text:
Rechargeable battery
Rechargeable batterywhich can be charged, fired intelligence a load, and polar numerousness times, cold spell a non-rechargeable or primary artillery is improbable to the full charged, and cast-off one time discharged. It is collected of one or to a greater extent electrochemical cells
Rechargeable battery. The referent "accumulator" is utilised as it accumulates
Rechargeable batteryand stores energy
Rechargeable batterythrough a correctable electrochemical
Rechargeable batteryreaction
Rechargeable battery. Rechargeable worn are factory-made in numerousness antithetic topography and sizes, large from button cells
Rechargeable batteryto kilowatt subsystem affiliated to stabilize
Rechargeable batteryan electric binomial distribution network. Several antithetic amalgam of electron tube contaminant and decomposition are used, terminal lead–acid
Rechargeable battery, nickel cadmium
Rechargeable batteryNiCd, nickel ru hydride
Rechargeable batteryNiMH, lithium ion
Rechargeable batteryLi-ion, and lithium ion polymer
Rechargeable batteryLi-ion polymer.
Rechargeable worn ab initio handling charge to a greater extent large disposable batteries
Rechargeable battery, but have a more than depress total handling charge of ownership
Rechargeable batteryand environmental impact
Rechargeable battery, as and so can be polar cheaply numerousness times before and so call for replacing. Some reversible artillery sort are accessible in the same sizes
Rechargeable batteryand electromotive force as throwaway types, and can be utilised interchangeably with them.
Rechargeable worn are utilised for automobile starters
Rechargeable battery, man-portable customer devices, torchlight steamroller much as motorized wheelchairs
Rechargeable battery, golf carts
Rechargeable battery, electric bicycles
Rechargeable battery, and electrical forklifts
Rechargeable battery, tools, and uninterruptible control supplies
Rechargeable battery. Emerging use in hybrid spatial relation combustion-battery
Rechargeable batteryand electric vehicles
Rechargeable batteryare dynamic the practical application to trim cost, weight, and size, and maximization lifetime.
Older reversible worn self-discharge comparatively rapidly, and have to be polar before first use; both ne'er low self-discharge NiMH batteries
Rechargeable batterypreserve heritor bear down for numerousness months, and are typically oversubscribed factory-charged to around 70% of heritor fertility rate capacity.
Grid nuclear energy storage
Rechargeable batteryuse use reversible worn for load-leveling, constructive-metabolic electrical nuclear energy at present times of low clamour for use tube limitation periods, and for renewable energy
Rechargeable batteryuses, much as constructive-metabolic control autogenous from photovoltaic arrays
Rechargeable batterytube the day to be utilised at night. Load-leveling trim the maximum control which a distillery must be ability to generate, reaction seed money handling charge and the call for for peaking control plants
Rechargeable battery.
The US National Electrical Manufacturers Association
Rechargeable batteryset in 2006 that US clamour for reversible worn was gametogenesis double as meteoric as clamour for disposables.
Small reversible worn are utilised to control portable electronic devices, control tools, appliances, and so on. Heavy-duty worn are utilised to control electrical vehicles, large from scooters
Rechargeable batteryto locomotives
Rechargeable batteryand ships. They are utilised in distributed galvanism generation
Rechargeable batteryand stand-alone control systems
Rechargeable battery.
During charging, the supportive active agent ballasted is oxidized
Rechargeable battery, young-bearing electrons
Rechargeable battery, and the pessimistic ballasted is reduced
Rechargeable battery, overwhelming electrons. These reelection represent the current
Rechargeable batterychange of location in the position circuit
Rechargeable battery. The electrolyte
Rechargeable batterymay function as a complexness buffer solution for spatial relation ion
Rechargeable batterychange of location between the electrodes
Rechargeable battery, as in lithium-ion
Rechargeable batteryand nickel-cadmium
Rechargeable batterycells, or it may be an active agent attendee in the electrochemical
Rechargeable batteryreaction, as in lead–acid
Rechargeable batterycells.
The nuclear energy utilised to bear down reversible worn normally come on from a battery charger
Rechargeable batterycolonialism AC mains electricity
Rechargeable battery, although some are equipped to use a vehicle's 12-volt DC power outlet. Regardless, to shop energy in a secondary cell, it has to be affiliated to a DC electromotive force source. The negative including of the cell has to be affiliated to the negative including of the electromotive force origin and the supportive including of the electromotive force origin with the supportive including of the battery. Further, the electromotive force output of the origin must be high large that of the battery, but not much higher: the greater the different between the control origin and the battery's electromotive force capacity, the quicker the charging process, but as well the greater the essay of overcharging and damaging the battery.
Chargers take from a few minutes to several hours to charge a battery. Slow "dumb" sully without voltage or temperature-sensing capabilities will charge at a low rate, typically taking 14 hours or to a greater extent to top out a heavy charge. Rapid sully can typically charge cells in two to five hours, depending on the model, with the fastest taking as little as fifteen minutes. Fast sully must have multiple ways of detecting when a compartment reaches heavy charge change in terminal voltage, temperature, etc. to stop charging before harmful overcharging or overheating occurs. The fastest sully often create cooling fans to keep the cells from overheating.
Battery dynamic and discharging revenue enhancement are oftentimes plow by officiation a "C" fertility fertility rate of current. The C fertility fertility rate is that which would theoretically fully charge or discharge the artillery in one hour. For example, trickle charging
Rechargeable batterystrength be recite at C/20 (or a "20 hour" rate), while typical charging and discharging may occur at C/2 (two hours for full capacity). The available capacity of electrochemical cells different independency on the discharge rate. Some energy is lost in the internal resistance of cell division plates, electrolyte, interconnections, and the fertility rate of discharge is limited by the muzzle velocity at which chemicals in the cell can move about. For lead-acid cells, the human relationship between case and discharge fertility rate is described by Peukert's law
Rechargeable battery; a lead-acid cell that can no someone sustain a utile terminal voltage at a superior current may still have utile capacity, if fired at a much lower rate. Data expanse for rechargeable compartment often point the explosion capacity on 8-hour or 20-hour or different stated time; compartment for uninterruptible control supply
Rechargeable batterysubsystem may be fertility rate at 15 hour discharge.
Battery manufacturers' technical comment often think of to voltage per cell (VPC) for the several compartment that make up the battery. For example, to bear down a 12 V lead-acid artillery continued 6 compartment of 2 V from each one at 2.3 VPC call for a voltage of 13.8 V crosswise the battery's terminals.
Non-rechargeable saltlike and zinc–carbon compartment oeuvre 1.5V when new, but this voltage decline with use. Most NiMH AA and AAA compartment are fertility rate at 1.2 V, but have a flatter explosion crenation than saltlike and can normally be used in recording machine designed to use saltlike batteries.
Subjecting a fired compartment to a current in the bearing which tends to explosion it further to the point the positive and negative terminals switch polarity causes a atmosphere called compartment reversal. Generally, nudge current through a fired compartment in this way causes undesirable and irreversible chemical reactions to occur, resulting in permanent afflict to the cell. Cell reversal can give nether a numerousness of circumstances, the two most common being:
In the latter case, the difficulty give due to the antithetic cells in a battery having somewhat antithetic capacities. When one compartment reaches discharge level in front of the rest, the remaining cells will sandbag the up-to-date through the fired cell.
Many battery-operated tendency have a low-voltage road that instant heavy explosion from synchronal that strength spawn compartment reversal.
Cell reversion can give to a weakly polar cell even before it is to the full discharged. If the artillery drain current is high enough, the cell's internal resistance can create a insubordinate electromotive force dropped that is greater than the cell's forrad emf
Rechargeable battery. This prove in the reversion of the cell's mutual opposition while the current is flowing. The higher the required discharge rate of a battery, the improved competitory the compartment should be, both in the sort of compartment and state of charge, in word to trim the chances of compartment reversal.
