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April 3, 1995
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 1817--James B. Moran, Chief Judge.
Before COFFIN, *fn* CUDAHY and ROVNER, Circuit Judges.
This case involves an appeal from a jury's determination that two partnerships formed for the purpose of developing a parcel of land are not entitled to recover funding from potential investors who ultimately refused to advance funds due to legal concerns. Stuart Park Associates Limited Partnership and Stuart Park/Summit Partners, the partnerships behind a real estate venture known as "Stuart Park," attempt to impugn the jury's verdict on appeal. They assert that they were in fact entitled to recover under an Investment Agreement that they entered with Ameritech Pension Trust. They allege numerous errors about matters at trial, including complaints about jury instructions, about the district court's comments before the jury and about various evidentiary rulings. Because we approve of the manner in which the district court handled matters at trial, we affirm.
Stuart Park Limited Partnership and Stuart Park/Summit Partners (collectively, Summit) were formed for the purpose of developing a parcel of land in Arlington, Virginia. Summit planned to develop this land and build a high rise apartment complex to be called "Stuart Park." As part of the plans for Stuart Park, Summit sought to interest various investors in the project.
One of those investors was Ameritech Pension Trust (Ameritech). During the Fall of 1989, Summit began discussions with L&G Realty Advisors (L&G), one of Ameritech's investment advisors. By May 1990, Summit had made little progress in committing potential investors to funding for Stuart Park. Ameritech, for instance, had not responded to Summit's numerous entreaties. Summit's primary problem at Ameritech was attracting the interest of Ameritech's Director of Real Estate Investments, Lloyd B. Thompson, III (Thompson). Repeated efforts to interest Thompson in Stuart Park met with failure; Summit could not even succeed in getting Thompson to examine or discuss the project.
Finally, Summit contacted Donald Bennett (Bennett), one of Thompson's long-time real estate associates. Summit discussed Stuart Park with Bennett and suggested that he might be of assistance in securing Thompson's attention. Summit soon agreed to hire Bennett as a "broker" for Stuart Park. Summit and Bennett decided upon the one-time fee of $350,000.00. The parties dispute Bennett's precise duties under this arrangement. It is clear, however, that one of Bennett's obligations was to interest Thompson in Stuart Park. Bennett was soon successful in creating this interest.
At a meeting of Ameritech's Asset Management Committee, Thompson recommended that Ameritech invest more than $32 million dollars in Stuart Park. Ameritech acted upon his advice. In June 1990, Ameritech's Asset Management Committee approved the proposed investment. Negotiations for the funding began, and in September 1990, Summit and L&G (on behalf of Ameritech) signed an Investment Agreement. This Investment Agreement, among other things, obligated Ameritech to provide over $32 million in funds for Stuart Park.
Just prior to the signing of the Investment Agreement, Ameritech began conducting an internal investigation of alleged improprieties in an unrelated matter. In this regard, Ameritech hired attorney Howard Pearl, a former Assistant United States Attorney specializing in financial fraud. Pearl began conducting an internal investigation. While carrying on the investigation, he uncovered invoices that raised questions about Thompson's conduct. When he learned that Thompson planned to leave Ameritech at the end of September, Pearl shifted the focus of his investigation to Thompson.
Pearl first interviewed Thompson on September 25, 1990, a few days before Thompson's scheduled departure. Later that night, a security guard caught Thompson attempting to remove documents from his office. The security guard confiscated the documents, which revealed the particulars of the Bennett-Thompson relationship as it concerned a number of Ameritech's past investments. A note on one of the documents stated "Stuart Pk--$350 when close deal." R. App. 425.
In November 1990, Ameritech assembled a group of outside counsel to discuss the findings of Pearl's investigation and to analyze Ameritech's legal obligations as a pension trust. The group concluded that a kickback scheme existed between Thompson and Bennett, that the scheme violated federal law and that federal law prevented Ameritech from proceeding under its contract with Summit. On November 19, 1990, Ameritech accordingly notified Summit that it could not go forward with funding for Stuart Park.
The parties attempted negotiations. Summit took the position that any kickback scheme was Ameritech's problem and none of Summit's concern. When Ameritech steadfastly continued to refuse funding, Summit brought suit to recover under the Investment Agreement.
Summit originally asserted various claims, including claims for breach of contract and promissory estoppel. On a motion for summary judgment, the district court dismissed some of these claims, but ruled that the remainder of them needed to be submitted to the jury. In particular, the district court held that the jury should examine Ameritech's in pari delicto defense, in which Ameritech claimed that the Investment Agreement should not be enforced due to Summit's awareness of the illegality, because it presented a factual dispute. The court also found issues surrounding the promissory estoppel claim, particular elements of damage and the alleged failure of a condition precedent appropriate for jury submission. The court further ruled that Ameritech's suggestion that the contract was illegal was without merit because Ameritech's own agent, Thompson, had participated in the illegal circumstances of which it complained. Summary judgment was therefore granted in part and denied in part.
The parties went to trial. Once there, Ameritech presented the in pari delicto defense, as well as defenses based on breach of warranty and the failure to satisfy a condition precedent. The jury returned a general verdict in Ameritech's favor, finding that nonperformance of the Investment Agreement was justified. Summit appeals, making various complaints about the district court's choice of jury instructions, its statements to the jury and certain of its evidentiary rulings.
Summit's first complaints on appeal concern the district court's dealings with the jury. First, Summit suggests that the district court erred in instructing the jury about the doctrine of in pari delicto; the instruction used purportedly permitted the jury to deny relief if it found that Summit was recklessly indifferent to Thompson's wrong-doing. A proper instruction, claims Summit, would have focused on the parties' relative fault in the complained-of transaction. Second, Summit suggests that the district court improperly characterized the Investment Agreement as a "prohibited transaction." Summit asserts that such a characterization unfairly prejudiced it in the eyes of the jury.
The district court made the following statements to the jury:
The Court has previously ruled that Donald Bennett and Lloyd Thompson participated in a fee-splitting or kickback scheme in relation to the Stuart Park project.
The Court has previously ruled that the kickback scheme between Donald Bennett and Lloyd Thompson means that the transaction was a prohibited transaction that violated ERISA.
If you find that the defendant has proved that the plaintiffs' management knew or was recklessly indifferent to the wrongdoing of Bennett and Thompson prior to November 19, 1990, then you must find for the defendant.
And as to that, you can rely on any evidence that was presented to you, regardless of when it relates to, but what you would have to find is that the state of mind, meeting that standard in the instruction, existed prior to November 19, 1990.
R. App. 229. Despite Summit's complaints, we do not find these statements objectionable in the context of the present case. The focus of the parties' argument at trial renders any error in the submitted instruction harmless. Additionally, we do not believe that by using the term "prohibited transaction" the trial court prejudiced Summit's case. We therefore affirm.
A. The In Pari Delicto Problem
The crafting of jury instructions is largely a matter within the district court's discretion. Heller Int'l Corp. v. Sharp, 974 F.2d 850, 860 (7th Cir. 1992). Appellate review of jury instructions is therefore circumscribed. A reviewing court will examine the instructions given to determine whether, as a whole, they were likely to have substantially impaired the jury's ability to understand the case. Needham v. White Laboratories, Inc., 847 F.2d 355, 358 (7th Cir. 1988). This analysis examines an isolated clause in context to determine whether, despite inaccuracy or ambiguity, the complaining party suffered any prejudice as a result of the error. Binks Mfg. Co. v. Nat. Presto Industries, Inc., 709 F.2d 1109, 1117 (7th Cir. 1983).
Summit essentially makes three complaints about the instruction the district court gave concerning in pari delicto. First, it suggests that using a "recklessly indifferent" standard was prejudicial because it suggested to the jury that Summit had actual knowledge of the kickback. Second, it claims that the district court erroneously omitted reference to Ameritech's culpability in light of the fact that the doctrine of in pari delicto considers comparative fault. Finally, Summit asserts that the jury was erroneously instructed that it could consider evidence of Summit's state of mind prior to November 19, 1990, the date that Ameritech refused to extend funding for Stuart Park. We do not consider any of these alleged errors sufficient to demonstrate a level of prejudice meriting reversal.
