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March 31, 2008
JOSÉ CURIEL, PLAINTIFF,v.LARRY STIGLER AND RODNEY BRADY, DEFENDANTS.
The plaintiff, a state prisoner, has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The plaintiff claims that the defendants, officials at the Stateville Correctional Center, violated the plaintiff's constitutional rights by subjecting him to cruel and unusual punishment. More specifically, the plaintiff alleges that during a prison-wide "shakedown," he was forced to stand handcuffed in a prison recreation yard in near-ninety-degree heat for several hours in pain and without being given food, water, or the opportunity to use the facilities. This matter is before the court for ruling on the defendants' motion for summary judgment. For the reasons stated in this order, the motion is granted.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Vision Church v. Village of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006). In determining whether factual issues exist, the court must view all the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Walker v. Northeast Regional Commuter Railroad Corp., 225 F.3d 895, 897 (7th Cir. 2000).
However, Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Sarver v. Experian Information Solutions, 390 F.3d 969, 970 (7th Cir. 2004) (citations omitted). The court may grant summary judgment if facts are in dispute, so long as those facts are not outcome determinative. Outlaw v. Newkirk, 259 F.3d 833, 840 (7th Cir. 2001); Nash v. DeTella, No. 00 C 2784, 2001 WL 1160840, *2 n. 5 (N.D. Ill. Oct. 2, 2001) (Zagel, J.)
The defendants filed a statement of uncontested material facts pursuant to Local Rule 56.1 (N.D. Ill.). Together with their summary judgment motion, the defendants served on the plaintiff the required notice under Local Rule 56.2, advising the plaintiff what he needed to do to contest the motion, and specifically what he needed to do to dispute the defendants' statement of uncontested facts. Despite this, the plaintiff has not submitted a statement of contested facts with citations to the record; instead, he simply elaborates on or equivocates about certain facts in his opposing brief. But unsupported statements in a brief are not evidence and cannot be given any weight. See, e.g., Johnson v. Spiegel, Inc., No. 02 C 0680, 2002 WL 1880137, at *4 (N.D. Ill. Aug. 15, 2002) (Pallmeyer, J.), citing In the Matter of Morris Paint and Varnish Co., 773 F.2d 130, 134 (7th Cir. 1985).
The plaintiff's failure to respond to the defendants' statements of material facts as directed warrants disregard of any contrary assertions he makes in his briefs. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003):
Local Rule 56.1's enforcement provision provides that when a responding party's statement fails to controvert the facts as set forth in the moving party's statement in the manner dictated by the rule, those facts shall be deemed admitted for purposes of the motion. . . . We have consistently held that a failure to respond by the non-movant as mandated by the local rules results in an admission. See, e.g., Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 689 (7th Cir. 2000). A district court is not required to "wade through improper denials and legal argument in search of a genuinely disputed fact." Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). And a mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material. Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir. 1993).
Nevertheless, because the plaintiff is proceeding pro se, the court will consider the factual assertions he makes in his brief, but only to the extent that the plaintiff could properly testify about the matters asserted at trial. Affidavits must concern facts about which the affiant is competent to testify, must be based on personal knowledge, and must set forth such facts as would be admissible in evidence. Fed. R. Civ. P. 56(e). A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Fed. R. Evid. 602. Furthermore, a party may not create an issue of fact with an affidavit containing assertions that contradict previous depositions or other sworn testimony. See, e.g., Ineichen v. Ameritech, 410 F.3d 956, 963 (7th Cir. 2005).
The court therefore finds that the following facts, gathered from the defendants' statement of facts, the plaintiff's deposition testimony, and other exhibits, are undisputed for purposes of this motion:
The plaintiff is a state prisoner, confined at the Stateville Correctional Center at all times relevant to this action. (Amended Complaint, p. 2, Section I.) Defendant Larry Stigler was the Tactical Team Commander at Stateville during the time period in question. (Defendants' Motion for Summary Judgment, p. 2, ¶ 3.) Defendant Rodney Brady was a member of the Illinois Statewide Tactical Team at all times relevant to this action. (Id., ¶ 4.)
On September 1, 2005, Stateville's Tactical Team conducted a prison-wide shakedown of the facility. (Amended Complaint, p. 6.)
Between the hours of 9:00 a.m. and 10:00 a.m, all inmates in the plaintiff's cellhouse were placed in handcuffs and removed from their cells. (Defendants' Exhibit A, Deposition of José Curiel, at p. 19.) [The plaintiff was not wearing a watch during the shakedown and could only guess the approximate times outlined in this Facts section. (Id., p. 23.)]
When he was handcuffed, the plaintiff complained to a medical technician, who told him that he was probably "sore" but that the pain would go away. (Id., p. 31.)
The plaintiff and his fellow cellhouse occupants were first taken to the inmate dining room, where they remained for about an hour and a half to two hours for a roll call. (Id., p. 19.) The inmates were then escorted to the prison gymnasium, where they were all had to provide urine samples for analysis. (Id., p. 20.) Water was given to prisoners who could not urinate. (Id., pp. 21-22.) The inmates remained in the gym for about an hour or so. (Id., p. 22.)
At about 11:00 or 12:00, upon completing the urinalysis tests, the inmates were sent to the segregation yard while their cells were searched. (Id., p. 24.) The plaintiff and other prisons remained in the segregation yard between three and five hours*fn1 waiting for the tactical team to complete its search of the plaintiff's cellhouse. (Id., pp. 24, 28, 54.) Shakedowns at Stateville normally last about three hours and inmates are usually held in the gymnasium rather than the yard. (Id., pp. 51-52.)
On the date in question, the weather temperature reached a high of 85.7 degrees Fahrenheit. (Defendants' Exhibit H, Weather Station History for Caton Farm, Plainfield-Joliet, Illinois.) Although the yard was too crowded to allow much movement, the plaintiff was able to sit down on the ground while in the segregation yard. (Plaintiff's Depo., pp. 25, 27.) There was no shady area in the yard where the plaintiff could seek refuge from the hot sun. (Id., p. 27.)
While confined to the segregation yard, the plaintiff felt nauseated from the heat, his head ached, and his shoulder hurt from the handcuffs. (Id., pp. 13, 26, 38.) The plaintiff did not collapse from the heat or show outward signs of distress. (Id., p. 39.) The plaintiff had no pre-existing injuries that would have been exacerbated by being placed in handcuffs for several hours. (Id., pp. 62-63.)
Medical technicians were present on the segregation yard during the shakedown. (Defendants' Exhibit I, Affidavit of Med Tech Seymour White, ¶ 3.) Although the plaintiff observed one or two medical technicians tending to inmates who had requested assistance, the plaintiff did not, himself, ask for medical attention. (Plaintiff's Depo., pp. 34-37.) The plaintiff did not ask a correctional officer for help, either. (Id., pp. 34, 36.) At about 1:00 p.m. or 2 p.m., the plaintiff asked for a cup of water. (Id., pp. 37.) The plaintiff received water between 3 p.m. and 4 p.m, after the shakedown was completed. (Id., p. 44-46; Defendants' Exhibit B, Committed Person's Grievance, at p. 2.)