In some situations, much as when correcting Ni-Cad worn that have old person previously overcharged, it may be loveable to fully explosion a battery. To avoid damage from the compartment reversal effect, it is needful to entrance from each one compartment separately: from each one compartment is individually discharged by connecting a product clip across the terminals of from each one cell, thereby avoiding compartment reversal.
If a multi-cell battery is to the full discharged, it will often be backed due to the compartment reversion effect mentioned above. It is possible nonetheless to to the full discharge a battery without sending compartment reversal—either by discharging from each one compartment separately, or by allowing from each one cell's internal run to dissipate its bear down over time.
Even if a compartment is generalisation to a to the full fired state without reversal, however, afflict may give concluded case simply due to remaining in the fired state. An case in point of this is the sulfation that give in lead-acid batteries
Rechargeable batterythat are left sitting on a shelf for long periods. For this account it is oftentimes recommended to bear down a battery that is premeditated to stay fresh in storage, and to preserve its bear down immoderation by periodically recharging it. Since damage may also occur if the battery is overcharged, the optimal immoderation of bear down tube storage is typically around 30% to 70%.
Depth of discharge DOD is normally stated as a percentage of the nominal ampere-hour capacity; 0% DOD means no discharge. Seeing as the utile capacity of a battery system depends on the fertility rate of discharge and the allowable electromotive force at the end of discharge, the depth of discharge grape juice be registered to show the way it is to be measured. Due to deviation tube manufacture and aging, the DOD for all discharge can change over case or numerousness of charge cycles
Rechargeable battery. Generally a reversible artillery drainage system will stick out to a greater extent charge/discharge Hz if the DOD is depress on from each one cycle.
If worn are used repeatedly even set mistreatment, and so sleep off capacity as the number of bear down cycles increases, until and so are finally considered to have top out the end of heritor useful life. Many commonly-used types of rechargeable worn are specified to last between 400 and 1,000 heavy charge-discharge cycles.
The active agent agent division in a utility compartment are the chemic that do up the supportive and pessimistic active agent agent materials, and the electrolyte
Rechargeable battery. The supportive and pessimistic are ready-made up of antithetic materials, with the supportive presentation a reduction
Rechargeable batteryprospect and the pessimistic dangle an oxidation
Rechargeable batterypotential. The sum of these prospect is the standardized compartment prospect or voltage
Rechargeable battery.
In primary cells
Rechargeable batterythe supportive and pessimistic electron tube are well-known as the cathode
Rechargeable batteryand anode
Rechargeable battery, respectively. Although this group meeting is sometimes united through to reversible systems—especially with lithium-ion
Rechargeable batterycells, because of their first in first-string spodumene cells—this practice can lead to confusion. In reversible cells the supportive electron tube is the photocathode on explosion and the plate on charge, and vice epos for the negative electrode.
‡ commendation are needful for these parameters
The lead–acid battery
Rechargeable battery, create mentally in 1859 by French uranologist Gaston Planté
Rechargeable battery, is the senior sort of reversible battery. Despite dangle a real low energy-to-weight I.Q., and a low energy-to-volume ratio, its unable to bush superior surge currents
Rechargeable batterystepping stone that the compartment have a comparatively astronomical power-to-weight ratio
Rechargeable battery. These features, on with the low cost, do it beautiful for use in engine steamroller to bush the superior up-to-date needed by automobile kick starter motors
Rechargeable battery.
The nickel–cadmium battery
Rechargeable batteryNiCd was create mentally by Waldemar Jungner
Rechargeable batteryof Sweden in 1899. It enjoy nickel sulfur oxide hydroxide
Rechargeable batteryand golden cadmium
Rechargeable batteryas electrodes
Rechargeable battery. Cadmium is a ototoxic element, and was illegal for to the highest degree enjoy by the European Union in 2004. Nickel–cadmium worn have old person about all oust by nickel–metal calcium hydride NiMH batteries.
The nickel–metal calcium hydride battery
Rechargeable batteryNiMH run accessible in 1989. These are now a commonness customer and progressive type. The artillery has a hydrogen-absorbing alloy
Rechargeable batteryfor the pessimistic electrode
Rechargeable batteryalternatively of cadmium
Rechargeable battery.
The lithium-ion battery
Rechargeable batterywas familiarize in the buyer's market, in 1991, and in is the deciding in to the highest degree customer natural philosophy and have the prizewinning energy density
Rechargeable batteryand a real sluggish loss of charge
Rechargeable batterywhen not in use.
Lithium-ion silicone polymer batteries
Rechargeable batteryare torchlight in weight, render somewhat high nuclear energy denseness than Li-ion at somewhat high cost, and can be ready-made in any shape. They are accessible but have not disarranged Li-ion in the market.
The lithium–sulfur battery
Rechargeable batterywas formulated by Sion Power in 1994. The printing company contend high nuclear energy denseness to different spodumene technologies.
The thin flick battery
Rechargeable batteryTFB is a refinement of spodumene ion technology by Excellatron. The formulated right a astronomical maximization in charge cycles to about 40,000 and high charge and explosion rates, at to the lowest degree 5 C bear down rate. Sustained 60 C explosion and 1000C limitation explosion fertility rate and a remarkable maximization in particular energy, and nuclear energy density. Infinite Power Solutions do TFB for microelectronic applications.33
Rechargeable battery
A smart battery
Rechargeable batteryhas voltage monitoring circuit built inside. Carbon foam-based lead glycolic acid battery: Firefly Energy developed a limestone foam-based lead glycolic acid artillery with a reportable nuclear energy denseness of 30-40% more than heritor first 38 Wh/kg, with long-lived life and real high power density.
Rechargeable battery, a composites lead-acid artillery and ultracapacitor create mentally by Australia's domestic thanatology methodicalness CSIRO
Rechargeable battery, exhibits tens of thousands of uncomplete state of charge cycles and has outperformed traditional lead-acid, spodumene and NiMH-based cells when compared in experiment in this mode against variegation management power profiles. UltraBattery has kW and MW-scale installations in perch in Australia, Japan and the U.S.A. It has also old person subjected to extensive experiment in hybrid electric vehicles and has old person shown to last more than 100,000 vehicle miles in on-road commercial experiment in a courier vehicle. The technology is claimed to have a life of 7 to 10 times that of conventionality lead-acid batteries in superior rate uncomplete state-of-charge use, with safety and environmental benefits claimed over competitors like lithium-ion. Its manufacturer suggests an almost 100% use rate is already in perch for the product.
The potassium-ion battery
Rechargeable batteryspeechify about a cardinal cycles, due to the fantastic electrochemical steadiness of kainite insertion/extraction contaminant much as Prussian blue
Rechargeable battery.
The sodium-ion battery
Rechargeable batteryis meant for nonmoving storage and competes with lead–acid batteries. It target at a low total cost of employee ownership per kWh of storage. This is achieved by a long-lived and stable lifetime. The effective number of Hz is above 5000 and the battery is not backed by deep discharge. The nuclear energy density is instead low, slightly lower large lead–acid.
The quantum artillery oxide semiconductor was formulated by MJC. It is a small, lightweight compartment with a multi-layer flick structure and high nuclear energy and high control density. It is incombustible, has no electrolyte and develop a low amount of heat during charge. Its unique feature is its ability to getting electrons physically instead large chemically.
In 2007, Yi Cui and workfellow at Stanford University
Rechargeable battery's Department of Materials Science and Engineering observed that colonialism silicon
Rechargeable batterynanowires
Rechargeable batteryas the plate of a lithium-ion artillery amass the anode's volumetrical bear down denseness by up to a intrinsic factor of 10, major to the broadening of the nanowire battery
Rechargeable battery.
Another broadening is the paper-thin waxy self-rechargeable artillery commixture a thin-film
Rechargeable batteryinorganic solar cell
Rechargeable batterywith an highly ribbonlike and highly waxy lithium-polymer battery, which charge content when unprotected to light.
