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December 10, 2008
GARY G. STAUFFER AND LINDA S. STAUFFERv.D.R. HORTON, INC. - NEW JERSEY
Defendant D.R. Horton asks me to mark this breach of warranty action dismissed "with prejudice," and to impose sanctions on Plaintiffs. I will deny Defendant's Motion.
I. Procedural History
In June, 2008, Plaintiffs Gary G. Stauffer and Linda S. Stauffer brought this action in the Lancaster County Common Pleas Court, alleging that in 2006 they purchased a house that Defendant had newly constructed. (Doc. No. 1, Ex. 1 at ¶ 3-4.) Plaintiffs alleged that subsequent inspections revealed a number of construction defects for which Defendant is responsible. (Doc. No. 1, Ex.1 at 6-10.) Plaintiffs included claims for breach of contract, breach of the implied warranty of reasonable workmanship, breach of warranty, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. (CI-08-06339; Doc. No. 1, Ex. 1.)
In July 2008, Defendant removed to this Court, invoking diversity jurisdiction. 28 U.S.C. § 1332(a) (Doc. No. 1.) Defendant then moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss with prejudice for failure to state a claim, or in the alternative, to compel arbitration. Defendant argued that: (1) under the Parties' Warranty Agreement, it was not a proper defendant; (2) the warranty process, as set forth in Parties' contract, requires arbitration; (3) Plaintiffs agreed to Defendant's disclaimer of limited warranties; and (4) Plaintiffs' UTPCPL claim was not plead with particularity and was otherwise not cognizable. (Doc. No. 3.)
In August 2008 -- twenty-seven days after Defendant removed to this Court and almost two months after Plaintiffs first served Defendant with the Complaint -- Plaintiffs filed a Notice of Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A), and the matter was dismissed without prejudice. (Doc. No. 7.)
II. The Instant Motion
Acting pursuant to Fed. R. Civ. P. 11 and the Parties' Warranty Agreement, Defendant now asks me to mark the dismissal of this action "with prejudice," and to impose on Plaintiffs $34,719.85 in litigation costs and attorneys' fees. (Doc. No. 8 at 2-3.) I will deny the Motion.
III. Legal Standards
A. Voluntary Dismissal Under Rule 41(a)(1)
A plaintiff may dismiss his or her action without permission of court "by filing...a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Fed. R. Civ. P. 41(a)(1)(A). A Rule 41(a)(1) dismissal is without prejudice unless the notice states otherwise or in other limited circumstances. Fed. R. Civ. P. 41(a)(1)(B). The Third Circuit has held that the filing of a Rule 12 motion to dismiss does not terminate a plaintiff's right voluntarily to dismiss his or her action without prejudice. See In re Bath and Kitchen Fixtures Antitrust Litigation, 535 F.3d 161, 166 (3d Cir. 2008) ("Because a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is neither an answer nor a motion for summary judgment, its filing generally does not cut off a plaintiff's right to dismiss by notice.").
Although a timely notice of voluntary dismissal under Rule 41(a)(1)(A) usually ends a case and deprives the court of jurisdiction to issue a merits ruling, the court may continue to decide "collateral" issues, including sanctions, costs, and attorneys' fees. Id. at 166, n.8 (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396-98 (1990)).
B. Federal Rule of Civil Procedure 11
Rule 11 authorizes the Court through the imposition of sanctions "to check abuses in the signing of pleadings." Fed. R. Civ. P. 11 Advisory Committee Notes (1983 Amendments); see also Martin v. Brown, 63 F.3d 1282, 1264 (3d Cir. 1995). "The purpose of Rule 11 is to deter litigation abuse that is the result of a particular 'pleading, written motion, or other paper' and, thus, streamline litigation." In re Schaefer Salt Recovery, Inc., 542 F.3d 90, 97 (3d Cir. 2008) (internal quotations omitted).
Under Rule 11(b), in submitting a pleading, contention, or denial, the lawyer or pro se party certifies that the submission is not frivolous, baseless, and has not been made for an "improper purpose." Rule 11(c) allows a court to impose sanctions on an attorney or party for violating Rule 11(b), as long as the party seeking sanctions complies with the Rule's "safe harbor" provision:
[a] motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.
Fed. R. Civ. P. 11(c)(2). Thus, before seeking sanctions under Rule 11, a party must give notice of the alleged offending conduct and allow the opposing party 21 days in which to withdraw or otherwise correct the challenged submission. Compliance with this "safe harbor" provision is mandatory. See In re Schaefer Salt Recovery, Inc., 542 F.3d at 99. "If the twenty-one day period is not provided, the motion must be denied." Id.
IV. Discussion
Defendant first requests that I mark Plaintiffs' voluntary dismissal with prejudice. (Doc. No 8 at 3.) Plaintiffs have a right to dismiss their complaint without prejudice before a defendant files an answer or moves for summary judgment. Fed. R. Civ. P. 41(a)(1)(A). Here, Plaintiffs filed a notice of voluntary dismissal without prejudice after Defendant moved to dismiss; Defendant never filed an answer or moved for summary judgment. Accordingly, Plaintiffs had an absolute right voluntarily to dismiss their Complaint without prejudice. Id.
Defendant nonetheless argues that I should mark the dismissal with prejudice because Plaintiffs violated Rule 11 when they failed to seek arbitration as required by the Parties' Warranty Agreement. (Doc. No. 8 at 3.) Defendant has not, however, made out a Rule 11 violation.
Defendant admits that it has failed to comply with Rule 11's safe harbor provision. (See Doc. No. 8 at n.2.) Defendant argues that I should excuse that failure because: (1) "plaintiff has already filed a Notice of Dismissal, so there is nothing left to withdraw"; and (2) "the Complaint was the offensive pleading and the damage was done with the filing of the frivolous pleading." (Id.) Defendant's first argument is obviously incorrect: Defendant could have complied with the safe harbor provision by notifying Plaintiffs during the period after removal, before Plaintiffs voluntarily dismissed their Complaint. I will not impose sanctions on Plaintiffs because they dismissed their action without receiving safe harbor notice.
In support of its second argument, Defendant argues that under Cooter & Gell v. Hartmarx Corp., a Rule 11 violation is complete with the filing of the offending paper and is not affected by a plaintiff's voluntary dismissal. 496 U.S. 384, 395 (1990). Hartmarx was decided before the 1993 Amendments, however, which added the safe harbor provision to Rule 11. With these Amendments, sanctions are not available once a party has withdrawn the offending pleading either before or within 21 days after receiving a safe harbor notice. See Evans v. Chichester School Dist., 2008 WL 4610240, No. 07-0072, at *5 (E.D. Pa., Oct. 15, 2008) (denying Rule 11 motion where it was filed after the plaintiff voluntarily withdrew all claims); Hockley by Hockley v. Shan Enterprises Ltd. Partnership, 19 F. Supp. 2d 235 (D.N.J. 1998) (Rule 11 sanctions do not apply where party has voluntarily dismissed offending claims); Fed. R. Civ. P. 11 Advisory Committee Notes (1993 Amendment) ("The rule .... generally provid[es] protection against sanctions if [a party] withdraw[s] or correct[s] [a] contention[] after a potential violation is called to [its] attention.").
