                           STATE OF MICHIGAN

                            COURT OF APPEALS

WILLIE VAN DYKE,                                                     UNPUBLISHED
                                                                     March 17, 2016
               Plaintiff-Appellant,

v                                                                    No. 324534
                                                                     Wayne Circuit Court
CRYSTAL THOMAS COLLINS and STATE                                     LC No. 12-008801-NI
FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY,

               Defendants-Appellees.

Before: K. F. KELLY, P.J., and FORT HOOD and BORRELLO, JJ.

PER CURIAM.

        Plaintiff appeals as of right the order dismissing plaintiff’s first-party and third-party
claims in this no-fault automobile negligence action. Plaintiff also challenges a multitude of
earlier, interim rulings by the trial court involving the exclusion of evidence, witnesses, and
claims proposed by plaintiff. We affirm.

         Plaintiff contends the trial court erred in precluding testimony from various doctors and
the related evidence pertaining to his alleged closed head injury. Plaintiff further asserts error by
the trial court in the exclusion of evidence of his proffered wage loss, excess wage loss, and lost
future earning capacity and attendant care claims. In addition, plaintiff challenges the trial
court’s determination regarding the exclusion of claims for the payment of services provided by
Tri-County Transportation and Excel Cognitive Therapy, premised on the dismissal of a separate
lawsuit for payment for the same charges as res judicata.

        The grant or denial of a motion for summary disposition is reviewed de novo. Healing
Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 55; 744 NW2d 174
(2007).

       A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.
       In evaluating such a motion, a court considers the entire record in the light most
       favorable to the party opposing the motion, including affidavits, pleadings,
       depositions, admissions, and other evidence submitted by the parties. Where the
       proffered evidence fails to establish a genuine issue regarding any material fact,
       the moving party is entitled to judgment as a matter of law. [Corley v Detroit Bd

                                                -1-
       of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004) (citations and quotation marks
       omitted)].

The applicability of the legal doctrines of res judicata and collateral estoppel present a question
of law subject to de novo review. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).
“A trial court’s [preserved] evidentiary decisions . . . are reviewed for an abuse of discretion.”
Landin v Healthsource Saginaw, Inc, 305 Mich App 519, 541; 854 NW2d 152 (2014). “An
abuse of discretion occurs when the trial court chooses an outcome falling outside the range of
principled outcomes.” Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010).

        Initially, plaintiff’s assertion of error regarding the dismissal of his attendant care claims
is without merit. Although attendant care costs were pleaded in the initial complaint, plaintiff
thereafter failed to raise the issue or present any evidence in support of his claim. Plaintiff
acknowledged at the July 7, 2014 pretrial conference that he could not reasonably argue the
attendant care costs asserted. Waiver is the intentional and voluntary relinquishment of a known
right. Quality Prod & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 374; 666 NW2d 251
(2003). “A party who waives a right is precluded from seeking appellate review based on a
denial of that right because waiver eliminates any error.” The Cadle Co v City of Kentwood, 285
Mich App 240, 255; 776 NW2d 145 (2009). Based on plaintiff’s acknowledgement in the lower
court that his claim for attendant care benefits was unsustainable, the issue is waived.

        In addition, on appeal, plaintiff has failed to present any argument, evidence, or legal
authority to support a claim of error on this issue. Hence, plaintiff has abandoned the issue of
attendant care benefits and entitlement to their payment based on his failure to adequately brief
the issue. “An appellant’s failure to properly address the merits of his assertion of error
constitutes abandonment of the issue.” Thompson v Thompson, 261 Mich App 353, 356; 683
NW2d 250 (2004). As is widely recognized, a party is not permitted “simply to announce a
position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority
either to sustain or reject his position.” Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100
(1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Plaintiff’s
assertion of error regarding the dismissal of his attendant care claims is without merit.

        Similarly, plaintiff’s assertion of error regarding the dismissal of his claim for payment
for services billed and provided by Tri-County Transportation and Excel Cognitive Therapy is
without merit. It is undisputed that the referenced service providers filed a separate lawsuit for
the same charges referenced by plaintiff and that the separate lawsuit was dismissed for the
failure of the service providers to comply with court-ordered discovery. The trial court indicated
the separate lawsuit was dismissed as a sanction in accordance with MCR 2.313, for the failure
to comply with three discovery orders issued by the trial court in that matter. The dismissal of an
action premised on a party’s failure to comply with the court rules or a trial court’s orders is
authorized by MCR 2.504(B)(1). In accordance with MCR 2.504(B)(3), “Unless the court
otherwise specifies in its order for dismissal, a dismissal under this subrule or a dismissal not
provided for in this rule, other than a dismissal for lack of jurisdiction or for failure to join a
party under MCR 2.205, operates as an adjudication on the merits.”

                                                 -2-
        “The doctrine of res judicata bars a subsequent action when (1) the first action was
decided on the merits, (2) the matter contested in the second action was or could have been
resolved in the first, and (3) both actions involve the same parties or their privies.” Estes, 481
Mich at 585. Res judicata is intended “to ensure the finality of judgments and to prevent
repetitive litigation.” Bergeron v Busch, 228 Mich App 618, 621; 579 NW2d 124 (1998). Using
due diligence, if a plaintiff should have brought the claim in the previous case, then res judicata
will apply. Estes, 481 Mich at 585. If the same facts or evidence are applicable in both cases,
the two actions are deemed to be the same for purposes of res judicata. Adair v Michigan, 470
Mich 105, 124; 680 NW2d 386 (2004).

        The requirements for the imposition of res judicata were established. As discussed
above, the dismissal of the action constituted a decision on the merits for purposes of res
judicata. MCR 2.504(B)(3). The payment sought is for the cost of services provided by Tri-
County Transportation and Excel Cognitive Therapy to plaintiff. The costs to be reimbursed are
identical in the litigation initiated by the service providers and encompassed by plaintiff’s claims.
Because the same issue was presented in both lawsuits and arose out of the same facts, it could
have been resolved in the litigation initiated by the service providers. Finally, “ ‘privity’ has
been defined as ‘mutual or successive relationships to the same right of property, or such an
identification of interest of one person with another as to represent the same legal right.’ ” Sloan
v Madison Hts, 425 Mich 288, 295; 389 NW2d 418 (1986) (citation omitted).

       A privy includes one who, after rendition of the judgment, has acquired an
       interest in the subject matter affected by the judgment through one of the parties,
       as by inheritance, succession, or purchase. In order to find privity to exist
       between a party and non-party, Michigan courts require ‘both a substantial
       identity of interests and a working or functional relationship . . . in which the
       interests of the non-party are presented and protected by the party in the
       litigation.’ ” [Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 12-13;
       672 NW2d 351 (2003)(citations omitted).]

The interests of plaintiff, Tri-County Transportation, and Excel Cognitive Therapy were aligned
in seeking to procure reimbursement for the services rendered. The outcome of the litigation
initiated by the services providers encompassed the interests of plaintiff in procuring the
payment of the benefits, thus demonstrating the existence of the requisite “functional
relationship” for the invocation of res judicata. Accordingly, plaintiff’s claim for payment for
services billed and provided by Tri-County Transportation and Excel Cognitive Therapy fails.

        This leads to an examination of the gravamen of the matter—whether plaintiff can
establish causation and the existence of a closed head injury sufficient to sustain his first-party
and third-party automobile negligence damages claims. Defendants argued that plaintiff could
not offer appropriate expert testimony demonstrating that he sustained a serious neurological or
closed head injury. MCL 500.3135(2)(a) provides:

       The issues of whether the injured person has suffered serious impairment of body
       function or permanent serious disfigurement are questions of law for the court if
       the court finds either of the following:

                                                -3-
       (i) There is no factual dispute concerning the nature and extent of the person’s
       injuries.

       (ii) There is a factual dispute concerning the nature and extent of the person’s
       injuries, but the dispute is not material to the determination whether the person
       has suffered a serious impairment of body function or permanent serious
       disfigurement. However, for a closed-head injury, a question of fact for the jury
       is created if a licensed allopathic or osteopathic physician who regularly
       diagnoses or treats closed-head injuries testifies under oath that there may be a
       serious neurological injury. [Emphasis added.]