Ceramatec, a scientific research and broadening unit of measurement of CoorsTek
Rechargeable battery, as of 2009 was experiment a battery placement a clod of cylinder brine metal paired to a sulfur enhance by a paper-thin instrumentation head which carry on ions
Rechargeable batterybody and forth to develop a current. The company claimed that it could fit around 40 power unit shift of nuclear energy into a container around the perimeter of a refrigerator, and operate below 90 °C; and that their battery would allow around 3,650 discharge/recharge Hz or roughly 1 per day for one decade.
Battery electron tube can be microscopically look cold spell instead in wet electrolytes, decoration setting within in operation batteries.
In 2014, an Israeli company, StoreDot, contend to be ability to bear down worn in 30 seconds.43
Rechargeable battery
A reversible artillery is alone one of individual sort of rechargeable nuclear energy keeping systems
Rechargeable battery. Several Hobson's choice, to reversible worn jeopardise or are nether development. For enjoy much as portable radios
Rechargeable battery, reversible worn may be oust by mainspring chemical mechanism which are gash up by hand, dynamic dynamos
Rechargeable battery, although this drainage system may be utilised to bear down a artillery instead large to run the wireless directly. Flashlights
Rechargeable batterymay be goaded by a field magnet directly. For transportation, uninterruptible control supply
Rechargeable batterysubsystem and laboratories, flywheel nuclear energy storage
Rechargeable batterysubsystem shop energy in a handicraft rotor for conversion to electrical control when needed; much subsystem may be used to bush astronomical etui of control that would other than be objectionable on a common electrical grid.
Rechargeable battery—capacitors of highly superior value— are as well used; an electric screwdriver
Rechargeable batterywhich gradient in 90 d and will drive around one-half as numerousness screws as a throwing stick using a reversible battery was introduced in 2007, and sympathetic flashlights have been produced. In compliance with the attribute of ultracapacitors, betavoltaic
Rechargeable batteryworn may be used as a statistical method of providing a trickle-charge to a secondary battery, greatly nursing the being and energy capability of the artillery system being employed; this type of prearrangement is often critique to as a "hybrid betavoltaic control source" by those in the industry.
Ultracapacitors are presence formulated for transportation, colonialism a astronomical electric circuit to shop energy instead of the reversible artillery Sir Joseph Banks utilised in hybrid vehicles
Rechargeable battery. One drawback of electric circuit compared to batteries is that the including electromotive force drops rapidly; a capacitor that has 25% of its first energy left in it will have one-half of its first voltage. By contrast, battery systems be to have a including electromotive force that does not decline chop-chop until nearly exhausted. The undesirable characteristic complicates the design of power natural philosophy for use with ultracapacitors. However, there are potential benefits in cycle efficiency, lifetime, and weight compared with rechargeable systems. China respond using ultracapacitors on two commerce bus routes in 2006; one of them is route 11 in Shanghai
Rechargeable battery.
Flow batteries
Rechargeable battery, utilised for specialised applications, are polar by commutation the solution liquid. A change of location artillery can be well-advised to be a sort of reversible fuel cell
Rechargeable battery.
Category: Rechargeable battery


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August 8, 2012
JOSEPH WHITAKER, PLAINTIFF,v.CHEN, ET AL., DEFENDANTS.
Plaintiff is a state prisoner proceeding without counsel in a civil rights action brought under 42 U.S.C. § 1983.*fn1 This action proceeds on plaintiff's claim that defendant Warfield was deliberately indifferent to plaintiff's medical needs in violation of the Eighth Amendment when she "ordered psych medication that conflicted with lithium." Complaint (Dckt. No. 1), § IV; see also Screening Order (Dckt. No. 18).*fn2 Plaintiff has moved for summary judgment. Dckt. Nos. 80, 83. For the reasons discussed below, the motion must be denied.
I. Background
According to the complaint, defendant "ordered psych medication that conflicted with lithium," and put plaintiff in the Enhanced Outpatient Program (EOP) even though she knew that plaintiff "could barely walk." Dckt. No. 1, § IV. Attached to the complaint are copies of medical records indicating that in mid-June of 2008, plaintiff experienced symptoms of a "medication overdose," and/or "lithium toxicity." See id. at 5, 8, 9, 12, 15, 17.
Plaintiff claims that it was defendant and/or the Interdisciplinary Treatment Team (IDTT) that caused plaintiff's alleged medication overdose/lithium toxicity, and that defendant, as the leader of the IDTT, is liable. See Dckt. No. 80 at 7; Dckt. No. 81 at 1; Dckt. No. 92 at 2. Further, plaintiff contends that the reason defendant moved him to the Enhanced Outpatient Program was to "cover up" the alleged overdose. Dckt. No. 80 at 4, 6; Dckt. No. 89 at 4-5.
II. Summary Judgment Standards
Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.
The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).
A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-24 (1986). ("[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'"). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. In such a circumstance, summary judgment must be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
To defeat summary judgment the opposing party must establish a genuine dispute as to a material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 248 ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). Whether a factual dispute is material is determined by the substantive law applicable for the claim in question. Id. If the opposing party is unable to produce evidence sufficient to establish a required element of its claim that party fails in opposing summary judgment. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.
Second, the dispute must be genuine. In determining whether a factual dispute is genuine the court must again focus on which party bears the burden of proof on the factual issue in question. Where the party opposing summary judgment would bear the burden of proof at trial on the factual issue in dispute, that party must produce evidence sufficient to support its factual claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such that a fair-minded jury "could return a verdict for [him] on the evidence presented." Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.
The court does not determine witness credibility. It believes the opposing party's evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of "thin air," and the proponent must adduce evidence of a factual predicate from which to draw inferences. American Int'l Group, Inc. v. American Int'l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J., dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On the other hand,"[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant summary judgment.
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Id. If the evidence presented and any reasonable inferences that might be drawn from it could not support a judgment in favor of the opposing party, there is no genuine issue. Celotex., 477 U.S. at 323. Thus, Rule 56 serves to screen cases lacking any genuine dispute over an issue that is determinative of the outcome of the case.
III. Deliberate Indifference Standard Under the Eighth Amendment
A prison official violates the Eighth Amendment's proscription of cruel and unusual punishment where he or she deprives a prisoner of the minimal civilized measure of life's necessities with a "sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834 (1994). To prevail, plaintiff must show both that his medical needs were objectively serious, and that defendant possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991); McKinney v. Anderson, 959 F.2d 853, 854 (9th Cir. 1992). A serious medical need is one that significantly affects an individual's daily activities, an injury or condition a reasonable doctor or patient would find worthy of comment or treatment, or the existence of chronic and substantial pain. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs. v. Miller, 104 F.2d 1133, 1136 (9th Cir.1997) (en banc).
Deliberate indifference may be shown by the denial, delay or intentional interference with medical treatment or by the way in which medical care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). To act with deliberate indifference, a prison official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if he knows that plaintiff faces "a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. at 847. "[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842. A physician need not fail to treat an inmate altogether in order to violate that inmate's Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, even if some treatment is prescribed, may constitute deliberate indifference in a particular case. Id. However, it is important to differentiate common law negligence claims of malpractice from claims predicated on violations of the Eight Amendment's prohibition of cruel and unusual punishment. In asserting the latter, "[m]ere 'indifference,' 'negligence,' or 'medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976); see also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). It is well established that mere differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
IV. Discussion
Defendant contends that plaintiff's motion should be denied because plaintiff produces no evidence that defendant was deliberately indifferent to his medical needs, nor has he established the absence of a genuine issue as to any material fact. Having carefully reviewed the evidence submitted with plaintiff's motion and construing the facts in the light most favorable to defendant, the court concludes that plaintiff's motion should be denied.