Accordingly, under the 1993 Amendments, Plaintiffs insulated themselves from Rule 11 liability when they voluntarily dismissed their Complaint after receiving Defendant's dismissal motion. See Photocircuits Corp. v. Marathon Agents, Inc., 162 F.R.D. 449, 452 (E.D.N.Y. 1995) (sanctions not available where Plaintiff voluntarily withdrew complaint prior to filing of Rule 11 motion). In these circumstances, I deny Defendant's request for Rule 11 sanctions.
Finally, Defendant apparently also seeks litigation costs -- including attorneys' fees --pursuant to the terms of the Parties' Warranty Agreement. Defendant alleges that the Agreement provides that if a homeowner brings suit "in violation of [the] warranty, such party shall reimburse the other parties to the litigation" for their defense costs. (Doc. No. 8 at 8.) Defendant argues (as it did in its Rule 12 motion) that Plaintiffs violated the Agreement when they commenced suit instead of submitting the matter to arbitration.
As I have noted, after a Rule 41(a)(1)(A) voluntary dismissal, the court customarily retains jurisdiction to decide collateral matters such as sanctions. See In re Bath and Kitchen Fixtures Antitrust Litigation, 535 F.3d at 166, n.8. Defendant's sanctions request is hardly "collateral," however. Ruling on Defendant's request would require me to determine whether Plaintiffs breached the Warranty Agreement. With the dismissal of this case, however, I am without jurisdiction to render such a merits ruling. See id. at 165-66 ("A proper notice [of voluntary dismissal] deprives the district court of jurisdiction to decide the merits of the case."). Accordingly, insofar as Defendant seeks sanctions based on Plaintiff's alleged breach of the Warranty Agreement, the request is denied.
V. Conclusion
Plaintiffs were entitled voluntarily to dismiss this case without prejudice. Because Defendant has not complied with the requirements of Rule 11(c)(2), it is not entitled to sanctions. Finally, I am without jurisdiction to consider Defendant's request for sanctions based on Plaintiffs' alleged breach of the Parties' Warranty Agreement. Accordingly, I will deny Defendant's Motion. An appropriate Order follows.
Paul S. Diamond, J.
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submitted: January 7, 1983.
COMMONWEALTH OF PENNSYLVANIAv.WILLIAM WELLS A/K/A JAMES NELSON, APPELLANT
No. 2893 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal at No. 6218 - 80.
Robert F. Pappano, Assistant Public Defender, Media, for appellant.
A. Sheldon Kovach, Assistant District Attorney, Media, for Commonwealth, appellee.
Spaeth, Beck and Johnson, JJ.
[ 313 Pa. Super. Page 558]
This is an appeal from a judgment of sentence for robbery, criminal conspiracy, and prohibited offensive weapons. Appellant was convicted of several other offenses, but since these merged with the robbery, no separate sentence for any of them was imposed. One of these several other offenses was unlawful restraint. Appellant argues that he is entitled to a new trial because the lower court in its
[ 313 Pa. Super. Page 559]
charge improperly defined the offense of unlawful restraint.*fn1 However, we find no error, and therefore affirm.
In the course of committing a robbery, appellant, using a sawed-off shotgun, forced restaurant employees to open a safe, lie on the floor, and unlock a back door for his escape. The incident lasted about ten minutes. N.T. 3/4/81 at 7.
The offense of unlawful restraint is defined as follows:
A person commits a misdemeanor of the first degree if he knowingly:
(1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury; or
(2) holds another in a condition of involuntary servitude.
18 Pa.C.S.A. § 2902 (1981 Supp.).
Appellant argues*fn2 that the lower court improperly charged the jury on the meaning of "involuntary servitude" within § 2902(2). The charge was that
the defendant has been charged with unlawful restraint in this manner [ sic; matter?] as well and in order to find the defendant guilty of that crime you must be satisfied beyond a reasonable doubt that the following two elements have been established by the Commonwealth: First, that the defendant held either Mr. Sulik or Mr. Coen in a condition of involuntary servitude, that is held one of those individuals subject to a will other than that individual's, that is allowing Mr. Sulik or Mr. Coen, depending on whose case you're considering, and not allowing him to decide what to do or what not to do, in other
[ 313 Pa. Super. Page 560]
words, the freedom of choice and requiring, on the contrary, that person to do something which is laying [ sic ] on the floor or opening the door contrary to the exercise of his free will, in other words, not giving that person, Mr. Sulik or Mr. Coen, the opportunity to voluntarily freely decide for himself whether or not they choose to do one of these two things, lay [ sic ] on the floor or open the door as the case suggests to you and, of course, when I say do one of those two things, who is going to decide what was done or what was not done? You, ladies and gentlemen, are because you're the judges of the facts and you have to determine what happened.
So, the first element of this offense is that the defendant had the victim in a condition of involuntary servitude and the second element is that the defendant knowingly held that victim in a condition of involuntary servitude. I've already defined what knowing conduct is and, therefore, I won't repeat it for you at this time.
N.T. 4/29/81 at 79-80.
Appellant argues that "involuntary servitude" "means slavery or bondage," Brief for Appellant at 13, and should not be construed to include "order[ing] [a person] to commit an act against his will pursuant to a robbery," id. "Otherwise, every robbery would involve a charge of unlawful restraint whenever the victim is ordered to hand over his money." Id.
We have discovered no case construing the meaning of "involuntary servitude" as used in the definition of the offense of unlawful restraint.*fn3 We believe, however, that the meaning becomes clear when the phrase is taken in the context of the Crimes Code.
In the Crimes Code, the offense of unlawful restraint, 18 Pa.C.S.A. § 2902, falls between the offense of kidnapping, id. § 2901, and the offense of false imprisonment,
[ 313 Pa. Super. Page 561]
id. § 2903.*fn4 Kidnapping requires that a person remove another a " substantial distance [] from the place where he is found," or confine another "for a substantial period in a place of isolation . . . ." Id. § 2901 (emphasis added). False imprisonment requires that one "knowingly restrain [] another unlawfully so as to interfere substantially with his liberty." Id. § 2903 (emphasis added). Unlawful restraint has no similar requirement; it suffices merely to "hold [] another in a condition of involuntary servitude." Id. § 2902(2).
It is therefore clear that "involuntary servitude" has no time dimension. Holding another in a condition of slavery would represent holding him in a condition of prolonged involuntary servitude. But that is not the only sort of involuntary servitude the legislature had in mind. For if that were the only sort it had in mind, it would have said so, just as in defining kidnapping it required proof of a "substantial distance" or "substantial period," and in false imprisonment, of "substantial[]" interference with liberty.
