702 F.2d 609
Sharon BOYER, Plaintiff-Appellant,v.TENN TOM CONSTRUCTORS, et al., Defendants-Appellees.
No. 82-4516

Summary Calendar.
United States Court of Appeals,Fifth Circuit.
April 11, 1983.
Carnathan & Malski, Michael Malski, Amory, Miss., for plaintiff-appellant.
Mitchell, Eskridge, Voge, Clayton & Beasley, Claude F. Clayton, Jr., Tupelo, Miss., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Mississippi.
Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.
POLITZ, Circuit Judge:

1
This Mississippi diversity case presents the sole question whether the defendants, Morrison Knudson, Inc., Brown & Root, Inc., and Martin K. Eby Construction Company, Inc.  (hereinafter referred to collectively as "Tenn Tom"), charged with creating a dangerous condition in a public road, can be held liable to the plaintiff for injuries caused by this defect in the road.  Resolving this question in the negative, the district court granted defendants' motion for summary judgment and dismissed plaintiff's negligence claim.  Finding the summary judgment to have been improvidently entered, we reverse and remand.

2
The defendants, functioning in a joint venture known as Tenn Tom Constructors, contracted with the Army Corps of Engineers to perform excavation work on the Tennessee-Tombigbee Waterway in Tishomingo County, Mississippi.  In order to move heavy equipment between its shop and the excavation site, Tenn Tom obtained a permit from the Tishomingo County Board of Supervisors (Board) allowing the transportation of loads in excess of 30,000 pounds along the Mt. Gilead Road in an easterly direction from the intersection of Mt. Gilead and Highway 365 to its shop, a distance of 1.5 miles.  The permit required Tenn Tom to repair any damage to Mt. Gilead Road resulting from "the transportation of said equipment."    Tenn Tom accepted the conditions imposed by the Board.

3
Sharon Boyer was injured while driving west on Mt. Gilead Road, approximately one-half to three-quarters of a mile beyond Tenn Tom's shop when her car struck a pothole, went out of control and collided with a tree.  The accident occurred in an area beyond that portion of Mt. Gilead Road covered in the permit issued to Tenn Tom.

4
Boyer's suit contends that the joint venturers negligently breached their obligation to inspect, maintain and repair the Mt. Gilead Road and failed to warn motorists of hazards caused by their use of the road.

5
Defendants moved for summary judgment on the ground that the user of a public thoroughfare owed no duty to a subsequent user.  In support of this motion, defendants offered the affidavit of Tenn Tom's safety engineer setting forth the nature and scope of the Board's permit and the area of the roadway encompassed within that permit.  Boyer countered with an affidavit of the supervisor for the county's third district in which the accident occurred, attesting to the state of disrepair of Mt. Gilead Road caused by what the supervisor styled as Tenn Tom's misuse thereof.

6
Concluding that the defendants were not required, under their agreement with the Board, to maintain Mt. Gilead Road beyond the 1.5 mile strip referred to in the permit, the district court refused to posit liability based on a violation of the permit.  Further, the district court found that various Mississippi statutes vested the Board with exclusive jurisdiction of the public roads and bridges and the concomitant exclusive responsibility for their maintenance.  These provisions, together with the fact that the plaintiff had not cited any authority for the proposition that one user who negligently damages the public roadway is responsible to another user who is harmed as a consequence of the state of disrepair, led the court to the conclusion that the defendants had breached no duty upon which a negligence claim could be based.  Summary judgment was accordingly rendered in favor of defendants.

7
Under Mississippi law, the Board of Supervisors of each county has plenary jurisdiction over roads and bridges within the county.  Miss.Code Ann. Sec. 19-3-41 (1972).  Under Miss.Code Ann. Sec. 19-3 (1972) "the supervisor of each district in each county is to have and is required to exercise general supervision over the public highways of his district."    In exercising its jurisdiction, the Board of Supervisors is empowered to restrict or prohibit the use of highways within its purview, and may reduce the allowable weight permitted on such highways when, "due to any special weather or other hazard, they have been weakened or [they] have substandard surfacing ... due to any cause."    Miss.Code Ann. Sec. 65-1-45.  Any person operating a vehicle on a restricted highway, contrary to the Board's regulation, is guilty of a misdemeanor.  Id.