The district court's instruction on in pari delicto allowed the jury to return a verdict for Ameritech if it found that Summit either "knew or was recklessly indifferent" to the Bennett-Thompson wrongdoing. This instruction does depart from the more standard statement of the doctrine. See generally, Corbett v. Devon Bank, 299 N.E.2d 521, 530 (Ill. App. Ct. 1973) (noting equal fault); O'Hara v. Ahlgren, Blumenfeld & Kempster, 537 N.E.2d 730, 737 (Ill. 1989) (focusing on equal fault). It does not do so in a way that prejudiced Summit, however.
Contrary to Summit's assertion on appeal, the instruction given did not suggest that Summit had knowledge of Bennett's and Thompson's wrongdoing. Summit claims that the court's use of the word "indifferent" implied that Summit knew of the scheme. We fail to see how this language suggests knowledge. One can be indifferent to something without knowing about it--for instance, when one is indifferent to knowing or finding out about it. The jury instruction specifically asks the jury to find whether Summit had knowledge of the wrongdoing. It is therefore difficult to understand precisely how such an instruction might have implied that Summit in fact had knowledge. It was clear under the instruction given that knowledge and reckless indifference were alternatives--either of which would be sufficient to preclude a judgment for Summit. No discernible prejudice resulted from this phraseology.
Neither do we find the instruction substantively wanting under the facts of this case. Summit complains because the doctrine of in pari delicto ordinarily requires a comparison of fault between the parties. The instruction given, on the other hand, focused only upon the possibility of Summit's wrongdoing, without examining Ameritech's conduct. We fail to see how this focus prejudiced Summit. Effectively, the instruction given established--as a matter of law--that Ameritech had either known of or been recklessly indifferent to the existence of the scheme. This was the precise issue that the instruction removed from the jury's consideration. If anything, such an instruction favored Summit--leaving open the possibility that it was not in fact aware of wrongdoing, while definitively establishing Ameritech's awareness. It is within a trial judge's discretion to focus the jury's attention on the issues to be determined. See General Leaseways v. Nat'l Truck Leasing Ass'n, 830 F.2d 716, 727 (7th Cir. 1987).
The case was in fact submitted to the jury in this form because of Summit's litigation posture. It argued that Ameritech could not try the issue of its own knowledge and conduct because of the district court's earlier ruling that Thompson's conduct would be imputed to Ameritech. The district court apparently accepted this argument. At Summit's insistence, therefore, the primary issue before the district court was the legitimacy of its own conduct. Summit's complaints about a departure from more traditional in pari delicto instructions therefore lack merit. *fn1
Neither did the district court's timing instruction prejudice Summit. The district court told the jury that evidence, "regardless of when it relates to," could be used to determine whether Summit knew about or was recklessly indifferent to the scheme. Summit now suggests that this allowed the jury to use Summit's after-the-fact nonchalance about Ameritech's internal problems as a basis for liability. The district court specifically stated in its instructions, however, that "you would have to find . . . that the state of mind, meeting that standard in the instruction, existed prior to November 19, 1990." These instructions clearly directed the jury to the relevant time for which they needed to examine Summit's knowledge. Because we use common sense to consider the instructions given as a whole, see Heller, 974 F.2d at 856, we find that this instruction correctly directed the jury to the relevant time period for Summit's awareness.
The district court's chosen instructions sufficiently apprised the jury of the fact-finding tasks to which it needed to devote its attention in the jury room. Having previously concluded that Thompson's misconduct should be imputed to Ameritech, the district court focused the jury's attention on Summit's awareness of the illegal activity. Although these instructions departed from the "comparative" standard ordinarily established for an in pari delicto defense, such a departure was within the trial court's discretion. The instructions applied the in pari delicto standard in practical effect--ultimately determining whether Summit was as culpable as Ameritech. In no way did the instructions suggest that Summit already possessed knowledge of the wrongdoing. And in no way did they advise the jury that it might premise liability on a state of mind existing at some time other than that of the illegal activity. Under these circumstances, Summit's complaints do not merit reversal.
B. The Comment on the Illegality of the Transaction
Summit also complains of a comment that the district court made to the jury concerning the legality of the Investment Agreement. Specifically, the court stated that "the kickback scheme between Donald Bennett and Lloyd Thompson means that the transaction was a prohibited transaction that violated ERISA." See generally Employee Retirement Income Security Act of 1974, 29 U.S.C. secs. 1001-1461 (1985) (ERISA). This statement reflects the court's earlier ruling on the motion for summary judgment, where it determined that the undisputed evidence demonstrated the existence of a "fee-splitting scheme" in relation to Stuart Park. Mem. Op. at 7-8. The district court believed that this scheme violated federal law because Thompson accepted personal monetary benefit despite various legal obligations to act solely in the interest of the Pension Trust's participants and beneficiaries. Id. The court declined to hold that this illegality rendered the Agreement unenforceable, however, because it imputed Thompson's behavior to Ameritech (and a party cannot invoke the defense of impossibility when its own actions rendered the contract illegal). Id. at 9.
Summit now complains of the court's later comment about this illegality. It claims that the Investment Agreement was not, in fact, illegal, despite Thompson's and Bennett's antics. It further claims that whatever the content of ERISA's provisions, those provisions should not be applied to enable a pension trust to avoid its contractual obligations to third parties. In response, Ameritech suggests that the district court ought to have held the Investment Agreement invalid as a matter of law.
Arguments about the Investment Agreement's validity must be read in the context in which they arose. Summit is essentially complaining about a comment that the district court made to the jury. It is well-established as within a trial judge's discretion to comment upon the evidence for the jury's benefit. General Leaseways, 830 F.2d at 727. See also 9A C. Wright & A. Miller, Federal Practice & Procedure sec. 2557 (1995). Here, the district court did just that. Because we believe the district court's characterization did not rest on an erroneous understanding of the applicable law, we find that Summit suffered no prejudice as a result of this remark. *fn2
The district judge correctly recognized that the arrangement between Bennett and Thompson violated ERISA's provisions and undermined its goals. ERISA was originally enacted as a comprehensive system of protections for the pensions and welfare benefits of employees and their beneficiaries. Anweiler v. American Elec. Power Service Corp., 3 F.3d 986, 989-90 (7th Cir. 1993). Consequently, a number of ERISA's provisions are directed toward monitoring the decisions made by plan managers and fiduciaries. Because the "crucible of congressional concern was the misuse and mismanagement of plan assets," specific statutory provisions address a fiduciary's self-dealing. Lowen v. Tower Asset Mgmt., Inc., 829 F.2d 1209, 1213 (2d Cir. 1987) (quoting Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 141 n.8 (1985)). In particular, ERISA's Section 406(b) specifies that:
A fiduciary with respect to a plan shall not--(1) deal with the assets of the plan in his own interest or for his own account, . . . or (3) receive any consideration for his own personal account from any party dealing with such plan in connection with a transaction involving the assets of the plan.
29 U.S.C. sec. 1106(b).
It is readily apparent that Thompson violated this provision by exchanging favorable recommendations for personal monetary gain. Here, he accepted a percentage of the money that Bennett received from Summit in connection with Stuart Park. He then made a recommendation that Ameritech invest over thirty-two million dollars in Stuart Park. Under these circumstances, it is clear that he did not act exclusively in the interest of Ameritech's participants and beneficiaries--as ERISA required him to do. See 29 U.S.C. secs. 1104(a)(1)(A)(i), 1106(b). See also Lowen, 829 F.2d at 1214 (holding that an ERISA fiduciary violates section 1106 by receiving money from a company because of the company's dealings with the pension fund). Summit apparently does not dispute this conclusion. Instead, it reiterates on appeal the same argument that it made to the jury--that it should not be held accountable for the wrongdoing of Bennett and Thompson.
Summit's argument depends entirely on its belief that the Investment Agreement ought to be considered unrelated to the Bennett-Thompson fee-sharing arrangement. It suggests that the fact that the behavior of Bennett and Thompson may have been prohibited by ERISA provides no basis for the conclusion that the Investment Agreement is itself invalid. This argument, however, runs counter to ordinary principles of causation. If Summit disbursed money to Bennett with the intent that he influence Thompson, the Investment Agreement was in no sense "independent" of the bribery that in fact occurred. This remains true even if we assume that Summit had no knowledge that Bennett intended to give Thompson a kickback. The exchange of funds prompted or induced Thompson to recommend the Investment Agreement as a viable investment. Ameritech eventually acted upon this suggestion.
