Villanova University School of Law: Digital Repository

USDC for the Middle District of Pennsylvani

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 1-17-2025 USA v. Joshua Hall Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "USA v. Joshua Hall" (2025). 2025 Decisions. 53. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/53 This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu.  NOT PRECEDENTIAL  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________  No. 24-1303 ____________  UNITED STATES OF AMERICA                                        v.  JOSHUA HALL,     Appellant ____________  On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No.1:23-cr-00114-001) District Judge:  Honorable Christopher C. Conner ____________  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)  December 9, 2024 ____________  Before:  BIBAS, CHUNG, and ROTH, Circuit Judges  (Filed: January 17, 2025) ____________  OPINION1 ____________ CHUNG, Circuit Judge.  Joshua Hall appeals the District Court’s imposition of a special condition,  1 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.  2 computer monitoring, on Hall’s two-year term of supervised release.  Hall argues that the computer monitoring condition infringes upon his First and Fourth Amendment rights because it chills his speech and invades his privacy interests.  Hall therefore requests that we vacate the computer monitoring condition.  We conclude that the District Court’s imposition of the condition was not plain error and will affirm.  I. BACKGROUND2  Between September 2019 and December 2020, Hall used a crowdfunding website and several fake social media accounts to raise funds that he claimed would go towards supporting President Trump’s reelection campaign.  In reality, Hall appropriated the money for his own use.  Hall was indicted due to this conduct.  While on pretrial release, Hall abused alcohol repeatedly and, on one occasion, called the office of a sitting United States Congressman and threatened to kill him.  As a result, Hall was charged in a superseding indictment with transmitting an interstate communication containing a threat to injure another person.  On December 21, 2022, after having previously pleaded guilty to both counts, Hall was sentenced for both offenses to twenty months’ imprisonment and three years’ supervised release.   Hall’s term of supervised release began on October 6, 2023, and throughout the fall of 2023, Hall cycled in and out of alcohol rehabilitation facilities, often leaving each facility after only a few days.  These untimely departures were contrary to a condition of his supervised release that he participate in an inpatient substance abuse treatment  2 Because we write for the parties, we recite only facts pertinent to our decision.  3 program.   Hall was also subject to another condition that he disclose all of his online accounts to his probation officer.  On January 9, 2024, Hall announced that he was running for Congress via an undisclosed X (formerly Twitter) account.  Hall also used this account to issue another threat to the same United States Congressman.  Hall’s probation officer petitioned the District Court to issue an arrest warrant for Hall’s violation of the conditions of his supervised release.  Hall was arrested, highly intoxicated, shortly thereafter.   The District Court held a supervised release revocation hearing on February 5, 2024.  At that hearing, the District Court noted that Hall had violated the condition requiring that he report all online accounts to his probation officer when he failed to disclose his X account.  App. 51.  Because of this violation, and Hall’s refusal to accept treatment at an alcohol rehabilitation facility, the District Court revoked Hall’s supervised release.  The District Court said its “main concern” in sentencing was “community protection and deterrence,” App. 54, and Hall was sentenced to 10 months’ imprisonment followed by a two-year term of supervised release.  The District Court imposed several conditions on Hall’s term of supervised release, including a special condition that required the installation of computer monitoring software and unannounced searches of his computers.  App. 55.  Hall did not object to this condition at his revocation hearing. Hall timely brought this appeal, arguing that the computer monitoring condition violates the First and Fourth Amendments.  For the reasons discussed below, we find that the computer monitoring condition is constitutional, and we therefore affirm the District  4 Court’s order in full.  II. DISCUSSION3  A district judge may impose a special condition on a term of supervised release after considering factors set forth in 18 U.S.C. § 3583(d).  Special conditions that restrict the defendant’s First or Fourth Amendment rights “will be upheld if (1) they are directly related to deterring [the] defendant and protecting the public and (2) are narrowly tailored.”  United States v. Santos Diaz, 66 F.4th 435, 448 (3d Cir. 2023).  A condition is not “narrowly tailored” if it restricts a constitutional freedom “without any resulting benefit to public safety.”  United States v. Holena, 906 F.3d 288, 294 (3d Cir. 2018). Regardless of the type of condition imposed, “[w]e insist on some evidence that the special conditions imposed are tangibly related to the goals of supervised release.  To justify special conditions, district courts must find supporting facts.  We may affirm if we can ascertain any viable basis in the record for the restriction.”  Holena, 906 F.3d at 290–91 (internal citations omitted); see also United States v. Voelker, 489 F.3d 139, 144 (3d Cir. 2007) (“Conditions of supervised release must be supported by some evidence that the condition imposed is tangibly related to the circumstances of the offense, the history  3  The District Court had subject-matter jurisdiction under 18 U.S.C. § 3583(e).  We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).  Hall did not object to the conditions of his supervised release, so we review for plain error.  See Fed. R. Crim. P. 52(b); United States v. Thielemann, 575 F.3d 265, 270 (3d Cir. 2009).  To satisfy the plain-error standard, Hall must establish that (1) the District Court erred; (2) the error was clear or obvious under the law at the time of review; and (3) the error affected substantial rights, that is, the error affected the outcome of the proceedings.  Johnson v. United States, 520 U.S. 461, 467 (1997).  If all three elements are established, we may, but need not, exercise our discretion to award relief.  Id.  5 of the defendant, the need for general deterrence, or similar concerns.”). Hall argues that the District Court plainly erred in imposing the computer monitoring condition because the condition unconstitutionally infringes upon his First and Fourth Amendment rights.  We disagree. A. Hall’s First Amendment Argument  The computer monitoring condition was imposed for the purposes of deterring Hall from making more threats to injure others, protecting the public from those threats, and rehabilitating Hall.  App. 54; see Holena, 906 F.3d at 295.  (“[R]estrictions must be tailored to deterring crime, protecting the public, or rehabilitating the defendant.”).  Hall’s personal computer has been integral to the majority of Hall’s charged conduct—from making a fraudulent online fundraising account, to impersonating others via fake social media accounts, to making threats against a Congressman on X.  Moreover, the computer monitoring condition was not imposed reflexively upon Hall’s release.  Rather, it was imposed only after Hall misled his probation officer about the existence of his X account, demonstrating a need to obtain more reliable information about Hall’s social media use.  Finally, the computer monitoring condition lasts only as long as the term of Hall’s supervised release and therefore extends no longer than necessary to address the purposes of imposing supervised release on Hall in the first place.  See 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.2, comment. (n.4).  On plain error review, we will affirm.  There is a “viable basis in the record” to support the District Court’s imposition of the condition, Holena, 906 F.3d at 290–91 (3d Cir. 2018), and condition is “tangibly related  6 to the goals of supervised release.”  See Holena, 906 F.3d at 290.4  We perceive no “clear or obvious error under the law,” Johnson, 520 U.S. at 467, in the District Court’s tailoring of the condition to address Hall’s failure to comply with a previous condition of release and the District Court’s concern for community protection and deterrence.  Santos Diaz, 66 F.4th at 448. B. Hall’s Fourth Amendment Argument  Next, Hall argues that the District Court plainly erred in imposing the search portion of the computer monitoring condition because it infringes his privacy interests under the Fourth Amendment.  Again, we disagree. “Defendants on supervised release enjoy less freedom than those who have finished serving their sentences,” Holena, 906 F.3d at 295, so Hall has a reduced privacy  4  Hall relies on various cases to support his argument that the computer monitoring condition “has a chilling effect on his ability to express political views,” and thus violates his First Amendment rights.  The District Court did not plainly err by failing to sua sponte consider these cases, especially when considering that those cases are readily distinguishable from Hall’s. Compare App. 55 (special condition imposing no restriction on Hall’s access to the internet, social media posting, or run for Congress); with Cooksey v. Futrell, 721 F.3d 226, 236 (4th Cir. 2013) (internal quotation marks omitted) (agency threatened to remove Appellant’s website unless he complied with certain guidelines, provided a “red-pen mark-up of his website,” and threatened to continuously monitor his website to ensure compliance); Mangual v. Rotger-Sabat, 317 F.3d 45, 57–58 (1st Cir. 2003) (finding that the Appellant had First Amendment standing where he alleged that he “faced ... a real threat of prosecution” because of his investigative reporting and where Appellant could not “limit his exposure other than [by] curtail[ing] his investigative and journalistic activities”).  Hall’s references to Packingham v. North Carolina, 582 U.S. 98 (2017)—where the Supreme Court found that a law prohibiting registered sex offenders from ever accessing certain websites violated the First Amendment—are equally unpersuasive.  See United States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017) (noting that Packingham was not on point as “[i]t involved an internet ban—not internet or computer monitoring—and that ban extended beyond the completion of a sentence.”).  7 interest in his computers while he is on supervised release.  See United States v. Sczubelek, 402 F.3d 175, 187 (3d Cir. 2005); see also United States v. Balon 384 F.3d 38, 44 (2d Cir. 2004) Indeed, nearly two decades ago, the Supreme Court held that because individuals on supervised release have a significantly diminished expectation of privacy, the Fourth Amendment does not categorically prohibit the suspicionless search of those individuals.  See Samson v. California, 547 U.S. 843, 849, 857 (2006).5 Taking into account Hall’s reduced privacy interest in his computers, we must consider whether the computer monitoring condition imposes a “greater deprivation of liberty than is reasonably necessary.”  18 U.S.C. § 3583(d)(2); Holena, 906 F.3d at 291 (“A defendant’s conduct should inform the tailoring of his condition[].”).  While the monitoring condition contains no limitations on when the probation officer may search Hall’s computers, the searches are limited in purpose to “determin[e] whether the computer contains any prohibited data prior to installation of the monitoring software, to determine whether the monitoring software is functioning effectively after installation, and to determine whether there have been attempts to circumvent the monitoring software after installation” and apply only for the length of Hall’s supervised release.  This condition is clearly geared towards ensuring the proper functioning of the means (the software) for deterring further violations and addressing Hall’s lack of candor with his  5  Hall argues that probation and supervised release should be treated differently and that therefore Samson does not apply here, but Hall cites to no caselaw to support this conclusion, and several Courts of Appeal have applied Samson in the context of federal supervised release.  See, e.g., United States v. Rusnak, 981 F.3d 697, 712 (9th Cir. 2020); United States v. Winding, 817 F.3d 910, 916 (5th Cir. 2016) (“Supervised release is akin to parole.”).  8 probation officer.  We again perceive no “clear or obvious error under the law,” Johnson, 520 U.S. at 467, in the District Court’s tailoring of the condition given that it is “directly related to deterring [the] defendant and protecting the public.”  Santos Diaz, 66 F.4th at 448.  This is especially so in light of the ample “viable bas[e]s in the record for the restriction” such as Hall’s violation of the terms of his initial supervised release by misusing his personal computer and failing to accurately report his activities on that computer.  Holena, 906 F.3d at 290–91 (3d Cir. 2018).  Considering the above, the District Court did not commit plain error in imposing the computer monitoring condition. III. CONCLUSION  For the foregoing reasons, we will affirm the District Court’s order, imposing the computer monitoring condition on Hall’s term of supervised release. 

