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September 12, 2011
DANIEL MARCEL; DANIEL MARCEL, AS PARENT AND LEGAL CUSTODIAN OF SHANIYA HEAVEN MARCEL; DANIEL MARCEL, AS PARENT AND LEGAL CUSTODIAN OF DANIEL MARCEL, JR., A/K/A DANIEL MARCEL;DANIEL MARCEL, AS PARENT AND LEGAL CUSTODIAN OF RUTH ONALISHA-RODRIGUEZ MARCEL, A/K/A RUTH MARCEL AND BABY GIRL PULLIN, PLAINTIFFS,v.THE UNITED STATES OF AMERICA;THE STATE OF NEW YORK;ANDREW MARK CUOMO, GOVERNOR OF THE STATE OF NEW YORK, IN HIS PERSONAL AND OFFICIAL CAPACITIES; FAMILY COURT OF THE STATE OF NEW YORK; HON. JUDGE DANIEL TURBOW, IN HIS PERSONAL AND OFFICIAL CAPACITIES; OFFICE OF CHILDREN AND FAMILY SERVICES FOR THE STATE OF NEW YORK; GLADYS CARRION, COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY SERVICES FOR THE STATE OF NEW YORK, IN HER PERSONAL AND OFFICIAL CAPACITIES; CITY OF NEW YORK; MICHAEL BLOOMBERG, MAYOR OF THE CITY OF NEW YORK, IN HIS PERSONAL AND OFFICIAL CAPACITIES; ADMINISTRATION FOR CHILDREN'S SERVICES FOR THE CITY OF NEW YORK; JOHN B. MATTINGLY, COMMISSIONER OF ADMINISTRATION FOR CHILDREN'S SERVICES FOR THE CITY OF NEW YORK, IN HIS PERSONAL AND OFFICIAL CAPACITIES; VANETTA WILLIAMS; ERICA BARBI; JAMIE ALBERT; NEW YORK FOUNDLING HOSPITAL; WILLIAM BACCAGLINI, ALSO KNOWN AS, BILL BACCAGLINI; PATRICIA HARVEY; MARGARET BECKER; LIYAN BAO; JODI KARSCH; ZENOLA POWELL, II; MARANGELY ORIHUELA-JONES; JESSICA ECHEANDIA; SHAKIA BROWN; ERWIN GODETTE, JR.; NYIALAH HIKEEM; SPOHNGELLERT LEINE; CHRIST RECTOR; MADELLE AMARO; MARGARITA ROLDAN; MARY CORYS; JACLYN PIEPRA; CHERYL ASHBY; JEREMIAH JAMES QUINLAN; JARED MARE BERLINER; DELANO CONNOLLY; GILBERT TAYLOR; AND, JOHN AND/OR JANE DOE #1-90., DEFENDANTS.
Plaintiff, appearing pro se, filed the instant complaint pursuant to the Court's federal question jurisdiction raising claims under 2 U.S.C. §§ 1983, 1985, and 1986*fn1 and various state law claims. He files this action against thirty-seven named defendants and ninety John Doe defendants, including the United States, the state, the city, the mayor, the state family court, a state family court judge, state and city children and family agencies, the New York Foundling Hospital, and employees thereof, s court-appointed guardians, social workers, a foster parent and attorneys. He alleges statutory and constitutional claims arising out of a family court action involving neglect and termination proceedings and his children have been placed in foster care. Plaintiff seeks declaratory relief, dismissal of all claims against him and his children in state court, vacatur of state court findings of negligence or permanent neglect against him, damages and release of the children from defendants' custody and returned to his custody.
The Court grants plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and directs plaintiff to submit an amended complaint within thirty (30) days of the date of this order that properly sets forth his claims.
A. Statutory
In order to understand this case, some familiarity with the New York State statutory scheme for temporary and permanent removal of children from their parents or guardians (hereafter "parents") due to neglect or abuse is necessary. See generally Nicholson v. Scoppetta, 344 F.3d 154, 158--61 (2d Cir. 2003) (providing in-depth background on the Family Court Act). New York's Family Court Act ("FCA") grants the State the power to monitor and protect children, and in New York, this task is carried out by the Administration for Children's Services ("ACS"). Id. ACS not only investigates complaints, but can also initiate and prosecute child protective proceedings against parents. Id.
When ACS determines that some protective action is necessary, the N.Y. Fam. Ct. Act ("FCA") provides a spectrum of three procedures for temporary removal, depending on the urgency of the situation: removal without court order under § 1024, pre-petition temporary removal order under § 1022, post-petition temporary removal order under § 1027 without parental appearance at the hearing.
Permanent removal proceedings occur on a less expedited basis, and begin with the filing of a petition of neglect or abuse by ACS against the parent. The next step is a "fact-finding" hearing, which can involve parent, child, caseworker, and expert testimony, inter alia. Nicholson, 344 F.3d at 160--61. If the Family Court finds abuse or neglect by a preponderance of the evidence at the fact-finding hearing, a "dispositional hearing" is then held, at which the court has "wide latitude" to devise various long-term foster-care arrangements or to order a permanent termination of parental rights. Id.
B. Factual
The complaint, although one hundred and three pages long, is lean on facts. The crux of plaintiff's complaint is that he feels disenfranchised by the state court proceedings which have placed his children into foster care and may terminate his parental rights.
Plaintiff alleges that Shante Vanessa Pullin and he are the parents of Shaniya, Daniel Jr. and Ruth Marcel ("the children"). Complaint at ¶ 58. The children are each subject to family court neglect proceedings and were placed in foster care. Plaintiff alleges that this was done without notice to him or his consent, and in contravention of his efforts to regain custody of his children. See, e.g., id. at ¶ 59, 101. The children are also, apparently, the subject of permanent removal proceedings pursuant to Section 384-b of the Social Services Law of the State of New York. Id. at ¶ 104. The status of those proceedings is unclear from the complaint.
Under 28 U.S. C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied that the action is "(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."
To avoid dismissal, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will be considered plausible on its face "when the plaintiff pleads factual content that allows the court to draw reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 55 U.S. 662, 678 (2009).
Moreover, a plaintiff must establish that the court has subject matter jurisdiction over the action. See, e.g., Rene v. Citibank NA, 32 F. Supp. 2d 539, 541-42 (E.D.N.Y. 1999); Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). The subject matter jurisdiction of the federal courts is limited. Federal jurisdiction is available only when a "federal question" is presented, 28 U.S.C. § 1331, or when the plaintiff and defendant are of diverse citizenship and the amount in controversy exceeds $75,000.00, 28 U.S.C. § 1332. If a federal court "determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3); see also Arbaugh, 546 U.S. at 514.
A court must construe a pro se litigant's pleadings liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and a pro se complaint should not be dismissed without granting the plaintiff leave to amend "at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated," Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (internal quotation marks and citations omitted).
A. Claims Brought by Marcel on Behalf of His Minor Children
Marcel is a non-attorney proceeding pro se, purporting to represent his minor children. Although federal law affords parties a statutory right to "plead and conduct their own cases," 28 U.S.C. § 1654, that statute does not permit "unlicensed laymen to represent anyone else other than themselves." Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (citation and internal quotation marks omitted); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)("[B]ecause pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause."); Cheung v. Youth Orchestra Foundation of Buffalo, 906 F.2d 59, 61 (2d Cir. 1990) (a layperson may not represent a minor child). Thus, any claims as to Marcel's children are dismissed without prejudice.
