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July 3, 2008
Appeal from the Superior Court of the District of Columbia (DEL-2343-05) (Hon. Jerry S. Byrd, Trial Judge).
Argued June 3, 2008
Before RUIZ and KRAMER, Associate Judges, and FARRELL, Associate Judge, Retired.*fn1
This appeal asks us to decide whether police responding to a 911 call that reported armed threats had enough information to justify stopping a group of juveniles including appellant, one of whom - but without knowing which - they suspected of making the threats. The trial court found that the group matched the description given the police by the complainant, and thus denied a motion to suppress her ensuing show-up identification of appellant as the person who had threatened her. Partly on the basis of that identification, appellant was adjudicated delinquent.
Appellant argues, principally, that the trial court's finding of a sufficient link between the group that accosted the complainant and the group seized was erroneous, because no record evidence supported an inference that the police had received information particularized even as to the group - much less appellant - enough to justify the stop under Terry v. Ohio, 392 U.S. 1 (1968). We agree with appellant and reverse the adjudication of delinquency. What information precisely the complainant conveyed to the police dispatcher in her 911 call is unknown, because the recorded call (though seemingly in the possession of the parties at the hearing) was not introduced into evidence.*fn2 As the government recognized at oral argument, the record of what the police learned from the complainant is thin, and in our view it is too insubstantial to demonstrate the reasonable, articulable suspicion required by Terry.
The complainant, Yuliis Galery, was seated on her parents' front porch with her cat in the 1600 block of Monroe Street, N.E., at about 9:15 p.m. when a group of six or seven black male juveniles approached her from down the street. One, who had been banging on street signs with a stick, stepped onto the first of a set of steps leading up to Galery's front yard and held the stick raised as if to strike her cat. When Galery said, "You'd better not hit my cat," the individual - whom she later identified as appellant, K.P. - replied, "I got a hammer right here. What do you want to do[?]," and "'F' you, stupid 'B,' . . . I'll shoot you and your cat." Galery understood "hammer" to mean a gun since she had heard it used as a "street term.'" K.P. also lifted his shirt as he spoke the words, although Galery could not tell whether there was a weapon in his waist or only a belt buckle.
When the group left, Galery telephoned the police and, as she testified, told them "what happened." Minutes later police arrived at her house and took her to the intersection of Newton Street and 12th Street, N.E., where other police had stopped and frisked a group of juveniles. From this group Galery identified K.P. as the person who had made the statements to her.
As pointed out, the tape of Galery's phone call to the police was not offered into evidence. Questioning her at the suppression hearing with apparent reference to it, however, K.P.'s lawyer elicited that Galery had first told the police that the group, on leaving her house, had turned either north (toward Newton Street) or south (toward Lawrence Street) before moving west toward 12th Street, N.E., "the most known, busy street . . . in the area" (in her words). Galery further explained that, while still on the phone with the police, she left her porch to "check[] to see which way [the group had] walked," and when she saw them "cutting up toward Newton Street" she mentioned this fact to a police officer (Grimes) who had arrived at her house in the meantime. Grimes told her that the police had "stopped someone and they were gonna take me [to Newton and 12th Streets]" to see if she could identify the person who threatened her.*fn3 Galery gave no additional testimony, at the suppression hearing or trial, about the contents of her phone call to the police. Nor did she testify that she had described the group or its members to the police, other than possibly as a "group of kids."
MPD Officer Carey was the lone police witness at the hearing. Part of a robbery detail working in the area, Carey "responded to the 1200 block of Newton Street, N.E." at about 10:00 p.m. that night because of a radio report that "a juvenile that supposedly had a gun . . . was walking in a group of juveniles." The 12th Street area "was . . . known . . . for problems in reference to robberies," and when Carey and his team arrived they saw "approximately 5 to 6 juveniles crossing . . . from the south side to the north side of the 1200 block of Newton Street . . . matching the description of the individuals . . . given over the secure channel that the robbery task force operates on." Asked, however, if he "recall[ed] what that description was that was given over the secure channel," Carey answered: "Not at this time." He offered no additional explanation of the basis for the stop.
Under Terry, supra, "[t]he Fourth Amendment permits a police officer to stop an individual for investigatory purposes so long as the officer possesses a reasonable suspicion supported by specific and articulable facts that the individual is involved in criminal activity." Milline v. United States, 856 A.2d 616, 619 (D.C. 2004) (citation and internal quotation marks omitted). In general, "to pass muster under Terry . . . the articulable suspicion must be 'particularized as to the individual stopped.'" In re T.L.L., 729 A.2d 334, 340 (D.C. 1999) (quoting In re A.S., 614 A.2d 534, 537 (D.C. 1992)). The government concedes that the information communicated to the police by Ms. Galery did not provide particularized reason to stop K.P. From what the record reveals, she gave the police no description of K.P. or, indeed, any individual member of the group that would meet the particularity requirement. Officer Carey, for his part, could recall no "description of the individuals" that caused him to stop K.P. or any other individual on particularized suspicion that he was the person who had threatened Galery.
The government instead relies on a "narrowly circumscribed" exception to Terry's particularity standard recognized by the court in Williamson v. United States, 607 A.2d 471 (D.C. 1992), to argue that even though the police lacked articulable reason to suspect K.P. personally of the crime, they were justified in stopping the group of juveniles "either [as] participants in the [threats] or [as] witnesses to it who could provide material information about the event and the . . . identity of the [perpetrator]." Id. at 476 (emphasis in original). The government argues that the "exigent circumstances" required by the Williamson exception, id., are made out here by the report of a violent crime (threats with a gun) occurring minutes earlier and the risk that the perpetrator(s) would soon disperse. K.P. responds that no court decision cited by the government has allowed a "material witness" detention to justify the sequence of privacy invasions shown here: a stop, followed by a frisk of each group member, followed by a show-up procedure in which each member was brought, individually, up to the car in which Galery was seated and a searchlight focused on him. More basically, however, K.P. argues that the police lacked the necessary particularized suspicion that this group of juveniles had been the one from which an individual emerged to threaten Galery. Because we agree with the latter point, we have no occasion to consider whether the scope of the detention exceeded the limits of a permissible stop under Williamson.*fn4
The rule substantially controlling our decision here is that, "without more, conclusory testimony by police officers that a defendant matched an unknown description of the suspect is not a sufficient basis for a judge to determine that a stop was justified." Milline, 856 A.2d at 619 (footnote omitted); see also Sanders v. United States, 751 A.2d 952, 955 (D.C. 2000) ("A court may not simply rely on a police officer's conclusory assertions in deciding whether a search or seizure was justified"). The same rule perforce applies to the stop of a group of individuals. See Milline, 856 A.2d at 619 (appellant would be entitled to relief if he was correct that the trial court "could [not] assess the sufficiency of the description to justify a stop of anyone" in the group described (italics in original)); Cauthen v. United States, 592 A.2d 1021, 1023 (D.C. 1991) (holding that tip lacked specificity sufficient to justify stop of group suspected of selling drugs). Here, Officer Carey could not recall the information relayed to his team that caused him to believe that the group of juveniles "match[ed] the description" Galery had given to the police. See Milline, 856 A.2d at 619 (stop would have been improper "if we had nothing but the officers' testimony that Milline matched a now-forgotten description in [the radio] lookout"). And, as noted, neither the radio run (assuming it had been recorded) nor the tape of Galery's 911 call was put in evidence to explain what Carey meant by the "description."*fn5 See also Ellis v. United States, 941 A.2d 1042, 1047 (D.C. 2008) (noting government's concession that its "failure to elicit the details of the lookout description presented the trial court with the type of 'conclusory' testimony that Milline has indicated is not sufficient to sustain the government's burden in defending against a motion to suppress").