English

USA v. Joshua Hall

USDC for the Eastern District of Pennsylvani

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 1-29-2025 Francine Ginder v. Commissioner of Social Security Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Francine Ginder v. Commissioner of Social Security" (2025). 2025 Decisions. 77. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/77 This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu.  NOT PRECEDENTIAL  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________  No. 24-2098  ______________  FRANCINE LEAH GINDER,    Appellant  v.  COMMISSIONER OF SOCIAL SECURITY ______________  ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (No. 5:23-cv-04230) U.S. Magistrate Judge:  Honorable Scott W. Reid ______________  Submitted Under Third Circuit LAR 34.1(a) January 27, 2025 ______________  Before: SHWARTZ, KRAUSE, and PORTER, Circuit Judges.   (Filed: January 29, 2025)  ______________  OPINION* ______________       * This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2  SHWARTZ, Circuit Judge.  Francine Leah Ginder appeals the District Court’s order upholding the Administrative Law Judge’s (“ALJ”) decision denying her application for disability insurance benefits.  Although the ALJ meaningfully reviewed the evidence in assessing Ginder’s claim, we will vacate the order and remand for the ALJ to reconsider and provide reasons for her residual function capacity (“RFC”) determination.   I In 2019, Ginder applied for social security disability benefits, claiming that she could not work due to a back injury, diabetes, fibromyalgia, depression, anxiety, insomnia, asthma, and nerve damage in her hands.1  Ginder’s application was denied, and she requested a hearing before an ALJ.   At the hearing, Ginder testified that she had back surgery in 2011,2 and, since 2016, had experienced back pain that radiated into her hips and legs.  Given her pain, Ginder explained that she could only (1) walk for about a block or stand for about ten minutes before needing to sit and (2) sit for about thirty minutes before needing to stand. The ALJ determined that Ginder was not “disabled” for purposes of receiving disability benefits.3  The ALJ found that Ginder had severe impairments of diabetes,  1 Before she stopped working in 2016, Ginder worked as a receptionist, a nursing staff coordinator, and an administrative clerk.   2 Ginder injured her back moving a box off a shelf while at work.  3 In reaching this determination, the ALJ performed the five-step sequential evaluation process for ascertaining whether a person is disabled.  See 20 C.F.R. § 404.1520(a) (detailing the five-step process); see also Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 118-19 (3d Cir. 2000) (recounting the five-step process).   3  obesity, asthma, allergic rhinitis, right carpal tunnel syndrome along with trigger finger, and lumbar disc disease.  Given her impairments, the ALJ determined that Ginder had the RFC4 to perform light work5 with certain restrictions.6  In making that determination, the ALJ found that the evidence did “not support the severity of the symptoms and limitations she alleged.”  AR 30.     After the Appeals Council denied Ginder’s request for review, Ginder appealed to the District Court.7  The Court determined that the ALJ’s decision was supported by substantial evidence and entered judgment in favor of the Commissioner of Social Security.  Ginder v. O’Malley, No. 23-4230, 2024 WL 1683624, at *2, *9 (E.D. Pa. Apr. 18, 2024) (citing 42 U.S.C. § 405(g)).   4 A claimant’s RFC is the most work she can perform despite her physical and mental limitations.  20 C.F.R. § 404.1545(a)(1).   5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.  Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.  To be considered capable of performing a full or wide range of light work, [the claimant] must have the ability to do substantially all of these activities.  If someone can do light work, [the Social Security Administration] determine[s] that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.”  20 C.F.R. § 404.1567(b).   6 The ALJ specifically determined that Ginder could perform light work “limited to frequent reaching, handling and fingering; to occasional postural maneuvers; to occasional exposure to temperature extremes, humidity, wetness and respiratory irritants; and to simple and routine tasks.”  AR 24.  These limitations were intended to accommodate Ginder’s carpal tunnel syndrome, allergies, asthma, fatigue, and difficulty sleeping.  Based on Ginder’s ability to perform a limited range of light work, as well as her age, education, and work experience, the ALJ concluded that Ginder could work in jobs that existed in significant numbers in the national economy, such as an assembler of small parts or a router, and therefore was ineligible for disability benefits.     7 Ginder consented to Magistrate Judge jurisdiction.  28 U.S.C § 636.  4   Ginder appeals.   II8  Ginder argues that the ALJ failed to justify her conclusion that Ginder could perform a limited range of light work.  We agree.   An ALJ must “set forth the reasons for [her] decision,” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000), so that “there is sufficient development of the record and explanation of findings to permit meaningful review,” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).  An ALJ’s RFC finding accordingly “must be accompanied by a clear and satisfactory explication of the basis on which it rests.”  Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001) (internal quotation marks omitted).  This includes giving “some indication of the evidence which [the ALJ] rejects and [her] reason(s) for discounting such evidence.”  Burnett, 220 F.3d at 121.  Relatedly, although an ALJ “is not required to credit” a claimant’s statements about her symptoms, Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 363 (3d Cir. 2011) (citing 20 C.F.R. § 404.1529(a)), if she chooses to reject or discount such testimony, she “must still explain why [she has done so],” Burnett, 220 F.3d at 122; see also Chandler, 667 F.3d at 362   8 The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g).  We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).  We exercise plenary review over ALJs’ legal conclusions, Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011), and review their factual findings and final disability determination under the deferential substantial evidence standard, 42 U.S.C. § 405(g); Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999).  “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”  Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (quoting Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003)).  “It is more than a mere scintilla but may be somewhat less than a preponderance of the evidence.”  Id. (internal quotation marks omitted).   5  (noting that, to ensure meaningful review, an ALJ must explain “the degree to which a claimant’s testimony is credited”).  Here, the ALJ did a commendable job in analyzing the medical evidence,9 but failed to adequately explain why she concluded that Ginder could perform a limited range of light work.  To engage in light work, one must be able to stand or walk for a majority of an eight-hour workday.  See 20 C.F.R. § 404.1567(b); Fargnoli, 247 F.3d at 40; see also SSR 83-10, 1983 WL 31251, at *5-6 (Jan. 1, 1983) (“[T]he full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.”); SSR 83-12, 1983 WL 31253, at *4 (Jan. 1, 1983) (similar); accord Jesurum v. Sec’y of U.S. Dep’t of Health & Hum. Servs., 48 F.3d 114, 120-21 (3d Cir. 1995) (recognizing that an individual unable “to remain in either a sitting or standing position  9 The ALJ’s findings relating to Ginder’s weight and obesity and her pain specialists’ treatment notes were supported by substantial evidence.  