As such, the Investment Agreement cannot be characterized as an "intelligible economic transaction in itself." See, e.g., Kelly v. Kosuga, 358 U.S. 516 (1959); Cement Masons' Pension Fund v. Dukane Precast, 822 F. Supp. 1316, 1321 (N.D. Ill. 1993); Donovan v. Schmoutey, 592 F. Supp. 1361, 1400 (D. Nev. 1984). The receipt of funds necessarily entered into Thompson's calculus concerning Stuart Park's viability as an investment; therefore, we are not confronted with a truly independent economic decision. In light of these factors, it is illogical to claim that the Investment Agreement should be examined in a void, completely ignoring the questionable circumstances under which it was entered.
These circumstances convince us that the trial court's comment was not improper. Fulfilling the contract would have given effect to Thompson's illegal behavior. Avoiding the contract, on the other hand, promises to minimize the damage flowing from that conduct. One of the policies behind ERISA is that of protecting the interests of plan members and beneficiaries. Lowen, 829 F.2d at 1213. It was not error to recognize the existence of this interest in comments made to the jury. In general, a court has the power to refuse to enforce a contract when enforcement would violate clearly articulated congressional goals and policies. See United States v. Mississippi Valley Generating Co., 364 U.S. 520, 563-64, reh'g denied, 365 U.S. 855 (1961); Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 79 (1982).
In Mississippi Valley, the Supreme Court refused to enforce a contract induced by actions involving a conflict of interest under federal law. 364 U.S. at 562. There, a Wall Street executive had advised the federal government and acted on its behalf in negotiations ultimately resulting in a contract between the federal government and the Mississippi Valley Generating Company. Id. at 523. The Court found the contract unenforceable because it was "tainted by a conflict of interest on the part of a government agent"--a matter that undermined the goals of the federal statute prohibiting conflicts. Id. at 563. See also Kaiser Steel, 455 U.S. at 78-79 (holding that, if a contract to contribute to union funds arose from an obligation that was illegal under the antitrust or labor laws, enforcing that contract would command unlawful conduct).
The present case is virtually indistinguishable. Conduct that rather clearly violated the spirit and express provisions of ERISA prompted the formation of the Investment Agreement. Honoring that Agreement would only legitimate and reward the conduct. Under these circumstances, it is not unreasonable to conclude that illegality in the contract's formation resulted in a "prohibited transaction." Because enforcement would so offend ERISA's various prohibitions on self-dealing, it is not material that ERISA does not specifically provide this remedy. See Mississippi Valley, 364 U.S. at 563 (noting that statutory silence is not dispositive when a contract "arises out of circumstances that would lead enforcement to offend the essential purpose of the enactment").
Any doubts we have about adopting the defense of illegality here are resolved upon an examination of the benefits and burdens attendant to refusing to enforce contracts like this one. See, e.g., Northern Indiana Public Service Co. v. Hardin County Coal, 799 F.2d 265, 273 (7th Cir. 1986) (discussing the balancing of interests necessary to application of the federal defense of illegality). As stated, ERISA's goals would be undermined by the enforcement of this type of transaction. Summit has pointed to no policy interests to the contrary. Despite Summit's protestations on this subject, our decision will hardly deter investors from monitoring trustees (an activity toward which investors already have a substantial incentive). Nor do we believe that it will result in less market stability; decisions refusing to give effect to bribery increase confidence in market processes.
In short, Summit cannot attempt to distance itself from Bennett's illegal behavior and yet at the same time benefit from the fruits of that behavior. *fn3 Whether or not Summit was aware of the precise parameters of Bennett's deal with Thompson, Summit's commission payment enabled Bennett to exercise influence over Thompson's judgment, essentially subsidizing the eventual violation of ERISA. In light of these factors, the district court's characterization of the Investment Agreement as a "prohibited transaction" was not error.
Summit also launches a number of evidentiary complaints about expert testimony, opinion testimony, the admission of numerous exhibits and the like. Of course, the district judge is ordinarily the arbiter of evidentiary matters. We will not disturb the district court's rulings on appeal absent a clear abuse of discretion. Stutzman v. CRST, Inc., 997 F.2d 291, 299 (7th Cir. 1993). *fn4 Summit nevertheless makes various objections which we will address in turn.
A. The Expert Testimony of David Walker
Summit first complains of the district court's decision to allow David Walker to testify as an expert. Walker is a former government official familiar with ERISA who is now working as a paid consultant (specifically, as the managing director of Arthur Andersen's compensation and benefits practice). At trial, he apparently testified concerning Ameritech's motives for refusing to commit funding to Stuart Park. Much of this testimony concerned a fiduciary's obligations under ERISA. Summit now suggests that this testimony was both irrelevant and misleading.
These contentions are without merit. Summit's numerous allegations at trial called Ameritech's motives for refusing to fund Stuart Park into question. This strategy forced Ameritech to provide reasons for its refusal. As part of the explanation it provided to the jury, Ameritech was entitled to rely on expert testimony. Specifically, expert testimony concerning fiduciary obligations under ERISA would have established that Ameritech's concerns were reasonable and not invented for the purposes of trial. Expert testimony is admissible if the witness has "specialized knowledge [that] will assist the trier of fact to understand the evidence in the case." United States v. Briscoe, 896 F.2d 1476, 1497 (7th Cir.), cert. denied, 498 U.S. 863 (1990). It is not material that the matter involved here happened to be legal; Ameritech's reasons for refusing to go forward with funding (which Summit called into question) were themselves legal, and Ameritech could reasonably present them before the jury.
B. The Fact Testimony of Howard Pearl
Summit also complains about the admission of Howard Pearl's testimony. Pearl, an attorney, conducted the internal investigation that led to the discovery of Thompson's misdeeds. At trial, he apparently testified to matters concerning Ameritech's discovery and knowledge of the Bennett-Thompson relationship, which he characterized as a "kickback scheme." Summit complains because it believes these matters to be both irrelevant and cumulative given the court's previous undisputed finding that a fee-splitting scheme existed.
This argument assumes that the sole purpose for which this testimony would be offered is as evidence of the kickback scheme itself. Pearl's investigation and findings, however, were material to a broader range of matters. For instance, they too tended to explain why Ameritech believed it could not proceed with financing. They also tended to negate the inference that Ameritech might have prevented some of the harm had it been more vigilant about Thompson's behavior. In short, they explained both why and how Ameritech discovered the bribery. The district judge correctly avoided the "crabbed notions of relevance" upon which Summit seems to insist. See Riordan v. Kempiners, 831 F.2d 690, 691 (7th Cir. 1987). It was well within the district court's discretion to admit Pearl's testimony.
Summit also complains of the admission of ten different documents in connection with Pearl's testimony. In this regard, it makes the conclusory allegations that the documents were "irrelevant and unauthenticated," and that they contained "extensive hearsay." To the extent that these documents referenced Pearl's investigation, they are relevant for the reasons we have given. As to any hearsay or authentication objections, we note that Summit's complaints on appeal are not sufficiently particularized to enable us to rule on the matter. Summit has done little more than provide a list of the various documents of which it complains. We do not know whether these documents constitute hearsay because Summit has not demonstrated the precise purpose for which each was offered. Neither has Summit indicated its specific objections in the trial court to the admission of the documents. Finally, Summit cites no authority indicating that the admission of any of the documents was clear error. Under these circumstances, Summit has waived consideration of the issue for appeal. Holzman v. Jaymar-Ruby, Inc., 916 F.2d 1298, 1303 (7th Cir. 1990); Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1566 (7th Cir. 1990). *fn5
C. Evidence of the Value of an Equity Interest
Summit also complains because the district court excluded evidence that it proffered detailing the value of its "equity interest" in Stuart Park. The district court excluded this evidence because it had earlier ruled that Summit was not entitled to recover lost profits in light of its status as a new and unproven venture.
We do not believe that this ruling was error. Under Illinois law, a new business generally has no right to recover lost profits. This element of damages is recoverable only if the business was previously established. See, e.g., Hill v. Brown, 520 N.E.2d 1038, 1043 (Ill. App. Ct. 1988). The apartment complex was to be built on a barren piece of undeveloped land. No evidence demonstrated what, if anything, this particular venture would yield. Summit argues vehemently that its successes with other apartment buildings should be considered as probative of this essential fact. However, these are different pieces of real estate from different markets--not providing a self-evident basis for generalization. See, e.g., Coastland Corp. v. Third Nat'l Mortg. Co., 611 F.2d 969, 978 (4th Cir. 1979). We do not believe the trial court's decision to exclude this evidence constitutes error.
