| Opinion | Short Title/District |
|---|
| 08a0021p.06 |
Ziegler v. Aukerman, et al
Eastern District of Michigan at Detroit
DAMON J. KEITH, Circuit Judge. Plaintiff Susan Ziegler appeals the district court decision granting summary judgment to Defendant Daniel Jonoshies, a police officer in the Springport Township Police Department, in this civil rights action filed under 42 U.S.C. § 1983. We hold that the district court applied an inc orrect legal standard in determining Defendant’s summary judgment motion. However, because we also believe that applying the proper legal standard to the district court’s findings of fact will not alter the outcome of that court’s decision, we AFFIRM the district court’s grant of summary judgment for Defendant. |
| 08a0022p.06 |
Harris v. Bornhorst
Northern District of Ohio at Akron
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Anthony Harris (“Harris”) filed suit against Defendants-Appellees Amanda Spies Bornhorst (“Spies”)1 and Tuscarawas County, Ohio (“Tuscarawas”) (collectively, the “defendants”),2 asserting claims under the Fourth and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983, and for malicious prosecution, defamation, and tortious interference with a prospective contract, pursuant to Ohio state law. The district court granted summary judgment in favor of the defendants on all of Harris’s claims, and Harris now appeals. For the reasons set forth below, we VACATE the district court’s grant of summary judgment in favor of the defendants on Harris’s § 1983 and Brady claims, REVERSE the grant of summary judgment as to Harris’s First Amendment retaliation, defamation, and tortious interference claims, AFFIRM the grant of summary judgment as to all of Harris’s other claims, and REMAND this case to the district court for further proceedings. |
| 08a0023p.06 |
Wilkins v. Timmerman-Cooper
Southern District of Ohio at Columbus
JULIA SMITH GIBBONS, Circuit Judge. This appeal arises out of the district court’s dismissal of petitioner-appellant Randolph Wilkins’s (“Wilkins”) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district judge held that the use of videoconferencing at Wilkins’s parole revocation hearing did not violate his rights to due process and to confront his accuser and therefore did not violate the Fifth and Sixth Amendments. AFFIRMED. |
| 08a0024p.06 |
USA v. Peters
Western District of Tennessee at Memphis
MERRITT, Circuit Judge. On January 31, 2002, a Federal Grand Jury in the Western District of Tennessee returned a 22-count indictment against Freddie Peters. The indictment charged Peters with making, and causing to be made and presented, false claims to the Internal Revenue Service in violation of 18 U.S.C. § 287, and unlawfully disclosing, using, and compelling the disclosure of Social Security account numbers of other persons in violation of 18 U.S.C. § 2 and 42 U.S.C. § 408(a)(8) The judgment of the District Court sentencing the defendant to 57 months is reversed, and the case is remanded for re-sentencing. |
| 08a0025p.06 |
American Zurich v. Cooper Tire & Rubber
Northern District of Ohio at Toledo
MERRITT, Circuit Judge. The issue on appeal in this diversity case is whether the district court erred in dismissing the third-party complaint filed by an original defendant, Cooper Tire & Rubber Company, against its insurance broker, Marsh USA and Marsh Placements Inc. (collectively referred to as “Marsh”), after Cooper Tire voluntarily entered into a settlement with the parties to the original complaint. The district court granted summary judgment for Third-party defendants Marsh, finding lack of an actual case or controversy between Marsh and Cooper Tire. Because we find that the district court did not abuse its discretion in dismissing the third-party complaint in light of the dismissal of the underlying action from which Cooper Tire’s third-party complaint derived, we affirm the judgment of the district court. The third-party complaint was filed under the district court’s “supplemental jurisdiction” and can go forward as an independent, nonindemnity action after settlement of the original action only within the discretion of the court, as we will explain below. |
| 08a0026p.06 |
USA v. Nichols
Middle District of Tennessee at Nashville