Contrary to Ginder’s assertions, although the ALJ recited the administrative policy’s language concerning obesity, see SSR, 19-2p, 2019 WL 2374244 (May 20, 2019), she then discussed Ginder’s weight and BMI as they related to her other impairments.     In addition, the District Court did not engage in improper factfinding as its observations were tethered to the record and the ALJ’s decision.  See generally Biestek v. Berryhill, 587 U.S. 97, 102 (2019) (“Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains sufficien[t] evidence to support the agency’s factual determinations.” (internal quotation marks omitted) (alteration in original)).  Moreover, Ginder’s suggestion that the ALJ erred by not requesting a medical advisor’s review is meritless as ALJs are not required “to seek outside expert assistance.”  Chandler, 667 F.3d at 362 (citing 20 C.F.R. §§ 404.1546(c), 404.1527(e); SSR 96-5p, 1996 WL 374183 (July 2, 1996)).  Ginder’s reliance on Walton v. Halter, 243 F.3d 703 (3d Cir. 2001) is inapt.  In Walton, we determined that an ALJ should call upon a medical advisor’s services, with reference to a since-rescinded ruling, see SSR 83-20, where (1) the ALJ’s selected disability onset date had “no legitimate medical basis,” (2) all the medical evidence “suggested an onset [date] prior” to the date the ALJ selected, and (3) there was no available “opinion based on personal, contemporaneous observation.”  Id. at 709-10.  None of those factors are present here.   6  for the majority of the workday” cannot perform “light work”).  The ALJ did not identify evidence supporting a finding that Ginder could stand or walk for that amount of time.  In fact, the record seems to suggest a contrary finding given that the medical evidence does not address these subjects10 and Ginder testified that she could only walk for about a block, or stand for about ten minutes, before needing to sit, and sit for about thirty minutes before needing to stand.  Notably, because the ALJ did not mention that testimony, which if credited would suggest Ginder could not perform light work, we are unable to tell if it “was not credited or simply ignored.”  Burnett, 220 F.3d at 121 (quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).   For these reasons, we cannot determine the basis for the ALJ’s finding that Ginder could perform a limited range of light work and therefore will vacate and remand11 for the ALJ to reconsider and provide her reasons and evidentiary basis for the RFC determination, including explaining (1) the weight she gives Ginder’s relevant testimony and why she accepts or discounts it and (2) the basis for her conclusions regarding Ginder’s ability to sit, stand, or walk for the time typically required for light or sedentary  10 The pain specialists’ treatment notes say that Ginder had “increased back and radicular pain” and “difficulty with ambulation secondary to the pain,” (i.e., difficulty walking without assistance), AR 621, but these notes appear to memorialize Ginder’s reports of her subjective experience, rather than a medical opinion.   11 See, e.g., Fargnoli, 247 F.3d at 40 (vacating and remanding where the ALJ failed to “explain the basis of his conclusions,” making “it impossible to determine whether the ALJ’s finding that [the claimant could] perform light work [was] supported by substantial evidence”); Burnett, 220 F.3d at 119 (vacating and remanding where the ALJ made “only a conclusory statement without mentioning any specific listed impairments or explaining his reasoning”).   7  work,12 see, e.g., 20 C.F.R. § 404.1567(a)-(b); SSR 83-12, 1983 WL 31253, at *4; SSR 83-10, 1983 WL 31251, at *5-6. IV  For the foregoing reasons, we will vacate the District Court’s order and remand with instructions to remand to the ALJ for further proceedings consistent with this Opinion.  12 We express no view as to Ginder’s RFC and leave to the ALJ to determine whether, and explain why, the record shows that Ginder can perform light or sedentary work and, if the latter, whether her age compels a particular disability determination.    1  PORTER, Circuit Judge, concurring.  I join my colleagues in concluding that the Administrative Law Judge failed to adequately explain her conclusions. Lurking in the shadows of this case, however, is a separate problem. The primary thrust of Ginder’s appeal is that her obesity is a disability.  The Social Security Administration agrees obesity can qualify as a disability: all an ALJ has to do is apply an “acceptable medical” test, such as the BMI calculator, consider the obesity’s severity (“alone” or in combination with symptoms and other impairments), and the applicant is on his way to securing benefits. SSR 19-2p, 84 Fed. Reg. 22924 (May 20, 2019); 20 C.F.R. § 404.1520(a)(4)(ii) (discussing severity). Following that regulatory cue, this Court has treated obesity as an impairment. Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 503–04 (3d Cir. 2009). This notion appears to be a regulatory fiction.  Until recently, we tended to defer to an administrative agency on whether it was “act[ing] within its statutory authority,” but now we must “exercise [our] independent judgment.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024). That requires us to focus on the statutory text. Ross v. Blake, 578 U.S. 632, 638 (2016). The benefits statute defines a disabled person as having a “medically determinable physical or mental impairment,” 42 U.S.C. § 423(d)(1)(A), which in turn is defined as an “impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. § (d)(3). In other words, not all impairments are compensable. To be  2  compensable, the impairment must be the symptom of a condition rather than the condition itself.  It is hard to see why obesity always meets the mark. Obesity is often a standalone condition without an underlying medical cause. The Administration admits as much, identifying “environment . . . and behavior” as sources of obesity. SSR 19-2p. That is, human agency rather than a medical abnormality may be the cause.  Broadly reading the benefits statute to protect obesity in general is also difficult in light of the ADA, which likewise defines a disability to require “a physical or mental impairment.” 42 U.S.C. § 12102(1)(A). Though the ADA lacks a ‘result’ element, the EEOC defines impairments as “physiological.” 29 C.F.R. § 1630.2(h)(1). Numerous courts have taken up the question of whether obesity alone is a physical impairment under the ADA, and the consensus is that it is not. Rather, “a mere physical characteristic” like obesity “does not, without more, equal a physiological disorder.” E.E.O.C. v. Watkins Motor Lines, Inc., 463 F.3d 436, 442 (6th Cir. 2006) (citing Andrews v. Ohio, 104 F.3d 803, 810 (6th Cir. 1997)).1  1 See Tex. Tech Univ. Health Sciences Ctr. – El Paso v. Niehay, 671 S.W.3d 929, 937–38 & n.27 (Tex. 2023) (collecting cases analyzing the ADA to inform Texas equivalent); Lescoe v. Pa. Dept. of Corrections–SCI Frackville, 464 F. App’x 50, 53 n.7 (3d Cir. 2012) (not precedential) (collecting cases analyzing the ADA and state equivalents); Richardson v. Chicago Transit Auth., 926 F.3d 881, 887–88 (7th Cir. 2019) (same); BNSF Ry. Co. v. Feit, 281 P.3d 225, 229–30 (Mont. 2012) (same). We have yet to adopt a position on whether obesity is an impairment under the ADA. Lescoe, 464 F. App’x at 53 n.7.  3  The statutory meaning of physical impairment sometimes excludes obesity either because it is not an impairment of any kind, or, if it is an impairment, because it does not necessarily stem from some underlying abnormality. While we conclude the ALJ’s decision regarding Ginder’s obesity was supported by substantial evidence, future cases should treat obesity consistent with the text of the benefits statute.  