The government seeks support from Galery's testimony of what she told the police, including Officer Grimes when he arrived at her house soon after the threats. But her testimony adds little to the sum of information furnished to the trial court. It does not reveal how (or if) she described the person who had threatened her or whether she described any of his companions, and is skimpy even as to whether she told the dispatcher how many young people were in the group. See Br. for District of Columbia at 11 (conceding that "the victim did not testify as to the description she had given of the group"). In essence, the record shows only that she told the dispatcher "what happened," which no more sufficed to connect the group that accosted her and the juveniles stopped than did Carey's conclusory assertion that her description "matched" the people stopped.
The government vainly relies on the directions Galery gave the police about where the group had headed. The most the court learned in this regard is that she told the dispatcher that the group had walked either north or south from Monroe Street before turning west toward 12th Street, some four blocks away.*fn6 Without any other more specific identifying information, this left too much leeway for the police to stop any group of juveniles walking in that area of 12th Street - a street Galery herself knew to be "busy" at 10:00 in the evening. In Cauthen, supra, we held that a citizen report that three or four persons were selling drugs at a named intersection, but that gave "no physical description of the suspects by sex, race, size, clothing or any other distinguishing feature," furnished "no details which [police] could confirm fifteen minutes later with any reasonable expectation that appellant was one of the persons reported selling drugs." 592 A.2d at 1023, 1025. Although the time interval here was slightly more abbreviated, we likewise conclude that the police, on the information conveyed by Galery, had no reasonable expectation that the group they stopped - much less K.P. as an individual - had accosted Galery at her home more than four blocks away. The trial court erred in finding otherwise.
Thus, because the show-up identification of K.P. was the product of an unlawful seizure, it should have been suppressed. See In re T.L.L., 729 A.2d at 343. And, because we cannot say that admission of that identification was harmless beyond a reasonable doubt, see Chapman v. California, 386 U.S. 18 (1967), the adjudication of delinquency must be reversed. The government disputes this conclusion by arguing that Galery also made an in-court identification of K.P. at trial*fn7 and that, if the trial court on remand were to find that she had an "independent recollection of [her] initial encounter with [K.P.]," the judgment may be sustained, quoting United States v. Crews, 445 U.S. 463, 473 (1980). We rejected this no-prejudice argument in Ellis, supra, and do so here for the reasons stated there. See 941 A.2d at 1049-50.*fn8 As K.P. concedes, on the other hand, should the government seek to retry him, it may do so based on the in-court identification alone if - and only if - the trial court concludes "in advance of . . . trial . . . [that] the courtroom identification . . . was not a fruit of the earlier, constitutionally flawed identification[]." Id. at 1049 (quoting In re T.L.L., 729 A.2d at 343 (citing Crews)).
Reversed and remanded.
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Shortcut Sangria
Total Time
Prep 5 mins
Cook 0 mins
I found this in Sunset years ago and have made it often for parties. I mix it right it the serving pitcher so it's quick and easy. Use Torani vanilla syrup, or similar brand, the type used to flavor coffee, and a big 1.5 liter jug of the cheapest red wine you can find.
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A Shadow Falls
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Knot Atlas
The Knot Atlas is a website, an encyclopedia rather than atlas, dedicated to knot theory. It and its predecessor were created by mathematician Dror Bar-Natan, who maintains the current site with Scott Morrison. According to Schiller, the site contains, "beautiful illustrations and detailed information about knots," as does KnotPlot.com.[1] According to the site itself, it is a knot atlas (collection of maps), theory database, knowledge base, and "a home for some computer programs" (http://en.wikipedia.org/wiki/The_Knot_Atlas)
Keywords for this software
References in zbMATH (referenced in 38 articles )
Showing results 1 to 20 of 38.
- Armond, Cody; Cohen, Moshe: The graded count of quasi-trees is not a knot invariant (2016)
- Ernst, Claus; Montemayor, Anthony: Nullification numbers of knots with up to 10 crossings (2016)
- Garoufalidis, Stavros; Norin, Sergey; Vuong, Thao: Flag algebras and the stable coefficients of the Jones polynomial (2016)
- Kaestner, Aaron; Nelson, Sam; Selker, Leo: Parity biquandle invariants of virtual knots (2016)
- Nelson, Sam; Tamagawa, Sherilyn: Quotient quandles and the fundamental Latin Alexander quandle (2016)
- Brendel, Piotr; Dłotko, Paweł; Ellis, Graham; Juda, Mateusz; Mrozek, Marian: Computing fundamental groups from point clouds (2015)
- Duzhin, Sergei; Shkolnikov, Mikhail: A formula for the HOMFLY polynomial of rational links (2015)
- Garoufalidis, Stavros; Vuong, Thao: Alternating knots, planar graphs, and $q$-series (2015)
- Gu, Jie; Jockers, Hans: A note on colored HOMFLY polynomials for hyperbolic knots from WZW models (2015)
- Qazaqzeh, Khaled; Chbili, Nafaa: A new obstruction of quasialternating links (2015)
- Anokhina, A.S.; Morozov, A.A.: Cabling procedure for the colored HOMFLY polynomials (2014)
- Garoufalidis, Stavros: Recurrent sequences of polynomials in three-dimensional topology (2014)
- Kaestner, Aaron; Kauffman, Louis H.: Parity biquandle (2014)
- Lipshitz, Robert; Sarkar, Sucharit: A refinement of Rasmussen's $s$-invariant (2014)
- Qazaqzeh, Khaled; Al-Darabsah, Isam; Quraan, Aisheh: The signature of rational links (2014)
- Tao, Zhi-Xiong: On knot 2-adjacency (2014)
- Garoufalidis, Stavros; Koutschan, Christoph: Irreducibility of $q$-difference operators and the knot $7_4$ (2013)
- Garoufalidis, Stavros; Morton, Hugh; Vuong, Thao: The $\mathrmSL_3$ colored Jones polynomial of the trefoil (2013)
- Crans, Alissa S.; Nelson, Sam; Sarkar, Aparna: Enhancements of rack counting invariants via dynamical cocycles (2012)
- Elhamdadi, Mohamed; Nelson, Sam: $N$-degeneracy in rack homology and link invariants (2012)


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United States District Court, D. New Jersey, Camden Vicinage
September 17, 2014
JEFFREY A. BRIDGES, Plaintiff,v.MELISSA MORRIS, ET. AL., Defendants.
MEMORANDUM OPINION [Doc. No. 67]
JOEL SCHNEIDER, Magistrate Judge.
