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submitted: August 29, 1988.
COMMONWEALTH OF PENNSYLVANIAv.EDWARD D. HILL, APPELLANT
Appeal from the Post Conv Hearing Act October 23, 1987, in the Court of Common Pleas of Philadelphia County, Criminal No. 2513/12 Sept. Term 1982
Mitchell S. Strutin, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Olszewski, Kelly and Hester, JJ. Kelly, J., concurs in the result.
[ 378 Pa. Super. Page 564]
This is an appeal from an order denying appellant's petition for relief under the Post Conviction Hearing Act (PCHA). On appeal, appellant claims that the PCHA court erred in denying appellant's petition without a hearing and asserts that his initial PCHA counsel, who filed a "no merit" letter, was ineffective for failing to raise the ineffectiveness of all prior counsel for failing to: (1) challenge the trial court's permitting the Commonwealth to present evidence concerning appellant's filing of an alibi notice; (2) challenge the trial court's denial of appellant's motion to suppress; (3) challenge the trial court's precluding appellant from impeaching a Commonwealth witness with preliminary hearing testimony; (4) challenge the trial court's permitting the Commonwealth to present hearsay testimony; (5) allege prosecutorial misconduct; (6) request a jury instruction concerning Commonwealth witnesses' prior inconsistent testimony; and (7) raise the trial court's consideration of appellant's prior guilty plea in sentencing appellant. For reasons discussed below, we remand for an evidentiary hearing.
The defendant was arrested on or about September 14, 1982, and charged with burglary and related offenses . . . . On September 15, 1983, defendant plead guilty before Judge Guarino to the charge of burglary. He was sentenced to a period of imprisonment of not less than three to no more than eight years. On October 13, 1983, the
[ 378 Pa. Super. Page 565]
defendant was permitted to withdraw his guilty plea, and new counsel was appointed to represent him . . . .
On October 16, 1985, trial began before the Honorable Angelo Guarino and a jury. The jury returned a verdict of guilty as to the charges of criminal trespass, burglary and theft. Once again, counsel was permitted to withdraw, and new counsel was appointed to represent the defendant. On April 23, 1986, post-verdict motions were argued and denied. On May 12, 1986, the defendant was sentenced on the charge of burglary to a period of not less than six to no more than twenty years. The remaining charges merged for the purposes of sentencing. The defendant filed a timely motion to reconsider sentence which was heard and denied on May 30, 1986.
On December 1, 1986, the judgment of sentence was affirmed by the Superior Court in a per curiam and unpublished memorandum. (No. 1514 PHL 1986).
On December 30, 1986, the defendant filed a pro se petition for relief under the Post Conviction Hearing Act. New counsel was appointed to represent him in this matter. On September 24, 1987, P.C.H.A. counsel notified this Court, through a "no merit" letter, that he was unable to amend the defendant's petition, and that he found the issues raised in the defendant's pro se petition to be frivolous. This Court then undertook its own independent and careful review of the record and applicable law. On October 23, 1987, this Court found the defendant's issues raised in his pro se petition to be frivolous and discovered no other issues of arguable merit. Accordingly, this Court entered an Order dismissing the defendant's Petition for Relief. The instant appeal has followed the denial of relief.
Opinion at 2-4.
Appellant then filed an appeal with this Court. Initial PCHA counsel was permitted to withdraw and new PCHA counsel was appointed for purposes of this appeal.
First, appellant claims that the PCHA court erred in dismissing appellant's PCHA petition without a hearing. In
[ 378 Pa. Super. Page 566]
his petition, appellant asserted that prior counsel was ineffective for failing to investigate and prepare a credible Rule 1100 argument, and for failing to articulate the substance of an alibi witness's testimony. We find, however, that the PCHA court's determination is supported by evidence of record and is otherwise free of legal error. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981). Therefore, we adopt the PCHA court's thorough examination and disposition of these contentions.
Appellant has cloaked his remaining claims in the ineffectiveness of initial PCHA counsel. Because this is the first time that the ineffectiveness of his first PCHA counsel could be raised, there has been no evidentiary hearing below to determine if there was a reasonable basis for counsel's actions. In this situation, we are required to determine whether that claims have arguable merit before we will remand to the PCHA court for an evidentiary hearing as to the basis for counsel's actions. See Commonwealth v. Shablin, 362 Pa. Super. 289, 524 A.2d 511 (1987). "When a claim has arguable merit, and there has been no evidentiary hearing below to determine if there was reasonable basis for counsel's actions, then this Court will remand for an evidentiary hearing." Shablin, supra, 362 Pa. Superior Ct. at 292, 524 A.2d at 512, citing Commonwealth v. Spotts, 341 Pa. Super. 31, 33, 491 A.2d 132, 134 (1985). Because we find appellant's final claim to be of arguable merit, we must remand for an evidentiary hearing. In the interest of judicial economy, however, we will first dispose of appellant's other seven contentions.
First, appellant claims that PCHA counsel was ineffective for failing to assert prior counsels' failure to challenge the trial court's permitting the Commonwealth to present evidence concerning appellant's filing of an alibi notice. Specifically, appellant claims that his testimony at trial confirmed that he "abandoned" his alibi defense and, therefore, it was improper for the Commonwealth to present testimony in rebuttal to establish that an alibi notice was filed. Pa.R.Crim.P. 305C(1)(g) provides that:
[ 378 Pa. Super. Page 567]
. . . if the defendant has filed notice and testifies concerning his presence at the time of the offense at a place or time different from that specified in the notice, the defendant may be cross-examined concerning such notice.
Instantly, appellant's claim that his testimony established an "abandonment" of the alibi defense is insufficient to preclude impeachment as to the lodging of an alibi notice. Rather, appellant must have formally withdrawn the notice of alibi defense prior to trial. See Commonwealth v. Alicea, 498 Pa. 575, 449 A.2d 1381 (1982). The presentation of evidence to contradict appellant's testimony is a risk he assumed when he took the stand. See Commonwealth v. Bey, 294 Pa. Super. 229, 439 A.2d 1175 (1982).
Moreover, the fact that the Commonwealth presented rebuttal testimony, rather than cross-examining appellant, to impeach appellant's testimony is of no consequence. It is well settled that "[e]vidence is admissible in rebuttal to contradict that offered by a defendant or his witnesses . . . ." Commonwealth v. Mangini, 478 Pa. 147, 161, 386 A.2d 482, 489 (1978), quoting Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671, 676 (1975) (citations omitted); Commonwealth v. Koch, 446 Pa. 469, 478, 288 A.2d 791, 795 (1972). Appellant's claim lacks merit.
Appellant also asserts that all previous counsel was ineffective for failing to challenge the denial of appellant's motion to suppress an identification made subsequent to appellant's allegedly illegal arrest. We find that the arresting officer had probable cause to arrest appellant, and therefore, the suppression issue lacks arguable merit.
Testimony elicited at the suppression hearing reveals that an employee at Rentex Corporation reported a break-in and described the perpetrator as a black male wearing a tee shirt, jeans, and a blue hat. Transcript at 19. The officer observed appellant walking two to three blocks from Rentex ten minutes after conversing with the employee. Transcript at 20-21. Because appellant fit the given description, transcript at 25, the officer stopped appellant, searched him, and found a red knife, a pair of scissors, and a small
[ 378 Pa. Super. Page 568]
screwdriver in his pockets. The officer took appellant to the scene of the crime where he was identified by the complainant.