Francine Ginder v. Commissioner of Social Security

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 1-14-2025 Palani Karupaiyan v. Wipro Ltd Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Palani Karupaiyan v. Wipro Ltd" (2025). 2025 Decisions. 43. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/43 This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu.          NOT PRECEDENTIAL  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________  No. 23-2424 ___________  PALANI KARUPAIYAN; P.P.; R.P.,              Appellants  v.  WIPRO LTD.; THIERRY DELAPORTE, individually and in his official  capacity as MD, CEO of Wipro; ABIDALI NEEMUCHWALA, individually  and in his official capacity as MD, ex-CEO of the Wipro; T.K. KURIEN, individually and in his official capacity as ex CEO of the Wipro; AZIM HASHIM PREMJI, individually and in his official capacity as owner, promoter, chairman of the Wipro; WIPRO ENTERPRISE LTD; IDC TECHNOLOGIES; PRATEEK GATTANI, individually and in his official capacity as CEO of the IDC ____________________________________  On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3:23-cv-02005) District Judge:  Honorable Georgette Castner ____________________________________  Submitted Pursuant to Third Circuit LAR 34.1(a) November 7, 2024  Before:  SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges  (Opinion filed: January 14, 2025) _________  OPINION* _________  * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2   PER CURIAM  Palani Karupaiyan appeals1 from the order of the District Court denying his motion for leave to proceed in forma pauperis (“IFP”) and dismissing his complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.  We will affirm in part, vacate in part, and remand for further proceedings. I. Karupaiyan submitted to the District Court a motion to proceed IFP along with a complaint against Wipro Limited and related defendants.  Most of his complaint accused Wipro of non-actionable misconduct and sought fanciful relief.  But he also alleged that Wipro refused to hire him as a software engineer for numerous discriminatory reasons, including his diabetes and his age.   In that regard, Karupaiyan asserted claims for (1) disability discrimination in violation of the Americans With Disabilities Act (“ADA”), and (2) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”).  In support of his ADA claim, he alleged that he told a “Wipro employee” that he needed the job because he was diabetic and that the employee responded “Wipro is not place for sick people’s  employment.”  (ECF No. 1 at 21 ¶ 98.)  And in support of his ADEA claim, he alleged that he is 48 years old (id. at 7 ¶ 2) and that a “Wipro employee” told him “Wipro did not  1 Karupaiyan purported to sue and then appeal on behalf of his minor children.  Our Clerk notified him that he cannot litigate pro se on their behalf.  See Osei-Afriyie by Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 883 (3d Cir. 1991).  He then filed a motion for various forms of relief from that order but a motions panel denied his requests (as we have done in at least 10 of his prior cases).  Thus, Karupaiyan is the only appellant. 3  want[] to give [him] employment opportunity” because “Plaintiff is old US citizen and Wipro team members were under 30 years old” (id. at 20 ¶ 96).   By single order, the District Court denied Karupaiyan’s IFP motion and dismissed his complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.  The court did so without prejudice to his ability to pay the filing fee or submit a proper IFP motion and to amend his complaint as to certain claims.  Karupaiyan filed this appeal instead.  We have jurisdiction under 28 U.S.C. § 1291.2   II. We will affirm the dismissal of most of Karupaiyan’s claims for the reasons that the District Cort explained, but we will vacate and remand as to his ADA and ADEA claims.  We limit our discussion to those two claims. First, the District Court dismissed the ADA claim on the sole ground that Karupaiyan did not adequately allege that he exhausted his administrative remedies with the Equal Employment Opportunity Commission (EEOC”).  We disagree.  There might be some tension in our caselaw regarding whether a Title VII or ADA plaintiff must affirmatively allege exhaustion in order to state a claim.3  But we need not address the  2 Orders denying IFP status or dismissing a complaint without prejudice typically are not final under § 1291, see Redmond v. Gill, 352 F.3d 801, 803 (3d Cir. 2003) (per curiam), but they can become final if the plaintiff stands on his filings, see Oakwood Labs. LLC v. Thanoo, 999 F.3d 892, 903 & n.9 (3d Cir. 2021).  Karupaiyan did that here.  We exercise plenary review over the dismissal of a complaint for failure to state a claim, see Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000), but we review the denial of IFP status only for abuse of discretion, see Jones v. Zimmerman, 752 F.2d 76, 78 (3d Cir. 1985). 3 Compare, e.g., Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997) (treating Title VII exhaustion as part of the claim for purposes of Fed. R. Civ. P. 12(b)(6)), with, e.g., Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997) (holding that the lack of Title VII 4  issue in this case because Karupaiyan adequately alleged exhaustion under the circumstances presented here.  Karupaiyan alleged that he timely filed a complaint regarding Wipro with the EEOC, and he provided the charge number.  (ECF No. 1 at 26 ¶ 134.)  He also later submitted an EEOC right-to-sue letter bearing that charge number.  (ECF No. 12.)  Although that letter was not before the District Court when it dismissed Karupaiyan’s complaint, it reinforces our conclusion that his pro se complaint alleged enough to avoid dismissal on this ground.  Cf. Webb v. DOJ, 117 F.4th 560, 568 (3d Cir. 2024) (reversing dismissal of a pro se complaint where “the complaint raises enough uncertainty about exhaustion [under the Prison Litigation Reform Act] to preclude dismissal at the screening stage”).4 Second, the District Court did not require Karupaiyan to allege exhaustion of his ADEA claim.  Instead, the court dismissed it because “the Complaint does not elaborate on the factual basis of the ADEA claim with specificity as required by Rule 8.”  (ECF No. 5 at 8.)  But Rule 8 does not require factual pleading “with specificity.”  See In re Tower Air, Inc., 416 F.3d 229, 236 (3d Cir. 2005) (explaining that “to require pleading facts with specificity . . . is not the federal notice pleading standard”).  Instead, Rule 8 requires only enough facts to state a plausible claim.  See Martinez v. UPMC Susquehanna, 986 F.3d 261, 265, 267 (3d Cir. 2021).  The court acknowledged that  exhaustion is an affirmative defense that the defendant bears the burden of pleading).    4 To be clear, we do not hold that Karupaiyan exhausted this claim or that the court cannot revisit exhaustion under Fed. R. Civ. P. 12(b)(6) or at summary judgment as circumstances might warrant.  Instead, we hold only that he alleged enough to survive dismissal at the screening stage under the circumstances presented here. 5  standard earlier in its opinion, but it did not address whether or how this claim fell short of that standard.  Nor did it otherwise identify any specific deficiency on this claim. Nevertheless, we agree that Karupaiyan failed to state an ADEA claim on the merits, and we reach the same conclusion as to his ADA claim.  Although Karupaiyan made some direct allegations of discrimination as noted above, those stray allegations buried in the middle of his largely fanciful complaint5 do not raise a plausible inference of discrimination under the circumstances presented here.  See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“Determining whether a complaint states a plausible claim” is “a context specific task that requires the reviewing court to draw on its judicial experience and common sense.”); Garrett v. Wexford Health, 938 F.3d 69, 93 (3d Cir. 2019) (looking to “[t]he circumstances surrounding the particular pleading, including the nature of the action, the sort of relief being sought, the availability of information, and other  practical considerations”).   Karupaiyan, for example, has not alleged material facts bearing on his claims that one would expect to be within his knowledge, such as the specific position or positions for which he applied, or when.  Nor has he alleged any identifying information about the “Wipro employee” or employees who allegedly made the statements referenced above or any other employee with whom he may have spoken or who might have been involved in the alleged decision not to hire him.  Cf. Martinez, 986 F.3d at 267 (summarizing details  5 Karupaiyan’s allegations of discrimination occupy only about two pages of his 41-page complaint.  The rest of the complaint accuses Wipro and other defendants of non-actionable misconduct (such as violation of various criminal statutes) and requests plainly fanciful relief (such as an order transferring ownership of Wipro to him).   6  that were enough to put the defendant on notice of an ADEA claim).  Such details are all the more important here because Karupaiyan alleges that Wipro’s decision not to hire him was the product of numerous separate forms of discrimination.   In sum, Karupaiyan has not stated an ADA or ADEA claim (or any other discrimination claim).  But as to his ADA and ADEA claims only,6 we will remand for the District Court to give him another chance to amend his complaint.  We take that step because the court did not reach the merits of his ADA claim and did not identify any specific deficiency with his ADEA claim.7  For similar reasons, we conclude that Karupaiyan has not waived or forfeited the ability to amend his complaint as to these claims by standing on his compliant for purposes of appellate jurisdiction.  Cf. Semerenko v. Cendant Corp., 223 F.3d 165, 172-73 (3d Cir. 2000).  6 Karupaiyan also asserted his claims of disability and age discrimination under the New Jersey Law Against Discrimination (“NJLAD”).  (ECF No. 1 at 26 ¶¶ 302, 304.)  The District Court did not identify those claims, but our discussion of Karupaiyan’s ADA and ADEA claims and our remand applies equally to them.  7 In noting several deficiencies ourselves, we do not intend to provide a checklist of specific matters that Karupaiyan must allege or that will suffice to state a claim.  Instead, if Karupaiyan files an amended complaint, and if the District Court screens it under § 1915(e)(2)(B), see note 9, infra, then the court can consider whether the amended complaint as whole states plausible claims to relief.    7  Thus, we will vacate the dismissal of these claims and will remand for further proceedings.  On remand, the court should provide Karupaiyan with another chance to cure his IFP application8 and another chance to amend his complaint.9 III. For these reasons, we will affirm in part but will vacate the order of dismissal in part and remand for further proceedings as to Karupaiyan’s claims under the ADA and ADEA and his related claims under the NJLAD.  Karupaiyan’s motion to enjoin a Wipro “outsourcing deal” is denied.  To the extent that any of Karupaiyan’s filings on appeal can be construed to request any other relief, such relief is denied as well.  8 Karupaiyan has argued on appeal that he need not show indigence in order to proceed IFP because this suit is in the “bests interest” of the United States.  That argument lacks merit because the IFP statute requires a showing of indigence, see Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989), which in turn requires “particularized information with regard to the party’s financial status,” id. at 602 n.5.  And we agree with the District Court that Karupaiyan failed to make that showing for the reasons the court explained.  But in light of our ruling, the court should give Karupaiyan another chance to make that showing on remand.  9 When a plaintiff submits an IFP motion and a complaint, courts can address IFP status and dismissal under § 1915(e)(2)(B) “in either order or even simultaneously.”  Brown v. Sage, 941 F.3d 655, 660 (3d Cir. 2019) (en banc).  The District Court in this case addressed the issues simultaneously, but nothing in this opinion prevents the court from taking a different approach on remand after giving Karupaiyan another chance to cure his IFP application and amend his compliant. 