The plaintiff was served dinner, including a beverage, at 5:00 p.m. (Plaintiff's Depo., pp. 45-46.)
The purported pain the plaintiff experienced on the segregation yard due to the heat and handcuffs subsided within a few hours. (Id., p. 30.) The plaintiff did not seek medical treatment in the hours, days, weeks, or months following the shakedown in connection with any alleged injuries sustained from the ordeal. (Id., pp. 30-32.) The plaintiff nevertheless maintains that to this day, he continues to experience pain in his right elbow and left hand, that he has a bad shoulder, that his right hand remains weak, and that he has a "funny sensation" in his wrist, all because he remained in handcuffs so long that day. (Id., pp. 15-16, 30, 32-33.)
No outcome-dispositive facts are in dispute and the court concludes that the defendants are entitled to judgment as a matter of law. Even viewing the record in the light most favorable to the plaintiff, no reasonable person could find that either the plaintiff's shackling or his placement in the hot segregation yard for several hours during a cellhouse search rose to the level of a constitutional violation. Accordingly, summary judgment is granted in favor of the defendants.
As discussed in the court's prior order denying the defendants' motion to dismiss the complaint for failure to state a claim, "[t]he Eighth Amendment prohibits punishments which involve the unnecessary and wanton infliction of pain, are grossly disproportionate to the severity of the crime for which an inmate was imprisoned, or are totally without penological justification." Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004), quoting Meriwether v. Faulkner, 821 F.2d 408, 415 (7th Cir. 1987) (citing Rhodes v. Chapman, 452 U.S. 337, 346 (1981); Caldwell v. Miller, 790 F.2d 589, 600 (7th Cir. 1986)).
A conditions-of-confinement claim has two components--an objective test (whether the conditions can be considered inhumane) and a subjective test (whether the defendants acted with a culpable state of mind). Wilson v. Seiter, 501 U.S. 294, 298, 303 (1991); Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir. 2001). The objective prong asks whether the alleged deprivation or condition of confinement is "sufficiently serious" so that "a prison official's act or omission results in the denial of the minimal civilized measure of life's necessities." Whitman, 368 F.3d at 934, quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotations omitted). If the conditions complained of pass this threshold, courts then must determine the prison official's subjective state of mind; that is, whether "he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Whitman, 368 F.3d at 934, citing Farmer, 511 U.S. at 847; see also Johnson v. Phelan, 69 F.3d 144, 149 (7th Cir. 1995).
A. Objectively Serious Condition
Although the court previously found that the complaint stated a colorable cause of action sufficient to withstand a motion to dismiss, the more fully developed record shows that the plaintiff suffered no deprivation of constitutional magnitude. Generally, the standard for determining whether prison conditions satisfy the objective component of the Eighth Amendment focuses on whether the conditions are contrary to "the evolving standards of decency that mark the progress of a maturing society." Farmer, 511 U.S. at 833-34; see also Lunsford v. Bennett, 17 F.3d 1574, 1579 (7th Cir. 1994). To meet this standard, the deprivation must be "extreme;" mere discomfort is not sufficient. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). Not all restrictive or even harsh prison conditions are actionable under the Eighth Amendment. Rhodes, 452 U.S. at 347. Deprivations must be "unquestioned and serious" and contrary to "the minimal civilized measure of life's necessities." Id. The court will address each of the plaintiff's ostensible hardships in turn.
1. Missed Meal(s)
One or two missed meals are not actionable as Eighth Amendment violations. "The state must provide an inmate with a healthy, habitable environment." French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985) (citation omitted); McGee v. Monahan, No. 06 C 3538, 2007 WL 2728756, at *9 (N.D. Ill. Sep. 14, 2007). Correctional officials must ensure that inmates receive adequate food, clothing, shelter, protection, and medical care. Henderson v. Sheahan, 196 F.3d 839, 844 (7th Cir. 1999). However, while there is no question that the Eighth Amendment requires correctional officials to provide inmates with an adequate diet, the occasional missed meal does not rise to the level of a constitutional violation. See, e.g., Knox v. Wainscott, No. 03 C 1429, 2003 WL 21148973, at *8 (N.D. Ill. May, 14, 2003) (Manning, J.) (citations omitted); Cunningham v. Eyman, No. 95 C 2900, 2000 WL 748098, at *6 (N.D. Ill. Jun. 9, 2000) (Moran, J.).
It is unclear from the record whether the plaintiff went without both breakfast and lunch or lunch only; in either event, the matter is not actionable under 42 U.S.C. § 1983. There is an ancient maxim, de minimis non curat lex, "the law cares not for trifles." Ehrlich v. Mantzke, No. 01 C 7449, 2002 WL 265177, *4 (N.D. Ill. Feb. 25, 2002) (Kocoras, J.). The Constitution does not concern itself with de minimis matters. Going without food for up to ten hours on a single occasion due to a special security procedure does not implicate the Eighth Amendment.
2. Water
For the same reasons, the lack of drinking water under the circumstances of this case is not actionable under 42 U.S.C. § 1983. As the courts have stated time and again, "the Constitution does not require prison officials to provide the equivalent of hotel accommodations or even comfortable prisons." Sherman v. Lane, No. 92 C 2192, 1998 WL 111649, at *8 (N.D. Ill. Mar. 9, 1998) (Andersen, J.); U.S. v. Weathington, 507 F.3d 1068, 1073 (7th Cir. 2007). Occasional discomfort is "part of the penalty that criminal offenders pay for their offenses against society." Lunsford v. Bennett, 17 F.3d 1574, 1581 (7th Cir. 1994), quoting Rhodes, supra, 452 U.S. at 346. The inmates went without food and water only as long as it took the tactical team to conduct its "shakedown" of the plaintiff's cellhouse--at most, ten hours. In the absence of any health problem necessitating water, the matter is de minimis.
3. Handcuffs / Inability to Use the Facilities
Requiring the plaintiff to remain handcuffed for several hours did not violate his constitutional rights. The U.S. Supreme Court has held that police executing a search warrant on a house may reasonably detain the occupant in handcuffs while the search is in progress because governmental interests outweigh the "marginal intrusion." See Muehler v. Mena, 544 U.S. 93, 99 (2005). Certainly, if police can handcuff a private citizen for several hours during a search without offending the Constitution, then prison officials must be accorded the same deference in their treatment of convicted prisoners, who enjoy much more limited constitutional protections. The court is satisfied that keeping the plaintiff shackled during the shakedown did not violate the Eighth Amendment. See, e.g., Key v. McKinney, 176 F.3d 1083, 1086 (8th Cir. 1999) (prisoner who was restrained in handcuffs and shackles for 24 hours, making it more difficult for him to relieve himself, did not suffer a constitutional violation). Although it is most regrettable that the plaintiff urinated on himself while he remained handcuffed outside, wet pants for a couple of hours cannot be said to be an objective violation of the Eighth Amendment.