The jury returned a verdict in favor of Ameritech. On appeal, Summit has not demonstrated error meriting reversal. Accordingly, the district court's judgment is
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United States District Court, Ninth Circuit
July 1, 2013
DARRYL THOMAS, CDCR #AK-8582, Plaintiff,v.DANIEL PARAMO; G. STRATTON; K. SEIBEL; L. HERNANDEZ, Defendants.
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE, GARNISHING $350.00 BALANCE FROM PRISONER'S TRUST ACCOUNT [ECF No. 2]; and
1915(e)(2) AND 1915A(b)
JANIS L. SAMMARTINO, District Judge.
Darryl Thomas ("Plaintiff"), a state prisoner currently incarcerated at the Richard J. Donovan Correctional Facility ("RJD") located in San Diego, California and proceeding pro se, has submitted a civil action pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [ECF No. 2].
MOTION TO PROCEED IFP [ECF No. 2]
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to proceed IFP remain obligated to pay the entire fee in installments, regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act ("PLRA"), a prisoner seeking leave to proceed IFP must submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
The Court finds that Plaintiff has no available funds from which to pay filing fees at this time. See 28 U.S.C. § 1915(b)(4) (providing that "[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee."); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a "safety-valve" preventing dismissal of a prisoner's IFP case based solely on a "failure to pay... due to the lack of funds available to him when payment is ordered."). Therefore, the Court GRANTS Plaintiff's Motion to Proceed IFP [ECF No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)
Notwithstanding IFP status or the payment of any partial filing fees, the Court must subject each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order the sua sponte dismissal of any case it finds "frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) ("[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).
Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as amended, 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to the IFP provisions of section 1915 make and rule on its own motion to dismiss before directing the U.S. Marshal to effect service pursuant to FED. R. CIV. P. 4(c)(3). See Calhoun, 254 F.3d at 845; Lopez, 203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997) (stating that sua sponte screening pursuant to § 1915 should occur "before service of process is made on the opposing parties").
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"); Andrews, 398 F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988), which is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
A. 1983 Standard
Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 642 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).
B. Eighth Amendment Claims
Plaintiff's Complaint is nearly devoid of any specific factual allegations. However, based on the exhibits attached to his Complaint, it appears that Plaintiff fell in the prison showers and suffered an injury as a result. The Eighth Amendment, which prohibits "cruel and unusual punishments, " imposes a duty on prison officials to provide humane conditions of confinement and to take reasonable measures to guarantee the safety of the inmates. Helling v. McKinney, 509 U.S. 25, 31-33 (1993). However, every injury suffered by an inmate does not necessarily translate into constitutional liability for prison officials. Rhodes v. Chapman, 452 U.S. 337, 349 (1981) (noting that the U.S. Constitution "does not mandate comfortable prisons"); Osolinski v. Kane, 92 F.3d 934, 936-37 (9th Cir. 1996)
Thus, to assert an Eighth Amendment claim for deprivation of humane conditions of confinement a prisoner must satisfy two requirements: one objective and one subjective. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994). Under the objective requirement, the plaintiff must allege facts sufficient to show that "a prison official's acts or omissions... result[ed] in the denial of the minimal civilized measure of life's necessities.'" Farmer, 511 U.S. at 834 (quoting Rhodes, 452 U.S. at 347). This objective component is satisfied so long as the institution "furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety." Farmer, 511 U.S. at 534 ; Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981). The subjective requirement, relating to the defendant's state of mind, requires that the plaintiff allege facts sufficient to show "deliberate indifference." Allen, 48 F.3d at 1087. "Deliberate indifference" exists when a prison official "knows of and disregards an excessive risk to inmate health and safety; the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
Here, Plaintiff's allegations fail to state an Eighth Amendment claim because they do not rise to the level of a serious safety hazard. See Osolinski, 92 F.3d at 939 (finding that prisoner's injury due to faulty oven door was not sufficient to state an Eighth Amendment cruel and unusual punishment claim because Plaintiff did not plead any "exacerbating conditions" which rendered him unable to "provide for [his] own safety, " i.e., that prison officials precluded him from avoiding the faulty oven door or rendered him unable to perceive its defective condition); see also Tunstall v. Rowe, 478 F.Supp. 87, 89 (N. D. Ill. 1979) (the existence of a greasy staircase which caused a prisoner to slip and fall did not violate the Eighth Amendment). As currently pleaded, the Court finds that Plaintiff alleges no facts which are sufficient to show that the conditions of confinement were objectively and demonstrably unsafe, and further fails to allege facts which show that any of the named Defendants were actually aware and consciously disregarded the risk posed. See Helling, 509 U.S. at 36 (exposure to demonstrably unsafe conditions may violate the Eighth Amendment if the inmate can show that the risk he faced was "so grave that it violates contemporary standards of decency"); Farmer, 511 U.S. at 828-29 (deliberate indifference requires a showing that specific prison officials were "subjectively aware of the risk").
Accordingly, Plaintiff's Eighth Amendment claims are dismissed for failing to state a claim upon which § 1983 relief can be granted.
C. Fourteenth Amendment Claims
While not entirely clear, it appears that Plaintiff is claiming that prison officials have not adequately responded to his administrative grievances in violation of his Fourteenth Amendment due process rights. The Fourteenth Amendment provides that: "[n]o state shall... deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. "The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes and prison regulations may grant prisoners liberty or property interests sufficient to invoke due process protection. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). To state a procedural due process claim, Plaintiff must allege: "(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process." Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000).
Nonetheless, the Ninth Circuit has held that prisoners have no protected property interest in an inmate grievance procedure arising directly from the Due Process Clause. See Ramirez v. Galaza, 334 F.3d 850, 869 (9th Cir. 2003) ("[I]nmates lack a separate constitutional entitlement to a specific prison grievance procedure") (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (finding that the due process clause of the Fourteenth Amendment creates "no legitimate claim of entitlement to a [prison] grievance procedure")); accord Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
In addition, Plaintiff has failed to plead facts sufficient to show that prison official deprived him of a protected liberty interest by allegedly failing to respond to his prison grievances in a satisfactory manner. While a liberty interest can arise from state law or prison regulations, Meachum, 427 U.S. at 223-27, due process protections are implicated only if Plaintiff alleges facts to show that Defendants: (1) restrained his freedom in a manner not expected from his sentence, and (2) "impose[d] atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997). Plaintiff pleads nothing to suggest how the allegedly inadequate review and consideration of his inmate grievances resulted in an "atypical" and "significant hardship." Sandin, 515 U.S. at 483-84. Thus, to the extent Plaintiff challenges the procedural adequacy of inmate grievance procedures, his Complaint fails to state a due process claim.
D. Respondeat Superior
In addition, to the extent Plaintiff seek to sue Defendants based merely on their supervisory positions, such allegations are insufficient to state a claim against these Defendants because there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). Instead, "[t]he inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). In order to avoid the respondeat superior bar, Plaintiff must allege personal acts by each individual Defendant which have a direct causal connection to the constitutional violation at issue. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Sanders v. Kennedy, 794 F.2d 478, 483 (9th Cir. 1986).
Supervisory prison officials may only be held liable for the allegedly unconstitutional violations of a subordinate if Plaintiff sets forth allegations which show: (1) how or to what extent they personally participated in or directed a subordinate's actions, and (2) in either acting or failing to act, they were an actual and proximate cause of the deprivation of Plaintiff's constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). As currently pleaded, however, Plaintiff's Complaint fails to set forth facts which might be liberally construed to support an individualized constitutional claim against any of the named Defendants.
Good cause appearing, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is GRANTED.
2. The Secretary of California Department of Corrections and Rehabilitation, or his designee, shall collect from Plaintiff's prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of the preceding month's income and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
3. The Clerk of the Court is directed to serve a copy of this Order on Jeffrey Beard, Ph.D., Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, Sacramento, California 95814.
IT IS FURTHER ORDERED that:
4. Plaintiff's Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave from the date this Order is "Filed" in which to file a First Amended Complaint which cures all the deficiencies of pleading noted above. Plaintiff's Amended Complaint must be complete in itself without reference to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims not re-alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff's Amended Complaint fails to state a claim upon which relief may be granted, it may be dismissed without further leave to amend and may hereafter be counted as a "strike" under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).
