text:
Tragic stories challenge press credibility
There is no absolute guidebook or set of rules for a free press — and the
First Amendment provides that government cannot write one and make it stick.
But nothing prevents journalists from writing their own sets of rules, and
there's more than a little evidence that the public wants just that kind of
responsible, thoughtful response from the nation's news media, particularly when
tragedies occur and the possibility of media frenzy is at its highest.
In the annual State of the First Amendment survey conducted by the First
Amendment Center, support for a free press declines every time there is a
"Monica" overload or a major misstep, as in coverage of the 2000 election.
At the same time, when the news media bring needed information in detail to
Americans — and perhaps also serve as watchdogs on the decisions, efficiency and
performance of public officials — appreciation for a free press rebounds. One
need look no further than the often-expressed praise for local and regional
coverage after Hurricane Katrina.
In short, public trust is the news media's to gain or lose.
The nation's press likely is faced with just such a situation again: three
school shootings in six days, the latest at an Amish school in Pennsylvania, and
the White House conference on school violence scheduled for today.
All the elements for potential media excess are there — multiple and tragic deaths,
with the "added angle" of violence against girls; multiple opportunities for
interviews with survivors, would-be experts and others who may or may not have
something to contribute; small towns rocked by horrible crimes.
There is fodder for sensational reports, in any sense of the phrase, and fuel
for the talking-head machine as it ramps up from regular chatter to full-speed
A few cautionary words as reporters and correspondents fan out to cover both
the breaking news and the necessary follow-up stories; anchors prepare for
talk-fests on the crimes; and the Bush administration holds its conference —
all based on the Freedom Forum project eight years ago in the wake of a school
shooting in Jonesboro, Ark.
In that report, to which I was a contributor, recommendations were made on
the basis of what went right as well as wrong, in news reports that ranged from
hometown stories to international coverage. Three of the top recommendations for
the press:
- Be wary of unsubstantiated information. As we learned all too well
from incidents at the time, and relearned as recently as the rise-and-fall
coverage of the man who claimed to have killed JonBenet Ramsey, even an
"eyewitness" or self-proclaimed defendant may be mistaken or have unknown
motives. The public we interviewed in Jonesboro, and those that weigh in each
year in the State of the First Amendment survey, expect journalists to show some
restraint, or at least identify as such any rumors or "news" that isn't backed
up by substantial evidence. In the Jonesboro report, that expectation held true
for news stories and commentator discussions.
- Avoid demonizing or glorifying victims or suspects. A particularly
difficult suggestion given the horror the latter may create and the innocence of
the victims. Another guideline not in the publication but that came out of
interviews with friends and family members in Jonesboro: Report on those who
died as "real people." As one relative told me of her child, "I don't want her
to be remembered just as a victim."
- Correct errors promptly and in full detail. One of the surprises for
my colleagues and me in dozens of interviews in Jonesboro was the appreciation
the public had when the news media made a good-faith effort to report breaking
news … and the absolute abhorrence of errors and unprofessional conduct. Much
was made then, and has been made since, about the decline in public trust and
credibility of the news media. Major stories that touch hearts and minds also
heighten public scrutiny and affect judgment long after the story itself has
Since Jonesboro, from Columbine through the Amish schoolroom in Pennsylvania,
more senseless killings of schoolchildren and educators have occurred. But
lessons learned in Jonesboro still have value — and may help print and broadcast
journalists approach these stories in the days ahead.
Other First Amendment Center news of note includes two awards:
Americana" Award, presented by the Americana Music Association and the First
Amendment Center.
Daniels was honored for his lifelong – and sometimes controversial —
commitment to free speech, in music and in venues ranging from the Internet to
TV programs to live performances, as well as his involvement in efforts to
combat bullying in schools and to provide used musical instruments to U.S.
forces overseas.
Past award recipients are Johnny Cash, Kris Kristofferson, Steve Earle and
Judy Collins. Daniels received the award as part of the Americana Awards program
at the historic Ryman Auditorium in Nashville. The award recognizes artists who
have used their careers to speak out on matters of importance to the nation and
their fellow citizens, often at the risk of their commercial success.
Peter Cooper of The Tennesseean reported Daniels said he was honored
"to be recognized for freedom of speech," adding: I exercise mine every day.
Patriotism is not blind allegiance to any ideology or political party. Nobody is
right all the time. Reasonable people will sit down and work together."
received the Edith Wortman First Amendment Matrix Foundation Award from the
Association of Women in Communication. He is the first male to receive the
award, which honored him for his work in defense of First Amendment freedoms.
Mary Kay Switzer, an associate professor of communication at California State
Polytechnic University Pomona, Calif., presented the award, named for her
mother, in recognition of what she called Seigenthaler's lifelong "dedication
and his outstanding support for First Amendment rights for both men and
Tags: crime coverage, media criticism, Pennsylvania, Seigenthaler


text:
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April 5, 2010
JAMES THOMAS TOMALA, PLAINTIFF,v.TROY DAVIS, ET AL., DEFENDANTS.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND FOR FAILURE TO STATE ANY FEDERAL CLAIMS (Doc. 1) RESPONSE DUE WITHIN 30 DAYS
I. Screening Requirement
Plaintiff James Thomas Tomala ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint that initiated this action on September 2, 2009, in the Sacramento Division of the Eastern District of California. The case was transferred to the Fresno Division on September 10, 2009.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "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... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.
II. Summary of Complaint
Plaintiff is currently incarcerated at the Sierra Conservation Center ("SCC") in Jamestown, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: correctional lieutenant Troy Davis, appeals coordinator W. Semsen, secretary of CDCR Mathew Cate, warden Ivan D. Clay, and chief of inmate appeals N. Grannis. Plaintiff alleges the following.
Plaintiff received a CDC-128B Informational Chrono dated October 20, 2008, written by Defendant Davis. Defendant Davis wrote that Plaintiff was involved in a homosexual relationship with his cellmate, and recommending separation of the two inmates to prevent further occurrences of the behavior. Plaintiff however was not at the SCC, but was rather in the administrative segregation unit for an unrelated matter. Defendant Davis then re-wrote the chrono. Plaintiff filed a grievance against Defendant Davis. (Pl.'s Compl. 3-5.)
Plaintiff contends a violation of Plaintiff's First Amendment right to petition the government for redress of grievances, due process, defamation of character, respondeat superior liability, and intentional infliction of emotional distress. Plaintiff seeks monetary damages.
III. Analysis
A. Redress Of Grievances/Access To The Courts
Plaintiff contends that Defendant Semsen returned Plaintiff's grievance against Davis. Defendant Semsen allegedly refused to process the complaint as misconduct against a peace officer. Plaintiff contends that he appealed this decision, and Defendant Clay through his agent Chief Deputy Warden F. X. Chavez denied treating the complaint as a staff complaint. Plaintiff appealed this decision to the Director Matthew Cate. Defendant Grannis on behalf of the Director refused to process the complaint as a staff complaint. (Pl.'s Compl. 5-6.)