This matter is before the Court on the "Motion for Summary Judgment" [Doc. No. 67] filed by defendant Cellco Partnership d/b/a Verizon Wireless ("Verizon"). The Court received the response in opposition from plaintiff Jeffrey A. Bridges ("Bridges") [Doc. No. 79] which is joined by defendant State Farm Insurance ("State Farm") [Doc. No. 81].[1] Verizon has also submitted a Reply. [Doc. No. 82]. The Court exercises its discretion to decide Verizon's motion without oral argument. See Fed.R.Civ.P. 78; L. Civ. R. 78.1. For the reasons to be discussed, Verizon's motion is GRANTED.
The key facts germane to Verizon's motion are not in dispute. This action arises from an automobile accident on August 16, 2010, in which defendant Melissa Morris struck plaintiff's vehicle from behind on the New Jersey Turnpike. See Compl. ¶ 6. Defendant Morris was driving a vehicle owned by Verizon, her employer, but was not authorized to be operating the vehicle when the accident occurred. See Verizon's Statement of Uncontested Facts ¶ 22. At the time of the accident, Morris was an administrative assistant to Verizon Wireless' Networks Operations Director for the State of Georgia, Jim Blake. See Dep. of Jim Blake ("Blake Dep.") T5:13-6:17. As part of her job responsibilities out of her Alpharetta, Georgia office, Morris was a fleet coordinator for Verizon vehicles. See Dep. of Melissa Morris ("Morris Dep.") T6:19-25. In this role, Morris managed vehicle registrations and licensing, orders for new vehicles and periodically drove the Verizon vehicles to receive regular maintenance. Id . T6:23-7:11.
Of particular importance to this case is what steps a Verizon employee was required to take in order to sign out a "pool" or "pull" vehicle - a standby vehicle within the fleet that was not assigned to any particular employee. According to the record, first an employee must be placed on an "Approved List, " which required participation in an online tutorial, fulfillment of a defensive driving course, a valid driver's license, completion of an application which states that the employee has read the company's vehicle policies[2] and manager approval. Morris Dep. T32:6-33:20; Blake Dep. T10:8-17. Once placed on the approved list, an employee could sign out the vehicle with a third-party security officer in the fleet lot who controlled the keys and the security log. Morris Dep. T136:7-20. The security log contained a column for explaining the purpose of obtaining the vehicle. Id . T36:19-24. Morris testified that "some people didn't write anything" in this column and that sometimes she wrote "general" or left the space blank when signing out a vehicle. Id . T36:22-23, T147:24-148:1. Morris then presented these security logs to her supervisor but it is unclear whether these logs were reviewed and by whom. Id . T148:12-23.
On Friday, August 13, 2010, three days before the car accident involving plaintiff, Morris requested bereavement time from her supervisor, Jim Blake, to attend her grandmother's funeral in Connecticut. See Termination Form at 1. Though Morris originally requested to leave work at 3:30 p.m. that day, at 11:53 a.m. she emailed Blake to inform him that she had to leave for the airport at noon (7 minutes later) because her original flight was cancelled. See Email from Morris to Blake of Aug. 13, 2010.
At some point that day, Morris instead took a Verizon pool vehicle and drove it to Connecticut. Morris Dep. T110:16-111:5. Three days later, on Monday, August 16, 2010, Blake received a voicemail[3] from Morris indicating that she had taken a Verizon vehicle and had been involved in a car accident on the New Jersey Turnpike. Morris Dep. T121:11-122:1. Later, when Blake asked Morris why she did not fly to Connecticut as she previously represented, Morris stated that she did not have enough money for her flight and did not use her personal vehicle because her insurance was cancelled. See Termination Form at 1-2. As a result of this incident, Morris was terminated from her employment and Verizon additionally pursued a criminal complaint against Morris for theft by conversion. Morris Dep. T63:14-23.
In his second amended complaint, plaintiff alleges Verizon is liable under respondeat superior and negligent entrustment theories, and was negligent in the "control of the [Verizon] vehicle[s]." See Second Am. Compl. ¶¶ 16-18 [Doc. No. 42]. Verizon contends that it is not liable under a respondeat superior or negligent entrustment theory, and should not be held to owe a duty to third parties for an employee's use of a company vehicle outside the scope of employment. See generally Def.'s Reply. Br.
Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate where the court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any... demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal citations omitted). Summary judgment will not lie if the dispute about a material fact is "genuine, " that is, if the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The materiality of a fact turns on whether under the governing substantive law, a dispute over the fact might have an effect on the outcome of the suit. Id . The court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. See Startzell v. City of Philadelphia, 533 F.3d 183, 192 (3d Cir. 2008).
The moving party bears the initial burden of informing the court of the basis for its motion and demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the burden is met, the burden shifts to the non-moving party to "set forth specific facts showing that there [are].... genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. The party opposing summary judgment may not "rest upon mere allegation[s] or denials of his pleading, " but must set forth specific facts and present affirmative evidence demonstrating that there is a genuine issue for trial. Id. at 256-57.
Verizon asserts it is entitled to summary judgment because it is not liable under a respondeat superior theory, a negligent entrustment theory, or under a theory that Verizon had a "duty to properly oversee and control the use of its fleet vehicles and prevent the misuse of the same". Pl's Opp. Br. at 2. Each theory of liability is addressed in turn.[5]
Under the doctrine of respondeat superior, "an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment." Carter v. Reynolds, 175 N.J. 402, 408-09 (2003) (citing Lehmann v. Toys R' Us, Inc., 132 N.J. 587 (1993)). "To establish a master's liability for the acts of his servant, a plaintiff must prove (1) that a master-servant relationship existed and (2) that the tortious act of the servant occurred within the scope of that employment." Id . "Generally, an employer is not liable for harm caused by an employee in the use of a vehicle owned by the employer when the use is not within the employee's scope of employment." Pfender v. Torres, 336 N.J.Super. 379, 393 (App. Div. 2001) (citing Gilborges v. Wallace, 78 N.J. 342, 351 (1978)). "Liability for the employer is only appropriate if the vehicle is being used by the employee for the purpose of advancing the employer's business or interests, as distinguished from the private affairs of the [employee].'" Id.
Here, while Verizon acknowledges that a master-servant relationship existed between Verizon and Morris (Def.'s Br. at 15), plaintiff does not dispute that Morris was acting outside the course and scope of her employment when the accident occurred. See Pl.'s Opp. Br. at 16. Thus, no facts are in dispute and the respondeat superior claim fails as a matter of law. Therefore, summary judgment is granted as to this claim.
Next, the Court addresses whether Verizon is liable under a negligent entrustment theory. In relation to the negligent entrustment of vehicles, "[t]he owner of an automobile may be liable for injury from the operation of that car placed in the hands of one he knows or ought reasonably to know is incompetent to operate it so that the owner ought reasonably to anticipate that in its operation injury will be done to others." Mead v. Wiley M. E. Church, 4 N.J. 200, 206 (1950) (citation omitted); see also Huhn v. Estate of Altieri, C.A. No. 5515-05T1, 2008 WL 834177, at *3 (N.J.Super. Ct. A.D. Mar. 31, 2008) (same). There must be "actual knowledge or reasonable cause to believe that the operator is unqualified or incompetent." Baran v. Clouse Trucking, Inc., 225 N.J.Super. 230, 235 (App. Div. 1988).