B. Younger Abstention
Plaintiff seeks dismissal of all claims against him and his children in state court, vacatur of state court findings of negligence or permanent neglect against him, release of the children from defendants' custody and returned to his custody, damages and a declaration that the state and federal Adoption and Safe Families Act (ASFA) and the FCA are unconstitutional on their face and as applied. Complaint at ¶ 103. Except as to plaintiff's claim for damages discussed below, plaintiff's claims against the remaining defendants challenging family court proceedings are barred under the Younger abstention doctrine. Under Younger, federal courts cannot intervene in ongoing state court proceedings except in the most extraordinary circumstances and upon a clear showing of both great and immediate harm. Younger v. Harris, 401 U.S. 37 (1971); see Middlesex County Ethics Comm. V. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). In the "interests of comity and federalism," the doctrine requires federal courts to abstain from jurisdiction "whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests." Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 237-38 (1984). Therefore, a federal court should abstain from exercising jurisdiction when:
(1) a state proceeding is pending; (2) an important state interest is implicated; and (3) the state proceeding affords the plaintiff an adequate opportunity for judicial review of his federal, constitutional claims. Gentner v. Shulman, 55 F.3d 87, 88-90 (2d Cir. 1995). Here, each of the three conditions is satisfied. First, plaintiff is challenging the ongoing state proceeding. Second, plaintiff's challenge to the constitutionality of abuse and neglect proceedings implicates important state interests. Third, plaintiff has not alleged that state courts could not afford him the opportunity for judicial review of his constitutional challenges. Furthermore, plaintiff's allegations fail to show either great or immediate harm. Younger, 401 U.S. at 46-47. Accordingly, this court must abstain from adjudicating plaintiff's claims challenging the ongoing state court proceedings.*fn2
C. Federal Rule of Civil Procedure 8
As to plaintiff's 42 U.S.C. § 1983, 1985, and § 1986 claims seeking damages, the Court is unable to fulfill its obligation under 28 U.S.C. § 1915 (e)(2)(B) because the complaint fails to comply with the dictates of Federal Rule of Civil Procedure 8. Plaintiff has employed the "kitchen sink" type of complaint, listing dozens of defendants and myriad claims without connecting the claims to the defendants or connecting facts to his claims.
Pursuant to Rule 8 of the Federal Rules of Civil Procedure, plaintiff must provide a short, plain statement of claim against each defendant named so that they have adequate notice of the claims against them. Ashcroft v. Iqbal, 55 U.S. 662, 678 (2009) (Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). Plaintiff must provide facts sufficient to allow each defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. See Twombly v. Bell, 425 F.3d 99, 106 (2d Cir. 2005) (defining "fair notice" as " 'that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial.' ") (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)); Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). Here, the complaint does not comply with Rule 8. However, plaintiff is afforded thirty days to file an amended complaint in which he complies with Federal Rule of Civil Procedure 8." See Ashcroft v. Iqbal, 55 U.S. at 678 (a claim will be considered plausible on its face "when the plaintiff pleads factual content that allows the court to draw reasonable inference that the defendant is liable for the misconduct alleged").
Accordingly, plaintiff's claims purportedly brought on behalf of his children are dismissed without prejudice. To the extent plaintiff seeks declaratory and injunctive relief, the Court must abstain from adjudicating plaintiff's claims challenging the ongoing state court proceedings. However, to the extent plaintiff seeks to allege a claim under 42 U.S.C. §§ 1983, 1985 and/or 1986 seeking damages, in light of this Court's duty to liberally construe pro se complaints, plaintiff is given 30 days leave to file an amended complaint. Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000). Plaintiff is directed that his amended complaint must comply with Rule 8(a) of the Federal Rules of Civil Procedure. The amended complaint must provide facts giving rise to his federal claims against each defendant he names in the amended complaint.
The amended complaint must be captioned as an "Amended Complaint" and bear the same docket number as this Order. The amended complaint will completely replace the complaint. No summons shall issue at this time and all further proceedings shall be stayed for 30 days. If plaintiff fails to amend his complaint within 30 days as directed by this order, the Court shall dismiss this complaint and judgment will enter. If filed, the amended complaint will be reviewed for compliance with this Order and for sufficiency under 28 U.S.C. § 1915(e)(2)(B).
The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court shall mail a copy of this Memorandum and Order to the plaintiff, and note the mailing on the docket.
ROSLYNN R. MAUSKOPF United States District Judge
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June 13, 1962
COMMONWEALTHv.HAAS, APPELLANT.
Appeal, No. 58, April T., 1962, from judgment of Court of Quarter Sessions of Allegheny County, Feb. T., 1961, No. 141, in case of Commonwealth of Pennsylvania v. Gerard Haas. Judgment affirmed.
Thomas H. Cauley, with him Cauley, Birsic & Clarke, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 229]
Gerard Haas was brought to trial in the Court of Quarter Sessions of Allegheny County on a bill of indictment containing three counts as follows: (1) adultery, (2) adultery and bastardy, and (3) fornication and bastardy. Since the testimony disclosed that Haas was a married man, the trial judge withdrew count three from the jury's consideration. After requesting and receiving additional instructions, the jury returned a verdict of guilty on counts one and two. A motion filed by Haas for a new trial was refused, and sentence was imposed. This appeal followed.
The prosecutrix, a divorced woman thirty-one years of age, testified that appellant posed as a single man; that she and appellant had been sexually intimate on a number of occasions during November and December, 1959, and January, 1960; that she had not had relations with anyone else during this period; that she became award of her pregnancy on or about January 15, 1960, and informed appellant of that fact; that appellant acknowledged that he was the father of the child, and "told me to get rid of it"; and that the child was born on October 4, 1960. Appellant testified that he was a married man; that he had been intimate with the prosecutrix four or five times "maybe six at the very most"; but that such intimacies ceased "around the end of November". However, he later admitted that he had visited the prosecutrix in her home on Christmas Eve.
It is apparent from the foregoing recital that the evidence was amply sufficient to support the jury's verdict. Indeed, appellant raises no question in that regard. His sole contention on this appeal is that certain language used by the trial judge in the additional instructions was erroneous and misleading. It should be here stated by way of explanation that, after the jurors retired, they asked for a transcript of the charge.
[ 198 Pa. Super. Page 230]
Rather than re-read the entire charge, the trial judge summarized its essential features. The language of which appellant complains is as follows: "It is just as simple as that. Is this defendant the father of that child over there, from the evidence presented here, wherein he admits he had sexual relations with her at a time which he could have been the father of the child? That is all the testimony there was. He admits it and she said he did. There is a child. Now, I can read behind your blank gazes that you suspect the possibility of other things. That is not in this case. There is no evidence in the case presented as to that matter whether somebody might have been or not".