Inmates have a fundamental right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). The right is limited to direct criminal appeals, habeas petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may arise from the frustration or hindrance of "a litigating opportunity yet to be gained" (forward-looking access claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). For backward-looking claims such as that at issue here, plaintiff must show: 1) the loss of a 'non-frivolous' or 'arguable' underlying claim; 2) the official acts frustrating the litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit. Id. at 413-14.
The first element requires that plaintiff show he suffered an "actual injury" by being shut out of court. Harbury, 536 U.S. at 415; Lewis, 518 U.S. at 351. The second element requires that plaintiff show defendant proximately caused the alleged violation of plaintiff's rights, the touchstone of which is foreseeability. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)); see Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764, 784-85 (9th Cir. 2000). Finally, the third element requires that plaintiff show he has no other remedy than the relief available via this suit for denial of access to the courts. Harbury, 536 U.S. at 415.
Plaintiff's allegations fail to state a cognizable access to the courts claim. Plaintiff's citation to Bradley v. Hall, 64 F.3d 1276 (9th Cir. 1995), is unavailing here. Prison officials are not to penalize a prisoner's access to the courts. Id. at 1279. However, Plaintiff fails to allege any facts indicating that he was penalized as a result of his filing of prison grievances. Plaintiff also fails to allege the loss of any meritorious suit or action, thus failing to satisfy the actual injury requirement of an access to the courts claim. Defendants' alleged failure to categorize Plaintiff's complaint as a staff complaint is not sufficient to state a cognizable access to the courts claim. Plaintiff thus fails to state a cognizable claim against Defendants Semsen, Clay, Cate, and Grannis.
Additionally, a prison grievance is a procedural right only and does not confer any constitutional rights under the Due Process Clause. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to specific grievance procedure); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). Defendants' failure to process Plaintiff's inmate appeal as a staff complaint is not sufficient to invoke the protections of the Due Process Clause.
B. Due Process
Plaintiff contends that Defendant Davis's action in releasing a chrono that categorized Plaintiff as a homosexual violated his due process rights. The Court analyzes Plaintiff's claim under both the procedural and substantive components of the Due Process Clause.
The Due Process Clause protects prisoners from being deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Plaintiff has not alleged any facts that would support a claim that he was deprived of a protected interest without procedural due process by Defendant Davis.
"To establish a violation of substantive due process..., a plaintiff is ordinarily required to prove that a challenged government action was clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing a plaintiff's claims." Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996) (citations, internal quotations, and brackets omitted), cert. denied, 117 S.Ct. 1845 (1997); see County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998). Plaintiff has not alleged any facts that would support a claim that his rights under the Fourteenth Amendment were infringed.
C. Supervisory Liability
Under § 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (emphasis added). The Supreme Court recently emphasized that the term "supervisory liability," loosely and commonly used by both courts and litigants alike, is a misnomer. Iqbal, 129 S. Ct at 1949. "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Id. at 1948. Rather, each government official, regardless of his or her title, is only liable for his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant, through his or her own individual actions, violated Plaintiff's constitutional rights. Id. at 1948-49.
Plaintiff fails to allege any facts that support a claim that Defendants Clay and Cate violated Plaintiff's constitutional rights. Plaintiff alleges that Defendants should have known of the violations occurring, and that their behavior was reckless deliberately indifferent. (Pl's Compl. 9-10.) However, their role as Warden and Director, respectively, is not sufficient by itself to state a cognizable § 1983 claim. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to state a claim in federal court. Iqbal, 129 S.Ct. at 1949. Accordingly, Plaintiff fails to state a cognizable claim against Defendants Clay and Cate under a supervisory liability theory.
D. State Law Claims
Plaintiff alleges defamation by Defendant Davis and infliction of emotional distress by Defendants Davis, Semsen, Clay, and Cate. First, in order to state a cognizable state law claim against state actors, plaintiffs must plead compliance with California's Torts Claims Act. California v. Super. Ct. (Bodde), 32 Cal.4th 1234, 245 (2004); Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988). Second, pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original jurisdiction, the district court "shall have supplemental jurisdiction over all other claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III," except as provided in subsections (b) and (c). "[O]nce judicial power exists under § 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is discretionary." Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). "The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if... the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). The Supreme Court has cautioned that "if the federal claims are dismissed before trial,... the state claims should be dismissed as well." United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). Because Plaintiff fails to state a cognizable § 1983 claim, the Court will not exercise supplemental jurisdiction over his state law claims.
IV. Conclusion and Order
Plaintiff's complaint fails to state any claims against any defendants under § 1983. The Court will provide Plaintiff with an opportunity to file a first amended complaint curing the deficiencies identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).
Plaintiff's amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
Finally, Plaintiff is advised that an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading," L. R. 220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth, 114 F.3d at 1474.
Accordingly, based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's complaint is dismissed, with leave to amend, for failure to state any claims under§ 1983;
2. The Clerk's Office shall send Plaintiff a complaint form;
3. Within thirty (30) days from the date of service of this order, Plaintiff shall file a first amended complaint curing the deficiencies identified herein; and
4. If Plaintiff fails to respond within thirty (30) days, the Court will dismiss this action for failure to obey a court order and failure to state a claim.
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Very good performance. Supports 6Gbps SATA III.
Expensive. Larger-capacity version of drive is faster overall.
The 120GB OCZ Vertex 3 solid-state drive offers a lot of speed, but its 240GB bigger brother is still the superior performer.
When it comes to solid-state drives (SSDs), all capacities are not created equal. The 240GB version of the OCZ Vertex 3 earned our Editors' Choice award for being the fastest consumer-level SSD we've tested, but ringing in at around $500 it's beyond the reach of all but the most affluent and enthusiastic enthusiasts. Something like the Vertex 3's 120GB variation, which lists for about $210 but can be found at some online retailers for less, may seem like an attractive substitute. Just know that by saving money you'll be giving up some stellar performance along with 120GB of storage. It's not enough to keep this from being an upper-tier SSD, but it's sufficient to prevent us from giving it the same wholehearted recommendation the 240GB model so richly deserves.
The reason for this is fairly simple: Because the 120GB drive uses half the number of 25nm NAND devices of the 240GB version, it's able to write less in parallel, with diminished performance the result. (Using the same number of devices, but of smaller capacity, would make the 120GB model as fast as the 240GB one, but that's not the route OCZ took here.) You also get the expected drop in usable space, at the same rate (down from about 224GB to about 112GB), with dedicated necessary processing functionality such as data protection and wear leveling consuming the remainder. But in most other respects, such as the presence of the newer SandForce SF-2281 controller and the support for the 6Gbps SATA III interface, the two drives are identical, and thus both largely excellent.
Still, the write decreases are unavoidable. We noticed significant drops in almost every test in which we compared the two Vertex 3 drives. In the AS SSD Benchmark 16MB write test, for example, the 240GB model's 291.79MBps result dropped to 157.17MBps for the 120GB; and on the 64-thread 4KB write test the drop was from 232.25MBps to 150.39MBps. Likewise, in CrystalDiskMark's sequential write test, the 120GB drive managed only 165.9MBps to the 240GB drive's 303.6; with accordant drops evident in the other three write tests as well. The pattern carried across to the SiSoftware Sandra tests as well, with the reduction from 288.83MBps to 156.69MBps between the two drives in the Random Write test particularly precipitous.