The Court agrees with Verizon that there is no evidence in the record suggesting that Verizon knew or had reason to believe Morris was an unqualified or incompetent driver. See Def.'s Br. at 19. Plaintiff does not present any argument in their opposition brief arguing otherwise. Therefore, summary judgment is granted in favor of Verizon on this claim as well.
Last, plaintiff asserts a common law negligence claim that Verizon "had a duty to properly oversee and control the use of fleet vehicles and prevent the misuse of same by an administrative assistant such as Morris." Pl.'s Opp. Br. at 2. As will be discussed, the Court finds this is not a viable theory of liability under the facts presented herein.
In order to establish a claim for negligence under New Jersey law, a plaintiff must prove: (1) duty of care; (2) a breach of that duty; (3) proximate causation; and (4) injury. Weinberg v. Dinger, 106 N.J. 469, 484 (1987). Plaintiff asks the Court to impose a duty in favor of a third party on Verizon to ensure that Verizon's employees do not use its vehicles for unauthorized purposes. In this regard, plaintiff argues Verizon negligently oversaw its fleet of vehicles. Plaintiff contends that "it was common knowledge" that Morris would use pool vehicles for personal purposes including getting to and from work and picking up lunch. See Pl.'s Counter Statement of Facts IT 12-15. In support of this contention plaintiff relies on Morris' statement that she previously used a pool vehicle to drive to Connecticut. Id . ¶ 17. Plaintiff argues that Morris was generally exempted from the rules and regulations promulgated by Verizon regarding the use of pool vehicles for personal use including filling out the necessary paperwork, obtaining authorization and recording the number of miles driven. Id . ¶ 30, 38, 39.
In response, Verizon argues that it was not negligent. Verizon points to its written work vehicle policy which all employees were required to sign before using a work vehicle which prohibited unauthorized personal use of Verizon vehicles. Def.'s Br. at 21. This policy required employees to seek prior authorization to use a vehicle for personal use by filling out a form referred to as "Attachment D." Id .; see note 2, supra. Verizon further argues, with no dispute from plaintiff, that if Morris had authorization to use Verizon's vehicle for personal use, Verizon would not be liable under a respondeat superior theory. Therefore, Verizon argues, it is illogical to hold it responsible for unauthorized personal use. Id. at 21-22. Last, Verizon claims that even if a duty was breached, as a matter of law the harm to plaintiff was not foreseeable and liability should not be imposed. Id. at 22.
Although the parties argue whether or not Verizon was negligent, this issue is irrelevant to the Court's ruling. Giving plaintiff the benefit of the doubt as to the facts and inferences, as it must in this context, the Court finds that there is a question of fact whether Verizon was negligent. However, this finding is not determinative. If Verizon did not owe a duty to plaintiff then plaintiff has no cause of action against it, whether or not Verizon was negligent. As noted in Hill, 75 N.J. at 143, what the issue comes down to is whether there was a duty owed by Verizon to plaintiff. The Court finds that no such duty exists and, therefore, Verizon's motion will be granted.
In support of its contention that Verizon owed plaintiff a duty of care, plaintiff relies on Zinck v. Whelan, 120 N.J.Super. 432 (App. Div. 1972). In Zinck, the court considered whether leaving a key in the ignition of an unlocked automobile was the proximate cause of the plaintiff's injuries that were suffered as a result of a car accident involving the stolen vehicle. Reversing prior case law which held that a vehicle owner did not have a duty under the circumstances, the court found that fact questions remained to be decided by the jury and that the defendant was not absolved of liability as a matter of law. Id .; see also Hill v. Yaskin, 75 N.J. 139 (1977) (imposing a duty on the owner of vehicle that injured another when the vehicle was stolen after the owner left it in a high crime area with the key inside).
Plaintiff's argument that "[t]he case before this Honorable Court is no different from that of Zinck" is misplaced. Pl.'s Opp. Br. at 11. The rationale of Zinck focused on the court's finding that a "reasonably prudent motor car operator can today justly be held to an awareness of the gravamen of the foregoing data [regarding the car theft rates and the relation between car thefts and subsequent car accidents involving the stolen vehicle]." Zinck, 120 N.J.Super. at 448. The facts of this case are materially different from Zinck and Hill. Verizon did not leave its keys in the ignition parked in a high-crime area and Morris was not an anonymous thief on the street; instead, she was a trusted employee who ordinarily had the authority to use Verizon's vehicles. As stated in Hill, "the most common test of negligence [] is whether the consequences of the alleged wrongful act were reasonably to be foreseen as injurious to others coming within the range of such acts." 75 N.J. at 144. In contrast to Zinck, there is no evidence to suggest that if Verizon's vehicles were taken by an employee for personal use an accident was likely or even foreseeable. In this case, Morris, acting in violation of Verizon's work vehicle policy, took a vehicle without personal use approval and drove it 1, 000 miles away. The duty imposed by Zinck and Hill does not apply under these circumstances. The vehicle Morris used without permission was not left on the street with the key inside, nor was the vehicle stolen by an anonymous thief. The mere fact that Morris was not authorized to use Verizon's vehicle did not make her accident more or less likely. This contrasts with Zinck and Hill where evidence existed for a jury to decide whether the accident at issue was foreseeable.
Plaintiff argues that Morris frequently failed to comply with Verizon's sign-out policies and Verizon should have known that Morris regularly misappropriated vehicles. Therefore, plaintiff argues, Verizon had a duty to prevent unauthorized use. Morris testified that she often misappropriated vehicles as did other Verizon employees. Morris Dep. T61:4-15. However, Morris' supervisor Jim Blake testified that he was unaware that Morris had taken out the vehicle to attend her grandmother's funeral and thought Morris had only used the Verizon pool vehicles "less than ten times" to drop the cars off for maintenance as she was required to do. Blake Dep. T11:1-6. Additionally, Morris testified that she did not inform Blake or others, including security personnel, that she previously took a vehicle to Connecticut or used company vehicles for other personal reasons such as getting lunch or commuting to and from work when her car was in the repair shop. Morris Dep. T102:17-25. In addition to not informing her superiors of her personal trips, Morris' voicemail to Blake following the accident indicates that Morris knew that driving a vehicle without authorization was not permitted and was grounds for termination. See Morris Dep. T121:24-25; T100:14-101:12. Further, if Morris' supervisors knew about the policy violations, it would seem logical that the issue would have been addressed since, at the very least, unauthorized use results in additional wear to Verizon vehicles (particularly 1, 000 mile trips) and subjects Verizon to additional auto insurance liability.