The gravamen of appellant's argument is that the jurors were told "not to consider the possibility that one, other than the defendant, might have impregnated her". We are not in accord with this contention. It is well settled that the charge of a trial judge must be considered as a whole: Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468; Commonwealth v. Eberhardt, 164 Pa. Superior Ct. 591, 67 A.2d 613. As we said in Commonwealth v. Walker, 178 Pa. Superior Ct. 522, 116 A.2d 230: "It is our duty to consider the charge as a whole, and excerpts therefrom must be read in relation to their context ... In determining whether a charge contains reversible error, it will be viewed in its entirety ... If the charge as a whole is accurate and fair, objections to isolated excerpts therefrom do not form a proper basis for a reversal ... Nor will a conviction be reversed because of errors in the charge which do not deprive the accused of the fundamentals of a fair trial".
Prior to the language in question the trial judge said: "In substance, the question then before you is this: Is this girl telling the truth or is the other individual telling the truth". Following thereafter, the trial judge said: "In order for the Commonwealth to
[ 198 Pa. Super. Page 231]
prove its case you must believe the Commonwealth's witnesses. If you don't believe the Commonwealth's witnesses, certainly you have a reason to acquit the defendant, because in that case the burden is on them. I can't see what the question is here in view of the fact that he admits that he had sexual relations with the woman, and there is no reason for you to believe, as far as the case is concerned, that this child was not conceived of that relationship, unless you suspect otherwise that there might have been somebody else concerned, and in that case certainly it would go out the window. You wouldn't know whose child it was".
Viewing the additional instructions as a whole, and in the light of the original charge, we find that the issues involved in the instant case were fairly submitted to the jury. The trial judge properly emphasized that the pivotal question was one of credibility. It was a fair comment on the evidence to state that there was no testimony that any other man had relations with the prosecutrix during the period of possible conception. Indeed, it is not error for a trial judge to express his opinion as to the weight and effect of the evidence, or even the guilt or innocence of the defendant, provided this is done fairly and not intemperately, and provided also he does not give a binding direction or interfere with the province of the jury: Commonwealth v. Thompson, 367 Pa. 102, 79 A.2d 401. See also Commonwealth v. Pursel, 110 Pa. Superior Ct. 110, 167 A. 399. We have concluded that the trial judge in the case at bar did not take from the jurors their prerogative of rendering a verdict upon the facts as they found them.
It should be further noted that no exception whatever was taken by appellant's counsel at the time of trial, either to the original charge or to the additional instructions. If the alleged error had been so flagrant as is now asserted, it was the duty of counsel to call the
[ 198 Pa. Super. Page 232]
trial judge's attention to it. We have consistently held that, except for basic or fundamental error, objections to the charge are waived by failure to take exception thereto: Commonwealth v. Parente, 184 Pa. Superior Ct. 125, 133 A.id 561. Counsel may not remain silent and take his chance of a verdict and then, if it is adverse, complain of matters which could have been immediately rectified: Commonwealth v. Napoli, 180 Pa. Superior Ct. 266, 119 A.2d 846. An isolated portion of the charge taken out of context, and to which no objection was made at the trial, and not containing fundamental error, does not form a proper basis for reversal: Commonwealth v. Donough, 377 Pa. 46, 103 A.2d 694.
Judgment affirmed.
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Department of Plant Science
Plant Science News
Student uses technology to study plants on HUB green roof
October 25, 2016
Julianna Razryadov's passion for green roofs has led her around the world and back again. After traveling to Switzerland, New Zealand and Malaysia, Razryadov, who grew up in New York City, returned to the Northeast to study the benefits of using native plants to boost the sustainability and aesthetics of green roofs across the United States.
Students get Beaver Stadium's turfgrass ready for the big game
October 10, 2016
UNIVERSITY PARK, Pa. — When the Nittany Lions take the field for this year's Homecoming game on Oct. 8, Beaver Stadium spectators and television viewers alike will watch the team play on a vibrant, green athletic field, carefully manicured and painted with precision for its game-day glory.
Roth named associate head of Department of Plant Science
October 10, 2016
UNIVERSITY PARK, Pa. — Greg Roth, professor of agronomy in Penn State's College of Agricultural Sciences, will become associate head of the college's Department of Plant Science, effective Oct. 1. In announcing the appointment, Rick Roush, dean of the college, said Roth will work with Department Head Erin Connolly, faculty and staff to keep a large, complex department with multiple educational and research programs functioning smoothly. The department employs more than 100 faculty members and research, extension and support staff.
Penn State research has helped shape apple industry
August 24, 2016
Horticulture professor Rob Crassweller has been helping apple growers boost production for more than 30 years. The University's College of Agricultural Sciences has been conducting research on apple tree rootstock at the Russell E. Larson Agricultural Research Center at Rock Springs since the early 1970s. Here, a group from the Pennsylvania Fruit Grower's Association tours the orchard, led by Horticulture Professor Rob Crassweller (in light-colored hat).


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Taught by an international team of top HRM academics, this CIPD-accredited course teaches you the skills and knowledge to act as a human resource professional, within a global context. The course meets the needs of those wanting a career in HR, as well as busy professionals already working in the field, and is available full time or part time.
You will be introduced to the tools and techniques of human resource management in an international context, and then specialise by choosing options that allow you to explore issues that are either generalisable best practice or are focused on more specific areas of study reflecting the expertise within the department of HRM.
The whole course is accredited to CIPD standards allowing the opportunity to apply for membership upon graduation.
Accredited by the CharteredInstitute of Personnel and Development (CIPD) The Chartered Institute of Personnel and Development (CIPD) is the UK's major professional body within the human resources, industrial relations and organisational development fields. You will be able to join the CIPD as a student member on successful completion of the course (subject to joining fees) with full access to the CIPD website. You will have gained all the knowledge and demonstrated all the skills to enable you to progress into professional membership.
Middlesex University provides one of the best environments in the UK for human resource management education.
Find out more about the Human Resource Management Department at Middlesex.
*British Council 2009
UK/EU and international students are eligible to apply for this course.
If you have relevant qualifications or work experience, academic credit may be awarded towards your Middlesex University programme of study. For further information please visit our Accreditation of Prior Learning page.
We accept the equivalent of the above qualifications from a recognised overseas qualification. To find out more about the qualifications we accept from your country please visit the relevant Support in your country page.
If you are unsure about the suitability of your qualifications or would like help with your application, please contact your nearest Regional office for support.
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If you don't meet our minimum English language requirements, we offer an intensive Pre-sessional English course.
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Our MA Human Resource Management graduates are highly successful in obtaining well-paid employment and many receive several job offers. As a graduate you will have excellent career prospects and the range of potential employers will be vast including within the private, public and not-for-profit sectors.
Middlesex graduates from this group have been successful at gaining employment in the following roles:
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The average full-time salary for graduates in this group was £42,000.
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Panhandle Christian Conference: Welcome
Welcome to the Panhandle Christian Conference Web Site!
The PCC currently consists of 15 Christian Schools from the states of Alabama, Florida, Georgia and Mississippi, and is considered by many, to be one of the best overall Christian School athletic conferences in the country. The Panhandle Christian Conference is dedicated for the purpose of bringing honor and glory to our Lord Jesus Christ through our athletic programs, promoting academic achievement and Godly character.