Measuring raw input/output operations (IOPS) also showed some obvious stumbles for the 120GB drive, particularly in heavy-use scenarios like the AS SSD Benchmark's 64-thread 4KB tests (47,836 versus 29,228 for reads; 59,455 versus 38,501 for writes). But the positive news is that in everyday usage tests, like those we measure with Futuremark PCMark 7's computation trials, we saw little difference between the drives. And though the 240GB Vertex 3 was routinely faster at reads, in most cases the distinction was not an earth-shaking one (509.03MBps versus 501.19MBps in the AS SSD 16MB read test, for example, or 488.2MBps versus 463.1MBps in the CrystalDiskMark sequential read test).
This means that, even factoring in its slowdowns, the 120GB OCZ Vertex 3 is impressively fast. Even compared with something like the 128GB Plextor PX-128M2S there's no contest; OCZ has engineered a tight and scorching drive deserving of serious consideration for any (relatively) budget-minded setup. But we're currently in the process of testing similarly outfitted SSDs to see if there's a smaller drive out there that can compete with our larger champ. So we're not yet ready to name this Vertex 3 an Editors' Choice as well—it's undoubtedly good, but we're not yet convinced that a drive can't pull back on capacity without experiencing performance drawbacks in exchange.
More Storage Reviews: SanDisk iXpand Memory Case Lexar MicroSD Reader VisionTek USB Pocket SSD (512GB) Fantom Drives DataShield Portable SSD DSS1000 (1TB) Synology DiskStation DS1515+ more
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Matthew Murray got his humble start leading a technology-sensitive life in elementary school, where he struggled to satisfy his ravenous hunger for computers, computer games, and writing book reports in Integer BASIC. He earned his B.A. in Dramatic Writing at Western Washington University, where he also minored in Web design and German. He has been building computers for himself and others for more than 20 years, and he spent several years working in IT and helpdesk capacities before escaping into the far more exciting world...
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July 3, 1969
MARCIA MCGOWAN, APPELLANT,v.MARY A. BELLANGER ET AL., RESPONDENTS
Appeal from an order of the Supreme Court at Special Term (Sydney F. Foster, J.), entered February 28, 1967 in Albany County, which denied a motion for a default judgment.
Herlihy, J. Gibson, P. J., Reynolds, Staley, Jr., and Greenblott, JJ., concur.
The plaintiff, Marcia McGowan, appeals from an order which denied her motion for a default judgment against the defendant Mary Ann Bellanger.
Upon the present record it appears that the appellant's process server did not personally serve the defendant Mary Ann Bellanger (hereinafter referred to as defendant). Generally, a court acquires jurisdiction of a defendant by the personal service of a summons. Special Term upon ascertaining that the process server had left the summons and complaint with the defendant's husband, also a named defendant, refused to permit the appellant to prove what had been done with the summons by the husband. (See Marcy v. Woodin, 18 A.D.2d 944, 945; cf. McDonald v. Ames Supply Co., 22 N.Y.2d 111, 115.) There was proof that the husband undertook to effect service upon the defendant and under such circumstances the court should have permitted inquiry as to whether or not service was in fact effectuated. The court notes that no affidavit was submitted by Louis J. Bellanger, against whom the action was discontinued, as to his participation in the various stages of the litigation, including the service of process.
Upon the present record, however, it is not necessary to have further hearings on the matter since it appears that a personal and unlimited appearance was made in the proceeding by the defendant. Although no answer or notice of appearance was interposed by the defendant following the delivery of the summons and complaint to her husband on November 8, 1962 the appellant and the defendant, Mary McGowan, served notices of examination before trial on the defendant's attorneys and the notices referred to defendant as "adverse parties"; "as a defendant", and "defendant". The defendant's admitted attorneys served a notice for the examination before trial of plaintiff, William McGowan, and subscribed the notice with their firm name "attorneys for defts. Bellanger". The plaintiff Marcia McGowan was examined at the offices of defendant's attorneys on July 24, 1963 and the record of that examination shows that the defendant's attorneys appeared by Paul F. Donohue, Esq., as "Attorneys for Defendants Bellanger." The defendant was produced pursuant to the notices describing her as a defendant for examination before trial on December 23, 1963. The examination before trial of defendant was not filed on this appeal. However, portions of it are printed in the record and it appears that when the defendant testified that on the day in question she was the owner and operator of the vehicle which struck plaintiff Marcia McGowan's vehicle, the following stipulation was made:
"It is hereby stipulated and agreed that we will, between counsel and their attorneys and all parties, discontinue the action against Louis J. Bellanger a named defendant depending on the further stipulation that the pleadings be considered to be amended accordingly, and to allege that the defendant, Mary Ann Bellanger, was the owner of the vehicle in question on April 15, 1961."
This stipulation alone seems conclusive on the issue of Mary Ann Bellanger's appearance in the action for the stipulation removed Louis J. Bellanger from the action; and if Mary Ann Bellanger was not, and never had been in the action, then the effect of removing Louis J. Bellanger therefrom would have been to terminate the action as to both Bellangers and there would have been no occasion for further stipulating that the pleadings should be amended to allege Mary Ann's ownership of the vehicle involved.
Thereafter, and on August 20, 1964, the defendant's attorneys moved to strike a note of issue filed by the plaintiff and their notice of motion stated their capacity as "Attorneys for Defendants -- Bellanger". In their affidavit of reasons for striking the note of issue, they described themselves as "said firm has been retained as attorneys for the defendants, Mary Ann Bellanger * * * in the action", and in other portions refer to Mary Ann Bellanger as a defendant. This motion was without doubt made on behalf of Mary Ann Bellanger as a defendant. It was conceded in the record and in the brief on behalf of Mary Ann Bellanger on this appeal that the law firm filing that motion and conducting the defense on behalf of her husband did in fact represent her as to all matters concerning the litigation.
Upon the record as a whole, the contentions of the counsel for Mary Ann Bellanger that they never made an appearance on her behalf except by inadvertence are without merit. Mary Ann Bellanger has voluntarily in person and by her attorneys participated in this action in pretrial matters. While it may be that she was not personally served in accordance with the statutory requirements, it nevertheless appears that she and her attorneys did receive the summons and complaint and have accepted the same as properly personally served for purposes of the lawsuit. (CPLR 320, subd. [b].) The examination before trial of Marcia McGowan was the first such appearance by the defendant and the appearance of defendant herself in December of 1963 was indisputably a voluntary general appearance. (See Hayuk v. Hallock, 11 Misc. 2d 1086, 1093, 1094; Perez v. Lorenzo, 38 Misc. 2d 441, 442.) A reading of the opposing affidavits of attorneys Donohue and Komar and the testimony before Special Term on October 14, 1966 demonstrates the equivocal position taken by Mary Ann Bellanger's attorneys, particularly when considered with the statement "We do represent Mary Ann Bellanger but we do not appear for her in this action." This kind of "tightrope walking", when considered with the facts previously mentioned and the general appearance of the defendant with her attorneys at the time of her examination before trial, at which time the stipulation above mentioned was entered into, is conclusive that the said attorneys did appear and did represent Mary Ann Bellanger in the present action.