Dr. James Beale, an orthopedic surgeon, indicated in his medical notes for plaintiff a closed head
injury diagnosis related to the motor vehicle accident. Beale was never deposed, despite
repeated attempts close to the adjourned trial date, and was not available on the date of trial due
to health issues. Plaintiff did not secure an affidavit from Beale regarding this diagnosis and the
trial court indicated the need to conduct an evidentiary hearing to verify Beale’s qualifications to
render the diagnosis asserted and the extent of the injury claimed. As discussed in Churchman v
Rickerson, 240 Mich App 223, 229; 611 NW2d 333 (2000), “to give effect to the phrase ‘serious
neurological injury,’ we must conclude that the closed-head injury provision of § 3135 requires
more than a diagnosis that a plaintiff has sustained a closed-head injury.” “[T]he plain language
of the statute requires some indication by the doctor providing testimony that the injury sustained
by the plaintiff was severe.” Id. at 230. The requisite testimony necessary to sustain plaintiff’s
claim under MCL 500.3135(2)(ii) was never secured by plaintiff during discovery or the course
of the litigation despite the opportunities provided through various orders issued by the trial court
and the grant of several adjournments.

        This does not, however, provide the only means for plaintiff to establish the existence of
a factual dispute requiring resolution by a jury. As explained by the Churchman Court:

       The language of § 3135 does not indicate, however, that the closed-head injury
       exception provides the exclusive manner in which a plaintiff who has suffered a
       closed-head injury may establish a factual dispute precluding summary
       disposition. In the absence of an affidavit that satisfies the closed-head injury
       exception, a plaintiff may establish a factual question under the broader language
       set forth in subsection 3135(2)(a)(i) and (ii), which, as noted above, provide that
       whether an injured person has suffered serious impairment of body function is a
       question for the court unless the court finds that “[t]here is no factual dispute
       concerning the nature and extent of the person’s injuries,” or, if the court finds
       that there is such a factual dispute, that “dispute is not material to the
       determination as to whether the person has suffered a serious impairment of body
       function. . . .” This Court has recently held that a trial court cannot determine
       whether a plaintiff has suffered a serious impairment of body function and enter
       judgment in favor of a defendant as a matter of law without first making the
       factual findings required under subsections 3135(2)(a)(i) or (ii). May v
       Sommerfield, 239 Mich App 197, 202; 607 NW2d 422 (1999). [Churchman, 240
       Mich App at 232.]

                                                -4-
Plaintiff argued that the report authored by Jennifer Zoltowski, M.S. created a factual dispute
sufficient to present to a jury. State Farm and Collins objected to Zoltowski’s report, asserting
her credentials were insufficient to establish the requisite level of expertise based on the failure
to demonstrate the necessary level of supervision. Specifically, the parties disputed Zoltowski’s
credentials under MCL 333.18223(2). The trial court never specifically ruled on the
admissibility of Zoltowski’s report or testimony. It is notable that Zoltowski opined that a more
thorough neuropsychological assessment was necessary and that other factors, such as plaintiff’s
abuse of prescribed medications, could be impairing his abilities; the report did suggest
impairments in functioning by plaintiff but did not definitively attribute those impairments to his
motor vehicle accident other than through the self-report of plaintiff. Although a doctoral level
psychologist did not co-sign Zoltowski’s report, it was copied to such a credentialed clinician
suggesting or implying a level of supervision.

        Despite numerous opportunities, plaintiff failed to present a witness, with the requisite
qualifications, to establish both the causation requirement for his claims and the threshold
severity of the claimed injury. Beale’s report provided a diagnosis of “closed head injury” but
did not address severity or definitively establish causation to plaintiff’s motor vehicle accident.
To overcome these deficiencies, plaintiff repeatedly attempted, belatedly in the litigation, to
name additional expert witnesses, including Bradley Sewick, Ph.D. and Dr. Shyam Rao. The
trial court foreclosed the presentation of these witnesses citing the prolonged period between the
close of discovery and plaintiff’s attempt to include these witnesses and, at least initially, the
lack of any documentation or affidavits regarding their proposed testimony. In accordance with
MCR 2.401(I)(2), “The court may order that any witness not listed in accordance with this rule
will be prohibited from testifying at trial except upon good cause shown.” The qualification of a
witness to serve as an expert and the admissibility of that expert’s testimony are matters within
the discretion of the trial court and will not be reversed on appeal absent an abuse of that
discretion. Tobin v Providence Hosp, 244 Mich App 626, 654; 624 NW2d 548 (2001). Witness
lists comprise “an element of discovery” and are designed to avoid “trial by surprise.” Grubor
Enterprises v Kortidis, 201 Mich App 625, 628; 506 NW2d 614 (1993). It is permissible for a
court to exclude evidence as a sanction for failing to provide discovery, and this Court has
upheld such decisions by a trial court. Setterington v Pontiac Gen Hosp, 223 Mich App 594,
605; 568 NW2d 93 (1997).

        Plaintiff was given multiple opportunities by the trial court to obtain the records of
physicians and to amend his witness list. Plaintiff did not take advantage of the trial court’s
favorable rulings by failing to submit amended witness lists within the time constraints provided
by the trial court and by not adhering to the restrictions for the production of medical
documentation established by the trial court. Plaintiff sought to add Sewick as a treater in May
2014, even before plaintiff had actually received a report. By this time discovery had long been
closed. Sewick did not actually treat plaintiff, but performed an evaluation. The trial court
permitted plaintiff to amend his witness list to include Dr. Diane Levine and Dr. Brian Inge, but
despite having received permission, plaintiff inexplicably did not depose these individuals and
did not provide documentation from Dr. Levine until very close to the trial date. Plaintiff
contended that his identification of Inge was in error and that Dr. Rao should be listed in his
stead, but again this did not occur until October 2014. Further, plaintiff merely made oral
assertions regarding Rao’s proposed testimony but offered no documentation or affidavit to
substantiate any claim regarding evidence that would be forthcoming from this individual.

                                                -5-
Accordingly, the trial court did not abuse its discretion in denying plaintiff’s request to add the
proffered witnesses.

       Plaintiff also disputes the trial court’s dismissal of his wage loss claims.           MCL
500.3107(1) provides, in relevant part:

       [P]ersonal protection insurance benefits are payable for . . .

       (b) Work loss consisting of loss of income from work an injured person would
       have performed during the first 3 years after the date of the accident if he or she
       had not been injured. . . . Because the benefits received from personal protection
       insurance for loss of income are not taxable income, the benefits payable for such
       loss of income shall be reduced 15% unless the claimant presents to the insurer in
       support of his or her claim reasonable proof of a lower value of the income tax
       advantage in his or her case, in which case the lower value shall apply. For the
       period beginning October 1, 2012 through September 30, 2013, the benefits
       payable for work loss sustained in a single 30-day period and the income earned
       by an injured person for work during the same period together shall not exceed
       $5,189.00, which maximum shall apply pro rata to any lesser period of work loss.
       ...

As recognized in Sullivan v North River Ins Co, 238 Mich App 433, 437; 606 NW2d 383 (1999),
“the claimant bears the burden of proof of actual loss of earnings.”

        Plaintiff failed to produce evidence of wage loss. Plaintiff provided a partial income tax
return for a period two to three years before the accident occurred. The remainder of plaintiff’s
documentation of wage loss comprised various bank accounts, invoices and registers evidencing
unidentified deposits and withdrawals pertaining to his businesses, but failing to clarify, in any
manner, figures from which his work loss could be calculated or determined. Work loss
damages do not encompass lost earning capacity. Marquis v Hartford Accident & Indemnity
(After Remand), 444 Mich 638, 647; 513 NW2d 799 (1994). Lost earning capacity is defined as
what an injured person could have earned but for the accident. In contrast work loss is what an
injured party would have earned but for the accident. Id. at 645.