8
Mississippi recognizes the doctrine of negligence per se, which in essence provides that breach of a statute or ordinance renders the offender liable in tort without proof of a lack of due care.   See Otto v. Specialties, Inc., 386 F.Supp. 1240 (N.D.Miss.1974);  Haver v. Hinson, 385 So.2d 605 (Miss.1980);  Miss. Power Co. v. Jones, 369 So.2d 1381 (Miss.1979).  Violation of a regulatory or penal statute such as Sec. 65-1-45 constitutes negligence per se and will support a cause of action in tort where the plaintiff is within the class protected by the statute, and the harm sustained is the type sought to be prevented by the statute.  Haver v. Hinson.

9
Summary judgment may be granted only when, upon reviewing the evidence of record and the reasonable inferences which may be drawn therefrom, in the light most favorable to the opposing party, no genuine issue of fact exists and the moving party is entitled to prevail as a matter of law.  Fed.R.Civ.P. 56(c);  United States v. R. & V. One Stop Records, Inc., 661 F.2d 433 (5th Cir.1981).  Defendants' evidence shows that Tenn Tom had received permission from the Tishomingo County Board of Supervisors to transport heavy equipment weighing in excess of 30,000 pounds across the segment of Mt. Gilead Road connecting their shop to Mississippi Highway 365, on the condition that it repair any damage occasioned by such transport.  It can reasonably be inferred from this fact that the Board had restricted travel on this road to vehicle loads less than 30,000 pounds, otherwise there would have been no need to secure this permit.  Under this inference, it would appear the defendants could not have used the road to move their equipment without special permission from the Board.  There is some evidence that defendants transported loads in excess of the Board's limit along the strip of the road not covered by the permit, specifically, that portion where the accident occurred.  From the affidavit of the supervisor it can be inferred that the use, or, in his words, the "misuse" of the roadway by defendants caused the potholes which in turn caused plaintiff's accident and injury.

10
Under these circumstances, we cannot conclude that as a matter of law the defendants owed no duty to the plaintiff.  Notwithstanding the general rubric that one user of a public highway is not obliged to insure the safety of a subsequent user by repairing or warning of damage the first user caused, Sec. 65-1-45 may give rise to an enforceable duty and hence to liability for breach thereof.  We express no opinion as to the merits of plaintiff's claim or the prospects of her recovery under the doctrine of negligence per se.  We simply are not convinced, on the basis of the slender record now before us, that summary judgment should have been granted on the ground that as a matter of law the defendants owed no obligation to this plaintiff.  The present state of the record cannot be said to contain no genuine issue of fact and to clearly compel a decision that Tenn Tom had no duty to correct a defective condition in Mt. Gilead Road, which they may have caused and which in turn may have occasioned plaintiff's accident and resultant injuries.

11
The summary judgment is VACATED and the matter is REMANDED for further proceedings consistent herewith.


                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1402
                                   ___________

Gardenia Gordon,                        *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Unifund CCR Partners,                   *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: September 11, 2003

                                  Filed: October 10, 2003
                                   ___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.
                         ___________

BEAM, Circuit Judge.

       The district court imposed sanctions against Gardenia Gordon's counsel
(Appellant) following the dismissal of this case. Because Unifund did not request
Rule 11 sanctions in a separate motion and did not follow the twenty-one day safe
harbor rule set forth in Federal Rule of Civil Procedure 11(c)(1)(A), we hold that the
district court abused its discretion in granting sanctions.
I.    BACKGROUND

       On November 27, 2000, the district court ordered Gordon to show cause why
this case should not be dismissed for failure to prosecute because the docket had no
record of service on Defendants. Gordon responded to the order on November 28,
2000, attaching proof of service on defendant Unifund, stating that Unifund had filed
an answer, and acknowledging that Gordon had been unable to serve defendant Kort.
Then, on December 11, 2000, Gordon filed a motion for default judgment based upon
information that the district court docket showed no record of Unifund's answer.