The time to answer has long since passed, but it would appear that the defendant should be permitted to open her default. The nature of the opposition of defendants to the application of plaintiff for severance and judgment did not permit a cross motion for permission to serve an answer.
The order appealed from should be reversed, on the law and the facts, with costs to the appellant, and the motion granted unless the defendant Mary Ann Bellanger shall serve an answer within 10 days after the entry of the order of this court, in which event the motion of the plaintiff-appellant is denied.
Order reversed, on the law and the facts, with costs to appellant, and motion granted unless defendant Mary Ann Bellanger shall serve an answer within 10 days after the entry of the order of this court, in which event the motion of the plaintiff-appellant is denied.
Order reversed, on the law and the facts, with costs to appellant, and motion granted unless defendant Mary Ann Bellanger shall serve an answer within 10 days after the entry of the order of this court, in which event the motion of the plaintiff-appellant is denied.
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• Recovery time is generally quickly. The downtime required after having this type of treatment is typically much less than exactly what is needed for other types of cosmetic procedures, consisting of abdominoplasty, breast reduction, and more. Individuals who have had the procedure can frequently return to work far more quickly than they prepared for and can get back to living a healthy, active lifestyle.
• Weight reduction can be permanent. With the ideal upkeep strategies, the fat that was gotten rid of throughout the liposuction treatment will not return.
• Complete control over your body. With liposuction, an individual can have complete control over how they wish to look, beyond what conventional diet and workout can provide. Offering people this power over their bodies enhances self-confidence and assistance individuals feel their very best.
While there are numerous advantages to liposuction, there are of course a couple of caveats that should be considered prior to making the decision to move on with the treatment.
Cons of Liposuction
Before having actually liposuction done, it is very important to examine the prospective downsides of the procedure and figure out if the benefits outweigh the threats in your particular case. Your cosmetic surgeon can assist you learn more about the threats related to the procedure and can help you choose if moving on is the ideal thing for you.
• Problems with basic anesthesia. Due to the fact that liposuction is performed under basic anesthesia, the procedure brings the very same threats as any other type of surgical treatment where basic anesthesia is used. Hidden medical conditions may increase these risks.
• Adverse responses. Bruising, bleeding, and pain are all to be expected, however, in uncommon cases can trigger more considerable issues.
• The prospective to gain the weight back. After having liposuction done, it is critical to preserve a healthy diet and workout effectively as recommended by your doctor. Failure to do so could lead to acquiring back the weight that was lost or potentially even more.
There are threats associated with liposuction, for lots of individuals, the advantages far surpass them. Educate yourself about the procedure by having extensive conversations with your cosmetic surgeon and consider how liposuction has the prospective to affect you as an unique person. Only you and your specialist can determine if liposuction will provide you with the outcomes you are trying to find within your expectations.
Laser Liposuction procedure is a new non invasive procedure to loose unwanted bodyfat in Bowen IL
Laser liposuction is a newer, minimally invasive treatment that includes heating the fat cells to melting point and eliminating the melted fat through a small cannula. The procedure is generally done right in your physician's office and is an excellent alternative for people who have less than 500 ml of fat to eliminate from any one area. Laser liposuction can be a safe, complementary procedure to weight loss in order to sculpt the body you have actually always wanted.
Contact a Specialist in your Bowen IL today.
If you're thinking about liposuction as a weight-loss option, it is very important that you discuss your desires with a qualified plastic surgeon in your location. Your specialist will perform a complete test and health history questionnaire to identify if liposuction can benefit you and assist you reach your physical and psychological objectives. Call today for a consultation and learn more about how liposuction can help you achieve the body of your dreams.


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Annandale news, covering redevelopment, schools, transportation, businesses, restaurants, crime, parks, local government, shopping, entertainment, and neighborhoods in Annandale and Mason District in Fairfax County.
Sunday, August 21, 2011
Scene around A-Town: All ducked-out
The people who live at this house on Bradley Circle in Annandale seem to have a thing for ducks. Do you know of any other houses around here with an equally unusual decorating scheme?
Posted by Ellie Ashford at 3:49 PM
Labels: animals, street scenes
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text: I'm looking for a theme.. No idea what I want. I'm wanting to take some suggestions on what you guys think. Here's a picture of my first page of apps. Please Register or Log in to view imagesI'm not looking for anything that will clutter my entire screen with nonsense. I just want something simple - Yet stylish. (Yes, I have winterboard.) Any suggestions are MUCH appreciated! Thank you all Please Register or Log in to view images ~I know there's a section to look through themes, etc, but I want to know some of your opinions.~


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By Wayne St. Amand
The release of the highly controversial computer game sparked over 1.8 million tweets (1,899,885 between 17th September – 24th September) Crimson Hexagon's ForSight platform found the following results:
87% of Twitter conversation about GTA V is positive:
11% of social media users discussing the game talk of intent to purchase
15% of social media users mention they wish they had bought GTA V
17% of users discussing GTA V jokingly comment on not having a life after GTA V
17% of posts comment on the addictive quality of the game
21% express praise for the game and enjoyment whilst playing it
6% of posts refer to sales of GTA sales
13% of Twitter posts about GTA V are negative:
11% of Twitter users discussing the computer game express criticisms over the game and how dissatisfied they are with it
2% of users complain of installation or memory issues
About the author
Wayne St. Amand is a veteran marketing leader with a track record of significantly accelerating the growth trajectory and valuation of technology businesses. At Crimson Hexagon, St. Amand is responsible for driving business expansion through the company's global corporate and product marketing efforts.
About the company
Crimson Hexagon, founded in 2007, is the leading provider of analysis software that delivers business intelligence from social media data for global corporations. Fast Company named Crimson Hexagon one of the Top 10 Most Innovative Companies on the Web. Powered by patented technology developed at Harvard University's Institute for Quantitative Social Science, the Crimson Hexagon ForSight platform delivers the industry's most comprehensive big data analysis capabilities for a variety of large-scale data sources. Clients include Microsoft, Paramount Pictures, Starbucks, Simon & Schuster, Twitter, and many more. For more information go to: http://www.crimsonhexagon.com or read the Crimson Hexagon Social Media Monitoring and Analysis blog: http://www.crimsonhexagon.com/blog/


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RUSSIA: X5 Retail Group appoints CEO, sees FY sales rise
The board of Russia's X5 Retail Group has nominated interim CEO Stephan DuCharme to take the post permanently, as new figures show that store openings lifted the firm's sales in 2012.
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Discussion in 'Multimedia' at netrider.net.au started by gofish, Aug 16, 2011.
Hope this is not a repost. Stunter "wanna-be" made to look like a dick.