Nor has the plaintiff made a triable showing that he was handcuffed in such a way as to cause any real injury. The plaintiff asserts that he objected when he was first placed in handcuffs; the medical technician told him that he was "sore" but that the feeling would go away. (Plaintiff's Depo., p. 31.) Thereafter, the plaintiff never complained to any correctional officer or medical technician on the segregation yard that he was in pain. (Id., pp. 34, 36.) The plaintiff had no pre-existing injuries that would have been exacerbated by being placed in handcuffs for several hours. (Id., pp. 62-63.) Furthermore, following the shakedown, the plaintiff never sought medical attention for injuries sustained during the process. The plaintiff has adduced no evidence showing that the lingering injuries he complains of today can be attributed to the events of the day in question. The record is devoid of evidence from which one could infer that the plaintiff suffered anything more than temporary discomfort.
4. Heat
Similarly, the court concludes that spending several hours under a hot sun did not rise to the level of an Eighth Amendment violation. Inmates have a right to be free from extreme hot and cold temperatures. Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1087 (7th Cir. 1986); Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997). But in this case, involving a single afternoon under the sun--in the same yard where inmates spend five hours a week for their outdoor recreation--the court cannot find that the plaintiff's exposure to heat amounted to cruel and unusual punishment. Compare Dixon, supra, 114 F.3d at 643 (the duration of the deprivation must be considered in determining whether conditions of confinement are unconstitutional); Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996) (same). "Punishment" in the constitutional sense requires allegations of extreme deprivations over an extended period of time. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992); Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999).
In short, none of the relatively brief hardships the plaintiff experienced during the shakedown amounted to privations so objectively serious as to implicate the Eighth Amendment.
B. Subjective Intent
Even assuming (without finding) that the conditions the plaintiff endured did amount to objectively serious deprivations, the plaintiff has not satisfied the subjective component of the court's inquiry. That element relates to a defendant's state of mind and requires a showing of deliberate indifference. Turner v. Miller, 301 F.3d 599, 603 (7th Cir. 2002). A negligent or inadvertent exposure to harm is insufficient to state a Section 1983 claim because such an action is not an "unnecessary and wanton infliction of pain," and is not "repugnant to the conscience of mankind. See, e.g., Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002) (involving alleged deliberate indifference to medical care).
In the case at bar, there is no dispute that valid security concerns motivated the shakedown. Furthermore, it is uncontested that the defendants penned the plaintiff and his fellow inmates in the segregation yard only for as long as it took them to conduct the cellhouse search. There was no malicious intent in leaving the prisoners handcuffed under the sun.
Moreover, nothing in the record suggests that the plaintiff had a manifest need for relief from the heat or handcuffs. He did not faint or fall down (see Plaintiff's Deposition at p. 39), he did not complain about the conditions on the yard (id., pp. 34-36), and he did not ask for medical attention. (Id.) Thus, even accepting as true that the plaintiff was suffering as much as he says he was, the lack of outward signs of distress, along with his failure to request assistance, belie any inference that the defendants were subjectively aware of his need for succor. The defendants cannot be held liable for issues about which the plaintiff did not put them on notice. The plaintiff has not satisfied either the objective or subjective elements required for liability under 42 U.S.C. § 1983.
C. Personal Involvement
Even assuming that the plaintiff did articulate a triable Eighth Amendment claim, he has not stated a cause of action against the named defendants. In order to recover damages against a state actor under § 1983, a plaintiff must show the actor was personally and directly responsible for the constitutional deprivation. H. ex rel. Higgin v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003). In this case, the plaintiff has provided no evidence establishing that the alleged violations of his constitutional rights occurred at the named defendants' direction or with their knowledge and consent. Id. Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, "to be liable under § 1983, an individual defendant must have caused or participated in a constitutional deprivation." Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations omitted).
The doctrine of respondeat superior (blanket supervisory liability) does not apply to actions filed under 42 U.S.C. § 1983. See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Section 1983 does not create collective or vicarious responsibility. Id. Supervisors cannot be held liable for the errors of their subordinates. Birch v. Jones, No. 02 C 2094, 2004 WL 2125416, at *6 (N.D. Ill. Sep. 22, 2004) (Manning, J.), citing Pacelli v. DeVito, 972 F.2d 871, 877 (7th Cir. 1992). "Supervisors who are merely negligent in failing to detect and prevent subordinates' misconduct are not liable." Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001) (citations omitted). To be held liable under 42 U.S.C. § 1983, supervisors "must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference." Id. In short, some causal connection or affirmative link between the action complained about and the official sued is necessary for § 1983 recovery. Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014, 1039 (7th Cir. 2003).
In the case at bar, the defendants seem to agree, for purposes of this motion, that they authorized and headed the prison-wide shakedown, including the placement of certain inmates on the segregation yard while their cellhouse was searched. But putting the broad plan in place is not the same as mistreating an individual inmate. If a correctional officer or medical technician was personally aware that the plaintiff was suffering unduly and failed to take any action, then the plaintiff might have had a cause of action against that particular official. However, because the plaintiff has failed to state any facts suggesting that the named defendants were personally involved in--or even aware of--the alleged mistreatment, they are entitled to judgment as a matter of law.
D. Qualified Immunity
Finally, the court is satisfied that the defendants are entitled to qualified immunity. Under the doctrine of qualified immunity, state officials "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Anderson v. Creighton, 483 U.S. 635, 638 (1987); Wilson v. Layne, 526 U.S. 603, 609 (1999); To evaluate a claim of qualified immunity, the court must engage in a two-step analysis. First, the court determines whether the plaintiff's claim states a violation of his constitutional rights. The court then determines whether those rights were clearly established at the time the alleged violation occurred. See Wilson, 526 U.S. at 609; Sain v. Wood, 512 F.3d 886, 893 (7th Cir. 2008). Only if the rights were clearly established may the official be liable for monetary damages. See Richardson v. McKnight, 521 U.S. 399, 403 (1997).
Although the plaintiff has a clearly established right to humane conditions of confinement, he has not demonstrated that placing him on the segregation yard during a relatively routine prison security sweep--even handcuffed and under a hot sun for a few hours--violated a constitutional right. Hence, the defendants are entitled to qualified immunity on the plaintiff's Eighth Amendment claim.
For all of the foregoing reasons, the defendants' motion for summary judgment is granted. While the plaintiff's confinement on the segregation recreation yard may have been unpleasant, the temporary deprivations he describes, neither individually nor in their totality, rose to the level of a constitutional violation. The court concludes that no reasonable jury could find either that the challenged conditions were objectively serious enough to establish a constitutional violation, or that the defendants had the requisite subjective state of mind to cause or act with deliberate indifference to suffering. Consequently, the Clerk is directed to enter judgment in favor of the defendants pursuant to Fed. R. Civ. P. 56.