       In accordance with case law, specific proof is necessary to demonstrate how much money
a person would have made to be eligible for work loss damages. See Swartout v State Farm Mut
Auto Ins Co, 156 Mich App 350, 354; 401 NW2d 364 (1986). Our Supreme Court has
cautioned:

       Because work-loss damages are intended to replace the income a person would
       have received but for the accident, prior wages generally are the most relevant
       and reliable evidence for determining what a plaintiff actually would have earned
       had the accident not occurred. Only in certain circumstances may a plaintiff
       recover work-loss damages for wages he or she could not have earned before the
       accident, i.e., wages that are not based on the plaintiff’s wage history. While the
       statute by its terms does not limit a plaintiff’s work-loss award to the plaintiff’s
       wages at the time of the accident, courts must be cautious in considering wages

                                                -6-
       that the plaintiff could not have earned before the accident in calculating a work-
       loss award because of the risk that a calculation based on such wages will be
       contingent and speculative and, therefore, barred under Michigan law. [Hannay v
       Dep’t of Transp, 497 Mich 45, 82; 860 NW2d 67 (2014) (citations omitted).]

        Plaintiff’s submission of documentation lacked specificity and proof of its relationship to
plaintiff’s actual work loss. His claim of work loss damages was properly excluded by the trial
court as being too speculative for submission to a jury for consideration.

        Although plaintiff indicated that he would present a financial expert, Kirk McKinder, to
clarify the records and provide more definitive figures for his wage loss claim, the trial court
ultimately precluded McKinder as an expert witness. Contrary to plaintiff’s contention, the trial
court’s exclusion of this witness was not an abuse of discretion. Plaintiff was aware, as early as
August 15, 2013, that State Farm was disputing the wage loss claim premised on plaintiff’s
failure to meet his burden of proof. The trial court, on March 19, 2014, indicated that the records
submitted by plaintiff were confusing but that it would permit plaintiff to secure an accountant to
procure further clarity. Plaintiff was also warned, however, that State Farm could renew its
motion pending the failure to obtain clarity regarding these records and that time was of the
essence. In May 2014, plaintiff included McKinder as an expert witness, yet had failed to
supplement the documentation on wage loss or provide any indication of McKinder’s
qualifications or proposed testimony either through an affidavit or report. In June 2014, the trial
court conducted a hearing on the objections to McKinder and dismissed the claims premised on
plaintiff’s failure to provide any substantiation of his wage loss claims. Consequently, based on
his inability to demonstrate a wage loss claim, his excess wage loss and future wage loss claims
were also dismissed premised on the absence of proofs.

       As discussed in Chapin v A & L Parts, Inc, 274 Mich App 122, 126; 732 NW2d 578
(2007) (citations and quotation marks omitted):

       Before a trial court may admit any expert testimony, the trial court is required by
       MRE 702 to ensure that each aspect of an expert witness’s proffered testimony—
       including the data underlying the expert’s theories and the methodology by which
       the expert draws conclusions from that data—is reliable. While the exercise of
       this gatekeeper role is within a court’s discretion, a trial judge may neither
       abandon this obligation nor perform the function inadequately. [Citations and
       internal quotation marks omitted.]

Expert testimony cannot be premised on mere speculation, “[t]here must be facts in evidence to
support the opinion testimony of an expert.” Teal v Prasad, 283 Mich App 384, 394-395; 772
NW2d 57 (2009). In this instance, plaintiff’s offer of medical and financial experts in support of
his claims was too little, too late. Plaintiff’s identification of particular witnesses came long after
the close of discovery and in close proximity to trial dates. While plaintiff named certain
individuals to serve as experts he provided no relevant information to support their testimony
such as examination by deposition, affidavits, or even a report or record generated by the
proposed witness to support plaintiff’s contention regarding the content of their potential
testimony. Plaintiff was made keenly aware by the trial court of the need to timely identify his
witnesses and given the opportunity to supplement the documents to support his claims, but

                                                 -7-
failed to do so on repeated occasions. Plaintiff’s ongoing requests to add witnesses comprised an
ill-disguised attempt to prolong or re-open discovery in this matter. The trial court, in excluding
the witnesses considered “whether the granting of discovery [would] facilitate or hamper the
litigation.” Nuriel v Young Women’s Christian Ass’n of Metro Detroit, 186 Mich App 141, 146;
463 NW2d 206 (1990). “Factors such as the timeliness of the request, the duration of the
litigation and the possible prejudice to the parties should also be considered.” Id.

        The litigation was initiated in 2012, approximately one year after the accident occurred.
Multiple trial adjournments occurred, many at the behest of plaintiff, who was permitted by the
trial court to amend or supplement his financial and medical documentation and witnesses.
Despite being given these opportunities, plaintiff failed to supplement documentation, present
witnesses for deposition or even provide affidavits. As such, and as acknowledged by plaintiff,
he lacked the requisite proof of causation and damages. Based on the trial court’s having granted
plaintiff multiple extensions for the trial date, the opportunity to supplement his witness lists and
documentation, the duration of the case and the uncertainty inherent in the proofs offered, the
trial court did not abuse its discretion in the preclusion of witnesses and evidence.

       Affirmed. Defendant, the prevailing party, may tax costs. MCR 7.219.

                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Karen M. Fort Hood
                                                              /s/ Stephen L. Borrello

                                                -8-


                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

JAMES MCGEE,                                : No. 228 MAL 2017
                                            :
                    Petitioner              :
                                            : Petition for Allowance of Appeal from
                                            : the Order of the Superior Court
             v.                             :
                                            :
                                            :
ST. LUKE'S HEALTH NETWORK D/B/A             :
ST. LUKE'S HOSPITAL & HEALTH                :
NETWORK, AND JOHN P. BRUNO, DO,             :
MBA,                                        :
                                            :
                    Respondents             :

                                       ORDER

PER CURIAM

      AND NOW, this 12th day of September, 2017, the Petition for Allowance of

Appeal is DENIED.

      Petitioner’s “Application for Leave to File a Response to the Answer of

Respondents to the Petition for Allowance of Appeal” is DENIED.

      Petitioner’s “Application for Leave to File a Reply to Answer of Respondents to

Petitioner’s Application for Leave to File a Response” is DENIED.


J-S73033-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMIE CRUZ, SR.                            :
                                               :
                       Appellant               :   No. 728 WDA 2018

                   Appeal from the PCRA Order April 20, 2018
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002299-2016

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY OLSON, J.:                             FILED DECEMBER 7, 2018

        Appellant, Jamie Cruz, Sr., appeals from the April 20, 2018 order

dismissing his first petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We vacate and remand for further

proceedings consistent with this memorandum.

        As our resolution of this appeal is based on the procedural posture of

this case, we do not set forth the factual background. On March 28, 2017,

Appellant pled guilty to making terroristic threats,1 simple assault,2 receiving

____________________________________________

1   18 Pa.C.S.A. § 2706(a)(1).

2   18 Pa.C.S.A. § 2701(a).
J-S73033-18

stolen property,3 and stalking.4 On May 9, 2017, the trial court sentenced

Appellant to an aggregate term of two and one-half to five years’

imprisonment. Appellant did not file a direct appeal.

        On September 29, 2017, Appellant filed a timely pro se PCRA petition.

Counsel was appointed and filed an amended petition.            In the amended

petition, Appellant averred, inter alia, that he was coerced by plea counsel to

enter a guilty plea. He also asserted that he instructed plea counsel to file a

direct appeal and plea counsel failed to do so. On March 21, 2018, the PCRA

court issued notice of its intent to dismiss the petition without an evidentiary

hearing. See Pa.R.Crim.P. 907. On April 20, 2018, the PCRA court dismissed

the petition. This timely appeal followed.5

        Appellant presents four issues for our review:

        1. Whether the [PCRA c]ourt erred in failing to find ineffective
           assistance of counsel relative to . . . counsel’s abrogation of
           [A]ppellant’s direct [appellate rights]?

        2. Whether the [PCRA c]ourt erred in finding meritless the habeas
           corpus challenge that several of the criminal charges were
           bound over . . . without any legal predicate?