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Verco - Mill End Road/Chapel Lane - High Wycombe - Buckinghamshire - HP12 4BJ
Our proposals for land to the south of the Verco manufacturing site in High Wycombe.
We are working in partnership with one of High Wycombe's oldest family businesses – the office furniture manufacturer Verco – to bring forward plans for a new residential development on redundant industrial land between Mill End Road and Chapel Lane.
Following this extensive public consultation, we have now submitted a detailed planning application for 79 new homes on land to the south of the Verco manufacturing site, along with areas of public open space and a staff car park for Millbrook Combined School.
Outline planning permission is also being sought from Wycombe District Council for eight light industrial units on the site.
Our application (reference 15/06618/FUL) can be viewed on the council's website here [http://publicaccess.wycombe.gov.uk/idoxpa-web/applicationDetails.do?activeTab=summary&keyVal=NPZ0O4SCIDI00].
The plan pictured below shows how the characteristics of the site and its surroundings are being taken into account in the design of our proposed development.
Key characteristics of the site and its surroundings (click on the image for a zoomable view).
The site will be accessed primarily from an access point on Mill End Road with a secondary access onto Chapel Lane serving approximately 13 units only. There will be no through-route for motor vehicles between Chapel Lane and Mill End Road.
Pedestrians and cyclists will be able to enjoy access through the site and we are proposing to link in with the local cycle path network therefore giving convenient access to the town centre without the need to rely on motor vehicles. Following consultation with Millbrook Community School our proposals include a 20-space staff car park.
Pedestrian and cycle connections to key travel links and facilities in the surrounding area are illustrated in the plan below.
Accessibility of the site to existing pedestrian/cycle links, public transport and local services. Click on the image for a zoomable view.
Local public transport infrastructure
Connecting the site to the town centre and surrounding area are 5 regular bus services within a 3-minute walk of the site.
The town centre offers onward journey by rail from High Wycombe station, which provides regular services to a broad range of destinations including London, Birmingham and Bicester.
Vehicle movements
The proposals will result in a limited level of additional vehicular movements compared to the authorised use.
Approximately 1 additional vehicle every 2–3 minutes in the weekday peak periods will be distributed across the wider highway network. Given the relatively low level of additional traffic anticipated it is not considered that the proposals will have a material impact on the operation of the local highway network. The capacity of the adjacent highway and full transport implications of the scheme will be considered in a full Transport Assessment, to accompany the application.
Surface Water Drainage
The Environment Agency has confirmed that the following surface water flood risk principles are to be followed for the site and incorporated into the development design:
Sustainable Drainage Systems (SuDS)
Sustainable Drainage Systems (SuDS) will be incorporated into the development. This is a term that refers to a wide range of drainage features that perform a range of functions. In simple terms SuDS systems are intended to serve the following main aims:
Taking this approach will ensure the development will provide an improvement on the existing situation and will certainly not increase the risk of flooding to downstream and surrounding properties.
Flood Risk
A tributary of the River Wye flows along the northern boundary of the site, which is the principal flood risk posed to the development. The flood mapping supplied by the Environment Agency shows the site is partially located in a Medium Risk Flood Zone 2, where the annual probability for river flooding sits between the predicted 1-in-100-year and the 1-in-1000-year return periods. A development specific Flood Risk Assessment (FRA) and drainage strategy is being developed and will inform the next stage of the assessment process to ensure the proposed properties will not be at risk of flooding, and also that the development will not introduce a flood risk to adjacent properties.
As part of a FRA, a clear and concise statement summarising how the proposed development will contribute to a positive reduction in flood risk within the district will also be provided.
Our development is designed to work within the constraints and opportunities of the site and is a scheme that respects the area's surroundings.
Our proposals have also been shaped by extensive public consultation with local residents, business and community groups.
Key elements of our development are as follows:
Our proposed development layout for the Verco site
Car parking
Car parking and ensuring enough car parking is provided for future residents of the scheme was a key issue raised at the March 2014 exhibition. In addition, concern was raised about existing parking issues locally.
As a result, we will be providing the maximum level of car parking we can in accordance with the Council's Local Plan. The Council seeks different levels of parking provision based on how accessible a site is. The proposed application site is within Accessibility Zone 3 (an urban area with poor public transport accessibility) and as such, we are making the following levels of car parking provision:
• 1 bedroom residential units – 1 space assigned to each dwelling, plus 3 visitor spaces per 10 apartments
• 2 or 3 bedroom residential units – 1 space plus 1 visitor's space
• 4 or 5 bedroom residential units – 2 spaces plus 2 visitors' spaces
We are providing 179 spaces for the new residents and these will be located within the grounds of each residential unit or very close to the home they serve. Where parking is provided for flatted blocks, we seek to locate it where it enjoys natural surveillance from the residential units it serves, whilst as far as possible being located so it does not dominate the layout of the new proposed development. Cycle parking will be provided in accordance with the Local Plan. We are also providing a 20-space car park for the school and 26 spaces within the employment land.
At the March 2014 exhibition, we asked about what type of houses should be provided on the site. The top four house types sought were as follows:
• Family homes (sought by 85% of respondents)
• Starter homes (sought by 70% of respondents)
• Affordable homes (sought by 47.5% of respondents)
• Smaller homes (sought by 42.5% of respondents)
In response we have looked at the house types we propose for the site and overall we are providing the mix of house types sought. Family homes will be focused on the Chapel Lane side and the cul-de-sac proposed within the development. Starter homes in the form of apartments will be focused on the northern side of the main route into the site. There is also the potential for some affordable housing units to be managed by a Registered Housing Provider close to Mill End Lane and some smaller family homes south of the main access road through the site.
The site has many residential neighbours. Our proposed residential scheme will fit in well with this existing residential character, whilst providing a permanent and effective boundary to the retained Verco site to the north.
A new housing scheme is being built by Persimmon Homes to the south of the site on the former Ebor works site. This is some 2-metres above the level of the site and will overlook the proposed residential development. This will result in residential neighbours along the entire southern boundary as well as parts of the eastern and northern boundaries.
At the exhibition in March 2014, residents to the north in Mill End Road and to the south in Penmoor Close both expressed concern about the location of new houses on the proposed site.
In response, we have worked up details of the relationship between the new houses and these adjoining houses.
A north/south cross section of the proposed development site.
In the central part of the site, adjoining the Verco site and furthest from existing houses, a four-storey apartment block is proposed. This was the subject of comments at the March 2014 exhibition with some residents saying that such a building would be too high.
The northern part of the site adjoins the retained Verco factory. This is a functional industrial building with a noisy use of 8.25 metres high. To screen both the building and assist in screening noise emitted from the factory, the proposed residential building adjoining the factory needs to be of a scale to provide an effective screen from both within the proposed housing site and to existing houses beyond to the south.
Its location within the centre of the site is an opportunity to provide a central focal point for the overall development, with lower level development spreading outwards as the proposed housing gets closer to the existing two storey housing around the site.
The cross section of the site shows how the four-storey block will sit in relation to the Verco factory and the surrounding properties. It will screen the Verco factory building.
Four-storey flats locally overlooking the River Wye and Desborough Recreation Ground, downstream of the site.
We are proposing a residential development of 97 new homes in Wycombe. The development will include a range of property styles and sizes and a number are proposed to be affordable homes. New development can bring a number of economic benefits to the local area and we have estimated these using UK-wide statistical data.
Several residents raised concerns about additional pressure on Millbrook School, whilst others commented that more housing was needed for parents of children attending Millbrook School. It is the case that with the school immediately opposite the site, and rated in 2013 by OFSTED as "Good" that it will be a popular and convenient location for children living on site to attend.
Pupils living on the proposed site will be able to walk to school. Across Wycombe, additional housing is proposed to come forward to meet the growing needs of the resident population. Providing the resulting educational needs and other infrastructure necessary for new development is in part paid for by a Community Infrastructure Levy (CIL). The Community Infrastructure Levy is a planning charge, introduced by the Planning Act 2008 as a tool for local authorities in England and Wales to help deliver infrastructure to support the development of their area. It came into force on 6 April 2010 through the Community Infrastructure Levy Regulations 2010.
Funds raised from Wycombe District Council's CIL will be used in conjunction with service and infrastructure providers to deliver infrastructure improvements across the district. These improvements may include transport schemes, open spaces and leisure facilities as well as finance for schools. How the money is spent will be determined by Wycombe District Council.