Once one realizes that "involuntary servitude" has no time dimension -- that any involuntary servitude, from brief to prolonged, may represent unlawful restraint -- it becomes apparent that the lower court's charge was correct. The court told the jury that the Commonwealth had to prove that in lying on the floor or in opening the door to enable appellant to escape, Mr. Sulik or Mr. Coen had not acted freely, but, rather, as individuals whom appellant had deprived of freedom of choice and had subjected to his will. Such individuals may fairly enough be characterized as "in a condition of involuntary servitude." Slaves, if you will, for a brief period.
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April 7, 2009
ANAMIKA ROY GUHA, RESPONDENT,v.STEVEN GUHA, A/K/A SUBRATA GUHA, A/K/A SHONE GUHA, APPELLANT.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Nassau County (Iannacci, J.), entered June 22, 2007, which, upon a decision of the same court dated March 23, 2007, made after a non-jury trial, inter alia, awarded him only 30% of the value of the marital residence, and only 5% of the value of the plaintiff's enhanced earning capacity, and failed to award him maintenance.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, JOSEPH COVELLO and RANDALL T. ENG, JJ.
(Index No. 200410/03)
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
Contrary to the defendant's contention, the Supreme Court did not err in awarding him only 30% of the value of the marital residence and 5% of the value of the plaintiff's enhanced earning capacity. "Equitable distribution does not necessarily mean equal distribution" (Evans v Evans, 57 AD3d 718, 719; see Groesbeck v Groesbeck, 51 AD3d 722, 723; Falgoust v Falgoust, 15 AD3d 612, 614). "Where only modest contributions are made by the nontitled spouse toward the other spouse's attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity" (Higgins v Higgins, 50 AD3d 852, 853, quoting Farrell v Cleary-Farrell, 306 AD2d 597, 599-600).
Here, the evidence at trial established that the defendant made minimal financial contributions to the marriage (see Evans v Evans, 57 AD3d at 719; Arrigo v Arrigo, 38 AD3d 807; Sade v Sade, 251 AD2d 646, 647). The defendant, moreover, failed to satisfy his burden of demonstrating that he made substantial contributions to the plaintiff's attainment of her license to practice medicine in the United States (see Higgins v Higgins, 50 AD3d at 853; Brough v Brough, 285 AD2d 913, 914; Sade v Sade, 251 AD2d at 647). The record reflects that the plaintiff completed medical school in India prior to meeting the defendant and that she passed the United States Medical Licensing Examination based on her own ability, tenacity, perseverance, and hard work (see Gandhi v Gandhi, 283 AD2d 782, 784-785). Thus, the Supreme Court, after properly considering the relevant statutory factors (see Domestic Relations Law § 236[B][5]; Arrigo v Arrigo, 38 AD3d 807; Falgoust v Falgoust, 15 AD3d at 614), providently exercised its discretion in distributing the marital estate.
Contrary to the defendant's contention, the Supreme Court properly declined to award him maintenance (see Arrigo v Arrigo, 38 AD3d at 808; Gainey v Gainey, 303 AD2d 628, 630-631).
The defendant's remaining contentions are without merit.
SPOLZINO, J.P., FLORIO, COVELLO and ENG, JJ., concur.
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How to Convert Vinyl Records to CD
Converting your vinyl record collection into CDs can be a time-consuming process, but is a better alternative than having to buy the entire collection again in a different format. It is probably also preferable to having a professional do the work for you, which can be costly depending on the condition of the record. If you are relatively unconcerned about perfect audio quality, doing the conversion yourself can be accomplished with equipment that you may already have in your home or that is relatively cheap to purchase.
Things You'll Need
- Turntable
- Computer with a sound card and a CD-RW drive installed
- Phono turntable pre-amp
- RCA cables
- Blank CDs
- Software to digitize the music and burn CDs
How to convert Vinyl Records to CD
Step 1
Connect your preamplifier and turntable using a standard stereo RCA cable with two connectors on each end. An inexpensive pre-amp and cables can be purchased at any store that sells electronic equipment.
Step 2
Use an RCA to RCA-mini cable (3.5mm on one end) to connect from the pre-amp's auxiliary outputs to the computer's sound card "Line in" jack. On many cards, the this jack will be light blue. You should not confuse this with the headphone "Line out" jack, which is normally lime green.
Step 3
Download software for recording and editing sounds. Programs like Audacity, Wavosaur or Wavepad Sound Editor all work on many computer operating systems and are all free, plus they have the necessary functions, which sound recorders that come with many computers lack. See the Resources section for links to download these programs.
Step 4
Click the "Record" button in your sound editor and drop the turntable's needle onto the vinyl record to start playing the selected song. Once the recording is finished, click the "Stop" button on the recording and then stop playing the vinyl record on the turntable.
Step 5
Save your track on your sound editing software by clicking "File" and then "Save Project" or "Save Project As." Much like saving a document on a computer, you should create or choose a folder where you are likely to store music and is easily identifiable, either by artist name or the name of the album you are recording. At this point, do NOT close the project.
Step 6
Save the project a second time by clicking "File" and then "Export," choosing the MP3 option in the menu. Once you click "Save," you will most likely be asked to fill in relevant metadata on your project, including the artist name, track title and album title. Audacity uses this method to save all projects, while the other programs allow users to save tracks as MP3s without filling in metadata.
Step 7
Finish the conversion by burning the MP3 onto a CD using software that came with the computer. Alternatively, you can download programs online meant for authoring CDs or other digital files. Windows Media Player is a free, user-friendly option that comes with the Windows operating system; it has a "Burn" option built into the main menu that allows the user to drop and drag files directly into a list. If you decide to use Wavepad Sound Editor, it comes with an option to burn CDs.
Step 8
Insert a blank CD into the CD-RW drive and click "Start Burn" in Windows Media player or on your preferred software. When the disc is done burning, the computer will automatically eject it from the disk drive.
Tips & Warnings
- The audio editors mentioned in this article all have the same general interface, though you may find one more user-friendly than the next. For the purpose of this article, the author used Audacity to complete the process of converting a vinyl record to CD.
- Your phono pre-amp may not come with a ground wire. in this case you can likely reduce any hum by attaching the turntable ground wire to one of the phono amp case screws to reduce or eliminate buzzing noise.
- Make sure the "Line in" check box is checked in your computer's audio mixer before starting the conversion process. (Hint: In Windows, double-click the speaker icon in your system tray to access the audio mixer).
- It may take a few tries to get the audio levels at the desired level on output. It is best to test audio levels, then record, save and burn at least one track as a test before continuing to convert your entire vinyl collection.


text:
Patriot Coal's (PCX) stock fell after S&P downgraded its debt to B- over liquidity concerns. Coal stocks have been taking a hit on the lack of demand for the commodity. Peabody (BTU), Alpha Natural Resources (ANR), Arch Coal (ACI), and James River (JRCC) have taken a hit as well.
These coal stocks have been hammered on weak coal demand and production. Coal demand has been weak due to warmer winters and its a trend that is suppose to continue over time.