       Unifund filed a responsive pleading to Gordon's motion for default on
December 26, 2000, arguing that it had answered, and attaching an August 21, 2000,
date-stamped copy of that answer as an exhibit. In that same pleading, Unifund also
sought sanctions against Appellant for filing and/or refusing to withdraw his motion
for default. In support of its request, Unifund attached correspondence between the
parties demonstrating that Appellant previously received a copy of Unifund's answer
and thus had no basis for filing the motion for default. Unifund's answer had never
appeared on the clerk's docket. Unifund later discovered that although the clerk's
office received the pleading, the clerk inadvertently filed it in another case. Unifund
attached copies of correspondence between it and Appellant demonstrating that
Appellant was well aware of the potential "mix up," and that Unifund repeatedly
asked Appellant to withdraw the motion or face sanctions.

      In response, Appellant maintained that he had no other choice but to file the
motion for default judgment because the file-stamped copy of Unifund's answer that
he received was not proof of filing. Serving opposing counsel does not suffice as
timely filing, and the district court had no record of filing. Appellant argued he was
"simply playing by the rules."

                                         -2-
       The district court recognized that the clerk misfiled the answer and that
Appellant had sufficient proof of such misfiling. The district court further concluded
that Appellant was aware of the clerical error and had no reason to question the
validity of the date-stamped answer by filing the motion for default. Because the
correspondence between the parties' attorneys illustrated that Appellant engaged in
dilatory tactics by filing the motion for default, the district court granted Unifund's
request for sanctions. After the case was dismissed well over one year later, the court
ordered Appellant to pay a monetary sanction and attorneys' fees totaling $4,700, with
one-half paid to Unifund and one-half paid to Legal Aid.

II.   DISCUSSION

       Pursuant to the plain language of Federal Rule of Civil Procedure 11(c)(1)(A),
party-initiated motions for sanctions "shall be made separately from other motions or
requests and shall describe the specific conduct." Further, the motion is to be served
pursuant to federal service requirements, but not filed with or presented to the court
"unless, within 21 days after service of the motion (or such other period as the court
may prescribe), the challenged . . . allegation . . . is not withdrawn or appropriately
corrected." Id.

      The rule provides that requests for sanctions must be made as a separate
      motion, i.e., not simply included as an additional prayer for relief
      contained in another motion. . . . These provisions are intended to
      provide a type of "safe harbor" against motions under Rule 11 in that a
      party will not be subject to sanctions on the basis of another party's
      motion unless, after receiving the motion, it refuses to withdraw that
      position or to acknowledge candidly that it does not currently have
      evidence to support a specified allegation.

Fed. R. Civ. P. 11, Advisory Committee Notes (1993 Amendments) (emphasis
added).

                                         -3-
       In this case, Appellant filed his motion for default judgment on December 11,
2000. On December 15, 2000, Unifund e-mailed Appellant, stating that if the motion
for default judgment was not withdrawn, Unifund would request appropriate fees
under Rule 11. Unifund made a final attempt to persuade Appellant to withdraw the
motion for default judgment in a letter dated December 20, 2000, and requested Rule
11 sanctions on December 26, 2000, in its memorandum in reply to Appellant's
motion for default judgment. Unifund did not, as Rule 11(c)(1)(A) requires, serve
Appellant with a copy of its proposed Rule 11 motion, providing Appellant notice to
withdraw the challenged motion twenty-one days prior to Unifund's filing of a motion
with the court. Nor did Unifund file its motion for sanctions separately as required
by Rule 11(c)(1)(A). Unifund merely requested sanctions in its responsive
memorandum to the pending motion for default, which it filed on December 26, 2000,
only eleven days after its initial threat of sanctions to Appellant.

       We review a district court's decision to impose Rule 11 sanctions for an abuse
of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (noting
that an abuse would be established if the court based its ruling on an erroneous view
of the law or on a clearly erroneous assessment of the evidence). Here, the district
court based its ruling upon an erroneous view of the procedural requirements under
Rule 11.