Palani Karupaiyan v. Wipro Ltd

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 1-29-2025 Kia Livingston v. Always Best Care Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Kia Livingston v. Always Best Care" (2025). 2025 Decisions. 78. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/78 This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu. NOT PRECEDENTIAL  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT   _______________________  No. 24-1717 _______________________  KIA LIVINGSTON,                        Appellant  v.  ALWAYS BEST CARE                  _______________________  On Appeal from the United States District Court  for the Eastern District of Pennsylvania  District Court No. 2:22-cv-02257 District Judge:  The Honorable Nitza I. Quinones Alejandro __________________________  Submitted Under Third Circuit L.A.R. 34.1(a)  January 24, 2025   Before: HARDIMAN, AMBRO, and SMITH, Circuit Judges  (Filed: January 29, 2025)  __________________________  OPINION* __________________________  * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  2  SMITH, Circuit Judge.  Kia Livingston worked as a caregiver for Always Best Care (ABC).  After ABC terminated her employment, she sued claiming that ABC violated her rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.  The District Court granted ABC’s motion for summary judgment.  Livingston appealed, challenging only the grant of summary judgment on the ADA claim.1  We will affirm. As a caregiver at ABC, Livingston attended to clients in their homes.  On October 11, 2019, after doing laundry for a client, Livingston finished work and started walking on a personal errand, noticing a pain in her right hip and side.  The pain prompted her to seek treatment at a nearby hospital.  She received a note at the hospital excusing her from work for two weeks, which she submitted to ABC.  Within days, Livingston followed up with her primary care physician who approved her return to work but with the restriction that she not engage in bending or lifting for at least two weeks.  ABC sought documentation for its records that Livingston could return to work without restrictions.  In addition, it advised Livingston that she needed to obtain a valid purified protein derivative (PPD) test for tuberculosis and  1 The District Court exercised jurisdiction under 28 U.S.C. § 1331.  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We exercise plenary review over a district court’s order granting summary judgment.  Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000).  3  to complete the annual in-service training.  Livingston took her current PPD results to ABC and spoke with Gerald Mack in ABC’s Human Resources Department about the in-service training.  She agreed to attend a training session that was scheduled the following day.   Livingston reported to the required training and saw Mack before the session began.  When the training did not start at the time she was expecting it would, Livingston advised the receptionist that she had to leave and wanted to reschedule.  She did not inform Mack of her departure nor did she complete the training. Several days later, Livingston received a letter terminating her employment “due to HR Non-Compliance.”  SA226.  Thereafter, Livingston filed a complaint with the EEOC alleging discrimination based on age and disability.  Upon receiving a right to sue letter, she filed a complaint in the District Court for the Eastern District of Pennsylvania asserting ADA and ADEA claims.  ABC moved for summary judgment, explaining that Livingston was terminated for failure to complete her required annual training.  It noted that Pennsylvania law mandates competency training for caregivers.  See 28 Pa. Code § 611.55.   Livingston asserted that ABC’s proffered reason was implausible because she had previously missed a training and had not sustained any adverse consequences for that absence.  In her view, ABC could have easily provided the in-service training at another time.  She also flatly rejected the assertion that Pennsylvania law required  4  in-service caregiver training.  The District Court assumed that Livingston had adduced a prima facie case, but granted summary judgment on the basis that she had failed to demonstrate that ABC’s stated reason for termination was pretextual.  The Court noted that Livingston had been warned, after missing the first in-service training, that she could face termination if she failed to comply with the annual training requirement.  And it concluded that ABC’s termination of Livingston “after a second infraction that followed a warning of such possible termination after her first infraction cannot reasonably be deemed implausible.”  A202.  The District Court acknowledged that Livingston had also raised a mixed-motives argument, but it rejected that argument as meritless.   Before us, Livingston reiterates the same arguments, asserting that ABC’s proffered reason for termination is “implausible.”  Appellant’s Br. 5.  The record supports the District Court’s view that Livingston’s failure to attend the required in-service training was the second time she had missed an annual, state-mandated training, and that on the first such occasion she had been warned that she could be subject to dismissal if she missed another training.  As Fuentes v. Perskie instructs, to discredit an “employer’s proffered reason [for discharge, Livingston] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.”  32 F.3d 759, 765  5  (3d Cir. 1994).  Rather, she must “present sufficient evidence to meaningfully throw into question, i.e., to cast substantial doubt upon” ABC’s proffered reason for terminating her or “come forward with sufficient evidence from which a factfinder could reasonably conclude that an illegitimate factor more likely than not was a motivating or determinative cause of the adverse employment decision.”  Id.  We agree with the District Court that Livingston failed to do so.   As to Livingston’s assertion that her ADA claim should have survived summary judgment on a mixed-motives theory, she is wrong.  In Starceski v. Westinghouse Electric Corporation, we reiterated that a “‘mixed-motives’ theory of employment discrimination requires ‘conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude.’”  54 F.3d 1089, 1096 (3d Cir. 1995) (internal citation omitted).  Livingston has not pointed to any such evidence. For the foregoing reasons, we will affirm the judgment of the District Court.    