The corporate credit rating on Patriot Coal reflects the combination of what we consider to be the company's "weak" business risk profile and "highly leveraged" financial risk profile. The company has significant exposure to the high-cost Central Appalachia region and faces challenges posed by the inherent risks of coal mining, including operating problems, price volatility, and increasing costs and regulatory scrutiny. - S&P Ratings Services
The reason S&P gave for the downgrade is something that all coal stocks are experiencing right now. Demand is only one piece of the puzzle, but throw in regulatory problems and cost concerns, then you get a large mess.
All five of these coal companies will most likely take a hit, although Peabody continues to be the best positioned. Arch, Alpha Natural, Patriot, and James River will continue to have a tough time with profitability.
In general, the coal stocks may look cheap on a valuation basis, but keep in mind that as coal prices continue to fall, so will these stocks. Analyst estimates continue to lag, which causes many investors to believe these companies are cheap. They are not cheap and many of them may not even be around in the next five years if liquidity concerns continue to rise.
Disclosure: I have no positions in any stocks mentioned, and no plans to initiate any positions within the next 72 hours.


text:
Whether in professional, college, or high school sports, everyone seems to be looking for an edge over their competition. This current approach has led some to travel a path where winning, fame, and fortune become ultimate goals with little thought to one's character, integrity, and future health consequences along the way.
Well, what if there was another way to gain an edge over one's competitors? What if that way had more to do with gaining specific information about the athletes under your direction?
Many have enjoyed watching the movie Blind Side, an inspirational story of an individual that is given a chance to succeed. One of the best scenes in the movie is when Sandra Bullock's character steps on the field and tells Mike how to protect the quarterback and on the way off the field tells the coach "... you need to get to know your players."
What if there was a way to do this with precision?
What if having that information gave you detailed insight into your athlete's mental strengths, character, motivation, and potential limitations in such a way it helped break through to them. It would give you insight in how to help them reach their best level of performance and allowed you to reach inside each athlete and pull out the potential they have within just like Sandra did for Mike.
Do you think this type of information might help you to create a team environment where everyone on that team thrives? Where leaders can be chosen based on who brings the best leadership skills to the table in specific situations, and where goals become a mere end result of a process rather than the brass ring that few can reach.
If any of this has sparked your interest, then stay with me as I introduce you to Pam Brooks, a certified behavior analyst from Arizona.
I had the pleasure of making contact with Pam through her interest in my forthcoming book Becoming a True Champion. She wanted to purchase my book "on the spot" as a "great teaching tool for young people who aspire to be great athletes."
It was on emailing her back to explain that I am still in the process of seeking publication that we commenced a dialogue between us regarding what behavioral analysis, especially athletic behavioral analysis, is all about and how it works.
Through this dialogue she offered to test me to see where my results might fall on all of the parameters at her disposal. Since I had been through both a successful high school and college athletic career, I felt it would be interesting to see how all this panned out.
In addition, I was genuinely intrigued by what Pam was trying to accomplish. Now I should point out that Pam, aside from being a certified behavior analyst (as mentioned above), also
holds two Masters degrees in counseling and communications, worked as an athletic academic adviser at Boise State University and was a former Division I collegiate volleyball player out of the University of Washington. In addition to being a coach herself, she has been working with many collegiate teams over the years, including Division I teams with Final Four appearances and National Championships.
With a background like this, what more could one ask for from a behavior analyst who assesses athletic behavior? So I went ahead and took all the tests she threw at me. They were interesting, fun, and challenging, forcing me to make choices about things I normally don't give much thought to.
Without going into great detail, let me just say that Pam spent a lot of time with me over the phone thoroughly detailing my results. The passion for what she does was very evident throughout our conversation and the accuracy of her results, or profiling as it might be called, was, well, uncanny to say the least.
I was shocked at how well these assessments laid out my own personality and how well Pam was able to interpret them, and not just strengths but also "areas of improvement."
Pam, and these tools, basically took my personality apart piece by piece leaving a pretty comprehensive picture of who I was and how I react. Any minor discrepancies Pam was able to clarify using data from the assessment tools themselves.
From a teaching perspective, it gave all the pieces necessary for a coach to actively work with me as an athlete, and as a person. It would have given any coach the capability of enhancing his or her ability to inspire me to reach my own potential, as well as giving the coach the information needed to effectively integrate me into his or her team environment.
Pam's work is nothing short of amazing.
Just keep in mind that Pam and the tools she uses are only as good as the willingness the coach has to put her results into practical use.
As the Baylor Men's Tennis coach said, "We would not have won the National Championship in 2004 without the insightful assistance of Pam Brooks. She helped us better understand one another and brought out the best in all of us. I can think of no better way to help your program move to the next level than placing your group in her capable hands."
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December 19, 2008
CLAYTON BLEHM, DBA FDC INVESTMENTS, INC., PLAINTIFF,v.BETSY MCINTYRE, ET AL., DEFENDANTS.
On August 4, 2008, Defendant Quiksilver, Inc. ("Quiksilver") filed a motion to dismiss Plaintiff Clayton Blehm's Complaint. On August 28, 2008, Defendant Betsy McIntyre ("McIntyre"), later substituted by the United States, also filed a motion to dismiss Plaintiff's Complaint. Plaintiff did not file an opposition to either motion. For the reasons discussed below, the United States' motion is GRANTED. Quiksilver's motion is DENIED.
A. Factual Background
The following facts are taken from the Complaint. The Court makes no finding as to the truthfulness of the allegations of the Complaint.
Plaintiff Clayton Blehm formerly served as the Chief Financial Officer of DC Shoes, Inc. ("DC Shoes") and on its Board of Directors. (Compl. ¶ 6.) In 1999, Plaintiff, the other DC Shoes owners, and Defendant Quiksilver met to discuss the possible sale of DC Shoes to Quiksilver. (Compl. ¶ 7.) These discussions were unsuccessful. (Id.)
In 2001, the Internal Revenue Service ("IRS") audited DC Shoes (Compl. ¶ 15) and reclassified Plaintiff as an employee of the company (Compl. ¶ 17). McIntyre was the IRS Revenue Agent assigned to the matter. (Compl. ¶ 14.) Previously, Plaintiff had been classified as an independent contractor through his personal services corporation, FDC Investments, Inc. (Compl. ¶ 17.) As a result of this reclassification, in April, 2002, the IRS determined that DC Shoes owed $1.8 million, in addition to penalties and interest, for its failure to withhold payroll taxes related to Plaintiff's employment. (Compl. ¶ 18.)
In March, 2002, Billabong, Inc. ("Billabong") expressed interest in purchasing DC Shoes. (Compl. ¶ 8.) During the spring and summer of 2002, Plaintiff negotiated a deal with Billabong and met with Billabong representatives to discuss operations and a sales campaign. (Compl. ¶¶ 9, 12.) The sale of DC Shoes to Billabong was finalized on June 4, 2002. (Compl. ¶ 10.)
On June 30, 2002, the other owners of DC Shoes, Damon Way and Kenneth Block, met with Plaintiff. (Compl. ¶ 20--21.) Way and Block allegedly expressed their belief that Plaintiff's actions led to the IRS determination and, as a result, terminated Plaintiff. (Compl. ¶ 21.) Following Plaintiff's termination, the DC Shoes-Billabong deal fell through. (Compl. ¶ 23.)