Despite the parties' focus on the issue, whether or not Verizon negligently enforced its use policy is not determinative. Even assuming that Verizon negligently enforced its policy, Verizon's motion would still be granted. Under New Jersey law Verizon did not owe plaintiff a duty to enforce its personal use policy. In the absence of such a duty Verizon cannot be liable to plaintiff. In Hanks v. McFarlane, the plaintiff was injured when his car was struck by a G & G Electrical Supply van. C.A. No. 1302-08T3, 2009 WL 2454714 (N.J.Super. Ct. A.D. Aug. 12, 2009). The plaintiff appealed the summary judgment dismissal of his complaint against G & G. Id. at *1. At the time of the accident, the G & G employee "misappropriated" the vehicle, which was only to be used for business purposes (pursuant to company policy), and in the course of his "unauthorized use" permitted his cousin to drive the van. Id . The Appellate Divison upheld the trial court's decision, finding that no matter who was driving the car the use of the van was unauthorized and not within the scope of employment and, therefore, G & G was not liable. Id. at *3.
Another relevant decision is Onugha v. Moralesa, a case outside the employer-employee context. In Onugha a pedestrian was hit by an unlicensed driver who was driving a borrowed vehicle. C.A. No. 5359-05T1, 2007 WL 2376642 (N.J.Super. Ct. A.D. Aug. 22, 2007). The plaintiff-pedestrian sued the owner of the vehicle, arguing that the owner was liable for the driver's negligence. Id. at *1. The court found that without alleging that the driver was the owner's employee (thus subjecting the owner to vicarious liability) or that the owner negligently entrusted the driver with the vehicle, the plaintiff failed to state a cause of action. Id. at *2.
It is undisputed that Morris was using her vehicle for purely personal purposes at the time of her accident. Imposition of a duty on Verizon under these circumstances would be inconsistent with New Jersey case law which does not hold an employer liable when an employee uses a company vehicle outside the scope of his or her employment. Gilborges v. Wallace, 78 N.J. 342, 351 (1978) ("A master is not liable for harm caused by a servant in the use of an instrumentality owned by the master when such use is not within the servant's scope of employment. He is liable only if at the time of the accident the instrumentality is being used by the servant for the purpose of advancing the employer's business or interests, as distinguished from the private affairs of the servant.'") (citing Restatement, Agency 2d, § 238 at 526 (1958)); see also Pfender v. Torres, 336 N.J.Super. 379, 393 (App. Div. 2001) (same). Indeed, Verizon makes a compelling point that since it could not be held liable under the same facts if it authorized Morris to take its vehicle for personal use (i.e., because the use is outside the course and scope of her employment), it is illogical to hold Verizon liable because her personal use was unauthorized. See Def.'s Br. at 22. The fact that the use was unauthorized did not make Morris' accident any more or less likely or foreseeable. If plaintiff's theory is adopted, an employer could become an "insurer" any time an accident occurs when its vehicle is being used by its employee for personal use. No New Jersey case law supports this expansion of an employer's tort liability.
Even if the imposition of a duty on Verizon was appropriate, Verizon's motion would be granted because foreseeability is too attenuated. Inextricably tied to the appropriateness of the imposition of a duty to avoid injuring another is the probability and foreseeability of the injury. Hill, 75 N.J. at 142-144 ("[t]he risk reasonably to be perceived defines the duty to be obeyed; it is the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care."). In order for a harm to be foreseeable, the risk of injury to another must be "within the range of apprehension." Sander v. HR Trust Services., LLC, C.A. No. 08-1383 (GEB), 2009 WL 3055368, at *2 (D.N.J. Sept. 21, 2009) (citing Jerkins ex rel. Jerkins v. Anderson, 191 N.J. 285, 294 (2007)). "Establishment of the foreseeability of the risk of injury requires the further determination of whether considerations of fairness and policy warrant imposing a duty." Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 574 (1996) (citing Carter Lincoln-Mercury, Inc., 135 N.J. 135 N.J. 182, 194-95 (1994)).
In essence, plaintiff argues that because Verizon negligently failed to enforce its work vehicle policy, Morris was able to misappropriate the Verizon vehicle in Georgia and injure someone in New Jersey. In response, Verizon argues:
The obvious reason for the regulations concerning the securing of pool vehicles is to prevent the loss of Verizon Wireless property through theft or unauthorized use. There is no logical argument that can be made that Verizon Wireless employees driving company vehicles without authorization are more likely to negligently operate said vehicles than employees with such authorization. It is implausible to conclude that any such internal policies or procedures may fairly be interpreted as serving to protect the public from a distracted or tired driver or that failure to comply with such a policy or procedure alone may have as a foreseeable result the injury here involved.
Def.'s Br. at 23-24. Stated differently, Verizon points out that whether or not Verizon negligently enforced its work vehicle policy has no relation to Morris' negligent driving. The Court agrees. Morris, a qualified and licensed driver, could have injured another driver whether or not she was using Verizon's vehicle with prior authorization. Plaintiff does not offer a scintilla of evidence that Morris was anything other than a qualified driver. There is no evidence to indicate it was foreseeable that Morris would be involved in an accident, which is precisely why Plaintiff is not pursuing his negligent entrustment claim. Thus, it cannot be said that it was foreseeable that negligent enforcement of Verizon's work vehicle policy would result in a car accident. For these reasons, even if imposition of a duty on Verizon was appropriate (which it is not), the harm that came upon plaintiff was not foreseeable as a matter of law.
Accordingly, for all the foregoing reasons, the Court grants Verizon's motion for summary judgment. The Court finds that Verizon is not liable under a respondeat superior or negligent entrustment theory. Further, Verizon is not liable to plaintiff under plaintiff's common law negligence theory. Under the present circumstances Verizon did not owe plaintiff a duty of care to enforce its personal use policy for its vehicles. In addition, as a matter of law it was not foreseeable that if Morris took Verizon's vehicle without permission that an accident would result. An appropriate Order follows.
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Welcome to the Oh Scrap! COF/Critique Group!!!
Members consist of:
Angie213 - Angie (September 13)
Lilgem - Audrey (August 18)
scrappinnelly - Kristi (July 21)
alarae - Amy (July 14)
DYnKY - Denise (October 29)
krissykat- Kristin (January 3)
Our group was formed to maintain friendships as well as soak in as much talent as possible.
Group Guidelines:
* No drama. This is a friendly environment to escape from the realities of real life and share stories, laughs, cries, and of course our artwork.
* This is a critique group… so comments on LO's need to be left. ALL constructive criticism is appreciated. Although when leaving a comment with constructive criticism please make it in the actual thread instead of the gallery love. Comments should be positive. With that said, don't get your feelings hurt… everyone is ONLY trying to help each other and make each other the best we can be.
* Commenting in the thread: We all realize that there are lives outside of sb.com ! With that said please just check in on a regular basis… weekly at minimum. If you're going to be gone just let us know. We care about you and don't want to send the hound dogs out looking for you! If there are pages and pages for you to catch up on… read it. You do not have to comment on every single thing… just want everyone in the loop.
* We will do monthly challenges… these are a requirement; IF you are unable to complete by the deadline please let me know. We can either excuse you, for the month, or extend for a few days.
While this is not a requirement… everyone is encouraged to also do at least one LO/card/project a month just to keep our minds in gear.
Also… any big decisions that will effect the group will be discussed and voted on the by group. I will always keep my vote for last as well as remain impartial in any situation. I am the group driver/nothing/facilitato r whatever we wanna call it. So I will do my best to keep things running smooth.
These guidelines are the only thing we ask each of us to adhere to… this is the only way we can keep things drama free and running smooth.