Tuesday, March 18
2016-2017 Tournament Dates and Hosts
|East Volleyball: Oct. 7-8 @ West Florida Baptist Milton, Fl.
|West Volleyball/Soccer Regional: Oct 7-8 Central Christian School, Roberstdale, Al.
|Volleyball / JV Final /Soccer Finals: Oct 14-15 Bayshore Christian School
|East Basketball Regionals: Feb 3-4 East Hill Christian School Pensacola, Fl
|West Basketball Regionals: Feb 3-4 Central Christian School Robertsdale, Al.
|Basketball Finals / JV Finals: Feb 10-11 Calvary Christian Academy Ft. Walton Beach, Fl.
East Softball/Baseball Regional: April 21-22 Trinitas Christian School Pensacola, Fl
|West Sofball/Baseball Regional: April 21-22 Atmore Christian School
Baseball/Softball Finals: April 28-29 Central Christian School
Annual May Meeting: At Olive Baptist Church, Pensacola, May 5, 2017 beginning at 11:00.
PCC Executive Board
Past Panhandle Christian Conference Champions
Conference Fees and Due Dates
Wilson Award Winners and History
The Wilson Award is awarded each year to the school whose athletic department most exemplifies sportsmanship ...
Thursday, February 6
PCC Athletic Eligibility Standards


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CINCINNATI — The supermarket industry is on the verge of taking its loyalty marketing programs to a higher level, where product offers are better customized to meet the needs of individual shoppers, according to a consulting firm here that recently released an assessment of loyalty programs across a range of industries.
"The grocery loyalty card has reached its limit of effectiveness as a two-tier pricing program, where you get one price on a product if you use the card and another if you don't use the card," said Rick Ferguson, editorial director at Colloquy, the loyalty consulting firm that conducted the study. "While the occasional points program can be found on the grocery shelf, the two-tiered price model has become a virtual must-have for those marketers working beyond the walls of Wal-Mart and Costco. The result of this rampant sameness is that loyalty initiatives in the space have devolved into background noise."
He cited Kroger as an example of a U.S. company, through its partnership with data analysis firm dunnhumby USA, that has taken some steps toward more thorough customer segmentation and used its loyalty card data to tailor offers to specific customer groups. Other regional chains that have done advanced segmentation analysis to create targeted offers include H.E. Butt Grocery Co., San Antonio, and Ukrop's Super Markets, Richmond, Va.
"Kroger, since they brought in an analytical partner, has been diving deep into basket analysis and segmentation, and trying to leverage that data to deliver value relevant to the customer," Ferguson said. "Everybody has got their eye on Kroger, and you will probably see a lot of the other big players rather rapidly starting to do more segmentation.
"The reason Kroger is going down this route is that they've paid pretty close attention to Tesco in the U.K. and how successful they were at doing this same thing. The model is there, and they know that it works."
The Colloquy survey, which focused only on the U.S., found that supermarket chains have the fourth-largest loyalty program membership among the industries studied, with 124.3 million memberships (individual customers can have more than one membership). That total is about half the number of airline loyalty memberships, which is the No. 1 category at 254.4 million memberships. No. 2 is the financial services category, with 238.7 million members, followed by specialty retail with 137.4 million members. Those top four business categories account for 57% of all loyalty program memberships.
Ferguson said consumers — especially those in the more affluent demographic groups — have learned from other industries that they should be getting personalized offers from the loyalty programs to which they belong, and they will come to expect such offers from supermarket companies as well.
"What is typical in the grocery industry is segmentation by lifestyle, so you might see segmentation by customers that are interested in healthy food choice, or customers interested in quick-fix meal solutions, or customers that have new children in the household, or customers that have pets," he said.
"It's not rocket science — you see that someone has a dog because suddenly they have been purchasing dog food, so you send them an offer for dog food. It's a simple concept, but grocers haven't gotten there yet, as a whole. But I think you are going to start to see more grocers go down that path, because it gives more value to the consumer and it deepens the relationship through differentiation.
"If you have a choice of going to the Wal-Mart Supercenter or going to the grocer that is going to have offers that are relevant for you, the idea is that you are going to do business with the store that understands you better."
According to the report, membership levels in supermarket loyalty programs are expected to remain flat, but both customers and retailers will likely derive more perceived benefits from the changes they make in their programs.
One of the basic challenges grocers face in using loyalty cards is that they need to better tie individual transactions to specific customers, he said.
"The problem with the grocery loyalty card model is that it has become pretty hard to connect transactional data to an individual user," Ferguson said. "We've all seen the example where a customer forgets their loyalty card and the cashier has one there and just scans it so they can get their discount. That system is kind of broken. What they need is a system that can tie purchases to an individual customer and start to segment them."
Ferguson suggested that more supermarket companies might evolve their programs to make them more like airline programs, in which customers can earn points based on their purchase volume.
Another option, he said, could be for more supermarkets to create multi-channel partnerships with other businesses, in which customers can earn rewards for purchasing each other's goods and services. Some chains, such as Price Chopper Supermarkets, Schenectady, N.Y., have been coupling their loyalty cards with local fuel centers.
"[Partnering with other businesses] is a real opportunity for grocers, because they are sharing all the operational costs of the program," said Ferguson.
One of the reasons supermarket companies set up their loyalty programs as they did was because it was seen as very cost-effective, he explained. In the future, he said, he expects supermarket companies will look to their vendor partners to help fund their more complex loyalty programs in exchange for access to the data that retailers collect about their customers.
Altogether, U.S. consumers belong to some 1.3 billion loyalty rewards programs — up 35.5% since 2000 — with the average household belonging to a total of 12 different programs. However, the study found that only 39.5% of those memberships, or 4.7 per household, are defined as "active memberships" — those other than one-time users or customers whose memberships have been inactive.
"Fat membership rolls may look good in a press release, but active loyalty program members are the only members who count," said Kelly Hlavinka, senior director, Colloquy, in a prepared statement. "Marketers must adopt highly targeted enrollment strategies and allocate resources where they do the most good. That means enroll the right customers, drive active participation programs, employ reward bonuses selectively and use loyalty data throughout the organization to increase customer insight."
The strong increase in loyalty memberships over the past several years can be attributed to several factors, according to the Colloquy report, including the growth of the Internet and more advanced POS technologies.
|Financial services
|Specialty retail
|Department store
|Source: The 2007 Colloquy Loyalty Census


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Wise Game Booster 1.38.47 + Portable
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Pitcher Set
Art Glass Drinkware(ID: A92015)
Created by David J. Benyosef
These transparent blown glass pieces utilize filigrana cane to create an appealing decorative spiral across its body. Sold in a complete set, as shown. Food safe, hand wash.
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Do grasshoppers chirp in the day or night?
By Esther from Austin, TX
I don't think grasshoppers chirp. Crickets chirp mostly at night, but I've heard them in the daytime, especially on very overcast ("dark") days. The one under my bedroom window seems to chirp whenever the mood strikes him, though I never heard him when it was sunny. Lol. --sarsi
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349 26th Avenue N, Saint Cloud, MN 56303
About the Listing
This is a beautiful, spacious, move-in ready 4 bedroom home with great rental potential. This newer built, bi-level home offers it all. 2 bedrooms and 1 bath on each level. It has a mother-in-law unit on the lower level with kitchen. Great for renting it out to college students. Utility room with washer & dryer. Updated appliances with new carpet and paint throughout the house. Has a deck off the dining room and a great patio space leading to a 2-car garage.