If the plaintiff wishes to appeal this final order, he may file a notice of appeal with this court within thirty days of the entry of judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal in forma pauperis should set forth the issues the plaintiff plans to present on appeal. See Fed. R. App. P. 24(a)(1)(C). If the plaintiff does choose to appeal, he will be liable for the $455 appellate filing fee irrespective of the outcome of the appeal. Evans v. Illinois Dept. of Corrections, 150 F.3d 810, 812 (7th Cir. 1998). Furthermore, if the appeal is found to be non-meritorious, the plaintiff may also be assessed a "strike." The plaintiff is warned that if a prisoner has had a total of three federal cases or appeals dismissed as frivolous, malicious, or failing to state a claim, he may not file suit in federal court without prepaying the filing fee unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
IT IS THEREFORE ORDERED that the defendants' motion for summary judgment [#64] is granted. The Clerk of Court is directed to enter judgment in favor of the defendants pursuant to Fed. R. Civ. P. 56. The case is terminated. The parties are to bear their own costs.
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Business Matters: How Good Is SiriusXM's Business Model? It's Raising Its Price Again
By Glenn Peoples, Nashville
SiriusXM CEO Jim Meyer announced Thursday the price for the regular, self-pay service will increase 50 cents to $14.99 a month and will be implemented in the first quarter. Its previous price increase came in January 2012, when the monthly rate rose to $14.49 from $12.95. Meyer said customers will be notified of the price hike next week.
Many of today's most popular music services -- YouTube, Vevo, Pandora, Spotify -- are free. On-demand digital music subscription services are not in a position to raise prices. Yet SiriusXM shows consumers are willing to pay for music, and other entertainment, if presented with a good deal.
So what sets SiriusXM apart from its radio and digital music competitors? I see four factors.
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Programming: Distribution doesn't matter if consumers aren't provided a valuable service they can't get anywhere else. Part of SiriusXM's value stems from its programming -- both music and non-music programs like sports and talk. The service offers curated radio stations, artist-specific stations (Bruce Springsteen, Elvis, Pearl Jam and others), live concerts, Howard Stern (exclusively) and a range of sports, news and talk shows.
Bundling: SiriusXM creates more value than its music competitors by bundling music and other types of programming. A music subscription service or Internet radio service that focuses solely on music will attract a smaller audience than a more varied service with a similar price. Internet radio service Slacker has taken steps in this direction by offering news items from ABC, ESPN and the American Public Media program Marketplace in addition to its personalized music service.
Barriers to entry: Because the startup costs of a satellite radio company are incredibly high, SiriusXM is unlikely to face another satellite competitor anytime soon. And because it's a satellite-based company, the SiriusXM signal can be heard across North America. The rise of the connected automobile will present SiriusXM with more competition. Its acquisition of Agero, a provider of connected vehicle services, for $530 million suggests SiriusXM is intent on protecting its presence in the automobile.
SiriusXM has been on a tear lately. In the third quarter, SiriusXM posted record revenue of $962 million, up 11% from the third quarter of 2012. Adjusted earnings before income taxes, depreciation and amortization (EBITDA) for the third quarter of 2013 was a record $296 million, up 21% from the third quarter of 2012.
The financial metrics are driven by continued growth in subscribers. The company ended the quarter with 26.5 million subscribers, up 9% from the third quarter of 2012. It added 513,000 net subscribers, including 373,000 self-pay net additions. Both figures are post-merger records for the third quarter.
To put SiriusXM's subscriber base into context, consider ESPN has about 98 million subscribers in the United States and HBO has about 29 million subscribers, according to an SNL Kagan estimate. Netflix has about 30 million subscribers in North America and another nine million internationally. Yes, today's consumer will pay for music and other entertainment. They'll even withstand price increases, as long as the service provides enough value and has a unique product.
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12:00 - 12:30pm
WOW! .... that's the best way to describe this beautiful modern family home. Set opposite a park and in a location so good the current owners are building right next door!
Everywhere you look there are little surprises and its difficult to know where to start with the features of this home. But lets begin with the fact it has four large bedrooms, plus study/office (or 5th bedroom), and two large bathrooms. The front bedroom is an ideal guest room and features double built-in robe and has access to the semi-ensuite bathroom. The two minor bedrooms are have ample space for a queen bed, with double built-in robe and desk recess each. The master bedroom is king sized with direct access to the alfresco area, it also features a huge walk-in robe and ensuite with double vanity.
Upon arrival the first you will notice is the overall pleasant street appeal, with classic federation style and bull nose wrap around veranda. Access is via a front gate, past the lovely reticulated garden, and veranda. Through the front door you are greeted by a wide inviting entry which brings you past the office and theatre room. The hall then takes you out to the open plan kitchen, dining, and sunken lounge. Both the theatre room and sunken lounge feature dark timber flooring which contrasts beautifully against the light and bright feel, and the high recessed ceilings.
The fully featured kitchen with 900mm oven and stove has enough cupboard and bench space to make cooking a joy, and the walk-in pantry will keep any large family fully stocked for weeks. There is plenty of space outside to entertain friends, and of course an open parkland across the quiet street to keep the kids and pets occupied.
Additional features of this property include, but are not limited to:
- Modern double brick "Peter Stannard built" home
- Just under 500sqm of land
- Landscaped and reticulated gardens
- Double lock-up garage with internal access
- Storage everywhere including two linen cupboards, one walk in and one double. Additional roof space storage with lighting available.
- Large laundry with lots of cupboard and bench space
- Fully ducted and zoned reverse cycle airconditioning
- Gas connected
- .... and more!
It would be difficult to find a home of this size and quality so close to the city, which is less than 10kms away. Surrounded by other modern and brand new homes it will be a pleasure to come home each day.
Call Clint now and arrange your appointment to view!
Office & Agent Details
Professionals The Kelly Team
- 193b Flinders Street
Yokine WA 6060
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Clint White
- Director
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Lombank West
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|For the Lombank offices in Downtown Los Santos, see Lombank Tower.
- "In a radical new step towards diversification of the banking sector, industry giant Lombank is selling office space to results-driven, high-liquidity kill squads and drug cartels. Be part of the change our financial industry needs."
- ―Dynasty 8 Executive description
Lombank West is a high-rise office building in Grand Theft Auto V. It is located at the intersection of Boulevard Del Perro and Bay City Avenue in Del Perro, Los Santos. The tower is based on the California Bank & Trust Building, also known as 100 Wilshire, a 21-story, 300 ft (91 m) building in Santa Monica, California.
It is one of the main offices of Lombank in Los Santos, a bank with branches in Liberty City and owned by the Bank of Liberty.
An office can be bought inside the building from the Dynasty 8 Executive website with the GTA Online: Further Adventures in Finance and Felony update.
