298 F.Supp.2d 91 (2004)
UNITED STATES of America ex rel., ERVIN AND ASSOCIATES, INC., Plaintiff,
v.
The HAMILTON SECURITIES GROUP, INC., et al., Defendants.
Nos. CIV.A. 96-CV-1258(LFO), CIV.A. 99-CV-1698(LFO).
United States District Court, District of Columbia.
January 7, 2004.
*92 Aaron L. Handleman, Michael Philip Freije, Eccleston & Wolf, Daniel Matthew Hawke, Securities & Exchange Commission, Joseph P. Hornyak, Renee Catherine Macri, Sonnenschein, Nath & Rosenthal, Mark D. Polston, Washington, DC, Neil V. Getnick, Getnick & Getnick, New York City, Wayne Gormly Travell, Leach Travell, McLean, VA, for Plaintiff.
Brian Arthur Coleman, Kenneth E. Ryan, Michael J. McManus, Drinker, Biddle & Reath, A. Scott Bolden, Reed Smith, John J. Fausti, Kathleen Heenan McGuan, Washington, DC, for Defendants.

MEMORANDUM
OBERDORFER, District Judge.
This qui tam action was filed on June 6, 1996 on behalf of the United States by plaintiffs John Ervin and Ervin Associates, Inc. (collectively, Ervin) against several entities, including Hamilton Securities Group, Inc. (Hamilton).[1] Over the course of four days of trial, Ervin submitted testimony and documentary evidence against Hamilton and rested. Thereupon, Hamilton moved for Judgment on Partial Findings under Federal Rule of Civil Procedure 52(c).[2] Ervin and Hamilton filed memoranda and argued the motions pro and con.
Rule 52(c) was added to the Federal Rules in 1991 as the procedural successor to Rule 41(b). Like its predecessor, Rule 52(c) authorizes a district court to enter judgment on a claim at any time that it can appropriately make a dispositive finding of fact on the evidence. Advisory Committee Notes to Rule 52(c). In ruling on a Rule 52(c) motion, a district court may not draw any special inferences in favor of the non-movant, Ervin in this case. Instead, the court must weigh the evidence, resolve any *93 conflicts in it, and decide where the preponderance lies. Mitchell v. Baldrige, 759 F.2d 80, 82 n. 1 (D.C.Cir.1985) (ruling on a motion under former Rule 41(b)); Aetna Casualty and Surety Co. v. Arlington Hospital Assoc., Civil Action No. 88-1290, 1989 U.S. Dist. LEXIS 11566 (D.D.C. Sept. 27, 1989) ("A Rule 41(b) motion differs from a directed verdict motion in that no evidentiary presumptions are made for the non-moving party" based on that party's non-movant status).[3]
The testimony, documentary evidence, briefs, and oral arguments on Hamilton's motion persuade me that Hamilton is entitled to judgment on partial findings with respect to Count VII of the Second Amended Complaint, as explained in the following findings of fact and conclusions of law concerning that Count. Accordingly, an accompanying order grants Hamilton's motion with respect to Count VII.[4] This memorandum presents findings of fact and conclusions of law regarding a dispositive element of the order dismissing Count VII, which concerns the so-called West of Mississippi note sale.

I. FINDINGS OF FACT
Throughout the 1970s and 1980s, the United States Department of Housing and Urban Development (HUD), as part of an effort to promote broad home ownership, insured the mortgages of certain individuals and entities. Often, when the insured failed to make payments owed on the mortgage, HUD assumed the mortgage and the related property or properties. By September 1993, HUD had accumulated a portfolio of over $408 billion dollars. This massive real estate management responsibility was a drain on HUD's various other responsibilities. In 1993, in order to allow HUD to "better fulfill its mission," HUD initiated a program to restructure its portfolio. Hamilton Ex. 7 at HUD/EE 817. As part of this program, HUD sought to sell its inventory of single family and multifamily HUD-held mortgages and HUD-held properties. See id. Because HUD had never before engaged in a massive sell-off of mortgage assets and apparently did not have the expertise in-house to manage such a project, HUD decided to contract the note sale operations to the private sector.
In 1993, in response to HUD's request for proposals, Hamilton submitted a bid for a contract as HUD's financial advisor, under which Hamilton would assist HUD in developing and implementing a pioneer program to dispose of HUD-held mortgage notes through public auctions. On September 30, 1993, HUD awarded to Hamilton contract no. DU100C000018161, also known as the "first financial advisor contract." See Hamilton Ex. 8. Hamilton's responsibilities in its role as financial advisor to HUD included "all aspects of running asset sales and getting supportive services to assist in doing that such as conducting analyses, strategizing approaches to sales, [and] due diligence." Tr. 10/29/03 PM at 13, ln 5-16 (emphasis supplied). The goal of these sales was to realize the maximum revenue to HUD. Recognizing the novelty and complexity of the calculations involved with the auction and with the conducting of the auction process, Hamilton reinforced its capabilities by subcontracting with two nationally *94 known concerns whose names spoke for themselves: Bell Laboratories (Bell Labs), a major scientific research facility, and the accounting firm of Coopers & Lybrand.

Hamilton's Subcontracts with Bell Labs and Coopers & Lybrand
Bell Labs (now Lucent Technologies) is a scientific research facility whose scientists have won six Nobel prizes and nine U.S. Medals of Science. See http:// www.bell-labs.com/about/awards.html; see generally Fed.R.Evid. R. 201(b). By 1993, Bell Labs had a reputation within the financial services industry for the quality of its so-called "optimization models." Tr. 10/30/03 PM at 114, ln. 14-16. Because of Bell Labs' reputation, and because Hamilton believed that achieving the revenue maximizing goal could be accomplished by use of a sound effective computer formula that maximized the yield of the complex auction sales, Hamilton approached Bell Labs regarding the possibility of being a subcontractor for the HUD auction work. See id.[5] Hamilton eventually employed Bell Labs as a subcontractor to run an optimization model developed by Bell Labs. The optimization model was a computer-operated algorithm designed to select as winners that combination of bids which represented the maximum potential revenue to HUD.
Coopers & Lybrand (now Pricewaterhouse Coopers) is a major internationally positioned consulting firm that regularly provides audit services, financial analysis, and tax advice to large corporations. See Fed.R.Evid. 201. Hamilton retained Coopers & Lybrand to manage certain logistics aspects of the auctions, such as security and bid processing.

The West of Mississippi Note Sale
The first series of assets designated for auction represented an unpaid principal balance (UPB)[6] of approximately $6.2 billion. The first subgroup of those assets designated for sale was HUD's inventory of notes secured by properties in states located West of the Mississippi River. See Ervin's Ex. 255. In that sale, known as the "West of Mississippi" note sale, HUD auctioned off mortgages on loans with a collective UPB of approximately $622 million secured by 148 properties.
Before the West of Mississippi note sale, neither HUD, Hamilton, Bell Labs nor Coopers & Lybrand had ever attempted a note sale auction that required such special attributes. For example, the success and cost-effectiveness of the auction would obviously be enhanced by attracting as many, and as large as possible, serious bids. The written terms of the bid package provided by Hamilton on behalf of HUD to prospective bidders on the West of Mississippi notes authorized bidders to specify a "bid floor." The bid floor allowed a bidder to condition its bids on award to the bidder of a minimum amount of notes, measured by the UPB due on the notes. If a bidder was not selected by the optimization model as the winner of notes with a combined UPB equal to or greater than its bid floor, that bidder would be awarded no notes.[7]
*95 The bid package also required of each bidder a cash deposit, via wire transfer, of five percent of the bid price, or, in the case of a bidder for more than one set of mortgages, five percent of the bidder's largest bid. See Ervin's Ex. 95. This deposit requirement deprived each bidder of the use of the deposited funds until the completion of the auction. Hamilton offered no interest on these deposits.
Arrangements made by Hamilton limited the time that bidders, including losing bidders, were so deprived. Hamilton engaged Bell Labs with the contractual requirement that Bell Labs complete and transmit its optimization calculations to Hamilton (for presentation to HUD) within two days of the close of bidding so that the deposits submitted by the losing bidders would be returned shortly thereafter.
On September 19, 1995, Coopers & Lybrand, as subcontractor to Hamilton, accepted bids on behalf of HUD for the West of the Mississippi note sale. As related in more detail below, Coopers & Lybrand transmitted the bids to Bell Labs on September 19, 1995, and on September 21, 1995, Hamilton reported the auction results to HUD. Shortly thereafter, HUD returned the bidders' deposits to the losing bidders.

Five Key Players in the West of Mississippi Note Sale
Ervin's presentation at trial concerning the West of Mississippi note sale focused on the role of five individuals: Grace Huebscher, Robert Robinson, Henry Fan, Michael Brocks, and Sol Schindler. Grace Huebscher was a Hamilton executive in charge of managing the West of Mississippi sale. She was ultimately responsible for managing the auction process, presenting final results to HUD, and subsequently helping to close the transactions with the successful bidders. Huebscher resigned from Hamilton in 1996.
Robert Robinson was Hamilton's Assistant Treasurer, a member of Hamilton's Board of Directors, and responsible for several sub-tasks on the West of Mississippi sale. He was the principal point of contact on the sale between Hamilton and subcontractor Bell Labs. Robinson resigned from Hamilton in January 1996.
Henry Fan, an Massachusetts Institute of Technology PhD, began his employment with Hamilton in August 1995. The West of Mississippi sale was Fan's first note sale project work for Hamilton. Fan performed tasks related to the note sale ad hoc at Robinson's direction.
At the time of the West of Mississippi sale, Michael Brocks, on the staff of Coopers & Lybrand, had been a certified public accountant for approximately twelve years. His primary role in the West of Mississippi sale was to establish procedures and protocols so that bids could be processed in an orderly and secure fashion. Brocks was not responsible for communicating with Bell Labs. Through his interactions with Fan leading up to the West of Mississippi note sale, Brocks came to know Fan personally and to respect him.
Sol Schindler of Bell Labs was head of its subcontracting work for Hamilton during the West of Mississippi sale. In that capacity, Schindler managed the optimization model. Later, after the West of Mississippi sale, Schindler suffered a heart attack and did not work on HUD note sales subsequent to the West of Mississippi note sale or interact with those at Bell Labs who did work on the subsequent HUD note sale auctions. See Ervin's Ex. 77.

