For reasons unclear from the record, Bowers was instead transferred to Green Bay, where he was placed immediately in observation status, a nonpunitive measure intended for “the temporary confinement of an inmate to ensure the inmate’s safety and the safety of others.” See Wis. Admin. Code. § DOC 311.01.
Bowers was loud and defiant from the moment he arrived at Green Bay, refusing orders to remove his clothing and announcing “David Bowers is in the house” and that staff would have to “deal with” him. Bowers met with staff psychologist Martha Breen-Smith several times during his first week, and he made vague threats to harm himself or others and warned that he would be her “nightmare” if he was not placed in the general population. By the end of that week, he finally was more compliant, and Dr. Breen-Smith released him from observation. Bowers was notified in writing, however, that because of his self-destructive and abusive actions, he was being placed on a “Behavioral Action Plan” (“BAP”) and that, for “safety and security reasons,” his property and privileges would be restricted. Under the terms of the initial BAP, his cell would be searched twice a week; he would receive bag meals and a “seg smock” (a one-piece poncho-like article of clothing that covers the body from the chest to below the groin, see Gillis v. Litscher, 468 F.3d 488, 491 (7th Cir.2006)); he would be permitted to leave his cell for two hours each week to review mail and write letters and another two hours for clinical or group therapy; *194and he would be provided a towel and hygiene supplies on request.
Although there were brief periods of relative calm, Bowers was for the most part a recalcitrant and manipulative inmate. For example, on November 22, the day after the BAP was implemented, Bowers was allowed outside of his cell to write letters but became angry when guards attempted to return him two hours later. Once inside his cell, he used his mattress to block the door, smeared feces from his toilet on the cell windows, and, according to prison staff, said, “Let me keep writing and I’ll stop smearing shit.” When guards were finally able to extract him and move him to a new cell, he again spread feces around the cell and also tried to shred a towel and tamper with the cell sprinkler head, threatened suicide, and, after cutting himself, smeared blood on the cell door. Dr. Breen-Smith was called in to evaluate him and noted in her report that Bowers had momentarily agreed not to hurt himself further but promised to inflict self-harm in the future if not given the property he demanded.
Bowers frequently threatened to harm himself and often succeeded in carrying out the threats: he repeatedly inserted random objects into his penis, including toenail clippings, orange peels, bits of his mattress, cardboard from milk cartons, a ball-point-pen insert, a bandage, and pieces of metal from a dismantled sprinkler head. He often banged his head against his cell wall and once bit his own arm to the point that he required hospitalization and later smeared feces in the wound. He also regularly lashed out against guards until they threatened to subdue him with a Taser, and staff often needed to place him in five-point restraints — meaning they strapped him with velcro to a padded bench at the limbs and torso — in order to transport him to the hospital to assess his self-inflicted injuries or move him into a new cell after he had made his uninhabitable. On one occasion Bowers threatened to put a ball-point-pen insert into his penis, but when guards threatened to move him to observation status, he said he never intended to hurt himself and had only made the threat because he was “ready to transfer” and “wanted to see a white shirt” (i.e., a supervising officer). Another time he claimed to have placed a pen insert into his penis and a toothbrush in his rectum, but when a nurse attempted to examine him, he yelled: “That is sexual assault. I’m going to sue you.” She did examine him, though, and he had not done what he claimed. Bowers also, on at least four occasions, flooded or attempted to flood his cell by dismantling the sprinkler head or pouring toilet water on the floor. He also regularly tried to take medications that were not his; once, when a guard administering medications came to his cell, Bowers wielded a handful of feces and, when the guard stepped back to avoid being hit, Bowers grabbed and ingested handfuls of pills from the medicine cart.
Despite Bowers’s consistently difficult behavior, the BAP was reevaluated at least 21 times between November 2005 and July 2006 and various property and privileges were restored — albeit usually only temporarily — when Bowers demonstrated that he would not abuse them. For example, his mattress was taken away when he tried to stuff pieces of it into his penis but was returned to him when his behavior cooled. Then when he used the mattress to block his cell window, stood on it to dismantle the sprinkler head, or again destroyed it and inserted pieces into his penis, it was taken away again. Similarly, he was allowed to have headphones in his cell until he threatened to harm himself with the ear buds, and he was provided milk cartons *195with his meals until he tried to insert shreds of the cartons into his penis.