This Court's recent decision in Commonwealth v. Vinson, 361 Pa. Super. 526, 522 A.2d 1155 (1987), is instructive in resolving appellant's contention:
Initially we note that our function as an appellate court reviewing a denial of a motion to suppress is to determine:
[W]hether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.
Commonwealth v. Reddix, 355 Pa. Superior Ct. 514, 518, 513 A.2d 1041, 1043 (1986), quoting Commonwealth v. W.P., 302 Pa. Superior Ct. 66, 69, 448 A.2d 97, 98 (1982). Moreover, when the evidence viewed in this manner supports the factual findings of the suppression court, we can reverse only if there is an error in the legal conclusion drawn from those factual findings. Commonwealth v. Reddix, supra.
Probable cause exists if the facts and circumstances within the knowledge of the police at the time of the arrest, and of which they have reasonably trustworthy information, are sufficient to justify a man of reasonable caution in the belief that a suspect has committed a crime. Commonwealth v. Verdekal, 351 Pa. Superior Ct. 412, 506 A.2d 415 (1986). It is only the probability of criminal activity, and not the certainty of such activity, that is the standard of probable cause. Commonwealth v. Monroe, 356 Pa. Superior Ct. 109, 514 A.2d 167 (1986).
Id. 361 Pa. Super. at 530, 522 A.2d 1157.
Applying this law to the facts of the present case, we find that the trial court properly held that probable cause existed to support the stop and arrest. Within ten minutes of hearing the description of the perpetrator, the arresting
[ 378 Pa. Super. Page 569]
officer observed a black male who fit the description near the scene of the crime. "The correlation of the broadcast description with the officer['s] observations gave rise to probable cause to stop [appellant]." Id. The fact that appellant did not conform in every respect to the description is not fatal to the finding of probable cause. See id. Appellant's claim of ineffectiveness lacks merit.*fn1
Next, appellant claims that prior counsel was ineffective for failing to challenge the trial court's precluding appellant from impeaching a Commonwealth witness, Thomas Johnson, with preliminary hearing testimony. The underlying issue lacks merit. Mr. Johnson testified at trial that appellant brandished a gun as he fled the Rentex Corporation building. Appellant sought to impeach Mr. Johnson with the fact that he did not mention the gun at appellant's preliminary hearing.
Quite simply, appellant sought to imply an inconsistency in Mr. Johnson's testimony when none existed. It is well settled that omissions of facts in prior statements do not render them inconsistent statements that may be used for impeachment purposes at trial. Commonwealth v. Rue,
[ 378 Pa. Super. Page 570362]
Pa. Super. 470, 476, 524 A.2d 973, 976 (1987), citing Commonwealth v. Hammond, 308 Pa. Super. 139, 454 A.2d 60 (1982). The trial court properly exercised its discretion in limiting cross-examination on this issue. Rue, supra, citing Commonwealth v. Vander Weele, 356 Pa. Super. 152, 514 A.2d 189 (1986); Hammond, supra.
Appellant also asserts that prior counsel was ineffective for failing to challenge the trial court's permitting the Commonwealth to present hearsay testimony. Specifically, appellant contends that a hearsay objection should have been pursued regarding a police officer's testimony that he "received a radio call from the Rentex Company, someone breaking in." Transcript at 99-100. We have repeatedly declared, however, that an out-of-court statement offered to explain the course of conduct of police is not hearsay. Commonwealth v. Carroll, 355 Pa. Super. 569, 572, 513 A.2d 1069, 1071 (1986), citing Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Underwood, 347 Pa. Super. 256, 259, 500 A.2d 820, 822 (1985). Since the challenged statement was offered merely to establish the officer's course of conduct, appellant's complaint is without merit.
Next, appellant maintains that counsel was ineffective for failing to allege prosecutorial misconduct as a result of the district attorney's alleged expression of personal opinion during his summation. Our review of the record does not reveal expression of personal opinion that rises to the level of prosecutorial misconduct requiring reversal. Appellant mistakenly attempts to equate the prosecutor's statement, "I think the Commonwealth has shown you through the evidence that the defendant was lying . . .," Transcript at 24, with "I think the defendant was lying." While it may have been more prudent for the prosecutor to refrain from using the first person, we emphasize that not every intemperate remark requires a new trial. Commonwealth v. Stantz, 353 Pa. Super. 95, 104, 509 A.2d 351, 356 (1986), citing Commonwealth v. Jarvis, 482 Pa. 598, 394 A.2d 483 (1978); Commonwealth v. Youngkin, 285 Pa. Super. 417, 427 A.2d 1356 (1981). "Reversible error
[ 378 Pa. Super. Page 571]
exists only where the cumulative effect of any improper remarks so prejudices the jury as to prevent a fair trial." Stantz, supra, citing Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968); Youngkin, supra. Appellant has failed to establish that he was prejudiced in any manner by the prosecutor's closing remarks. We find, in fact, that appellant was not prejudiced by the Commonwealth's summation. Therefore, this claim is also without merit.
Appellant also urges that counsel was ineffective for failing to raise the failure of trial counsel to request a jury instruction concerning the alleged prior inconsistent testimony of Commonwealth witnesses. Appellant does not delineate in his brief any proof of inconsistent testimony in the record; he merely cites to two excerpts from the record that we assume he claims are evidence of inconsistent testimony. The excerpts, however, do not amount to prior inconsistent testimony that would warrant a jury instruction on the issue. Transcript at 84-85, 90-91. We note, nonetheless, that the court instructed the jury to "consider the inconsistencies in [a] witness' testimony or any prior inconsistent statement that that witness might have made . . . ." Transcript at 50-51. This contention is, therefore, frivolous and without merit.
Finally, appellant asserts that prior counsel was ineffective for failing to raise the sentencing court's consideration of appellant's prior guilty plea in determining sentence. When imposing sentence, the trial judge stated:
[ 378 Pa. Super. Page 572]
you will be ready. You have given us a sign that you'll never be ready and I believe that . . . .
And secondly because your attitude is bad. Not only is your behavior but your attitude is. If you can beat a wrong you'll do your utmost to do it. You had good sound advice even in this case and if you really wanted to rehabilitate yourself you had excellent counsel who advised that you take the negotiated plea and you did plea[d] and then on the hope and on the technicality that you thought you might beat the case you went ahead and tried the case and I gave you -- and I permitted you to withdraw your plea on nothing only because you told me that well, you weren't so sure that is what you wanted to do. So you never owned up to your own sense of responsibility in this case.
So now you must suffer the consequence of all that you have done including what you did in this case. . . .
Transcript at 21-22 (emphasis supplied).
Pennsylvania courts have upheld the constitutional mandate that a plea of not guilty is not a factor that a judge may consider in deciding whether to give a more severe sentence. Commonwealth v. Bethea, 474 Pa. 571, 578, 379 A.2d 102, 105 (1977), quoting Commonwealth v. Staley, 229 Pa. Super. 322, 324, 324 A.2d 393, 395 (1974). In Bethea, our Supreme Court vacated the judgment of sentence and remanded for resentencing based on these remarks by the sentencing court:
[ 378 Pa. Super. Page 573]
Bethea, supra, 474 Pa. at 578, 379 A.2d at 105-106 (emphasis in original).