BOGGS, Chief Judge. Elbert Nichols entered a conditional guilty plea to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924, reserving his right to appeal the district court’s denial of his Suppression motion. On appeal, he raises three arguments: (1) that the police officer’s decision to run a warrant check on him was based on his race, violating the Equal Protection Clause of the Fourteenth Amendment; (2) that the search of his vehicle incident to his arrest violated the Fourth Amendment; and (3) that the questioning by the police after his arrest violated his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436 (1966). Finding no constitutional violations that would vitiate Nichols’s conviction, we AFFIRM the judgment of the district court. |
| 08a0027p.06 |
Curry v. Saginaw
Eastern District of Michigan at Detroit
NORRIS: The district court granted defendants’ motion for summary judgment as to all parties. It first reasoned that no violation of Joel’s First Amendment right could be attributed to the school district. Turning to Principal Hensinger, the court concluded that she had abridged Joel’s constitutional right to freedom of speech, but enjoyed qualified immunity from liability because the precise contours of that right were not clearly established. On appeal, Plaintiff contends that the district court erred in its application of qualified immunity to Principal Hensinger. We conclude that Principal Hensinger did not violate a constitutional right enjoyed by Joel and we therefore affirm the district court’s grant of summary judgment, albeit on different grounds. |
| 08a0028p.06 |
USA v. Sedore
Western District of Michigan at Grand Rapids
COX, SEAN F., District Judge. This matter is before the Court on Defendant Paul M. Sedore’s second appeal of his criminal sentence. Defendant challenges the application of sentencing enhancements based on (1) his abuse of a position of trust and (2) the number of victims. Defendant also alleges his sentence is substantively unreasonable. We find that Defendant did abuse a position of trust and waived his argument regarding the number of victims. Further, his sentence is not substantively unreasonable. Accordingly, we AFFIRM the decision of the district court. |
| 08a0029p.06 |
NCR Corporation v. Korala Assoc
Southern District of Ohio at Dayton
ALICE M. BATCHELDER, Circuit Judge. Plaintiff NCR Corporation (“NCR”) appeals the order of the district court1 compelling NCR and defendant Korala Associates Ltd. (“KAL”) to arbitrate NCR’s claims against KAL, pursuant to 9 U.S.C. § 2062, part of Chapter 2 of the Federal Arbitration Act, see 9 U.S.C. § 201, et seq., which implements the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38. |
| 08a0030p.06 |
Scottsdale Ins Co v. Flowers
Western District of Kentucky at Louisville
CLAY, Circuit Judge. Defendant Kathleen Burke (“Burke”) appeals the district court’s amended order granting Plaintiff Scottsdale Insurance Company’s (“Scottsdale”) motion for declaratory judgment. Burke argues that the district court abused its discretion in exercising jurisdiction over the case pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 (2000), and erred in its determination that Norman Flowers (“Flowers”), a therapist at the Morton Center, was not covered by the Morton Center’s liability insurance policy with Scottsdale for tort damages arising from Flowers’ sexual affair with Burke. Scottsdale cross appeals the district court’s decision to amend the language of its original order and requests that this Court reinstate the original order. For the reasons that follow, we AFFIRM the district court’s amended order. |
| 08a0031p.06 |
USA v. Moon
Middle District of Tennessee at Nashville
CLAY, Circuit Judge. Defendant, Dr. Young Moon, appeals from her conviction and sentence entered by the United States District Court for the Middle District of Tennessee on April 25, 2006, for three counts of health care fraud in violation of 18 U.S.C. § 1347 and one count of making false statements regarding health care matters in violation of 18 U.S.C. § 1001. Specifically, Defendant appeals 1) the district court’s denial of her motion to dismiss count four of her indictment; 2) the district court’s denial of her motion to suppress evidence; 3) the reasonableness of her sentence; and 4) the district court’s evidentiary rulings with respect to “summary evidence.” For the reasons that follow, we AFFIRM the district court’s judgment. |
| 08b0001p.06 |
In re:Denny St.Clair v.