*96 Receipt of The Auction Bids
On September 18-19, 1995, bidders for the West of Mississippi mortgage loans placed their bids in a designated room (the "bid room") at the ANA Hotel in Washington, D.C. Present in the bid room on the day of the auction were Brocks, Fan, and others. On bid day, Hamilton received 400 bids from 73 different bidders for the approximately $622 million in UPB worth of mortgages, five percent of which would have represented approximately at least $30 million in deposits. After the bid period closed, Coopers & Lybrand, in its role as subcontractor, transmitted the bid card data to Bell Labs.

The First Optimization Report
To calculate the auction results promptly, Bell Labs applied a computerized optimization model to the data from the bid cards. For the West of Mississippi sale, Bell Labs performed its first run of the optimization model on the afternoon of September 20, 1995, the day after the auction. Later that afternoon, Schindler of Bell Labs provided a computerized report of the results to Robinson of Hamilton. This report showed gross revenue of $372,633,508.82 from the sale, equal to 59.88% of the UPB on the mortgages being offered in the note sale. Id. at 1, 2. The report listed the ALI pool bid # 3 as the winner of $130,412,240.95 UPB of assets with a bid of $110,247,717.68. See Hamilton's Ex. 44 at 2, 5. The report also showed that bidder 119 had not been awarded any assetsbecause it did not meet its bid floor of $145 million. See Hamilton's Ex. 44 at 1. Schindler's e-mail transmitting this information to Robinson stated: "This looks suspicious and should be checked." Id. at 1.
In response, and without "specifically understand[ing]" the problem that Schindler was communicating, Robinson immediately, and without consulting others at Hamilton, instructed Schindler to re-run the optimization model. Tr. 10/21/03 PM at 151, ln. 16. As the Hamilton executive with the primary responsibility for overseeing Bell Labs' work concerning the optimization model, Robinson was not required to consult with or obtain direction from any other Hamilton employee before instructing Bell Labs to re-run the optimization model, and did not do so.
In instructing Schindler, Robinson directed that the model used by Bell Labs be a "UPB" model that calculated the winning bids as a function of the UPB, rather than as "revenue model," pursuant to which the results would be calculated as a function of the gross revenue generated by the bids. See Ervin's Ex. 77. Bell Labs advised that there was no UPB model then in existence and that it would take "a few days" to develop such a model. Id. Robinson responded that this delay would be "not acceptable." Id. Later on September 20, 1995, Bell Labs, having worked further on the problem, indicated to Robinson that, within a day, "a UPB model could be approximated by converting the bidders' floors (as expressed in UPB) into revenue, and then re-running the revenue model." Id. Robinson instructed Bell Labs to calculate the bid results employing this model.
On the evening of September 20, 1995, following Robinson's instruction, Bell Labs re-ran the optimization model. See Hamilton's Ex. 45 at 1. Schindler sent the results of this run to Robinson the following day, September 21, 1995. Id. In a cover e-mail, Schindler noted "I changed the minimum revenue to minimum UPB by prorating as a temporary fix." Id. Schindler's e-mail continued: "Changing minimum revenue to minimum UPB had a significant impact on the winners." Id. Schindler concluded categorically that the prorated results established the proceeds of the West of Mississippi note sale to be $622 million, "within *97 $1" of optimal. Tr. 10/31/03 at 208, ln. 1-6.; Ervin Ex. 99 at LUC001200.[8] In reliance on that statement, Robinson reasonably believed that this second optimization calculation solved the problem with the West of the Mississippi note sale, and, accordingly, on September 21, 1995, reported the results to HUD.
A side effect of Schindler's "temporary fix" of September 21, 1995 was that ALI # 3 was no longer on the list of winning bids. See Hamilton's Ex. 45. In December 1996, Hamilton conducted an internal investigation into the discrepancies between the first Schindler / Bell Labs optimization calculation and the subsequent "temporary fix" that displaced ALI # 3. The investigation determined that Hamilton had incorrectly defined bid floors for Bell Labs, and that a correct definition would have made the ALI # 3 bid the winner. See Ervin Ex. 77 at p. 2 ¶¶ 2-4; see also Ervin's Ex. 89 at 4 (unnumbered) (showing, for example, that ALI offered 84.53786% of UPB for a pool of 39 mortgages).

The Fax from Brocks to Fan
After the West of Mississippi sale results had been determined, Brocks returned to his office in Pittsburgh. Then, as he recalled at trial, he:
started thinking that I remember seeing a bid that was sizable, that stuck out in my mind during the auction. And I wondered why they didn't win. I just thought they should win. So I prepared this Excel analysis which is on Page 2 of [Plaintiff's Exhibit 78] and from again, it appeared that ALI should have won because their bid exceeded the others by $2 million.
Tr. 10/30/03 PM at 101, ln. 25102, ln. 7.
Thereafter, Brocks sent a fax to Fan at Hamilton. Brocks' fax included an Excel spreadsheet comparing the winning bids, as determined by Bell Labs, with ALI # 3 for each of the notes covered by the ALI # 3 bid. See Ervin Ex. 78 at 0022652. In this spreadsheet, Brocks showed, mortgage-by-mortgage, the winning bids that might have been displaced if ALI # 3 had been included in the optimal result. The winning bid in Brocks' version of the optimization report yielded $2,554,001.00 less revenue than the ALI # 3 bid.

Fan's Response to Brock's Fax
After receipt of the fax from Brocks, Fan spoke with Brocks by telephone. Fan stated that while he understood what Brocks was trying to do, Brocks' calculations would have to consider the effect of bid floors and other bids to get a truly correct answer. Brocks did not know about Bell's first optimization report that included ALI # 3 in the optimal solution. Brocks did not take any further actions regarding the West of the Mississippi bid results following this conversation.
There is a factual dispute as to how difficult it would have been to calculate the optimal bids, based on UPB, without the benefit of the computerized optimization model. Ervin's counsel argued at trial that these calculations could have been done relatively easily by hand. However, Bell Labs, in December 1996, with the computer optimization model, performed the optimization calculations in approximately one week. See Tr. 10/30/03 PM at 226. Brocks testified that to perform such calculations without the optimization model *98 could take weeks or even months, if they could be done at all. Tr. 10/30/03 PM at 107, ln 23108, ln 10. Given that it took Bell Labs about a week with the computerized algorithm, I find that Brocks' belief was reasonable. Brocks did not perform or attempt to perform further calculations regarding this matter.
Brocks did not inform anyone of his fax (or its substance) other than Fan and one junior Hamilton employee[9] at the time of the sale, nor did Brocks expect Fan to discuss the issue with anyone else, again, because, Brocks testified, Fan's explanation "made sense." Tr. 10/30/03 PM at 108, ln 22109, ln 7; Tr. 10/31/03 AM at 172, ln 6-13. After speaking with Fan, Brocks did not believe the problem required further investigation.

Hamilton Reports the Results to HUD
The results of the West of Mississippi note auction sale, as calculated by Bell Labs' second optimization report, were reported to HUD on Friday, September 22, 1995. Hamilton reported gross proceeds, as determined by the optimization model, of $385,196,928.49. HUD relied upon Hamilton's statements in choosing the optimal bidders on its loan sales. The bidders awarded assets were notified the same day that the results were reported to HUD. ALI # 3 was not reported as a winning bid.

The Manhattan Project
On June 6, 1996, the plaintiffs in the instant qui tam action filed (under seal) a complaint naming Hamilton as a defendant based, inter alia, on allegations surrounding the West of Mississippi sale. Subsequently, on or about October 24, 1996, Hamilton employee Rick Wolfe discovered an inconsistency between the terms of the West of Mississippi bid package and the formula Bell Labs had used to optimize the results in that and subsequent note sales. On November 11, 1996, an article appeared in the U.S. News and World Report criticizing Hamilton's conduct of the note sales. See Hamilton's Ex. 126.[10]
In November 1996, Hamilton assembled a team, nicknamed the "Manhattan project," to investigate the optimization results reported to HUD in the West of Mississippi and other note sales. Robinson was not part of the Manhattan project team because he was no longer a Hamilton employee. Robinson was interviewed by Hamilton Chief Financial Officer Michael Dietz as part of the Manhattan project.
The Manhattan project team asked Bell Labs to re-run optimization computations regarding the West of Mississippi sale. Bell Labs required approximately one week to run that model.
Bell Labs' resulting optimization report dated December 6, 1996, concluded that the "true" optimal result for the West of Mississippi bids was $387,569,235.93. See Hamilton's Ex. 198. Bell Labs also concluded that the true optimal result for the West of Mississippi sale would have made ALI's pool bid # 3 a winner. Based on Bell Labs' computations, Hamilton's Manhattan project team concluded that the $385,196,928.49 yield reported to HUD for the West of Mississippi sale, was $2,372,307 (rounded off to the dollar figure) less than optimal.

*99 Hamilton Reports to HUD
On December 20, 1996, Hamilton submitted a report to HUD officials Nic Retsinas and Kathy Rock entitled "Report on Optimization." Ervin's Ex. 77. In the Report on Optimization, Hamilton explained that a discrepancy in the floor bid instructions that a Hamilton employee had conveyed to Bell Labs caused errors. According to this report:
West of Mississippi MF Sale: The sale produced revenue of $385,196,928 and the Lucent/Bell Labs result generated using the UPB floor is $387,569,235. The difference is $2,372,307 or 6/10ths of one percent.
Id.
Attached to the December 20, 1996 report was a one-page document entitled "West of the Mississippi Bid Analysis." Id. The report shows the "changes in asset mix" of five institutional bidders that submitted bids for multiple assets. The report does not identify specific bids submitted by these bidders that should or should not have been included in the optimal result. The report also shows five individual bids that were "winners ... who should not have won." Id. The report shows that had ALI's bid been a winner, it would have been awarded $91,649,825 in UPB. Id.