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Property Details for 349 26th Avenue N, Saint Cloud, MN 56303
Bedrooms: 4
Bathrooms: 1 Full | 1 Three-Qtr
Lot Size: 0.12 Acres
Lot Dimensions: 42x125
Year Built: 2002
Garage Dimensions: 2 car
Garage: Detached Garage, Covered, Driveway - Concrete, Garage Door Opener
Style: (SF) Split Entry (Bi-Level)
Water: City Water/Connected
Sewer: City Sewer/Connected
Square Feet: 1824
Above Ground Sq Ft: 912
Below Ground Sq Ft: 912 (approx)
Room Information for 349 26th Avenue N, Saint Cloud, MN 56303
Upper Floor
Living Room: 13x16
Dining Room: 10x10
Kitchen: 10x10
Bedroom 1: 12x12
Bedroom 2: 10x11
Lower Floor
Family Room: 14x22
Bedroom 3: 10x10
Bedroom 4: 10x10
Dining Room Description: Breakfast Area, Kitchen/Dining Room
Family Room Characteristics: Lower Level, Family Room
School Information for 349 26th Avenue N, Saint Cloud, MN 56303
School District: St. Cloud
School District Phone: 320-253-9333
Interior Features for 349 26th Avenue N, Saint Cloud, MN 56303
Appliances: Range, Microwave, Exhaust Fan/Hood, Dishwasher, Refrigerator, Washer, Dryer
Air Cond: Central
Heating: Forced Air
Fireplaces: No
Basement: (912 sq Finished) Full, Finished (Livable), Drain Tiled, Day/Lookout Windows, Egress Windows
Exterior Features for 349 26th Avenue N, Saint Cloud, MN 56303
Lot Dimensions: 42x125
Roof: Asphalt Shingles
Zoning: Residential-Single
Financial Considerations for 349 26th Avenue N, Saint Cloud, MN 56303
Tax Amount: $1,268
Taxes w/Assessments: $1,268
Tax/Property ID: 82454380004
Tax Year: 2016
Monthly Payment = $0
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Similar Listings For Sale
The data relating to real estate for sale on this web site comes in part from the Broker Reciprocity Program of the Regional Multiple Listing Service of Minnesota, Inc. Real estate listings held by brokerage firms other than the owner of this website are marked with the Broker Reciprocity logo or the Broker Reciprocity thumbnail logo and detailed information about them includes the name of the listing brokers.


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Perhaps the most under-rated band in music hit the stage of Glasgow's O2 ABC to perform a stellar show of psych-infused classics and explosive new tracks. Frontman Anton says in regard to their music: "this is not some mamby-pamby-pop-culture-vomit, regurgitating or emulating something else. These are whispers from the underworld and tears of joy from heaven. These are anthems for all time".
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June 19, 1964
WALTER SOWIZRAL, APPELLANT,v.MRS. ADELE M. HUGHES.
Before BIGGS, Chief Judge, and FORMAN and GANEY, Circuit Judges.
FORMAN, Circuit Judge.
Plaintiff Walter Sowizral (hereafter appellant), a citizen of Canada, has appealed the verdict of a jury in his negligence suit that favored defendant Adele M. Hughes (hereafter appellee), a citizen of Pennsylvania*fn1 The essence of his complaint alleged that while sitting in a non-moving automobile, he suffered injuries as a result of being struck by an automobile negligently operated by appellee. She answered denying negligence. At the trial a jury returned a verdict favoring appellee. The United States District Court for the Middle District of Pennsylvania, in an unreported memorandum, refused a motion for new trial.
The gist of appellant's argument here is that the charge of the District Court was fundamentally incorrect. Appellee asserts that not only was the charge correct, but that appellant made no specific objections at the time of trial to the points he now raises.
"The testimony in this case," the District Court stated in its memorandum on the motion for a new trial, "presented a mass of conflict, much more than occurs in the ordinary case." After resolving all reasonable inferences from the evidence most strongly against the appellant, as required at this stage*fn2, the pertinent facts are as follows:
Appellant and his wife had decided to drive in his automobile from their home in Toronto, Canada to Florida for a vacation. They were to be accompanied by their friends, Walter Wells and his wife, also of Toronto. Accordingly, on February 12, 1959, the parties left Toronto in appellant's car driven by him. They proceeded on that day as far as Duncannon, Pennsylvania, where they put up for the night at a motel.
The journey was resumed early the following morning, February 13, 1959. Between 5 and 6 a.m., they were already traveling south on Route 15. Because of the darkness, rain, cold and the fear "that it would start to freeze", appellant drove at about 15 to 20 miles an hour. No ice, according to witnesses for appellant was on the road.
In discussing at that time the existing traveling conditions, those in appellant's automobile expressed the thought that daylight might bring better visibility and weather. Furthermore, appellant testified that he had not felt "like driving in that weather so early in the morning." Appellant turned the car around to face north and parked on the eastern shoulder of the highway, off of the traveled highway. He wanted the members of the group to make up their minds whether to go back to the motel from where they had departed that morning or proceed to Florida.
Meanwhile, at about 4:50 a.m. of the same day, appellee, at her home in Duncannon, received a telephone call from her husband requesting that she pick him up at the railroad station in Harrisburg, Pennsylvania, which was about 15 miles distant. Appellee left soon after the call.
It was damp, cold, and dark, as she left her home. After stepping back and forth on the pavement to ascertain if there were freezing conditions, she decided there were none.
Adjacent to the home of appellee is a hill which presents difficulties for drivers. Thus, appellee testified, because it was cold and raining she applied her brakes while driving her car down the hill to see if there were a sliding condition. According to her testimony, she tested the road surface for ice three more times before the accident without discovering any.
As appellee approached the scene of the accident on Route 15, about six miles from her home, she was traveling 35 miles per hour. There was no one on the roadway, but it was very wet and raining, she stated. In addition, the lights of her car were on as it was still dark at this time in the early morning.
Appellee testified that as she proceeded on Route 15, "I felt a movement in the back of the car." Her first reaction was to decelerate. The car, however, slid toward the west or mountain side of the highway.Yet, the car came out of the skid without hitting the mountain.
Appellee then observed on her side of the road the rear end of a truck "backed into the mountain" with the front over "half of the road." The parked car of the appellant on the other side of the road was also observable.
Her car then immediately went into another skid and crossed over the center line of the highway toward the east or river side. It thereupon entered upon the eastern shoulder and struck appellant's motionless automobile. Appellant testified that his car's motor was running, its headlights were on, and it had been on the shoulder for only two or three minutes prior to the accident.
Before appellee could stop her car, it had gone southwardly on the wrong side of the highway about "12, 15 feet" or "100 to 150 feet" past the car of the appellant, according to different parts of appellee's testimony*fn3 Since appellee was unhurt and on the wrong side of the highway, she drove in low gear over to the west side and parked there.
Appellee testified that after pausing for a minute to compose herself, she saw two men appear - appellant and Mr. Wells. The testimony of Mr. Wells indicated that only he went back to the car of appellee, while the appellant remained seated in his car.
Appellee further testified:
"A. They had walked up the highway. They were very courteous and kind and said - I started to get out of the car; as I opened the door - 'Lady, be careful. This is like a sheet of glass', and as I stepped out they took my hand, and I said 'So right you are.'"