- In GTA San Andreas, a replica of the same building can be found in Rodeo, Los Santos, near the Rodeo Hotel.
- Although the interior is inaccessible, pedestrians can be found inside the building.
- A health pack is located at the bottom of the building, next to Bluff Tower Office Complex.


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The Zagat Review
"In a part of town that needs more no-fuss" restaurants, this "quaint, cosy" neighbourhood bistro located in South Kensington fits the bill, with "old-school", "delicious" "French country food" that's "done right" and "superb for the price"; if there's one criticism, regulars say it's that the environment seems "a bit old and dark", but "friendly" service and "interesting people-watching" make amends.
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La Bouchee
56 Old Brompton Road
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MLS #1726821 Official listing information! N/A neighborhood - 0 Hwy 412 located in Linden TN 37096, priced at $178,500, with 0 bedrooms.0 Hwy 412 Linden TN - MLS #1726821 Close
Land for sale in Linden, TN at 0 Hwy 412. This spring land is priced at $1,050/acre.
This property has excellent potential for Hunting and Recreation. Has great wildlife signs, great terrain, and a natural spring for water. Timber was select cut two years ago.
Listing information last updated on December 7th, 2016 at 4:21pm CST.
Have any comments or questions about 0 Hwy 412, Linden, TN? Ask your question and/or share your thoughts about this property.


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April 28, 2010
ATPAC, INC., A CALIFORNIA CORPORATION, PLAINTIFF,v.APTITUDE SOLUTIONS, INC., A FLORIDA CORPORATION, COUNTY OF NEVADA, A CALIFORNIA COUNTY, AND GREGORY J. DIAZ, AN INDIVIDUAL, DEFENDANTS.
Plaintiff AtPac, Inc. ("AtPac") filed this action against defendants Aptitude Solutions, Inc. ("Aptitude"), County of Nevada, and Gregory J. Diaz alleging breach of contract, misappropriation of trade secrets, copyright infringement, and violation of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030 et seq. Defendants move to dismiss and move for judgment on the pleadings on plaintiff's fourth cause of action pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c) for failure to state a claim upon which relief can be granted, and to strike plaintiff's prayer for statutory damages for its third cause of action for copyright infringement pursuant to Rule 12(f) because plaintiff is not entitled to statutory damages as a matter of law.
I. Factual and Procedural Background
AtPac provides software and consulting services related to county clerk-recorder information imaging systems. (Compl. ¶ 3.) These systems are computer-based and designed to, inter alia, electronically receive, store, and organize information that is within the purview of a county clerk-recorder and store images of relevant documents associated with this information. (Id.) AtPac's clerk-recorder imaging information software is distributed under the mark "CRiis." (Id.) In 1999, AtPac allegedly entered into a License Agreement with County of Nevada for the CRiis software and related services to help County of Nevada electronically maintain and organize public information. (Id. ¶ 12.) The License Agreement was allegedly amended between 2001 and 2006, the most recent of which extended the term of the License Agreement until June 30, 2010. (Id. ¶ 13.)
The License Agreement allegedly provides, inter alia, that AtPac retains title to the software, that the software is trade secrets and that County of Nevada will not release or disclose the information to third parties (Id. ¶ 14), that County of Nevada will notify AtPac immediately of any known or suspected unauthorized use or access of the CRiis software (Id. ¶ 16), and that all documents provided to County of Nevada may not be reproduced by County of Nevada (Id. ¶ 17). California law governs the License Agreement. (Id. ¶ 22.)
In November 2008, Diaz, the Clerk-Recorder of County of Nevada, allegedly notified AtPac that County of Nevada intended to terminate the License Agreement and obtain the services of Aptitude, one of AtPac's competitors. (Id. ¶ 23.) Diaz allegedly rejected AtPac's offer to help County of Nevada extract the data from AtPac's files and convert it to a form usable by Aptitude. (Id.) Diaz allegedly represented in a January 8, 2008 letter that County of Nevada would extract the data from the AtPac files on its own, and that County of Nevada would not provide AtPac's trade secret information to Aptitude or save the trade secret and proprietary information. (Id. ¶¶ 24-25.) On January 13, 2009, County of Nevada allegedly ratified an indemnification agreement between Aptitude and County of Nevada, indemnifying Aptitude for claims related to "extraction and migration of County data for the system conversion." (Id. ¶ 26.)
AtPac alleges that County of Nevada did not perform the data extraction itself, and that it instead provided Aptitude with AtPac's trade secret and copyright-protected information. (Id. ¶¶ 28-30.) Specifically, AtPac alleges that Diaz and County of Nevada copied and provided this information through e-mail communications and through a public, non-secure file transfer protocol ("FTP") site entitled "Aptitude FTP" without AtPac's authorization. (Id. ¶¶ 29-33.) Diaz and County of Nevada allegedly provided Aptitude with "full and unfettered access" to the server located in County of Nevada's offices on which AtPac trade secret information and the CRiis source code are stored without AtPac's authorization. (Id. ¶ 34.)
Plaintiff filed its Complaint on February 3, 2010, (Docket No. 1) and Aptitude and Diaz filed their Answer on March 19, 2010. (Docket No. 10.) Presently before the court are County of Nevada's motion to dismiss plaintiff's fourth cause of action for violation of the CFAA (Docket No. 13) and Aptitude and Diaz's motion for judgment on the pleadings on plaintiff's fourth cause of action for violation of the CFAA, as well as each defendant's motion to strike plaintiff's prayer for statutory damages.
II. Discussion
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff needs to plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556-57).
Judgment on the pleadings is appropriate after the pleadings have closed when, on the face of those pleadings, accepting the allegations of the non-moving party as true, no material issue of fact remains to be resolved. See Fed. R. Civ. P. 12(c); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990). Under such circumstances, the moving party can obtain judgment as a matter of law. Hal Roach Studios, 896 F.2d at 1550. "Generally, district courts have been unwilling to grant a Rule 12(c) dismissal 'unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.'" Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984) (quoting 5A C. Wright & A. Miller, Federal Practice and Procedure: Civil, § 1368 at 690 (1969)).
On a motion for judgment on the pleadings, the factual allegations of the non-moving party are taken as true. Doleman, 727 F.2d at 1482 (citing Austad v. United States, 386 F.2d 147, 149 (9th Cir. 1967)). A Rule 12(c) motion is therefore essentially equivalent to a Rule 12(b)(6) motion to dismiss and consequently, a district court may "dispos[e] of the motion by dismissal rather than judgment."*fn1 Sprint Telephony PCS, L.P. v. County of San Diego, 311 F. Supp. 2d 898, 902-03 (S.D. Cal. 2004). "[D]ismissal can be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Sprint Telephony, 311 F. Supp. 2d at 902-03; see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). The court will therefore evaluate defendants' motions together.