HUD Terminates Hamilton's Contract
By memorandum dated October 17, 1997, Fair Housing Authority Commissioner Nicolas Retsinas requested that the Office of Procurement and Contracts terminate Hamilton's contract and take all appropriate action to recover from Hamilton the lost revenue caused by Hamilton's errors on the West of Mississippi sale. See Hamilton Ex. 26. Upon learning of Hamilton's errors in the West of Mississippi and later note sales[11]as revealed in the Manhattan Project reportsHUD procurement officer Annette Hancock consulted with her superiors and legal counsel and terminated Hamilton's contract. Shortly after the termination of Hamilton's contract, then-HUD secretary Andrew Cuomo suspended the federal government's note sale program. In the meantime, the instant qui tam action remained pending and sealed until 2000, proceeded with discovery, and, in October 2003, went to trial.[12]

II. CONCLUSIONS OF LAW
The False Claims Act, 31 U.S.C. § 3729 et seq., establishes treble damages for "reverse false claims." A reverse false claim may be sustained against one who "knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the government." 31 U.S.C. § 3729(a)(7) (emphasis supplied). The key issue posed by *100 Hamilton's 52(c) motion is whether Ervin proved the "knowingly" requirement of the statute. As discussed further below, I conclude that Ervin failed to carry this burden.
To prove that Hamilton "knowingly" presented a false or fraudulent claim, Ervin was required to show that Hamilton
(1) ha[d] actual knowledge of the information;
(2) act[ed] in deliberate ignorance of the truth or falsity of the information; or
(3) act[ed] in reckless disregard of the truth or falsity of the information.
31 U.S.C. § 3729(b).
Concerning the West of Mississippi note sale, Ervin does not attempt to argue that Hamilton had actual knowledge of any false statements, or that Hamilton acted in deliberate ignorance of the truth or falsity of information relayed to HUD. Rather, Count VII of the Second Amended Complaint alleges, and Ervin set out at trial to prove, that Hamilton and its subcontractors "act[ed] in reckless disregard of the truth or falsity of the auction optimization results" for the West of the Mississippi note sale. Tr. 10/29/03 AM at 21, ln 18-20 (emphasis supplied).[13]
The "reckless disregard" prong of the definition for the term "knowingly" as used in the False Claims Act, 31 U.S.C. 3729 et seq., was enacted in a 1986 amendment to the federal statutory code. As described by what appears to be the only congressional report accompanying the bill:
S. 1562 defines this obligation as to make such inquiry as would be reasonable and prudent to conduct under the circumstances to ascertain the true and accurate basis of the claim. Only those who act in gross negligence of this duty will be found liable under the False Claims Act.
* * * * * *
the constructive knowledge definition attempts to reach what has become known as the ostrich type situation where an individual has "buried his head in the sand" and failed to make simple inquiries which would alert him that false claims are being submitted. While the Committee intends that at least some inquiry be made, the inquiry need only be "reasonable and prudent under the circumstances", which clearly recognizes a limited duty to inquire as opposed to a burdensome obligation.
S. Rep. 99-345, at 20, 1986 U.S.C.C.A.N. 5266, 5285 (internal quotation marks omitted).
According to our Court of Appeals, reckless disregard, as used in the False Claims Act, "lies on a continuum between gross negligence and intentional harm." United States v. Krizek, 111 F.3d 934, 941 (D.C.Cir.1997) (internal citation omitted) (emphasis supplied). The "best reading of the [False Claims Act] Act defines reckless disregard as an extension of gross negligence," an "extreme form of gross negligence." Id. at 942; see also id. at 941-42 (upholding district court's application of standard as expressed as "gross negligence plus"); accord United States ex rel. *101 Aakhus v. Dyncorp, 136 F.3d 676, 682 (10th Cir.1998); UMC Electronics Co. v. United States, 43 Fed.Cl. 776, 792 n. 15 (1999). The severity of conduct required to constitute "reckless disregard" underscores that innocent mistakes, mere negligence, or even gross negligence (without more) are not actionable under the False Claims Act. United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1018 (7th Cir.1999).
Ervin argues that the alleged extreme gross negligence by Hamilton (including that of its subcontractors Cooper & Lybrand and Bell Labs) at both the systemic and individual levels caused HUD's loss on the West of Mississippi note sale. Neither argument is ultimately persuasive.
Concerning the systemic level, Ervin makes several related arguments. First, Ervin argues that Hamilton failed to install a system by which concerns, such as those voiced by Brocks' fax, were to be routed to the responsible personnel. This argument is without merit. Ervin cites no authority, nor has research discovered any, for the proposition that failure to implement proper channels of communication may constitute gross negligence, let alone extreme gross negligence under the False Claims Act.
Similarly, Ervin argues that it was gross negligence in the extreme for Hamilton to deploy only one employee, Robinson, to oversee Bell Labs' subcontracting work. However, Ervin did not attempt to impeach the credentials of Robinson or Schindler of Bell Labs, other than to note that the West of Mississippi note sale was Schindler's first note sale work. Indeed, it was the first HUD note sale for all concerned. Nor did Ervin introduce any evidence as to the number of Hamilton employees, the availability of other personnel, or the industry practice for communications systems in analogous projects. Considering the entire context, Ervin has not established that Hamilton's staffing arrangement evidenced an "extreme form of gross negligence." Krizek, 111 F.3d at 941.
Ervin next argues that Hamilton and its subcontractors acted with reckless disregard because they failed to verify the accuracy of Bell Labs' results. Ervin relies on United States ex rel Compton v. Midwest Specialties, Inc., 142 F.3d 296 (6th Cir.1998). In that case, the contract between the federal government and a supplier required that the goods in question be tested. Knowing the goods had not been tested, and without knowing de facto whether the goods otherwise conformed to specifications, the supplier delivered the goods to the government. See id. at 303-04. The Sixth Circuit held that the supplier was so reckless as to whether the goods conformed that it had "knowingly" made a false claim to the government. Id.
Hamilton's conduct does not fall to this level. Hamilton did not represent that it would specifically test the results of the optimization process to verify that it had indeed yielded the "optimal" result. Unlike in Compton, it was therefore not negligent in the extreme, if negligent at all, for Hamilton to rely on an organization like Bell Labs and forego attempts to further test Bell Labs / Schindler's temporary fix. Proof of reckless disregard requires much more than errors, even egregious errors. Hamilton, due to the complexity of the pioneer, massive, and time-sensitive note sale transaction, subcontracted the work of developing an optimization formula to a prestigious scientific laboratory and the task of operating the auction itself to Coopers & Lybrand, a major financial services firm. Ervin makes no attempt to argue that Bell Labs or Coopers & Lybrand were an inappropriate choice for the work *102 each was respectively subcontracted to do, nor does Ervin attempt to impeach either subcontractors' credentials. While more extensive quality controls could have been in place (as is always the case), I find and conclude that the failure of Hamilton and its employees and subcontractors to create a system better attuned to the possibility of error in the pioneer West of Mississippi sale did not constitute "reckless disregard" within the meaning of the False Claims Act as construed by our Court of Appeals.
The evidence does not show actionable disregard for the truth or accuracy of the optimization results. The record does, of course, show that Hamilton and Bell Labs, specifically Robinson and Schindler, failed to identify errors in the optimization model for the West of Mississippi note sale. However, there is no evidence that Schindler was either under-qualified or unconscientious in trying to get the model right; it was he who, appropriately, suggested that the first optimization run be checked. And Robinson, qualified and also acting in good faith, approved the running of the second optimization report unilaterally and quickly. Schindler then inspected the results of the second optimization run and pronounced it accurate to within one dollar on a $622 million dollar sale. Given Schindler and Bell Labs' expertise, and the importance of time-sensitivity in the transaction, it was not gross negligence "plus" for Robinson to rely on the representation of a Bell Labs scientist to this effect. See Krizek, 111 F.3d at 941-42. Similarly, although Hamilton gave erroneous instructions regarding the calculation of the West of Mississippi bid floors, it is obvious only in hindsight that those instructions should have been rechecked prior to their transmission. Indeed, even Bell Labs did not identify the bid floor calculation instructions as problematic at any time during the West of Mississippi sale. In the final analysis, although Bell Labs, based on the erroneous bid floor instructions provided by Hamilton, produced ultimately erroneous optimization results, given all the circumstances here, "[e]rrors based simply on faulty calculations or flawed reasoning may be excused.... Proof of one's mistakes or inabilities is not evidence that one is a cheat.... Bad math is no fraud." Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1420-21 (9th Cir.1992).
Ervin also argues that the evidence on "individual level" negligence proved recklessness. Ervin relies on the D.C. Circuit's decision in Krizek, 111 F.3d 934. That case upheld the district court's finding of reckless disregard in a qui tam action involving the submission of false medical bills. The panel in Krizek identified the factors that supported the finding of reckless disregard: the defendant "completed the submissions with little or no factual basis," made "no effort to establish how much time" was spent with any particular patient, "failed utterly" to review bills submitted," and that "there were a number of days within the seven-patient sample when even the shoddiest recordkeeping would have revealed that false submissions were being madethose days on which the [defendants'] billing approached twenty-four hours in a single day." Id. at 941-42.
The facts of this case are in significant contrast. The submission of the optimization results by a specialized subcontractor had a significant factual basis: quantities of data, including properties bid on, bid floors, and bid amounts, were entered corresponding to each of the 400 bids in the West of Mississippi note sale. Those pieces of data were then processed by a computer algorithm run by Bell Labs. Ervin focused at trial on the reactions by the individual employees at Hamilton and its subcontractors regarding the fax sent *103 by Brocks to Fan and the information concerning the error in the optimization calculations on the West of Mississippi note sale, particularly Brocks and Robinson.[14] As discussed below, Ervin has not shown reckless disregard by either of these individuals.
Concerning Brocks' conduct, it was not grossly negligent for Brocks to contact only Fan. The optimization analysis was not Brocks' responsibility. He had worked with Fan on the nuts and bolts of the auction and had developed a favorable impression of Fan.
Nor was Brocks' conclusion following his conversation with Fan reckless disregard. After Brocks spoke with Fan regarding his fax, he did not believe there was any type of problem requiring further investigation. Fan's answerthat Brocks' calculation would have to consider the effect of bid floors and other bids in order to get a truly correct answer"made sense." Tr. 10/30/03 PM at 108, ln 22109, ln 7; Tr. 10/31/03 AM at 172, ln 6-13. Further, to properly perform such calculations without the benefit of the Bell Labs algorithm would have taken weeks or even months, if it could be done at all. See Tr. 10/30/03 PM at 107, ln 23108, ln 10. Given all the circumstances and the time-sensitive nature of the note sale, Brocks' conclusion that to perform the calculation would be too time-consuming was not grossly negligent.
Nor did Robinson's conduct concerning the West of Mississippi reported error on the first optimization run constitute gross negligence. With regard to the bid floor instruction error, Robinson, as Hamilton's primary contact with Bell Labs, after consulting with Bell Labs on September 20, 1995, could reasonably have believed that the problem with the West of Mississippi sale had been "fixed" and that action results presented to HUD were within $1 of the perfectly optimal solution. This belief was supported by his receipt of an e-mail from Schindler representing the results to have reduced error consequences to a de minimis level. The failure of Robinson to pursue further the concerns expressed by Brocks and Schindler was not grossly unreasonable in the context of the West of Mississippi transaction, whatever the implications of Hamilton's failure to learn from that experience in the context of future note sale transactions.[15]