It is undisputed that, on at least fifteen occasions between November 2005 and July 2006, guards placed Bowers in five-point restraints to prevent his self-destructive behavior and kept him restrained for up to twelve hours at a time, the maximum amount of time an inmate may be immobilized without the recommendation of a psychologist or psychiatrist. See Wis. Admin. Code § DOC 306.11(3)(e). Although guards threatened him several times with a Taser, they used it only once during a chaotic attempt to extract Bowers from his flooded cell. On at least one other occasion, guards tried unsuccessfully to subdue Bowers with a “one-second burst” of an incapacitating agent.
Bowers was eventually transferred to Columbia Correctional Institution, and he filed this lawsuit pro se in November 2006. The district court screened his complaint, see 28 U.S.C. § 1915A, and allowed Bowers to pursue his claim that the conditions of his confinement under the BAP were unconstitutional. When the defendants moved for summary judgment, the district court appointed counsel for Bowers. After discovery and a second round of briefing, the district court granted summary judgment for the defendants on all claims. In a comprehensive 34-page opinion, the court first concluded that the conditions imposed in the BAP did not rise to the level of a denial of life’s necessities or result in wanton or unnecessary infliction of pain. The court explained that, although the conditions may have “deprived him of some dignity,” they were imposed only to “prevent Bowers’s self-abusive behavior and protect him from himself.” Next, although counsel for Bowers had not even developed the argument, the district court analyzed whether his placement in the BAP violated due process and concluded' that there was no genuine factual dispute on the issue. The district court also observed that Bowers had spent the bulk of his brief in opposition to summary judgment arguing that the defendants had been deliberately indifferent to his need for mental-health treatment. But Bowers had not included this claim in his complaint or supported it with evidence at summary judgment, and the court thus concluded that any such argument was not properly before it. And, in any event, the court explained, Bowers had not identified what treatment, if any, he had received at Green Bay or explained why it was deficient and thus had not raised a genuine factual dispute on the issue. This pro se appeal followed.
We review the district court’s grant of summary judgment de novo, construing all facts and reasonable inferences in favor of Bowers, the opposing party. See Gillis, 468 F.3d at 492. As an initial matter, we note that Bowers has once again spent much of his brief trying to argue that the defendants were deliberately indifferent to his need for mental-health treatment. Although the theory was discussed in Bowers’s submissions in opposition to summary judgment, Bowers neither raised a claim of deliberate indifference in his complaint nor did he, through his actions during the lawsuit, litigate the claim. See Hancock v. Potter, 531 F.3d 474, 480 (7th Cir.2008); Torry v. Northrop Grumman Corp., 399 F.3d 876, 879 (7th Cir.2005); Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir.2002). In any event, the record sheds little light on Bowers’s mental-health treatment at Green Bay. At summary judgment he produced no evidence that the treatment he did receive was deficient, nor did counsel try to develop the conflicting evidence concerning whether Bowers actually suffers from a serious mental illness or is simply adept at manipulation. And without evi*196dence on these points, summary judgment for the defendants would have been appropriate even if Bowers had raised a claim about his mental-health treatment.
We turn, then, to Bowers’s remaining arguments: that the conditions of confinement imposed on him through the Behavioral Action Plan violated his rights under the Eighth and Fourteenth Amendments. We deal first with the latter argument, which has no legs. The Fourteenth Amendment does not “confer a right to a predeprivation hearing in every case in which a public officer deprives an individual of liberty or property.” Holly v. Woolfolk, 415 F.3d 678, 680 (7th Cir.2005). Rather, a prisoner has a liberty interest in avoiding particular conditions of confinement only if those conditions pose “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Wilkinson v. Austin, 545 U.S. 209, 223, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (quoting Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). Here, there is simply no evidence that any of the conditions of the BAP, such as the denial of a mattress in response to Bowers’s attempts to use it for self-harm, posed an atypical hardship.
The objections Bowers has to the conditions of the BAP are better conceptualized under the Eighth Amendment. To succeed on a claim under the Eighth Amendment, Bowers needed to present evidence from which a factfinder could conclude, first, that the conditions of his confinement resulted in “ ‘the denial of the minimal civilized measure of life’s necessities,’ ” and, second, that the defendants were deliberately indifferent to the conditions in question, meaning that they knew of and disregarded an excessive risk to Bowers’s health or safety. See Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir.2008) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). The general conditions of Bowers’s confinement are not in dispute: under the terms of the BAP he was at times allowed only a “seg smock” or paper gown, sometimes denied a mattress or blanket, and, on as many as fifteen occasions, left in five-point restraints for as long as twelve hours at a time. Bowers likens these conditions to those in Gillis, 468 F.3d at 489-91. In that case the inmate was placed in a punitive “Behavioral Modification Program” for no reason other than violating a prison rule requiring him to sleep with his head toward the back of his cell. Id. at 489-90. For the first five days of the program, the inmate was deprived of human contact, left naked with no mattress or other bedding in a cell so cold he paced fourteen hours each day to stay warm, fed only a ground-up block of food, and denied access to toilet paper. Id. at 490-91. The following week he was finally allowed some clothing and regular meals but still denied a mattress or bedding, and he was not allowed to shower until the ninth day of the program. Id. at 491. Further, the inmate could not return to normal conditions simply by behaving himself; once the program was initiated, he was required to complete the entire course of punishment. Id. at 494-95. This evidence, we concluded, was sufficient to permit the inmate to survive summary judgment on a claim that the conditions of his confinement were unconstitutional. Id. at 493-95.