Challenge:Layout should include sewing or stitching on it. Due end of March 2011.
hey good lookin' By Alarae
I loved her first By Angie213
Get Your Jenga Face On By DYnKY
You and Me By Krissykat


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Three plays - Love Letters, Flowers, and One on One will be staged this weekend
Rajit Kapur and Shernaz Patel will perform in one of India's longest running English plays: Love Letters by A.R. Gurney. The play is one of the three plays that will be staged as part of Rage Festival in Ranga Shankara. The other plays include Flowers by Girish Karnad and One on One by Ashok Mishra, Farhad Sorbajee, Oliver Beale, Purva Naresh and Rahul da Cunha.
Love Letters follows the lives of Andy Ladd III and Melissa Gardner, who over 50 years, exchange letters. Over this period, their correspondence comprises of a bittersweet communication of boarding schools, marriage, children, divorce and missed opportunities.
The play is directed by Rahul Da Cunha. Says Shernaz, "Love Letters opened in 1993; it's almost our flagship production that we have been performing for years." Flowers, directed by Roysten Abel, is a Rage and Ranga Shankara production. It is a dramatic monologue and is about a devoted and pious priest who by falling in love with a courtesan violates both his 'dharma' and his 'bhakti'. He tells the tale of his life, having been torn between his love for his God and his love for Chandravati; between his duty to his king and his duty to his wife and matters have come to its head.
As for the third play Shernaz says, "One on One has never been performed at Ranga Shankara and so we included it in the festival." One on One consists of a series of monologues and duologues in English and Hindi. Varied subjects such as the legalisation of homosexuality, inedible airline food, the politics of road naming ceremonies, Kasab's trial and the experience of living in a big city are a part of this production. These are stories of modern India that affect each of us in some way. The directors include Akarsh Khurana, Arghya Lahiri, Nadir Khan, Rahul da Cunha and Rajit Kapur.
About One on One, Rajit says: "It is a collage of playlets in contemporary India." Shernaz adds: "Each piece will bring something different to the evening." Rage, established by Rajit Kapur, Shernaz Patel and Rahul Da Cunha, has had a successful journey since its inception in 1992. Shernaz and Rajit are all praise for Bangaloreans. "Bangalore has a thriving, positive, energetic and enthusiastic audience," says Rajit.
"The theatre community has been growing," says Shernaz. "Also the Bangalore audience doesn't only want to be 'entertained', they are a discerning audience. During the performance of The Djinns of Eidgah at the Hindu MetroPlus Theatre Festival, there was pin-drop silence."
Flowers will be performed by Rajit Kapur and One on One will be performed by Anand Tiwari, Anu Menon, Amit Mistry, Neil Bhoopalam, Preetika Chawla, Rajit Kapur and Shernaz Patel.
Love Letters will be staged on August 23 at 7.30 pm, Flowers on August 24 at 3.30 and 7.30 pm and One on One on August 25 at 3.30 pm and 7.30 pm. All the plays will be staged at Ranga Shankara, JP Nagar. Tickets are priced at Rs. 200 and are available at bookmyshow.com, indianstage.in and at the venue. For details call 022-26730116.
Keywords: Rage Festival, Ranga Shankara, Love Letters, Flowers, One on One, Rajit Kapur, Shernaz Patel, Girish Karnad, Bangalore theatre


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Room Attendant
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Requisition Number: 145
Job Title: Room Attendant
Area of Interest: Housekeeping/Laundry
Property Name: IBM Learning Center
City: Armonk
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Company info
Dolce Hotels and Resorts
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Dolce International is a global hospitality company specializing in the meetings experience for its customers. The company has a collection of 22 unique properties in the United States, Canada and Europe. Each property features a different style ranging from a historic castle, to an authentic alpine village, to a New England-style country resort, to a French chateau, to a traditional corporate learning center. All Dolce Destinations meet the high standards of the International Association of Conference Centers (IACC). While Dolce International specializes in the meetings niche of the hospitality industry, the company also caters to leisure travelers, individual business travelers and offers a variety of venues for events. Headquartered in Montvale, New Jersey and Paris, France, the company has approximately 3,000 employees. Dolce is celebrating its 25th Anniversary in 2005.


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The concept of a regional park began as a long term vision for the future of Sacramento. The implementaion of this vision depends soley on people like us and will require a grass-roots campaign to move forward. While none of this information is required to get involved, it certainly will help organize our efforts, so please enter as little or as much information as you'd like, but the more the better.
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ERIC Number: ED243937
Record Type: RIE
Publication Date: 1984-Apr
Pages: 23
Abstractor: N/A
Reference Count: 0
Diagnostic Techniques in Research Synthesis.
Ludlow, Larry H.
One purpose for combining research studies is to estimate a population treatment effect. The internal validity of a model for how effect size estimates should be computed and combined will hinge upon the homogeneity of the effect size variation. Effect size variation may be assessed in the form of a summary fit statistic, and a direct consideration of the extent of individual effect variation from the population estimate. This paper presents some diagnostic techniques that facilitate the analysis of effect size variation. Bivariate plots of effect size residuals can aid in detecting sources of variation inconsistent with the model. Particularly, plotting the standardized residual of each study against the homogeneity of the sample if that study were removed is of interest for assessing the extent of heterogeneity contributed by individual studies. It is emphasized that the use of diagnostic techniques is useful for revealing why a lack of fit occurred, and is not advocated for the ad hoc purpose of finding a best-fitting subset of studies. (BW)
Descriptors: Data Analysis, Effect Size, Estimation (Mathematics), Graphs, Meta Analysis, Research Methodology
Publication Type: Speeches/Meeting Papers; Reports - Research
Education Level: N/A
Audience: Researchers
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Data Interpretation; Residuals (Statistics)
Note: Paper presented at the Annual Meeting of the American Educational Research Association (68th, New Orleans, LA, April 23-27, 1984).


text:
Skrillex Played Shanghai: Watch His 71 Song SetSkrillex played a live 75 minute set in Shanghai in September as part of his involvement in the International Music Summit Asia-Pacific.
Skrillex, Tyga & Kylie Jenner Throw a Wild PartyTyga gets into a bathtub, fully clothed.
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Where's The Joker's 'Purple Lamborghini?' Director Colin Tilley ExplainsAfter seeing the new music video, many fans have asked the same question; "Where is the Purple Lamborghini?"
Skrillex & Rick Ross Drop 'Purple Lamborghini' Video Starring Joker Jared LetoLeto reprises his 'Suicide Squad' role for the new clip.
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January 27, 2012
RYAN A. BARBA,PLAINTIFF,v.FERNANDO GONZALES, ET AL., DEFENDANTS.
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 1)
On June 14, 2010, Plaintiff Ryan A. Barba, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 5.) Plaintiff's Complaint is now before the Court for screening.
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, malicious," or 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).