III. CONCLUSION
I find and conclude that the evidence concerning the West of Mississippi note sale does not carry Ervin's burden of proving that Hamilton or its subcontractors acted with reckless disregard regarding the truth or falsity of the reports of the optimal results of the West of Mississippi note sale auction. In light of the foregoing, it is not necessary, to address other issues raised by Hamilton's motion. For the reasons stated above, an accompanying order grants Hamilton's 52(c) motion with *104 respect to Count VII of the Second Amended Complaint.

ORDER
It is this 7th day of January 2004 hereby
ORDERED: that, for reasons stated in the accompanying memorandum, defendant Hamilton's motion for partial judgment with respect to Count VII of the Second Amended Complaint is GRANTED, and it is:
FURTHER ORDERED: that Hamilton's motion for partial judgment with respect to Counts I, III, IV, V, VI, and VIII of the Second Amended Complaint is GRANTED because Ervin failed to identify or introduce evidence in either its pretrial statement or at trial in support of the allegations contained in these Counts. And it is:
FURTHER ORDERED: that Hamilton's motion is DENIED with respect to Count IX, related to the North and Central note sale. That transaction occurred arguably after Hamilton should have known enough about all of the errors and problems with the West of Mississippi sale to place the burden on Hamilton to demonstrate that the errors' replication is not actionable gross negligence in the extreme. And it is:
FURTHER ORDERED: Hamilton's motion is denied with respect to Count II (related to the Single Family Offering), Counts XIII and XIV (related to the Williams, Adley 8(a) contract), and Counts XV and XVI (related to the cross-cutting contract). And it is:
FURTHER ORDERED: that all pending evidentiary objections are overruled. And it is:
FURTHER ORDERED: that the qui tam trial is scheduled to resume on Monday, March 15, 2004 at 10:00 a.m. in Courtroom 3, at which time Hamilton may put on its case in defense unless the parties have reached a settlement of the pending action.
NOTES
[1]  The other defendant is Williams, Adley & Co. (Williams). On the eve of trial, Ervin and Williams reached a settlement agreement. By consent of the parties, Ervin postponed presenting its case in chief against Williams. The United States is reviewing that settlement agreement and to date has apparently not approved the proposed settlement agreement. This memorandum addresses only those of Ervin's claims that are against Hamilton.
[2]  Federal Rule of Civil Procedure 52(c) provides:

If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all evidence. Such a judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.
[3]  The trier of fact, of course, retains the authority, if not the obligation, to draw reasonable inferences from the facts found.
[4]  In addition, the order for reasons briefly there stated, grants the motion with respect to Counts I, III, IV, V, VI, and VIII of the Second Amended Complaint and denies the motion with respect to Counts II, IX, XIII, XIV, XV, and XVI.
[5]  Grace Huebscher, an executive at Hamilton in 1995, testified, regarding how it was that Bell Labs was selected, that "Bell Labs was known for its optimization techniques especially used in the airline industry. So we approached them and it made sense and we subcontracted with them." Tr. 10/30/03 PM at 114, ln. 11-15.
[6]  UPB is equal to the amount of outstanding (unpaid) principal balance owed on the given mortgage note.
[7]  Tr. 10/31/03 PM at 147, ln 18-24; Ervin Ex. 77 at p. 2, ¶ 1. For example, if a bidder specified a bid floor of $100 million UPB, but the optimization model selected that bidder as the winner of notes with a UPB totaling only $90 million, that bidder would be awarded no notes. On the other hand, if that bidder was selected as the winner of notes with a total UPB of $110 million, it would be awarded all of those notes.
[8]  Schindler's e-mail to Robinson stated, in part: "As you requested, I changed the minimum revenue to minimum [UPB] by prorating as a temporary fix. The attached reports [include] ... [t]he first alternate summary report, which indicates that there is an alternate solution within the cutoff of $1 (actually $0.36 higher)." Ervin Ex. 99.
[9]  In addition to Fan, Brocks also sent the fax to Christine Lord, a junior Hamilton employee who sat near the fax machine in Hamilton's offices. Brocks sent Lord the fax so that she could transmit the document to Fan.
[10]  There is pending before the court Civil Action No. 99-CV-1698 (LFO), an action by Hamilton against Ervin charging that Ervin was the source of these published reports and that Ervin tortiously interfered with Hamilton's contract with HUD.
[11]  The other sales included the North and Central note sale, the subject of Count IX of the Second Amended Complaint. Hamilton has also moved for judgment on that Count. The order accompanying this memorandum denies the motion with respect to Count IX, which concerns the North and Central note sale. That sale presents facts distinct from the West of Mississippi note sale, specifically greater evidence of reckless disregard of the falsity of the representation that the results reported to HUD were "optimal."
[12]  Several related lawsuits were also filed regarding the West of Mississippi note sale. In 1998, Hamilton filed an action against HUD in the United States Court of Federal Claims, seeking payment of certain outstanding accounts. See Hamilton Securities Advisory Servs., Inc. v. United States, No. 98-169 (Fed.Cl). The United States filed a countersuit (separate from the instant claim) against Hamilton for $3,883,551 in revenue lost. See id. Of this amount, $2,372,307 represents the damages allegedly caused by Hamilton's errors on the West of Mississippi sale. Portions of that suit are still pending.
[13]  In False Claims Act actions, statements of the subcontractor, when submitted by the general contractor, may serve as a basis for liability against the general contractor. See, e.g., Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 793 (4th Cir.1999) ("where the prime contractor allegedly knows that a material certification by a subcontractor was false, we find as a matter of law that the prime contractor has adopted the subcontractor's certification by submitting it to the government."); see also United States ex. rel. Roby v. The Boeing Co., 73 F.Supp.2d. 897, 904 n. 11 (S.D.Ohio 1999).
[14]  Ervin has also suggested that Fan's conduct evidenced reckless disregard. However, Ervin did not introduce any evidence as to what Fan's actions were, if any, aside from establishing that Brocks did not know of any follow-up by Fan in response to Brocks' fax. This showing is not enough to establish reckless disregard.
[15]  In addition, although the Manhattan project plainly should have been commenced prior to the sales subsequent to the West of Mississippi note sale, it is a minor plus for Hamilton that it eventually disclosed the correct information to the government. See United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir. 1991) ("That a defendant has disclosed all the underlying facts to the government may, the United States in its brief concedes, show that the defendant had no intent to deceive.").


739 F.Supp. 707 (1990)
Thomas OSES, Plaintiff,
v.
Michael V. FAIR, et al., Defendants.
Civ. A. Nos. 89-0562-H and 89-0693-H.
United States District Court, D. Massachusetts.
July 9, 1990.
*708 Thomas Oses, pro se.
Stephen G. Dietrick, Deputy Gen. Counsel, Nancy Ankers White, Sp. Asst. Atty. Gen., Dept. of Correction, Boston, Mass., for defendants.