In general a court may not consider items outside the pleadings upon deciding a motion to dismiss or motion for judgment on the pleadings, but may consider items of which it can take judicial notice. Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999) (internal citations omitted); Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). A court may take judicial notice of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. County of Nevada has submitted a Request for Judicial Notice ("RJN") (Docket No. 15) that contains a copy of the U.S. Copyright Office's web page showing that AtPac registered its CRiis software for copyright on January 26, 2010. (RJN Ex. A.) The court will take judicial notice of this exhibit because the record is generated by an official government website such that its accuracy is not reasonably in dispute. See, e.g., Edejer v. DHI Mortg. Co., No. 09-1302, 2009 WL 1684714, at *4 (N.D. Cal. June 12, 2009); Piazza v. EMPI, Inc., No. 07-954, 2009 WL 590494, at *4 (E.D. Cal. Feb. 29, 2008); see also Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2003) (taking judicial notice of information on official government website).
A. Motions to Dismiss Plaintiff's Fourth Cause of Action for Violation of the CFAA
As a preliminary matter the court notes that the motions are substantively identical, and will therefore only refer to and cite County of Nevada's motion to dismiss when discussing the motions.
The CFAA prohibits any person from "intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[] . . . information from any protected computer . . . ." 18 U.S.C. § 1030(a)(2)(C). It also prohibits any person from "knowingly, and with intent to defraud, access[ing] a protected computer without authorization, or exceed[ing] authorized access, and by means of such conduct further[ing] the intended fraud and obtain[ing] anything of value . . . ." Id. § 1030(a)(4). The CFAA also prohibits any person from "intentionally access[ing] a protected computer without authorization, and as a result of such conduct recklessly caus[ing] damage; or [] intentionally access[ing] a protected computer without authorization, and as a result of such conduct, caus[ing] damage and loss." Id. § 1030(a)(5)(B)-(C). The CFAA does not define "authorization" or "authorized access," but does define "[e]xceeds authorized access" as "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to so obtain or alter." Id. § 1030(e)(6); see also LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1132-33 (9th Cir. 2009) (discussing "authorization" under the CFAA). The CFAA is a criminal statute that also allows "any person who suffers damage or loss" under the statute to bring a civil action. Id. § 1030(g); see generally LVRC Holdings, 581 F.3d at 1130-33.
Plaintiff's fourth cause of action alleges that Aptitude, County of Nevada, and Diaz all violated these sections of the CFAA by accessing "the computer network (including computers and servers)" on which AtPac's trade secret and copyright-protected information reside without authorization or in excess of any authorization granted to them by AtPac. (FAC ¶ 73.) Plaintiff alleges that these computers and servers are located in County of Nevada's offices. (Id. ¶ 34.)
1. County of Nevada and Diaz's Liability
With respect to County of Nevada and Diaz, plaintiff fails to allege that they lacked any authority or authorization to use the computers. See LVRC Holdings, 581 F.3d at 1132-33 (explaining the distinction between the terms "without authorization" and "exceeds authorized access"). Plaintiff does not allege that plaintiffs were absolutely prohibited from using them. To the contrary, it is clear from the License Agreement that plaintiff granted those defendants the right to use plaintiff's software in conjunction with County of Nevada's computer system. (Compl. ¶ 12.) Counsel for plaintiff also conceded at oral argument that County of Nevada was authorized to use the computer at issue for at least some purposes. For this reason alone defendant's motion to dismiss should be granted with respect to County of Nevada and Diaz for the alleged § 1030(a)(5)(B)-(C) violations, as it only provides for liability for "intentionally access[ing] a protected computer without authorization" and does not provide for liability for exceeding authorized access.
Plaintiff instead argues in its Opposition that County of Nevada and Diaz exceeded their authorization to access the computers by accessing the CRiis software source code in violation of the License Agreement. (Opp'n at 7, 9.) While the Complaint excerpts provisions of the alleged License Agreement that cover disclosures to third parties, copies, notification of unauthorized use, periodic audits, and reproduction of the software, it fails to contain any allegation that the License Agreement prohibited the County of Nevada from accessing, obtaining, or altering plaintiff's software or source code. Indeed, the complaint fails to allege any facts that would indicate what constitutes an unauthorized access of the software by County of Nevada; the complaint merely states there were limits on how County of Nevada could use it by making copies of it or disclosing it to third parties. (See Compl. ¶¶ 14-15.) Rather, plaintiff's fourth cause of action makes only the conclusory allegation that defendants violated the CFAA. (Compl. ¶¶ 73-75.) Such conclusory allegations are "mere labels and conclusions" that are prohibited by Federal Rule of Civil Procedure 8(a)(2). Twombly, 550 U.S. at 555.
To the extent that plaintiff alleges that County of Nevada or Diaz are liable under the CFAA for providing Aptitude access to plaintiff's software, State Analysis, Inc. v. American Financial Services Assoc., 621 F. Supp. 2d 309 (E.D. Va. 2009), is instructive. In State Analysis, the court confronted a similar factual situation where a licensee defendant provided a third party with the means to access the plaintiff's protected materials. That court noted that the licensee was not guilty of unauthorized access or access exceeding authorization under the CFAA, but guilty only of unauthorized use or misappropriation of its access under the license agreement. 621 F. Supp. 2d at 317 ("[R]ather, the allegation is that [licensee defendant] used the information in an inappropriate way.") As the court has explained above, plaintiff's Complaint is devoid of any allegations that County of Nevada or Diaz exceeded their authorized access or accessed, obtained, or altered prohibited materials. Accordingly, the court will dismiss plaintiff's fourth cause of action as against County of Nevada and Diaz.
2. Aptitude's Liability
Courts have differed as to how broadly or narrowly to construe 18 U.S.C. § 1030(a)(2) and the concepts of "authorization" and "authorized access." Several cases exploring the potential liability of employees or former employees, for example, have determined that employees may go beyond their authorized access when they act as agents for others or act contrary to their employee's interest. See, e.g., LVRC Holdings, 581 F.3d at 1133 (clarifying that employee's "authorization" to use a computer does not cease when employee uses computer in violation of employer's limitations, but rather that employee has merely "exceeded authorized access"); EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001) (former employee exceeded authorized access when he passed along information to a third party in violation of a broad confidentiality agreement); Shurgard Storage Centers, Inc. v. Safeguard Self Storage, Inc., 119 F. Supp. 2d 1121 (W.D. Wash. 2000) (plaintiff's employees were defendant's agents when they had accepted job offers with defendant and used work computers to send trade secrets to defendant; employees therefore lacked authorization to access work computers). The Ninth Circuit has clarified that a plaintiff can bring a cause of action under the CFAA for unauthorized access to information stored on a third party's computer. Theofel v. Farey-Jones, 359 F.3d 1066, 1078 (9th Cir. 2004) (no ownership or control of computer required for CFAA action alleging harm by unauthorized access).