       Unifund failed to comply with Rule 11's procedural requirements. MHC Inv.
Co. v. Racom Corp., 323 F.3d 620, 623 (8th Cir. 2003) (recognizing that party-
initiated motions under Rule 11 must comply with the "safe harbor" provisions);
VanDanacker v. Main Motor Sales, Co., 109 F. Supp. 2d 1045, 1055 (D. Minn. 2000)
(rejecting Rule 11 sanctions when defendants sent only warning letters to the non-
movant's counsel). Unifund's "request" for sanctions was not made separately from
other motions or requests and Unifund did not serve a prepared motion on Appellant
prior to making any request to the court. As a result, Appellant was not afforded the
benefit of the twenty-one day "safe harbor" provision allowing him the opportunity

                                        -4-
to withdraw his allegedly frivolous pleading.1 "To stress the seriousness of a motion
for sanctions and to define precisely the conduct claimed to violate the rule, the
revision provides that the 'safe harbor' period begins to run only upon service of the
motion." Fed. R. Civ. P. 11, Advisory Committee Notes (1993 Amendments).

      While we certainly do not wish to condone any dilatory tactics utilized by
Appellant in this case, we are unable to overlook Unifund's procedural deficiencies.
The district court's awarding of sanctions against Appellant in contravention of the
explicit procedural requirements of Rule 11 was an abuse of discretion.

III.   CONCLUSION

      Unifund's request for sanctions in this case was procedurally deficient. We
reverse and vacate the order of the district court, directing that any payment made by
Appellant be refunded accordingly.
                       ______________________________

       1
        The district court did not impose sanctions sua sponte. The district court
clearly "granted" Unifund's motion for sanctions in its June 12, 2001, order. Further,
the court did not issue an order to show cause why sanctions should not be imposed
or give Appellant an opportunity to respond before the imposition of sanctions, as
Federal Rule of Civil Procedure 11(c)(1)(B) would require if the court had initiated
the sanctions. Fed. R. Civ. P. 11, Advisory Committee Notes (1993 Amendments).

                                         -5-


740 F.2d 971
McNairv.Arredondo
83-2358
United States Court of Appeals,Seventh Circuit.
7/13/84

1
N.D.Ind.

REVERSED


459 F.Supp. 170 (1978)
Robert J. JENNY, Plaintiff,
v.
Joseph CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant.
Civ. No. 77-0-318.
United States District Court, D. Nebraska.
September 27, 1978.
*171 Dennis T. Chapman, Omaha, Neb., for plaintiff.
Paul W. Madgett, Asst. U. S. Atty., D. Neb., Omaha, Neb., for defendant.