MEMORANDUM AND ORDER
HARRINGTON, District Judge.
The above-numbered civil suits were consolidated for trial before the Court without a jury. The Plaintiff Oses is an inmate incarcerated in the Massachusetts Correctional system. The Court has dismissed all defendants from the case with the exception of John Cummings who is an employee of the Massachusetts Department of Corrections.
The Supreme Court has held that the Eighth Amendment embodies "broad and idealistic concepts of dignity, civilized standards, humanity, and decency." Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), citing Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968). Repugnant to the Eighth Amendment is conduct which "violates evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958), or which "shocks the most fundamental instincts of civilized man." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947).
A prison guard's unjustified striking, beating or infliction of bodily harm upon a prisoner gives rise to liability under 42 U.S.C. § 1983 on the part of one who, acting under color of state law, engages in such conduct without just cause. Unwin v. Campbell, 863 F.2d 124, 129 (1st Cir.1988); King v. Blankenship, 636 F.2d 70, 72 (4th Cir.1980) (collecting cases); see also Sampley v. Ruettgers, 704 F.2d 491, 495 (10th Cir.1983). Where institutional security is not at stake, the officials' license to use force is limited. "Eighth Amendment liability will be imposed where the [prison] *709 officials' actions involve the wanton and unnecessary infliction of pain as determined by the need for the application of force, the relationship between the need and the amount of force that was used, and the extent of injury inflicted." Unwin v. Campbell, 863 F.2d 124, 135 (1st Cir.1988).
Civil Action No. 89-0562 alleges that the Defendant John Cummings committed "cruel and unusual punishment" on the person of the plaintiff on January 17, 1989. This matter was thoroughly investigated by the Department of Corrections and a full administrative hearing was conducted thereon. I find that the physical and verbal confrontation which occurred between the plaintiff and the Defendant Cummings on that date does not "shock the fundamental instincts" of the court, which is the standard necessary to establish "cruel and unusual punishment." Moreover, as a result of the administrative process, appropriate findings were rendered by Massachusetts Correctional authorities and a proper decision was made. The plaintiff received due process of law and the Department of Corrections has taken every step necessary to insure that his constitutional rights were protected.
Civil Action No. 89-0693 alleges that in October, 1988 the Defendant Cummings assaulted the plaintiff, in the presence of Cummings' wife, by striking him on the head, by brandishing a .38 caliber revolver, by placing the .38 caliber revolver onto plaintiff's person, by sticking the barrel of the .38 revolver into plaintiff's mouth, by forcing the plaintiff to kiss his wife's shoes, by emptying the chamber of the revolver of all bullets but one and then cocking the gun while the barrel was still in plaintiff's mouth, as well as committing other assorted batteries. The plaintiff received no physical injuries from the Defendant Cummings' acts. When the Defendant Cummings emptied his revolver of all shells except one, the shells fell on the floor.
The evidence established that plaintiff had instigated the circulation of a rumor throughout Old Colony Prison that he was having a sexual affair with Defendant Cummings' wife, who is also employed as a prison official. According to plaintiff, it was defendant's awareness of this rumor which precipitated defendant's assaultive behavior in October, 1988 and which initiated their confrontation on January 17, 1989. Plaintiff introduced into evidence, in an attempt to prove this relationship, some hand-printed love letters purportedly written by defendant's wife in a disguised hand-written style. The Court makes no determination as to the identity of the author of these letters.
I find that the plaintiff's allegations as to defendant's assaultive conduct as set forth in this complaint are true. I had the opportunity to observe the plaintiff on the witness stand and in the conduct of the prosecution of his own case and determine that he is absolutely sincere in pursuing these allegations. His every action manifests a convincing determination to obtain justice. His persuasive testimony is supported by his possession of two bullets which he testified were dropped from the chamber of Cummings' gun onto the floor prior to Cummings' playing "Russian roulette" with the one remaining bullet contained in the chamber. I rule that such conduct does "shock the fundamental instincts" of the Court.
The defendant raises the possibility that plaintiff had these two bullets smuggled into prison on or about June 12, 1990, at a time when he received a package containing sneakers from his girlfriend. However, a review of the papers filed in this case reflects that on March 17, 1989, when the original complaint in Civil Action No. 89-0693 was filed, the plaintiff advised the Court that he possessed at that time the two bullets which would corroborate his allegations. In addition, plaintiff's Motion in Opposition, dated June 7, 1990, reflects that he was at that time still in possession of the two .38 caliber bullets. Additionally, on February 15, 1989, prior to his filing either of the two instant actions, he advised Mrs. Paige, a Department of Corrections' investigator, that he was not going to discuss a matter relating to a gun with her, *710 but would leave that matter for resolution in the Federal Court.
Those who hold an official position must exercise the authority of the office with patience, humility, and forbearance. A public official can never abuse his power over those subject to it, even in the face of extreme provocation.
Defendant Cummings committed a grievous act, yet he was driven to it by plaintiff's disreputable and taunting behavior. Defendant was provoked to his emotional breaking point by acts cunningly calculated to incite defendant to do the type of acts complained of. Any person of ordinary temperament and composure, hearing rumors of his wife's infidelity being fanned by the alleged co-respondent himself, would be hard-pressed to arrest his wrath and refrain from retaliating with physical force actuated by blind fury. Plaintiff was bragging that he was violating defendant's marital relationship, a person's most sacred and precious possession, and, thus, intentionally goaded defendant into a violent response. Acts of passion done in righteous anger, although not condoned by the Court, warrant the imposition of a more lenient remedy, as the law counsels sympathy for human frailty in this most sensitive situation. Othello still retains our empathy, even after his most horrid deed. Thus, any assessment of damages must be evaluated in the light of this factor which compels mitigation in the calculation of any amount to be awarded.
No public official, including prison officials, can be allowed to abuse the power of their position; yet inmates are not to be highly rewarded for injuries incurred which their outrageous conduct so purposefully provoked. "Who steals my purse steals trash." He who steals a person's good name deserves nothing but disdain.
I award the plaintiff damages in the amount of $1,000.00, plus interest and costs.


521 P.2d 422 (1974)
Kenneth Willis DAVIS, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-74-13.
Court of Criminal Appeals of Oklahoma.
April 10, 1974.
Curtis D. Glover, Roger E. Beecham, Dallas, Tex., for appellant.
Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., John Wilkinson, Legal Intern, for appellee.

OPINION
BLISS, Presiding Judge:
Kenneth Willis Davis, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Comanche County, Oklahoma, for the offense of Sale of Marijuana, Case No. CRF-72-187. His punishment was fixed at a term of two (2) years in the state penitentiary. From said judgment and sentence a timely appeal has been perfected to this Court.
As a recitation of the facts is not necessary in order to determine the issue presented on appeal, no recitation is made other than the following: The defendant, a twenty-four (24) year old senior at Cameron College, Lawton, Oklahoma, was charged with selling approximately two (2) ounces of marijuana to an undercover narcotics agent. After the State presented its prima facie case, the defendant did not testify and as defendant's brief states, "essentially his guilt was uncontested."
The defendant's sole proposition in error is that 63 O.S. 1971, § 2-401(B)(2), which bars the trial court from suspending or deferring sentences or from allowing probation for a violation of said statute, is unconstitutional in that it is an encroachment upon the Judicial branch by the Legislature prohibited by Article IV, Section 1 of the Oklahoma Constitution, is in violation of the equal protection clause and due process clause, and further constitutes cruel and unusual punishment as prohibited by the United States Constitution and the Amendments thereto. We do not agree.
The pertinent portions of 63 O.S. 1971, § 2-401 are as follows:
"A. Except as authorized by this act, it shall be unlawful for any person:
"1. To manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense, a controlled dangerous substance;
"2. To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance.

*423 "B. Any person who violates this section with respect to:
* * * * * *
"2. Any other controlled dangerous substance classified in Schedule I, II, III, or IV is guilty of a felony and shall be sentenced to a term of imprisonment for not less than two (2) years nor more than ten (10) years and a fine of not more than Five Thousand Dollars ($5,000.00). Such sentence shall not be subject to statutory provisions for suspended sentences, deferred sentences or probation." (Emphasis added)
The precise issue raised on appeal was considered by this Court in the recent case of Black v. State, Okl.Cr., 509 P.2d 941, wherein it was held as follows:
"The defendant argues that the section is unconstitutional and that Legislature has exceeded its constitutionally limited powers by invading the judicial domain, that the denial of the possibility of probation constitutes cruel and unusual punishment and violates due process and equal protection of the laws. We are of the opinion that the Legislature properly exercised its power to prohibit suspension of a sentence in a given case as an inherent part of its power to prescribe punishment for the acts which it has prohibited as criminal.
* * * * * *
"In conclusion, we observe that the provision of 63 O.S. 1971, § 2-401, which prohibits the suspension of a sentence upon conviction of the sale of the enumerated items is constitutional. We further observe that such prohibition does not represent an encroachment upon the Judicial Branch by the Legislature, nor does the same violate the Fifth, Eighth, or Fourteenth Amendments to the Constitution."
See also Williamson v. State, Okl.Cr., 510 P.2d 27 and Doyle v. State, Okl.Cr., 511 P.2d 1133. The judgment and sentence appealed from is, therefore,
Affirmed.
BRETT, J., concurs in part and dissents in part.
BUSSEY, J., concurs.
BRETT, Judge (concurring in part and dissenting in part):
Insofar as defendant appears to admit his guilt in this matter, I concur that the conviction should be affirmed; but I dissent to that part of the decision pertaining to the suspension of sentence as cited from Black v. State, supra, Williamson v. State, supra, and Doyle v. State, supra.


                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      OCT 17 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                       No.    16-50097

                  Plaintiff-Appellee,            D.C. No.
                                                 8:12-cr-00240-JVS-10
   v.

 ALAN DAVID NIXON,                               MEMORANDUM *

                  Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                        Argued & Submitted October 7, 2016
                               Pasadena, California

Before: TROTT, OWENS, and FRIEDLAND, Circuit Judges.

        Defendant-Appellant Alan David Nixon appeals the district court’s refusal to

modify his conditions of probation to allow him to use marijuana for medical

purposes. We have jurisdiction under 28 U.S.C. § 1291, and we now affirm.

        Nixon argues that the district court violated the Eighth Amendment’s

prohibition against cruel and unusual punishment and deprived him of due process
        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
by not allowing him to use marijuana for medical purposes during his probationary

term. 1 Because Nixon did not object on these grounds in the district court, we

review for plain error. See United States v. Vega, 545 F.3d 743, 747 (9th Cir.

2008) (stating that forfeited challenges to conditions of supervised release are

reviewed for plain error).

      Nixon bears the burden of demonstrating plain error, United States v. Olano,

507 U.S. 725, 732-35 (1993), and he has not met that burden. Nixon does not

provide any meaningful argument to support his argument that the probation

condition violates due process, so that argument is waived. See United States v.

Daniels, 541 F.3d 915, 925 (9th Cir. 2008); accord Fed. R. App. P. 28(a)(8). Any

possible construction of Nixon’s Eighth Amendment claim would require

consideration of his personal medical condition. Nixon has not put evidence of his

condition into the record and, in fact, expressly waived his right to an evidentiary

hearing in the district court. Nixon’s Eighth Amendment argument therefore fails.

AFFIRMED.

1
 We address in a concurrently filed opinion Nixon’s argument that a congressional
appropriations rider prohibits the district court from restricting his use of medical
marijuana as a condition of probation.

                                          2


601 F.Supp. 1574 (1985)
UNITED STATES of America
v.
John B. ELDER.
Crim. No. B-84-276.
United States District Court, S.D. Texas, Brownsville Division.
February 13, 1985.
*1575 *1576 Gilberto Hinojosa, Brownsville, Tex., Daniel Sheehan, Washington, D.C., Lisa Brodyaga, Harlingen, Tex., for John Elder.
Robert L. Guerra, Asst. U.S. Atty., McAllen, Tex., for U.S.

OPINION ON MOTIONS TO DISMISS
HEAD, District Judge.

I. INTRODUCTION
The United States accused the Defendant John B. Elder of unlawfully transporting three undocumented Salvadoran aliens in violation of 8 U.S.C. § 1324(a)(2). Elder filed various motions to dismiss, including motions based on freedom of religion, domestic and international refugee law, selective prosecution, and estoppel. He also filed a motion to suppress based on an allegedly improper showup. After extensive pretrial evidentiary hearings, the Court, in open court, denied all motions to dismiss and the motion to suppress. This opinion discusses only those motions which the Court feels are sufficiently unique to merit a written opinion.