Kia Livingston v. Always Best Care

USDC for the Western District of Pennsylvani

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 1-13-2025 Daniel Salvatierra v. Lake Erie College of Osteopathic Medicine Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Daniel Salvatierra v. Lake Erie College of Osteopathic Medicine" (2025). 2025 Decisions. 33. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/33 This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu.          NOT PRECEDENTIAL  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________  No. 24-2552 __________  D.O. DANIEL A. SALVATIERRA,    Appellant  v.  LAKE ERIE COLLEGE OF OSTEOPATHIC MEDICINE,  also known as LECOM ____________________________________  On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 1:23-cv-00152) District Judge: Honorable Cathy Bissoon ____________________________________  Submitted Pursuant to Third Circuit LAR 34.1(a) December 20, 2024  Before: SHWARTZ, RESTREPO, and FREEMAN, Circuit Judges  (Opinion filed: January 13, 2025) ___________  OPINION* ___________  PER CURIAM  * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  2  Pro se Appellant Daniel A. Salvatierra appeals the District Court’s July 29, 2024 order reentering its dismissal of his complaint against Appellee Lake Erie College of Osteopathic Medicine (“LECOM”) for failure to prosecute.  On a prior appeal, we found the District Court’s initial order dismissing the case deficient because it merely cited Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984), without analysis or explanation.  See Salvatierra v. Lake Erie Coll. of Osteopathic Med., No. 24-1274, 2024 WL 3518304, at *1 (3d Cir. July 24, 2024) (per curiam).  We remanded the matter to the District Court and instructed it to explicitly consider the Poulis factors.  See id.  On remand, the District Court considered the six factors and concluded that dismissal under Poulis was warranted.  For the following reasons, we will affirm the District Court’s order.   We have jurisdiction pursuant to 28 U.S.C. § 1291 and review a District Court’s order dismissing a suit under Poulis for an abuse of discretion.  Hildebrand v. Allegheny County, 923 F.3d 128, 131 (3d Cir. 2019).  The factors a District Court must weigh under Poulis before dismissing a case for failure to prosecute are: “(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party . . . was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim.”  747 F.2d at 868.  Although not every Poulis factor needs to be satisfied to warrant dismissal of the suit, “we have always required consideration and balancing of all six of the factors and have recommended the resolution of any  3  doubts in favor of adjudication on the merits.”  United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 162 (3d Cir. 2003) (emphasis in original).   We do not have any “magic formula” or “mechanical calculation” to use when determining whether a District Court abused its discretion by its balancing of Poulis factors and its dismissal of a plaintiff’s case.  Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).  However, as the Supreme Court has explained, “[t]he question, of course, is not . . . whether the Court of Appeals, would as an original matter have dismissed the action; it is whether the District Court abused its discretion in so doing.”  Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976).   Although we may have viewed some of the factors differently, the District Court’s amended order provided an analysis of the Poulis factors as we directed, and we cannot say that the District Court abused its discretion in dismissing Salvatierra’s complaint for failure to prosecute.1  Accordingly, we will affirm the District Court’s order.    1  Because the District Court did not rule on LECOM’s motion to dismiss, we will not consider LECOM’s alternative argument that affirmance is warranted for failure to state a claim. 

Daniel Salvatierra v. Lake Erie College of Osteopathic Medicine

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 1-13-2025 Marina Livshitz v. Designer Brands Inc Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Marina Livshitz v. Designer Brands Inc" (2025). 2025 Decisions. 34. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/34 This January is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu. NOT PRECEDENTIAL   UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________  No. 23-3082 _____________  MARINA LIVSHITZ; MIKHAIL LIVSHITZ, W/H, Appellants v.  DESIGNER BRANDS, INC; DSW, INC _____________  On Appeal from the United States District Court  for the Eastern District of Pennsylvania  (D.C. No. 2:22-cv-03355) District Judge: Hon. John F. Murphy _____________  Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 3, 2024 _____________  Before: SHWARTZ, MATEY, and McKEE, Circuit Judges.  (Filed: January 13, 2025) _____________  OPINION* _____________      *This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2  MATEY, Circuit Judge.  Marina Livshitz went shopping at a shoe store where she alleges that she slipped and fell on a clear and odorless substance on the restroom floor. She sued Designer Shoe Warehouse and its parent company, Designer Brands, Inc. (collectively, “DSW”), for negligence in Pennsylvania’s Court of Common Pleas of Philadelphia County.1 DSW removed the case and the District Court granted DSW’s motion for summary judgment because Livshitz failed to identify evidence that DSW had constructive notice of the substance allegedly on the restroom floor.2 We see no error in that decision. Premises liability under Pennsylvania law3 requires evidence that the defendant “had a hand in creating the harmful condition” or “had actual or constructive notice of such condition.” Est. of Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super. Ct. 1997). A business has “constructive notice of a dangerous condition” when it “should have known” of the condition because it was “apparent upon reasonable inspection.”  1 Livshitz’s husband also sued for loss of consortium. The District Court did not rule on Mr. Livshitz’s claim, and the parties later stipulated to the final judgment. No party addresses the loss of consortium claim on appeal, so we will decline to address it as well. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145–46 (3d Cir. 2017). 2 The District Court had jurisdiction under 28 U.S.C. § 1332 and we have jurisdiction under 28 U.S.C. § 1291. Summary judgment is appropriate only if “‘there is no genuine dispute as to any material fact’ and, viewing the facts in the light most favorable to [Livshitz], [DSW] ‘is entitled to judgment as a matter of law.’” Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 770 (3d Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).  3 The parties agree that Pennsylvania law governs this case. See SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 204 (3d Cir. 2022). 3  Commonwealth, Dep’t of Transp. v. Patton, 686 A.2d 1302, 1305 (Pa. 1997).4 Livshitz argues that summary judgment was improper because there is a disputed question of material fact as to whether DSW acted reasonably when it failed to discover the allegedly dangerous condition on the floor. But even if such a question of fact exists, it is not material.  “A disputed fact is ‘material’ if it would affect the outcome of the suit as determined by the substantive law.” Doe v. Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 2011) (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)). Here, the dispute over whether DSW exercised reasonable care is not material because Livshitz failed to identify evidence that DSW had a duty to protect her from the alleged hazard in the restroom. See Neve v. Insalaco’s, 771 A.2d 786, 790–91 (Pa. Super. Ct. 2001).5 In other words, because Livshitz failed to produce or identify evidence that “the dangerous condition [was] apparent upon reasonable inspection,” Gurnari v. Luzerne Cnty. Hous. Auth., 911 A.2d 236, 239 (Pa. Commw. Ct. 2006), the care that DSW exercised to discover it is irrelevant.6 See McDevitt v. Terminal Warehouse Co., 450 A.2d  4 See David v. Pueblo Supermarket of St. Thomas, 740 F.2d 230, 233–34 (3d Cir. 1984) (“Slip and fall cases involving foreign substances on . . . floors . . . present the plaintiffs with a difficult task of proof.”). 5 See also Craig v. Franklin Mills Assocs., L.P., 555 F. Supp. 2d 547, 550 (E.D. Pa. 2008) (“The duration of the hazard is important because if a hazard only existed for a very short period of time before causing any injury, then the possessor of the land, even ‘by the exercise of reasonable care,’ would not discover the hazard, and thus would owe no duty to protect invitees from such a hazard.” (quoting Restatement (Second) of Torts § 343 (1965))).   6 Livshitz argues that a plaintiff can defeat summary judgment without evidence supporting constructive notice, but the “requirement of notice is well established in the common law” of Pennsylvania. Patton, 686 A.2d at 1305. Livshitz relies on Rodriguez v. 4  991, 999 n.6 (Pa. Super. Ct. 1982) (“Actual or constructive notice of a defect is a prerequisite to holding a possessor of land liable for bodily injury sustained by a business invitee.”).7 * * *    For these reasons, we will affirm the District Court’s order granting summary judgment for DSW.  Kravco Simon Co., which relied on the Restatement (Second) of Torts to deny summary judgment notwithstanding a lack of evidence of constructive notice. 111 A.3d 1191, 1196–97 (Pa. Super. Ct. 2015) (citing Restatement (Second) of Torts § 343 cmt. b (1965)). But the Pennsylvania Supreme Court has cautioned that “if any relevant section of the Restatement (Second) of Torts does not incorporate the requirement” of notice, it “will interpret it as requiring notice, if possible.” Patton, 686 A.2d at 1305. And when such an interpretation is not possible, Pennsylvania courts must “conclude that” the Restatement provision “does not comport with Pennsylvania law.” Id. 7 Livshitz also argues that the District Court “should have inferred spoliation” and denied Defendants’ motion for summary judgment because DSW “failed to produce copies of . . . cleaning checklists” and “failed to preserve and produce any video surveillance footage from the shoe store.” Opening Br. at 17, 19. But Livshitz’s spoliation argument fails to create an issue of material fact because, even assuming the purportedly spoliated evidence had been produced, a jury could only speculate as to how long the substance might have been on the restroom floor. That is not permissible under Pennsylvania law. See Lanni v. Pennsylvania R.R. Co., 88 A.2d 887, 889 (Pa. 1952).   