        3. Whether the [PCRA c]ourt erred in failing to find that the guilty
           plea[ was] invalidated by ineffective assistance of counsel?

____________________________________________

3   18 Pa.C.S.A. § 3921(a).

4   18 Pa.C.S.A. § 2709.1(a)(1).

5Appellant and the PCRA court complied with Pennsylvania Rule of Appellate
Procedure 1925.

                                           -2-
J-S73033-18

        4. Whether the [PCRA c]ourt erred in failing to find that the police
           authorities wrongfully and illegally seized [personal items from
           Appellant] and are now wrongfully withholding said items?

Appellant’s Brief at 2.6

        In his first issue, Appellant argues that his plea counsel rendered

ineffective assistance of counsel by failing to file a direct appeal as Appellant

instructed. “[T]he Sixth Amendment to the United States Constitution and

Article I, [Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to

effective counsel.      This right is violated where counsel’s performance so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Simpson,

112 A.3d 1194, 1197 (Pa. 2015) (cleaned up). “A criminal defendant has the

right to effective counsel during a plea process as well as during a trial.”

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).

However, “[a]llegations of ineffectiveness in connection with the entry of a

guilty plea will serve as the basis for relief only if the ineffectiveness caused

the defendant to enter an involuntary or unknowing plea.” Id. Moreover,

“[c]ounsel is presumed to have been effective.”             Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017).                To prevail on an

ineffective assistance of counsel claim, a “petitioner must plead and prove

that: “(1) his underlying claim is of arguable merit; (2) the particular course

____________________________________________

6   We have renumbered the issues for ease of disposition.

                                           -3-
J-S73033-18

of conduct pursued by counsel did not have some reasonable basis designed

to effectuate his interests; and, (3) but for counsel’s ineffectiveness, there is

a reasonable probability that the outcome of the challenged proceeding would

have been different.” Commonwealth v. Johnson, 179 A.3d 1153, 1158

(Pa. Super. 2018) (citation omitted).     “A petitioner’s failure to satisfy any

prong of this test is fatal to the claim.” Commonwealth v. Wholaver, 177

A.3d 136, 144 (Pa. 2018) (citation omitted).

      Notwithstanding these general rules relating to ineffective assistance of

counsel, it is axiomatic that plea counsel’s “failure to file a requested direct

appeal constitutes ineffective assistance per se, such that the petitioner is

entitled to reinstatement of direct appeal rights nunc pro tunc without

establishing prejudice.”   Commonwealth v. Ousley, 21 A.3d 1238, 1244

(Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citation omitted).

The PCRA court erroneously conflated the requirement that plea counsel file

a direct appeal when instructed to do so by his or her client with an attorney’s

obligation to pursue a direct appeal. See PCRA Court Opinion, 6/6/18, at 15

(citations omitted).   An attorney is always required to file a direct appeal

when instructed to do so by his or her client. The attorney, however, may

seek to withdraw from the representation if he or she concludes that the

appeal is wholly frivolous. See Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981); Anders v. California, 386 U.S. 738 (1967).

                                      -4-
J-S73033-18

      Appellant avers that he instructed plea counsel to file a direct appeal

and plea counsel failed to file that direct appeal. If this averment is true,

Appellant is entitled to reinstatement of his direct appellate rights nunc pro

tunc. Hence, we vacate the PCRA court’s order and remand for an evidentiary

hearing to determine if Appellant instructed his plea counsel to file a direct

appeal. As we grant Appellant relief on his first claim of error, we decline to

address the other issues raised in his brief.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/7/2018

                                      -5-


NO. 07-04-0393-CR
NO. 07-04-0394-CR
NO. 07-04-0395-CR
IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 1, 2004

______________________________

STEPHEN JAMES WILLIAMS,
									Appellant

v.

THE STATE OF TEXAS,
									Appellee

_________________________________

FROM THE 3RD DISTRICT COURT OF ANDERSON COUNTY;

NOS. 25512; 25513; 25514; HON. BASCOM W. BENTLEY, III, PRESIDING

_______________________________

Before JOHNSON, C.J., QUINN and CAMPBELL, JJ.
	Before this court is appellant's Motion to Dismiss Appeal.  The document, signed
by appellant and his attorney, requests that the notice of appeal in each case be withdrawn
and the appeals voluntarily dismissed.
	No decision having been delivered prior to the receipt of the request for dismissal
of the notices of appeal, and all conditions applicable to the voluntary dismissal of a
criminal appeal having been met, it is ordered that the appeal be dismissed.  Having
dismissed the appeals at the personal request of appellant and his attorney, no motions
for rehearing will be entertained, and the mandates shall issue forthwith.

							Brian Quinn
							   Justice

Do not publish.

before a trial court, the act of considering and ruling
upon the motion is a ministerial act.  Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158
(Tex. 1992).  However, the trial court has a reasonable time within which to perform that
ministerial duty.  Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San
Antonio 1997, orig. proceeding).  Whether a reasonable period of time has lapsed is
dependent on the circumstances of each case.  Barnes v. State, 832 S.W.2d 424, 426,
(Tex.App.-Houston [1st Dist.] 1992, orig. proceeding).  Other factors are influential such
as the trial court's actual knowledge of the motion, its overt refusal to act, the state of its
docket, and other judicial and administrative duties which must be addressed.  In re
Villarreal, 96 S.W.3d 708, 711 (Tex.App.-Amarillo 2003, orig. proceeding).  Further, the
party requesting relief must provide a sufficient record to establish his entitlement to
mandamus relief.  Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992).  See also In re
Bates, 65 S.W.3d 133, 135 (Tex.App.-Amarillo 2001, orig. proceeding); In re Villarreal, 96
S.W.3d at 710 n.2 (filing something with the district clerk does not demonstrate that a
motion has been brought to the trial court's attention).
 Several copies of documents presumably filed in the convicting court accompany
relator's petition for writ of mandamus.  On August 29, 2005, he filed a motion in the
convicting court requesting appointment of counsel to pursue a motion for DNA testing
pursuant to article 11.07, section four of the Texas Code of Criminal Procedure.  A motion
for leave to subpoena or call potential witnesses was filed on September 12, 2005, and on
September 19, 2005, he filed a motion for leave for supplemental [sic] and exhibits.
	According to copies of three letters dated October 5, November 1, and December
19, 2005, relator corresponded with the Wilbarger County District Clerk inquiring on the
disposition of his motions.  A copy of the District Clerk's response to relator's October 5th
inquiry indicates his request was forwarded to his attorney, Earl Griffin.  The limited record
before us also contains a file-stamped motion dated November 29, 2005, for leave to
compel the District Judge of Wilbarger County to act on relator's petition for writ of habeas
corpus.  Nothing in the scant record demonstrates presentation of the motions to the trial
court and a refusal to act.  We conclude relator has not satisfied the burden to show his
entitlement to mandamus relief.  See Walker, 827 S.W.2d at 837.
	Accordingly, relator's petition for writ of mandamus is denied.
						Don H. Reavis
						    Justice


                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-KP-00518-SCT
GREGORY L. MOORE
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                              04/23/96
TRIAL JUDGE:                                   HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED:                     LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL

                                               BY: CHARLES W. MARIS
DISTRICT ATTORNEY:                             BILBO MITCHELL
NATURE OF THE CASE:                            CRIMINAL - POST CONVICTION RELIEF
DISPOSITION:                                   AFFIRMED - 10/2/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                10/23/97

     BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.

     ROBERTS, JUSTICE, FOR THE COURT:

                                  STATEMENT OF THE CASE

On April 19, 1993, in the Circuit Court of Lauderdale County, Gregory L. Moore pled guilty to
armed robbery and possession of cocaine. He was sentenced to serve fifteen years for armed robbery
and three years for possession of cocaine. The sentences were to run consecutively.