Two cases from the United States District Court for the Eastern District of Virginia address the specific question of whether third-party defendants can be liable under the CFAA where their access to plaintiff's software is made possible by another party violating its license agreement with the plaintiff. While of course neither case is binding authority, the court finds their juxtaposition instructive. In SecureInfo Corp. v. Telos Corp., 387 F. Supp. 2d 593 (E.D. Va. 2005), SecureInfo granted a software license to defendant Berman, a consultant for one of SecureInfo's competitors, which allowed him narrowly restricted access to the SecureInfo's materials. Berman---who was not sued under the CFAA--then allowed the other defendants access to SecureInfo's materials and his server on which they were located, in violation of the license agreement. Id. at 608. The court explained that Berman gave the other defendants "permission and authorization to use the [] server and view what was contained therein" and that "[e]ven if Mr. Berman allowed the defendants access to the [] server and SecureInfo's materials in violation of the license agreements, under his grant of authority to the defendants, they were entitled to obtain the information on the server." Id. at 609.
In contrast, the District Court for the Eastern District of Virginia four years later in State Analysis rejected SecureInfo's seemingly absolute ban on third-party defendant CFAA liability where one party gives the third-party defendant access to software in violation of a license agreement with the plaintiff. The State Analysis court held that defendant and prior client Kimbell Sherman Ellis ("KSE") acted "without authorization" when it accessed plaintiff's website and obtained proprietary material with the user names and passwords given to it by one of plaintiff's clients. That court found that the defendant "may not hide behind purported 'authorization' granted to it" by the client that violated the terms of use of its contract with plaintiff, particularly given that KSE was plaintiff's formal client and presumably knew the terms of plaintiff's license agreement. Id. at 316.
Naturally, plaintiff relies on State Analysis and argues not only that Aptitude cannot hide behind County of Nevada's "authorization" because it knew it violated the license agreement, but that the authorization was void ab initio because County of Nevada contracted away its right to authorize third-party access. In contrast, defendants rely on SecureInfo for the proposition that Aptitude did not exceed the "unfettered" access granted it by County of Nevada and Diaz. Plaintiff notes that SecureInfo distinguished its fact pattern from that in EF Cultural Travel, stating in dicta that had the plaintiff sued licensee Berman rather than the third parties, the rule in EF Cultural Travel "may have applied." 387 F. Supp. 2d at 609. All this means, however, is that the licensee may have exceeded his authorization and been subject to CFAA liability had he been sued, not that the third party defendants would become liable solely due to the presence of an additional defendant.
While the cases described above make clear that certain "insiders" can exceed their authorized access or even in some circumstances lose their authorization to access computers and computer networks, State Analysis does not establish---and the court is not willing to so rule--that third parties can ordinarily be liable under the CFAA for exploiting a licensee's violation of its license agreement. Rather, State Analysis is perhaps best applied in situations where the third-party defendant uses subterfuge---like using user names and passwords that do not belong to it--to gain access to plaintiff's protected materials on plaintiff's own website, computers, or servers.
This is consistent with the Ninth Circuit's decision in Theofel, which, in dicta referencing its prior analysis under the Stored Communications Act, 18 U.S.C. § 2701 et seq., implied that defendants who had issued a patently overbroad and illegal subpoena to Netgate for plaintiff's e-mails and subsequently viewed those e-mails on Netgate's website were not "authorized" under the CFAA by Netgate to view those e-mails. See 359 F.3d at 1072-74, 1078 (stating that the Stored Communications Act---and presumably also the CFAA--"provides no refuge for a defendant who procures consent by exploiting a known mistake that relates to the essential nature of his access."). While Theofel is silent with respect to the instant issue of whether a licensee can consent to give access to the licensed information to another, this court adopts the basic premise that a defendant's deceitful conduct can vitiate consent or authorization by a licensee. The door remains open for third-parties to be liable under the CFAA for accessing software programs held on a licensee's computers or servers where the defendant engages in the kind of fraudulent conduct that was present in State Analysis.
This case is more similar to SecureInfo where the licensee gives the third-party access to its own servers to access the protected information. Plaintiff does not allege that Aptitude accessed plaintiff's computers or servers, or that such access would require an access code or password that County of Nevada wrongfully provided Aptitude. Plaintiff instead alleges that County of Nevada gave Aptitude access to the servers located in its offices, and sent information by e-mail and via a public FTP site. (Compl. ¶¶ 28-34.) This does not allege the sort of subterfuge this court believes is necessary to find a defendant not party to a license agreement civilly liable under the CFAA where the licensee grants it authority to access information in violation of the license agreement.
B. Motions to Strike Plaintiff's Prayer for Statutory Damages
In their respective motions, the defendants each move to strike plaintiff's prayer for relief for statutory damages under the Copyright Act pursuant to Federal Rule of Civil Procedure 12(f). Section 412 of the Copyright Act prohibits an award of statutory damages unless a plaintiff has first registered its work prior to the "commencement of the infringement." 17 U.S.C. § 412. "[T]he first act of infringement in a series of ongoing infringements of the same kind marks the commencement of one continuing infringement under § 412." Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 701 (9th Cir. 2008) (emphasis in original). According to County of Nevada's Request for Judicial Notice, plaintiff registered its copyright on January 26, 2010 (RJN Ex. A.), a mere eight days before filing its Complaint in this action. (See Docket No. 1.)
While the face of plaintiff's Complaint does not allege any legally different kind of copyright infringement occurred between January 26, 2010 and February 3, 2010, it does allege that County of Nevada and Diaz copied and disclosed plaintiff's protected information to Aptitude in January 2009 (Compl. ¶¶ 23-33), and that Nevada County continues to maintain copies of plaintiff's protected information to this day. (Id. ¶¶ 35-37.) The discovery process will properly determine if or in what ways defendants have continued to violate plaintiff's copyright, and after discovery defendants can renew their motion or raise the issue on summary judgment.
IT IS THEREFORE ORDERED that County of Nevada's motion to dismiss plaintiff's fourth cause of action be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that Aptitude and Diaz's motion for judgment on the pleadings on plaintiff's fourth cause of action be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that defendants' motions to strike be, and the same hereby are, DENIED.
Plaintiff is given twenty days from the date of this Order to file an amended complaint consistent with this Order.
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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Essay:
That may "feel" socialist, but in reality it is still capitalism along with a healthy dose of charity and goodwill to others.
In socialism the government requires a person to give, where in capitalism a person gives only if he or she chooses to. There is no requirement for a person to give, but the more people who give the better the chance that society will flourish because there will more help for those who need it. In addition, the people who created most of the capital in the first place will still have enough. Since they were not forced by the government to give too much of what they had, they can keep enough to protect themselves and still have some left over to give to those who are less fortunate (Marx, 1888). In the end, that is a significant boost to the people who need help but it is also a significant boost to the working class. It can also help the ruling class, since happy citizens are easier to rule.