Currently 30% of funds generated from residential schemes in Wycombe will go towards education.
The impacts of the proposed residential scheme on Millbrook School can be addressed through an appropriate payment by Taylor Wimpey to the Council's Community Infrastructure Levy. Equally, the CIL payment can be used towards payments for secondary education in High Wycombe, albeit the local secondary schools are further from the proposed housing site.
January 2016 - Application withdrawn. Development is now in discussion with the land owner and local planning officers.
15 June 2015 – Planning applications submitted to Wycombe District Council
September 2014 – second public consultation exhibition held
March 2014 – initial public consultation exhibition held


text:
DNS zones are typically served by more than one server. One of these is called the master or primary and the 'copies' are called slave or secondary servers. The slave servers obtain zone data via a process called zone transfer (AXFR) or incremental zone transfer (IXFR). (And I refuse to abstain from using the terms master/slave.)
When we provision a master server with a new zone we must update all slave servers and inform them of the existence of this new zone and which addresses the master servers for the zone have. Unless you are using PowerDNS with MySQL or PostgreSQL replication (which is off topic for this discussion) this is a procedure that is normally done manually. By manually I mean there is no standard procedure for doing this.
A typical way of provisioning slave servers with the names of zones they should slave is to obtain (out-of-band somehow) a list of zones, add them to the slave's server configuration and tell the slave to "go get 'em". One such proposed method is called dper: the DNS Peering Protocol which has an extra XML configuration that needs to be transported (somehow) to the slaves. If BIND is your master, you could use BIND's statistics server and, as Tony points out in the comments below, Paul Vixie's metazones solve the "transport" of a zone list as well. Other typical ways include writing a small program to slurp through the provisioning system, dump a list of zones, etc.
There are some obvious problems with this:
- There typically exists a time lag between creating the master zone and having it replicated to the slaves because the slaves need to know about the new zones.
- The out-of-band method of transporting a list (or a full configuration) for slave servers is non-standard. Some people query, say, the database back-end when using a database as provisioning system, others create a list and pull it from the slaves via HTTP, yet others rsync it over, etc. The possibilities are almost endless.
When operating as a master and slave combination, PowerDNS has a pretty unique feature for its slave servers which is called 'Superslave'. Quoting myself (again) from Chapter 6 of my book:
A unique feature of PowerDNS is that you can configure it to accept notifications from specified "trustworthy" master servers for which it does not yet carry slave zones, and have it create the slave zone(s), and provision them from the master via incoming zone transfers, all automatically. In this role, the server is said to be a Superslave. (By contrast, a normal slave will accept/action NOTIFYs only if you have manually pre-configured it as a slave for the zone. You have to create a zone on the slave, giving it the name of the zone, and create an NS record in the zone pointing to this slave itself.)
This effectively allows PowerDNS to provision its slave servers automatically.
The question is: can we do that for, say, BIND and NSD as well?
This isn't just a theoretical question. I'm currently working with a customer who has a large amount of zones which are pretty volatile (i.e. zones come and go). They have a hidden master server (PowerDNS, but it could easily have been of a different brand) and BIND slave servers (to be augmented by a couple of NSD slave servers shortly). The issues we're seeing here (irrespective of the brand of the hidden master server) are:
- A new zone is provisioned on the master, whereupon PowerDNS sends out a NOTIFY to its slaves.
- The slaves don't yet know anything about the existence of this new zone, so they ignore the NOTIFY.
- Meanwhile, the provisioning system creates an include file for BIND's
named.confand reloads the server, during which the server is "deaf" for queries (also for the next bunch of NOTIFY messages the master may send out due to new zones being provisioned).
- The server is now ready, and named goes and transfers (AXFR) the new zones at which point they are available to be queried.
Even by shortening the frequency of the periodical re-provisioning of named (step 3. above), there is always some time lag (sometimes several minutes) until the new zone(s) is (are) available on the BIND slave servers.
I've given this some thought, particularly in view of the fact that BIND has addzone and NSD4 also has support for addzone, allowing both brands of servers to configure new zones on-the-fly. (While there is an initiative to create some form of control protocol (e.g. Requirements for the Nameserver Communication protocol) I'm not aware of something that can be used out of the box.)
The method I propose, and for which I include a prototypical proof of concept (which is working very nicely in my portable data center) can be used to provision BIND slaves, and NSD slaves from any server which is capable of sending a DNS NOTIFY to its slaves.
A small utility called metaslave runs on the slave servers alongside BIND or NSD and, on a different port number, listens for NOTIFY requests. As soon as it receives a NOTIFY, it checks a local database (simplistically implemented as a file on the file system in this PoC) to see whether it knows of the zone. If it doesn't, metaslave launches an external command to add the zone to the particular brand of name server. (Instead of using a database, I can check existence of the zone file proper, which ought to be safe enough; this does mean ensuring all slave servers have the same "formula" for contructing paths to zone files.)
use strict;
use warnings;
use Net::DNS::Nameserver;
my $depot = '/tmp/zones';
sub notify_handler {
my ($qname, $qclass, $qtype, $peerhost,$query,$conn) = @_;
my ($rcode, @ans, @auth, @add, $path);
$path = $depot."/".$qname;
$rcode = undef;
print "Received NOTIFY query from $peerhost for " . $qname ."\n";
# Slight sanity check (don't accept slashes)
# FIXME: lowercase and do more checks.
$rcode = 'SERVFAIL' if ($qname =~ /\//);
# Check whether the zone already exists on this slave. Implemented here
# as a file on a filesystem. What I'd probably do is use Redis (SET)
# or SQLite3, whereby the former could be used to 'report back' to a
# monitoring station via PUB/SUB, etc.
# Actually we can check existence of the zone on the file system
# instead of using a separate database...
# As Marc suggests, we can also simply query the paired DNS server (i.e.
# the server this script is catering to) using Net::DNS to see if the zone
# has been defined.
$rcode = 'NOERROR' if (-f $path);
if (defined($rcode)) {
return ($rcode, [], [], [],
{ aa => 1, opcode => 'NS_NOTIFY_OP'} );
# NSD: addzone ${qname} groupname
# BIND: rndc addzone ${qname} IN '......;'
my $command = "rndc addzone ${qname} in '{type slave; file \"${qname}\"; masters { 172.16.153.102;};};'";
if (open(DB, "> $path")) {
print DB $command, "\n";
# FIXME: too "heavy". Ensure non-blocking, maybe as a kind of queue?
# FIXME: maybe unreliable, but attempt to obtain return code of 'addzone'
# and maybe SERVFAIL (not that it's of any use)
$rcode = "NOERROR";
return ($rcode, [], [], [],
{ aa => 1, opcode => 'NS_NOTIFY_OP'} );
sub reply_handler {
my ($qname, $qclass, $qtype, $peerhost,$query,$conn) = @_;
my (@ans, @auth, @add);
return ('SERVFAIL', \@ans, \@auth, \@add);
my $ns = Net::DNS::Nameserver->new(
LocalPort => 5353,
ReplyHandler => \&reply_handler,
NotifyHandler => \¬ify_handler,
Verbose => 0,
Debug => 0,
) || die "couldn't create nameserver object\n";
My proof-of-concept metaslave uses Net::DNS which, if you recall, was augmented with a NotifyHandler for me back when I wrote the book. Note also, that this is currently very simplistic and needs quite a bit of refinement, which I'll probably do soon-ish.
The (hidden) master servers have to be able to NOTIFY a separate server:
- PowerDNS has
ALSO_NOTIFYin its domainmetadata table with support for specifying an alternative port number (see example below).
- NSD has
notify(with optional TSIG keys), and a port number can be added to the address with
- BIND has
also-notifywith an optional port setting.