Moore filed his Petition for Post-Conviction Relief on March 25, 1996, in the Circuit Court of
Lauderdale County. In that petition, accompanied with the usual affidavits and claims, he requested
that the court vacate and set aside his convictions and sentences. After a thorough review of the
petition and the claims therein, along with the transcript of the guilty plea proceedings, the lower
court denied Moore's petition on April 23, 1996.
It is from the denial of his Petition for Post-Conviction Relief that Moore appeals to this Court,
raising the following issues:

     I. WHETHER THE PETITIONER'S GUILTY PLEAS WERE KNOWINGLY,
     VOLUNTARILY, AND INTELLIGENTLY MADE.

     II. WHETHER THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF
     COUNSEL.

     III. WHETHER THE DISTRICT ATTORNEY AND DEFENSE COUNSEL
     BREACHED THEIR DUTY BY FAILING TO OBSERVE THE TERMS, AS OF LAW.

                                  STATEMENT OF THE FACTS

Moore was indicted by the Grand Jury of Lauderdale County for armed robbery on November 8,
1991, and possession of cocaine on November 12, 1991. After being incarcerated for twenty-one
months due to numerous postponements, Moore finally appeared before the Honorable Larry E.
Roberts. He was represented by Barbara Scott.

It is clear from the record that prior to the day he pled guilty, Moore had previously been represented
by other counsel. What is not clear is why the previous counsel withdrew. Scott stated before the
court that she had only become involved in the case the Thursday prior to appearing in court as
counsel for Moore. She stated that she was informed on that Thursday that she would be going to
trial on the following Monday, but was under the impression that Moore would be entering a plea of
guilty.

Moore spoke with the judge regarding what options were available to him. The judge informed
Moore that he could proceed to trial, along with the consequences of such a decision, and the judge
explained to Moore the option of making a guilty plea. The judge also explained to Moore the
ramifications of "pleading in the blind." Moore stated that he was guilty of the crimes for which he
was charged, but he just wanted to know what his options were. After hearing the judge's
explanation, Moore decided to enter his guilty plea.

Before the judge accepted Moore's guilty plea, he conducted a thorough examination and engaged in
an in-depth discussion with Moore regarding the guilty plea process. Moore was informed by the
court of the minimum and maximum sentences he could face for each charge against him. He was
informed of the legal rights he would be waiving by pleading guilty. Moore was questioned by the
court to determine his ability to understand the consequences of his pleading guilty. When the court
questioned Moore about being satisfied with his legal advice and service, he responded that he was
satisfied. Lastly, the court explained the sentences and how they were to be served.

The court then questioned Moore about the crimes themselves. Moore explained in great detail the
crimes for which he was charged. After this lengthy proceeding, Moore's guilty plea was accepted by
the lower court. An Order Accepting Guilty Plea and Sentencing was entered by the lower court on
April 19, 1993. Moore filed his Petition for Post-Conviction Relief on March 25, 1996. The lower
court denied the petition on April 23, 1996. Aggrieved from this denial of relief, Moore now appeals
to this Court.
                                  DISCUSSION OF THE ISSUES

     I. WHETHER THE PETITIONER'S GUILTY PLEAS WERE KNOWINGLY,
     VOLUNTARILY, AND INTELLIGENTLY MADE.

Moore contends that the lower court erred by finding his guilty plea was knowingly, voluntarily, and
intelligently made. Although he fails to cite any authority, Moore correctly states that a guilty plea is
not voluntary if the defendant proves he was coerced. He then claims that he told the lower court at
his plea hearing that he was being coerced into taking the plea. However, the transcript of Moore's
plea hearing is void of any such statement despite repeated questioning by the judge to ensure the
plea was voluntary.

This Court is concerned with protecting a defendant's constitutional rights before accepting a guilty
plea. A guilty plea must be voluntarily made in order to satisfy the constitutional rights of a
defendant. Taylor v. State, 682 So. 2d 359, 362 (Miss. 1996) (citing Wilson v. State, 577 So. 2d
394, 396-97 (Miss. 1991)). The plea is deemed voluntary if the defendant knows what the elements
are in the charge against him, including an understanding of the charge and its relation to him, the
effect of the plea, and the possible sentence. Id.(citing Schmitt v. State, 560 So. 2d 148, 153 (Miss.
1990)). A complete record should be made of the plea proceeding to ensure that the defendant's plea
was voluntary. Boykin v. Alabama, 395 U.S. 238 (1969).

It is clear from the record that the judge went to great lengths to avoid having Moore plead guilty if it
was not what he wanted to do. The judge explained to Moore the minimum and maximum sentences
he was facing. The constitutional rights Moore would be waiving by entering a guilty plea were
explained by the judge. The judge then asked if Moore knew right from wrong and was free from the
influences of drugs or alcohol. Moore was then asked, "Has anybody tried to force you to plead
guilty or twist your arm or in some way get you to do something that you wouldn't otherwise do?"
Moore responded by saying, "No, sir." All of the questioning took place prior to accepting Moore's
guilty plea.

The Court finds that it is clear from the record that the lower court took the mandated precautions to
ensure that Moore's constitutional rights were not violated. Moore had the chance to state to the
lower court that he was coerced into entering a plea, and the record shows that he did not mention it.
Any such claim is clearly refuted by the lengthy and explicit record of the guilty plea hearing, along
with Moore's own statements in his sworn petition to plead guilty. Moore's claim that his plea was
not knowingly, voluntarily, or intelligently made is without merit.

     II. WHETHER THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF
     COUNSEL.

Moore raises ineffective assistance of counsel as his second issue on appeal. However, he fails to
make any arguments in support of his claim. Moore states that he met the requirements this Court set
forth in Billiot v. State, 515 So. 2d 1234 (Miss. 1987), and Myers v. State, 583 So. 2d 174 (Miss.
1991). Therefore, he claims "he has provided evidentiary facts and conclusory allegations in sworn
form with supporting affidavits to entitle him to an evidentiary hearing with respect to his
allegations." We can only conclude the "allegations" he is referring to make up his ineffective
assistance of counsel claims, but Moore does not specifically raise that claim in his argument listed
under Issue II of his brief.

The trial court is granted the authority to dismiss a petition for post-conviction relief without an
evidentiary hearing by the language in Miss. Code Ann. § 99-39-11(2), which states: "If it plainly
appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that
the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the
prisoner to be notified." As discussed above, the lower court went to great lengths to question Moore
regarding his rights, desires, and options regarding his guilty plea.

It is true Moore had several other attorneys representing him prior to being represented by Scott;
however, there is no evidence of ineffective assistance of counsel as to her representation. The
transcript of the guilty plea proceeding shows that Moore was not entitled to any relief on his claims
of ineffective assistance of counsel, and no evidentiary hearing was necessary. The judge asked
Moore whether he was satisfied with the legal advice and legal services that Scott had given him. He
responded that he was. The judge next questioned Moore as to the information contained in his
petitions to plead guilty to both charges against him. Moore was asked if he had gone over the
information with his lawyer. He said he had. The judge then asked Scott if she felt Moore was
making a free, voluntary, and intelligent plea. She responded in the affirmative. Finally, the judge
asked Moore if he had any other questions or if there was anything that he did not understand
"because this is fixing to be a done deal." Moore responded, "No, sir, your Honor."

The standard of review for ineffective assistance of counsel is set forth in Strickland v. Washington,
466 U.S. 668 (1984). The test to be applied is (1) whether counsel's overall performance was
deficient and (2) whether the deficient performance, if any, prejudiced the defense. Cole v. State, 666
So. 2d 767, 775 (Miss. 1995). The burden is on the defendant to prove both prongs. Id. (citing
Edwards v. State, 615 So. 2d 590, 596 (Miss. 1993)).

Moore has not substantiated any of his argument or allegations in his claims before this Court. He has
failed to prove Scott's performance in her representation was deficient and prejudicial when measured
against the totality of the circumstances. Cole, 666 So. 2d at 775. Because the transcript of the guilty
plea proceedings is clear, this Court holds that the lower court did not commit error by denying
Moore's claims for ineffective assistance of counsel without an evidentiary hearing.

     III. WHETHER THE DISTRICT ATTORNEY AND DEFENSE COUNSEL
     BREACHED THEIR DUTY BY FAILING TO OBSERVE THE TERMS, AS OF LAW.