The parties thereafter exchanged identifications and walked to the car of appellant. Appellee then invited both couples to her home, which they accepted. A truck drove slowly by the scene of the accident before the five people left for the home of appellee. Appellee asked the truck driver to "tell the police and the highway to cinder the road."
Appellee led the way in her car and appellant's car followed. She testified that appellant, himself, parked his car in her driveway.
Appellant testified his first recollection after the accident was being in the house. Appellee stated that at her home she was concerned and wanted to see them relaxed. Moreover, according to appellee, appellant and his party assured her that they had no need for a doctor.
The daughter of appellee served as hostess, while appellee notified the police by telephone of the accident, and had them verify that the road had been cindered. Subsequently, appellee drove to the station to pick up her husband. They returned home where they conversed with appellant and his wife, and Mr. and Mrs. Wells.
The husband of appellee stated that the condition of appellant seemed normal. But he told appellant and his wife and Mr. and Mrs. Wells that "in order to protect both parties involved" they should have a doctor examine them.
Appellant and his group then followed appellee to a garage about one mile and a quarter from the house. Appellee testified that "[to] the best of my knowledge Mr. Sowizral got into the car and drove [to the garage]." The garage workers repaired the car that afternoon.
The garageman stated that fresh damage to the car of appellant appeared on the left front and back door. He estimated that it amounted to about $300, and damage of about $120 or $130 to the car of appellee.
Appellee, while the car of appellant was being repaired, took appellant to the office of a Doctor Karlick. It appeared that he permitted appellant and his party to continue driving on to Florida, which they did that same day, February 13, 1959.
The witnesses for appellant stated that being in a state of shock, appellant did no more driving. Appellant testified that during the remainder of the trip, he found eating difficult owing to the trembling of his right hand.
On February 16, 1959, the group arrived in Miami, Florida. There was testimony by witnesses for appellant that on the third day after the accident, he developed acute diarrhea, a slur in his speech, clumsiness in his right arm, and a sense of numbness in his right leg, right side of his tongue, and right side of his face.On the fifth day after the collision, appellant, according to testimony in his behalf, suffered a cerebrovascular accident, commonly known as a stroke. During approximately the next two weeks, he stayed in bed under the care of a physician. After spending sixteen days in Florida, the group returned by car to Toronto.
The doctor testifying for appellant stated that the accident was a causative factor in the stroke. Contrariwise, the doctor testifying for appellee stated that there was no connection between the accident and any injury to appellant.
Appellant contends that the charge*fn4 of the Trial Judge was prejudicial when it placed "upon the plaintiff [appellant] the burden of proving the defendant's [appellee's] negligence by a fair preponderance of the evidence." The District Court, reasons appellant, should have fashioned its charge differently "in light of the presumption of negligence of the defendant [appellee] who had crossed the highway and struck the plaintiff's [appellant's] automobile on the wrong side of the road."
The burden of proof of the defendant's negligence - in the sense of being the burden of persuasion - is everywhere on the plaintiff, since he is asking the court for relief*fn5 The plaintiff must persuade the jury that a preponderance of the evidence is in his favor*fn6
Presumptions are rules of law requiring the assumption of one fact upon proof of another in the absence of satisfactory evidence*fn7 As stated by Prosser:
"They place upon the adverse party the burden of offering further evidence in the sense that a verdict will be directed against him if he does not, but they do not affect the ultimate burden of proof, as to the preponderance of the evidence required."*fn8
In the instant case appellee concedes that her car crossed the wrong side of the highway and struck the car of appellant. Under these facts and circumstances, it is undisputed that the appellant established a presumption of negligence on the part of the appellee*fn9
This presumption, however, did not shift appellant's [plaintiff's] burden of persuading the jury that a preponderance of the evidence was in his favor. Rather, as the Pennsylvania Supreme Court stated in MacDonald, Admrx., Aplnt., v. P.R. Co.*fn10
"This presumption cast upon the defendant, if it wished to forestall a verdict in plaintiffs' favor, the burden of producing evidence to neutralize the inference which the jury in the absence of countervailing evidence would draw legitimately from the evidence produced by the plaintiff."*fn11
Accordingly, the trial judge correctly charged the jury that the plaintiff [appellant] had the burden of proving defendant's [appellee's] negligence by a fair preponderance of the evidence. Appellant's attack thereon, consequently, lacks merit.
Appellant contends that certain portions of the charge created confusion in the minds of the jury whether or not there was a presumption that appellee was negligent.
In the course of his charge, the Trial Judge stated:
"In connection with the discussion of negligence, I caution that the mere happening of an accident does not as a matter of law constitute negligence on the part of anyone. The occurrence of such an accident does not raise the presumption that the defendant was negligent. * * *"
"Under the law applicable in this case, the presence of an automobile on the wrong side of the highway, is prima facie evidence of the driver's negligence. * * *"
"In a case like this, negligence is never presumed from the mere happening of the event. He who alleges it must affirmatively prove it or point to such circumstances as naturally and reasonably lead to the conclusion of carelessness on the part of the accused as the proximate cause of the occurrence which resulted in the injuries complained of. * * *"
It is arguable that the above mentioned language in the charge created the impression that facts and circumstances of the case gave rise to a presumption. For example, the statement "[An] automobile on the wrong side of the highway, is prima facie evidence of the driver's negligence.", could have been so interpreted.
But, it is also arguable that the charge created the impression that the facts and circumstances of the case did not give rise to a presumption of negligence. For example, the statement "In a case like this, negligence is never presumed from the mere happening of the event.", could have been so interpreted.
Examination of the record reveals, however, that the only objection counsel for appellant made to this or any other part of the charge by the Trial Court was at the end of the Judge's consideration of appellant's points for charge. At that time, counsel said: "General exception."
Appellant never made a specific objection. Rule 51 of the Federal Rules of Civil Procedure requires such an objection to be made, if a party wishes to assign as error the giving or failing to give a certain instruction*fn12
Moreover, after completing his charge, the Trial Court approved and read to the jury, with a slight modification, appellant's point number 1 for charge. The Judge stated:
"Since the evidence discloses that the defendant, Adele M. Hughes, was operating her automobile over on the eastern side of the center line of Route 15, or on the wrong side of the road for the direction in which Adele M. Hughes was travelling, insofar as the plaintiff Walter Sowizral was concerned, this would be prima facie evidence of negligence on the part of defendant, Adele Hughes, and if you find that this was the proximate cause of her collision with Walter Sowizral's vehicle, then the defendant Adele Hughes would be liable for the resulting injuries to Walter Sowizral, unless she would 'prove to your satisfaction' that her being on the wrong side of the highway was the result of some act for which she was not legally responsible." (Emphasis added.)
The insertion of the phrase "this would be prima facie evidence of negligence on the part of the defendant Adele Hughes" should have obviated any existing confusion whether or not a presumption of negligence existed. In any event, the charge of the Trial Court on this point did not bring about such a gross miscarriage of justice, for which the appellate court may grant a new trial absent the appellant's failure to make a timely and proper objection*fn13
Appellant contends: "[There] is not one single iota of evidence as to an icy condition on the road which caused her [appellee] to skid." Hence, the Trial Judge erred, he argues, when he charged the jury to consider whether a sudden emergency occurred which might excuse acts of appellee, otherwise constituting negligence*fn14 He concedes that the statement of law thereon by the Trial Judge "is correct."