Plaintiff filed a lawsuit against DC Shoes and Billabong on October 2, 2002, alleging wrongful termination. (Compl. ¶ 26.) Plaintiff and DC Shoes ultimately settled the suit on August 20, 2003. (Compl. ¶ 27.) Under the terms of the Settlement Agreement, Plaintiff agreed to resign from the Board and sell his stock back to DC Shoes for $4.5 million. (Def.'s Request for Judicial Notice ("RJN"), Ex. 3 ("Settlement Agreement") ¶ D.) DC Shoes also agreed to pay Plaintiff $10.5 million in cash consideration for the releases stipulated in the Settlement Agreement. (Settlement Agreement ¶ 7.1.) Additionally, the Settlement Agreement provided that "DC Shoes shall acknowledge and agree that (i) the claim made by the Internal Revenue Service for unpaid taxes relating to Blehm's prior employment with DC Shoes, in the approximate amount of $1,800,000, plus all applicable interest and penalties (the "IRS Claim") is the sole responsibility of DC Shoes, and (ii) none of the FDC Parties shall have any liability or obligation to DC Shoes in connection with the IRS Claim." (Settlement Agreement ¶ 5.)
In January, 2004, Quiksilver, Inc. agreed to purchase DC Shoes. (Compl. ¶ 29.) The deal closed later that spring. (Id.) According to the Complaint, DC Shoes formally refused to pay Plaintiff's employment taxes to the IRS in late 2004. (Compl. ¶ 32.)
B. Procedural Background
On August 17, 2006, Plaintiff brought an action against DC Shoes and its principals (the "DC Parties") in California Superior Court, County of San Diego, North County Branch (the "State Court action"). (Def.'s RJN, Ex. 8 ("State Court Complaint").) Plaintiff asserted claims of breach of contract, intentional concealment, intentional misrepresentation, breach of fiduciary duty, and related causes of action. (See State Court Compl.) Plaintiff's breach of contract and intentional concealment claims went to trial in October, 2007, and the Superior Court entered judgment in favor of the DC Parties on all remaining claims on January 4, 2008. (Def.'s RJN, Ex. 9 ("State Court Judgment").) Plaintiff untimely filed a notice of appeal on July 2, 2008 (Def.'s RJN, Ex. 12) and a motion for a new trial on July 15, 2008 (Def.'s RJN, Ex. 10). On September 16, 2008, the Superior Court denied Plaintiff's motion for a new trial. (Def.'s Second Supp. RJN, Ex. A.) On October 20, 2008, the California Court of Appeal dismissed Plaintiff's appeal. (Def.'s Supp. RJN, Ex. A.)
Plaintiff filed the instant lawsuit in California Superior Court, County of San Diego, North County Branch, on May 29, 2008. Plaintiff alleged fraud and conspiracy against Defendants McIntyre and Quiksilver. (Compl. ¶ 44--63.) On July 8, 2008, the United States, on behalf of McIntyre, removed the case to federal court. On October 23, 2008, the Court substituted the United States for McIntyre.
A. The United States' Motion to Dismiss
The United States moves to dismiss Plaintiff's Complaint based on several grounds.
The Court finds that because the United States is immune from suit, Plaintiff fails to state a claim upon which relief may be granted. Dismissal is therefore appropriate under Federal Rule of Civil Procedure 12(b)(6) and the Court does not reach the other grounds for dismissal argued by the United States.
1. Standard of Review
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). The plaintiff must set forth only a "short and plain statement" of the claim showing that plaintiff is entitled to relief. Conley v. Gibson, 355 U.S. 41, 47 (1957). When reviewing a motion to dismiss for failure to state a claim, the Court accepts all well-pleaded facts of the complaint as true and construes them in the light most favorable to the nonmoving party. Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595 (9th Cir. 2004). The Court generally may not look beyond the face of the complaint in deciding a motion to dismiss. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
2. Sovereign Immunity
The United States argues that Plaintiff's claim must fail because it has not waived its sovereign immunity. The United States, as sovereign, cannot be sued without its consent. United States v. Dalm, 494 U.S. 596, 608 (1990). Generally, "the party who sues the United States bears the burden of pointing to... an unequivocal waiver of immunity." Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992). Plaintiff's Complaint sued McIntyre in her individual capacity and did not address sovereign immunity. The United States, on behalf of McIntyre, properly removed this case to federal court pursuant to 28 U.S.C. 1442(a)(1), which allows removal by an officer of the United States sued in either her official or individual capacity. The Court then correctly substituted the United States as the party defendant in this action [Docket No. 19].
Because Plaintiff neither opposed the United States' notice of substitution nor responded to the United States' motion to dismiss, he failed to address the issue of sovereign immunity. Therefore, Plaintiff has not met his burden of establishing that the United States waived its immunity here.
Even if Plaintiff had sought to establish a waiver of sovereign immunity, his claims would still fail. Plaintiff seeks money damages based on his fraud and conspiracy claims. An action under the Federal Tort Claims Act ("FTCA") is the exclusive remedy for such claims against the United States. See 28 U.S.C. § 1346(b)(1). The FTCA generally waives the federal government's immunity in civil actions for money damages based on the "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." Id. But, the United States revokes consent under the FTCA for "[a]ny claim arising in respect of the assessment or collection of any tax... by any officer of customs or excise or any other law enforcement officer." 28 U.S.C. § 2680(c)).
Courts have read 28 U.S.C. § 2680(c) broadly as it applies to IRS Revenue Agents. In Morris v. United States, 521 F.2d 872, 874 (9th Cir. 1975), the plaintiff alleged that IRS Revenue Agents harassed and intimidated him and his wife, and unlawfully seized and levied upon his property. Even assuming that the agents' conduct was outside the scope of their authority, Morris nonetheless held that the United States was immune from suit, since "the claim [fell] squarely within the exempted group of tort claims arising out of tax collection efforts." See also Jones v. United States, 16 F.3d 979, 980--981 (8th Cir. 1994) (holding that the "United States retains its sovereign immunity under section 2680(c) from claims arising in respect to tax assessment or collection even when, as here, the claims encompass torts and constitutional violations.").
Even if Plaintiff had brought his action under the FTCA, section 2680(c) would apply to bar his suit. Plaintiff claims that McIntyre and Quiksilver (as parent of DC Shoes) conspired to reach a settlement under I.R.C. § 3509 (Compl. ¶ 56) and then fraudulently failed to disclose the settlement to Plaintiff, inducing him to sell his stock, agree to the sale of DC Shoes, and affecting his personal tax liability (Compl. ¶ 45--50). McIntyre's allegedly tortious conduct all relates to the "assessment and collection of [a] tax," namely, the employment tax liability arising out of Plaintiff's misclassification as an independent contractor. This alleged conduct clearly falls within the scope of section 2680(c). The United States is therefore immune from suit in this action and Plaintiff has failed to state a claim upon which relief may be granted. The Court GRANTS prejudice the United States' motion to dismiss under Rule 12(b)(6) and does not reach the United States' alternate bases for dismissal.