II. FACTS
Elder is the director of the Casa Oscar Romero (Casa Romero), named in honor of the assassinated Roman Catholic Archbishop of El Salvador. Casa Romero, located in San Benito, Cameron County, Texas, provides assistance and shelter to Central Americans, principally Salvadorans, who have fled Central America and entered the United States. Elder considers these persons "refugees" under the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102, and international law. Elder regards Casa Romero as a sanctuary in the biblical sense. The testimony indicated that the Casa Romero was founded in December, 1982, on land donated by the Roman Catholic Diocese of Brownsville. Parishes and congregations of various religious affiliations donated seed money and continue to provide financial support for the Casa Romero. The Roman Catholic Diocese of Brownsville plays a financial and leadership role in the operation of the Casa Romero.
On March 12, 1984, Elder transported three undocumented Salvadorans six miles from the Casa Romero to a bus station in Harlingen, Texas, within the Rio Grande Valley. Without permission or documentation, these aliens together had entered the United States earlier that same day in the vicinity of the Matamoros-Brownsville International Bridge. The Salvadorans then walked twenty-five miles to San Benito, where they were directed to the Casa Romero. After they ate and rested at the Casa Romero, the Salvadorans asked Elder for a ride to the Harlingen bus station. The Salvadorans planned to go north to Houston on the bus through the Border Patrol checkpoint located north of Harlingen on U.S. Highway 77. Elder complied with the Salvadorans' request by taking them to the Continental Trailways Bus Station in Harlingen. Elder knew of the Salvadorans' plan to go to Houston.
Two Border Patrol agents saw the three Salvadorans get out of Elder's vehicle in front of the bus station. After the agents recorded the license plate number of the vehicle, the agents detained the Salvadorans and took them to the Harlingen Border Patrol office. A license plate check revealed that the car was registered to Elder. An agent of the Immigration and Naturalization Service (INS) later returned the Salvadorans to the Casa Romero, where the Salvadorans identified Elder. At the pretrial evidentiary hearing, the Salvadorans and the Border Patrol agents identified Elder as the driver of the vehicle.

III. MOTION TO DISMISSFREEDOM OF RELIGION
Elder contends that his First Amendment right to exercise religion entitles him to put into practice his religious beliefs, which includes providing shelter and transportation *1577 for Salvadoran aliens, even if those practices clash with the statutory prohibitions of 8 U.S.C. § 1324(a)(2). Courts have recognized that the exercise of religious freedom can sometimes excuse criminal conduct, see Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); People v. Woody, 61 Cal.2d 716, 40 Cal. Rptr. 69, 394 P.2d 813 (1964); however, the Supreme Court has determined that the enforcement of criminal laws can be constitutionally achieved even if the laws interfere with the religious practices of individuals. See Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Reynolds v. United States, 8 Otto 145, 98 U.S. 145, 25 L.Ed. 244 (1878). The First Amendment "embraces two concepts  freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." Cantwell v. Connecticut, 310 U.S. at 303-04, 60 S.Ct. at 903.
Recent court decisions describe the appropriate analysis to resolve the conflict between the prohibitions of a criminal statute and the perceived mandates of religious practice. Elder bears the initial burden to demonstrate that religious beliefs motivated his conduct. The burden then shifts to the Government to justify placing limitations on the religious conduct. The Government must show that such limitations are essential to accomplish a compelling governmental interest. The limitation on religion must not exceed the least burdensome method of accomplishing the Government's purpose without infringing First Amendment rights. Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193, 200 (5th Cir.1984); see United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).
When a defendant presents evidence to meet his initial burden, the Court must be careful and deferential in examining the Defendant's beliefs. The Supreme Court notes that the determination of what constitutes a religious belief or practice presents "a most delicate question." Wisconsin v. Yoder, 406 U.S. at 215, 92 S.Ct. at 1533. The Court should neither interpret canon law nor define the parameters of a religion. See Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 715-16, 101 S.Ct. 1425, 1430-31, 67 L.Ed.2d 624 (1981).
The Court finds that Elder has met his initial burden. He is a Roman Catholic who feels a charitable Christian commitment, founded in the Gospel, which motivates him to assist those who flee the violence in El Salvador. Elder presented the testimony of various Christian clergymen who confirmed that assistance to those in need remains a fundamental aspect of Christianity. Bishop John Fitzpatrick, Bishop of the Roman Catholic Diocese of Brownsville, testified that meeting material human needs represents an essential aspect of Christianity, and that each individual remains free to fulfill this obligation according to the directives of his or her own conscience. Although no law of the Roman Catholic Church specifically requires Roman Catholics to provide sanctuary or rides to Salvadorans, Bishop Fitzpatrick believes that providing such assistance constitutes an appropriate expression of the Christian gospel. According to the testimony of the various ministers, this conclusion also holds true in other denominations. These ministers included Donovan Cook of the American Baptist Church, James Andrews of the Presbyterian Church, John Steinbrook of the Lutheran Church, and Gilbert Dawes and John Soper of the United Methodist Church. The Government called no witnesses to oppose the testimony of these ministers.
Elder feels a religious commitment to assist Salvadorans because of the political turbulence in that country. An insurgent movement currently exists in El Salvador which continues to battle government forces. Elder filed numerous statements from alleged eyewitnesses who describe a brutal situation in El Salvador. According to these statements and testimony in court, *1578 the conflict in El Salvador has resulted in much violence and many atrocities directed at the civilian population from both sides. The testimony contains graphic descriptions of torture, murder, brutalities, and disappearances. The violence has included church workers among its victims.
Although the Court has no reason to doubt the description of tragedy and horror in El Salvador, the Court need only find that Elder believed that such violence actually occurred. This Court has no responsibility to make factual findings concerning the situation in El Salvador. The Court need not make any foreign policy judgments in order to conclude that, in assisting the Salvadorans, Elder acted in accordance with his personal view of Christianity. The Bishop of the Brownsville Diocese believes that Elder is a religious man who practiced his Roman Catholicism when he transported the Salvadorans. According to the Bishop, as a practicing Roman Catholic, the expression of Elder's inner religious thoughts can properly be evidenced by charitable social action, such as assistance to undocumented Central Americans.
The Court understands that other members of the Roman Catholic faith may oppose Elder's activist response to the situation in Central America. The Court emphasizes that it is not an arbiter of canon law. The Court simply finds that Elder fulfilled his Christian obligations as he genuinely perceived them to be and that Elder presented substantial testimony to support his view of Christianity. This Court's conclusions are not intended to define the Christian Gospel or Christian response to it. The Court need not correctly interpret Christian doctrine in order to hear the position of the Defendant.
Because Elder meets his initial burden, the Government must show an overriding interest to justify prosecution. The Court finds that the Government meets its burden to demonstrate an overriding interest in protecting a congressionally-sanctioned immigration and naturalization system designed to maintain the integrity of this Nation's borders. In discussing the importance of United States' immigration laws, the Supreme Court has repeatedly emphasized the importance which sovereign nations place upon controlling entry through their borders. In Kleindienst v. Mandel, 408 U.S. 753, 765, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972), the Supreme Court agreed that controls over immigration are "inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers  a power to be exercised exclusively by the political branches of government...." In Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) [quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909)], the Supreme Court underscored the limited role of the judiciary with respect to immigration and reemphasized that "`over no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens."
The ability to control entry and to identify those admitted remains vital to the welfare and security of the people. See The Japanese Immigrant Case, 189 U.S. 86, 96-97, 23 S.Ct. 611, 613, 47 L.Ed. 721 (1903); Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 123-24, 87 S.Ct. 1563, 1567, 18 L.Ed.2d 661 (1967). Circumvention by individuals of the congressionally-prescribed procedure for entry, even if religiously motivated, undermines the historically legitimate goals of immigration control. Protection of the borders represents a national obligation fulfilled by the Government for the benefit of all Americans. See The Chinese Exclusion Case, 130 U.S. 581, 603-07, 9 S.Ct. 623, 629-30, 32 L.Ed. 1068 (1889). Elder's do-it-yourself immigration policy, while charitable, gives away what is not his to give away  the Government's legitimate right to examine every person who enters the country so that the Government can make informed decisions on who will be admitted.
The United States retains interests in immigration control for security reasons. Richard Casillas, District Director for the INS in San Antonio, Texas, explained that *1579 potential immigrants must submit a biographical data sheet for review by law enforcement agencies. The goal of this system of immigration control is to prevent entry by enemies of the state, criminals, and other classifications of immigrants which Congress determines to be undesirable. Without a functional system, the country remains unable to inquire and therefore powerless to control. The INS also faces problems with counterfeit identification and documentation obtained by aliens who wish to assimilate into American society. Casillas testified that the INS recently redirected its limited resources to deal with the growing problem of undocumented aliens who make fraudulent applications to receive benefits under entitlement programs.
The parties presented conflicting evidence concerning the beneficial or harmful impact exerted by undocumented workers upon the labor market and the national economy. David North, an immigration researcher who testified for the Government, concluded that undocumented aliens drained social resources, depressed wages, displaced minority and women workers, and impeded technological development in some sectors of the economy. Thomas Muller, an expert for the defense, found that undocumented immigrants filled unwanted jobs and helped to create new jobs and prosperity. Another defense expert, Gilberto Cardenas, testified that undocumented aliens adversely affected local funds for social services, but that the State of Texas as a whole received a net benefit from contributions paid by undocumented aliens into the state's social programs. This existing controversy among experts proves, first, that the economic impact of illegal immigration remains unresolved and, second, that the Court should not resolve the dispute. As long as the issue persists, Congress remains entitled to examine the immigration question and to pass legislation to address the problems which Congress discovers. Congress may direct the executive to account for each individual who enters the country and to make appropriate decisions in the best interest of all Americans.
The Court must also analyze whether the Government utilizes the least burdensome method to accomplish its purpose in securing the Nation's borders. The Court finds that the Government must retain the sole authority to determine who may cross the borders or travel further within the country. If the Government attempted to accommodate into its immigration policy Elder's religious beliefs, the Government's efforts would result in no immigration policy at all. As testimony from Defendant's witnesses indicated, the moral obligation to assist others crosses religious and denominational lines. These widely-held beliefs allow adherents to exercise considerable discretion and would permit religious individuals to form personal immigration policies. See United States v. Lee, 455 U.S. at 259-60, 102 S.Ct. at 1056-57. Elder wishes to limit this Court's view solely to the violence in El Salvador; however, the human condition remains miserable in many parts of the globe. Man's inhumanity to man, as well as nature's, has been unrelenting throughout history. Many people live on this planet who logically are no less worthy of Elder's Christian charity than the Salvadorans. The consciences of others religiously motivated may conclude that the starving and impoverished of North Africa, Asia, or Mexico are equally entitled to enter this country without review by the INS.
Obviously all cannot enter. Congress has recognized in its immigration policy that the United States cannot absorb all who wish to enter this country to take advantage of its relative tranquility and bounty. Congress has therefore established appropriate standards and procedures by which to determine proper entry. The Government, as the representative of all Americans, must retain the sole authority and responsibility to make these hard decisions and has put a system into place which individuals, without regard to their motivations, cannot be allowed to evade. See The Chinese Exclusion Case, 130 U.S. at 603-09, 9 S.Ct. at 629-31.
The United States accepts applications for asylum from all nationalities, including *1580 Salvadorans, under a procedure which takes into account the social and political conditions which exist in their homelands. See generally Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102. Title 8 U.S.C. § 1158(a) authorizes the Attorney General to establish a procedure for asylum, see 8 C.F.R. §§ 208.1-208.16 (1984), which provides protection to applicants who fall under the statutory definition of refugee. Title 8 U.S.C. § 1101(a)(42)(A) includes as refugees those persons unable or unwilling to return to their native countries "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...." A potential refugee may enter the country and apply for asylum with the local District Director of the INS. See 8 C.F.R. § 208.3(a). All potential refugees also receive the opportunity to submit applications for asylum during exclusion or deportation proceedings before an immigration judge. See C.F.R. §§ 208.3(a), 208.9. Those denied asylum by an immigration judge may appeal the decision within the INS. The testimony indicates that some Salvadorans have petitioned for and received asylum. Petitioners who are denied asylum have recourse to all levels of the federal courts for review of the decision, see Ramirez-Osorio v. Immigration and Naturalization Service, 745 F.2d 937, 946 n. 15 (5th Cir.1984), including the United States Supreme Court. See Immigration and Naturalization Service v. Stevic, ___ U.S. ___, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984).
This Court finds that implementation of the immigration laws represents an important Government interest which, on balance, justifies enforcement of § 1324(a)(2) against Elder. The Court also finds that the Government utilizes the least burdensome method by which to accomplish its goals, especially since nothing in this decision prohibits the exercise of Christian charity to those who present themselves before the INS to apply for asylum and who proceed under INS rules. See United States v. Pereira-Pineda, 721 F.2d 137 (5th Cir.1983). The Court accordingly denies the motion to dismiss based on free exercise of religion.