If a sudden emergency, such as an isolated icy spot*fn15, confronts an individual, he may be unable to reflect carefully on the course of action to be taken. It, consequently, would be unfair to make him adhere to the same standard of conduct as one who had had an opportunity to reflect. As stated by the Supreme Court of Pennsylvania:
"[Negligence] may not be implied because of failure to perform a duty so suddenly and unexpectedly arising that there was no opportunity to apprehend the situation and to act according to the exigency. * * *"*fn16
The appellee testified that when Mr. Wells came to her car after the accident, he said: "Lady, be careful. This is like a sheet of glass." Appellee also testified about her second trip to pick up her husband in Harrisburg in the following manner: "I knew there was ice on the east road, so evidently I went over on the west. I mean, I knew there was ice on the west side of the river road." In addition, other parts of the testimony alluded to the icy condition of the road where the accident occurred.
Even though the witnesses for appellant expressly deny that there was ice on the road, it was within the province of the jury to accept appellee's testimony. It could have reasonably inferred therefrom that an icy condition on the road caused the skid. Accordingly, the reason appellant offers, for concluding that the Trial Judge incorrectly charged the jury on sudden emergency, is baseless.
There does exist, nevertheless, a possible reason for holding that the submission of the sudden emergency issue to the jury was prejudicial error, if an appropriate objection had been made.
An individual must anticipate some emergencies and must be prepared to meet them, when engaging in an activity in which they are likely to arise*fn17 Indeed, the driver on the highway must make some preparation to meet a host of vicissitudes which include many that are not specifically foreseeable*fn18 On the rainy, cold, early morning February day of this accident, such a vicissitude may have been any icy spot on the road. Yet, appellant neither addressed the above argument to the Trial Court, nor any objection against the submission of the sudden emergency issue to the jury. In fact, appellant has failed to advance this argument on appeal.
Rule 51 of the Federal Rules of Civil Procedure*fn19 does not require strict formality in the manner or mode in which the party objects to an alleged error in a charge*fn20 But it does require that the party make his position clear so that he informs the trial judge of possible error*fn21 Only by so doing this does the party afford the court opportunity of correcting any possible error. A general objection, such as is found herein, and where at least part of the charge is correct, is insufficient*fn22
Only in rare instances, wherein a fundamental error in the charge occasions a gross miscarriage of justice, will the appellate court in the utilization of its discretion overlook the absence of an appropriate objection*fn23 One commentator expresses the view:
"If there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings."*fn24
In charging on sudden emergency, the Trial Judge never told the jury, explictly or implicitly, that a sudden emergency existed in the present case. Rather, he charged the jury explicitly that the existence of an emergency was a question for it to decide*fn25
Additionally, the Trial Judge accepted for charge appellant's point No. 3, which undoubtedly aided in making clear that certain emergencies are not sudden and unexpected. It read:
"It is rule that the driver of a vehicle must at all times have her vehicle under control, and having one's car under control means that the operator must take into account the condition of the highway, that is, whether it is dry, wet, slippery, and so be able to control his vehicle as to be able to stop it before doing injury to any person in any situation that may reasonably arise."
Appellant has failed to offer any convincing reason for concluding that the Trial Judge made a mistake in charging the issue of sudden emergency to the jury. He made no objection of any kind at trial to the jury's consideration of this issue. The sudden emergency charge of the Trial Judge instructed the jury to reflect whether it should apply this doctrine of the law. Clearly, the jury had knowledge by way of instruction that certain road emergencies are not sudden but expected. And the Trial Judge approved for charge appellant's request pertaining to the appellee's control of her car and the necessity of her taking into account such conditions as wet and slippery roads.
Under these facts and circumstances, we are unable to rule that submitting the issue of sudden emergency to the jury was a gross miscarriage of justice.
Thus, we conclude that the appellant's attack upon the charge of the District Court must fail. Other contentions raised by the appellant are equally devoid of merit. The judgment of the District Court will be affirmed.
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September 28, 2006
JESUS GOMEZ, INMATE #R08988, PLAINTIFF,v.ROGER WALKER, CHARLES HINSLEY, EUGENE MCADORY,MELODY FORD, PAM GRUBMAN, DEBI MIDDENDORF, CINDY HOBROCK, FAISAL AHMED, DEFENDANTS.
Plaintiff, an inmate in the Hill Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. The case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915(e)(2), which provides:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that --
(A) the allegation of poverty is untrue; or (B) the action or appeal --
(I) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2). An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the complaint and any supporting exhibits, the Court finds that none of the claims in the complaint may be dismissed at this point in the litigation.
Based on the allegations in the complaint, the Court has gleaned the following. Prior to his incarceration in the Illinois Department of Corrections ("IDOC"), Plaintiff was severely injured in a car accident. Plaintiff was in a coma for 30 days following the accident and he suffered many broken bones and severe internal injures that required an ileostomy and a colostomy. At some point after those surgeries, Plaintiff was placed in the Cook County Jail, in Chicago, Illinois. During his time there, Plaintiff was scheduled to receive surgery to reverse the colostomy, but before the surgery was performed, Plaintiff was taken into IDOC custody.
While Plaintiff was housed in the Big Muddy River Correctional Center, he began to experience problems, including nausea, vomiting, and pain, discomfort, inflamation, infection, and discharge at the colostomy site. He saw Doctor Obaisi (not a defendant) on June 21, 2001, and Dr. Korman (not a defendant) on July 24 and 29, 2002. He was promised a referral to a specialist by Dr. Korman, but Dr. Hamby (not a defendant) the new medical director, denied that consultation. Beginning in January 2002, Plaintiff filed grievances seeking treatment for those problems and seeking the colostomy reversal surgery that was scheduled but was never performed. Plaintiff's grievances were not adequately addressed or acted upon.
Plaintiff was later transferred to Menard Correctional Center. On April 25, 2003, Plaintiff saw Dr. Doughty (not a defendant) who took away his wheelchair, despite Plaintiff's complaints of pain and muscle spasm in his lower back, and continued difficulties at the colostomy site. While in the Menard Health Care Unit in September 2003, Defendant Ahmed stated to Plaintiff, "you come into the department with that problem and you are going to haave to live with it while you are here, so you are going to leave with it." Plaintiff claims that Defendant Ahmed falsified Plaintiff's medical records to "downplay the seriousness" of his medical conditions. Plaintiff states that the "medical directors" have denied him adequate treatment for Plaintiff's medical problems, even though they are aware of the swelling, infection, discharge, nausea, and vomiting from which Plaintiff suffers. Plaintiff states that these "medical directors" have acted with "malicious intent" and that their actions constitute deliberate indifference to his medical needs.
The Supreme Court has recognized that "deliberate indifference to serious medical needs of prisoners" may constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S. 825 (1994). This encompasses a broader range of conduct than intentional denial of necessary medical treatment, but it stops short of "negligen[ce] in diagnosing or treating a medical condition." Estelle, 429 U.S. at 106. See also Jones v. Simek, 193 F.3d 485, 489 (7th Cir. 1999); Steele v. Choi, 82 F.3d 175, 178 (7th Cir. 1996), cert. denied, 519 U.S. 897 (1996).