Marina Livshitz v. Designer Brands Inc

USA v. Dwayne Sherman

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 2-12-2025 USA v. Bruce Evans, Sr. Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "USA v. Bruce Evans, Sr." (2025). 2025 Decisions. 128. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/128 This February is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu.   NOT PRECEDENTIAL  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________  No. 23-2534 ____________  UNITED STATES OF AMERICA  v.  BRUCE EVANS, SR.,             Appellant ____________  On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:19-cr-00009-001) District Judge: Honorable Malachy E. Mannion ____________  Submitted Under Third Circuit L.A.R. 34.1(a) January 21, 2025  Before: HARDIMAN, McKEE, and AMBRO, Circuit Judges.  (Filed: February 12, 2025) ____________  OPINION* ____________   * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  2  HARDIMAN, Circuit Judge.  Bruce Evans, Sr., appeals his judgment of conviction for Clean Water Act violations and wire fraud. We will affirm. I  Evans served concurrently as a supervisor in Greenfield Township, Pennsylvania, and as the manager of the Township Sewage Authority. During his tenure, there were several sewage overflows and Clean Water Act violations. Evans also owned a private business, and he used Authority funds to pay George Everett for work on behalf of the business.  As a result of that conduct, Evans was charged with violating the Clean Water Act, 33 U.S.C. § 1251 et seq., and committing wire fraud, 18 U.S.C. § 1343.  At trial, the Government called Daniel App, an employee of First National Bank of Pennsylvania, to prove the wire fraud charge. He testified that First National, like most banks in the United States, converts checks into images before processing them electronically. App confirmed that First National did this for the two checks payable to Everett. Upon conclusion of the prosecution’s case, Evans moved for a judgment of acquittal, arguing that the Government introduced insufficient evidence that he knowingly caused a wire transfer by paying Everett with checks. The District Court denied the motion.  Taking the stand in his own defense, Evans testified that he never read the Authority’s permit. Consistent with that testimony, defense counsel argued that the jury  3  had to find that Evans knew he was violating a permit condition to convict him under the Clean Water Act. The District Court disagreed, concluding that the statute established a general intent crime. The Court instructed the jurors that they needed to find that Evans acted knowingly, that is, voluntarily and intentionally. They were not required to find that Evans knew his conduct was illegal or that he had read the permit.  The jury found Evans guilty of most charges, and Evans appealed. II1  Evans first argues that the District Court erroneously instructed the jurors about the requirement that he “knowingly violate[d]” a “permit condition.” 33 U.S.C. § 1319(c)(2)(A). He claims that the jury had to find that he knew the permit’s conditions. Our precedent says otherwise.  The District Court’s instructions were consistent with our decision in United States v. West Indies Transport, Inc., 127 F.3d 299 (3d Cir. 1997). There, we approved of the following instruction in a case involving § 1319(c)(2)(A): “An act is done knowingly if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason. The purpose of adding the word ‘knowingly’ is to insure that no one will be convicted for an act done because of mistake, accident, or other innocent reason.” Id. at 310. As this instruction shows, the knowledge requirement refers to the defendant’s actions—not his knowledge of a permit’s conditions. See id.; see also United States v. Int’l Mins. & Chem. Corp., 402 U.S. 558, 560, 562 (1971) (interpreting the phrase  1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.  4  “knowingly violates [applicable regulations]” in a different statute and concluding that it refers to “specific acts or omissions which violate” the statute (internal quotation marks omitted)). So the District Court’s instruction was not erroneous. III  We now turn to Evans’s challenge to his wire-fraud convictions. Evans claims the Government introduced insufficient evidence that he knowingly caused a wire transfer. In support, he relies on United States v. Bentz, 21 F.3d 37 (3d Cir. 1994). There, a broker in New York used a computer to pay the defendant in Pennsylvania with checks for steel. Id. at 38. We held that the use of a wire communication was not reasonably foreseeable because the “use of the wire by a scrap metal storage facility in Pennsylvania which issues checks drawn on a Pennsylvania bank [was] not self-evident.” Id. at 41. And there was insufficient evidence to conclude that the defendant “should reasonably have anticipated” a wire transmission. Id. Evans’s reliance on Bentz is misplaced. Here, App testified that First National Bank, like most banks in the United States, converts every check into a digital image before they are electronically processed. There was no such testimony in Bentz. App’s testimony permitted the jury to find that the use of a wire communication could “reasonably be foreseen, even though [it was] not actually intended.” United States v. Andrews, 681 F.3d 509, 529 (3d Cir. 2012) (citation omitted); see also Bentz, 21 F.3d at 41 (explaining that the “content of reasonable foreseeability must inevitably keep pace with advances in technology and general awareness of such advances” (citation omitted)).  5  IV  For the reasons stated, we will affirm the District Court’s judgment. 

USA v. Bruce Evans, Sr.