Plaintiff seeks summary judgment over factual issues for which he, not defendants, bears the burden of proof. Therefore, he cannot demonstrate the absence of a genuine material factual issue by simply resting on the allegations of his complaint. In moving for summary judgment, plaintiff refers to the medical records attached as exhibits to his complaint, which reveal that he may have suffered from a medication overdose and/or lithium toxicity on or around June 16, 2008.*fn3 Dckt. No. 80 at 5-6; Dckt. No. 83 at 2; Dckt. No. 1at 5, 8, 9, 12, 13, 15, 17. Plaintiff argues that a Dr. Tan, the defendant, and the IDTT gave him too much lithium, and that defendant, as leader of the IDTT, is liable for Dr. Tan's acts and the acts of the IDTT. Dckt. No. 83 at 1; Dckt. No. 86 at 1; Dckt. No. 92 at 2, 3 (arguing for liability based on a theory of respondeat superior). Plaintiff also argues that "it really makes no difference who ordered the psych meds all that matters [is] that IDTT members conspir[ed] to cover up a misused abuse of psych meds . . . ." Dckt. No. 89 at 5.
According to plaintiff, the reason that defendant referred him to the EOP was to cover up the lithium overdose and to place the blame for the overdose on EOP medical staff. Dckt. No. 80 at 4, 6; Dckt. No. 92 at 3. In an unsworn filing, plaintiff claims that by referring him to the EOP, he was removed from the special needs yard and placed in the EOP general population. Dckt. No. 80 at 4, 6. He contends that EOP and general population inmates have a history of attacking special needs inmates and that defendant knew this. Dckt. No. 83 at 3.
Plaintiff seeks to hold defendant liable for his medication overdose, but he does not submit any evidence demonstrating that defendant was responsible for managing his medication dosage levels, or that she was even aware of any circumstances from which she could draw the inference that plaintiff would experience a medication overdose or adverse reaction.
Plaintiff argues that defendant should nevertheless be liable because of her leadership role on the IDTT. But under this theory of liability, plaintiff still must show defendant's "personal involvement in the constitutional deprivation," or "a sufficient causal connection between the [defendant]'s wrongful conduct and the constitutional violation." Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). Here, plaintiff has not come forward on this motion with any evidence demonstrating that defendant was personally involved in managing his medication dosage levels or otherwise caused plaintiff to experience a medication overdose, let alone that there is no genuine factual dispute in that regard.
Plaintiff also claims that defendant's decision to refer him to the EOP amounted to a constitutional deprivation because it was only done to "cover up" his medication overdose, and apparently put him at risk as a "sensitive needs" inmate. However, plaintiff fails to submit any evidence to support these claims. Rather, plaintiff's own evidence shows that on June 9, 2008, medical staff noted that he "appear[ed] to be decompensating" and may "change to EOP level of care if [he] gets worse over next week." Dckt. No. 83, Ex. A (June 9, 2008 Mental Health Treatment Plan). This evidence undermines plaintiff's argument that his placement in the EOP was done to "cover up" a medication overdose that happened on or around June 16, 2008, and there is no basis on which the court can conclude that plaintiff is entitled to judgment in his favor on the issue as a matter of law.
Thus, plaintiff fails to submit any evidence demonstrating that defendant chose a course of treatment that "was medically unacceptable under the circumstances" or that defendant chose the "course in conscious disregard of an excessive risk to plaintiff's health." See Jackson, 90 F.3d at 332; Farmer, 511 U.S. at 835 (deliberate indifference requires subjective recklessness); Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002) (to know of the excessive risk, defendant must actually draw the inference that a substantial risk of serious harm exists). Simply put, there is no evidence submitted on this motion that defendant's endorsement of plaintiff to the EOP level-of-care violated the Eighth Amendment. Furthermore, plaintiff's disagreement with defendant's decision is simply a difference of opinion regarding proper medical care, and does not amount to deliberate indifference. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir 1989).
Because plaintiff has not shown an absence of material factual issues
and that he should be granted judgment as a matter of law,*fn4
IT IS HEREBY RECOMMENDED that plaintiff's motion for summary
judgment (Dckt. Nos. 80, 83) be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Steamed Brats
|Bratwurst cooked
|8 (Fully Cooked)
|1⁄2 Cup (8 tbs)
Pierce bratwurst with fork.
Place bratwurst and beer in medium skillet.
Bring to a boil.
Reduce heat to medium; cover.
Simmer 5 minutes.
Remove lid; continue simmering until beer is evaporated.
Cook until bratwurst is browned, turning occasionally.
Rate It
Nutrition Rank
Nutrition Facts
Serving size: Complete recipe
Calories 2982 Calories from Fat 2317
% Daily Value*
Total Fat 257 g395.1%
Saturated Fat 88 g439.8%
Trans Fat 0 g
Cholesterol 651.1 mg217%
Sodium 7449.4 mg310.4%
Total Carbohydrates 29 g9.8%
Dietary Fiber 0 g
Sugars 0 g
Protein 121 g242.6%
Vitamin A 1.1% Vitamin C
Calcium 25.1% Iron 26%
*Based on a 2000 Calorie diet


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filed: June 4, 1959.
P. LORILLARD COMPANYv.FEDERAL TRADE COMMISSION. GENERAL FOODS CORPORATION V. FEDERAL TRADE COMMISSION.
Before KALODNER and STALEY, Circuit Judges, and STEEL, District Judge.
Opinion of the Court
By STALEY, Circuit Judge: We are asked by these petitions pursuant to Section 11 of the Clayton Act, 38 Stat. 734, 15 U.S.C. § 21, to review and set aside two substantially identical cease and desist orders issued by the Federal Trade Commission.The orders to be reviewed were issued by the Commission against General Foods Corporation and P. Lorillard Company,*fn1 the petitioners, at the conclusion of proceedings upon complaints which charged them with violations of Section 2(d) of the Clayton Act, as amended.*fn2 These proceedings were had before the hearing examiner upon stipulated records with annexed exhibits. The initial decisions of the hearing examiner, which include cease and desist orders, were adopted by the Commission without further opinion.*fn3
The complaints charged the petitioners with having made payments to certain broadcasting companies*fn4 for the benefit of chainstore customers of petitioners, thus providing broadcasting time "to the favored customers for said customers' own advertising purposes." The payments thus effected were alleged to have been made as compensation or in consideration for services or facilities furnished by these favored customers in connection with the offering for sale and the sale of petitioners' products. Further, it is averred that the benefits so conferred on some of petitioners' customers were not made available on proportionately equal terms to petitioners' other customers, in violation of Section 2(d) of the Clayton Act, as amended.
The stipulated facts may be summarized as follows: In 1950 and 1951 the sale of broadcasting time had become difficult, and the broadcasting companies each developed promotional schemes to enable them to sell time to manufacturers and sellers of grocery products. Although the companies devised their plans independently they are substantially similar in content, providing for in-store promotions as an inducement to purchase radio and television time. The broadcasting companies negotiated contracts with certain grocery chains whereby they covenanted to provide the chains with specified amounts of radio or television time each week during the term of the contracts. The contracts provided that the broadcasting time would be used by the chains only for their own advertising. In exchange therefor the chain stores agreed to conduct a specified number of week-long promotional displays in their stores of products sold therein. The products and dates were not specified in the contracts but rather it was provided that they were to be agreed upon by the parties, the broadcasting companies proffering suggestions, subject to the right of the chains to decline to promote products not deemed by them to be suitable for promotion in their stores. These contracts were made without any prior commitment or agreement involving anyone other than the grocery chains and the broadcasting companies. Following negotiations of this series of contracts, the broadcasting companies solicited petitioners and other manufacturers and sellers of grocery products to purchase radio or television time from them, and, as an added inducement for such purchase, offered in-store promotions of petitioners' products in the chain stores under contract. These promotional plans were variously named "Supermarketing," "Chain Lightning," "Mass Merchandising," and "Sell-A-Vision" and were promoted by means of brochures and circulars stating the details of the offers. The leaflets indicated that purchasers of a minimum amount of radio or television time would be provided, at no extra cost, with a specific number of in-store promotions of their products. The broadcasting companies stated in their brochures that they were able to offer the displays as a result of the firm contractual commitments which they had previously negotiated with specified chain stores. The circulars also emphasized the size of the chains under contract, their annual volume, and the percentage of the retail market that they controlled.