A prisoner raising an Eighth Amendment claim against a prison official therefore must satisfy two requirements. The first one is an objective standard: "[T]he deprivation alleged must be, objectively, 'sufficiently serious.'" Farmer, 511 U.S. at -, 114 S.Ct. at 1977. As the Court explained in Farmer, "a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities." Id. The second requirement is a subjective one: "[A] prison official must have a 'sufficiently culpable state of mind,'" one that the Court has defined as "deliberate indifference." Id; see Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992) ("[T]he appropriate inquiry when an inmate alleges that prison officials failed to attend to serious medical needs is whether the officials exhibited 'deliberate indifference.'"); Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) ("[D]eliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain.'").
Vance v. Peters, 97 F.3d 987, 991-992 (7th Cir. 1996), cert. denied, 520 U.S. 1230 (1997). However, the Supreme Court stressed that this test is not an insurmountable hurdle for inmates raising Eighth Amendment claims:
[A]n Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.... Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, ... and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.
Farmer, 511 U.S. at 842.
The Seventh Circuit's decisions following this standard for deliberate indifference in the denial or delay of medical care require evidence of a defendant's actual knowledge of, or reckless disregard for, a substantial risk of harm. The Circuit also recognizes that a defendant's inadvertent error, negligence or even ordinary malpractice is insufficient to rise to the level of an Eighth Amendment constitutional violation.
Neglect of a prisoner's health becomes a violation of the Eighth Amendment only if the prison official named as defendant is deliberately indifferent to the prisoner's health -- that is, only if he 'knows of and disregards an excessive risk to inmate health or safety.'
Williams v. O'Leary, 55 F.3d 320, 324 (7th Cir.), cert. denied, 516 U.S. 993 (1995); see also Steele, 82 F.3d at 179 (concluding there was insufficient evidence of doctor's knowledge of serious medical risk or of his deliberate indifference to that risk; emphasizing that even malpractice is not enough proof under Farmer); Miller v. Neathery, 52 F.3d 634, 638-39 (7th Cir. 1995) (applying Farmer mandate in jury instruction). However, a plaintiff inmate need not prove that a defendant intended the harm that ultimately transpired or believed the harm would occur. Haley v. Gross, 86 F.3d 630, 641 (7th Cir. 1996). Based on these standards, Plaintiff's claim of deliberate indifference to his serious medical needs cannot be dismissed at this point in the litigation.
A word about defendants is in order, however. Plaintiff lists Roger Walker, Charles Hinsley, Eugene McAdory, Melody Ford, Pam Grubman, Debi Middendorf, and Cindy Hobrock as defendants in the caption of his complaint. However, the statement of claim does not include any allegations against these defendants. The reason that Plaintiffs, even those proceeding pro se, for whom the Court is required to liberally construe their complaints, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), are required to associate specific defendants with specific claims is so these defendants are put on notice of the claims brought against them and so they can properly answer the complaint. See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003) (a "short and plain" statement of the claim suffices under Fed. R. Civ. P. 8 if it notifies the defendant of the principal events upon which the claims are based); Brokaw v. Mercer County, 235 F.3d 1000, 1024 (7th Cir. 2000) ("notice pleading requires the plaintiff to allege just enough to put the defendant on notice of facts providing a right to recovery"). Furthermore, merely invoking the name of a potential defendant is not sufficient to state a claim against that individual. See Collins v. Kibort,143 F.3d 331, 334 (7th Cir. 1998) ("A plaintiff cannot state a claim against a defendant by including the defendant's name in the caption."). Based on these legal standards, Defendants Walker, Hinsley, McAdory, Ford, Grubman, Middendorf, and Hobrock must be dismissed from the action because Plaintiff has made no specific allegations against them. Accordingly, Plaintiff may proceed on his claims against only Defendant Ahmed.
The Court notes that Plaintiff makes allegations against the "medical directors" who he claims were also responsible for violating his constitutional rights, but he does not name these individuals. To the extent that any of the dismissed defendants are these "medical directors" against whom Plaintiff wishes to proceed, Plaintiff must file an amended complaint, in accordance with the Federal Rules of Civil Procedure and the Court's local rules,*fn1 specifying these individuals by name and describing how each of them, individually, violated his constitutional rights.
The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit and Request for Waiver of Service of Summons) and Form 1B (Waiver of Service of Summons) for Defendant Ahmed. The Clerk shall forward those forms, USM-285 forms submitted by Plaintiff, and sufficient copies of the complaint to the United States Marshal for service.
The United States Marshal is DIRECTED, pursuant to Rule 4(c)(2) of the Federal Rules of Civil Procedure, to serve process on Defendant Ahmed in the manner specified by Rule 4(d)(2) of the Federal Rules of Civil Procedure. Process in this case shall consist of the complaint, applicable forms 1A and 1B, and this Memorandum and Order. For purposes of computing the passage of time under Rule 4(d)(2), the Court and all parties will compute time as of the date it is mailed by the Marshal, as noted on the USM-285 form.
With respect to former employees of Illinois Department of Corrections who no longer can be found at the work address provided by Plaintiff, the Department of Corrections shall furnish the Marshal with the Defendant's last-known address upon issuance of a court order which states that the information shall be used only for purposes of effectuating service (or for proof of service, should a dispute arise) and any documentation of the address shall be retained only by the Marshal. Address information obtained from IDOC pursuant to this order shall not be maintained in the court file, nor disclosed by the Marshal.
The United States Marshal shall file returned waivers of service as well as any requests for waivers of service that are returned as undelivered as soon as they are received. If a waiver of service is not returned by a defendant within THIRTY (30) DAYS from the date of mailing the request for waiver, the United States Marshal shall:
! Request that the Clerk prepare a summons for that defendant who has not yet returned a waiver of service; the Clerk shall then prepare such summons as requested.
! Personally serve process and a copy of this Order upon the defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).
! Within ten days after personal service is effected, the United States Marshal shall file the return of service for the defendant, along with evidence of any attempts to secure a waiver of service of process and of the costs subsequently incurred in effecting service on said defendant. Said costs shall be enumerated on the USM-285 form and shall include the costs incurred by the Marshal's office for photocopying additional copies of the summons and complaint and for preparing new USM-285 forms, if required. Costs of service will be taxed against the personally served defendant in accordance with the provisions of Federal Rule of Civil Procedure 4(d)(2) unless the defendant shows good cause for such failure.
Plaintiff is ORDERED to serve upon defendant or, if appearance has been entered by counsel, upon that attorney, a copy of every further pleading or other document submitted for consideration by this Court. He shall include with the original paper to be filed with the Clerk of the Court a certificate stating the date that a true and correct copy of any document was mailed to defendant or his counsel. Any paper received by a district judge or magistrate judge which has not been filed with the Clerk or which fails to include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the complaint, and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this cause is REFERRED to a United States Magistrate Judge for further pre-trial proceedings.
Further, this entire matter is hereby REFERRED to a United States Magistrate Judge for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a referral.
Plaintiff is under a continuing obligation to keep the Clerk and each opposing party informed of any change in his whereabouts. This shall be done in writing and not later than seven (7) days after a transfer or other change in address occurs.
IT IS SO ORDERED. Dated: September 28, 2006
J. Phil Gilbert U. S. District Judge
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