MEMORANDUM
DENNEY, District Judge.
This matter comes before the Court upon the defendant's motion for summary judgment [Filing # 6]. The action arose under 42 U.S.C. § 405(g) which provides for judicial review of any final decision by the Secretary of Health, Education and Welfare.
The plaintiff was originally granted disability insurance benefits (42 U.S.C.A. § 401 et seq.), and supplemental security income benefits (42 U.S.C.A. § 1381 et seq.), in 1974. Subsequently, on June 2, 1976, the Social Security Administration notified plaintiff that, based on medical evidence, it was determined that his period of disability ceased in March, 1976. Accordingly, his last disability payment was in May, 1976. After a hearing on February 24, 1977, an administrative law judge affirmed this decision. That decision was in turn approved by the Appeals Council on July 15, 1977, and the administrative law judge's decision became the final decision of the Secretary.
The sole issue before this Court is whether substantial evidence supports the decision of the Secretary. Timmerman v. Weinberger, 510 F.2d 439, 441 (8th Cir. 1975). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Celebrezze v. Bolas, 316 F.2d 498, 501 (8th Cir. 1963).
A claimant is eligible for Social Security benefits if he is under a "disability." 42 U.S.C.A. § 423(a)(1)(D).
Disability is defined by 42 U.S.C. § 423(d)(1)(A) as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or . . . to last for a continuous period of not less than 12 months." An individual is disabled only if his impairments prevent his performing not only his previous work, but considering his age, education and experience, preclude "any other kind of substantial gainful work which exists in the national economy . . .."
42 U.S.C. § 423(d)(2)(A).
Poore v. Matthews, 419 F.Supp. 142, 144-45 (D.Neb.1976).
While the claimant has the initial burden of establishing the existence of a disability, Thompson v. Mathews, 561 F.2d 1294 (8th Cir. 1977), this burden shifts to the Secretary when the claimant demonstrates that he is unable to return to his former work. Klug v. Weinberger, 514 F.2d 423, 426 (8th Cir. 1975). The Secretary must then show that there is some other kind of substantial gainful employment which the claimant could perform. Glasgow v. Weinberger, 405 F.Supp. 406, 408 (E.D.Cal.1975). Upon an examination of the record, the Court is convinced that the decision of the administrative law judge was supported by substantial evidence.
Plaintiff, who is currently 49 years old, has a tenth grade education, and is a heavy equipment operator by trade (Tr. 27, 28). His claim for disability is predicated solely on the loss of the use of his right hand as the result of an injury suffered in August, 1973 (Tr. 36). Surgery was performed in September, 1973 (Tr. 102), January, 1974 (Tr. 115-17), and February, 1974 (Tr. 113-14). Many cases have established that the loss of the use of an arm or hand, standing alone, is insufficient to establish a disability. Knott v. Califano, 559 F.2d 279, 280-82 (5th Cir. 1977); Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 *172 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974); Wright v. Gardner, 403 F.2d 646, 646-47 (7th Cir. 1968); Wright v. Weinberger, 391 F.Supp. 390, 393 (D.Md.1975); Johnson v. Gardner, 284 F.Supp. 230, 238-40 (C.D.Cal.1968).
Plaintiff's work experience indicated that he had worked in the construction trade since 1950 (Tr. 32). The only book work he had ever done was when he was a foreman (Tr. 29, 33). In 1975, after his last operation, the plaintiff worked for about seven to eight months as a pump operator (Tr. 28). At that time he was working eight hours a day, seven days a week, at a pay rate of $7.13 per hour. His sole responsibility was to watch the pumps and report any malfunction (Tr. 154-56). His successful completion of an eight month trial period at this job was one of the reasons for the original cessation of his disability benefits (Tr. 146).
The plaintiff claims that the condition of his hand has not changed since surgery was performed to correct the impairment. He cannot make a fist or bend his wrist. He did state that he could lift twenty pounds in weight using his thumb, index and middle fingers (Tr. 34). Plaintiff, who is righthanded, has learned to write somewhat with his right hand since the injury. He can lift his right arm above shoulder height and has no problems with the left hand (Tr. 33-36). He also can stand, walk, sit, kneel and squat without any problems (Tr. 36).
The administrative law judge considered the reports of three doctors. Dr. Max W. Kinney, the plaintiff's surgeon, reported that the plaintiff would eventually be able to engage in light work (Tr. 121). Plaintiff has not seen Dr. Kinney since March, 1974. In February, 1974, Dr. Donaciano E. Baca, plaintiff's personal physician, reported that plaintiff would have functional use of his hand in a year, and would eventually return to his former work (Tr. 120).
On July 8, 1975, Dr. Baca reported that plaintiff's sole physical limitation was the inability to use his right hand (Tr. 167). Dr. Baca further indicated on July 17, 1975, that the plaintiff needed surgery in the "distant future", but he was suitable for reorientation if he could not return to his former work (Tr. 168).