We are unable to distinguish the court's impermissible consideration of appellant's choice to plead not guilty in Bethea from the court's statements in that regard in the instant case. The sentencing court explained that part of its reason for sentencing appellant in the aggravated range on the burglary charge was because he chose to withdraw his guilty plea and assert his right to trial by jury. Although we can understand the sentencing court's frustration with this matter, it was not appropriate to consider appellant's choice to be tried by jury as a reason for sentence. We are constrained to find, therefore, that based on Bethea, appellant's claim has arguable merit.
Because prior PCHA counsel has not had the opportunity to explain his failure to raise prior counsel's failure to pursue this issue, we must remand for an evidentiary hearing to afford prior PCHA counsel the opportunity to explain his failure to pursue this issue only. Shablin, supra.
Order vacated and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.
Order vacated and case remanded for proceedings consistent with this opinion. Jurisdiction 7 relinquished.
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February 10, 1982
Jay Andrew JOYNER, et al., Plaintiffs,
James DUMPSON, et al., Defendants
At issue in this action is the constitutionality of a New York statute, N.Y. Social Services Law § 358-a (McKinney Supp. 1980-1981), which requires that parents of children in need of treatment and supervision outside their homes relinquish custody of their children to the state as a condition of admission of the children to residential care facilities at state expense. Plaintiffs, certified as the class of New York children whose parents cannot afford the cost of necessary special services outside their homes,
seek a declaratory judgment that the statutory scheme on its face and as applied violates plaintiffs' rights under the First, Ninth and Fourteenth Amendments to the United States Constitution, Title IV of the Social Security Act, 42 U.S.C. § 601 et seq., and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Both plaintiffs and the defendant New York State and New York City officials
have moved for partial summary judgment.
The statutory process challenged by plaintiffs is activated when a parent who finds himself unable to care for or supervise a problem child at home
seeks to place the child in a residential treatment center at state expense. The process by which a parent relinquishes care and custody of his child to the state is two-fold: first, the parent and a local social services official must enter into a written agreement pursuant to N.Y. Social Services Law § 384-a (McKinney Supp. 1981-1982) transferring care and custody to the social services agency; and second, the social services official must initiate judicial proceedings to obtain approval of the transfer instrument pursuant to § 358-a.
Section 384-a(2)(a) provides that placement of the child shall be under the written terms and conditions mutually agreed upon by parent and social services representative. If the transfer instrument designates return of the child for a certain date or event and the agency fails to return the child at that time, or if the parent requests that the child be returned prior to the specified date and the agency refuses or fails to act, the parent's remedy is to petition the family court or to seek a writ of habeas corpus in the supreme court. If the instrument does not specify a return date, the parent may request return at any time and the agency must then either return the child within twenty days or seek a court order within that time to retain care and custody. See §§ 358-a(7) and 384-a(2)(a). The instrument must advise the parent in lay terms inter alia: that a return date may be specified by the instrument; that the parent has the right to supportive services, to visit the child, and to have the child returned in accordance with the terms of the instrument; that the parent has the right at any time to consult an attorney; and that the parent has the obligation to visit the child and plan for the child's future. § 384-a(2)(c). Since the 1976 amendments to the statute, the instrument may not include a waiver by the parent of notice of the family court proceedings for approval of the instrument. § 358-a(4). Although the parent may waive a family court hearing, such waiver must be in an instrument separate from that transferring custody if the transfer is pursuant to § 384-a. § 358-a(5). The transfer instrument ("Form W-864") presented to the parents of the named plaintiffs in this action contained waivers of notice and hearing now void under the amended statute and also contained a statement that "(placement) is required because I (we) am (are) unable to make adequate provision for the support, maintenance and supervision of the child in his (her) own home or with relatives or friends."
Upon execution of the transfer instrument, if the social services official believes the child is likely to remain in state care in excess of thirty days, the official must petition the local family court judge to approve the instrument. If the judge is satisfied that the parent executed the instrument knowingly and voluntarily and because he would be "unable to make adequate provision for the care, maintenance and supervision" of the child in his home, and that the requirements of § 384-a, if applicable, have been satisfied, and if the judge then determines that "the best interest and welfare of the child would be promoted by removal of the child from such home, and that it would be contrary to the welfare of such child for him to continue in such home," the judge "shall thereupon grant the petition and approve such instrument and the transfer of the ... care and custody of such child to such social services official...." § 358-a(3). The statute further provides that any order of a family court judge granting or denying a petition for transfer or return of custody shall be appealable. § 358-a(8).
Once the transfer instrument is executed and the child placed in a residential facility, the parent need not be consulted regarding changes in the method or location of treatment. If the parent opposes any decision made by the social services agency, the parent's only remedy, beyond complaining to the social services official, is to petition the family court or supreme court. Plaintiffs assert, and defendants have not submitted affidavits otherwise contending, that an unspecified number of parents are deterred from placing their children in residential treatment centers by the prerequisite that custody of their children be transferred to the state.
For the purposes of these motions for summary judgment, the allegations particular to the two named plaintiffs need not be set forth. Plaintiffs do not contend that defendants deviated substantially from their statutory mandate.
It is well established that when a statute is challenged on both statutory and constitutional bases, the court must consider the statutory challenge before deciding the constitutional issue. See, e.g., Harris v. McRae, 448 U.S. 297, 306-07, 100 S. Ct. 2671, 2683, 65 L. Ed. 2d 784 (1980); New York City Transit Auth. v. Beazer, 440 U.S. 568, 582, 99 S. Ct. 1355, 1364, 59 L. Ed. 2d 587 (1979). The court therefore first addresses plaintiffs' claims under the Social Security Act and the Rehabilitation Act of 1973.
Plaintiffs contend that the New York statutory scheme violates plaintiffs' rights under Title IV of the federal Social Security Act, 42 U.S.C. § 601 et seq., by conditioning the receipt of needed services on transfer of child custody. Plaintiffs' claim is based upon the broad scope and intent of Title IV to provide relief to needy families through the Aid to Families with Dependent Children ("AFDC") program. In support of their contention that defendants are in violation of Title IV, plaintiffs cite several statements in the legislative history as well as particular provisions of the Social Security Act, e.g., 42 U.S.C. §§ 601, 606, 608(f), which confirm the undeniable proposition that a principal purpose of the Social Security Act is "to maintain and strengthen family life." 42 U.S.C. § 601. Plaintiffs also refer the court to certain other statutes such as the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 672(f), and the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq., as evidence of Congressional concern for the stability and permanence of familial relations. See also Ramos v. Montgomery, 313 F. Supp. 1179, 1181 (S.D.Cal.1970), aff'd, 400 U.S. 1003, 91 S. Ct. 572, 27 L. Ed. 2d 618 (1971). It is, of course, uncontested that once a state elects, as New York has elected, to participate in the AFDC program it must comply with applicable federal law and regulations. Philbrook v. Glodgett, 421 U.S. 707, 95 S. Ct. 1893, 44 L. Ed. 2d 525 (1975); Hagans v. Lavine, 415 U.S. 528, 530, 94 S. Ct. 1372, 1375, 39 L. Ed. 2d 577 (1974). Broad professions of Congressional support for the integrity of family life do not, however, establish that plaintiffs have a statutory entitlement to placement in residential facilities at state expense without the prerequisite of transfer of child custody. See Black v. Beame, 550 F.2d 815, 818 (2d Cir. 1977); Child v. Beame, 412 F. Supp. 593, 604 (S.D.N.Y.1976). Plaintiffs' claim under the federal Social Security Act is accordingly dismissed.