B. Quiksilver's Motion to Dismiss
Defendant Quiksilver argues that Plaintiff's Complaint should be dismissed based on the res judicata effect of the action Plaintiff brought against the DC Parties in California Superior Court on August 17, 2006 (the "State Court action"). The Court disagrees for the reasons explained below.
Quiksilver asserts that Plaintiff's action should be dismissed under Rule 12(b)(6) for failure to state a claim. Although a court generally should not look beyond the face of the complaint when considering a motion to dismiss (Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)), "[it] may take judicial notice of'matters of public record' without converting a motion to dismiss into a motion for summary judgment, as long as the facts noticed are not'subject to reasonable dispute.'" Intri-Plex Technologies, Inc. V. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2001) (quoting Lee, 250 F.3d at 689 (internal citations omitted)).
The Court takes judicial notice of the State Court action documents relevant to Quiksilver's motion to dismiss, including: (1) Plaintiff's complaint filed in the Superior Court of California on August 17, 2006 (Def.'s RJN, Ex. 8 ("State Court Complaint")); (2) the outcome of the State Court action (Def.'s RJN, Ex. 9 ("State Court Judgment")); (3) Plaintiff's motion for a new trial (Def.'s RJN, Ex. 11); (4) Plaintiff's notice of appeal (Def.'s RJN, Ex. 12); (5) the California Superior Court's order denying Plaintiff's motion for a new trial (Def.'s Supp. RJN, Ex. A); and (6) the California Court of Appeal's order dismissing Plaintiff's appeal (Def.'s Second Supp. RJN, Ex. A). Because Plaintiff's complaint specifically refers to the Settlement Agreement and its authenticity is not in dispute (See, e.g., Compl. ¶ 27), the Court also considers this document. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) ("We have said that a document is not'outside' the complaint if the complaint specifically refers to the document and if its authenticity is not questioned."), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002).
2. Res Judicata
"Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 US 90, 94 (1980). Res judicata applies to bar a subsequent action "whenever there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties." Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003).
The pleadings in this case do not make clear whether an identity of claims exists with the prior State Court action. In his State Court Complaint, Plaintiff claimed that the DC Parties intentionally failed to disclose material facts including the I.R.C. § 3509 settlement (State Court Compl. ¶ 37) and negotiations to sell DC Shoes (State Court Compl. ¶ 36). Plaintiff further alleged that he justifiably relied on the absence of these facts to his detriment when he entered into the Settlement Agreement on August 20, 2003 and agreed to sell his DC Shoes shares to the DC Parties.
In the present action, Plaintiff asserts fraud and conspiracy. Specifically, Plaintiff now claims that Quiksilver and Betsy McIntyre conspired to fraudulently withhold material facts including the I.R.C. § 3509 settlement, thereby inducing Plaintiff to permit the sale of DC Shoes to Quiksilver in early 2004. (Compl. ¶ ¶ 56, 58.) The Court determines that, on the face of the pleadings, it cannot hold these claims identical to those alleged in Plaintiff's prior State Court action. The Court finds that Quiksilver's defense of res judicata would be more appropriately raised on a noticed motion for summary judgment. Therefore, the Court DENIES Quiksilver's motion to dismiss without prejudice. Because the State Court action is now completely resolved, the Court also DENIES Quiksilver's motion to stay as moot.
For the reasons discussed above, the Court hereby GRANTS the motion to dismiss filed by Defendant United States [Docket No. 11]. The Court DENIES without prejudice Defendant Quiksilver's motion to dismiss [Docket No. 3]. The Clerk is ORDERED to enter final judgment dismissing all claims against the United States with prejudice. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the Court finds that there is no just reason for delay in entering judgment for the United States.
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United States District Court, Central District of Illinois, Springfield Division
March 6, 2015
MATTHEW T. CULLEN, Plaintiff,v.MICHELLE SADDLER, et al., Defendants.
Plaintiff, proceeding pro se, claims that he was required in prison to participate in a religious substance abuse treatment program-a program based on the 12-steps of Alcoholics Anonymous (AA), which requires reverence to a "higher power." Cross-summary judgment motions are before the Court.
The undisputed facts show that Plaintiff could not be considered for discretionary good time credit under 730 ILCS 5/3- 6-3(a)(3) unless he was enrolled in a prison substance abuse treatment program, and the only program available to him was a religious one. The facts in this case are substantively indistinguishable from Kerr, a Seventh Circuit case from nearly 19 years ago which held that eligibility for parole cannot be conditioned on completion of a religious treatment program.
Summary judgment is, therefore, warranted for Plaintiff, except as to Defendant Taylor, whom Plaintiff admits was not in charge during the relevant time. Remaining is Plaintiff's damages claim for $350.00 plus unspecified costs of suit, which will be dealt with in further proceedings.
On October 19, 2009, as part of a plea agreement, Plaintiff pled guilty to aggravated driving under the influence, 625 ILCS 5/11-501(d)(1)(A), a class four felony. He was sentenced to three years in the Illinois Department of Corrections. (10/19/09 sentencing court Order, d/e 50-2, p. 1; sentencing transcript, d/e 50-5.) The sentencing court found that the offense "was committed as a result of the use of, abuse of, or addiction to alcohol or a controlled substance." Id. During the sentencing, Plaintiff noted his objection to participating in a substance abuse treatment based on the "twelve-step program" of Alcoholics Anonymous because Plaintiff is agnostic. The sentencing court warned Plaintiff that participating or not participating in substance abuse treatment would likely have some impact on Plaintiff's ability to earn good time credits, but that the IDOC had "a full range of people with religious, different religious viewpoints, including no religion, and 12 steps; and they will respect all that, and they deal with that on a regular basis." (sentencing transcript, p. 26.)
When Plaintiff arrived at the Stateville Northern Reception and Classification Center for processing on or about October 22, 2009, he was asked whether he wished to participate in a substance abuse treatment program at Sheridan Correctional Center. (Pl.'s Dep. pp. 9, 11-20). However, Plaintiff declined the offer after learning that the substance abuse treatment program at Sheridan is based on the 12-step program. Plaintiff was not offered a secular alternative and was transferred to Western Illinois Correctional Center about one week later. Plaintiff believes that the environment and programs at Sheridan were more desirable than those at Western, but he provides no specifics or evidence to support that assertion. Both prisons are medium security, according to the IDOC website. www2.illinois.gov/idoc/facilities (last visited March 5, 2015).
Plaintiff understood, from what others had told him, that at the time Plaintiff entered the IDOC, the IDOC had an early release program available to first time offenders, which might enable Plaintiff to receive six months of discretionary good time earlier than usual. (Pl.'s Dep. p. 30). No further information is provided about the specifics of this program, but Defendants do not dispute Plaintiff's understanding.
When Plaintiff arrived at Western Correctional Center, Defendant McNeff was assigned as Plaintiff's counselor. Defendant McNeff also acted as a substance abuse counselor and administered a substance abuse treatment program at Western. (McNeff Aff., para. 1-2.)