As an example, consider the following SQL I inject into my PowerDNS server:
INSERT INTO domains (name, type) VALUES ('b.aa', 'MASTER');
INSERT INTO records (domain_id, name, ttl, type, content)
SELECT id, 'b.aa', 60, 'SOA', 'ns.b.aa jp.b.aa 1 10800 3600 1814400 14400'
FROM domains WHERE name = 'b.aa';
INSERT INTO records (domain_id, name, ttl, type, content)
SELECT id, 'b.aa', 60, 'NS', 'nsd4.prox'
FROM domains WHERE name = 'b.aa';
INSERT INTO records (domain_id, name, ttl, type, content)
SELECT id, 'b.aa', 60, 'NS', 'bind993.prox'
FROM domains WHERE name = 'b.aa';
INSERT INTO records (domain_id, name, ttl, type, content)
SELECT id, 'b.aa', 60, 'A', '172.16.153.110'
FROM domains WHERE name = 'b.aa';
INSERT INTO domainmetadata (domain_id, kind, content)
SELECT id, 'ALSO-NOTIFY', '172.16.153.103:5353'
FROM domains WHERE name = 'b.aa';
INSERT INTO domainmetadata (domain_id, kind, content)
SELECT id, 'ALSO-NOTIFY', '172.16.153.101:5353'
FROM domains WHERE name = 'b.aa';
The last two INSERT statements populate the domainmetadata table and set up the additional notification to the metaslave program. After a few seconds, I see the following logged by PowerDNS (I've numbered the lines to discuss them.)
1. 1 domain for which we are master needs notifications
2. Queued notification of domain 'b.aa' to 172.16.153.101
3. Queued notification of domain 'b.aa' to 172.16.153.103
4. Queued also-notification of domain 'b.aa' to 172.16.153.101:5353
5. Queued also-notification of domain 'b.aa' to 172.16.153.103:5353
6. Received unsuccessful notification report for 'b.aa' from 172.16.153.101:53, rcode: 9
7. Removed from notification list: 'b.aa' to 172.16.153.101:53
8. No question section in packet from 172.16.153.103, rcode=3
9. Unable to parse SOA notification answer from 172.16.153.103
10. Removed from notification list: 'b.aa' to 172.16.153.110:5353 (was acknowledged)
11. No master domains need notifications
NOTIFYs (2. and 3.) are sent by PowerDNS to the NS RRset (the set of NS records),
whereas 4. and 5. (note the :5353) are those from
ALSO-NOTIFY. The former
are negatively acknowledged in lines 6. through 9. because the slave server don't know
about the b.aa zone (yet). The actual zone transfers (AXFR) from both servers
follow suit and complete within a second.
A great advantage in adding zones dynamically, at least to BIND, is we keep the time frame in which named is "deaf" to queries very short.
While we're able to provision new zones on slave servers this way, and I'm confident
this is a viable method, we cannot decomission removed zones: the DNS protocol doesn't
have a
REMOVE-THIS-ZONE querytype; we continue to have to do that "manually".
Or do we? Read on!
Removing zones from slave servers
Tony Finch mentioned metazones again this morning, and this got me thinking I could use them to automatically remove zones from slaves when they're deleted on the master server.
Recall that the particular master I'm talking about is an authoritative PowerDNS master with a database back-end. (For a different brand of master, BIND, say, we'd have to modify a number of details: I would probably create a dynamically updatable metazone and script dynamic updates when adding or removing zones from the master.)
I'm creating a master zone called
meta.meta which will store a metazone (of sorts).
This is what it looks like in the records table
and this is what it looks like in master zone file format after it's been transferred to BIND or NSD:
meta.meta. 86400 IN SOA meta.meta. jp.meta. (
1360867149 ; serial
10800 ; refresh (3 hours)
3600 ; retry (1 hour)
3600 ; expire (1 hour)
3600 ; minimum (1 hour)
meta.meta. 86400 IN NS bind993.prox.
meta.meta. 86400 IN NS nsd4.prox.
When a zone is deleted from the domains database table, a trigger adds a record to the metazone by an INSERT into the records table.
DROP TRIGGER IF EXISTS domains_del;
CREATE TRIGGER `domains_del` AFTER DELETE ON `domains`
-- Add a record to the records table for the "metazone"
-- indicating that a zone is being deleted.
SET @metazone = 'meta.meta';
SET @d_id = OLD.id;
SET @d_name = OLD.name;
SET @txt = CONCAT('"', 'd=', @d_id, ' ', UTC_TIMESTAMP(), '"');
-- Remove all records for this zone.
DELETE FROM records WHERE domain_id = @d_id;
-- Add a NEW record to the metazone detailing which zone we've
-- just deleted.
INSERT INTO records (domain_id, name, ttl, type, content)
SELECT id, CONCAT(@d_name, '.', @metazone), 86400, 'TXT', @txt
FROM domains WHERE name = @metazone;
-- Update SOA record in metazone.
UPDATE records
SET content = CONCAT(@metazone, ' jp.meta ', UNIX_TIMESTAMP(NOW()), ' 10800 3600 3600 3600')
WHERE domain_id = (SELECT id FROM domains WHERE name = @metazone)
AND type = 'SOA';
Suppose I delete a zone
example.com, the records database table then looks like
mysql> SELECT id, name FROM domains WHERE name = 'example.com';
| id | name |
| 22 | example.com |
mysql> DELETE FROM domains WHERE name = 'example.com';
Query OK, 1 row affected (0.01 sec)
The database trigger added a new TXT record with rdata containing the original
PowerDNS domain_id (for debugging) and a UTC timestamp. Simultaneously, the trigger
also updated the SOA serial number of the
meta.meta zone, which will cause the zone's
slaves to be notified whereupon they will transfer it. So far, so good.
A program on the slave servers can then periodically (via cron for example) perform
a zone transfer (from 127.0.0.1) to obtain the
meta.meta zone and remove zones
from the slave server configurations as well as moving the slave zone files into a
backup area. Basically the program looks like this:
use strict;
use warnings;
use Net::DNS;
my $metazone = 'meta.meta';
my $res = Net::DNS::Resolver->new;
# Perform a zone transfer from the local slave server
my @zone = $res->axfr($metazone);
foreach my $rr (@zone) {
# Skip records we know can't be meant for us
next unless $rr->type eq 'TXT';
next unless $rr->name =~ /\.${metazone}$/;
# Strip meta zone name from origin
my $name = $rr->name;
$name =~ s/\.${metazone}$//;
# Perform sanity check on name
# Skip if zone $name doesn't exist on this slave.
# Remove zone from slave server:
# if BIND:
# issue [ rndc delzone ]
# if NSD:
# issue [ nsd-control delzone ]
# if PowerDNS slave:
# delete from back-end database
# etc.
# Determine if zone file on disk; if so, move it into
# backup area.
print $name, "\n";
When I run it on one of my slaves it reports:
Which is, indeed, the zone we deleted a few moments ago on the PowerDNS master.
To cater for the possibility that a zone is removed from the master DNS server and it is added at a later time (yes, that happens), I have a second trigger which cleans out the record of a previously "deleted" domain from the metazone:
DROP TRIGGER IF EXISTS domains_add;
CREATE TRIGGER `domains_add` AFTER INSERT ON `domains`
-- Remove a possibly previously 'deleted' zone by deleting its
-- record from the "metazone" zone.
SET @metazone = 'meta.meta';
SET @d_name = NEW.name;
DELETE FROM records
WHERE domain_id = (SELECT id FROM domains WHERE name = @metazone)
AND name = CONCAT(@d_name, '.', @metazone);
-- Update SOA record in metazone.
UPDATE records
SET content = CONCAT(@metazone, ' jp.meta ', UNIX_TIMESTAMP(NOW()), ' 10800 3600 3600 3600')
WHERE domain_id = (SELECT id FROM domains WHERE name = @metazone)
AND type = 'SOA';
I think the only thing missing is a periodic cleanup of the
meta.meta zone
on the hidden master; a trivial task.


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text:
|This is a discussion on My venture to the casino.. within the online poker forums, in the Poker Rooms section; Well! I went to the Niagra Casino yesterday with some buddies of mine to play some cards.. Was pretty nervous, never played in any serious
My venture to the casino..
Well! I went to the Niagra Casino yesterday with some buddies of mine to play some cards.. Was pretty nervous, never played in any serious live games before.. (When I asked for $300 in chips, the guy asked if i wanted it in 1's.. So I was like sure)... He hands me 3 racks of 1's... I'm like "Yep, so this is 3 stacks of high society right ? " He laughed and said yea for sure.. So anyways I get out 2 the table and the guy there says that I need at least $80 in red's so I head back and get $80 in 5's and $20 in 1's...