Bowers’s case is a far cry from Gillis. First, the Behavioral Modification Plan in Gillis was a punitive response to a minor infraction, and the inmate was required to complete the entire twelve-day plan before returning to normal conditions. Here, in contrast, the restrictions imposed on Bowers were non-punitive and designed instead to prevent him from harming himself or others, and the terms of the plan were *197reevaluated on a regular basis, sometimes as often as four times a month. Although the denial of such basic items as a mattress or clothing may seem harsh in the abstract, we cannot evaluate prison conditions in a vacuum. See, e.g., Scarver v. Litscher, 434 F.3d 972, 976-77 (7th Cir.2006); Bruscino v. Carlson, 854 F.2d 162, 164-65 (7th Cir.1988). When Bowers was given a mattress, he tore it up and inserted pieces into his penis or stood on it and dismantled the sprinkler system. He destroyed a blanket, tore up paper gowns, persistently spread feces around his cell, and harmed or threatened to harm himself with any item he could get his hands on. "When he destroyed property or used it for self-harm, it was temporarily taken away but returned when his behavior stabilized. Bowers did not present evidence from which a factfinder could conclude that the terms of the BAP were anything other than a justified and well-tailored response to his repeated attempts to destroy property or use it to hurt himself.
Finally, to the extent that Bowers asserts that guards used excessive force by attempting to subdue him with five-point restraints, incapacitating agents, and a Taser, he again failed to present evidence sufficient to survive summary judgment. To succeed on an excessive-force claim, Bowers had to demonstrate that the defendants inflicted punishment “maliciously and sadistically for the very purpose of causing harm.” See Wilson v. Seiter, 501 U.S. 294, 302, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (quotation marks and citations omitted); see also Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir.2005). Although Bowers alleged that he was restrained with “steel handcuffs” so tight that his hands turned purple and lost feeling, the defendants submitted evidence— including video footage of Bowers being restrained — that the restraints in question are made of Velcro. And, in any event, there is no evidence that guards used force against Bowers to punish him; the record demonstrates that force was used only to protect guards during cell extractions or to prevent Bowers from harming himself.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471339/ | MEMORANDUM **
Jose Vasquez-Garcia appeals from his guilty-plea conviction and 63-month sen*428tence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Vasquez-Garcia’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*428ed by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471344/ | MEMORANDUM **
David Carl Camp appeals from the 57-month sentence imposed following his guilty-plea conviction for bank robbery, in violation of 18 U.S.C. § 2113(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.
Camp contends that the district court erred by imposing a special condition of supervised release requiring him to submit to search or seizure “with or without a warrant and with or without reasonable or probable cause.” This search condition does not facially violate the Fourth Amendment. United States v. Dupas, 419 F.3d 916, 922 (9th Cir.2005). Furthermore, the record reflects that the district court did not abuse its discretion by imposing the condition in this case. See 18 U.S.C. § 3583(d); see also United States v. Weber, 451 F.3d 552, 557-58 (9th Cir.2006); Samson v. California, 547 U.S. 843, 854-55, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006).
*433Camp also contends that the district court erred by failing to give adequate notice under Federal Rule of Criminal Procedure 32(i)(l)(C) before imposing a special condition of supervised release requiring him to report to the district court every morning for three years. Because the record reflects that the district court failed to give adequate notice, we remand the sentence to permit the parties to address whether this special condition of supervised release is appropriate. See United States v. Wise, 391 F.3d 1027, 1033 (9th Cir.2004); see also United States v. Cope, 527 F.3d 944, 953 (9th Cir.2008).
AFFIRMED in part; VACATED and REMANDED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471540/ | FERNANDEZ, and FISHER, Circuit Judges. ■
MEMORANDUM **
Ron Troutman appeals the district court order affirming the bankruptcy court’s judgment in an adversary proceeding brought by the Official Committee of Unsecured Creditors of Troutman Investment Co. (“Committee”) in the Chapter 111 proceedings of Troutman Investment Company, d/b/a Troutman’s Emporium (“Emporium”). We affirm.