Defendant McNeff advised Plaintiff that, because the sentencing judge had recommended substance abuse treatment, Plaintiff must participate in the treatment to be considered for discretionary good time. (Defs.' Undisputed Fact 20; McNeff Aff., para. 8-10.) Discretionary good time is governed by an Illinois statute which allows the IDOC Director to award up to 180 days of 1:12-cv-01032-SEM-TSH # 68 Page 5 of 15 good time, which is in addition to day-for-day good time inmates like Plaintiff can earn as a matter of course. 730 ILCS 5/3-6- 3(a)(2.1), (3)(1). Whether discretionary good time is actually awarded to an eligible inmate lies within the discretion of the Director. 730 ILCS 5/3-6-3(a)(3). "Discretionary good time" is the Court's nomenclature: Defendants refer to Section 5/3-6-3(a)(3) good time as "meritorious good time."
According to Defendant McNeff's affidavit:
6. The substance abuse treatment program at Western was not a part of Alcoholics Anonymous ("A.A.") and did not consist of 12 steps. The program did utilize modified versions of some of A.A.'s 12 steps, but did not require that participants recognize the existence of "God, " any deity, or other monotheistic entity.
7. The substance abuse program at Western did reference a higher power, but when it did both I and the material emphasized that such higher power could be anything, according to the participants' perception.
Defendant McNeff does not dispute that at the treatment meetings she passed out books on the twelve-step program. She also does not dispute Plaintiff's contention that Western's program was based on the Hazelden Foundation's "Design for Living" materials, which, according to Plaintiff, borrowed heavily from AA's 1:12-cv-01032-SEM-TSH # 68 Page 6 of 15 twelve-step principles, urging participants to acknowledge a "higher power" to whom one must admit their defects. (Pl.'s Mot. Sum. J., d/e 54, p. 8.) The Hazelden Betty Ford Foundation is an entity in Minnesota dedicated helping individuals overcome addiction. The Foundation publishes books, including a book titled, "Living with Your Higher Power: A guide to the Big Book's Design for Living." www.hazelden.org (last visited 3/3/2015). According to the website for Alcoholics Anonymous, the "Big Book" is the basic text published by Alcoholics Anonymous which explains the AA approach. www.aa.org (last visited 3/4/15). Whether this particular book or the materials in it were used at Western is not in the record, but Defendants do not dispute Plaintiff's assertion that that some of the material used in the program at Western derides agnostics and focuses on accepting a higher power. (Pl.'s Compl. p. 11; Pl.'s Mot. Summ. J., d/e 54, p. 19.)
Plaintiff objected to the religious aspects of the program, as well as to other parts of the program. According to Plaintiff, he sent a letter to Defendants Saddler, Binion-Taylor, and Nance about needing a secular substance abuse treatment program but received no response. (Pl.'s Mot. Summ. J., d/e 54, p. 10.)
In order to be eligible for discretionary good time, Plaintiff took the substance abuse program at Western from January 2010 through May 10, 2010, when he completed the program. However, before Plaintiff started taking the substance abuse program, the IDOC suspended the six-month early-release program. (Pl.'s Dep. a. 30.) Defendant McNeff purportedly reassured Plaintiff and other inmates that she expected the early-release program to be reinstated and recommended that they continue with the treatment. (Pl.'s Dep. p. 30). The early-release program was not reinstated, however. Despite the suspension of the early-release program, Plaintiff was still able to earn about three and ½ months of good time credit for completing college and vocational courses, in addition to statutory day-for-day good conduct credit. (Pl.'s Dep. pp. 8-11).
As the Court noted in its prior order, the Establishment Clause refers to the part of the First Amendment to the United State Constitution which states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. The Establishment Clause 1:12-cv-01032-SEM-TSH # 68 Page 8 of 15 prohibits the government from coercing an individual to participate in a religious activity.
In Kerr v. Farrey, 95 F.3d 472, 479-80 (7th Cir. 1996), the Seventh Circuit held that requiring an inmate to attend a narcotics abuse treatment program based on the 12 steps violated the Establishment Clause. The inmate in Kerr was required to "observe" Narcotics Anonymous ("NA") meetings or risk a higher security classification and potential adverse effects on parole. Id. at 475. The inmate in Kerr did not actually suffer a higher security classification, but he did assert that his parole had been affected and could be affected in the future.
The twelve steps of the NA program at issue in Kerr relied heavily on the belief in a "power greater than ourselves, " though the Warden in Kerr averred that a greater power could include a belief in a nonreligious power such as willpower. Id. The NA principles were set forth in the Kerr opinion as follows:
1. We admitted that we were powerless over our addiction, that our lives had become unmanageable.
2. We came to believe that a power greater than ourselves could restore us to sanity.
3. We made a decision to turn our will and our lives over to the care of God as we understood Him.
4. We made a searching and fearless moral inventory of ourselves.
5. We admitted to God, to ourselves, and to another human being the exact nature of our wrongs.
6. We were entirely ready to have God remove all these defects of character.
7. We humbly asked Him to remove our shortcomings.
8. We made a list of all persons we had harmed, and became willing to make amends to them all.
9. We made direct amends to such people wherever possible, except when to do so would injure them or others.
10. We continued to take personal inventory, and when we were wrong promptly admitted it.
11. We sought through prayer and meditation to improve our conscious contact with God, as we understood Him, praying only for knowledge of His will for us, and the power to carry that out.
12. Having had a spiritual awakening as a result of those steps, we tried to carry this message to addicts and to practice these principles in all our affairs.
Kerr, 95 F.3d at 474.
The Kerr Court concluded that the 12 steps were "fundamentally based on a religious concept of a Higher Power." The Court also found that the inmate had been coerced to take the program because refusing to do so might result in a higher security classification or negatively affect parole determinations. 95 F.3d at 480. Kerr held that the Establishment Clause had been violated but granted qualified immunity to the defendants. See also Inouye v. K emna, 504 F.3d 705 (9th Cir. 2007)(parole officer violated establishment clause by requiring parolee to attend AA/NA meetings, "which are rooted, the parties agree, in a regard for a "higher power.")
Defendants make no meaningful attempt to argue that the program at Western is not religious, and the Court sees no meaningful distinction between the Western program and the program in Kerr. The Western program relied significantly on AA principles, at least on this record, which Kerr has already determined to be a program religious in nature. That a "higher power" can be anything the participant decides makes no difference-the "concept of a Higher Power" is religious. Kerr, 472 F.3d at 480.
Defendants try to distinguish Kerr on the coercion element, arguing that no one required Plaintiff to take the class in this case and Plaintiff was not threatened with discipline. Yet, Defendants do not deny that Plaintiff had to complete the substance abuse program in order to be eligible to receive discretionary good time. 730 ILCS 5/3-6-3(a)(4.5) prohibits the award of discretionary good time when "the court's sentencing order recommends a prisoner for substance abuse treatment . . . unless he or she participates in and completes a substance abuse treatment program."[1] While the sentencing order does not expressly recommend substance abuse treatment, Defendant McNeff admitted that was the IDOC's interpretation when she told Plaintiff that Plaintiff would not be eligible for discretionary good time unless he completed the substance abuse program. (Defs.' Undisp. Fact 20.)