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
The Complaint identifies the following California Correctional Institution, Tehachapi (Tehachapi) officials as defendants in this action: (1) Fernando Gonzales, Warden; (2) T. Miguel, Chairperson; (3) D.A. White, C≺ (4) Wright, Correctional Counselor I; and (5)
O. White, Correctional Counselor II.
Plaintiff alleges the following: On March 4, 2010, Plaintiff arrived at Tehachapi and was immediately placed into
Administrative Segregation (Ad-Seg), a status derived from a previous incarceration. In an initial interview Plaintiff explained that a mistake had been made and that he should be placed with the general population. (Compl. at 3.) The interviewer informed Plaintiff that an error, if made, would be resolved in approximately two weeks. (Id. at 4.)
Plaintiff attended a classification hearing on March 9, 2010 and was assured that mistakes in his placement would be resolved when prison officials received Plaintiff's central file. (Id. at 5.) On March 19, 2010, Plaintiff attended a mental health progress report hearing; he observed that the officials had his central file. (Id. at 4.)
Plaintiff began filing inmate requests regarding his housing status shortly after his mental health hearing. (Id. at 5.) Plaintiff's counselor informed him on March 30, 2010 that a committee hearing was scheduled for April 6, 2010. (Id. at 5, 6.) Plaintiff was not brought before a committee on April 6, 2010, or on April 12, 2010, the date of a further committee meeting. Plaintiff filed an inmate appeal. (Id. at 6.)
On April 29, 2010, Plaintiff "was removed from Ad-Seg custody and transferred to the main CCI G[eneral] Pop[ulation]/reception yard." (Id.)
To state a claim under Section 1983, a plaintiff must allege two essential elements:
(1) that a right secured by the Constitution or laws of the United States was violated and
(2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).
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.'" Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
Plaintiff complains of a six week placement in Ad-Seg upon his arrival at Tehachapi. Plaintiff's allegations make no mention of how the five Defendants identified in the Complaint violated his constitutional rights, nor does Plaintiff identify a specific constitutional violation. Although, in the "V. Relief" section of his claim, Plaintiff asks to be compensated for cruel and unusual punishment. Plaintiff has not stated a cognizable claim. The Court will grant Plaintiff an opportunity to amend his claims. Because Plaintiff failed to identify what constitutional rights he believes were violated, by whom, and how, the proceeding sections of this order represent the Court's best effort to provide Plaintiff with legal standards that the Court believes may be applicable to Plaintiff's claims.
A. Section 1983 Linkage Requirement
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). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
The statute clearly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978). Government officials may not be held liable for the actions of their subordinates under a theory of respondeat superior. Iqbal, 129 S.Ct. at 1948. Since a government official cannot be held liable under a theory of vicarious liability in § 1983 actions, Plaintiff must plead sufficient facts showing that the official has violated the Constitution through his own individual actions. Id. at 1948. In other words, to state a claim for relief under § 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.
The Complaint does not link any Defendant to the alleged violations. Plaintiff offers a narrative of events without attributing conduct to any particular Defendant. No factual allegations tie a single Defendant to any of the offenses alleged. Attributing liability to "Defendants" generally does not meet the pleading standard. See, e.g., K'napp v. Yates, 2009 WL 2246781, *2 (E.D. Cal. July 28, 2009).
To state a claim against any of the named Defendants, Plaintiff must set forth sufficient truthful facts to show that each named Defendant personally took some action that violated Plaintiff's constitutional rights. If he cannot do that with regard to a specific Defendant or Defendants, he should not proceed against that Defendant(s). The mere fact that some of the Defendants may have supervised those responsible for the alleged violations is not enough.
B. Eighth Amendment Cruel and Unusual Punishment.
The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832 (1994). The treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993). In its prohibition of "cruel and unusual punishment," the Eighth Amendment places restraints on prison officials. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The Eighth Amendment also imposes duties on these officials, who must provide all prisoners with the basic necessities of life such as food, clothing, shelter, sanitation, medical care, and personal safety. See Farmer, 511 U.S. at 832; DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 199-200 (1989); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Deprivation of necessities by a prison official violates the Eighth Amendment when two requirements are met: (1) the deprivation alleged must be, objectively, sufficiently serious, Farmer, 511 U.S. at 834 (citing Wilson, 501 U.S. at 298), and (2) the prison official possesses a sufficiently culpable state of mind. Id. (citing Wilson, 501 U.S. at 297).
A prolonged sentence in administrative segregation does not in of itself constitute cruel and unusual punishment in violation of the Eighth Amendment. See, e.g., Anderson v. County of Kern, 45 F.3d 1310, 1315-16 (9th Cir. 1995) (no contact with any other inmate in administrative segregation, either for exercise, day room access or otherwise not cruel and unusual punishment); Toussaint v. Yockey, 722 F.2d 1490, 1494 n. 6 (9th Cir. 1984) (more than usual hardships associated with administrative segregation required to state 8th Amendment claim). Even the admittedly harsh conditions in the SHU do not impose cruel and unusual punishment on ordinary prisoners such as Plaintiff. See Madrid v. Gomez, 889 F.Supp. 1146, 1267 (N.D. Cal. 1995).
Without more, it is difficult to imagine that less than two months in segregation could give rise to a constitutional violation. However, the Court will give Plaintiff leave to amend to assert additional true facts which render his classification a violation of rights provided. If he chooses to amend, Plaintiff must keep in mind that to state an Eighth Amendment claim based on assignment to Ad-Seg, Plaintiff must allege (1) facts describing conditions more onerous than the usual hardships of segregated housing and (2) that the Defendants acted with a sufficiently culpable state of mind.
C. Due Process
The Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action for deprivation of due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). "States may under certain circumstances create liberty interests which are protected by the Due Process Clause." Sandin v. Conner, 515 U.S. 472, 483--84 (1995). Liberty interests created by state law are generally limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484.
The Due Process Clause alone creates no liberty interest in remaining in the general prison population. Hewitt v. Helms, 459 U.S. 460, 468 (1983) (overruled on other grounds). Prisoners may be housed in administrative segregation to protect them from other inmates, to protect other inmates from the segregated prisoner, or pending investigation of disciplinary charges, transfer, or re-classification. Id. The allegation that a plaintiff was placed in administrative segregation does not in and of itself state a claim for relief based on deprivation of due process. May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (convicted inmate's due process claim fails because he has no liberty interest in freedom from state action taken within sentence imposed and administrative segregation falls within the terms of confinement ordinarily contemplated by a sentence) (quotations omitted); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (plaintiff's placement and retention in the SHU was within range of confinement normally expected by inmates in relation to ordinary incidents of prison life and, therefore, plaintiff had no protected liberty interest in being free from confinement in the SHU) (quotations omitted). The Ninth Circuit has explicitly found that "administrative segregation falls within the terms of confinement ordinarily contemplated by a sentence." Toussaint v. McCarthy, 801 F.2d 1080, 1091--92 (9th Cir.1986), abrogated on other grounds by Sandin, 515 U.S. 472.
Plaintiff must first establish the existence of a liberty interest in remaining free from Ad-Seg before he can state a cognizable claim under section 1983 for the deprivation of due process.
Plaintiff's Complaint does not state a claim for relief under section 1983. The Court will grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth "sufficient factual matter . . . to 'state a claim that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate that each named Defendant personally participated in a deprivation of his rights. Jones, 297 F.3d at 934.