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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from Research Paper:
Protecting Personal Information
When considering the ever-changing and highly competitive global landscape of business today, large firms must be able to effectively globalize their operations in order to reach a greater potential client base, stay at the cutting edge of their respective fields and sustain profitability in the long-term. With the current exponential growth of technology and computerization of business and learning, consumers have become much more connected to the businesses they patronize (Kurzweil, 2001). Accordingly, companies are faced with the continuous task of finding new ways to understand and subsequently accommodate the needs of those customers, while simultaneously securing lucrative business models and job environments. In accomplishing the aforementioned objectives, firms must also be able to supply a secure environment in which clients can feel safe in accessing the products and services of the business. Knowing that many organizations are utilizing the highly effective means of online systems construction as a way to access the global market, security issues have become increasingly important considerations. And noting the vast necessity for the involvement of personal information in computerized commerce, the scope of such information and its industrial effects are massive. Therefore, data protection mechanisms must be effectively instilled in order to secure the safety of all global citizens. In fact, the United Kingdom recently passed "The Data Protection Act " in 1998 in order to legally protect and control the processing of personal data . Though while many consider "personal information" to be strictly financial in nature, recent leakages have also included health records and even government documents. Thus even with legislation in place to protect personal privacy, its effectiveness could be called into question as a result of insecure government internet systems .
Even though crimes like identity theft are relatively archaic (beginning even before the advent of credit cards, with the robbery of passports and social security numbers), the ease with which one can now obtain such vital, and potentially very profitable, information is astonishing . Lax security standards on behalf of any business attempting to engage in online commerce can quickly result in informative breaches and subsequent losses. Also, considering the increasing proclivity of social media networks in the business world, many firms have chosen to utilize such sites as advertising and sales devices. This has been shown to present a very attractive environment for fraudulent activity. By simply posing as an employee in the social media platform, a dishonorable individual can easily discredit, damage and potentially destroy a company's reputation . As a result of this reality, companies must diligently monitor the activities and member lists of their social media operations . Firms should also only place limited amounts of information on such sites, as these arenas are available for public viewing. Moreover, with the increased publicity of identity theft and online security, many companies have allocated massive amounts of capital for security systems and the prevention of external invasions. Though most firms fail to consider the threat of insider identity theft . This can often be an even greater source of potential destruction because insiders possess large amounts of privileged corporate information . To protect themselves from this type of attack, firms should implement at least one of the many types of employee-monitoring software. Such tools can control and limit access to sensitive company information .
From the perspective of the customer, identity protection requires a great deal of individual initiation. The ease with which one can live vicariously through the internet is certainly convenient, though it also presents a slew of potential threats. For instance, when a thief acquires an individual's social security number and/or credit card information, he or she is free to utilize this information to make costly purchases and diminish credit lines, both of which are extremely difficult for the average citizen to bounce back from financially . This is because corrective action after the fact is often very costly and victims usually find themselves in dire financial straits almost immediately . Knowing that online commerce is an ever-growing industry, many online retail agencies allow for the customer to save his or her credit card information as a means of assuring future purchasing expediency . Membership to this kind of system forces the consumer to commit the horrific blunder of permanently storing credit card information via the internet. By saving one's vital credit card data in a retail company's database, he or she puts his or her financial security in the hands of strangers . Being that online retailers are usually high on the target lists of identity thieves, this is certainly not an intelligent risk to take . And with the immense global capacity of the internet, once a violation has been determined, it is often extremely difficult to pinpoint and apprehend the culprit . The mechanism of personal data-saving is becoming increasingly utilized in modern ecommerce, yet it presents just one example of the many threat structures consumers face in the online marketplace. And in knowing that countless other threats exist, customers must be knowledgeable and thoroughly able to utilize any and all protective mechanisms at their disposal before entering this threatening forum. Such defensive techniques are often as simply as not using the same password for all retail accounts, continuously updating anti-virus programs and even simply turning off the computer after continuous use . However, in order to provide oneself with truly sufficient levels of protection, it is often advantageous to become educated about more sophisticated protective devices. Such items can include encryption, anonymous browsing and virtualization software . The encrypting of one's sensitive data ultimately amounts to the encoding of such information . This means that if a hacker were to stumble upon an individual's personal info, he or she would likely have to spend a significant amount of time trying to break the code. As a result of this labor-intensive task, most identity thieves will simply pass over encrypted information in search of easier targets. The tool known as virtualization software can also be very useful in that such software allows customers to be alerted to viruses and potentially fraudulent activity in a virtual environment before it actually affects their computer or their actual personal information . Thus, in knowing that an individual is solely responsible for protecting himself or herself, and contemplating the devastating aftermath associated with the loss of one's financial identity, becoming educating about all the available protective measures seems like quite a profound necessity.
Regrettably, an individual's financial information is not the only vulnerable data in the world of computerization. Rather, health records are now at risk in the electrified age of patient documents . Assuming that one's health is their most vital asset, such misconduct can be ultimately life-threatening in some cases. While the advent of electronic health records certainly has its advantages in that it "enables the electronic exchange of patient data, which yields cost and quality of care benefits," many potential threats also arise from this systematic approach (Smith, et al., 2010, p. 1). In fact, according to a study done at North Carolina State University which involved an extensive exploratory security analysis of current structural components of the electronic health records system, there are many gaping holes that allow for extraordinarily destructive action (Smith, et al., 2010). Some examples of such unfortunate potential consequences include, "the exposing of all users' login information, the ability of any user to view or edit health records for any patient, and the ability to deny service for all users" (Smith, et al., 2010, p. 1). Therefore, with the essentiality of information-sharing in the healthcare field, the ease with which one can tamper with such critical data is striking and disheartening. The healthcare system itself relies on patient histories in order to ensure that patients receive the proper treatments and medications. Hence, the corruption of such materials can result in mistaken procedures, failures to accommodate a patient's allergies or predispositions and the exposition of embarrassing personal health data (Terry & Francis, 2007). With such horrifying potential consequences, one would naturally assume that the Certification Commission for Health Information Technology (the entity responsible for overseeing the integration of electronic health records) would implement a vast cornucopia of high-level security measures. However, this is not in fact the case. Instead, researchers have been able to infiltrate this system and its patient pool using elementary hacking techniques such as "phishing" (Smith, et al., 2010, p. 8). Phishing is often described as, "a form of social engineering in which an attacker attempts to fraudulently acquire sensitive information from a victim by impersonating a trustworthy third party" (Jagatic, Johnson, & Jakobsson, 2007). The conductors of the aforementioned exploratory analysis performed at North Carolina State University, were able to acquire patients' login information through the use of phishing and the creation of false login templates (Smith, et al., 2010). The simplicity with which these researchers were able to access sensitive information superbly illustrates the scope of the shortcomings of this system. Consequently, these experts recommend several revisions…[continue]