Petitioners entered into contracts for the purchase of broadcasting time, and, although the contracts contained no mention of the in-store promotions and specifically negatived any agreement other than that contained in the written contract,*fn5 they received the benefits of the plans as specifically set forth in the brochures. In fact, in many instances, after notification of the proposed date of a promotion, petitioners contacted the designated chain store for the purpose of arranging the details of the in-store promotional displays. Without exception, those of petitioners' customers who received radio or television advertising time, pursuant to the contracts described herein, were grocery chains in competition in the resale of petitioners' products with other grocery chains and independent customers of petitioners in the same market areas. The latter customers did not receive nor were they offered broadcasting time or anything of value in lieu thereof.
Petitioners deny that they paid anything to or contracted with the broadcasting companies "for the benefit of" a customer within the meaning of Section 2(d) of the Clayton Act. Further, they deny having paid for or supported the furnishing of broadcasting time to the chains and, lastly, deny having adopted or having become a party to the broadcasting companies' sales promotions. It is readily apparent that the arguments overlap and that their determination depends largely upon the Commission's interpretation of Section 2(d) and the stipulated facts.
It is appropriate to keep in mind that administrative interpretations of statutes by agencies charged by Congress with their execution are recognized as having peculiar persuasiveness and weight. National Labor Relations Board v. Hearst Publications, Inc ., 322 U.S. 111 (1944); American Airlines, Inc. v. Civil Aeronautics Board, 178 F.2d 903 (C.A. 7, 1949); Miller Hatcheries, Inc. v. Boyer, 131 F.2d 283 (C.A. 8, 1942). As we recently stated in St. Marys Sewer Pipe Co. v. Director of the U.S. Bureau of Mines, 262 F.2d 378, 381 (C.A. 3, 1959), "Ordinarily, such constructions should be accepted by the courts unless they could not be reasonably or soundly made under the terms of the statute." The agency's interpretation, however, must be consistent with the purposes of the statute for, as Justice Frankfurter states in the recent case of United States v. Shirey, - U.S. - (decided April 20, 1959),
"Statutes, including penal enactments are not inert exercises in literary composition. They are instruments of government, and in construing them 'the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down.' United States v. Whitridge, 197 U.S. 135, 143. This is so because the purpose of an enactment is embedded in its words even though it is not always pedantically expressed in words. See United States v. Wurzbach, 280 U.S. 396, 399. Statutory meaning, it is to be remembered, is more to be felt than demonstrated, see United States v. Johnson, 221 U.S. 488, 496, or, as Judge Learned Hand has somewhere put it, the art of interpretation is 'the proliferation of purpose.'"
The purpose of the section here involved was to eliminate all discriminations under the guise of payments for advertising or promotional services, and Congress employed language that would cover any evasive methods. This is made clear by the statement of Congressman Utterback, chairman of the House conferees, in explaining Sections 2(d) and (e), as follows:
"The existing evil at which this part of the bill is aimed is, of course, the grant of discriminations under the guise of payments for advertising and promotional services which, whether or not the services are actually rendered as agreed, results in an advantage to the customer so favored as compared with others who have to bear the cost of such services themselves. The prohibitions of the bill, however, are made intentionally broader than this one sphere, in order to prevent evasion in resort to others by which the same purpose might be accomplished, and it prohibits payment for such services or facilities, whether furnished 'in connection with the processing, handling, sale, or offering for sale' of the products concerned." 80 Cong. Rec. 9418.
Petitioners' argument when analyzed and stripped to its essentials is basically a plea for reliance upon technical rules of contract law. It asserts, in effect, that since it was not a party to the contracts between the broadcasting companies and the chain stores and that since they preceded its contracts with the broadcasting companies, there is nothing illegal or violative of Section 2(d) in the transactions. On the other hand the Commission refuses to wear blinders and insists that the series of contracts be viewed as a whole. Substance is lent to the Commission's analysis by the presence in this case of a number of brochures or circulars which were utilized by the broadcasting companies. Although it is true that the petitioners' contracts with the broadcasting companies contained no mention of the in-store promotions, they were prominently mentioned in the brochures. These promotions were not only held out as inducements for the purchase of broadcasting time by the petitioners, but were sought and utilized by them.
The petitioners' position is bottomed on the assumption that in deciding whether a violation of the statute has occurred the Commission must restrict itself to an assessment of the consequences which flow from a written contract by the application of formal principles which a court would be required to apply in an action between the contracting parties. If, however, we keep in focus the real question involved, that is, whether the petitioners have made payments to someone which actually are of benefit to their customers and not whether they have bound themselves to do so by a legally enforceable contract, it is readily apparent that petitioners' position is untenable. Certainly, the legal effect of the contracts involved may be relevant to the resolution of the real issue before the Commission, but it does not follow that the Commission must give to those contracts the effect for which the parties to them contend nor that it cannot view them in the setting of all the other evidence relevant to the issue before the Commission.
Petitioners contend here as they did before the Commission that they did not pay or contract to pay to any third person anything of value for the benefit of a customer. In support of this position, petitioners assert that a payment to or contract with a third person is not made for the benefit of a customer within the meaning of Section 2(d) unless the seller makes it with the intention of benefiting the customer or has reason to know that some direct benefit to the customer will proximately result therefrom. No authority for the former proposition is cited, and in fact it conflicts with the statement of counsel for the petitioners, Cyrus Austin, in his monograph entitled "Price Discrimination and Related Problems Under the Robinson-Patman Act," revised edition, 1953, wherein it is stated at page 116:
"It is no defense for a seller charged with a violation of either of these sections §§ 2(d) and 2(e) to show that he furnished or paid for a service solely in his own interest and not pursuant to any prior understanding with the purchaser. These sections prohibit discrimination in merchandising allowances or services irrespective of whether the making of the payment or furnishing of the service was a term or condition of sale, or amounted to an indirect price discrimination."
In accord, State Wholesale Grocers v. The Great Atlantic & Pacific Tea Co ., 258 F.2d 831, 837 (C.A. 7, 1958), cert. denied, sub nom. General Foods Corp. v. State Wholesale Grocers, 358 U.S. 947 (1959). This section of the Act does not concern itself with motive or intention. It is only concerned with the consequences which flow from an act. If those consequences eventuate, the act from which they result is forbidden. The Commission, however, went further than required and found that "the responsible officials of Respondent petitioners knew, or should have known, when they entered into the plan presented to Respondent by the broadcasting company, that Respondent, in adopting such plan, would be supplying the consideration which would constitute compensation for the benefits to be received by a few favored customers, to the prejudice of their competitors." This finding is amply supported by the record.