U.S. Bankruptcy Court - Covington
JAMES D. GREGG, Bankruptcy Appellate Panel Judge. In this appeal, L. Craig Kendrick (“Trustee”) seeks to avoid a mortgage on the Debtors’ real property because the certificate of acknowledgment was defective as the Debtors were not present before the notary when they executed the mortgage. The bankruptcy court determined that the notary’s acknowledgment was immune from attack by the Trustee under Kentucky Revised Statute § 61.060. This state statute limits challenges to an official’s certificate to a direct action against the official or to instances based upon allegations of fraud or mistake. Because there was no fraud or mistake as contemplated by Kentucky Revised Statute § 61.060, we AFFIRM the bankruptcy court’s grant of summary judgment in favor of the mortgage holders. |
| 08a0032p.06 |
Henry Hildebrand v. BFM,JSG,JSS
Middle District of Tennessee at Nashville
BOYCE F. MARTIN, JR., Circuit Judge. This matter is before the court upon the joint petition requesting a direct appeal to this court under 28 U.S.C. § 157(d)(2). The petition seeks appeal of the order confirming the debtor’s Chapter 13 plan and rejecting the trustee’s objections. Only one issue is presented: whether the vehicle ownership expense is an allowable expense when the debtor has no loan or lease payment. The petition for leave to take a direct appeal is DENIED. |
| 08a0033p.06 |
USA v. Swafford
Eastern District of Tennessee of Chattanooga
MERRITT, Circuit Judge. The defendant, Joseph Swafford, challenges his conviction for selling iodine used in the production of methamphetamine, a controlled substance. We agree with the defendant that his conviction on the two conspiracy counts suffers from an impermissible variance because in each charge there were multiple conspiracies with different participants, and therefore the conspiracy convictions must be overturned. Additionally, we find that the district court erred by denying the defendant’s amended motion to strike or elect the substantive counts. The 38 substantive counts must therefore be merged into 19 counts. Accordingly, we reverse the district court opinion in part and remand with instructions to resentence the defendant in accordance with this opinion. |
| 08a0034p.06 |
USA v. Ridner
Eastern District of Kentucky at London
MERRITT, Circuit Judge. The defendant, Scotty Ridner, appeals the district court’s in limine ruling that denied him the opportunity to present a necessity defense at trial to charges of being a felon-in-possession of ammunition. As a result of the adverse ruling, Ridner entered into a conditional guilty plea, reserving his right to appeal the court’s order precluding the necessity defense. We are constrained to hold that the district court’s pre-trial order preventing a criminal defendant from asserting a defense at trial is proper according to this Circuit’s precedent although we note that the issue has never been addressed by the Supreme Court. The district court held that the defendant failed to establish a prima facie case of necessity pursuant to the five-factor test set forth in United States v. Singleton, 902 F.2d 471, 472 (6th Cir. 1990). Because we agree that the defendant has failed to present evidence to satisfy two of the Singleton factors, we affirm the district court’s opinion. |
| 08a0035p.06 |
Jenkins v. Rock Hill Loc School
Mulkey v. Rock Hill Loc School
Southern District of Ohio at Cincinnati
CURTIS L. COLLIER, Chief District Judge. Plaintiffs Shara Jenkins (“Jenkins”) and Brenda Mulkey (“Mulkey”) filed this consolidated appeal challenging the district court’s grant of summary judgment to defendants Lloyd Evans (“Evans”) and the Rock Hill School Board (“School Board”) on their First Amendment retaliation and privacy claims. In analyzing the retaliation claims, the district court incorrectly limited constitutionally protected activities to matters of public concern. However, because the district court reached the correct decision on all claims except Jenkins’s retaliation claim against Evans, we REVERSE the district court’s decision on that claim and AFFIRM its decision on all others. |
| 08a0036p.06 |
USA v. Grossman
Western District of Michigan at Grand Rapids
SUTTON, Circuit Judge. Kurt Grossman pleaded guilty to possessing images of minors engaged in sexual activity. Because Grossman’s sentence of 66 months in prison and 10 years of supervised release, a substantial downward variance from the sentence recommended by the sentencing guidelines, is procedurally sound and reasonable in length, we affirm. |
| 08b0002p.06 |
In re: Edwin Bailey v.
U.S. Bankruptcy Court - Youngstown
JAMES D. GREGG, Bankruptcy Appellate Panel Judge. Edwin and Jamie Bailey (“Debtors”) appeal a bankruptcy court order directing them to turn over a $3,342 federal income tax refund to the chapter 7 trustee. For the reasons that follow, the bankruptcy court’s order is AFFIRMED. |