IV. MOTIONS TO DISMISS UNDER DOMESTIC AND INTERNATIONAL LAW
Elder introduces various motions to dismiss based on domestic and international refugee law. Elder's motions based on domestic law essentially argue that 8 U.S.C. § 1253(h) entitled the Salvadoran aliens that he transported to remain in the United States because they fall under the definition of refugee. Section 1253(h), as amended by the Refugee Act of 1980, provides that the Attorney General "shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." Elder asserts that because the Salvadorans he transported qualified for protection as refugees, the Government cannot prove that the aliens were present unlawfully, an essential element of § 1324(a)(2). See United States v. Shaddix, 693 F.2d 1135, 1137-38 (5th Cir.1982). The Defendant argues that his assistance to the Salvadorans remained perfectly legal, and he requests dismissal of the indictment.
The Court refuses the invitation to circumvent the statutory scheme and declines to dismiss the indictment. Fifth Circuit law clearly holds that before Salvadoran aliens may reside legally within this country they must submit applications for asylum with the Government. United States v. Pereira-Pineda, 721 F.2d 137 (5th Cir.1983); see Martinez-Romero v. Immigration and Naturalization Service, 692 F.2d 595, 595-96 (9th Cir.1982). The Defendant essentially asks the Court to make a finding of fact concerning the refugee status of the Salvadorans. Title 8 U.S.C. § 1158 and § 1253(h), however, authorize the Attorney General to determine the refugee status of an individual. The statutes do not permit either the Court or the Defendant to determine the refugee status of the Salvadorans, nor can the Court submit *1581 such an issue to a jury. Under the statutory scheme, the decision lies exclusively with the Attorney General, subject to appropriate avenues of judicial review. See Ramirez-Osorio v. Immigration and Naturalization Service, 745 F.2d 937, 946 n. 15 (5th Cir.1984).
The Defendant also argues that international laws and treaties automatically entitle the aliens to receive refugee status without regard to our own national laws. The Court concludes that Congress intended the Refugee Act of 1980 to fulfill its obligations under international law, see Immigration and Naturalization Service v. Stevic, ___ U.S. ___, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), and this Act designates the Attorney General to determine refugee status. Congress also indicated that the Government should review applications from Salvadorans on a case-by-case basis. See Pub.L. 97-113, § 731, 95 Stat. 1519. The Court cannot interfere with political decisions which the United States as a sovereign nation chooses to make in the interpretation, enforcement, or rejection of treaty commitments which affect immigration. See The Chinese Exclusion Case, 130 U.S. 581, 9 S.Ct. 623 (1889); Botiller v. Dominguez, 130 U.S. 238, 247, 9 S.Ct. 525, 527, 32 L.Ed. 926 (1889); Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977); 74 Am.Jur.2d Treaties §§ 14, 36 (1974). The Court accordingly denies Defendant's motions to dismiss under domestic and international refugee law.


                 IN THE SUPREME COURT OF PENNSYLVANIA

                                        : No. 259
IN RE: DESIGNATION OF CHAIR AND
                                        :
VICE-CHAIR OF THE APPELLATE             : APPELLATE COURT RULES
                                        :
COURT PROCEDURAL RULES                  :
                                        :
COMMITTEE

                                     ORDER

PER CURIAM

      AND NOW, this 19th day of April, 2016, Kevin J. McKeon, Esquire, is hereby

designated as Chair and the Honorable John T. Bender as Vice-Chair of the Appellate

Court Procedural Rules Committee commencing June 30, 2016.


395 So.2d 1242 (1981)
Paul Elton TURNER, Appellant,
v.
STATE of Florida, Appellee.
No. UU-133.
District Court of Appeal of Florida, First District.
March 25, 1981.
Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Wallace Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
OWEN, WILLIAM C., Jr. (Retired), Associate Judge.
Appellant was on probation with adjudication withheld, a condition of probation being that he reside at the Men's Probationers Restitution Residence Center in Jacksonville. Probation was revoked for violation, *1243 after which Appellant was sentenced to three years in prison without credit for the time spent by Appellant in the restitution center. Appellant seeks review of the order denying his motion to correct sentence in this and another respect.
The court, finding that Appellant was free to leave the center every morning and to remain at liberty until he returned each night (after which he was required to be at the center during the night except by special authorization), held that this did not amount to Appellant being incarcerated, as the word "incarcerated" is defined in Sims v. State, 369 So.2d 431 (Fla. 2nd DCA 1979). While we feel that the restrictions placed upon Appellant would marginally meet the Sims definition of being "incarcerated", we decline to follow the Sims case (and similar decisions by the Second District Court of Appeal[1]) but rather prefer to align ourselves with the Fourth District Court of Appeal on this point as reflected by its decisions in Pennington v. State, 4th DCA, Case No. 78-1302, Opinion filed January 16, 1980,[2] and Levin v. State, 348 So.2d 1189 (Fla. 4th DCA 1977).
Credit for punishment already exacted is mandated by the Fifth Amendment to the U.S. Constitution[3] and by statute.[4] But as Justice England pointed out in Dorfman v. State, 351 So.2d 954 (Fla. 1977), there is an obvious difference between confinement in a prison as part of a criminal sentence and a period of treatment in a mental hospital for the purpose of helping the individual to return to society. Paraphrased, there is clearly an obvious difference between confinement in prison (or in the county jail before sentence) and the limited restrictions placed on one at the probation restitution center. And as Judge Downey pointed out in Pennington v. State, supra, the statute mandating credit "refers only to `credit for all of the time he spent in the county jail before sentence.'"
The other error asserted by Appellant is also without merit, and the order is, therefore,
AFFIRMED.
LARRY G. SMITH, and THOMPSON, JJ., concur.
NOTES
[1]  Singleton v. State, 373 So.2d 713 (Fla. 2nd DCA 1979); Barron v. State, 369 So.2d 669 (Fla. 2nd DCA 1979); Graham v. State, 366 So.2d 498 (Fla. 2nd DCA 1979); Johnson v. State, 334 So.2d 334 (Fla. 2nd DCA 1979).
[2]  On August 27, 1980, the Supreme Court entered an order accepting jurisdiction of this case and dispensing with oral argument, Case No. 58,648.
[3]  See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
[4]  Section 921.161, Florida Statutes (1979).


926 P.2d 955 (1996)
Judith L. PAULSON, Appellant (Plaintiff),
v.
Jose ANDICOECHEA, Individually, Jose Andicoechea, d/b/a Cody Motel, and Cody Motel, Inc., Appellees (Defendants).
No. 95-300.
Supreme Court of Wyoming.
November 15, 1996.
*956 Robert W. Horn (argued), and Vonde M. Smith of Robert W. Horn, P.C., Jackson Hole, for appellant.
Daniel T. Massey of Harrison & Massey, LLC, Rawlins, for appellees.
Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN[*] and LEHMAN, JJ.
LEHMAN, Justice.
The issue presented in this case is whether appellee owes appellant a duty to clear snow and ice from a parking lot. Finding that the natural accumulation rule bars imposition of such a duty under the specific facts of this case, we affirm the district court's grant of summary judgment.