A substantial portion of petitioners' argument is directed to refuting the Commission's finding that they were the "sole financial support" of the promotional plan. Reliance is placed upon one case - State Wholesale Grocers v. The Great Atlantic & Pacific Tea Co ., 154 F.Supp. 471 (N.D. Ill. 1957), affirmed in part and reversed in part, 258 F.2d 831 (C.A. 7, 1958), cert. denied sub nom. General Foods Corp. v. State Wholesale Grocers, 358 U.S. 947 (1959). that case A&P and three grocery product manufacturers were charged with violation of Sections 2(d) and 2(e) by purchasing substantial advertising in Woman's Day magazine, a wholly-owned subsidiary of A&P.The court of appeals affirmed the dismissal of the 2(e) charge but found that the payments for advertising of defendants' products in Woman's Day violated Section 2(d). The rationale underlying the dismissal in that case is founded on the conclusion that the payments for advertising could not be held to represent a furnishing of a service to A&P. In addition to the obvious factual differences between the two cases, it is worthy of note that the court failed to cite or distinguish the line of cases beginning with Herbert v. The Shanley Co ., 242 U.S. 591 (1917), where Justice Holmes held that a single payment may indeed cover the cost of more than one object. Also see Pittsburgh Athletic Co. v. KQV Broadcasting Co ., 24 F.Supp. 490 (W.D. Pa., 1938); M. Witmark & Sons v. L. Bamberger & Co ., 291 Fed. 776 (D.C.N.J., 1923). The broadcasting companies are not eleemosynary institutions and the Commission could well find from the record that the grant of "free" broadcasting time*fn6 to the chain stores was part of the total transaction for which the petitioners paid. The fact that the charge for the whole transaction was attributed to a particular item, to wit, petitioners' advertising time, is not determinative. The Commission's conclusion that the payments made by the petitioners to the broadcasting companies inured to the benefit not only of petitioners, but also of the favored chains as compensation or in consideration for the in-store promotions afforded petitioners' products has warrant in the record and a reasonable basis in the law, and this court must accept it. National Labor Relations Board v. Hearst Publications, 322 U.S. 111 (1944).
Petitioners' last objection relates to the "sweeping" nature of the cease and desist orders issued by the Commission. Clearly, the orders in the instant cases go no further than that issued against the Ruberoid Company and specifically approved by the Supreme Court in Federal Trade Commission v. Ruberoid Co ., 343 U.S. 470 (1952). Also see Moog Industries v. Federal Trade Commission, 355 U.S. 411 (1958), affirming Moog Industries v. Federal Trade Commission, 238 F.2d 43 (C.A. 8, 1956). The fact that these cases involved orders issued in the language of Section 2(a) of the amended Clayton Act should give us little pause, for Section 2(d) is much narrower in scope and therefore orders framed in its language would be well within the permissible ambit of the Commission's discretion.
The orders of the Commission will be affirmed.
STEEL, D. J., dissenting: Had petitioner*fn1 paid for the broadcasting time of the chains, either directly by payments to the chains, or indirectly by payments to the broadcasting companies independently of the purchase by petitioner of its own broadcast time, the payments clearly would have been for the "benefit" of the chains within the meaning of § 2(d). The petitioner did not do either of these things. But the Commission and a majority of the court hold that an identical significance must be attributed to the payments which petitioner made to the broadcasting companies in purchasing air time for itself.
A violation of § 2(d) of the Clayton Act entails, among other things, the following elements: (1) a discriminatory payment by a vendor for the benefit of a customer, (2) in consideration for services or facilities furnished by the customer to the vendor in connection with the sale of a commodity of the vendor. Without both elements of benefit there can be no § 2(d) violation. The finding of the Commission that the in-store promotions offered by the broadcasting companies induced petitioner to enter into its contracts with the broadcasting companies implies that petitioner anticipated the receipt of a benefit by way of in-store promotions. This finding relates solely to the second element of a § 2(d) offense. The present point of inquiry is directed to the existence of the first element of a § 2(d) violation, viz., whether petitioner made a payment for the benefit of the chains.
In determining whether the petitioner's payments to the broadcasting companies were for the "benefit" of the chains within the meaning of § 2(d), it is easy to become bogged down in a semantic morass. The word "benefit" has various meanings depending upon the context of its use. In a sense, every dollar which the broadcasting companies took into their coffers during the time when air time was being granted to the chains was for the benefit of the chains regardless of the source of the income. Revenue was the life blood of the broadcasting companies upon which their very existence depended and without which the chains would have had no air media over which to advertise. The Clayton Act, of course, is not concerned with this type of benefit. It is aimed at discriminatory advantages which a vendor by virtue of his own conduct confers upon a vendee, or, under certain sections of the Act, reciprocal advantages which a vendor and vendee confer upon each other by virtue of their own respective acts. Whether petitioner's payments to the broadcasting companies were for the benefit of the chains must be gauged from this standpoint.
The contracts between the broadcasting companies and the chains under which the chains received air time antedated the contracts between the broadcasting companies and petitioner. The execution of the agreements by petitioner was not a contingency upon which the right of the chains to air time depended. That right had theretofore accrued; it was fixed, immediate and unqualified. Nothing was required by petitioner or anyone else to bring into fruition the right of the chains to air time save the performance by the broadcasting companies of their contracts with the chains. Petitioner was in no way responsible for this. So that on the face of the matter, the advertising which the chains become entitled to receive the moment they put pen to paper with the broadcasting companies was not the result of any payment by petitioner.
The Commission and a majority of the Court assert, however, that the separate elements of the sales promotional plan initiated by the broadcasting companies, i.e., the two sets of contracts, the brochures of solicitation, and the designation of products for in-store promotions, cannot properly be given fragmentary evaluation, but that each must be treated as an integral part of the whole. This approach would be understandable if the broadcasting companies were defendants and their activities were charged to be violative of the law. The broadcasting companies stand at the hub of the transaction. It was their correlating activities which gave to the plan whatever cohesiveness and interdependence was inherent in it. It was their efforts which were responsible for obtaining the in-store sales promotional rights from the chains. It was they who chose the chains from which petitioner might make its selection for in-store promotions. All this was done by the broadcasting companies without any prior commitment, authorization, agreement, or understanding with petitioner. This is a stipulated fact.So that no basis exists for the Commission's finding that the broadcasting companies occupied an "agency" relationship to petitioner through which petitioner in effect channeled payments to the chains in the modified form of broadcasting time.
The conclusion of the Commission that the actions of petitioner were of discriminatory benefit to the chains within § 2(d) intentment is not aided by theorizing that the broadcasting companies would not have renewed their contracts with the chains unless the sales promotion plan had been sufficiently supported by the totality of suppliers, including petitioner, who purchased broadcast time.*fn2 This approach makes petitioner's violation of the Act depend not only upon the contemporaneous actions of other suppliers but also upon the subsequent actions of the broadcasting companies in renewing their contracts with the chains when, so far as the record reveals, neither the suppliers nor the broadcasting companies were subject to control by petitioner. Whatever benefit the chains may have derived from this combination of events, is from petitioner's standpoint, too vicarious and casually remote to enmesh petitioner in the Act.
In the light of the peripheral relationship which petitioner bore to the plan, the statement of the Commission that petitioner became a "party" to and "adopted" the plan is meaningless. All petitioner did was to accept what the broadcasting companies offered. Yet, under the Commission's concept of "benefit", petitioner would be culpable under the Clayton Act even if it had not designated any of its products for promotion by the chains. For under the Commission's view, it was petitioner's payments to the broadcasting companies which constituted payment for the air time allotted to the chains. The amount of petitioner's payments did not depend upon whether it designated products for in-store promotions. Petitioner's payments were the same in either case. The failure of petitioner to designate products for in-store displays would have exculpated petitioner from liability under § 2(d), for the furnishing of services or facilities by a customer is a sine qua non to a § 2(d) violation.*fn3 However, without the designation of products for in-store promotion, petitioner's payments to the broadcasting companies, under the Commission's reasoning, would clearly have rendered petitioner liable under § 2(e)*fn4 for furnishing advertising discriminately to the chains, and under § 2(a)*fn5 for indirect price discrimination in favor of the chains if the effect had been monopolistic or destructive of competition. For unlike § 2(d) which is aimed at reciprocal vendor-vendee benefits, §§ 2(a) and 2(e) are directed solely against unilateral discriminations by a vendor.