ANYWAYS I sit down at the table, and just play my normal game... Was folding, watching how others were playing... Didn't catch any cards for a good hour or two, and I was aware which players were mentally taking notes on my play... So I had decided to make a move, get my money back that was spent on blinds... I was in a pot heads up with K10 suited.. Flop came A,10,5... The guy lead out for $20, I decided to raise him to $50... He stared at me for a while, I was pumpin inside but remained calm outside, he folded and said "Ace with a queen kicker, you hit two pair ?" I just smiled and took the pot.
Alright, I'd been feeling more comfortable after that and stole a few other pots, was up to $150.. ($100 was the max for the table) When some guy that looked like a tourist sat down, fumbled all his chips onto the table and put in the BB bet. Guy A who is super aggressive Bet's out $7.. I'm looking at AK of hearts, I reraise to $18... And guy that just sat down says "Ok well, I'm all in"...
Wtf is he doing, is he just gambling ? Does he actually have a hand ? Guy A then calls his all in and the action is on me.. AK suited, Now the Guy A had gone all in with crap before, he was really really aggressive. The guy that just sat down, something about him made me think he didnt have a great hand, the way he just fumbled all his chips on the table like he didn't care at all.
Since the table limit was $100 that was the allin bet.. So I called leaving me with $50. Flop comes 3h Ks 7h, I'm thinkin Jackpot! As long as they don't have Aces, and even so I have my flush draw.. I push my $50 in and guy A calls..
Guy A has JJ, Random dude that just sat down had AQ.. Ace freaken queen.. of spades... I'm pretty sure you know what the next two cards that fell were... Spade spade.. He took down the $300 main pot, and I took the side pot for about $100.. (The worst part was, when a few of the other guys at the table said "wow you got lucky there" he just said "It wasn't luck, I've been playing for years" This guy then donked away $100 with pocket Queens by not raising preflop, and walked into a straight.. which is expected when you don't raise preflop with queens and have 7 others in the same pot)
I was going to rebuild my stack but I realized 3~4 hours had passed and my buddies were out at the bar getting a head start,so I packed it in and went over and they bought me a few beers after I told them about the hand. All in all a great experience for my first time playing live, and coming out even is definitly not a bad thing for me. (Oh and yes my sentence structure is horrible, give me a break I was out all night)
Wow, nice write up Xife. Sounds like you had a good time overall. And did pretty well, being your first live experience and all. Very cool.
So what's your opinion then... I know this varies by cardroom, but did you notice that, for the most part, live play really is much different than online? I mean in terms of fewer players per pot, less donkishness, less chasing, etc...that sort of thing. I know that I tend to find live play to be more of what I expect poker should be compared to what we deal with online.
From what I saw there was a lot of preflop raises, to $7~14... and a lot of people would stay in the pot..A few of us were playing tight poker but most were just trying to see as many flops as possible with anything.. Guy A (dude from my example) called a $10 raise preflop with 8,3 and hit two pair taking down a decent pot... I'll have to go a few more times before I see what it is like normally...
I also havn't played stakes as high as $1/$2 so I'm not really sure how the play is like online.. But at least to me, it seemed more donkish irl.
I have played casino poker ,I liked it but what I hated was the people who ride out all the way threw on limit tables ,even when you raise it to a big pot have nothing & then get it at the end .It reminds me of freerolls on line.
My experience has been that broadly at a £22 ($40) live SnG the standard of play is comparable to the $5 or $10 online.
At a table of 10 live I tend to find there are 2 or 3 very solid players, 4 or 5 who have some knowledge though are either weak or have big holes in their game and like to chase and a couple of shockingly bad players.
Online there is usually a more even skill distribution at a given level, live it pays to work out who the few sharks are and also those who are either semi-drunk or just there to gamble as a break from the roulette or blackjack. Play against the latter, avoid the former
(Great post btw )
Sounds like a lot of fun. I've walked through casinos a few times, but havent sat down at a live table yet. Hoping to do it this summer..
The lowest stakes in a casino is 2/4 limit that I have seen. I would equate that to a .10c/.20c limit game on-line. I have seen tables where all 9-10 people are calling and reraising preflop.
It sounds like you are playing a 5-100 spread game. Those can have some serious pots going.
re: Poker & My venture to the casino..
I was playing $1/$2 no limit.. and it felt like the .25/.50 at the B2B network (Full of fishies)


text:
Enjoy unspoiled living at LUX* South Ari Atoll, the only resort on the Dhidhoofinolhu island.
The ultra chic LUX* Maldives resort is situated on the uninhabited island of Dhidhoofinolhu forming part of South Ari Atoll. The scenic sea plane transfer from Malé International takes about 25 minutes. On arrival, guests are greeted by a total of 193 lavish pavilions and villas set among stunning tropical scenery.


text:
Acapulco is a major sea port in Mexico. It is Mexico's largest beach and resort city also.
Acapulco (officially known as Acapulco de Jurez) is a city, municipality and major sea port in the state of Guerrero on the Pacific coast of Mexico, 300 kilometres (190mi) southwest from Mexico City. Acapulco is located on a deep, semi-circular bay and has been a port since the early colonial period of Mexico's history. It is a port of call for shipping and cruising lines running between Panama and San Francisco, California, United States. The city of Acapulco is the largest in the state, far larger than the state capital Chilpancingo. Acapulco is also Mexico's largest beach and balneario resorted city.
Contributions by OpenSea, Ramirez72, and 220.127.116.11.


text:
We found 3 'clumber spaniels' adverts for you in 'pets', in the UK and Ireland
This advert is located in and around
Par, Cornwall
Stunning rare to find cross, mum is a KC hip scored pure Clumber spaniel and dad a pure KC reg PRA tested American spaniel, both home pets and here to view. The 4 pups are truly stunning , and have...
This advert is located in and around
Cropwell Bishop, Nottingham
Stunning Clumber Spaniel Bitch Puppies ..ready to go to their permanent loving homes
For sale unexpectedly due to complete timewaster
They are beautifully bred bitches for show or pets
This advert is located in and around
Wadborough, Worcestershire
Hi I am looking for a siamese seal point kitten (boy) ready to collect close December 25th
for my 15 year old daughter. We live near Worcester so would like one within a couple of hours drive.


text:
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Thank you to Christine who was or friendly and knowledgeable hostess for our wine tasting. We chose the five dollar wine tasting, but were able to taste a more expensive range too. The venue is wonderful. Christine so nice. Wines delicious! We will definately order dome to have at home!! A big highlight!
Only 10km from downtown napier so no real reason not to visit. A wee oasis nestled against the hillside. Plenty to sample at a tasting session, lovely calming atmosphere, and a choice of inside or out depending on the day.
We enjoyed a comfortable tasting and lunch, with commendable recommendations for lunch options. Christine looked after us and was very accommodating on such a busy day. Staff were knowledgeable on products and easy to talk to. Thanks for making our day!
Overwhelming class in the building and grounds. They boys had the MOST WONDERFUL wine tasting experience, shout out to Ann, they talked about her for days, while my baby and I were treated with respect, given toys and free rein to play outside! (oh and the wines are devine!)
Stopped in for a look-see and stayed for two glasses of very drinkable wine and a cheese board. The sun was out so sat outside at the tables under the sun shade. Very pleasant indeed. Lovely to see people picnicking on the grass.
This is a review I should have done a long time ago - But anyway. here I am, The Church Road Vinery does not only provide excellent vines at very reasonable prices. In addition to the vine tasting and subsequent purchase (I guess...) you can also enjoy a superb lunch in the garden behind the vinery ... Go there -... 更多
We went as part of a family group for a wine tasting and received great treatment . Even the small children were occupied with a box of toys while the adults talked and tasted. Mitch, our cellar door person was very knowledgable and helpful and great at assessing our personal preferences . Which is good as this winery has several... 更多
Beautiful entrance and view from the doors out on to the fields and the hill. Ample parking spaces, a good selection of wines and reasonably priced too! The male wine staff member seemed to know the wines well and had the descriptive vocabulary to impart his knowledge. Came away with some souvenir wine.
Almost didn't stay but very glad we did! Waitress was excellent & the food & wine was very good. We especially enjoyed the desserts(Bombe Alaska & Deep Fried Snickers Bar etc)
We would have spent all afternoon here and had lunch, but we were on a wine tour. I fell in love with the atmosphere of the huge rough sawn beams etc. The wine was fantastic and the food looked amazing as it was served to people's tables. Warm and toasty on a rainy, stormy day. - very romantic!
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