Plaintiffs also claim that New York's requirement that custody be transferred prior to the receipt of needed special services violates plaintiffs' rights as handicapped children under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the regulations promulgated thereunder. Section 504 provides in part: "No otherwise qualified handicapped individual .. shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...."
The regulations promulgated under the Act further provide that:
In providing health, welfare, or other social services or benefits, a recipient may not, on the basis of handicap:
(2) Afford a qualified handicapped person an opportunity to receive benefits or services that is not equal to that offered nonhandicapped persons;
(4) Provide benefits or services in a manner that limits or has the effect of limiting the participation of qualified handicapped persons....
45 C.F.R. § 84.52(a) (1980). Plaintiffs' claim of discrimination on the basis of their handicap is that among all those eligible to receive any of the various forms of partially federally funded state assistance, only plaintiffs are required to submit to state custody as a prerequisite of receipt of needed benefits. Plaintiffs also assert that within the class of handicapped persons, plaintiffs comprise a disadvantaged sub-class that alone is subject to the custody transfer requirement prior to the receipt of special services. Plaintiffs argue that the pre-condition imposed only on them as a result of their need for treatment in residential facilities limits their access to needed benefits and discourages their use of needed benefits in direct violation of § 504 and 45 C.F.R. § 84.52(a) (1980), supra.
It is not disputed that the New York statutory scheme treats plaintiffs differently from other classes of beneficiaries and that the distinction is a result of plaintiffs' need for residential treatment. Moreover, as mentioned above, defendants do not contest plaintiffs' assertion that the pre-condition of custody transfer does in fact discourage and deter plaintiffs' parents from placing their children in residential care centers. Although unlawful discrimination does not arise whenever a state either treats the handicapped differently from the non-handicapped or differentiates among classes of the handicapped, the state must "make at least some substantial showing in court that its plan is justified," New York Ass'n for Retarded Children v. Carey, 612 F.2d 644, 650 (2d Cir. 1979), or that there is "substantial justification" for the distinctions it draws. Kampmeier v. Nyquist, 553 F.2d 296, 299 (2d Cir. 1977); see Sherry v. New York State Educ. Dep't, 479 F. Supp. 1328, 1338-39 (W.D.N.Y.1979) ("substantial justification" found lacking for decision by New York State School for the Blind to suspend emotionally disturbed child despite the fact that there was not enough staff to protect the child from self-abuse). In the instant case, defendants have offered virtually no justification for the requirement that plaintiffs' parents relinquish custody prior to admission of their children to residential treatment centers. The principal explanation suggested by defendants is that the transfer of custody requirement insures that placement in a residential facility will be in the best interests of the child since custody will not be transferred without a judicial determination that the placement and the custody transfer would be in the best interests of the child. The illogic of the argument, of course, lies in its unsupported and unsupportable premise that it is the transfer of custody, not the judicial determination, that insures that the placement will be in the child's best interests. Defendants' explanation in no way justifies the custody transfer requirement since the judicial proceeding functions independently of the transfer of custody and provides all the safeguards that defendants fallaciously argue exist only by virtue of the custody transfer requirement. The second, equally unconvincing, explanation offered by defendants is that under 42 U.S.C. § 608(a)
the transfer of custody requirement is a pre-condition of receipt by the state of federal funding in connection with the residential treatment program. The contention is without merit for the simple reason that 42 U.S.C. § 608(a) does not require that the state obtain custody of a child prior to the receipt of federal aid for the residential treatment of that child.
While the court could conceive of reasons that might justify the transfer of custody requirement,
defendants have not in their affidavits and briefs established or even argued that any valid reasons exist. Since the standard set forth in this Circuit is that the state must substantially justify its differential treatment of handicapped plaintiffs, the court shall not deferentially posit rationales that may not in fact exist. Accordingly, the court rules that the requirement that custody be transferred prior to the admission of the handicapped children comprising the plaintiff class to residential treatment centers violates § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The court cautions that it does not find unlawful any other portion of the New York statutory scheme; to the contrary, the court's ruling is premised on the independent functioning of the rest of the statutory process by which children are placed in authorized residential treatment centers.
The court now turns to plaintiffs' claim that § 358-a violates their substantive due process rights under the Fourteenth Amendment to the Constitution of the United States by conditioning the receipt of necessary benefits on the sacrifice of fundamental constitutional rights.
While fixed legal guidelines in the amorphous area of fundamental rights have remained elusive, certain basic principles may be identified.
First, there is no doubt that the right to family privacy and integrity is "fundamental" and that the right of the parent to rear and retain custody of his children is one aspect of that fundamental right. Zablocki v. Redhail, 434 U.S. 374, 386, 98 S. Ct. 673, 681, 54 L. Ed. 2d 618 (1978); Smith v. Organization of Foster Families, 431 U.S. 816, 844-45, 97 S. Ct. 2094, 2109-10, 53 L. Ed. 2d 14 (1977); Roe v. Wade, 410 U.S. 113, 152-53, 93 S. Ct. 705, 726-27, 35 L. Ed. 2d 147 (1973); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551 (1972); Ginsberg v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274, 1280, 20 L. Ed. 2d 195 (1968); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S. Ct. 571, 573, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042 (1923). Second, it is well-settled that a state may neither directly limit the exercise of a fundamental right nor condition the receipt of benefits in such a way that the exercise of fundamental rights is penalized unless it has a "compelling" interest in so doing. See, e.g., Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974); Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963). Third, the state has no constitutional obligation to provide plaintiffs with any benefits, see Black v. Beame, 550 F.2d 815, 817 (2d Cir. 1977), and the Supreme Court has specifically refused to scrutinize strictly state allocations of welfare benefits challenged due to their effect on family integrity, requiring instead only a rational basis. Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970); see San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33, 93 S. Ct. 1278, 1296, 36 L. Ed. 2d 16 (1973); Black v. Beame, supra, 550 F.2d at 817.
Classification of such constitutional claims is often decisive of their outcome. In the instant case, the court must determine whether to apply the rational basis test applicable to social benefits cases, the compelling interest test applicable to certain fundamental rights cases, or an intermediate standard appropriate to the particular case.
Defendants contend that Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970), and its progeny provide the standard applicable to this case. In Dandridge, the Supreme Court applied the rational basis test to an equal protection challenge to a Maryland statute which placed a ceiling on the AFDC grant available to a single family irrespective of the number of persons in the family. The plaintiffs in Dandridge claimed that the statute destroyed family integrity by encouraging families to send children away to relatives not receiving the maximum grant. The Court rejected the plaintiffs' claim, stating that "the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this court." Id. at 487, 90 S. Ct. at 1162. In Black v. Beame, 550 F.2d 815 (2d Cir. 1977), the Second Circuit followed Dandridge and applied the rational basis test to a claim by nine brothers and sisters that the state violated their right to family integrity by misallocating welfare resources and by failing to provide housing and services sufficient to keep the family together. The Second Circuit apparently accepted plaintiffs' argument that "once the state decides to offer public assistance to the poor, it is constitutionally required to do so in a manner that is not unnecessarily destructive of family unity," id. at 816, but nevertheless found that the challenged action had the requisite rational basis.
This court finds the Dandridge line of cases distinguishable from the instant case. Whereas the plaintiffs in Dandridge and its progeny challenged the allocation of social benefits, plaintiffs in this case are challenging a condition imposed upon the receipt of benefits and not the allocation of those benefits.
At the core of the holding in Dandridge was the Court's refusal "to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients." 397 U.S. at 487, 90 S. Ct. at 1162; see Califano v. Boles, 443 U.S. 282, 296, 99 S. Ct. 2767, 2775, 61 L. Ed. 2d 541 (1977); Jimenez v. Weinberger, 417 U.S. 628, 633, 94 S. Ct. 2496, 2500, 41 L. Ed. 2d 363 (1974). Plaintiffs' claim in this case does not challenge the relative allocation of public welfare funds and does not require the court to substitute its judgment for that of the state legislature as to which class of potential beneficiaries should receive more or less. The condition imposed upon plaintiffs prior to their admission to residential treatment centers affects their exercise of a fundamental right and is not the product of a legislative decision to allocate less funding to those in need of residential services and more to those with other needs. The court therefore declines to extend to this case the rational basis test applied in the Dandridge line of cases.
The court now considers the applicability of the compelling interest test. Recognition that the right to family integrity is fundamental and that exercise of the right is limited to some extent by the statute in question does not resolve the issue. Fundamental rights are not absolute; where governmental action infringes a fundamental right the infringement may be justified by a compelling state interest, and where infringement is not substantial a compelling state interest will not even be required. As the Supreme Court stated in Memorial Hospital v. Maricopa County, 415 U.S. 250, 256-57, 94 S. Ct. 1076, 1081-82, 39 L. Ed. 2d 306 (1974): "(although) any durational residence requirement impinges to some extent on the right to travel, the Court in Shapiro (v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969) ) did not declare such a requirement to be per se unconstitutional.... The amount of impact required to give rise to the compelling-state-interest test was not made clear." See also Black v. Beame, 419 F. Supp. 599, 604 n.3 (S.D.N.Y.1976), aff'd, 550 F.2d 815 (2d Cir. 1977) ("The substantive issue presented to the Court is not whether the interest (in family integrity) exists, but whether it requires the type of protection plaintiffs claim is constitutionally mandated."). Thus, to select the appropriate standard the court must assess the impact of the challenged statute on plaintiffs' exercise of their constitutional right. For the following reasons, the court finds the infringement on plaintiffs' right to be significant but not so substantial as to require a compelling state interest. First, for those members of the plaintiff class who choose to enter the residential facilities, the transfer of custody requirement is certainly harsh but the harshness is mitigated by the fact that plaintiffs' parents have voluntarily chosen to relinquish their children to the full-time care of the state for a period of time in excess of thirty days. Second, for those who choose not to submit to the statutory condition, the denial of benefits is limited to the non-provision of residential treatment at state expense, and is less onerous than a general denial of all welfare benefits. See Harris v. McRae, 448 U.S. 297, 317 n.19, 100 S. Ct. 2671, 2688 n.19, 65 L. Ed. 2d 784 (1980); cf. Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969) (state could not condition receipt of all AFDC benefits on residency of one year); Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) (state could not withhold all unemployment compensation benefits from an otherwise eligible claimant due to her exercise of her religious beliefs). A compelling state interest is therefore not required to justify the transfer of custody requirement.
Having found that the impact of the challenged statute on plaintiffs' exercise of their constitutional right is significant but that neither the rational basis nor compelling state interest tests is applicable, the court shall apply an alternative, intermediate standard or balancing test. As the Ninth Circuit has stated:
The rather formal three-tier analysis of the Court's recent equal protection decisions differs somewhat from its less categorical approach when questions of substantive due process are involved. Recent decisions indicate that substantive due process scrutiny of a government regulation involves a case-by-case balancing of the nature of the individual interest allegedly infringed, the importance of the government interests furthered, the degree of infringement, and the sensitivity of the government entity responsible for the regulation to more carefully tailored alternative goals.
Beller v. Middendorf, 632 F.2d 788, 807 (9th Cir. 1980), cert. denied, 452 U.S. 905, 101 S. Ct. 3030, 69 L. Ed. 2d 405 (1981); see Zablocki v. Redhail, 434 U.S. 374, 386, 98 S. Ct. 673, 681, 54 L. Ed. 2d 618 (1978); Moore v. City of E. Cleveland, 431 U.S. 494, 499, 97 S. Ct. 1932, 1935, 52 L. Ed. 2d 531 (1977). Under this standard, since it has been established that the transfer of custody requirement infringes plaintiffs' exercise of their fundamental right to family integrity, defendants must show that the requirement serves important state purposes. To state the standard is to arrive at the conclusion. As discussed above with regard to plaintiffs' statutory claim, defendants have offered no substantial justification for the transfer of custody requirement. Since the statutory requirement that plaintiffs' parents relinquish custody of their children to the state prior to admission of the children to residential care facilities infringes plaintiffs' fundamental right to family integrity, and since the requirement serves no important state interest, the court finds that the requirement violates plaintiffs' substantive due process rights.
Plaintiffs' motion for partial summary judgment is granted. Defendants' cross-motion is denied.
So Ordered.
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text: 1961→1968 Alfa Romeo 2600 Nick DApril 3, 2016231 viewsAlfa RomeoClassicReview231 views 0 1961→1968 Alfa Romeo 2600Made as a Berlina, Sprint or Spider the 2600 was Alfa Romeo's flagship model for seven years. Other variants included the Sprint Zagato, the Panteraand Gazzella patrol cars as well as a few one-of prototypes. Under the hood is a capable double overhead-camshaft inline six which could propel the 2600 to 125 mph.Only 2,255 of the Touring Spiders were built from 1962 to 1965.1961 Alfa Romeo 2600 GallerySee full 1961 Alfa Romeo 2600 Gallery here In DetailtypeSeries Production Carproduction years1961 – 1968released at1962 Geneva Motor Showbuilt atItalyproduction11350engineInline-6block materialDOHCdisplacement2584 cc / 157.69 in³driven wheelsRWDf suspensionA-Arms w/Coil Springstransmission5-Speed Manualtop speed~201.13 kph / 125 mphAuction Sales History1963 Alfa Romeo 2600 Spider AR191484 – sold for $110,000According to Alfa Romeo's Centro Documentazione, this Touring bodied 2600 Spider was completed at the Alfa Romeo plant in January, 1963, and delivered to its first owner trough Hoffman Motor Car Company, New York, USA in February that same year. The car was finished in a Grigio Biacca grey exterior color. The cars early history remains unknown, but the car is believed to have spent much time in the Southern California climate. The car was purchased a few years ago from a family in Riverside County, CA, for a collector in Florida, who later sold the car to the consignor.Auction Source: 2015 Quail Lodge Auction by Bonhams1963 Alfa Romeo 2600 Spider AR106.01 191551 – sold for $115,500 The biggest, fastest member of the Giulietta family. One of only 2,255 built from 1962 to 1965. Expensive when new and seldom seen in the U.S. Excellent rust-free original car; recently restored. Auction Source: Arizona 2015 by RM Auctions1964 Alfa Romeo 2600 Spider AR191191 – sold for $67,000 Bought in 2004 as a drivable car with no rust. Cosmetic restoration, including engine by: Mario Sueiras. Black soft top and Black original interior. Touring Milano emblems, and beautiful chrome details. Originals parts and original radio. The car has not been driven 150 miles since the restoration. Stored in dry garage. 11% buyers premium on this automobile, Import duties have been paid. Auction Source: Monterey 2014 by Mecum Auctions1963 Alfa Romeo 2600 Spider AR106.01191551 – sold for $110,000 The biggest, fastest member of the Giulietta family. One of only 2,255 built from 1962 to 1965. Expensive when new and seldom seen in the U.S. Excellent rust-free original car; recently restored. Auction Source: 2014 Monterey by RM Auctions1964 Alfa Romeo 2600 Spider AR*192790 – sold for $176,000 Rare DOHC Six-Cylinder 1960s Italian Spider. Handsome and Desirable Color Combination. Recent Interior Restoration and Mechanical Sorting. Factory-Equipped with Five-Speed Gearbox and Front-Disc Brakes. Crisp and Versatile Open 2+2 Body by Touring. Highly Useable; Suited to Tours, Classic Rallies, and Shows. Documented by Automobilismo Storico Alfa Romeo. Auction Source: The Scottsdale Auctions by Gooding & Company1963 Alfa Romeo 2600 Spider – sold for $60,500This Alfa Romeo 2600 Spider is presented in a very elegant and refined triple dark blue color scheme. Restored some years ago by Hyannis Restoration, then used sparingly, it has benefitted from a recent cosmetic freshening. This has included a re-spray in the original color, and the bright trim is reported to be in excellent condition. Inside, the dark blue leather interior appears to show almost no wear, with nicely broken-in seats and a period Becker radio in the dashboard. To complete the presentation, a new correct canvas soft top has been installed.Auction Source: Amelia Island 2012 by RM Auctions Post Views: 619Related


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LEGO Batman 2: DC Super Heroes Cheats & Codes
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Published by: Warner Bros. Interactive
Developed by: Traveller's Tales
Genre: Action
Release Date:
United States: September 6, 2012
Australia: TBA 2012
E10+ for Everyone 10 and older : Cartoon Violence
Also known as: LEGO Batman 2
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text: I don't know much about unknown relatives, but I do know that I like their sound. I found this song at the Light and Sound Records bandcamp where they have a split with Deep Space. If you want to find out more, the Austin-based Unknown Relatives will be performing at Psychedelic Light & Sound tomorrow night at 29th St. ballroom.


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Lot 8 180th Street, Dresser WI 54009 $29,000
Features of Lot 8 180th Street Dresser WI 54009
- Lots for Sale
- Status: Active
- Estimated Age: Not Available
- Est. Acreage: 5
- Est. Acreage: >= 1, >= 1/2, >= 5
- Est. Lot Size: 348/626/626/348
- School District: Osceola
- County: Polk
- Property Taxes: $662
- Property Tax Year: 2015
- Listing Company: Century 21 Premier Group
- Listing Agent: Melissa Jones
Property Description for Lot 8 180th Street Dresser WI 54009
Lot 8 180th Street Dresser WI 54009 - Excellent Corner Wooded Lot! Rolling, Private And Perfect For A Walk Out! Percs Conventional, Open Builder And Light Covenants. Osceola Schools, Yet Only 5.5 Miles To Hwy 8. A Great Location For Your New Home!
Building and Construction
- Construction Type: E
Land Features
- Topography: Exposed Lower Level possible, Rolling/Hilly, Wooded
- Waterfront/Access: N
- Lot Size: 348/626/626/348
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Buyer understands that the information which is contained on Data pages is obtained from a number of different sources and which has not been independently verified or confirmed by the various real estate brokers and agents who have been and are involved in this transaction. If any particular measurement or data element is important or material to buyer, Buyer assumes all responsibility and liability to research, verify and confirm said data element and measurement. REALTOR *MLS* Equal Housing Opportunity


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There is a direct correlation between gooch size and male fertility. Science.
I know we said we never would. But try fucking a fat guy. He put in so much more effort and then made me waffles.
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Apparently I'm short enough to sit on his lap and fuck him while he is driving because the cop didn't notice.
Reached a new low last night. Passed out. With my pants down. On the toilet. At ihop. Waitress had to wake me up.
I'm tripping balls on ambien right now and I still feel that's a bad idea.
Boise Idaho, where you have a one night stand with someone from your town 3 states away and run into them the day you return...
I know. I feel like I should be doing mature responsible adult things though. Like getting loans, working 60 hours every week and not eating burritos in bed, ya know?
Within the span of 10 minutes, I managed to make a slip 'n slide on his stomach, threatened to pee on him, kneed myself in the eye, and almost fell asleep on the toilet....in that order.
I told him if he cums in my mouth he has to buy me a cake that says "sorry I came in your mouth"
When they send me to rehab, I'm screaming your name down the halls.
That works. I won't care. I'll be a mermaid. Mermaids don't give a fuck.
Especially drunk mermaids.
Just when I thought he had turned a new leaf, I see a "Let me get you pregnant" shirt in his closet


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Voyage Century
Voyage Century is a unique game in the free-to-play arena. Players start their adventures in the city of Athens but are soon free to explore the rest of the world and settle in a home port of their choice. While each of the game's 40+ cities have hunting locations on the outskirts, most of the game's content involves sailing and battling at sea. Voyage Century has such a broad variety of content, players can pursue the life of a merchant and simply trade resources between ports, or they could explore the world in search of rare discoveries. No matter what path you choose, you'll have to be careful while sailing in the high seas – open PvP means pirates are always on the prowl! There are five classes for new players to choose from, and they can all pursue any desired career.
Royal Military Officer – Members of the Royal Officer Corps are trained in swordsmanship on land and gunnery on the high seas.
Emperor Guardian – Guardians are the masters of close-quarter combat. They are proficient with falchions, axes and swords. More importantly, their skill with the grappling hook allows them to force long-ranged opponents to face them on the Guardian's terms.
Caribbean Pirate – Pirates are known for their cunning use of the falchion and axe. They prefer to close in on their enemies and let loose their cannons from a short distance for maximum effect.
Treasure Hunter – Treasure Hunters prefer indirect combat, they are trained in long ranged gunnery and laying mines, but are capable of ramming their opponents when necessary. On land, Treasure Hunters prefer pistols and rifles over melee weapons.
Armed Businessman – The merchant marine of Voyage Century. Businessmen are renowned for their repairing, healing, and ship enhancement abilities. They prefer guns over melee weapons.
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- Category: Stand-alone
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SPLURGE $195 from Serena & Lily // SAVE $59 from World Market Woven rattan, wicker, and grasses have been everywhere in home decor this year, especially in light fixtures. Using natural materials in overhead fixtures lends a lighter, airier feel to a room, even if a larger fixture is needed. Want
Whenever Matt goes out of town, I usually paint something. That something is typically a room, and typically I'm slightly unsure he'll agree with my
It really is no secret that I'm in love with clean, neutrals in my house. Light gray, brown, black, cream, and gold are definitely my
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Anyway, as I was milking this thought, I came across this gorgeous sunroom surrounded in a winter snow. It's not the image that pops to mind when most of us think of sunrooms (the kind of sunrooms that has terrible indoor/outdoor carpet and are boarded up during the winter months) but a more permanent, all season room which gets light from every angle. I got to thinking about how a sunroom would look perfect as an addition onto our house (who's going to help me sell that one to Matt?).
Last week, I'd decided that the cast iron longhorn skull I purchased would definitely make a cool addition to my home - and clearly you
Drumroll, please! After much hard work, we've finally completed painting our entryway. I know I just mentioned it to you guys last week when I revealed
Whether it be the longhorn skull I bought this weekend or the home I posted about last week, you can totally tell that I'm in
My foyer is done being painted and I'm in the process of decorating it for the big reveal! A little secret, I'm actually rushing to
There have been a lot of 'mountain home' discussions this week between Matt and I as we're vacationing here in Colorado. We actually used to
This project has been a long time coming. You guys remember when I found this pair of cane chairs in the trash of a neighbor? Right?
I am totally guilty of getting bored with my bedding easily. I just switched over to all-white bedding this past fall, and LOVED the light
Cool comfort is something that I'm consistently looking for in homes. A minimal, fresh, creative space that still looks like you could really live in
We spent the evening trimming our tree last night, although it didn't take too much time with the decorations I chose to use this year. Since we were going on vacation and didn't have too much time with the tree, I didn't want to go to in great depths with it. I chose to have a simple, rustic type theme this year with no tree ornaments, and just a few minimal, but festive, touches to bring it all together.
My main switch-up this year was to use big colorful bauble lights on the tree instead of my usually white lights with glittery accents. I used a plaid blanket to wrap the bulb of our tree and keep things looking like a rustic woodsy cabin. Very simple accessories like a snow studded wooden star and brass stocking hangers rounded out the simplicity of the look.
It's pretty simple, but I think it makes a statement!


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amused asked Barbara beautiful Betsy bowed brandy breath chaise longue clothes Coll Collinswood cooling street course cried dark dear Dijon dinner door drank Duval eau de Cologne eggnog Emile eyes face father feel filly fool gently girl glass gray Groscoeur hair hand hated head hear heard Janesville Jeannetot Jennie felt Jennie knew Jennie looked Jennie saw Jennie smiled Jennie thought Jennie's kind Lausanne leaned Leonie listening Liza Bellamy M. F. K. FISHER Madame maids Marc Raphael Melanie minute never night nodded old lady Old Spack once Paul peignoir perhaps pulled seemed shrugged sighed silently silk Sir Harry slowly smooth soft softly soon sound Spackle stared stood stopped suddenly sure sweet talk tell thing Tokaj Tokay told tonight train turned voice waiting walked wanted watched window wine woman wonderful young


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December 5, 2012
STACY THRASHER, AN INDIVIDUAL,PLAINTIFF,v.COUNTY OF SAN DIEGO, ETC., ET AL.,DEFENDANTS.
Plaintiff Stacy Thrasher's attorney, Julie Kiehne-Lamkin, filed a noticed motion to be relieved as counsel. The motion attests to a breakdown of communications and cooperation between attorney and client. According to the motion, Ms. Kiehne-Lamkin needs to move out of California to care for her elderly mother, and a disagreement has arisen over this. Ms. Thrasher also, pro se, submitted a letter to the Court which has been accepted for filing. The letter shows Ms. Thrasher agrees she and her attorney cannot work together, and she would like her attorney to withdraw. The Court therefore deems the motion to withdraw (Docket no. 15) unopposed, and GRANTS it.
In addition to consenting to the withdrawal, Ms. Thrasher's letter asks the Court to appoint counsel for her at public expense so that she can effectively prosecute this civil action, in which she seeks relief under 42 U.S.C. § 1983.
The Constitution provides no right to appointment of counsel in a civil case, unless the indigent litigant may lose her physical liberty if she loses the litigation, Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981), which is not the case here. But under 28 U.S.C. § 1915(e)(1), the Court has discretion to appoint counsel for indigent persons. This discretion is to be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (citation and quotation marks omitted).
Ms. Thrasher's letter brief lacks most of the information the Court would need to make such an evaluation, although it is clear she can articulate her claims on her own if need be. The letter brief also suggests Ms. Thrasher has not attempted to obtain counsel to replace Ms. Kiehne-Lamkin, such as through legal aid organizations or by contacting attorneys who might represent her on a contingency basis.
Because it does not appear the required "exceptional circumstances" are present, the request for appointment of counsel is DENIED. Ms. Thrasher is reminded that, unless and until she obtains qualified counsel who makes an appearance for her in this case, she is responsible for litigating this case herself, which includes complying with the Civil Local Rules for this District. See Civil Local Rule 83.11 (setting forth requirements for persons appearing without an attorney). See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants.")
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Louis Tomlinson's quotes
Science Of Persuasion
The more I read about Bernie sanders the more I like him.
Spoil her with consistency and don't treat her like she's ordinary.
Having a great day is awesome, but it takes more than one day to accomplish anything great. Consistency is the name of the game #success #motivation #consistency
No shortcuts, be consistent!
Results Don't Come Over Night
It requires hard work and consistency, so be patient.
Lisa, Jess and I have been getting super excited for the WWA tour and thought a great way to get even more excited would be to go through every H/L moment from the 2013 tour and put them into a top 10 list.
As you can tell by the title of this post, that did not happen. Because guess what! This is the hardest post I've ever had to make because I couldn't pick 10 or 20 or even 50 "essential" moments from this tour.
We all pine for the days of yore when the Up All Night tour was going strong, and there were a lot of moments I love from that tour. But it was also a much shorter tour and took place over a shorter period of time. It was a case study in teenage love affair: flirting, sex and hearteyes. The Take Me Home tour was different (obviously lol) in that it was much more subdued (partly for unhappy reasons).
But after going through this, I think I might like this tour better, which seems crazy, but once you go through this list (and Lisa's), you'll see that this tour was all about being settled, domestic and fond in the face of what appeared to be pretty extreme measures to have us believe they weren't even friends anymore.
But once you go through this list, I think you'll agree, that nothing that matters has changed.
Let's do this.
One day of super clean eating won't make you drop 10 lbs.
One ridiculously crazy workout won't get you from start to finish.
One day of being bold and stepping outside your comfort zone won't achieve your goal.
Doing it once won't get you there…doing it every day will. Taking small steps in the right direction every day, consistently, that will get you there. Taking one GIANT step in the right direction every once in a while…you're going to be nothing more than frustrated.