"Challenges Of Protecting Personal Information" (2011, March 28) Retrieved December 7, 2016, from http://www.paperdue.com/essay/challenges-of-protecting-personal-information-120400
"Challenges Of Protecting Personal Information" 28 March 2011. Web.7 December. 2016. <http://www.paperdue.com/essay/challenges-of-protecting-personal-information-120400>
"Challenges Of Protecting Personal Information", 28 March 2011, Accessed.7 December. 2016, http://www.paperdue.com/essay/challenges-of-protecting-personal-information-120400
In particular, employees can feel as though they have a lack of privacy and that they are constantly being micro-managed. Studies have shown that workers who are monitored through outlets such as call centres have elevated levels of depression and anxiety (Holman, 2002). As the worker loses their autonomy, it is also common for them to lose a substantial degree of intrinsic motivation. Another negative consequence of employee monitoring is
Included among the demographic data to be collected are: age and sex of the student, the type of school (private or public), the nature of internet access most frequently used (home, public library, school, others), primary guardian and relationship to the guardian (parent, grandparent, sister, etc.). A simple t-test will determine whether there is a significant difference in the frequency of posting scores between boys and girls or the 11-12
They have a moral obligation to the South African people in this area for many reasons. First, they have an obligation to make certain that they can participate in the global economy to give their citizens the same chances for advancement as other nations. Secondly, they have a moral obligation to do everything possible to keep their citizens safe. When one discusses the topic of security in Information and Communication
Processing examples are conversion of encoded or typed words to printable format or running of computer programs such as the Statistical Package for Social Sciences (SPSS). Lastly, controlling ensures that all other four operations of the computer are efficiently working together, while at the same time, ensuring also that each operation does not interfere with the other operations. Examples of control measures in the computer are warnings or prompts
The need for continually creating and updating the security techniques and technologies involved in an enterprise system is the ethical responsibility of the IT professional. In order to successfully protect the information and intellectual property assets of a firm, an IT professional also needs to make a personal commitment to stay as current as possible on existing and future technologies (Pemberton, 1998). This commitment needs to be supported by the
Information Technology Acts While information technology today has many distinct advantages, it is also important to acknowledge that there are some specific potential drawbacks. These drawbacks relate especially to the right to privacy of people making use of information technology. Users of Internet subscription services, for example, expect certain privacy rights in terms of the contact and personal information they choose to divulge. At the same time, large institutions like learning
The company's consistent top line revenue growth also illustrates it has been successful in transforming its supplier network into one that operates more on knowledge, less on purely price or product decisions. As a result the company is capable of competing more at the process level and less at the purely price-driven one (Reese, 2007). In terms of the company's factors for success, the greater opportunities is to move into


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Audrey Baxter, the food tycoon, has been fined and banned from driving after admitting she was over the limit.
The 50-year-old was caught after staff at Dr Gray's Hospital in Elgin raised the alarm on Christmas Eve. Baxter pleaded guilty at the town's sheriff court yesterday and was fined £600 and banned for a year.
Baxter is chairman of the family soups and preserves business. She was caught over the limit after driving her partner to hospital and blocking the ambulance bay with her Range Rover.
The fiscal depute, Shona Duncan said she had arrived at the hospital at about


text:
Women's 18k White Gold Small Twisted Circle Pendant Necklace, 16"
Part of the designer's New Barocco collection, this elegant pendant necklace from Roberto Coin references a hi-tech aesthetic within the bounds of a traditional twisted circle design. 18K white gold. 16-18" adjustable length; pendant:. 5"L. Lobster clasp. Photo may have been enlarged and/or enhanced. Country Of Origin: Made in Italy. Color: white


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Earl Klugh - Crazy For You (1981) 320 kbps
- 14-05-2014, 14:13
- Music | Jazz | Smooth Jazz
Artist: Earl Klugh
Title Of Album: Crazy For You
Year Of Release: 1981
Label: Blue Note Records
Genre: Crossover Jazz,Smooth Jazz
Format: MP3
Quality: 320 kbps
Total Time: 35:12
Total Size: 84 MB(+3%)
01 - I'm Ready For Your Love
02 - Soft Stuff
03 - Twinkle
04 - Broadway Ramble
05 - Calypso Getaway
06 - The Rainmaker
07 - Balladina
08 - Crazy For You
Earl Klugh's music is as refreshing as a cool breeze on a muggy summer day. This set produced by Klugh and co-produced by Roland Wilson displays Earl's guitar virtuosity and his composing skills. A grand orchestra used on some cuts never overshadows the tight rhythm section comprising various players, with Phil Upchurch and Greg Phillingames being the most prominent. The different musicians give each tune a subtle difference so the LP never gets mundane. Louis Johnson's bass propels "Twinkle" along at a finger-popping pace, with Phillingames adding a sweet electric piano solo that's polished off by some draping synthesizer runs. "Broadway Ramble" features Hubie Crawford's emoting harmonica filling in spaces on a cowboy-ish rhythm. Donald Griffin, Billy Griffin's brother, adds some electric guitar on "Calypso Getaway" and the title track. "The Rainmaker" has elaborate orchestration that meshes with the intense drumming, Gary King's bassing, and Klugh's feathery touch; percussionists Sammy Figueroa and Manola Badbena add flashy fills to Dave Matthews' masterful arrangement. The album closes with the upbeat title track, which is the most direct and most forgettable tune on the disc. This was originally released on Liberty Records in 1981 but was reissued by Blue Note in 1996.
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May 10, 2011
ROBERT E. JUDGE, PLAINTIFF,v.MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
Pending before the Court are a motion for judgment on the pleadings (Docket Entry 13) filed by pro se plaintiff Robert E. Judge ("Plaintiff" or "Judge") and a cross-motion for judgment on the pleadings seeking remand of this action for further proceedings before an Administrative Law Judge ("ALJ") filed by defendant Michael J. Astrue, Commissioner of Social Security ("SSA") (Docket Entry 17). For the reasons outlined below, Plaintiff's motion is DENIED, Defendant's GRANTED. Consequently, all other pending motions are DENIED AS MOOT.
On April 12, 2005, Plaintiff filed a claim, pursuant to
42 U.S.C. § 402(d)(1), for disabled adult child's benefits based
the earnings of his father, who died on March 28, 1983. (R.*fn1
181-83.) Under § 402(d)(1), an individual may be entitled to
disabled adult child's benefits based on the record earnings of an
insured deceased person if: (i) the claimant is eighteen years of age
or older; and (ii) suffers from a disability that began before he
attained twenty-two years of age. Born on January 25, 1955, Plaintiff
claimed that he had been disabled since January 5, 1975.
After a hearing in August 2005, the ALJ issued a decision dated September 19, 2005 denying Plaintiff's application by operation of the res judicata rule; the judge decided that the application sought the same benefits as Plaintiff's previous application denied on September 14, 1995, which was never appealed and therefore final. (R. 134-38.) Plaintiff's request for review of the September 19 decision was subsequently denied by the Appeals Council.