ISSUES
Appellant presents the following issue:
I. May the natural accumulation rule serve as a foundation for summary judgment in the face of specific common law and statutory duties which mandate the removal of snow and ice from the property where a citizen was hurt?
Appellee states the issues:
I. Is summary judgment appropriate in a slip and fall case when the summary judgment is based on undisputed facts, well-settled Wyoming case law concerning the natural accumulation rule, and the obvious danger rule?
II. If a landowner in Wyoming cleans a parking area following a snowfall, is there a common law duty created requiring landowner to clean the parking area each subsequent snowfall thereafter?
III. Does Rock Springs' city ordinance requiring snow removal from sidewalks create a duty to remove snow from parking areas not located on sidewalks?

FACTS
On December 10, 1991, Appellant Judith Paulson (Paulson) arrived at the Appellee Cody Motel (Cody Motel) in Rock Springs, Wyoming to perform her janitorial cleaning service. It had snowed, and Cody Motel had not cleared away the snow and ice which had accumulated in the parking lot. When Paulson arrived at the Cody Motel, she drove into the parking lot, got out of the truck, and entered the main office. She then returned to her truck and drove to the laundry room, whereupon she supervised the cleaning of the rooms. As Paulson drove around and walked on the parking lot, she recognized that it was packed and slick with snow and ice.
When Paulson's duties were finished, she drove her vehicle back to the main office to clock out. Paulson parked her vehicle in the parking lot; and, upon stepping out of her truck, she slipped and fell on some snow and ice injuring herself. Subsequently, Paulson *957 filed an action in district court against Cody Motel and its owner, Jose Andiocoechea, based upon negligence. Cody Motel submitted a motion for summary judgment, arguing that it owed no duty to Paulson and, thus, a negligence action could not survive. The district court agreed with Cody Motel and granted summary judgment. Paulson timely appeals.

DISCUSSION

I. Standard of review
Summary judgment is proper, even in negligence cases, when there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Pullman v. Outzen, 924 P.2d 416, 418 (Wyo.1996); Downen v. Sinclair Oil Corp., 887 P.2d 515, 518 (Wyo.1994); Eiselein v. K-Mart, Inc., 868 P.2d 893, 894-95 (Wyo.1994). When we review a motion for summary judgment, we view the record on appeal in the light most favorable to the party opposing the motion and accept all favorable inferences that can be drawn from the record in favor of that party. Pullman, at 418; Downen, at 518; Eiselein, at 894.

II. Natural accumulation and obvious danger rules
In Wyoming, this court has made a distinction between natural and unnatural accumulations of snow and ice regarding slip and fall cases. The owner or occupier of the premises is not liable for injuries resulting from a slip and fall on a natural accumulation of snow and ice. Pullman, 924 P.2d at 418; Eiselein, 868 P.2d at 897. We have further held that there is no liability when the dangers surrounding such natural accumulation are obvious or are as well known to the plaintiff as the defendant. Pullman, at 418; Sherman v. Platte County, 642 P.2d 787, 789 (Wyo.1982). In Eiselein we defined and clarified the reasoning underlying these rules:
[A] proprietor is not considered negligent for allowing the natural accumulation of ice due to weather conditions where he has not created the condition. The conditions created by the elements, such as the forming of ice and falling of snow, are universally known and there is no liability where the danger is obvious or is as well known to the plaintiff as the property owner.

Bluejacket [v. Carney, 550 P.2d 494], at 497 [(Wyo. 1976)]. The rationale underlying this rule is that
in a climate where there are frequent snowstorms and sudden changes of temperature, these dangerous conditions appear with a frequency and suddenness which defy prevention and, usually, correction; consequently, the danger from ice and snow in such locations is an obvious one, and the occupier of the premises may expect that an invitee on his premises will discover and realize the danger and protect himself against it.
62A Am.Jur.2d Premises Liability § 699 (1990).
Eiselein, 868 P.2d at 897; see also Johnson v. Hawkins, 622 P.2d 941, 942-43 (Wyo.1981). It is significant to point out that one of the underlying principles of the natural accumulation rule is that the dangers of natural accumulations of snow and ice are obvious; thus, the obvious danger rule is contained within and is part and parcel of the natural accumulation rule.
Liability will only attach if the owner or occupier creates an unnatural accumulation that is substantially different in volume or course than would naturally occur. Pullman, 924 P.2d at 418; Eiselein, 868 P.2d at 898. To establish that an accumulation of snow and ice is unnatural, a plaintiff must show that the defendant created or aggravated the hazard, that the defendant knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Pullman, at 418. Furthermore, no duty exists which requires either the removal of an obvious danger or a warning of its existence. Eiselein, at 895. In Sherman v. Platte County, we stated
there is the rule that no duty exists which requires either the removal of an obvious danger or a warning of its existence. Second is the rule that no duty exists to remove the natural accumulation of snow and ice. The latter rule broadens the protection *958 accorded possessors of land under the former rule. It covers that class of cases where the ice and snow naturally accumulate in a fashion where there is a lurking danger, i.e., the ice is covered by the snow.
642 P.2d at 789. We have also stated that even the most ably constructed and carefully maintained parking lot will probably contain minor indentations in which naturally occurring water can accumulate and freeze; naturally occurring water which naturally concentrates in such a lot is still considered a natural accumulation. Eiselein, 868 P.2d at 898.
In Pullman, we concluded that pedestrian packed snow and ice is not substantially more dangerous than snow and ice in its natural state. 924 P.2d at 418. We went on to hold that pedestrian packed snow and ice is a natural accumulation and that an owner or occupier of the premises at which such an accumulation occurs is not liable for injuries incurred as a result of a slip and fall accident on that natural accumulation, and we affirmed the district court's grant of summary judgment. Id.
At issue in this case is whether packed and frozen snow and ice in a parking lot is a natural accumulation under the specific facts. Paulson did not sustain her burden of proving that Cody Motel did anything to create or aggravate the hazard of the snow and ice, and she did not prove that the snow and ice was in a substantially more dangerous state than in its natural state. Paulson failed to present evidence that Cody Motel created an unnatural accumulation that is substantially different in volume or course than would naturally occur. The record establishes that it had snowed on the parking lot, that ice had built up, and that Cody Motel did not undertake to remove the snow and ice. Thus, Cody Motel did not change the condition of the snow and ice, nor did they create any unnatural accumulation. Nor did Paulson present evidence that in the exact area where she fell, the parking lot was so defective as to cause snow and ice to unnaturally accumulate in a substantially more dangerous state. To the contrary, the record shows that the area upon which Paulson fell was in no different state than the rest of the parking lot. To comport with Eiselein, naturally occurring water, and therefore snow and ice, which naturally concentrates in a parking lot is still considered a natural accumulation.
We also find that Paulson was aware, or should have been aware, of the open and obvious danger the snow and ice posed in the parking lot. Paulson testified in a deposition that she saw that the entire parking lot contained snow and ice. She testified that when she got out of her truck in the morning in front of the main office, she noticed that the parking lot was snow-packed and frozen with ice covering the snow. She testified that she walked carefully to and from her truck to the motel, and walked carefully from each side of the motel to the other because it was slick. Therefore, under the obvious danger rule inherent in the natural accumulation rule, Paulson should have been aware of the dangers the snow and ice presented. Cody Motel had no duty to remove or warn her of such obvious dangers. See Eiselein, 868 P.2d at 895; Sherman, 642 P.2d at 789. The district court correctly applied the natural accumulation rule in granting summary judgment against Paulson.

III. Impact of municipal ordinances
Although Wyoming statutory and common law impose no duty upon Cody Motel to remove natural accumulations of snow and ice, Paulson contends that Rock Springs municipal ordinances do impose such a duty. The first municipal ordinance that Paulson entreats requires an owner or occupier of premises within the city limits to keep front sidewalks free of accumulation of snow and ice. Paulson, however, did not injure herself on the sidewalk in front of the Cody Motel; as such, this argument is irrelevant.
The second municipal ordinance relied upon by Paulson involves the prohibition against causing or permitting a pool of water to form, stand or flow upon any street, sidewalk, alley or other public ground. This argument also fails. There is no evidence in the record that Cody Motel caused or permitted a pool of water to form, stand or flow *959 upon any street, sidewalk, alley or other public ground, and no evidence that such was the proximate cause of Paulson's injury.

IV. Impact of Cody Motel's previous removal of snow and ice
Paulson argues that Cody Motel had a duty to remove the snow and ice from the parking lot on the day she was injured because Cody Motel had removed the snow and ice from the parking lot on previous days when it had snowed. Paulson mischaracterizes the law of negligence regarding gratuitous undertakings. In order for a negligence action to survive regarding a gratuitous rendering of services to another, the party being sued has to actually undertake the rendering of the services which caused harm to the plaintiff. See Kelly v. Roussalis, 776 P.2d 1016, 1019 (Wyo.1989); Beard v. Brown, 616 P.2d 726, 733-34 (Wyo.1980); Ellsworth Bros., Inc. v. Crook, 406 P.2d 520, 523-24 (Wyo.1965); Restatement, Second, Torts § 323 (1965); 57A Am.Jur.2d Negligence §§ 112, 113 (1989) (§ 113: "essential to a finding of liability is a particular undertaking in fact, not merely the expectation of one or the legal right to pursue one, for without the actual assumption of the undertaking there can be no correlative legal duty to perform that undertaking carefully"). Cody Motel did not undertake to remove the snow and ice after the last snow before Paulson was injured. Nor is there any evidence to suggest that previous gratuitous removals of ice and snow resulted in an unnatural accumulation.

CONCLUSION
Paulson failed to satisfy her burden that Cody Motel created an unnatural accumulation of snow and ice in its parking lot that was substantially different in volume or course than would naturally occur. Cody Motel undertook no action to remove the snow and ice, and Paulson was well aware of the snow and ice in the parking lot and should have been well aware of the open and obvious dangers the snow and ice posed. The compacted snow and ice in Cody Motel's parking lot was a natural accumulation; and, accordingly, Cody Motel is not liable for slip and fall injuries resulting therefrom. The decision of the district court is
Affirmed.
NOTES
[*]  Chief Justice at time of oral argument.