Michael Walzer
While Marx addressed issues with capitalism, there are others who have made the argument for socialism in some form. One of these individuals is Walzer, who considered the idea that socialism and democracy are very close to one another and are often intertwined, even though those who belong to one party adamantly deny that they are in any way related to those who belong to the other party. Where Walzer is concerned the argument is mostly that a town, country, community, or other group of people only has a ruler if they allow themselves to have a ruler. People who are ruled by others have that ruler because the ruler is acceptable to them (Walzer, n.d.). The ruler, in other words, would be overthrown (or simply not reelected) if he or she was not doing a job that the majority of the people considered to be satisfactory. Of course, there is also an argument that there should not be any ruler (Walzer, n.d.).
If something is affecting everyone (such as a law), then it should be decided by everyone. That can be difficult to do, because allowing the vast majority of people to decide on every little thing would quickly become overly complicated. While some socialist tendencies make sense, it is just not feasible to give everyone a say in laws and regulations that affect them. However, if they have created something on their own and that something is bringing them revenue, they should not be forced to get rid of that thing or give all of the revenue away, either. They should have a say in what happens to what they have created and the financial aspect of their labor. By avoiding the issue and not allowing people that freedom, a ruling class can quickly make enemies of the largest majority of the working class (Walzer, n.d.). As people evolved in European society, they began to make their own choices. They soon discovered that those choices were controlled by the ruling class, and they could not make choices that really benefited the working class.
Those who hold opinions similar to Walzer are not trying to stop the ruling class from doing its job, nor are they attempting to encourage the working class to be something other than what it is. The real issue for Walzer is that many people see everything that is not capitalistic as socialist or communist, but most societies are actually a blend of various styles and types of governance. Those who are ruled over are automatically subservient to those who are ruling over them, and there is no way for them to have equality at that point (Walzer, n.d.). If all decisions are made by those who are the rulers, the society is not completely democratic. However, society is simply too large to allow everyone to take part in the decision that continue to keep that society operating. Because those who are rulers are charged with that duty (and trusted by those who are not rulers), the rulers have to be careful about the choices they make. They can help or hinder society very easily, and it would be best for them to keep that in mind when they are making decisions.
Not all rulers are equal, and some are much better at various aspects of ruling than others. Still, that does not mean that a good ruler can continue to retain his or her position forever. Rulers come and go, and the stronger the laws and the society over which the ruler has control, the better that society will be even if its current ruler is not as good as a ruler of the past. In many societies, the ruler is nearly just a figurehead who is not capable of actually making many changes. When that is the case, the ruler is effectively trapped in his or her position because the changes that are needed are not possible. That is not democracy, nor is it capitalism. It also does not help society move forward and be more successful (Walzer, n.d.). Society has to be based on the quality of its people and the quality of its rulers, working together for the good of all involved.
Marx had many ideas about what made society acceptable and how a proper society should be run. Many of his ideas were strong, and some missed the mark. That is true with most individuals throughout history who have had strong opinions. While Marx wrote a Communist Manifesto, it was really not about communist. It was about capitalism and what it took to really operate a capitalist society properly. In many cases the issue is not that capitalism does not work properly, but that capitalism is not being addressed properly and not being correctly handled by those who are in charge of others. Marx's ideas and information are often misjudged by others, even in the present day. Rather than assume that Marx was advocating communism, one should read the writings of Marx very carefully and truly understand the information he was presenting to the world.
Only by gaining a clear understanding of what Marx meant in his critique of capitalism can a person see the changes that need to be made in society and how those changes can benefit everyone. Marx's goal was to show that those who work hard for financial gain should be allowed to keep what they gained. However, those people should want to share what they were given. It does no good to attempt to take things from other people, because those people will eventually revolt and demand to keep what they have worked for and earned. By allowing people the opportunity to do more without requiring it of them, more people will give freely. Ideally, all of society would give freely and there would be a state of near equality. That is the state to which Marx believed societies should strive, but that is, unfortunately, unrealistic when it comes to what most people want to do with what they have earned. Until there is less materialism, the kind of capitalism to which Marx aspired will not come to pass.
Marx, Karl. (1848). Manifesto of the communist party. Retrieved from http://www.marxists.org/archive/marx/works/1848/communist-manifesto/index.htm
Marx, Karl. (1888). Theses on Feuerbach. Retrieved from http://www.marxists.org/archive/marx/works/1845/theses/theses.htm
Walzer, Michael. (n.d.) Town meetings & worker's control. A story for socialists.[continue]
"Karl Marx And Michael Walzer" (2012, October 29) Retrieved December 8, 2016, from http://www.paperdue.com/essay/karl-marx-and-michael-walzer-76192
"Karl Marx And Michael Walzer" 29 October 2012. Web.8 December. 2016. <http://www.paperdue.com/essay/karl-marx-and-michael-walzer-76192>
"Karl Marx And Michael Walzer", 29 October 2012, Accessed.8 December. 2016, http://www.paperdue.com/essay/karl-marx-and-michael-walzer-76192


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|This is a discussion on making a living within the online poker forums, in the Poker Rooms section; Hi! Just looking for some advice. I am Canadian and I want to start playing poker for a living so I am thinking about moving to
making a living
Just looking for some advice. I am Canadian and I want to start playing poker for a living so I am thinking about moving to Niagara Falls to play poker at the Casino there. I will have about a ten thousand dollar bankroll. My game isn't to bad and I think I have the right personality with a lot of patience and willingness to learn. Would like to start getting things set up over the next 2 or 3 months. There is so much information out there it's hard to know where to start. Anybody have any ideas where to get started like books to read or websites to go to. Not much experience playing poker at a casino and wonder what it would take to make a 100 to 150 dollars a day. Need to learn more about bankroll management which seems to be important from what I can tell to being a player who makes a living playing poker. Ant help would be appreciated.
I think that you need to spend some time in the casinos before you make plans like that. Play a lot of live poker to see if your internet skills translate to a live game. Seek out the grinders and talk to them. Many will be willing to tell you all about the poker lifestyle and the ups and downs of it. I don't know of any books to read on the subject. But you do need to learn BRM before you even think about something like this.
re: Poker & making a living
Honestly, online poker is more profitable than live play IF your bankroll is just around 30K US$ or less. Like rich said, that that 10K could disappear in a heartbeat.
Set you goals (i.e. how much you want to earn within a set timeframe) and incorporate other factors in your plan (such as living expenses)
If you stick to playing online, you see more hands and have more potential to make more as compared to live play. There are also no threats of physical harm (I've been carjacked, kidnapped and shot at, shortly after leaving a casino, by thugs who wanted to rob me - weird enough, it was the day i won more than 17K US$ from a local "high stakes" game. I was even in the news for it.
Live poker does have a lot of good aspects to it. Girls... Socializing, parties, etc. It's quite a lifestyle, just dont drown.
Plan it, double check. Then analyse it all over again before you make a decision.