Plaintiff should note that although he has been given the opportunity to amend, it is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on curing the deficiencies set forth above.
Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "First Amended Complaint," refer to the appropriate case number, and be an original signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 8(a). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555 (citations omitted).
Accordingly, it is HEREBY ORDERED that: 1. The Clerk's Office shall send Plaintiff (1) a blank civil rights complaint form and (2) a copy of his Complaint, filed June 14, 2010;
2. Plaintiff's Complaint is dismissed for failure to state a claim upon which relief may be granted;
3. Plaintiff shall file an amended complaint within thirty (30) days; and 4. If Plaintiff fails to file an amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to state a claim and failure to comply
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Three's mobile ad-blocking trial starts today
Three will trial network-level ad-blocking in the UK today. The 24 hour experiment is scheduled to take place "on or around" June 15th, and will affect a subset of Three customers which the company has already selected. (A number of subscribers were contacted beforehand. If they showed interest, Three asked them to sign up for the trial online. There's no way to get in now.) The carrier describes it as a "technology test" for Shine, a partner and mobile ad-blocking specialist.
Three has stressed that "not all participants will experience the full Shine service" over the 24 hour period. That means it could come on intermittently, or only affect certain sites. "You might still see some ads on some websites, or notice some formatting errors," Three explains to trial participants. "Don't worry -- this is something we're aware of, and we're working to fix it." The technology only works on Three's network too, so testers won't see the benefit while they're connected over Wi-Fi.
The method by which Shine blocks ads at the network level is unclear. The company says it uses "machines" that are capable of performing deep packet inspection (DPI) inside the network. Using a mixture of "real-time analysis, artificial intelligence and algorithms," the team is able to identify ads and stop them without breaking the original webpage or app.
Once the trial is over, Three will be picking a selection of customers and asking them for feedback. Responses will be gathered over the phone, however "it may take up to three months" for the company to call.
Ad blocking is a divisive subject. There are clear benefits for the customer -- better privacy and a cleaner, faster experience on the web -- but it also threatens the business model of countless internet companies. "The current ad model is broken," Tom Malleschitz, Three's chief marketing officer said in May. "It frustrates customers, eats up their data allowance and can jeopardise their privacy. Something needs to change."
While ad blocking is on the rise, it's still a niche practice -- mostly because people have to go out of their way to install an app or browser extension. If it was enabled by default on Three, or offered during the setup of every phone it sells, that could change the numbers dramatically. Three is stepping cautiously -- EE and O2, even more so -- but if it decides to go all-in with mobile ad blocking, it could have huge implications.Three
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text:
Vintage style is given a twist in the Mia Greta clog sandal, which features a leather upper with an adjustable instep strap for a snug fit, and a wood block heel/platform for a traditional feel. A leather footbed covering adds cushioning and grip, while the lugged outsole brings a bit of springiness and steady traction.
- Adjustable instep strap
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- Synthetic outsole
Delivery and Returns
Estimated delivery date: 2 (based on standard shipping).
We offer free shipping on orders over $99, and free returns and exchanges for up to 30 days.


text:
The Upside of Anger
It's important to understand how we got here.
To understand where we are, we must appreciate how we got here.
That's not a quick conversation or convenient sound bite.
It's a chronology-an evolution if you will-that built the cumulative imbalances that led to this contagion.
The end result of this situation is certain. There will be debt destruction and financial cleansing.
It's an unfortunate but necessary process, much like a forest fire that's powerful and scary but ultimately leads to rebirthing and fresh foliage.
Once we arrive at that destination, a sustainable foundation for economic recovery will be in place.
Our singular goal is to get there in one piece.
The path that we take to get there has seemingly boiled down to two scenarios.
The first is credit cancer that is chewing through industries and infecting sectors. This will phase through homebuilders, banks, "financials in drag," technology, retail, credit card companies and commodities until the body is rid of disease.
The other is an outright crash; a collision where credit seizes, capital markets freeze, price discovery permeates and social mood shifts as we come to terms with the new world order.
Neither is particularly appetizing but both have a silver lining.
Acceptance is the first step towards recovery and the world has finally admitted we have a problem.
Character Witness
The greatest opportunities are bred from the biggest obstacles and this will again prove true. Those who preserved capital and reduced debt will be in a position to prosper once this process of price discovery passes.
I'll draw the analogy between our current environment and the dot.com mania. Everything they said the Internet would be eventually came to fruition, albeit not without a tech crash.
Globalization will play out much the same way when the "outside-in" recovery arrives. It will be led by China and India and be as powerful as the pundits claimed it would be.
Alas, that won't occur without a debt crash.
Somehow over the last six years, the business cycle ceased to exist. Recession became anathema, the distinction between patriotism and bullishness blurred and profiting was viewed as a right rather than a privilege.
Minyanville was branded Cassandra for repeatedly pointing out potential pitfalls.
Government intervention, dollar devaluation and credit creation pushed the comeuppance out on the curve and we're now paying the price.
We will eventually be viewed as Pollyanna, seeking opportunities from amongst the rubble and positioning ourselves for global growth. That seems far-fetched given the current conundrum but mark my words, this too shall pass.
Capital preservation, debt reduction and financial intelligence remain core tenets as we find our way to that point of recognition.
I sincerely hope you join me on that journey.
- 1
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Todd Harrison is the founder and Chief Executive Officer of Minyanville. Prior to his current role, Mr. Harrison was President and head trader at a $400 million dollar New York-based hedge fund. Todd welcomes your comments and/or feedback at email@example.com.
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What a rare and amazing property! Stunning and nostalgic is this former Northwoods Grand Lodge Estate! This property was originally built in the 1930's, with one wing and garage added in 1985, and additional remodeling in 1995. Everything about this home is full of grandeur and greatness! Over 6,000 sq ft in its entirety! The 2,000 sf living room has an impressive two-story fireplace and a 10 seat bar that is beyond perfect for all of your entertaining needs. With 6 bedrooms and 4 baths, whether you have a large family or just love company there is room for everyone. The home has a three season room and gazebo that allow picture-perfect lake views. This estate is situation on over 2 acres with 523 feet of frontage on Island Lake. Island Lake is over 1,000 acres with a max depth of 35 feet. The Manitowish Chain has 10 of the most beautiful lakes in Wisconsin for you to explore, along with some of the best fishing and water recreation around! Offered furnished! This gem won't last long!
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|Style: 2 Story
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|Year Built: 1933
|River Name:
|Basement Type: Exterior Entrance, Interior Entrance, Partial Basement
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|School District: Lakeland UHS
|Construction: Frame/Stick


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Check in from 14h / Check out prior to 11h
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Delivery and Returns
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Sunday, July 20, 2014
How should we deal with temptations?
Fr. James Kubicki reflects on today's gospel (Matthew 13: 24-30) and recommends ways for us to deal with temptations.
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"IF YOU ARE WHAT YOU SHOULD BE, YOU WILL SET THE WHOLE WORLD ON FIRE." "LET THE TRUTH BE YOUR DELIGHT.... PROCLAIM IT..., BUT WITH A CERTAIN CONGENIALITY." ~ St. Catherine of Siena
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