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 2-7-2025 Danielle Johnson v. Lycoming County Children and Youth Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "Danielle Johnson v. Lycoming County Children and Youth" (2025). 2025 Decisions. 114. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/114 This February is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu.          NOT PRECEDENTIAL  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________  No. 24-1246 __________  DANIELLE JOHNSON,                                  Appellant  v.  LYCOMING COUNTY CHILDREN AND YOUTH; RYAN TIRA, Judge; ANGELA LOVECCHIO; TARA LONGENBERGER, Supervisor; HEIDI PORTER, Case Worker; MATTHEW WOOD, Clinical Director; MATTHEW SALVATORI, Administrator; MARK LONGENBERGER, Support Services Director ____________________________________  On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 4:23-cv-01159) District Judge:  Honorable Malachy E. Mannion ____________________________________  Submitted Pursuant to Third Circuit LAR 34.1(a) February 6, 2025 Before:  RESTREPO, MATEY, and CHUNG, Circuit Judges  (Opinion filed: February 7, 2025) ___________  OPINION* ___________ PER CURIAM  * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2   Danielle Johnson appeals the District Court’s order dismissing her complaint.  For the reasons that follow, we will affirm the District Court’s order.  Johnson filed a civil rights complaint alleging that Appellees, employees of Lycoming County Children and Youth Services, violated her rights when they removed her children from her home.  A Magistrate Judge recommended that her federal claims be dismissed on the grounds that Johnson had failed to state a claim, a judicial defendant had immunity, the District Court should abstain under Younger v. Harris, 401 U.S. 37 (1971), and that some allegations did not satisfy Fed. R. Civ. P. 8(a)(2)’s requirement of a short and plain statement.  The Magistrate Judge recommended that the District Court decline to exercise supplemental jurisdiction over Johnson’s state law claims.  The District Court adopted the Report and Recommendation and dismissed the complaint.  Johnson filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.1  In her brief, Johnson argues that the Appellees made false allegations of abuse and neglect which caused Judge Tira to approve the removal of her children from her home.  She asserts that the Appellees made their decisions concerning the children with malice  1 The parties were initially asked to address whether the Court had jurisdiction over the appeal as the notice of appeal appeared to have been untimely filed.  However, because the District Court’s five-page order contained its reasoning, it did not qualify as a separate judgment, and the judgment was not considered entered until 150 days after entry of the order.  See In re Cendant Corp. Sec. Litig., 454 F.3d 235, 241 (3d Cir. 2006), as amended (Aug. 30, 2006) (noting that to qualify as a separate judgment, District Court order must, inter alia, substantially omit the District Court’s reasoning); Fed. R. Civ. P. 58 (providing that if judgment is not set out in a separate document, judgment is entered when 150 days have run from entry on the docket).  Thus, the notice of appeal was timely filed, and we will not dismiss the appeal for lack of jurisdiction. 3  and negligence.  Appellees, however, are entitled to immunity from Johnson’s claims.  See Stump v. Sparkman, 435 U.S. 349, 355–57 (1978) (judges not civilly liable for judicial acts); Ernst v. Child & Youth Servs. of Chester Cnty., 108 F.3d 486, 488–89 (3d Cir. 1997) (holding that “child welfare workers and attorneys who prosecute dependency proceedings on behalf of the state are entitled to absolute immunity from suit for all of their actions in preparing for and prosecuting such dependency proceedings”). Johnson also challenges the District Court’s refusal to grant her a default judgment against the Appellees.  We review the District Court’s refusal for an abuse of discretion.  See Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000).  Appellees filed a motion for an extension of time to file a responsive pleading, and the Magistrate Judge granted the motion and informed the parties that no responsive pleading was required until the court conducted its preliminary review of the complaint.  See ECF #12.  Thus, there was no default by Appellees.  Moreover, even if there had been a default, Johnson has not shown any prejudice from the District Court’s refusal, and the Appellees had a litigable, and, in fact, meritorious defense.  See Chamberlain, 210 F.3d at 164 (discussing factors to consider in reviewing refusal to enter default judgment).  The District Court did not abuse its discretion in refusing to enter a default judgment against the Appellees.   In her reply brief, Johnson appears to suggest that the Appellees are guilty of crimes and requests that Judge Tira be charged with treason.  There is, however, no private federal right to require the government to initiate criminal proceedings.  See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). 4   For the above reasons, we will affirm the District Court’s judgment.  Johnson’s motion titled “reconsider request for default judgment,” as supplemented, is denied.  

Danielle Johnson v. Lycoming County Children and Youth

2025 Decisions Opinions of the United States Court of Appeals for the Third Circuit 2-18-2025 In Re: James Tice Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 Recommended Citation "In Re: James Tice" (2025). 2025 Decisions. 133. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/133 This February is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact reference@law.villanova.edu.   ALD-084        NOT PRECEDENTIAL  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________  No. 25-1086 ___________  In re: JAMES ROBERT TICE,     Petitioner ____________________________________  On a Petition for Writ of Mandamus from the United States District Court for the Western District of Pennsylvania (Related to W.D. Pa. Civ. Nos. 1:24-cv-00044 & 1:24-cv-00046) ____________________________________  Submitted Pursuant to Rule 21, Fed. R. App. P. 21 February 13, 2025 Before: BIBAS, PORTER, and MONTGOMERY-REEVES, Circuit Judges   (Opinion filed: February 18, 2025) _________  OPINION* _________  PER CURIAM Pro se petitioner James Tice seeks a writ of mandamus relating to two cases, a civil rights case and a federal habeas case, both of which he filed in the District Court in February 2024.  Tice asks us to direct the District Court in those actions, and the state  * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.  2  court in his underlying criminal matter, to take a variety of actions, such as vacating his adult state court convictions, reversing the dismissal of his civil rights complaint, and granting his habeas petition.  Because Tice has not demonstrated that he is entitled to such relief, we will deny his petition. In his civil rights case, the District Court dismissed Tice’s complaint upon defendants’ filing motions to dismiss and pursuant to 28 U.S.C. § 1915(e)(2)(B).  Tice v. Wilson, No. 24-cv-44, 2024 WL 4336306, at *1 (September 27, 2024).  Tice filed an appeal that is currently pending before us and in which he has already filed his brief.  In Tice’s habeas petition, the Magistrate Judge issued a recent report and recommendation to which Tice filed objections on the same day he filed this petition.  See Tice v. Wilson, No. 24-cv-00046.  The District Court has yet to rule on the report and Tice’s objections.  See id.   “The writ of mandamus is an extreme remedy reserved for only the most extraordinary situations.”  In re Abbott Labs., 96 F.4th 371, 379 (3d Cir. 2024) (cleaned up).  It is not a substitute for the appeal process.  In re Kensington Int'l Ltd., 353 F.3d 211, 219 (3d Cir. 2003).  We have the discretion to grant a writ only if the petitioner shows: “(1) a clear and indisputable abuse of discretion or error of law, (2) a lack of an alternate avenue for adequate relief, and (3) a likelihood of irreparable injury.”  In re Abbott Labs., 96 F.4th at 379 (cleaned up).    3  Tice does not meet those standards.  He has not identified any reason that he cannot obtain the relief he seeks concerning his civil-rights case in his ongoing direct appeal or the relief he seeks concerning his habeas matter either in the District Court or, if necessary, on appeal.  See In re Kensington Int’l Ltd., 353 F.3d at 219 (“If, in effect, an appeal will lie, mandamus will not.”).   Finally, to the extent that Tice asks us to direct the state court to take action, we lack authority to grant such relief.  See In re Richards, 213 F.3d 773, 781 (3d Cir. 2000) (explaining that federal courts of appeal ordinarily “lack appellate jurisdiction over their state counterparts, thus making writs of mandamus generally inappropriate”); White v. Ward, 145 F.3d 1139, 1140 (10th Cir. 1998) (per curiam) (explaining that a federal court “lack[s] jurisdiction to direct a state court to perform its duty”).  For these reasons, we will deny the mandamus petition. 

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