Plaintiff next filed an action in the United States District Court for the Eastern District of New York (05-CV-5160) (Spatt, J.). (R. 11.) On September 6, 2007, Judge Spatt remanded the case to the Defendant for additional proceedings, pursuant to the fourth sentence of 42 U.S.C. § 405(g), when it became apparent that the SSA could not locate copies of the September 14, 1995 decision denying Plaintiff's disabled adult child's benefit application (on which the res judicata ruling was predicated); and the notices advising him of that decision, of his right to appeal, and of consequences from failing to appeal. Nor could the Defendant otherwise prove they were sent. (R. 173-76.)
Following remand, on June 10, 2008, Plaintiff appeared, without counsel, and testified at a hearing before the ALJ, who rejected his application on September 19, 2005. To obtain testimony from a medical expert--one Dr. Osvaldo Fulco--the ALJ adjourned the hearing to August 20, 2008, when Plaintiff once again appeared without counsel. (R. 296-322.) This time around, the ALJ assessed Plaintiff's claim de novo, finding on October 31, 2008 that Plaintiff was not disabled prior to January 12, 1977 and therefore unentitled to disabled adult child's benefits. (R. 8-16 (since Plaintiff was born on January 25, 1955, not January 12, 1955, the ALJ's analysis was mistaken on this point.)) After the Appeals Council declined to assume jurisdiction over Plaintiff's case, Plaintiff commenced this action on September 21, 2009.
I. Standard of Review: 42 U.S.C. § 405(g)
Federal courts have the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a hearing." 42 U.S.C. § 405(g).
Pursuant to the fourth sentence of Section 405(g), remand is appropriate where the Commissioner has failed to develop the administrative record fully and/or to provide a full and fair hearing. Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S. Ct. 2157, 115 L. Ed. 2d 78 (1991).
II. Plaintiff's Entitlement to Benefits
To establish entitlement to disabled adult child's benefits on the record earnings of an insured person who has died, a Plaintiff must prove he is 18 years of age or older and suffers from a disability that began before he reached 22 years of age. 42 U.S.C. § 402(d)(b)(i); 20 C.F.R. § 404.350(a)(5).
To establish disability, the claimant must demonstrate an inability: to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . .
42 U.S.C. § 423(d)(1)(A).
A five-step sequential analysis for evaluating disability claims is set forth in the Commissioner's regulations. See 20 C.F.R. § 404.1520. The Commissioner will not review a claim further if, at any point in the process, a finding of either disability or non-disability may be made. 20 C.F.R. § 404.1520 (a)(4). If, for example, the claimant is not found to be engaged in substantial gainful activity, the Commissioner will determine whether the medical evidence demonstrates that the person suffers from a "severe" impairment; if so, he then decides whether the impairment meets or equals the impairment criteria enumerated in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(c), 404.1521, 404.1520(d), 404.1525. If the impairment does not meet the criteria, a residual functional capacity test is performed. See 20 C.F.R. § 404.1520(e). Next, the ALJ decides whether the claimant remains capable of performing past relevant work in view of the existing severe impairment. See 20 C.F.R. § 404.1520(f). If the claimant cannot, as the last step, the ALJ determines whether he is capable of performing other work existing in the national economy, in light of his age, education, work experience, and residual functional capacity. See 20 C.F.R. § 404.1520(g).
As far as the procedure of the hearing is concerned, while a Social Security Disability claimant does not enjoy an absolute constitutional right to counsel, he does have the right to be represented should he choose to obtain counsel on his own. Lamay v. Astrue, 562 F.3d 503, 507 (2d Cir. 2009); see also 42 U.S.C. § 406. In particular, the pertinent statute and regulation state that when notifying a claimant of an adverse determination, the Commissioner must "notify [the] claimant in writing" [of his] "options for obtaining [an] attorney to represent [him]" at his hearing and "the availability . . . of . . . organizations which provide legal services free of charge" to "qualifying claimants."
42 U.S.C. §§ 406(c), 1383(d)(2)(D); see also 20 C.F.R. § 404.1706. Furthermore, "the ALJ must ensure that the claimant is aware of [his] right [to counsel]." Robinson v. Sec'y of Health & Human Servs., 733 F.2d 255, 257 (2d Cir. 1984).
Where there has been a failure to obtain a valid waiver of the right to representation, remand is the proper disposition if the claimant is prejudiced or if there was unfairness in the proceeding. See, e.g., Flores v. Astrue, 2009 WL 1562854, at *8 (S.D.N.Y. May 27, 2009). In the pro se context, prejudice is shown where the ALJ neglected to develop properly the administrative record in a manner consistent with the heightened pro se standard. Id. at *8; see also Alvarez v. Bowen, 704 F. Supp. 49, 52-53 (S.D.N.Y. 1989).
Here, as is argued by the Defendant himself, the Plaintiff was not completely informed of his right before making a valid waiver of it. Specifically, while the ALJ wrote in his decision that "[a]lthough repeatedly informed of his right to representation, the claimant chose to appear and testify without the assistance of an attorney or other representative," (R. 11), the notices mailed to Plaintiff (in May and August 2008) did not advise him of the availability of free legal services and did not provide a listing of them. (R. 184-87.) Nor did the ALJ inquire to see whether Plaintiff received the requisite information at the June 8 and August 20, 2008 hearings. Instead, on June 8, 2008, the ALJ tersely stated that Plaintiff had "the right to be here with an attorney . . . [and] the right to have the hearing by yourself today." (R. 325.) In response, Plaintiff stated, "okay". (R. 325.) Likewise, at the August 20, 2008 hearing following adjournment, Plaintiff was advised of his right in a virtually identical way and replied, "yes, sir." (R. 298.)
The ALJ's failure to fully apprise Plaintiff of his rights proved acute in this case given that he was then receiving SSI benefits for a mental impairment, which the ALJ recognized in his decision. (R. 13.) In such circumstances, the ALJ was duty bound to conduct a more searching inquiry into whether Plaintiff wished to proceed pro se. See, e.g., Collado v. Astrue, 2009 WL 2778664, at *2 (S.D.N.Y. Aug. 31, 2009). Moreover, as is mentioned supra, the ALJ's heightened duty in a pro se hearing requires him to "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts . . ." Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 42 (2d Cir. 1972). Here, for all his reliance on the testimony of the medical expert (Dr. Fulco), who concluded, based on a review of Plaintiff's medical records, that there was no evidence of back injury prior to 1987, several of those medical records are not found in the certified administrative record. (R. 244-45.) Defendant not only concedes as much, but argues that this was in error. Def.'s Mem., p. 16. The expert reports on which the ALJ relied in his decision --namely, the reports from Dr. Olivetto (June 1989), Dr. Flunkel (May 1990), Dr. Dutta (July 1990), Dr. Turner, and the Sports Medical Resource (December 1987 and February 1988)--were never entered into the record. (R. 14-15.) Perhaps more importantly, absent from the record is evidence concerning Plaintiff's alleged receipt of disabled adult child's benefits before he reached the age of 22 (if Plaintiff's father were disabled or retired at this juncture, Plaintiff would have been awarded child's insurance benefits up to age 22 if he were a full-time student without a finding of disability). 42 U.S.C. § 402(d)(1)) (R. 301-02; 327-28, his alleged 1983 claim for SSI due to back problems, and his 1990 SSI claim (R. 301-02).)