(1) The bankruptcy court did not err2 when it determined that Troutman owed the amount shown on the books of Emporium as his house account on the date of bankruptcy. That determination was properly made on an account stated theory,3 or on an open book account theory.4 Moreover, to the extent that Trout-man asserts that the amount shown in the account was not accurate at some earlier time, the bankruptcy court did not abuse its discretion5 when it determined that Troutman’s use of the amount shown in the account during his dissolution proceeding in 1996 judicially estopped6 him from claiming that the account was in error as of that time. Moreover, he does not point out any error that might have developed since then.
(2) Nor did the bankruptcy court err when it determined that Troutman owed $150,000 on account of an amount that Emporium ultimately advanced on his behalf. That Emporium obtained that debt from Troutman’s brother, to whom Troutman originally owed the money, did not affect the validity of Emporium’s claim. See Misic v. Building Serv. Employees Health & Welfare Trust, 789 F.2d 1374, 1378 n. 4 (9th Cir.1986); Tumac Lumber Co., Inc. v. United States, 625 F.Supp. 1030, 1032 (D.Or.1985); Commonwealth Elec. Co. v. Fireman’s Fund Ins. Co., 93 Or.App. 435, 438, 762 P.2d 1041, 1042 (1988). Troutman’s assertion that Emporium was going to use the debt to purchase some of his stock in Emporium is futile because that arrangement was never pursued or consummated by either alleged party thereto.7
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. 11 U.S.C. §§ 1101-1174.
. See Cossu v. Jefferson Pilot Sec. Corp. (In re Cossu), 410 F.3d 591, 595 (9th Cir.2005).
. See Hulse v. Ocwen Fed. Bank, FSB, 195 F.Supp.2d 1188, 1200-01 (D.Or.2002); Sunshine Dairy v. Jolly Joan, 234 Or. 84, 85-88, 380 P.2d 637, 638-39 (1963); Tri-County Ins., Inc. v. Marsh, 45 Or.App. 219, 223-24, 608 P.2d 190, 192 (1980).
. See Farmer’s Feed & Supply Co. v. Indus. Leasing Corp., 286 Or. 311, 316, 594 P.2d 397, 400 (1979); Nw. Country Place, Inc. v. NCS Healthcare of Or., Inc., 201 Or.App. 448, 460, 119 P.3d 272, 279 (2005).
. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.2001).
. See Hamilton, 270 F.3d at 782-83; Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600-01, 603 (9th Cir.1996).
. For that reason alone, an amendment to Troutman’s defenses to assert that theory was properly rejected. See Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.2004); see also Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir.1990). Moreover, the request to amend was not timely. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608-609 (9th | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471542/ | MEMORANDUM **
In these consolidated petitions for review, Irfan Pervai Bhatti, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) and the BIA’s order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), we review for abuse of discretion the denial of a motion to reopen, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) and we review de novo constitutional questions, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petitions for review.
Substantial evidence supports the IJ’s adverse credibility finding based on an inconsistency between Bhatti’s declaration, police certificate, and his testimony regarding whether the police had a record of his arrest, and based on his father’s internally inconsistent testimony regarding the extent and timing of threats to Bhatti from Muslim militants. See Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.2005); see also Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001). Because the IJ had reason to question Bhatti’s credibility, the IJ reasonably took into account Bhatti’s failure to provide corroborating evidence in support of his claim of persecution, see Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir.2000) and we are not compelled to conclude that corroborating evidence was unavailable, see 8 U.S.C. § 1252(b)(4)(D). Accordingly, we uphold the agency’s denial of asylum and withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
*213Because Bhatti’s CAT claim is based on the same statements the IJ found to be not credible, and he does not point to any other evidence in the record that compels the conclusion that it is more likely than not he would be tortured if returned to Pakistan, substantial evidence supports the IJ’s denial of CAT relief. See id. at 1156-57.
The BIA did not abuse its discretion in denying Bhatti’s motion to reopen as untimely because it was not filed within 90 days of the BIA’s underlying order, see 8 C.F.R. § 1003.2(c)(2), and Bhatti failed to demonstrate changed circumstances in Pakistan to qualify for the regulatory exception to the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (“The critical question is ... whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.”).
Bhatti also contends the BIA violated his due process rights by not allowing him to present evidence of changed circumstances at an evidentiary hearing. Because the BIA considered the affidavits and country condition information attached to Bhatti’s motion to reopen, he cannot show a violation. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (holding petitioner must demonstrate error and substantial prejudice to prevail on a due process claim).
PETITIONS FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |