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April 6, 2012
JOSE RAFAEL URENA, PRO SE PLAINTIFF,v.ROBERT BEAUDOUIN, M.D.,DEFENDANT.
On December 9, 2008, Jose Urena ("plaintiff") commenced this pro se action against Robert Beaudouin, M.D. ("Dr. Beaudouin" or "defendant") and other defendants alleging injuries to his bladder, scrotum, and abdomen related to bladder cancer while he was incarcerated in 2006 at the Metropolitan Detention Center in Brooklyn, New York ("MDC").*fn1 (See ECF No. 4-3, Complaint.) After the case was transferred from the Southern District of New York to this court on March 11, 2009, an amended complaint was filed on November 2, 2009*fn2 , and discovery closed on November 23, 2009. The court granted in part and denied in part the defendants' respective motions to dismiss and motions for summary judgment on December 6, 2010. (See ECF No. 102, Memorandum and Order ("Urena I")); Urena v. Wolfson, No. 09-CV-1107 (KAM)(LB), 2010 U.S. Dist. LEXIS 128423 (E.D.N.Y. Dec. 6, 2010).
In Urena I, the court denied the summary judgment motion of defendant Dr. Beaudouin, then a physician at MDC, on plaintiff's constitutional claim pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging that Dr. Beaudouin was deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment of the United States Constitution (the "Bivens claim"). (Urena I at 11-22.) Presently before the court is Dr. Beaudouin's motion for partial reconsideration pursuant to Local Civil Rule 6.3 of the court's denial of summary judgment on plaintiff's Bivens claim against him. For the reasons stated below, the court denies Dr. Beaudouin's motion for partial reconsideration.
In Urena I, the court liberally construed the pro se plaintiff's Bivens claim as alleging that Dr. Beaudouin was deliberately indifferent to plaintiff's serious medical needs in violation of the Eighth Amendment by (1) delaying and denying treatment to plaintiff prior to his initial surgery at New York Downtown Hospital ("NYDH") on November 2, 2006 to remedy his bladder cancer; and (2) failing to adequately monitor plaintiff's recovery in between his discharge from NYDH to MDC on November 3, 2006 and his re-admission to NYDH on November 13, 2006 for surgical repair of a bladder perforation. (Urena I at 16-17, 20.) The court denied Dr. Beaudouin's motion for summary judgment on the Bivens claim. (See id. at 11-22.)
On December 20, 2010, Dr. Beaudouin timely filed a motion for partial reconsideration. (See ECF No. 105, Motion for Reconsideration.) Because the case was stayed for six months from January 13, 2011 to June 15, 2011 while the court unsuccessfully sought pro bono counsel to represent plaintiff (see ECF No. 110, Order dated January 13, 2011; ECF No. 117, Order dated June 15, 2011), Dr. Beaudouin's motion for reconsideration was terminated without prejudice on April 5, 2011, and he was granted leave to re-file his motion after the stay had been lifted. (See Order dated April 5, 2011.)
Thereafter, in accordance with the briefing schedule subsequently adopted by the court, Dr. Beaudouin re-filed his motion for partial reconsideration on September 12, 2011 (see ECF No. 143, Memorandum of Law in Support of Defendant Beaudouin's Motion for Partial Reconsideration ("Beaudouin Mem.")) with an accompanying declaration (see ECF No. 143-1, Declaration of Dr. Beaudouin ("Beaudouin Decl.")). The plaintiff filed an opposition to Dr. Beaudouin's motion (see ECF No. 130, Reply to Defendant's Memorandum of Law in Support of Defendant Beaudouin's Motion for Partial Reconsideration ("Pl. Opp'n")), and Dr. Beaudouin filed a reply brief (see ECF No. 144, Reply Memorandum of Law in Further Support of Defendant Beaudouin's Motion for Partial Reconsideration ("Beaudouin Reply")). After considering the parties' submissions and for the reasons set forth below, the court denies Dr. Beaudouin's motion for partial reconsideration.
I. Legal Standard for Reconsideration
"The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court, and 'is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.'" Mangino v. Inc. Vill. of Patchogue, 814 F. Supp. 2d 242, 247 (E.D.N.Y. 2011) (citations omitted). Local Civil Rule 6.3 provides that a party moving for reconsideration must set forth "concisely the matters or controlling decisions which counsel believes the court has overlooked." Local Civ. R. 6.3. "The major grounds justifying reconsideration are 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citation omitted).
"It is black letter law that a 'motion for reconsideration may not be used to advance new facts, issues or arguments not previously presented to the Court, nor may it be used as a vehicle for relitigating issues already decided by the Court.'" Nat'l Union Fire Ins. Co. v. Las Vegas Prof'l Football L.P., 409 F. App'x 401, 403 (2d Cir. 2010) (summary order) (citations omitted); see also Vornado Realty Trust v. Castlton Envtl. Contrs., LLC, No. 08-CV-04823 (DLI)(JO), 2011 U.S. Dist. LEXIS 132086, at *5 (E.D.N.Y. Nov. 16, 2011) ("Reconsideration is not a proper tool to repackage and relitigate arguments and issues already considered by the court in deciding the original motion." (citation omitted)). Undoubtedly, the "standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations omitted).
II. Dr. Beaudouin's Motion for Partial Reconsideration
Dr. Beaudouin moves for reconsideration of the court's denial of summary judgment on the Bivens claim on three grounds:
(1) the court incorrectly concluded that Dr. Beaudouin authored a treatment note dated November 12, 2006; (2) the court overlooked the fact that plaintiff himself limited his claim to the period between November 3, 2006 and November 13, 2006; and (3) the court incorrectly concluded that there were material disputed facts related to plaintiff's failure to exhaust his administrative remedies. Each one of these grounds will be discussed in turn.
A.The Treatment Note Dated November 12, 2006
In finding there is a genuine dispute of material fact as to whether Dr. Beaudouin was personally involved in the alleged violation of plaintiff's constitutional rights, the court noted a one-page, handwritten treatment note dated November 12, 2006 obtained from plaintiff's medical records while detained at MDC. (See ECF No. 74, Declaration of Alexandra Fridel, Exhibit L ("MDC Records"), at B000000041 (the "Treatment Note").) According to the Treatment Note, plaintiff complained of "pain in stomach" and stated that he "had difficulty making bowel movements" on that date, and the Treatment Note also contained notations of an apparent examination of plaintiff and findings regarding his heart, lungs, abdomen, and extremities. (Id.; see Urena I at 19.) Importantly, the Treatment Note contained Dr. Beaudouin's stamped signature and appeared to directly contradict the statement in his declaration in support of his motion for summary judgment that plaintiff's medical records do not indicate that he examined plaintiff between November 3 and November 13, 2006. (See Urena I at 19; ECF No. 69, Declaration of Dr. Beaudouin ¶ 6.)
Dr. Beaudouin, however, contends that "a close examination of the [Treatment Note] shows that it was prepared by a Physician's Assistant named Mitchell," and asserts that the handwriting is different. (Beaudouin Mem. at 3-4.) He further asserts that he did not author the Treatment Note or review it on November 12, 2006, but "merely entered a very short note" dated November 16, 2006 -- three days after plaintiff had been re-admitted to NYDH -- in a circle at the bottom right-hand corner of the Treatment Note stating that plaintiff had been hospitalized. (Id. at 3.) Although the court notes that defendant never submitted the underlying MDC medical records nor the explanation he now offers in connection with his motion for summary judgment, the court acknowledges that Dr. Beaudouin's explanation of the November 12, 2006 Treatment Note may be accepted by a jury.*fn4
Nonetheless, Dr. Beaudouin's decision to make such a notation on November 16, 2006 on the bottom of the Treatment Note dated November 12, 2006 is peculiar in light of his later supplemental declaration in support of reconsideration filed on September 12, 2011 that he did not recall treating plaintiff at any time after November 1, 2006, when plaintiff was purportedly transferred out of Dr. Beaudouin's building and treated thereafter by other physicians. (Beaudouin Decl. ¶¶ 5-7.)
Moreover, the medical record preceding the November 12, 2006 Treatment Note reveals a note authored by Dr. Beaudouin on November 7, 2006 requesting a follow-up MRI of plaintiff's abdomen and pelvis (see MDC Records at B000000042), and a subsequent medical note authored by a Dr. Goldstein on November 13, 2006 -- the day plaintiff was re-admitted to NYDH - documents plaintiff's complaints of pain and an inability to urinate for four days (see MDC Records at B000000040). Curiously, Dr. Beaudouin then claims to have noted on November 16, 2006, at the bottom of the November 12, 2006 Treatment Note, that plaintiff was readmitted to the hospital. Dr. Beaudouin fails to explain why he made notations in the plaintiff's medical records on November 7 and November 16, 2006 regarding plaintiff's MRI and hospitalization if he did not treat plaintiff after November 1, 2006.
Even if the court accepted the defendant's invitation to improperly act as a handwriting expert regarding the November 12 and November 16, 2006 treatment notes, and found that Dr. Beaudouin did not author the November 12, 2006 Treatment Note and did not have any interaction with plaintiff between November 1 and November 13, 2006 because Dr. Beaudouin and plaintiff were located in different buildings at MDC (see Beaudouin Decl. ¶ 7), these additional facts do not alter the conclusion reached by the court that there is a genuine dispute of material fact as to whether Dr. Beaudouin was personally involved in the alleged violation of plaintiff's constitutional rights during plaintiff's incarceration at MDC. As previously discussed in Urena I, Dr. Beaudouin "effectively ignores the allegations regarding the lack of care prior to plaintiff's first surgery" on November 2, 2006. (Urena I at 19-21.) For example, the record is replete with Dr. Beaudouin's notations documenting his numerous encounters with plaintiff and plaintiff's ongoing complaints relevant to his bladder cancer prior to November 2, 2006. (Id. at 19-21; see, e.g., MDC Records at B000000047 (notation dated July 7, 2006 stating that plaintiff complained of "seeing blood and pus upon urination x 1.5 years"); id. at B000000046 (notation dated July 20, 2006 stating the plaintiff complained of "blood in urine at times"); id. at B000000048 (notation dated September 6, 2006 stating that plaintiff complained of "seeing blood and pus . . . in urine once a month).)*fn5
Accordingly, resolving, as it must, all reasonable inferences and ambiguities in favor of the nonmoving party on a summary judgment motion, the court finds on the record before it that Dr. Beaudouin has not established in his original motion or on reconsideration that there is any basis to disturb the court's conclusion in Urena I that genuine disputes of material fact exist as to whether Dr. Beaudouin was personally involved in the alleged violation of plaintiff's constitutional rights.
B. Plaintiff's Limitation of His Claims to the Period Between November 3, 2006 and November 13, 2006
Relying on plaintiff's November 3, 2009 video-conference deposition testimony in response to questions posed by government counsel, Dr. Beaudouin asserts that plaintiff limited his Bivens claim to the time period between his discharge from NYDH to MDC on November 3, 2006 and his re-admission to NYDH on November 13, 2006. (Beaudouin Mem. at 5-8.) The court, however, rejects defendant's reliance on the ambiguous testimony of the pro se, non-English speaking plaintiff as a basis to foreclose claims properly alleged in the pro se complaint and reasserted in plaintiff's opposing papers.
First, Dr. Beaudouin raises arguments on reconsideration that are similar to arguments raised in connection with his motion for summary judgment and rejected by the court.*fn6 His more recent arguments do not involve any newly discovered evidence that could not have been presented to the court prior to its December 6, 2010 decision and is thus not appropriate for a motion for reconsideration. See Nat'l Union Fire Ins. Co., 409 F. App'x at 403.
Second, Dr. Beaudouin's selective citations to plaintiff's deposition testimony are unavailing in the context of his motion for reconsideration of his summary judgment motion. (Beaudouin Mem. at 5-6.) Defendant cites the following line of questions and responses during plaintiff's deposition. In response to defense counsel's question as to what plaintiff is "alleging was wrong with the medical treatment that you received while you were an inmate at MDC in Brooklyn," plaintiff responded, "[w]hat I allege in Brooklyn is that I was not given any appropriate treatment as I was about to die, no one took care of me. I was just there dying in my bed." (Id.; ECF No. 70-2, Transcript of Deposition of Jose Urena dated November 3, 2009 ("Urena Dep. Tr.") at 42-43.) Government counsel next asked, "what period in time do you claim that no one was giving you treatment," and plaintiff answered that "[a]fter the operation, that wrong operation, I never had any treatment," referring to the Trans-Urethral Resection of Bladder Tumor ("TURBT") procedure performed at NYDH on November 2, 2006. (Urena Dep. Tr. at 43.) Subsequently, when defense counsel sought to confirm that plaintiff is "not claiming that there was anything wrong with the treatment [he] received prior to the [November 2, 2006] surgery," plaintiff responded "Correct. After the operation I did not receive treatment." (Id. at 44.)
Contrary to defendant's contentions, plaintiff's answers do not lead to the conclusion that plaintiff "expressly narrowed his own claims to the time period between November 3 and November 13, 2006." (Beaudouin Mem. at 5.) Rather, plaintiff only reiterated that he did not receive appropriate treatment at MDC after the November 3, 2006 procedure. Defense counsel never asked plaintiff specific questions to elicit testimony regarding plaintiff's treatment or lack of treatment at MDC prior to November 3, 2006.
Indeed, prior to the foregoing line of questioning cited by Dr. Beaudouin, defense counsel stated, "[t]he way I read your complaint, you are complaining that Dr. Beaudouin in MDC did not provide you with proper medical treatment. Do you understand that those are the allegations you are making in this case?" (Urena Dep. Tr. at 37.) Plaintiff responded, "Yes, correct." (Id.) Defense counsel then asked plaintiff "[w]hat specifically do you claim that Dr. Beaudouin did wrong in connection with your medical treatment," and plaintiff responded, without any temporal limitation, that Dr. Beaudouin "is just part of what happened to me. They never really did give me any treatment. . . . The treatment, when I was in Brooklyn, they had to take me to emergency rooms because I was about to die. I couldn't stand it any longer." (Id.) As previously discussed, this reading of plaintiff's testimony is consistent with plaintiff's medical records, which establish that Dr. Beaudouin did in fact treat and examine plaintiff prior to November 3, 2006. Dr. Beaudouin cannot now on reconsideration argue that the pro se plaintiff expressly limited his claims arising prior to November 3, 2006, particularly where the plaintiff denies that he intended to abdandon any such claims. See Pl. Opp'n at 4 (stating that plaintiff sought medical treatment at MDC for a period of over one year and arguing that defense counsel -- "a skilled attorney" -- twisted the meanings of plaintiff's words during the deposition).
Third, as discussed in Urena I, plaintiff adequately alleged claims arising from Dr. Beaudouin's conduct at MDC prior to November 3, 2006 in the Amended Complaint, which is what defines plaintiff's claims. (See Urena I at 20 (quoting Amended Complaint ¶ II(D) ("After numerous requests for medical attention from symptoms I was experiencing, the health service unit of [MDC], under the directives of Dr. Beaudouin, Md [sic] finally sent me to an outside hospital for medical exam [sic] from my complaint[.] It took over one year for this to happen from the first time I reported this [sic] symptoms.")); see also ECF No. 45-2, Motion in Support of Claim ¶ 1 ("Mr. Urena asserts that while he was being housed at [MDC] . . . Mr. Urena started to experience pain around his bladder area. After several attempts at sick call [sic] to find out what the problem was Mr. Urena was finally taken to the [NYDH] . . . .")). Plaintiff's deposition testimony does not alter the court's conclusion in Urena I that the Amended Complaint "alleges that Dr. Beaudouin delayed in transferring plaintiff to a hospital for the initial diagnosis and surgery, in addition to alleging that [Dr. Beaudouin] failed to adequately monitor plaintiff's recovery in between the first and second surgeries." (Urena I at 20.)
Finally, a review of the entire transcript of plaintiff's deposition reveals that (1) it was taken by video-conference with government counsel and a Spanish interpreter located in Brooklyn, New York, and the plaintiff located in the Butner Federal Correctional Complex in Butner, North Carolina (Urena Dep. Tr. at 4); (2) the pro se plaintiff started the deposition without eating or taking his medication for diabetes (id. at 7-9); (3) on numerous questions and responses, the interpreter corrected herself or was corrected by the Assistant U.S. Attorney, or plaintiff's responses indicated a lack of comprehension (see, e.g., id. at 16:16-25, 20:12-16, 23:3-10, 27:9-14; 28:2-12, 29:21-30:19); and (4) plaintiff did not hear or understand some of the questions due either to language issues or noise (see, e.g., id. at 31:11-15, 31:24-32:4, 32:22-33:8). As noted in Urena I, the court cannot appropriately rule that the pro se plaintiff -- an inmate with a limited understanding of English who was deposed while in prison using a translator via a video teleconference -- has abandoned his claims for Dr. Beaudouin's alleged conduct prior to November 3, 2006, based on his answers to specific questions posed by defense counsel during plaintiff's deposition. Plaintiff's claims were properly alleged in the Amended Complaint, and are supported by plaintiff's medical records and his testimony. See Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) ("[S]pecial solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment. Pro se prisoners are, of course, entitled to at least the same solicitude." (internal citations omitted)). Indeed, plaintiff was neither specifically asked whether, nor did he expressly state during his deposition, that any claims for Dr. Beaudouin's conduct prior to November 3, 2006 were mistakenly brought or that he intended to abandon such claims.
Accordingly, the court finds that Dr. Beaudouin has not established on reconsideration that there is any basis to alter the court's conclusion in Urena I that plaintiff alleged a Bivens claim arising from Dr. Beaudouin's conduct at MDC prior to November 3, 2006 and that there is evidence in the record to support such a claim. There are thus genuine disputes of material fact as to whether Dr. Beaudouin was personally involved in the alleged violation of plaintiff's constitutional rights prior to November 3, 2006.
C.Plaintiff's Failure to Exhaust Administrative Remedies
Dr. Beaudouin offers several arguments for why the court incorrectly concluded that there were genuine disputes of material fact related to plaintiff's failure to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act ("PLRA"), which is an affirmative defense and not a jurisdictional predicate. See Handberry v. Thompson, 446 F.3d 335, 342 (2d Cir. 2006). None of Dr. Beaudouin's arguments merit reconsideration.
First, Dr. Beaudouin argues that even if there was a link between the BP-8 that plaintiff claims to have filed at MDC in 2006 and the Regional and Central Office Administrative Remedy Appeals forms dated October 15, 2007 accompanying plaintiff's original complaint, "the later forms would have been deemed untimely if they were meant to encompass the treatment he received at the MDC." (Beaudouin Mem. at 9.) An appeal by an inmate who is not satisfied with the Warden's response to his initial filing may be submitted "to the appropriate Regional Director within 20 calendar days of the date the Warden signed the response." 28 C.F.R. § 542.15(a) (emphasis added). There is no evidence in the current record of any written response by the Warden to plaintiff's BP-8, see 28 C.F.R. § 542.18; Amended Complaint ¶ IV(F)(2), and thus the court cannot determine whether plaintiff's filing of the appeals on October 15, 2007 was untimely.
Second, Dr. Beaudouin argues that the lack of a response to the alleged grievance that plaintiff filed in 2006 "constitutes a denial, which would have commenced the limitation period for filing an appeal," and that the filing of the appeals dated October 15, 2007 was thus untimely. (Beaudouin Mem. at 9-10 (citing 28 C.F.R. § 542.18 ("If the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level." (emphasis added)). In support of this contention, Dr. Beaudouin cites to Williams v. United States, No. 02 Civ. 6523 (HBP), 2004 U.S. Dist. LEXIS 7291 (S.D.N.Y. Apr. 26, 2004), a case finding that a pretrial detainee failed to comply with the PLRA's exhaustion requirement by not pursuing the final administrative remedy available to him -- an appeal to the General Counsel level -- when the Regional Director failed to respond to his grievance within thirty days. Id. at *27. In contrast to the Williams case, here there is evidence that the plaintiff did indeed pursue an appeal at the General Counsel level by filing the "Central Office Administrative Remedy Appeal" dated October 15, 2007, attached to his original complaint. (See Complaint at 8); 28 C.F.R. § 542.15(b)(1) ("Appeals to the General Counsel shall be submitted on the form designed for Central Office Appeals . . . .").
Because the court finds that there are genuine disputes of material fact as to whether plaintiff exhausted administrative remedies, the court need not decide whether a pro se inmate fails to exhaust administrative remedies by not deeming the absence of a response to be a denial, and not filing an appeal within twenty days after "the time allotted for reply" in the absence of a response to a BP-8 filed at his prison. See 28 C.F.R. §§ 542.15(a), 542.18; Wirth v. Menifee, No. 97 CIV. 8862 (DLC), 1998 U.S. Dist. LEXIS 2670, at *11-12 (S.D.N.Y. Mar. 9, 1998) (declining to reach the issue of "whether an inmate must file an appeal with the Central Office when the Regional Director has failed to respond" to satisfy the PLRA's exhaustion requirements (emphasis added)). The court notes that the language of the applicable regulation, 28 C.F.R. § 542.18, states that an inmate "may" consider the absence of a timely response to his administrative remedy request to be a denial, thereby permitting an inmate to appeal the absence of a timely response. This use of the permissive word, "may," strongly suggests that an inmate is not required to consider the absence of a timely response to be a denial, and thus is not required to appeal the absence of a timely response within a specific time period, if ever, in order to exhaust administrative remedies. See O'Connor v. Featherston, No. 01 Civ. 3251 (HB), 2002 U.S. Dist. LEXIS 7570, at *5-6 (S.D.N.Y. Apr. 29, 2002) ("[S]everal courts have held that an inmate may nonetheless defeat a motion to dismiss even when the requirements of administrative remedies have not technically been exhausted where . . . the state's time to respond to the grievance has expired." (citations omitted)).
Third, Dr. Beaudouin asserts that a "close review" of the Regional and Central Office Administrative Remedy Appeal forms accompanying plaintiff's original complaint demonstrates that plaintiff "is complaining about the treatment (or lack thereof) that he was receiving at the [Metropolitan Correctional Center] in October 2007 and not the treatment he received a year earlier at the MDC." (Beaudouin Mem. at 11.) Both appeal forms, however, reference a prior "internal surgery" related to "colon cancer" - presumably a reference to the November 2, 2006 TURBT procedure - and the Regional Administrative Remedy Appeal form further states that plaintiff "was brought to an outside hospital for colon cancer" and that an "[i]nternal surgery was done improperly. Not only is the cancer back, but they operated incorrectly damaging my kidneys." (Complaint at 8-9.) Both appeal forms also allege violations of the Fourteenth Amendment for denial of medical treatment to plaintiff. (Id.) Plaintiff testified at his deposition that he did not think he filed any other complaints or administrative remedy forms about conditions in the prison, apart from his complaint that he filed with various institutions about medical treatment in this case. (Urena Dep. Tr. at 31.) Although plaintiff also refers in the appeal forms to the fact that a physician's assistant told him on October 1, 2007 that no hospital would admit plaintiff due to a malpractice suit, the court, resolving all reasonable inferences and ambiguities in favor of the nonmoving party, finds that the appeal forms are at least partly related to plaintiff's treatment at MDC and his surgical operations in November 2006.
Fourth, Dr. Beaudouin contends that "the Court too quickly dismisses plaintiff's initial admission that he did not exhaust his administrative remedies in this case." (Beaudouin Mem. at 11.) As previously noted, however, special solicitude must be afforded to pro se litigants, Graham, 848 F.2d at 344, particularly when determining whether to bind a pro se litigant to statements in a submission where there is contrary evidence in the record. The admission referenced by Dr. Beaudouin was included in plaintiff's response to a discovery motion dated December 3, 2009 (see ECF No. 57, Motion to Compel/Response at 2), prior to which plaintiff alleged in his original complaint that he filed a grievance via a BP-8 form at MDC in 2006 and that he did not receive a response from MDC (see Complaint ¶ IV(F)). As noted above, plaintiff also attached the Regional and Central Office Administrative Remedy Appeal forms to his original complaint prior to the December 3, 2009 admission. (Id. at 8-9.) Dr. Beaudouin's claim that plaintiff only "began to advance arguments that he did not receive a response to his BP-8" after defendants moved for summary judgment (Beaudouin Mem. at 11) is thus factually inaccurate.
Further, it is well-settled in the Second Circuit that "the statutory requirement to exhaust administrative remedies under the PLRA d[oes] not affect a court's jurisdiction to hear the case," and "a litigant's failure to exhaust in the PLRA context is an affirmative defense that can be waived." Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 445 (2d Cir. 2006) (citations omitted). Moreover, the Second Circuit has recognized that "there are certain 'special circumstances' in which, though administrative remedies may have been available . . ., the prisoner's failure to comply with administrative procedural requirements may nevertheless have been justified." Giano v. Goord, 380 F.3d 670, 676-78 (2d Cir. 2004) (finding that plaintiff's reasonable interpretation of prison regulations constituted such "special circumstances"). Because there are genuine disputes of material fact regarding whether plaintiff exhausted his administrative remedies, the court need not address at this time whether there are any "special circumstances" justifying plaintiff's purported failure to exhaust his administrative remedies, as asserted by Dr. Beaudouin as part of his affirmative defense.
Accordingly, the court finds that Dr. Beaudouin has not established on reconsideration that there is any basis to disturb the court's conclusion in Urena I that genuine disputes of material fact exist as to whether plaintiff exhausted his administrative remedies.
Because Dr. Beaudouin does not present on reconsideration an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice, Cordero v. Astrue, 574 F. Supp. 2d 373, 379-80 (S.D.N.Y. 2008), the court denies Dr. Beaudouin's motion for partial reconsideration of the court's denial of summary judgment on plaintiff's Bivens claim. The parties shall contact Magistrate Judge Bloom by April 19, 2012 for the scheduling of a settlement conference. The defendant shall serve a copy of this Memorandum and Order on the pro se plaintiff by April 9, 2012 and file a certificate of service by April 10, 2012.
KIYO A. MATSUMOTO United States District Judge Eastern District of New York
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George..The Middle East,its happening right now..Just like I said..There is no stopping it..Stay safe and peace to you..
No chemtrails in my area for 7 months..No need for them anymore..
The Hammer
Paranoid loser
Anonymous Coward 25792038
You are the biggest loser for not listening to me..Its 1 year and its happening..There is no need for chemtrailing anymore..Its in the cards ,the die is cast,get ready for the big blast!!..Just like I was told..One more thing,Chemtrails are real in every shape or form..Have a good day!!..
The Hammer
I love how you act as if this Middle East thing is a sign that your prophecy is coming true.
That region has been a violent hotbed...FOREVER!
This is just a upswing in violence...and the downswing will come soon enough. It always does...
There will be no "big blast".
By the way, I still see the same trails....all the time in my area. Why?! If there is "no need" for them, why do I see them?
You are a nutjob...and always will be. Seek some medical attention.
Anonymous Coward 1211465
You see the chemtrails??..You acknowledge they exist!!..Im so proud of you for admitting that..There is more to the story then what your feeble mind can comprehend..This is the big one,buy some twinkies..They have a shelf life of 20 years..1 year,just like I was told..Garry Owen!!..
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Washington Post Just Blew The Lid On #PizzaGate Big League
Militia Members Are Preparing for Potential Chaos As Election Nears
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Proof That The Elite Really Do Want A Global Society With No Possessions, No Privacy And No Freedom
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Polar Plunge to invade majority of US this week
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These 2 toys are spying on your kids
Growing new bone from corals raised in the Israeli desert
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How Facebook and Google help camouflage fake news
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80s 90s NOW CARTOONS ILLUMINATI
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WORD: 5 Stories The Mainstream Media Reported as Real, But They Were Fake
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1712 E Guadalupe Rd. Suite 109
Tempe, AZ 85283
As your child's permanent teeth grow in, Tempe area dentist Dr. Stacy Tracy can help seal out decay by applying a thin wash of resin to your child's back teeth, where most chewing occurs. Dr. Tracy stresses the importance of this treatment, as this sealant provides a protective coating that keeps bacteria from settling in the hard-to-reach crevices of your child's molars.
Would you like your smile to be a bit brighter than it is right now? We can make it happen at Tempe Smile Design, with professional tooth whitening for brighter natural looking teeth. Dr. Stacy Tracy's Tempe, AZ area office can effectively lighten your stained or discolored tooth enamel. Whiter teeth not only look great, they improve your self-confidence.
Tempe Smile Design is a trusted Tempe area dental implants practice providing natural-looking, comfortable tooth replacement. We make it our mission to use a gentle touch during the process.
We hold ourselves to the highest standards to replace missing teeth and provide you with natural-looking results. Our goal is to restore your confidence and your bright, healthy smile.
If you're looking for clear braces in the Tempe area, our team at Tempe Smile Design provides them. We'll be happy to discuss your situation and create your individual treatment plan for invisible dental braces.
We have extensive knowledge about the different kinds of orthodontic treatments available today. We're committed to creating the straight teeth and happy smile you're looking for.
Tempe area Invisalign® dentist Stacy Tracy, D.D.S. is happy to provide your new clear braces. At Tempe Smile Design, we want you to have the straight teeth and beautiful smile you desire.
We're happy to assess your needs create your individual treatment plan for braces. You may be able to have your new Invisalign® aligners sooner than you think!
Lammot, Thomas D.D.S.
20950 N Tatum Blvd # 210
Phoenix, AZ, 85050-4268
Burros, David G D.D.S.
1011 N Craycroft Rd # 107
Tucson, AZ, 85711-7310
Valley Endodontic Specialty
310 N Wilmot Rd # 102
Tucson, AZ, 85711-2626
Melde, Mark D.D.S.
2851 S Avenue B # 13-A
Yuma, AZ, 85364-7726
Cosmetic dentistry is everywhere these days.
With new materials, especially dental "superglues," we're reshaping teeth, filling gaps between teeth, restoring broken teeth, replacing missing teeth, placing lighter braces. The technique is called dental bonding, and the aesthetic result is wonderful.
But it's not forever.
The American Dental Association puts the life of tooth bonding materials at about five years. This may be a conservative estimate, but there will come a time when a bond needs attention.
In general, if you treat a bonded tooth like your other teeth, you'll keep your dental restoration intact longer. Lax home care habits or the wrong foods can hasten wear and tear.
So go easy. If your tooth restoration is brand new, or years old and still flawless, keep smiling. With care, we've seen dental bonding last a long, long time.
Here are some reminders to help lengthen the life of your dental restoration.
A general dentist attends four years of dental school after college and receives training in all areas of dentistry, including fillings, crowns, cleaning teeth, root canals, extracting teeth and much more. At the completion of this training period, a dentist can either go out and open a dental practice or continue on with their education and specialize in any of the above-mentioned areas. For example, an orthodontist is a specialist in braces.
A prosthodontist is a specialist in the restoration and replacement of broken and missing teeth. Their additional training lasts three years. During that time, they are taught in greater detail about both removable and fixed prosthodontics.
Removable Prosthodontics includes replacing missing teeth with appliances that the patients themselves can take in and out of their mouth, such as dentures and partial dentures.
Fixed prosthodontics includes replacing missing and/or broken teeth with restorations that the patient cannot take in and out, such as veneers, dental crowns, bridges and implants.
The most important part of the training is how to restore teeth in a variety of different situations so that the end result is the most esthetic and predictable outcome possible. The types of cases seen in cosmetic dentistry are often more comprehensive and complex in nature. They often involve the combination of crowns and implants or can even be as involved as placing crowns on every tooth in a person's mouth.
To do this, prosthodontists are trained to evaluate all the different aspects of your teeth and mouth. They observe and treat your mouth with regards to:
By evaluating these different areas, the prosthodontist can treat one area of your mouth, but also will determine how other areas will impact the treatment. In essence, a prosthodontist looks at your mouth as a whole, even though there may be only one tooth requiring treatment.
Often times, especially in cases involving multiple and/or missing teeth, the involvement of other specialists and cosmetic dentistry will be needed to help with treatment. These specialists include orthodontists (to straighten or move teeth using braces), periodontists (for gum surgeries and placement of implants), endodontists (root canals) and oral surgeons (for the extraction of teeth and placement of implants). In essence, the prosthodontist acts as the coordinator to help sequence the proper treatment before the final restorations are placed. Often times, treatment can take longer to complete, especially if other specialists are involved. In taking a complete approach, you can be assured that you will end up with the most esthetic and reliable treatment, whether it involves one or all of your teeth.
By Greggory Kinzer, DDS, MSD


text:
hiphop knowledge lyrics – krs-one
you know.. life is funny..
if you don't repeat the actions of your own success
you won't be successful
you gotta know your own formula, your own ingredients
what made you, you..
1987 i was at the latin quarters
listenin to afrika bambaata give the order
the call of the order was to avoid the slaughter
he said, "record companies ain't got nuttin for ya!"
without a lawyer, he taught the infinity lessons
in how hip-hop could be a, many a blessing
and that was great, so in 1988
there was no debate, we had to end the hate
the name of the game was "stop the violence"
and unity, knowledge, and self-reliance
we – started talkin bout martin and malcolm
had these ghetto kids goin, "huh, what about him?"
1989, professor griff speaks his mind
but his freedom of speech is declined
1990 came with the west coast
east coast, west coast, who is the best coast?
lookin back now, of course it was bogus
the whole argument was where we lost focus
we got hopeless; not with the lyrics and music
but with hip-hop, and how we used it
or abused it, you know how the crew get
"you like it cause you choose it"
1991, we opened our eyes
with human education against lies, we tried
to talk about the state of humanity
but all these others rappers got mad at me
they called me "captain human", another message was sent
"self destruction don't pay the {f*ckin} rent"
remember that? n*body wanted conscious rap
it was like – where these ballers at?
where can they call us at? all was wack
hip-hop culture was fallin flat and that was that
so in 1992, i found my crew
they said, "yo kris, what you wanna do?"
i said, "d*mn – why they wanna get with me?
if i bust they {sh*t} i'm contradictory.
if i play the b*tch role, they take my shoe.
tell me what the {f*ck} am i supposed to do?"
so i did it, don't stop get it get it get it
all of a sudden these critics they wanna spit it
"kay are ess one is con-tra-dic-to-ry"
just cause i wouldn't let these rappers get with me
{f*ck} that, {f*ck} you and {f*ck} your pen
if a rapper wanna diss, yo i'd do it again
but i'm makin these ends, and i got my friends
and i really don't wanna have to sit in the pen
so i go back to the philosopher
1993 hip-hop is uhh.. wack
go back, check the facts
1994, "return of the boom bap"
it wasn't all about the loot
it was all about harry allen rhythm cultural inst*tute
blowin up, 1995
conscious rap is still alive
but n*body wanna play it, n*body wanna say it
n*body okayed it, they'd all rather hate it
1996 it really don't stop
we put together somethin called the temple of hip-hop
not just djin, breakin, graf and lyrics
but how hip-hop affects the spirit
"step into a world," that's what i did
1997 i was raisin my kid
or kids, but i, had to go
cause new york dj's changed the flows
to clothes and hoes, but that wasn't me
i'll be d*mned if i dance for the mtv
so in 1998 i began to debate
should i go now, or should i really wait?
'99, i moved to l.a. you see
and took a gig with the wb
started studyin philosophy full-time
to have a full heart, full body, full mind
but you know what the problem is or was?
dj's don't raise our kids, cuz
they so caught up in the cash and jewels
how they gonna really see a hip-hop school?
how they gonna really see a hip-hop temple?
they don't even wanna play my instrumentals, but
big up dr. dre, snoop, xzibit
especially xzibit, he was there in a minute
mic conception, all of them, said
"yo you need help? i should call them"
when i was in l.a., i held the crown
bloods, crips, they held me down
i could never forget mad lion, killer pride
with the gat in the lap in the low-ride
oh i can't forget, icy ice, lucky lou
julio g, that was the crew
davey d, ingrid, david connor
the list goes on and on, let me tell ya
fredwreck, and my man protest
much respect, no less
to my spiritual and mental defenders
big up to l.a., temple members
but in 2000, i seen how i wanted to live
i wasn't no executive
so i picked up the mic and i quit my job
said to simone i gotta get with god
she said, "don't worry bout these dollars and quarters.
record companies ain't got nuttin for ya."
d*mn, she took me back to bam!
took me back to who i am!
brought me back to the new york land!
now i overstand!..
now krs-one, now you've been quoted as saying that
rap is something we do, hip-hop is something you live.
{krs} yes!
explain that to us please.
well, well, today hip-hop, we are advocating that hip-hop is not,
just a music, it is an att*tude, it is an awareness, it is a way
to view the world. so rap music, is something we do, but hip-hop,
is something we live. and we look at hip-hop, in it's 9 elements;
which is breaking, emceeing, graffiti art, deejaying, beatboxing,
street fashion, street language, street knowledge, and street
entrepenurialism – trade and business. and uhh, that's where y'know
that's the hip-hop that that that we're about. we come from the uhh
the root of, of kool dj herc, who originated hip-hop in the early 70's
and then afrika bambaata and zulu nation (mmhmm)
who instigated something called the infinity lessons
and added conciousness to hip-hop, and then grandmaster flash
with the invention of the mixer, on to run-d.m.c. and then myself.
and uhh, we created the "stop the violence" movement, you may recall
a song, "self destruction" and and and so on. all of this, goes to
uhh uhh, the idea of living this culture out and taking responsibility
for how it looks and and acts in society.


text: Nice theatre to see a fairly recent movie. Price went up to $2.00 not too long ago. On Tuesday's only a buck for the movie. Also small sodas, hot dogs, small popcorn are all a dollar each. Never very crowded so you can sit where you like to sit when you go to a movie with no problem.


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SMART NET is a sporting leisure product that enables players to enjoy table tennis more conveniently.
SMART NET is a LED net that keeps track of the scores and the game situation through infrared ray sensor recognition. The information is displayed via the optical fibre net. This LED net is also more durable and sustainable than regular table tennis nets as it utilises a flexible LED sheet. Furthermore, its module parts can be replaced without replacing the whole net. Simply set up the SMART NET and use like you would a regular table tennis net.
Kim Juyoung, Choi Chang, Prof. Baek Junghoon
South Korea


text:
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Found 25 Archaeology tutors in Anaheim, CA 92801 – page 1 of 3.
Los Angeles 90048 · 29 miles from 92801 · $150/hour · teaches Applied Math, Archaeology
I've scored perfectly on the recent SAT (2400) and in the top 99th percentile when I was in high school. I've also scored 36/36 (composite) on the ACT.Green Apple rating, member for 2 years and 12 months
Anaheim 92806 · 5 miles from downtown · $30/hour · teaches anthropology - archaeology -
I have always found tutoring to be a very enriching way to earn a living. I started in college when I worked for the AmericaReads program at Kansas University.certified
Upland 91786 · 25 miles from 92801 · $50/hour · teaches Anthropology, Archaeology, Art
I have two Master's, one in International Policy Studies and another in Public Administration, as well as a Bachelor of Arts degree in French and Spanish Languages...Green Apple rating, member for 11 months
Orange 92867 · 7 miles from 92801 · $40/hour · teaches anthropology - archaeology -
I have been working in the field of education (both K-12 and University level) for almost a decade now, both as a regular teacher, a teacher in the Alternative Ed system...certified
Huntington Beach 92647 · 9 miles from 92801 · $48/hour · teaches anthropology -
I've been fingerprinted and TB tested and can provide this information upon request. I have taught preschool, K-12, and ESL(English as Second Language)in adult education over...certified
Fountain Valley 92708 · 9 miles from 92801 · $50/hour · teaches anthropology -
For me, learning is guided by an innate interest in the world, and as a student of life, I want to instill that same eagerness to participate I've developed since childhood.certified
Los Angeles 90041 · 25 miles from 92801 · $60/hour · teaches archaeology - elementary
Originally beginning with Archaeology and Philosophy, I quickly expanded my subjects to include the other Humanities given my rigorous university background.certified
Huntington Beach 92648 · 12 miles from 92801 · $40/hour · teaches anthropology -
I am an experienced historian and social scientist with a specialization in American and European History, and International Relations. I have lectured and spoken on scores of...certified
Costa Mesa 92626 · 12 miles from 92801 · $65/hour · teaches anthropology - archaeology
Do you want to be a better photographer? Do you want to be a whiz at Photoshop? Learn from a professional digital photographer with more than 10 years in the industry!certified
Long Beach 90810 · 15 miles from 92801 · $27/hour · teaches anthropology - archaeology
My name is Tim Potter. I hold a current California State Teaching Credential in Social Science and am a Level 1 certified tutor under the auspices of the College Reading...certified


text:
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Having unnecessary fat in various locations of your body can have a considerable influence on your health and self-confidence. While traditional weight-loss through exercise and diet is a terrific method to slim down overall, even the best workouts cannot target issue areas like the belly, inner thighs, arms, and buttocks. Liposuction is a time checked treatment that is utilized to eliminate excess fat from particular locations of the body, permitting an individual to form and contour their body to their taste. Is liposuction right for you? Discover now.
Pros of Liposuction
There are numerous advantages to this cosmetic procedure, including:
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• Recovery time is typically quickly. The downtime required after having this type of procedure is typically much less than what is required for other types of cosmetic treatments, consisting of tummy tucks, breast reduction, and more. Individuals who have had the treatment can often go back to work far more rapidly than they prepared for and can return to living a healthy, active lifestyle.
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While there countless advantages to liposuction, there are obviously a couple of caveats that need to be taken into account before making the final decision to progress with the treatment.
Cons of Liposuction
Before having actually liposuction done, it is necessary to examine the potential downsides of the treatment and figure out if the advantages outweigh the threats in your certain case. Your cosmetic surgeon can help you learn more about the risks related to the treatment and can help you decide if progressing is the ideal thing for you.
• Problems with basic anesthesia. Due to the fact that liposuction is carried out under basic anesthesia, the treatment carries the very same dangers as other kind of surgical treatment where basic anesthesia is used. Underlying medical conditions may increase these risks.
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Although there are threats related to liposuction, for lots of people, the advantages far outweigh them. Educate yourself about the treatment by having thorough discussions with your cosmetic surgeon and think about how liposuction has the prospective to impact you as an unique person. Just you and your specialist can figure out if liposuction will provide you with the outcomes you are searching for within your expectations.
Laser Liposuction procedure is a new non invasive procedure to loose unwanted bodyfat in Bloomfield CT
Laser liposuction is a newer, minimally invasive procedure that involves heating the fat cells to melting point and removing the melted fat through a little cannula. The treatment is normally done right in your doctor's office and is an exceptional alternative for individuals who have less than 500 ml of fat to remove from any one location. Laser liposuction can be a safe, complementary treatment to weight reduction in order to shape the body you've constantly desired.
Contact a Cosmetic surgeon in your Bloomfield CT today.
If you're thinking about liposuction as a weight reduction solution, it's important that you discuss your desires with a qualified cosmetic surgeon in your area. Your surgeon will carry out a total test and health history survey to identify if liposuction can benefit you and assist you reach your physical and emotional goals. Call today for a consultation and find out more about how liposuction can help you achieve the body of your dreams.


text:
- Product Details
This Personalised Black Glass Photo Frame - Rose Heart is a wonderful way to show someone how much you care.
Whether you want to treat your Mum on Mother's Day or impress your Girlfriend on Valentine's Day. Nothing says "I love you" better.
Two lines of your own personalised text will sit below the central aperture. You can then choose the 6x4 or 7x5 image that sits inside, depending on the size of frame you have chosen.
The entire gift will then be finished to the highest quality, offering an elegant addition to any living room, dining room or bedroom.
Then every time your lucky recipient looks at her favourite image, she is only going to be thinking of you. Thanking her lucky stars that there is someone out there that thinks she is worth such a very special gift.
Measures approx: 6X4 - 17cm x 22cm and 7x5 - 20cm x 25cm
- Delivery & Returns
We are aware of how important it is for you to receive your gifts in time. Therefore, once you place your order we will process straight away and dispatch as soon as they are ready to go. We usually dispatch all items within 1-3 days however, this may be a little longer during special occasions such as Christmas. If multiple items ordered, we may dispatch items separately or all together, depending on the process.
Hassle Free Returns Policy:
We're sure that you will be satisfied with your purchase and we also understand that sometimes you may want to return. We keep this process simple! Just contact us if you wish to return goods. Please note: personalised, made-to-order and perishable items are non-refundable.
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Question about: Personalised Black Glass Photo Frame - Rose HeartPlease do not include or disclose any sensitive personal information, password or credit card information in your message. Your personal security is extremely important to us.No questions yet. Be the first to ask the question!
Show more products in Personalised Photo Frames


text:
15 January 2015
A new study has found that snail venom could potentially be used to treat and detect cancer.
Professor Frank Mari, from the Department of Chemistry and Biochemistry at Florida Atlantic University's Charles E. Schmidt College of Science, said that venom from marine molluscs like cone snails is used to immobilise prey such as worms.
The venom selectively target cells in the body, which makes them of powerful potential use for drug development. In addition, it is hoped that knowing more about the venom will enable researchers to understand the human body's processes better.
One class of venom components, of which there are many, is the alpha-conotoxins that target nicotinic receptors, which are linked to a range of diseases from Alzheimer's disease to lung cancer and schizophrenia.
Published in the Journal of Biological Chemistry, the study focused on the the venom of a particular species of cone snail - Conus regius.
Professor Marí said: "Our aim is to open new avenues for cancer and addiction research inspired on compounds from marine animals."
Posted by Edward Bartel
Health News is provided by Adfero in collaboration with Spire Healthcare. Please note that all copy above is ©Adfero Ltd. and does not reflect views or opinions of Spire Healthcare unless explicitly stated. Additional comments on the page from individual Spire consultants do not necessarily reflect the views or opinions of other consultants or Spire Healthcare.
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Santa will be at the New Germany City Hall Saturday, Dec. 3 from 8 to 11 a.m. Free will donation. Bring your camera.
Archive for New Germany
Waverly, Mayer, and Lester Prairie residents hurt in Highway 7 crashes
McLEOD, CARVER COUNTIES, MN – Two separate crashes were reported on Highway 7 recently, one near Mayer, and one near Lester Prairie.
The first occurred Nov. 25 at about 10:43 a.m., according to the Minnesota State Patrol.
Lillian Dammann, 83, of Lester Prairie was driving a 1999 Ford Taurus north on Babcock Avenue when her vehicle collided with Darlene Hemond, 80, of Spicer, who was driving a 2012 Ford Fusion east on Highway 7.
Dammann was transported to Ridgeview Hospital in Waconia with non-life threatening injuries, the state patrol reported. No injuries were reported for Hemond. Both women were wearing their seatbelts at the time of the crash.
The Lester Prairie Fire Department, the McLeod County Sheriff's Office, and Ridgeview Ambulance assisted at the scene.
The second crash on Highway 7 occurred Wednesday at 5:32 p.m.
The state patrol reported that Paul Wren, 83, of Mayer, was driving a 1999 Chevy Silverado north on Carver County Road 123 when his vehicle was struck by a 2008 Toyota Prius heading west on Highway 7.
Wren was transported to Hennepin County Medical Center with serious injuries.
The driver of the Toyota Prius, Timothy LePage, 53, of Waverly, was transported to Ridgeview Hospital in Waconia with non-life threatening injuries.
According to the state patrol, LePage was wearing his seatbelt at the time of the crash, and Wren was not.
Waconia man missing after paddleboarding on lake
WACONIA, MN – The Carver County Sheriff Office is investigating an incident on Lake Waconia that was reported Nov. 26 just after 3 p.m., according to a press release.
The caller stated that an unoccupied paddleboard was seen about 100 feet offshore. Deputies learned Andrew John Stifter, 35, of Waconia had gone to Lake Waconia to photograph wildlife from his paddleboard. A search began, and sheriff's deputies were able to recover property believed to belong to Stifter, but were unable to find Stifter.
Anyone with information related to this incident is asked to contact the Carver County Sheriff's Office at (952) 361-1231 or use the tip line (952) 361-1224.
Live entertainment at Down South Bar & Grill
SPONSORED POST. One Hick Jeff will perform live entertainment Sunday, Nov. 27 at Down South Bar & Grill, New Germany.
Bingo Nov. 22 at New Germany Hall
New Germany Legion will host a bingo night Tuesday, Nov. 22 at 7 p.m. at the New Germany Hall. Three $50 cash prizes will be given away at a drawing as well as a turkey door prizes. Proceeds benefit community activities and support needs of veterans.
Star-studded lineup to make its way to Winsted next June
Keith Urban. Brantley Gilbert. Little Big Town. Lynyrd Skynyrd.
And that's not even half of the artists announced by K102 this morning who will perform at the 24th annual Winstock Country Music Festival Friday and Saturday, June 9-10, 2017, in Winsted.
Also joining the fun on Winstock's main stage will be LOCASH, Tucker Beathard, Drake White and the Big Fire, Lindsay Ell, Chris Hawkey, and Dylan Jakobsen. Artists set to perform on the Emerging Artist Stage and elsewhere at Winstock are Ryan Hurd, Brooke Eden, Runaway June, Shane Martin, and Copperhead Creek.
"This artist lineup, all the way through, is likely the most solid roster of entertainment we've ever been able to provide," said Winstock Country Music Festival Chairman Dave Danielson. "To have that many top artists of that caliber at Winstock is really a testament to the long-standing success and reputation of our event and to the hard work of our terrific volunteers every year."
Gilbert was announced at this year's event as a Winstock '17 performer. Tickets and camping passes for the 2017 event went on sale Oct. 3 and are selling fast.
VIP tickets for 2017 sold out at this year's event. Reserved seating ($175) and general admission ($110) through the early-bird deadline of April 15, 2017 are available at shop.winstockfestival.com or by calling (320) 485-4287. Camping passes ($120) and extra vehicle passes ($25) are also available.
About the artists
Keith Urban, who will headline Friday, June 9, is an artist truly at the top of his game, and he has become known as one of the most innovative, progressive artists of his time. As evident with his recent full-house performance at the Target Center Nov. 5, Urban and his creativity continue to move forward.
"I spoke to several people who saw Keith perform at the Target Center and they said it was one of the best shows they've ever seen," Danielson said. "From his interaction and relating to the crowd, to song selection, to the huge confetti display toward the end of the show, it sounded top-notch all the way through."
Gilbert, Saturday night's closing act at Winstock '17, has a voice that is an instrument of emotion, and he conducts the crowds at his live shows like a country rock orchestra of human experience. He has won over fans and has created his own BG Nation, which will soon include the Winstock audience.
Little Big Town, having become known as the Fleetwood Mac of country music, also left quite the impression on Minnesota when the band appeared on Luke Bryan's Kill the Lights Tour at US Bank Stadium's inaugural country concert Aug. 20. They first entered the music scene more than 18 years ago and have brought hits such as "Boondocks," "Bring It On Home," "Good As Gone" and "Little White Church" since then. The hits continue with their latest single, the Taylor Swift-written "Better Man." The band will perform at Winstock Friday, June 9.
Rock & Roll Hall of Famers Lynyrd Skynyrd remain a cultural icon that appeals to all generations. The group brings a catalog of more than 60 albums, sales beyond 30 million worldwide, and their beloved classic American rock anthem "Sweet Home Alabama," which has more than two million downloaded ringtones, all to Winsted. This will mark the band's second Winstock appearance – having taken the stage 10 years ago in 2006 – and drawing one of the biggest walk-up crowds in the festival's history. Lynyrd Skynyrd will take the Winstock '17 stage Saturday, June 10.
LOCASH's Chris Lucas and Preston Brust will also deliver infectious energy to the Winstock stage Saturday afternoon with hits such as "I Know Somebody," and "I Love This Life."
His father is a hit songwriter, his brothers star quarterbacks, and Tucker Beathard is quickly on his way to becoming a country music superstar. Beathard, who served as the inspiration for his father to write the Eric Church hit "Homeboy," will bring his own brand of country music to the Winstock stage Saturday.
Drake White and the Fire and Lindsay Ell round out the national acts who will be performing on the main stage, along with fan favorite Chris Hawkey and Winstock newcomer Dylan Jakobsen. Those who have witnessed bearded Seattle native Jakobsen perform live can testify to the energy and raw emotion he pours onto the stage every night.
Winstock '17 emerging artists Ryan Hurd, Brooke Eden, and Runaway June are all making their mark on the industry, and each have projects in the works that are going to bring them into the spotlight in 2017. Shane Martin and Copperhead Creek round out the entertainment lineup for next year's festival. Complete artist information and the performance schedule may be found by following the link from the website below.
"We're excited to have been able to announce our complete lineup in one shot," Danielson said. "We know this is a bit later than we've announced in the recent past, but we're confident our fans will agree it was worth the wait."
More information
For additional announcements, Rumble on the Road nights, promotions, sponsor and ticket information, and everything Winstock, continue to follow our website, sign up for Winstock E-mail news, follow the festival on Twitter @WinstockMN, and like Winstock on Facebook. New for 2017, Winstock is also on Instagram and Snapchat.


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About Kona Grill - Boise
Please Note: Kona Grill can not reserve patio seating.
Kona Grill offers diners freshly prepared food, personalized service, and a warm contemporary ambiance that creates an exceptional, yet affordable dining experience. The diverse menu includes a wide variety of mainstream American dishes, as well as a variety of entrees and appetizers with an international influence. Specialties include Baked Sea Bass in a miso-sake marinade, Filets, Almond Crusted Pork Tenderloin, and Kona Grill's signature dish - Macadamia Nut Chicken. Kona Grill also features an award-winning sushi menu containing all of the traditional favorites plus several unique dishes created by talented sushi chefs.
Dining Style:
Casual Elegant
Contemporary American, Sushi
Hours of Operation:
Mon - Thurs: 11a-10p
Fri - Sat: 11a-11p
Sun: 11a-10p
Cross Street:
Eagle Rd & Fairview Ave
Dress Code:
Casual Dress
Price Range:
$30 and under
Payment Options
AMEX, Diners Club, Discover, MasterCard, Visa
Phone Number:
(208) 922-6511
Bar Dining, Bar/Lounge, Beer, Full Bar, Gluten-free Menu, Happy Hour, Late Night, Outdoor dining, Outdoor Smoking Area, Takeout, Wheelchair Access, Wine
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Kona Grill - Boise Ratings and Reviews
Great food, great dining experience, But ...
Great food, great dining experience,
But number one Excellence is the Staff, Especially the Senior management. allowing special conditions for the dining experience for such a special award dinner for family and friends.
Thank you
The dining experience we had was wonderf ...
The dining experience we had was wonderful.
The filet was the best tasting and I have been to many high priced restaurants, also the carrots and mushrooms were great. I would definitely recommend everyone to try it, you will go back like I will
Went to dinner to celebrate my friends b ...
Went to dinner to celebrate my friends birthday. I wanted to order another drink but the waiter was no where to be seen and service was pretty slow to be honest. Our waiter didn't really check up on us to see if we wanted more drinks or not, so that was kinda disappointing. Other than that the food was very good, and loved the atmosphere. :) I will still go back.
We arrived for our reservation right on ...
We arrived for our reservation right on time but weren't seated until 15-20 mins later. It seemed the hostess forgot about us but when we complained, we were seated right away and given a complimentary appetizer on the house. We appreciated Kona Grill taking care of us that way.
I dine and entertain at Kona Grill often ...
I dine and entertain at Kona Grill often. The food is consistently excellent and service is great. The seasonal specials are creative and tasty. The restaurant has an excellent location in The Village at Meridian. The patio faces the fountain and had warmers that make the dining pleasant even when the weather is cool.
I took my wife for a belated birthday di ...
I took my wife for a belated birthday dinner, the food was delicious...I had the pork tenderloin, she had the salmon. It was the first time we'd ordered something besides sushi (which is wonderful!) our server Chase was first class and catered to our every need. We will return!
I was really looking forward to the happ ...
I was really looking forward to the happy hour menu. I ended up extremely disappointed when I found out I couldn't order happy hour specials in the reserved dining area. I see no reason why that can't be accommodated. I had only previously dined in the bar area but made reservations since the kids were coming with us.
I have continuously invited friends, fam ...
I have continuously invited friends, family and business associates to dine at the Kona Grill and have continuously been more than impressed; the food is excellent, the presentation delightful and the service very personable.
Calamari, followed by Miso-Sake sea bass and encrusted chicken breasts!
Food was over cooked, including appetize ...
Food was over cooked, including appetizers. The sea bass, besides being overlooked had a strong ammonia flavor indicating it was spoiled. Was my wife's birthday and didn't want to spoil her evening, otherwise I would have complained. Service was good, but not coming back for a while.
Our steamed rice was undercooked. Our f ...
Our steamed rice was undercooked. Our fried rice was overcooked - there were clumps of dried out rice that looked like it was sitting in the bottom of the pan. I ordered the miso sea bass and my portion was very small. I had ordered it before and this time it was a huge disappointment. Food was very greasy too.
This is the third time going to Kona Gri ...
This is the third time going to Kona Grill. First time was awesome, somewhat less the next 2 times! The place is visually appealing. The wait staff tries but seems overwhelmed. Forgot our appetizer, which finally came with the main courses! Hubbies fish was wonderful, but everyone else's was just ok!!! Don't know if i will go back again!?
My wife and I were celebrating our birth ...
My wife and I were celebrating our birthdays and had a gift certificate to Kona Grill. Our waiter was friendly and attentive to our needs. He was perhaps the part of our experience. We were seated at a table next to to the food preparation area which had a low glass partition between us and the noise of pans and dishes in the kitchen. I wear hearing aids so the back ground noise made conversation very difficult. I did not hear our waiter say that there would be a complimentary dessert and ordered a dessert separately. He questioned my order according to my wife but I did not understand therefore we ended up with 2 desserts, which we ate but certainly did not need. The menus were not clear. I ordered one of the flat bread offerings which when I received it looked more like a appetizer than a main course meal. Comparing the menu my wife had with the one I had she had a number of items on her menu that were not on mine. Our reservation was at 4:45 because we wanted to be plenty early to beat the Friday night rush. There were plenty of open seats throughout the restaurant. I would have expected to have been seated in a quieter section, perhaps next to a window. The noisy kitchen area could be saved then for late reservations during crowded times.
Fantastic as usual. Great table. Excepti ...
Fantastic as usual. Great table. Exceptionally good food. Had the Voodoo roll and pot stickers. Generous portion, great ingredients, and served well. Great waiter and shadow in training. Will keep going back. Our umpteenth visit.
The food was just okay, nothing special. ...
The food was just okay, nothing special. I thought the prices were very high for what we got. I ordered two cocktails. The first had very, very little alcohol and did not taste very good at all. The second was a bit better but not something I would come back for. My husband had sushi and said it was alright. I ordered the spinach artichoke pit which was kind of runny without much taste. I also had the margarita flatbread which tasted like it should have but it still was nothing to remember.
The restaurant itself was nice and the s ...
The restaurant itself was nice and the service was excellent. I was not impressed with the food or the food selection at all. I had the chicken and broccoli stir fry and found it spicy and off putting. Nothing else on the menu even remotely interested me. It'd be nice if there was some normal American food on the menu. Seems like they tried to be too exotic with everything. For the price, I won't go here again.
We were celebrating 2 birthdays our ...
We were celebrating 2 birthdays our waiter said he would bring 2 birthday deserts
He brought them and they were very good
My complaint is they were supposed to be free, complimentary we were charged 15.50 for both then only a$10.00 credit
Not exactly a complimentary birthday desert 😐
Overall satisfied. Made reservation onli ...
Overall satisfied. Made reservation online they called the day before to confirm and there was no issues when we got there the day of. There was a slight delay on our food but it's understandable since they were busy Saturday evening. Great food and great environment.
We had reservation but when we got there ...
We had reservation but when we got there our table was next to the kitchen so it was kitchen noise plus the noise of the customers which made it impossible to visit. There was way too much bacon in the zucchini and corn causing it to taste too salty. The salmon was ok but I've had better. Very pricey for what was served. The sushi and the pasta dish were delicious.
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decided: June 30, 1965.
BLISS EXCAVATING COMPANYv.LUZERNE COUNTY, APPELLANT
Appeal from decree of Court of Common Pleas of Luzerne County, Jan. T., 1965, No. 3, in case of Bliss Excavating Company, Brook Contracting Corporation, Capone Coal Company et al. v. Luzerne County.
Peter Paul Olszewski, Solicitor, with him Blythe H. Evans, Jr., Sandor Yelen, and James Lenahan Brown, Assistant Solicitors, for Luzerne County, appellant.
Henry Thalenfeld, with him J. Earl Langan, Andrew Hourigan, Jr., Franklin B. Gelder, Joseph I. Reynolds, III, Israel T. Klapper, Theodore R. Laputka, S. Keene Mitchell, Christopher Powell and Thomas F. Gill, for appellees.
Leon Ehrlich, Deputy Attorney General, for Commonwealth.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Concurring and Dissenting Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell and Mr. Justice Roberts join in this concurring and dissenting opinion.
[ 418 Pa. Page 448]
This is an appeal from a preliminary injunction restraining officers, agents and employees of Luzerne County, inter alia, "from putting into effect or enforcing section 2.05, and its various subsections, of the . . . zoning ordinance of Luzerne County." Section 2.05 and its various subsections regulate the use of land for "Excavation of Sand, Gravel, Coal or Other Minerals and Rock and Peat Moss, for Sale." Plaintiff-appellees are either owners of anthracite coal lands in Luzerne County, which are or may be mined by strip mining methods, or are engaged in the business of strip mining in Luzerne County.
On December 16, 1964, the County Commissioners of Luzerne County resolved to adopt the zoning ordinance, which contains the provisions under attack. The resolution stated that the ordinance was to be effective on January 1, 1965. The ordinance itself, however, provided that it should be effective immediately upon adoption. On the same day that the resolution was passed by the County Commissioners the plaintiffs obtained a preliminary injunction, part of which is set forth above. Plaintiffs alleged that the ordinance was invalid because (1) it was an attempt by the County to legislate on the subject of anthracite strip mining, contrary to the preemption of this subject by the Commonwealth in the Anthracite Strip Mining and Conservation Act of August 13, 1963, P. L. 781, 52 P.S. § 681.2, (2) that the zoning provisions of The County Code, Act of August 9, 1955, P. L. 323, §§ 2020-2039, as amended, 16 P.S. §§ 2020-2039, do not empower Luzerne County to enact zoning ordinances which purport to regulate the business of anthracite strip mining and (3) that, prior to its adoption, the ordinance
[ 418 Pa. Page 449]
had not been submitted to the State Planning Board for approval, as required by Section 2023(c) of The County Code, supra. They further alleged irreparable harm and the absence of an adequate remedy at law. At the hearing to continue the injunction, held on December 21, 1964, defendant County introduced a petition to dissolve the injunction on the grounds, inter alia, that (1) the ordinance would not be effective until January 1, 1965, (2) that no attempt had been made to enforce the ordinance against the plaintiffs and (3) that plaintiffs had an adequate legal remedy and a statutory remedy which must be pursued. The petition was denied and the preliminary injunction continued until final hearing.
"The scope of appellate review in this type of proceeding is well settled. 'Our uniform rule is that, on an appeal from a decree which refuses, grants or continues a preliminary injunction, we will look only to see if there were any apparently reasonable grounds for the action of the court below, and we will not further consider the merits of the case or pass upon the reasons for or against such action, unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable. . . .'
"A preliminary injunction should only be granted where injury is imminent and, if committed, irreparable and will not generally be awarded where the complainant's right is not clear or where the wrong is not manifest. . . ." Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 48-49, 159 A.2d 681, 683 (1960). In our opinion, it is plain that no grounds existed for the grant of the preliminary injunction.
The action was patently premature and amounted merely to an attempt to obtain an advisory opinion. Regardless of when the ordinance became effective, on December 16 or January 1, absolutely nothing had happened
[ 418 Pa. Page 450]
under the ordinance to create a case or controversy ripe for judicial intervention. The plaintiffs had not sought nor had they been denied the right to engage in any activities on their land. Nor had there been any indication or threat of enforcement. "As stated in Knowles's Estate, 295 Pa. 571, 585, 145 A. 797, 'In deciding constitutional attacks upon acts of assembly, the courts do not heed abstract propositions; they deal with actual conditions alone, which must not only affect the one complaining of the alleged unconstitutionality but also must affect him by reason of the particular defect that it is claimed makes the act unconstitutional.' The foregoing principle is equally applicable to attacks upon ordinances. In Knup v. Philadelphia, supra, we recognized that '. . . a court will take jurisdiction . . . only in a case in which a challenged statute, ordinance, or rule of court has been actually applied to a litigant; it does not undertake to decide academically the unconstitutionality or other alleged invalidity of legislation until it is brought into operation so as to impinge upon the rights of some person or persons.'" Home Life Insurance Company of America v. Board of Adjustment, 393 Pa. 447, 453, 143 A.2d 21 (1958).
In Pittsburgh Outdoor Advertising Co. v. Clairton, 390 Pa. 1, 133 A.2d 542 (1957), the City Solicitor notified the company by letter that its signs would have to be removed within two weeks or they would be in violation of the zoning ordinance. The Company filed a bill in equity to restrain the enforcement of the ordinance. When confronted with its failure to pursue its statutory remedy the Company argued that the letter of the City Solicitor was not such a "'decision of the administrative officer'" as would warrant an appeal to the Board of Adjustment under the applicable statute. Our answer to that argument was as follows: "It may be added here that if we were to accept plaintiff's
[ 418 Pa. Page 451]
contention that it could not avail itself of the statutory remedy because it had 'nothing from which to appeal', thus reducing the practical effect of the City Solicitor's letter to a nullity, we would have to hold similarly that since the company has not been harmed by an application of the Zoning Ordinance to it, it would have no standing to bring a suit in equity." p. 8.
To demonstrate the dangers of decisions made in vacuo we note that the lower court preliminarily restrained not only the enforcement of the provisions regarding use of land for anthracite strip mining but also the entirely separate provisions regulating use of land for quarries, sand and gravel pits, and peat moss bogs which were in no way involved in the present proceedings.
Besides lack of ripeness, there is another fatal objection to the preliminary injunction. We have consistently held that challenges to zoning ordinances, regardless of the nature of the alleged defect, can be made only within the procedural framework provided by the zoning statutes and ordinances enacted thereunder and equity has no jurisdiction over the subject matter. Pittsburgh Outdoor Advertising Company v. Clairton, supra; Knup v. Philadelphia, 386 Pa. 350, 126 A.2d 399 (1956); Taylor v. Moore, 303 Pa. 469, 154 Atl. 799 (1931).*fn1
The statutory procedure need not be followed only if it is inadequate to the task of resolving plaintiffs' objections or its pursuit will cause them irreparable harm. There is no question raised by plaintiffs that cannot be adequately decided at some stage of the administrative
[ 418 Pa. Page 452]
or judicial proceedings provided for by the ordinance and the statute.*fn2 Moreover, there may be other questions which the plaintiffs should raise, regarding exceptions or variances, which must, in the first instance, be decided by the administrative authorities within the statutory framework. Thus, one statutory proceeding can be utilized to dispose of all the possible questions and a proper record prepared for appellate review should that be necessary. See Knup v. Philadelphia, supra, at p. 359.
Since all the questions raised by plaintiffs can be decided within the statutory procedure it must be strictly pursued unless plaintiffs can clearly demonstrate that to do so would cause them irreparable injury. Commonwealth v. Glen Alden Corporation, 418 Pa. 57, 210 A.2d 256 (1965). Considering the ample provisions in the statute and ordinance for the staying of official action to enforce the ordinance, pending resolution of the questions involved, the possibility of irreparable harm is too remote to warrant a preliminary injunction. We will not speculate, as appellees would have us do, that public officials will unfairly administer the provisions granting stays.
The suggestion by plaintiffs that the statutory procedure is "cumbersome and wasteful of time", even if true, does not demonstrate irreparable harm so as to obviate the requirement that legislatively prescribed procedures be strictly pursued. See Commonwealth v. Glen Alden Corporation, supra.
The doctrine that equity may take jurisdiction to avoid a multiplicity of suits is inapplicable. No plaintiff need endure more than one statutory proceeding to resolve all its questions. If the provisions of the ordinance under attack are finally found invalid as
[ 418 Pa. Page 453]
to one of the plaintiffs, on the basis of any of the objections set forth above, then they will be invalid as to all the plaintiffs. Further, it is not at all clear from the complaint how many of the numerous plaintiffs are actually subject to the ordinance. This lack of clarity, of course, is a direct result of the lack of ripeness of the controversy.
While we recognize the tremendous interests and conflicts of interests generated by the operations of strip mines and ancillary activities in Luzerne County, nevertheless, courts should act only within their jurisdictional competence upon ripe legal controversies.
Decree vacated with directions to dismiss the complaint.
Decree vacated.
Concurring and Dissenting Opinion by Mr. Justice Eagen:
I agree that the instant action was instituted prematurely and that, in the absence of imminent harm, the jurisdiction of equity cannot presently be invoked. However, I am not convinced that equity will not have jurisdiction to enjoin enforcement of the ordinance involved in the foreseeable future. I, therefore, concur in the result reached in the majority opinion.
Whether or not a county has the legal right to legislate in the field of anthracite strip-mining under the guise of zoning regulations is an involved legal question. Admittedly, it can and should be resolved generally within the procedural framework provided by the zoning statutes and pertinent ordinances. But it is reasonably possible that this remedy will be totally inadequate in the present situation.
To litigate finally the important pre-emption question presented through the available statutory process may take months or years. In the meantime, if the county is permitted to enforce the ordinance without restraint, rank injustice and substantial harm would
[ 418 Pa. Page 454]
necessarily follow. Businesses would be seriously interrupted, and many undoubtedly lost. The unfairness of this is patently clear, in view of the fact that it may eventually be determined that the county does not have the power to legislate in the field involved. While the present ordinance does provide that an appeal from an order of the zoning board shall automatically stay all proceedings, it further provides that such will not be the case if the zoning officer certifies that in his opinion the stay will cause irreparable harm to life or property. Thus, on the mere certification of the zoning officer and without any judicial determination of the facts, the ordinance can immediately be enforced even though a meritorious appeal is then pending.
While the writer of this opinion is in favor of strict regulations in the field of strip-mining, I cannot agree that the plaintiffs are precluded from seeking equitable relief regardless of the existing circumstances.
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