Subsequently, Dr. Baca, via a telephone conversation with the Disability Determination Unit on February 4, 1976, indicated that the plaintiff was unable to use his right hand in any capacity that required either fine or gross dexterity. Yet, he did indicate that plaintiff was able to do numerous jobs which did not require the use of his right hand (Tr. 172). In March, 1976, Dr. Baca reported again regarding plaintiff's injury to his right hand and indicated he was unable to predict a future date when surgery would be needed. He believed that the prognosis was not good and was not optimistic about the results of the prospective operation (Tr. 174). Moreover, Dr. Baca, in his Physical Capacities Evaluation form, reported that the plaintiff could stand or walk six to eight hours in an eight hour day, sit for the same amount of time, and frequently lift twenty pounds. While he further indicated that the plaintiff could not coordinate ability to perform fine manipulation, simple grasping, pushing, pulling and reaching above shoulder levels, he could bend, climb, carry and work near moving machinery and at heights without restriction. The doctor also found that the plaintiff could flex forward more than fifty degrees (Tr. 173).
However, an undated report submitted by Dr. Baca conflicted with his earlier reports of February, 1976. In the report, Dr. Baca now indicated that the plaintiff was a virtual cripple, unable to handle his usual occupation or any occupations that entailed a change in temperature, as his hand was sensitive to heat and cold. The doctor also reported that Jenny was nervous and depressed, and he had administered medication to handle this situation (Tr. 191). Yet, the administrative law judge noted, as the record indicated, that Jenny admitted he had not taken the medication for six to eight months prior to the hearing (Tr. 10, 30), and it was for the judge to resolve any conflicts between the reports. "It is for the Secretary as the trier of fact to resolve *173 conflicts in the evidence, and this Court will not reweigh the evidence." Poore v. Matthews, supra, 419 F.Supp. at 145.
On March 24, 1976, the plaintiff was examined by Dr. Frank J. Iwersen, an orthopedic surgeon. Dr. Iwersen found that plaintiff lacked flexion of the hand and wrist. He opined that plaintiff had a very severe disability and at that time had at least a 75% permanent impairment of the right hand and wrist (Tr. 175-76).
Significantly, none of these doctors ever concluded that the plaintiff was unable to work. Rather, as the Court has already mentioned, they stated that the plaintiff was capable of performing light work. In Pasco v. Matthews [1977-1978 Transfer Binder], Unemp. Ins.Rep. (CCH) ¶ 15,158 (D.Neb.1977), Judge Schatz of this Court adopted the findings of the magistrate which stated that the fact that no doctor concluded that the claimant was unable to work was significant in denying disability benefits. Moreover, while the plaintiff claims he is nervous and it was reported that he is depressed, absent a functional impairment of such severity to preclude substantial gainful activity, a mere presence of a mental disturbance is not disabling per se. Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir. 1975); Russell v. Secretary of HEW, 402 F.Supp. 613, 619-20 (E.D.Mo.1975).
Finally, DeLoss D. Friesen, Ph.D., a counselor in vocational rehabilitation (Tr. 180-181) testified at the hearing. Dr. Friesen believed that the plaintiff was not capable of performing his former work. Based on the above evidence, observation of plaintiff at the hearing, and written medical reports, Dr. Friesen testified as to the kinds of work plaintiff could perform and the existence of such work in the Omaha, Nebraska area. The doctor was asked to assume the plaintiff's age, education, work experience, the fact that he had a laceration of the right hand which required surgery in September, 1973, and January, 1974, and that, although plaintiff's right hand could not be used for fine or gross dexterity, he could perform jobs not requiring the use of his right hand. He further was asked to assume that additional surgery was possible, and that plaintiff's wrist lacked flexion resulting in a 75% impairment of plaintiff's right hand and wrist (Tr. 53-56).
Based on these assumptions, Dr. Friesen testified that plaintiff could perform light work such as dishwasher, janitor, mail clerk, quality control inspector (which was similar to plaintiff's job as a pump operator), "freezer man", watchman and guard. On the basis of a survey of this area, Dr. Friesen concluded that these jobs to which plaintiff was transferable existed in significant numbers in the plaintiff's locale (Tr. 56-59). Moreover, while Dr. Friesen would have reduced the number of jobs which plaintiff could perform assuming his sensitivity to temperature, nevertheless the doctor was of the opinion that a significant number remained which the plaintiff was capable of performing (Tr. 62-63, 66).
The plaintiff's main complaint was directed to the above testimony of Dr. Friesen. However, as the Court has already noted, it will not reweigh the evidence. The Secretary, as trier of fact, resolves any conflicts in the evidence. See Timmerman v. Weinberger, supra, 510 F.2d at 444. Even though the vocational witness did not examine the plaintiff and based his conclusions on the record and the testimony adduced at the hearing, the Secretary is entitled to consider his testimony. See Kyle v. Cohen, 449 F.2d 489 (4th Cir. 1971); Davis v. Califano, 439 F.Supp. 94 (E.D.Pa. 1977). "The opinions of such vocational experts are often accepted as substantial evidence to support a finding of nondisability." Poore v. Matthews, supra, 419 F.Supp. at 145.
It is well established that the Secretary is not required to find a specific employer and job opening available for the claimant. Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir. 1974); Daiss v. Secretary of HEW, 373 F.Supp. 722, 727 (D.Neb.1974). The relevant inquiry is "whether jobs exist for which a person with plaintiff's condition and background can realistically compete, *174 not whether specific job vacancies exist for which he might be hired." Poore v. Matthews, supra, 419 F.Supp. at 145.
On the basis of the evidence presented in the record, it is apparent that the Secretary's final decision was based on substantial evidence and the decision should be affirmed.
An order has been filed contemporaneously herewith in accordance with this Memorandum Opinion.