Source: Kill Phil + Philisnotonfire6


text:
Fisch 5-Piece Pen Drill Set
Home > Rockler > Power Tool Accessories > Drill Bits and Drivers > Brad Point Bits
|With their deep, parabolic flutes, the Fisch penmaker´s drill bits provide rapid chip removal, less clogging and burning, and a longer useful life. Hardened to 64HRC, they promise a sharp edge for far longer than typical bits. The unique tips and cutting edge geometry ensure a true hole size, less blowout and clean entry and exit holes in tough end grain. Suitable for acrylics and tough exotic woods. Includes 7mm, 10mm, 25/64´´, 27/64´´ and letter ´´O´´ bits.
Only $119.99 at Rockler.com


text:
Escape using tree cutter
Played 221 times
Escape using tree cutter game information:
Escape using tree cutter is yet another interesting point and click type new room escape game developed by ENA games for free. Dream up a situation that you are a detective went inside a house for investigation. Unfortunately, the door gets locked.
You need to get out of the house using tree cutter. Surely you will do this by finding the objects for solving the puzzles. You will have more additional excitement in playing this point and click escape game. Have more fun and feel it fantabulous daily by playing new ENA escape games daily. Good Luck and Best Wishes from ENA games.
How to play:
Mouse Interaction.
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VoipReview lets you compare hundreds of business VoIP service providers so that you can cut business costs. Use the VoIP Savings Tool to view your savings by switching to VoIP instantly.Sponsored Listing
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Hot topics in Software Distribution Softwarensis 7 zip password remover winrar password remover zip password cracker apk to exe zip file password cracker winrar password remover & unlocker android password cracker rar password unlocker emmabuntus 3 32 bit
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Lakeland News
Local news for Lakeland, GA continually updated from thousands of sources on the web.
Ruth Underwood
Wednesday Nov 30 | MainStreetNews.com | Comment?
Teens arrested after firing off stolen guns
Wednesday Nov 23 | WALB-TV Albany | Comment?
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Lakeland News, Events & Info
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Updated: Wed Nov 30, 2016 11:42 am
Copyright © 2016 Topix LLC


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Click on the "Convert & Download Video + MP3" button to start the video conversion. After the video conversion is finished, you can download the converted video in the formats MP4 or 3GP (for mobile phones) or you can download the converted audio as a MP3 music file. This online service is completely for free.
Jaws Soundtrack-01
DMCA: Are you the owner of this convertable material and do you want to disable the conversion of your media on clip.dj? Then you can request a conversion block for this video.294
Here is the complete soundtrack from Jaws: The Revenge. Music Composed by Michael Small.
Game of Thrones Original Sountrack.
Composed by Ramin Djawadi.
ABOUT THE LOWER PITCH: I had to change the pitch , otherwise youtube will block all the videos. Sorry for that :( So, if you want ...


text:
Islamabad Jeep Club (IJC ) arranged a day long Offroading trip to Islamabad, near F9 park.The track was familiar to most of the IJC members.
There were few new members who came for the very first time on this track.Everyone managed to do all track.Some were easy n some were tough.
19 vehicles participated in this event. Willys,Land Rovers,Toyota landcruiser,Suzuki Jeep,Pajero, Toyota Surf etc.
Will post pictures tomorrow.If any member wants to post pics they r most welcome.
Ur comments r very important. Do post them.
Thanx to all Friends who participated in this event.
- Used Cars
- New Cars
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- Cool Rides
- Forums
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- Post an Ad


text:
Argan Oil Wholesale - Moroccoprice: 20.00 Dollar US$
Rich in Vitamin E, Natural Fatty Acids and Omega 6 - Argan oil wholesale is a natural prime antioxidant combating premature ageing skin. Quickly absorbs and deeply penetrates to heal, nourish and hydrate.
Moroccan Argan oil wholesale Skin Care: Argan Oil benefits skin for its many qualities; It helps reduce pimples, breakout scars, scaly patches, skin inflammation and dry cracked skin; Apply 1-2 drops to clean face in the evening
Moroccan Argan oil wholesale Hair Care: Known to re-balance and nourish drying and dehydrating hair; Benefits hair and revitalized scalp; It is effective for dry damaged hair and split-ends.
Company Contact:
- Posted By: Oriental Group
- Phone: +212600604387
- Address: 1206 Lo Maatalah, M'hamid, Morocco, Merseyside, Morocco
- Email:
- Website: http://group-oriental.com/
Published date: June 25, 2016 -
- Business Description: Company Details : Oriental Group is able to offer cosmetic Argan oil and food Argan in bulk or packaged, as well as products of oriental Hammam and care: argan oil,
black soap, natural soap, Rasul, kassa glove, floral waters (rose, lavender, jasmine) ... Only for professionals, we supply major retailers in Europe,
Spa and Hammam and supermarket and most of the Argan oil Amazon seller according to Amazon Fulfillment rules.
All our Argan oil has been certified organic IMC and USDA and meet this end, international standards of quality extra virgin argan oil 100% organic product.
Feel free to contact us for any information (production process etc ...).
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Moringa Oil or Ben oil is obtained by pressing the seeds of the Moringa oilefera tree. The Moringa seeds yield 38–40% edible oil (called ben oil, from the high concentration of behenic acid contained in the oil) that can be used in cooking, cosmetics...
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Writers Profile
Screen Name: Stuart Florwood
Stuart Florwood has published 3 items on The Spoof.
Check out Stuart Florwood's:
Latest Spoof News Story: Wednesday 2nd December 2009
Spoofing since: Friday 20th November 2009
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Popular 210
The Roadtrek 210-Popular Class B motor home features a dinette or optional power sofa and two bench seat dinette, both converting to two twin size beds or a king size bed. The passenger chairs can be converted to additional bed.
Continuing down the passenger side of the van, there is an enclosed toilet and shower area. Across on the other side, there is a refrigerator, microwave, single bowl sink, and two burner propane stove top.
Enjoy the 210-Popular whether you are traveling across town running errands or across the state on an adventure.We have 1 210 availableView Inventory
Sleeps 3 Length 21 ft 11 in Ext Width 7 ft 4 in Ext Height 8 ft 9 in Int Height 6 ft 2 in Exterior Color White, Silver Ice, Charcoal Gr Hitch Weight 1000 lbs Gross Weight 9600 lbs Cargo Weight 1450 lbs Fresh Water Capacity 36 gals Grey Water Capacity 23 gals Black Water Capacity 10 gals Tire Size LT245/75R16E Furnace BTU 16000 btu Fuel Type Gas Engine 6.0L SFI V-8 Chassis Chevy Express 3500
Showing 1 - 1 of 1
Motor Home Class B
- 28 Photos
- Stock #: 10493B
- Length: 21 ft 11 in
- Location: Sandy, OR
- Sleeps up to 3
Johnson RV is not responsible for any misprints, typos, or errors found in our website pages. Any price listed excludes sales tax, registration tags, and delivery fees. Manufacturer pictures, specifications, and features may be used in place of actual units on our lot. Please contact us @855-674-3206 for availability as our inventory changes rapidly. All calculated payments are an estimate only and do not constitute a commitment that financing or a specific interest rate or term is available.