It is unclear to the Court as to what claim or argument Moore is attempting to raise in this issue. It
appears that he is claiming his earlier defense counsel was permitted to withdraw without placing him
on notice. Secondly, Moore restates his argument from Issue I that his plea was involuntarily entered.
Because the voluntariness of Moore's guilty plea has been decided by this Court in Issue I, there will
be no further discussion in this portion of the memorandum. The withdrawal of Moore's earlier court
appointed counsel will be addressed.

Moore was indicted on November 8, 1991, on charges of armed robbery as an habitual offender and
possession of cocaine. He was arraigned on those charges on November 13, 1991, and entered a plea
of Not Guilty. At that time Moore was represented by David Stephenson. Trial was set for April 28,
1992, but was continued until July 29, 1992, by agreement of both parties. Apparently the trial was
again continued for reasons not stated in the record before this Court. On September 18, 1992,
Stephenson was allowed to withdraw as counsel and was substituted by Joe Clay Hamilton. The trial
dates on the two charges were rescheduled for October 13, 1992, and December 10, 1992. No
record is provided to this Court as to why, but no trial was had on those dates. Subsequently, on
April 6, 1993, Hamilton was allowed to withdraw as counsel. He was substituted by Barbara Scott.
On April 19, 1993, with Scott as his counsel Moored entered a plea of guilty to both charges. He was
sentenced to fifteen years on the armed robbery charge and three years on the possession of cocaine.

Moore states that neither Stephenson, nor Hamilton, notified him before the court permitted them to
withdraw from representing him. This, if true, is contrary to URCCC 1.13, which provides that the
court shall not permit an attorney to withdraw without prior notice to his client and all attorneys of
record.

There are three reasons why Moore's claims have no merit before this Court. First, the URCCC
under which Moore is claiming error were not adopted until May 1, 1995, which was nearly two
years after his original guilty pleas were accepted by the lower court. The requirements mandated by
the URCCC did not apply to Stephenson when he was permitted to withdraw as counsel on
September 18, 1992, nor did they apply to Hamilton when he was permitted to withdraw on April 6,
1993.

Second, Moore raises in his appeal before this Court and in his Petition for Post-Conviction Relief
claims that are totally contrary to his sworn testimony given before the trial court at the time of his
guilty plea. This was noted in the lower court's order denying his petition. The inconsistencies
included statements by Moore at his guilty plea hearing that he had not been informed by either of his
previous court appointed attorneys that he could receive a life sentence, but in his petition he claimed
they had. Also, Moore stated in his petition that he was coerced into pleading guilty, yet the record
and transcript of his guilty plea hearing show with amazing clarity that his plea was intelligently,
knowingly and voluntarily given.

In Smith v. State, 636 So. 2d 1220, 1224 (Miss. 1994), this Court stated:

     In contrast, Smith's current contentions and credibility are certainly suspect. When we compare
     his previous sworn testimony during his guilty plea with his current affidavit, the latter is
     practically rendered a "sham," thus allowing the summary dismissal of the petition to stand. At
     one time or the other Smith has obviously committed perjury, which may warrant appropriate
     action by a grand jury.

Id. (citations omitted). The lower court recognized that Moore was under oath during the guilty plea
hearing and that he had filed a sworn Petition for Post Conviction Relief. The lower court then stated
that Moore had come perilously close to perjury. This blatant contradiction renders Moore's appeal
before this Court a "sham." Taylor v. State, 682 So. 2d 359, 363 (Miss. 1996).

Third, Moore has waived the claim of inappropriate withdrawal by his previously appointed counsel.
He appeared in open court while being represented by an attorney during the guilty plea hearing. The
only witnesses Moore wanted to call were character witnesses to testify in mitigation of sentence, not
for purposes of proclaiming his innocence. The transcript is void of any complaints by Moore as to
the withdrawal of earlier counsel. Moore knew that his counsel had withdrawn and claimed no injury
or prejudice at trial. In fact, Moore made it abundantly clear to the court that he was guilty and had
no intentions of going to trial. Further, Moore explained in great detail exactly how he committed
both of the crimes for which he was charged and pled guilty. Because Moore was represented by
counsel in open court at his guilty plea hearing, his right to counsel was not violated. Moore stated at
his hearing that he was satisfied with services provided to him by Scott. Finally, before the lower
court accepted Moore's plea of guilt, the judge asked Moore if there was anything he wanted to ask
or if there was anything that he did not understand. Moore replied, "No, sir."

It is for the above reasons that this Court finds that the claims raised by Moore in the third issue are
without merit. The claims have been waived by Moore and are barred from being raised on appeal
before this Court. These claims are without merit.

                                            CONCLUSION

The trial court conducted an extensive examination of Moore at his guilty plea hearing prior to
accepting his plea. Upon a thorough review of the record and transcript of the proceedings below, it
is clear that Moore's plea of guilty was knowingly, voluntarily and intelligently made. Also, the record
does not show and Moore has failed to prove that his counsel was ineffective. He does not come
close to proving either prong required by Strickland. Moore's final claims are not properly before
this Court on appeal. Because there are contradictions in Moore's sworn statements at his guilty plea
hearing and his sworn Petition for Post Conviction Relief, Moore's latter claim is rendered a sham.
Moore waived any claims of prejudice due to the withdrawal of his court-appointed counsel when he
did not raise such claims at the guilty plea hearing. He also waived those same claims by admitting he
was guilty and describing in open court in detail how the crimes were committed. Moore's claims are
without merit. Therefore, the lower court's decision to deny Moore's Petition for Post Conviction
Relief is affirmed.

LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, SMITH AND
MILLS, JJ., CONCUR.