For all of these reasons and pursuant to the fourth sentence of 42 U.S.C. § 405(g), this civil action should be remanded for further administrative review. By the same token, Plaintiff's application for reversal and a remand solely for the purpose of a calculation of benefits must be denied. Because the Court finds that the ALJ did not fully discharge his duty to develop properly the administrative record in a pro se case, it cannot simultaneously conclude that the record conclusively shows that the Plaintiff was disabled before he reached his 22nd year on January 25, 1977. See, e.g., Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996) ("[A] decision to reverse and direct an award for benefits 'should be made only when . . . substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits'") (quoting Gilliland v. Heckler, 786 F.2d 178, 184 (3d Cir. 1986). Moreover, what evidence there is in the record shows that Plaintiff's alleged disability (congenital back impairment or spina bifida occulta) was diagnosed in 1983. Yet to be entitled to adult disabled child's benefits, Plaintiff must show that he was disabled prior to January 25, 1977, when he reached the age of 22. Plaintiff cites no evidence in the record showing a diagnosis prior to that date, let alone substantial evidence.
For the foregoing reasons, the Court GRANTS Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Commissioner's decision is reversed and the case is remanded for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Clerk of the Court is directed to terminate all pending motions and mark this matter CLOSED.
Joanna Seybert, U.S.D.J.
Central Islip, New York
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Having unwanted fat in numerous areas of your body can have a substantial impact on your health and self-confidence. While traditional weight loss through exercise and diet plan is an excellent method to slim down in general, even the very best workouts cannot target issue locations like the tummy, inner thighs, arms, and buttocks. Liposuction is a time evaluated treatment that is used to remove excess fat from specific areas of the body, permitting a specific to form and contour their body to their preference. Is liposuction right for you? Find out now.
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I was 19 years old when my Mom was diagnosed with Metastatic Small Cell Lung Cancer, which had a low survival rate. I was in my second semester of college so the idea of caregiving was not exactly making sense to me. Who is a caregiver at the age of 20? That's for older people!
雇用居家护理助手 (Hiring In-Home Help)
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雇用居家护理助手 Download here (328k) Simplified
雇用居家护理助手 加州资源 Download here (220k) Simplified (CA Resources)
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Thursday, January 1, 2004


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adidas Originals
adidas Originals Tubular Doom Shoes - Black/Black/White
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The adidas Originals Tubular Doom in black is back in stock. This shoe redraws the Tubular as a forward-looking street sneaker with an adaptive fit. The stretchy slip-in adidas Originals Primeknit sock-like upper is anchored by a suede heel cage and midfoot lacing system. These shoes ride on a sculpted EVA outsole whose design was originally inspired by tyre tubes.
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As ISIS loses territory, it returns to mass-casualty attacks against civilians. That's why military-first approaches to terrorism are doomed to failure.
Regions / France
In the second issues of the International Review of Contemporary Law, dedicated to the 70th Anniversary of the United Nations Charter, Phyllis Bennis writes about the Paris climate talks, the UN, terrorism, and the global war on terror.
IPS Climate Policy director Janet Redman joins other leading climate scientists and activists to discuss the climate crisis.
The years after 9/11 are a powerful reminder that an 'all-out war' on terror only creates more terrorism.
After more than a year of negotiations, a U.S.-backed nuclear deal with Iran has been struck.
Emission targets proposed by the Obama administration are insufficient to avoid the worst consequences of climate change.
Americans pay more for an economy that pumps our treasure to the top than you probably think.
We're better off having the limits of free speech tested by artists — including obnoxious ones — than having its limits imposed by political rulers.
After the Paris massacre, European governments should resist narratives of civilizational conflict and push for a ceasefire in the Syrian war.
Does anyone — ever — deserve to be harassed, hounded, or murdered for expressing an opinion, however egregious?


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11th Annual Palo Alto Weekly Photo Contest
Second Place, Manipulated Images
"Ghost Town"
By Robert Fournier
About Robert Fournier
wanted something that was really going to be different. I wanted
the sense of mystery," said Robert Fournier. "Moody,
ghostly, out of this world. I wanted to get the feeling of a ghost
Fournier traveled to the ghost town of Bodie on a field trip
with the Peninsula Photo Slide Club. The day was overcast, a "miserable
day. Not a great day for taking pictures," said Fournier.
However, he was inspired by a figure bundled up in a jacket walking
towards him, and took a picture.
Back at his home in Portola Valley, Fournier scanned the color slide into his computer. He worked in Photoshop to give the photo its dark and ghostly mood.
"I did different things with the different layers, a little
twirl, fractlization. I wanted to get the feeling of night so
I took the negative of the positive, I wanted to emphasize the
lone figure."
Fournier played around with the photo to digitally create "Ghost Town." He describes himself as "pretty much self-taught," on the computer. Fournier got his start taking pictures working for the U.S. Geological Survey. He traveled the world and always carried a camera. Since retiring, he has pursued photography fairly seriously.
-- Kyla Farrell
Palo Alto Weekly Holiday Fund
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Is Careers in S No 77/1, Zilla Parishad Road, Opp Malan Farm, Ashok Nagar Road Tathawade Pimpri-Chinchwad, Maharashtra Maharashtra 411033 your business? Claim your listing and attract more leads by adding more content, photos and other business details.
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Comment Been done before (Score 1) 86
and many others, even if maybe they miss out what seems to be this scheme's USP, adding solar power to it.
and many others, even if maybe they miss out what seems to be this scheme's USP, adding solar power to it.
The EFF's chief technologist revealed that he doesn't run an anti-virus program, partly because he's using Linux, and partly because he feels anti-virus software creates a false sense of security. ("I don't like to get complacent and rely on it in any way...")
He's quite right. We lull ourselves into a false sense of security all the time. I try to avoid it, complacency is a killer.
I drive at night without any lights on, because then if I'm in an accident it will probably be my fault. This keeps me wide awake and aware of all possible hazards.
During the day this doesn't work of course. Hence I have to drive in bare feet, so if there is an accident I'm not going to get very far trying to run away.
You could justify it in the same way that in many / most companies, senior management claims that higher pay and bonuses for directors motivates them to make more profit. Could you depend on a general who does not get at least, say, twenty times as much as the ordinary airman?
Who knows more about the name of Ukraine, some random English speaker on the internet or the Ukrainians? - well, actually the random English speaker knows the name of the country in English as well as any random Ukrainian.
If in any problem you find yourself doing an immense amount of work, the answer can be obtained by simple inspection.


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Army Costume
GI Jane. Army girl. Halloween. USA. Was proud of the way I did my paint makeup
#camo #makeup #hotdamebeauty ! I LOVE THIS !
More More
Me for Halloween 2014. Army girl. Soldier. Camo
Levi's paint for army man costume
love this green and silvery thing going on.
gotta keep this in my phone for those moments when I have no idea what to call his NCOs hahah
Homemade Army Costume Ideas.
camo costume More
I know it's a costume, but this is fake and disrespectful. Stop being so goddamn stereotypical, and have a heart.