If the Commission's conception of "benefit" is adhered to, the only way in which the petitioner could have escaped the toils of the Clayton Act during the period when the broadcasting companies were offering in-store promotions would have been either to forego completely advertising over the air through the broadcasting companies offering the promotions, or to buy air time for all of petitioner's customers on a basis proportionately equal to that on which the broadcasting companies had allotted air time to the chains. Petitioner would have found itself in this unhappy plight solely because of the contracts which the broadcasting companies made with the chains for which the petitioner was in no way responsible.
Carried to its logical limit, the decision of the Commission means that if a common supplier of a vendor and vendee, without pre-arrangement with the vendor, grants the vendee terms more favorable than the supplier has granted other customers of the vendor, the vendor must stop dealing with the supplier, give proportionately equal "benefits" to all of its other customers, or be adjudged guilty of Clayton Act discrimination. This result would follow regardless of how vital the commodities or services furnished by the supplier might be to the vendor. A construction of § 2(d) which carries within itself the seeds of consequences so harsh, unreasonable and oppressive should not be reached unless required by a clear Congressional mandate. This I am unable to discern.
The foregoing views are not at variance with the cases which the majority of the Court has cited. Herbert v. Shanley Co ., 242 U.S. 591 (1917), and M. Witmark & Sons v. L. Bamberger & Co ., 291 Fed. 776 (D.N.J. 1923) involved constructions of the Copyright Act. Pittsburgh Athletic Co. v. KQV Broadcasting Co ., 24 F.Supp. 490 (W.D. Pa. 1938) was concerned with principles of unfair competition and the Communication Act of 1934 in their relationship to interference with a contractual right to broadcast baseball games. These decisions are scarcely pertinent to a determination whether petitioner's payments to the broadcasting companies were a "benefit" to the chains within the purview of the Clayton Act. To the extent that State Wholesale Grocers v. Great Atlantic & Pacific Tea Company, 258 F.2d 831 (7th Cir. 1958) may have application, it tends to refute rather than to support the decision of the Commission.
It may be that the sales promotional plan of the broadcasting companies is economically undesirable and that the broadcasting companies which sponsored it are beyond the reach of the present law.But this is no reason for making a whipping boy out of petitioner by affirming the far-fetched conception of Clayton Act "benefit" which the Commission has adopted.
Judicial responsibility requires that a Court which sits in review of an administrative order shall interpret the applicable statute and hold unlawful and set aside any agency action not in accordance with law, 5 U.S.C. § 1009(e). In the fulfillment of that responsibility, I would set aside the order of the Commission in each case and direct a dismissal of the complaints.
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Metal Neck Strap
Sturdy metal neck strap for the Digital Cameras and Voice Recorders. Olympus logo in blue at end where it loops to camera. Approximately 16" in length or 32" loop. Item #200496-410
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Love this camera strap!
I've used and worn this camera strap on my Olympus Stylus 800 since I bought it! I wished I had something like this when my first (non-waterproof) Olympus went swimming with me unintentionally when I fell in a tidal pool. My camera conveniently hangs my camera around my neck making it easily accessible when I am out hiking or at any event. I have a severe nickel allergy, and this strap does not bother my neck. If it will work with my new Olympus, I plan to order another one.Read More
Digital Camera Metal Neck Straop
I have been using the metal neck strap for a digital camera the past several years. It has saved this camera from falling when joggling items you carry when traveling or at events. (1) The camera when its connected hits me just perfect. (2) Be careful when you bend over as it could catch on something but this has only happened once. Very sturdy metal and it would be difficult to break.


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This none home is located at 3871 S Main St in Lobelville. 1581341 was built in 1943 and has 2 bedrooms3871 S Main St, Lobelville - MLS 1581341 Close
Cottage style residential property for sale in Lobelville, TN at 3871 S Main St. This 2 bedroom residential property is priced at $19/sqft.
Cottage style home on a level lot close to town of Lobelville.Has a detached garage with storage attached and a lean too. Also has a concrete block storage building on back of garage.Some renovation work started.House is selling as is.
Listing information last updated on December 9th, 2016 at 1:54am CST.
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I would just like you guys to know how very pleased I have been with the quality of your products and your speedy service. I have been buying a few things for resale in our little store and it is nice to know that when I promise it will be here, it will be here. Thanks again for job well done!
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Banana Nut Brownies
The Crazy Moore Family: banana bread brownies. these are unbelievable
Banana Nut Brownies with Brown Butter Frosting Recipe--because my husband is awesome.
Banana Cake with Cream Cheese Frosting is irresistible with its dense banana cake and sweet frosting. - Bake or Break
Banana Bread Brownies Recipe... Something sweet! The perfect way to use those overly ripe bananas you've been holding onto!
Banana Bread Cookies ( just leave out the chocolate)
dailydelicious: Banana Nut Brownies: One sauce pan, one baking pan and many happiness!
This recipe has saved me time and money. Super easy to pull from the freezer the night before (or throw in a lunchbox in the morning).
Healthy 3 Ingredient Flourless Brownies - No butter, eggs or oil in this quick and easy recipe which is ready in minutes- Rich and fudgy yet so healthy too! {vegan, gluten free, paleo, dairy free}
These deliciously easy BANANA CASHEW CHOCOLATE CHIP COOKIES are a great way to use up those overripe bananas. They are soft, moist and slightly spicy. From cakewhiz.com
Caramel Banana Nut Cake | from willcookforsmiles.com #sweet #cake #dessert


text:
Manchester United and Ecuador Midfielder Antonia Valencia is nearing a return to first team action.
The attacking winger has been out of action since September after breaking his ankle in action for United.
Manchester United manager Sir Alex Ferguson has stated that Valencia is on course to make his comeback, and should be back in action soon for the Premiership leaders.
"Antonio has done a full week with the reserves doing non-contact work," stated Ferguson.
"Everything is right about him. We would hope he would get into contact work with the reserves and join us by the end of next week."
Valencia joined Manchester United in the summer of 2009 when Ferguson was attempting to fill void's left by Carlos Tevez and Christiano Ronaldo.
Ferguson signed Valencia from Wigan Athletic for £16 million, and he looked good value for money before his injury.
Valencia was a regular goal scorer for United, with his old fashioned wing play making him an instant hero at Old Trafford.
United hope to have Valencia ready for his first team return in early March.


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Rainbow Waves
Colorful background vector graphics with a wave of rainbow colored curves moving across the design. The design is lit by subtle sunburst rays and a phantom mirrored color wave is on the opposite side. Download these free sixties, seventies and surf inspired vector graphics for your retro banners.
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first edition
1964 · New York
by Hemingway, Ernest
New York: Charles Scribner's Sons, 1964. First edition with "A-3.64[H]" present on copyright page. Fine in a near fine price-clipped dust jacket with a few small closed tears. Ernest Hemingway's classic memoir of Paris in the 1920s, A Moveable Feast remains one of his most enduring works. Hemingway beautifully captures the fragile magic of a special time and place, and he manages to be nostalgic without hitting any false notes of sentimentality. (Inventory #: 19084)


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Discussion in 'iOS Themes and Customization' started by consume1, Feb 20, 2008.
I really liked this icon but it was a shame it didn't have gloss so here it is... hope you like it :
its kinda bright, but nice job.
What about this one? :
Separate names with a comma.


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It was the dead thing they found hanging from a tree that changed the trip beyond recognition.
When four old University friends set off into the Scandinavian wilderness of the Arctic Circle, they aim to briefly escape the problems of their lives and reconnect. But when Luke, the only man still single and living a precarious existence, finds he has little left in common with his well-heeled friends, tensions rise.
A shortcut meant to ease their hike turns into a nightmare scenario that could cost them their lives. Lost, hungry, and surrounded by forest untouched for millennia, things couldn't possibly get any worse.
But then they stumble across an old habitation. Ancient artefacts decorate the walls, and there are bones scattered upon the floors. The residue of old rites for something that still exists in the forest. Something responsible for the bestial presence that follows their every step. And as the four friends stagger in the direction of salvation, they learn that death doesn't come easy among these ancient trees.