Potential negative effects on the eligibility for early release was one of the coercions in Kerr. Kerr, 747 F.3d at 473 ("suffering adverse effects for parole eligibility").[2] That the IDOC Director decides whether an inmate actually receives discretionary good time does not change the fact that an inmate cannot even be considered for the discretionary good time until he completes the treatment program.
In short, the Court sees no material distinction between this case and Kerr. The Court, therefore, holds that Plaintiff was "coerced" to take the substance abuse treatment program at Western Illinois Correctional Center because that was the only way for Plaintiff to be considered for discretionary good time. [3]
Defendants also argue for qualified immunity, but qualified immunity is not warranted. The defendants in Kerr were granted qualified immunity, but that was nearly 19 years ago. Kerr clearly established a constitutional right to be free from the coercion Plaintiff experienced. Brokaw v. Mercer County, 235 F.3d 1000, 1022 (7th Cir.2000)(Qualified immunity shields government officials from liability under Section 1983 "for actions taken while performing discretionary functions, unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.")
Defendants also argue that the only one of them personally responsible is Defendant McNeff. Yet, as the Court explained in its prior order, personal responsibility can arise from the creation and implementation of an unconstitutional policy. See Roe v. Elyea, 631 F.3d 843 (7th Cir. 2011)(IDOC medical director could be personally liable for instituting alleged unconstitutional policy regarding treatment of inmates with Hepatitis C). The administrative defendants do not dispute Plaintiff's assertion that they were responsible for implementing a secular substance abuse treatment program and that they were aware that no secular alternatives were available to Plaintiff. The only defendant who should be dismissed on this record is Defendant Taylor. Plaintiff admits that Taylor did not serve as Assistant Director until after Plaintiff had completed the program. (Pl.'s Mot. Summ. J. p. 2, para. 6, d/e 54, p. 2.)
What remains is Plaintiff's claim for damages. In his Complaint, Plaintiff seeks $350 in damages for emotional distress, plus court costs. That seems reasonable, but Plaintiff must put evidence in the record that he actually suffered emotional distress or other harm. Horina v. City of Granite City, 538 F.3d 624, 637 (7th Cir. 2008)("Although a district court may award compensatory damages to a successful § 1983 plaintiff, it may not award damages to account for 'the abstract value of a constitutional right.'")(quoted cite omitted). Otherwise, Plaintiff may recover only $1.00, but he would still be able to recover his reasonable costs. Id. Plaintiff will be given an opportunity to substantiate his claim for compensatory damages. The Court suggests that if a trial is necessary on compensatory damages, the parties might consider waiving the right to a jury trial, given that Plaintiff seeks only $350.
1) Defendants' motion for summary judgment is granted in part and denied in part (49). Summary judgment is granted only for Defendant Taylor. Defendants' summary judgment motion is otherwise denied.
2) Plaintiff's motion for summary judgment (54) is granted as to liability for Defendants Saddler, Nance, McNeff, Binion-Taylor, and Randle. Plaintiff's motion for summary judgment is denied as to Defendant Taylor.
3) Plaintiff's motion to compel Mr. Godinez to comply with Plaintiff's subpoena is denied as moot (64).
4) By March 31, 2015, Plaintiff is directed to submit an affidavit and any other evidence he has to support his claim for $350 in compensatory damages.
5) By March 31, 2015, Plaintiff is directed to submit the amount he seeks for reimbursement for costs, itemized and with receipts attached.
6) By April 17, 2015, Defendants are directed to file any objections to the damages and costs Plaintiff seeks.
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Nosocomephobia is a medically related phobia, defined as the excessive fear or phobia of hospitals.[1][2][3] Marc Siegel a doctor and associate professor at the New York University Medical Center says, "It's perfectly understandable why many people feel the way they do about a hospital stay," and continues, "You have control of your life ... up until you're admitted to a hospital."[4] U.S. President Richard Nixon was known to have a fear of hospitals after refusing to get a treatment for a blood clot in 1974 saying, "if I go into the hospital, I'll never come out alive.".[5][6]
Nosocomephobia comes from the Greek language, nosokemeion- meaning hospital and phobos being irrational fear.[7]
See alsoEdit
- Dental phobia
- List of phobias
- Needle phobia
- Nosophobia - fear of illness
- Treatment barriers
- ↑ Semple, David; Roger Smyth, Jonathan Burns, Rajan Darjee, Andrew McIntosh (2005). Oxford handbook of psychiatry, Oxford University Press.
- ↑ Glenn, Harrold The Ultimate Self-Hypnosis Cure for the Phobia of Hospitals (Nosocomephobia). Diviniti Publishing Ltd.. URL accessed on 29 November 2009.
- ↑ Nosocomephobia. The Personal Genome. URL accessed on 29 November 2009.
- ↑ includeonly>Kirchheimer, Sid. "How to Survive a Stay in the Hospital", Web MD, medicinenet.com. Retrieved on 29 November 2009.
- ↑ includeonly>"Nixon Rejecting Care in Hospital", UPI, Spokane Daily Chronicle, September 16, 1974. Retrieved on 28 November 2009. [dead link]
- ↑ includeonly>"Doctor Tells Nixon's Fear of Hospital", Associated Press (AP), Toledo Blade, September 15, 1974. Retrieved on 28 November 2009. [dead link]
- ↑ Thomas, Charles (2001). The words of medicine: sources, meanings, and delights, University of Michigan: Charles C. Thomas.
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11176 19 Mile Road, Rodney 49342
See more homes for sale in Rodney, MI
Affordable home on 2 acres-- 2 stall pole barn. Near Chippewa Lake and priced to SELL. Nice covered porch to relax under. Fire pit and wooded setting. Newer windows and shingles. Great buy. Call today for details.
Property Information
- Status
- Active
- Address
- 11176 19 Mile Road
- City
- Rodney
- Zip
- 49342
- County
- Mecosta
- Township
- Chippewa
- Possession
- At Close
- Siding
- Vinyl
- Above Grade SqFt
- 1,159
- Garage Desc.
- 2, Detached
- Water
- Well
- Sewer
- Septic System
- Year Built
- 1983
- Taxes
- $750
Rooms and Land
- MasterBedroom:
- 12x12 Main Floor
- Bedroom2:
- 10x11 Main Floor
- Bedroom3:
- 10x10 Main Floor
- Kitchen:
- 12x10 Main Floor
- Living:
- 21x12 Main Floor
- Dining:
- 10x12 Main Floor
- Laundry:
- 8x5 Main Floor
- Basement
- Other, Slab
- Heating
- Propane
- Acreage
- 2.0
- Lot Dimensions
- 150x216
- Appliances
- Range, Refrigerator
- Exterior Materials
- Vinyl
- Exterior Features
- Porch(es)
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