Matter of Militza L. v Ramon Luis C. (2017 NY Slip Op 07686)

Matter of Militza L. v Ramon Luis C.

2017 NY Slip Op 07686

Decided on November 2, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 2, 2017

Tom, J.P., Renwick, Mazzarelli, Oing, Singh, JJ.

4882

[*1]In re Militza L., Petitioner-Respondent,
vRamon Luis C., Respondent-Appellant.

Steven N. Feinman, White Plains, for appellant.
Leslie S. Lowenstein, Woodmere, for respondent.

Order, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about July 5, 2016, which, after a fact-finding hearing, granted petitioner a one-year order of protection, unanimously affirmed, without costs.
A fair preponderance of the evidence establishes that respondent committed the family offense of harassment in the second degree (see Family Court Act §§ 812; 832). Petitioner testified that, inter alia, respondent intentionally engaged in a course of conduct in 2013 and 2016 to alarm or seriously annoy her for no legitimate purpose (see Penal Law § 240.26[3]), and
there exists no basis to disturb the court's credibility determinations (see e.g. Matter of Peter G. v Karleen K., 51 AD3d 541 [1st Dept 2008]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 2, 2017
CLERK


                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS                   July 9, 2012
                               TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,                     No. 11-2193
                                             (D.C. No. 1:05-CR-02366-JEC-1)
 v.                                                 (D. New Mexico)
 JULIO GUERRERO-CASTRO,

             Defendant - Appellant.

                          ORDER AND JUDGMENT *

Before HARTZ, ANDERSON, and O’BRIEN, Circuit Judges.

      Petitioner Julio-Guerrero Castro appeals the denial of his petition for writ

of error coram nobis by the United States District Court for the District of New

Mexico. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      On December 8, 2005, Petitioner pleaded guilty in federal district court to

one count of possession with intent to distribute 100 kilograms or more of

marijuana. See 21 U.S.C. § 841. The court sentenced him to 60 months’

      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
imprisonment followed by four years of supervised release. After his release

from prison in February 2010, the Immigration and Customs Enforcement Agency

(ICE) took him into immigration custody, and the Department of Homeland

Security commenced removal proceedings against him, charging him as

removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

      Following the Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct.

1473 (2010), which held that defense counsel may render ineffective assistance by

failing to advise the defendant that his guilty plea would subject him to

deportation, id. at 1482–84, Petitioner filed a “Petition for Relief From Judgment

Pursuant to N.M. Dist. Ct. P.C.P. 1-060(b)(6),” Supp. R., Vol. II at 1. He argued

that his attorney had provided ineffective assistance of counsel because he failed

to advise him of the immigration consequences of his guilty plea and failed to

consult with him about filing a notice of appeal. The district court denied his

petition because his “allegations amount[ed] to a collateral attack on his sentence,

which he may prosecute only in a motion to vacate, set aside, or correct sentence

under 28 U.S.C. § 2255.” Id. at 5. It declined to construe the petition as a § 2255

motion because it was filed after the expiration of the one-year limitations period

under that statute.

      On May 31, 2011, Petitioner filed his coram nobis petition in district court,

again arguing that his attorney was ineffective for failing to advise him of the

immigration consequences of a guilty plea. On September 16 the court denied the

                                         -2-
petition, adopting the magistrate judge’s report and recommendation (R&R)

because neither of the parties had filed objections. Petitioner filed a motion to

reconsider that decision, claiming that he had never received a copy of the R&R

filed in district court. He also filed a notice of appeal to this court, but on

September 30 we filed an order abating his appeal pending the district court’s

resolution of his motion to reconsider. The district court granted Petitioner’s

motion to reconsider on October 19. On the same day, however, it rejected his

objections to the R&R, adopted the R&R, and denied his petition. It concluded

that his claims failed because he had not shown that he was prejudiced by his

attorney’s ineffectiveness and because the Tenth Circuit had recently held that the

rule from Padilla invoked by Petitioner did not apply retroactively, see United

States v. Hong, 671 F.3d 1147, 1150 (10th Cir. 2011).