©2011 Adam Nevill (P)2011 Macmillan Digital Audio
"11 hours too long?"
I so wanted to like this after having received a recommendation Adam Nevill is the UK's Stephen King.
I felt the characters missed enough roundness. But most important, the author didn't play enough with the blurring between nightmare and its opposite. I wanted more ambiguity, if you see what I mean. Or maybe the opposite: blatant 'magical realism' 'a la Murakami.
Sorry: I wanted the rather inevitable ending to happen sooner than later.
"Good story and great narrator"
The pace is good, it keeps you engaged and wanting to find out what is going to happen next.
It's genuinely creepy, the first half of the book in particular. The story was unusual and interesting, the characters were engaging and you never knew quite what was going to happen until the very end.
I really loved the narrator! A good narrator can make the experience of listening to an audiobook so much better.
"This had me scared of the dark...."
I bought this audio book as it was on special offer for Halloween along with a couple of other titles. I took a punt on this one after reading some glowing reviews on Amazon and was in no way disappointed.
I stupidly started to listen to this at night, on Halloween and after an hour and a half of the story I was ridged with fear in my bed, doing everything in my power to pluck up the courage to get up and use the toilet! I eventually did and vowed not to listen to the rest of it in the dark but I had to know what happened. Over the next 48 hours devoured the rest and low and behold found myself in bed ridged with fear AGAIN unable to switch the damd Ipod off for the last hour and a half!
A perfect choice, Peter Thorpe is fast becoming one of my favourite narrators, he brings every story he reads to life brilliantly and is the perfect choice for this relentless scare fest.
This is some wonderfully creepy and intense stuff that I'd highly recommend this if you enjoy a good scare.
"Chilling stuff"
On the surface, every horror cliche rears its head in this tale; protagonists lost in the woods, the lonely isolated house, ancient burial mounds and suggestions of a sinister and macabre history. From Hp Lovecraft to the Texas Chainsaw Massacre, the horror genre has always been full to the brim of stories that tread a similar path. The Ritual however, stands head and shoulders above its peers. The storytelling is impeccable and the narration both spirited and unpretentious. After half an hour I was gripped and almost breathless. Listening to this on headphones in the dead of night was a genuinely nerve shredding experience, but in the best possible way, Highly recommended!
"unrelenting terror"
Just finished Adam Nevill's amazing The Ritual. The plot is quite thin, but that's not a fault – it's supposed to be about the people involved in the story. Indeed, it's testament to Adam's skill that he carries our interest across 400 pages in what is, essentially, a two-act tale. It's hard to talk about what happens without giving stuff away, but I'll try my best.
The first half of the book is a hunt – an often brutal, suspenseful trail around a deep, dark wood full of seriously weird stuff: ancient churches, broken up houses, bone pits – you name it, it's here. This steady accumulation of unsavoury details stacks up in the reader's mind until a menacing air of doom and terror starts building.
Then, in act two, where the focus shifts from environmental terror to a very human one, it just gets worse and worse. The first appearance of the new incoming characters sets the tone for a relentless sequence of nightmarish set-pieces the equal of any snuff-like horror movie (Texas Chainsaw, etc). And this mounts to a dreamlike conclusion in which the reader is left so disoriented that s/he is unable to decide what is real or otherwise. Very powerful.
The ending of the book – the dreamlike last few pages – contains some great writing, a fitting end to a sterling example of modern horror. I loved it. I hate effusive reviews which lack critical edge, but what can I say? Read this book.
"Oh My. No stroll or camp will be the same."
From it's comencement you may think, just another story about four lads of on a jolly, get lost and bitten, or eaten or abducted.
No just a terifing story. I found myself re-tracing the story, how a bad situation can only get EVEN WORSE! No camping with the kids this summer.Or forestry walks . Poor boys etc. No more Abba or A-Ah for me
"The Ritual"
I have had this story in my library for some time now,when I first tried to listen to this story I found it so slow and nothing was happening so I gave up,then I recently went back to it and I am so glad I did it turns out to be a very good story,these four guys just out for a camping holiday and decided to take a shortcut through the woods,fatal mistake they get lost and cannot escape then the nightmare begins when the story picks up its really gripping.
"Spine chilling"
Getting lost in the woods with a group of friends has never been so scary. Creepy cabins, ritualistic sacrifices. A hiking trip gone badly wrong. Extremely well read and perfect to listen to in bed.
"Not just a slasherfest, but a great horror novel"
Though I agree with the previous reviewer that this book seemed at times a bit too long, I thoroughly enjoyed it. The book is in two parts, and the second part drags a bit but introduces characters and new twists that I did not see coming, at all. The character's plight is atrocious, yet there are moments of real humanity and warmth that are heart-wrenching. I had never read or heard Adam Nevill's books before and find him a truly gifted author. This is not just a slasher-fest, it has depth and meaning. The narrator does a very very good job, his voice is, at times, mesmerizing. Recommended
"Started off well"
The narration was good, the accents were smooth enough that they didn't distract from the story so would certainly listen to David again. As for Adam Nevill, I would have to give it a few years for him to mature I think.
Initially when they first come across the house I felt the scene was genuinely atmospheric and creepy.
The book starts off well, the characters are reasonably well defined and the scene descriptions are good. However, the story completely changes half way through and you are left with a cross between monsters and sociopaths and frankly after all the trouble the sociopaths cause I was devasted when their fates were quick! It was almost like Neville started the book and then thought that he couldnt do a monster story justice and would take a page out of Lionel Striver's "We need to talk about Kevin". Was quite disappointed with this really.
"Such high expectations!"
I purchased this book based on reviews and the narrator - David Thorpe, he also narrated A Company of Liars by Karen Maitland one of my favourite books on Audible.
The four friends become lost in this great forest the storey is captivating and gripping. The tensions between the men brew as they are stalked by something unseen. As we are led into the second half it is all down hill from there on. David Thorpe's Scandinavian accent is truly horrific, and easily the most frightening thing about this book. It was an ordeal to finish the book but I persevered and feel drained as a result. I do not wish to spoil the plot but he drones on endlessly and the new characters that are introduced seem one dimensional and flat. I was left disappointed with an anti-climatic ending as I hoped at least this would be the saving grace.
"a bit too long"
The narration was very good and the story was in parts unnerving but it would have benefited from some ruthless editing. A lot of the story involves an internal dialogue of the main character. His trials and tribulations are so dreadful that you end up just wanting it to be over. A writer of thrillers wants to create this feeling but it's a fine line between relentless fear and dislocation from the story. Having said this the characters are well drawn and the story is compelling but it could have been better in a shorter version
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Magic hat and pigeons
Creative Director / Copywriter: Luc Du Sault
Art Director: Vincent Bernard
Account Managers: Sandie Lafleur, Eve Boucher
Production Company: David Poulin, Charles Burroughs, Dominik Beaulieu / Nova Film
Production: Quatro Design / Enseignes Otis Image In
The trick? There's birdseed behind the billboard which lures the doves. This is not the first time that this 'trick' is used in outdoor advertising. But it's by far the best twist that anyone gave to it, And that's what counts. This is great work and we'll probably see it back in Cannes.
Bravo. Simple. But not quite brilliant.
The Jobless Writer
Will Think for Salary
same trick here :
Loses two stars because the hat is too small, but otherwise brilliant.
veo que el recurso de las palomas en vía pública se está usando bastante
I really like it. Ok so the concept is borrowed, but well executed, on a clean backdrop of brick wall, with clean white space/less mess to show. Maybe they used bird seed...but the trick is to get them to fly off as the seeds would need refill too soon....perhaps a fan that kicks in after an interval? I agree the hat should have been 2x the size. You could say to place a wand along it diagonally...but not so needed :-) Rather well done.
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