55 P.3d 183 (2002)
In re the MARRIAGE OF John R. MITCHELL, Petitioner-Appellee and Cross-Appellant, and
Janet L. Mitchell, Respondent, and
Concerning Dianna L. Burton, Personal Representative of the Estate of John P. Kreisheimer, deceased, Appellant and Cross-Appellee.
No. 00CA0396.
Colorado Court of Appeals, Div. I.
February 14, 2002.
As Modified on Denial of Rehearing March 21, 2002.
Certiorari Denied September 23, 2002.
*184 Moyer, Beal & Vranesic, John R. Vranesic, Lakewood, Colorado, for Petitioner-Appellee and Cross-Appellant.
Law Office of Larry A. Henning, Larry A. Henning, Denver, Colorado, for Appellant and Cross-Appellee.
Opinion by Judge METZGER.
This action concerns an attorney's lien filed in a dissolution of marriage action. Dianna L. Burton, personal representative of the Estate of John P. Kreisheimer, deceased (the attorney), appeals the judgment entered in the attorney's favor for $1395, representing the principal amount of his attorney's lien, but excluding nineteen years' interest. John R. Mitchell (husband), the petitioner in the dissolution of marriage action, cross-appeals, contending that judgment should have been entered in his favor and that the lien should have been denied and discharged. We reverse.
The marriage of husband and Janet L. Mitchell (wife) was dissolved on November 26, 1979. The permanent orders required husband to pay wife $10,250 to accomplish the equitable division of the appreciation during the marriage of a small parcel of marital property and of husband's separate real property in Jefferson County. He was ordered to execute a promissory note and second deed of trust in her favor against the Jefferson County real property. The court denied wife's request for attorney fees, and each party was ordered to pay his or her own fees and costs. No note or deed of trust was ever prepared.
Wife had paid only $205 of the fees billed by the attorney, who had represented her in the dissolution action. Consequently, on April 10, 1980, in the dissolution case, the attorney filed a notice of attorney's lien pursuant to §§ 12-5-119 and 12-5-120, C.R.S. 2001. The notice stated that wife had agreed to pay him $35 an hour plus costs but had only paid $205, and that the unpaid balance was $1395 plus interest at 8% from the date of entry of the decree. No fee agreement between the attorney and the wife was filed. The attorney also recorded the lien with the Jefferson County clerk and recorder and mailed a copy of the notice to husband, to wife, and to husband's then attorney. He took no further action.
In October 1980, in full settlement of the permanent orders, husband paid wife $1500 cash, and she executed a satisfaction of judgment and a quitclaim deed to the Jefferson County real property. The attorney was not paid, and the record contains no indication of wife's whereabouts thereafter.
On January 26, 1990, the attorney filed an extension of lien in the dissolution action and recorded it with the county clerk and recorder, but he did not send notice of these actions to anyone.
In November, 1999, husband attempted to sell the Jefferson County property, and the lien surfaced. After fruitless negotiations, husband filed a motion in the dissolution action to determine the enforceability of the lien.
After hearing arguments of counsel, the trial court entered a detailed and comprehensive order. It awarded the attorney $1395, the original lien amount, but denied his request for interest, concluding that the "lien creating" statute, § 12-5-119, contains no authorization for interest. The attorney has since passed away, and the personal representative of his estate has been substituted as a party.
Because it is dispositive of this appeal, we first address husband's contention on cross-appeal. He argues that, because the attorney took no action to reduce the lien to judgment within the period of any statute of limitations, the trial court erred in awarding judgment for the amount of the lien. We agree.
There is no common law right to an attorney's lien in Colorado. See Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887). The statutes concerning attorney's liens are § 12-5-119, which covers charging liens, and § 12-5-120, which covers retaining liens. The lien at issue here is a charging lien, in that it "grants an attorney a lien on claims or *185 choses in action ... on any judgment that the attorney obtained or assisted in obtaining in favor of the client, and on any legal claim filed by the attorney for fees due from the client." In re Estate of Benney, 790 P.2d 319, 322 (Colo.1990).
However, if a trial court's award to an attorney's client is monetary, the attorney's lien cannot attach to real property owned by the client's judgment debtor. In re Marriage of Stewart, 632 P.2d 287 (Colo.App. 1981).
Here, because the Jefferson County real property was husband's separate property, it could not be awarded to wife in the permanent orders. See § 14-10-113, C.R.S. 2001; In re Marriage of Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979). The dissolution court correctly classified the increase in value of that property during the marriage as marital property, equitably divided that increase, and entered a monetary award to wife. See In re Marriage of Wildin, 39 Colo.App. 189, 563 P.2d 384 (1977).
Accordingly, we agree with the trial court that the attorney's lien attached only to wife's monetary judgment in the dissolution of marriage action and not to the Jefferson County real property.
The proper method of enforcement of that lien then becomes the issue.
As the trial court noted, the language of § 12-5-119 does not specify in any detail the procedure for enforcing the lien; instead it only provides that "[s]uch lien may be enforced by the proper civil action."
The "proper civil action," has been held to include bringing an independent action or filing a motion to reduce the lien to judgment in the civil action that gave rise to the lien claim. Gee v. Crabtree, 192 Colo. 550, 560 P.2d 835 (1977).
Consequently, filing the notice of attorney's lien in the underlying dissolution of marriage action was the appropriate procedure.
The crux of the dispute here is timing.
Husband reasons that, because "proper civil actions" are subject to statutes of limitation, because nineteen years have elapsed between the filing of the notice of attorney's lien and the commencement of any further proceedings, and because no statute of limitations would allow a nineteen-year delay, any right the attorney had to his lien was lost and extinguished. The personal representative counters that the filing of the notice of lien constituted the commencement of the "proper civil action," and because that notice was filed only five months after entry of wife's judgment in the permanent orders, it was timely. The trial court agreed with the personal representative; we agree with husband.
Because the right to an attorney's lien arises only by statute, People v. Brown, 840 P.2d 1085 (Colo.1992), strict compliance with the statute is necessary. Telluride Real Estate Co. v. Penthouse Affiliates, LLC, 996 P.2d 151 (Colo.App.1999). Thus, the burden of proof is upon the attorney who claims a lien for services to show that he or she comes within the statute. See Gooding v. Lyon, 63 Colo. 328, 166 P. 564 (1917).
Section 12-5-119, the attorney's charging lien statute, provides that attorneys "shall have a lien ... on any judgment they may have obtained." It then authorizes the attorney to file, with the clerk of the court in which the underlying action is pending, notice of his or her claim as lienor. Finally, it provides that the lien may be enforced by the "proper civil action."
The language of this statute is similar to that in other lien statutes. See, e.g., § 38-20-101, et seq., C.R.S.2001 (covering various types of liens on personal property); see also § 38-22-101, et seq., C.R.S.2001 (covering mechanics' liens). In virtually all instances, the statutes begin by stating that the various providers of enumerated services "shall" have a lien. See, e.g., § 38-20-102(1)(a), C.R.S.2001 (agistor's lien); § 38-20-106, C.R.S.2001 (lien for labor); § 38-22-101 (mechanic's lien). In each instance, the lienholder is required to provide notice. See §§ 38-20-108(1)(e), 38-22-109, C.R.S.2001. These statutes then set out procedures to enforce the claimed lien and require that the lien claimants file appropriate civil actions. See §§ 38-20-108, 38-22-110, C.R.S.2001.
*186 Even though § 12-5-119 is not as detailed as the statutes governing other liens, because the subject matter is in pari materia with the other lien statutes, we conclude it should be construed in a similar manner. See Huddleston v. Board of Equalization, 31 P.3d 155 (Colo.2001).
Thus, we hold that the filing of a notice of an attorney's lien, like notice of other liens, merely places others on notice that the attorney claims an interest in the funds subject to the lien. Cf. Mesa County Valley School District No. 51 v. Kelsey, 8 P.3d 1200 (Colo.2000). The notice is not the commencement of the "proper civil action." See People v. Gray, 35 P.3d 611 (Colo. O.P.D.J.2001).
Over a hundred years ago, this point was made clear in Colorado State Bank v. Davidson, 7 Colo.App. 91, 95, 42 P. 687, 688: "If the attorney expects satisfaction of his claim out of the judgment, he must so notify the judgment debtor; and the notice must be followed, within a reasonable time, by suit" (emphasis added). This interpretation was adopted by the supreme court in Fillmore v. Wells, supra, 10 Colo. at 237, 15 P. at 347, which said:
[W]here the thing is not in possession, and some affirmative action is required by the attorney, he, like other lien claimants, must seek relief in equity. In some instances, a formal suit should be instituted; in others, an application to the court rendering the judgment, for the proper order, would be sufficient.
See also In re Ranes, 31 B.R. 70 (Bankr. D.Colo.1983).
The language of § 12-5-119 leads to such an interpretation, because it states: "Such [attorney's] lien may be enforced by the proper civil action." Thus, the filing of the notice of lien is only a prerequisite to commencement of an action to reduce the lien to judgment; the mere filing of the notice does not constitute such a commencement. If the interpretation of the trial court and the personal representative were adopted, this final sentence in § 12-5-119 would be superfluous.
Section 12-5-119 does not contain a period of limitations directly applicable to an enforcement action for an attorney's lien claim. The parties disagree about which statute would apply, but because they essentially concede that no statute of limitations would permit commencement of an action after the passage of nineteen years, we need not decide which specific statute controls. It is sufficient for us to hold, under these facts, that the attorney's attempt to reduce his lien to judgment is barred. See T. Cowden & S. Herscovici, Perfection and Enforcement of Attorney's Liens in Colorado, 26 Colo. Law. 57 (Mar.1997).
In light of this disposition, we need not address the personal representative's assertion that the trial court's refusal to award interest was error.
The judgment is reversed.
Judge VOGT and Judge DAILEY concur.


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 13-4927

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

VERNON WILLIAMS,

                Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12-cr-00081-F-2)

Submitted:   September 25, 2014          Decided:   September 29, 2014

Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Andrea T. Barnes, Assistant Federal Public Defenders, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           In 2012, Vernon Williams pled guilty to one count of

conspiracy to falsely make and counterfeit obligations of the

United States, in violation of 18 U.S.C. § 371 (2012), and was

sentenced after a downward variance to three years’ probation.

Williams   appeals   the   district       court’s   judgment   revoking   his

probation and imposing an eighteen-month sentence.               On appeal,

Williams argues his sentence is procedurally and substantively

unreasonable.   Finding no error, we affirm.