      On October 26, 2011, we vacated the abatement of Petitioner’s appeal, and

his counsel filed a brief. He argues that the district court erred in concluding (1)

that he did not suffer prejudice because of his attorney’s alleged failure to advise

him of the immigration consequences of a guilty plea and (2) that Padilla does

not apply retroactively.

      We review a district court’s decision on a writ of error coram nobis for

abuse of discretion. See United States v. Haga, 931 F.2d 642, 645 (10th Cir.

1991). We may “affirm a district court decision on any grounds for which there

is a record sufficient to permit conclusions of law, even grounds not relied upon

                                           -3-
by the district court.” United States v. Sandia, 188 F.3d 1215, 1217 (10th Cir.

1999) (internal quotation marks omitted).

      “The exclusive remedy for testing the validity of a judgment and sentence,

unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.”

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (internal quotation marks

omitted); United States v. Payne, 644 F.3d 1111, 1112 (10th Cir. 2011)

(“[Defendant] is not entitled to [coram nobis] relief unless relief under 28 U.S.C.

§ 2255 was unavailable or would have been inadequate.”) Petitioner has failed to

explain why § 2255 did not provide an adequate and effective remedy, even after

the government argued in its response brief that § 2255 offered such a remedy and

that he failed to use it. And we see no reason why proceeding under § 2255

would have been inadequate or ineffective. Even if Petitioner’s § 2255 motion

would have been barred as untimely if he had filed it in place of his coram nobis

petition, see 28 U.S.C. § 2255(f)(1), “[i]t is irrelevant [to the issue of whether

§ 2255 is inadequate or ineffective] that a § 2255 motion would have been

untimely by the time he filed his petition for a writ of coram nobis.” Payne, 644

F.3d at 1113.

      Further, Petitioner cannot challenge his conviction in a coram nobis

proceeding because he was still “in custody” when he filed his petition. See

United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (“[A] prisoner may

not challenge a sentence or conviction for which he is currently in custody

                                          -4-
through a writ of coram nobis.”) Although Petitioner’s federal incarceration had

ended when he filed his coram nobis petition, he was still subject to a term of

supervised release. For the purposes of habeas-corpus relief, “[c]ustody is not

limited to physical confinement; it exists whenever conditions have been imposed

which significantly confine and restrain (the movant’s) freedom.” United States

v. Condit, 621 F.2d 1096, 1098 (10th Cir. 1980) (internal quotation marks

omitted). Thus, “probation, like parole, constitutes ‘custody.’” Id. at 1098;

United States v. Fabiano, 42 F. App’x 408, 411 (10th Cir. 2002) (when a prisoner

is subject to supervised release, he is still “‘in custody’” for § 2255 purposes).

We hold that Petitioner was still “in custody” for purposes of his coram nobis

petition because he was subject to the conditions of his supervised release.

      Moreover, even if we were to construe Petitioner’s petition as a § 2255

motion, it would be barred as untimely. True, § 2255(f)(3) provides that the one-

year limitations period for filing a § 2255 does not begin until “the date on which

the right asserted was initially recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made retroactively applicable to

cases on collateral review.” Id. But Padilla did not decide that its ruling applied

retroactively to collateral attacks. See 130 S. Ct. 1473. Indeed, we recently held

that it does not apply retroactively. See Hong, 671 F.3d at 1150. Petitioner was

                                          -5-
required to file his § 2255 motion within one year of the date his conviction

became final, see 28 U.S.C. § 2255(f)(1), which he clearly failed to do.

      We AFFIRM the judgment of the district court.

                                       ENTERED FOR THE COURT

                                       Harris L Hartz
                                       Circuit Judge

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