           Upon a finding of a probation violation, the district

court may revoke probation and resentence a defendant to any

sentence within the statutory maximum for the original offense.

18 U.S.C. § 3565(a) (2012); United States v. Schaefer, 120 F.3d

505, 507 (4th Cir. 1997).      We apply the same standard of review

for probation revocation as for supervised release revocation.

United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007).

Thus, a probation revocation sentence should be affirmed if it

is within the applicable statutory maximum and is not plainly

unreasonable.      United States v. Crudup, 461 F.3d 433, 438-40

(4th Cir. 2006).

           To   determine     whether         a     sentence   is   plainly

unreasonable,   we    first   consider        whether    the   sentence    is

unreasonable.      Id. at 438.    In reviewing for reasonableness,

this court “follow[s] generally the procedural and substantive

                                      2
considerations that [are] employ[ed] in [the] review of original

sentences, . . . with some necessary modifications to take into

account the unique nature of . . . revocation sentences.”                              Id.

at 438-39.       A sentence imposed upon revocation of probation is

procedurally      reasonable      if    the      district     court    considered       the

Chapter Seven policy statements and the applicable 18 U.S.C.

§ 3553(a) (2012) factors.              Moulden, 478 F.3d at 656.                The court

need not robotically tick through every subsection of § 3553(a),

however.      Id. at 657.

              A revocation sentence is substantively reasonable if

the district court stated a proper basis for concluding that the

defendant      should     receive      the       sentence     imposed,     up     to   the

statutory maximum.           Crudup, 461 F.3d at 440.                  Ultimately, the

court   has    broad     discretion     to       revoke    probation     and    impose   a

sentence up to that maximum.             Moulden, 478 F.3d at 657.                Only if

a sentence is found procedurally or substantively unreasonable

will we “decide whether the sentence is plainly unreasonable[.]”

Crudup, 461 F.3d at 439.

              With   these      principles         in     mind,   we    conclude       that

Williams’ eighteenth-month sentence is not plainly unreasonable.

Although      Williams    was   sentenced         above     the   recommended      policy

statement      range,     the    district         court’s     explanation        for    the

sentence reveals that the court considered the policy statements

and the § 3553(a) factors when determining the sentence, which

                                             3
was    below     the    statutory     maximum    applicable     to   Williams’

conviction.       We    further     conclude    that   the   district   court’s

decision to vary upward and impose an eighteen-month sentence

was substantively reasonable.

            Accordingly, we affirm the district court’s judgment.

We    dispense   with    oral   argument    because    the   facts   and   legal

contentions are adequately presented in the material before this

court and argument would not aid the decisional process.

                                                                        AFFIRMED

                                        4


903 F.Supp. 619 (1995)
Dorothea McKENNEY, Plaintiff,
v.
NEW YORK CITY OFF-TRACK BETTING CORPORATION, et ano., Defendants.
No. 93 Civ. 5191 (LAK).
United States District Court, S.D. New York.
November 9, 1995.
*620 John F. Olsen, Olsen & Brown, for Plaintiff.
Frances Sands, Assistant Corporation Counsel and Paul A. Crotty, Corporation Counsel of the City of New York, for Defendants.

MEMORANDUM OPINION
KAPLAN, District Judge.
This is an action pursuant to Title VII of the Civil Rights Act of 1964. Plaintiff Dorothea McKenney, an employee of the New York City Off-Track Betting Corporation ("OTB") sues OTB and Raymond Gibson, a former director of OTB's budget department, for sexual harassment, gender discrimination, and retaliation. Defendants move for summary judgment dismissing the complaint. They argue that much of the evidence relied upon by plaintiff relates to events that occurred more than 300 days prior to the filing of plaintiff's EEOC charges and therefore should not be considered because claims relating to those events are time-barred. When those incidents are stripped away, defendants assert, plaintiff has insufficient evidence to warrant a trial on her timely claims.

Facts
The factual record in this case is substantial. For the most part, the details are unnecessary to the resolution of this motion.
Plaintiff claims that Gibson treated her and other women in the Budget Department in a demeaning and insulting way from the time she began working there in July 1988 through her transfer to another unit in April 1992, save for a thirteen month period during which she was on medical leave. The alleged mistreatment of female employees is said to have worsened after the appointment in 1990 of Hazel Dukes as president of OTB, as Gibson allegedly was emboldened in his abuse by protection flowing from his longstanding personal relationship with Dukes. Indeed, on October 8, 1991 when, in an attempt to address ongoing personnel problems in the Budget Department, a meeting was held at which employees in the Department were asked to indicate whether they were interested in transferring to another department at OTB, over half of the Department staff, apparently including every female employee, requested a transfer. (Sands Decl. Ex. 1) Instead of being transferred, however, the employees were summoned to Dukes' office where, plaintiff claims, they were told that there would be no transfers and that their only alternative to remaining in their then present positions was resignation. (McKenney Dep. 116)
On January 6, 1992, McKenney was involved in a verbal exchange with her immediate superior, Michael Bogart, which took place in Gibson's presence and led to an ill-tempered round of memoranda between her and Bogart. (Sands Decl.Exs. 2-5) Gibson weighed in with a January 9, 1992 memorandum to McKenney in which he generally took Bogart's part and urged McKenney to focus on her work rather than "superfluous memorandums." (Id. Ex. 6) This provoked a written response from McKenney (id. Ex. 7), which in turn led to a formal complaint by Gibson of insubordination by McKenney (id. Ex. 8). Gibson's insubordination complaint against plaintiff resulted in a February 11 "informal conference" at which Barbara Jacquet, OTB's senior director of operations control, acted as the "conference leader." (See id. Ex. 9) According to plaintiff, Jacquet stated at the conference that she was well aware of Gibson's behavior toward female employees. Plaintiff then quotes Jacquet as saying, "we all know who is in the front office, we know nothing is going to happen to Mr. Gibson." (McKenney Dep. 141) On February 19, 1992, Jacquet issued a formal reprimand to McKenney regarding her attitude toward her co-workers. Jacquet suggested that McKenney "try to forgive and forget and help make [her] working hours as pleasant as possible for all concerned." (Id. Ex. *621 14; see also Ex. 9)[1]
The dust did not settle before McKenney, on March 3, 1992, filed a complaint with the New York State Division of Human Rights and the EEOC. The complaint charged as follows:
"On January 7, 1992 [sic],[2] I was called into a meeting with Raymond Gibson, Director of Budget. At this meeting, I was degraded, ridiculed and referred to as `honey' and a `smart ass'. I am constantly reminded that I don't know my job or my `place'. Both R. Gibson and my immediate supervisor Michael Bogart have made it known to me that if I don't like this type of treatment my only option is to resign.
"On information and belief male employees are not treated in this manner." (Id. Ex. 15, ¶¶ 3-4)
In April 1992, plaintiff was transferred to OTB's Revenue Department, where she has worked to date. Her job title and salary have remained the same, and her duties have been similar to those in her old position. She contends, however, that the new position is a demotion.
The EEOC issued a right to sue letter on August 25, 1993, and this action followed shortly thereafter. As framed by the pretrial order, plaintiff's contentions are that she was subjected to hostile work environment sexual harassment by Gibson during the period June 15, 1988 through April 1992, that she was subjected to disparate treatment on the basis of her gender, and that the insubordination charge against her and her transfer to the Revenue Department both constituted retaliation for her complaint against Gibson. (Pretrial order at 1-5) The focus of the hostile work environment claim is alleged "sexually derogatory name-calling ..., sexual slurs, and sex intimidation." (Id. §§ I at 1, III.A. ¶ 2)

Discussion

The Timeliness of Plaintiff's Claims
Defendants' principal argument is that much of the conduct complained of took place more than 300 days prior to the filing of plaintiff's EEOC charge and, to that extent, is time-barred. Plaintiff rejoins that the actions complained of constituted a continuing violation of plaintiff's civil rights, that at least one incident took place within the 300 day period, and in consequence that all of her claims are timely. In considering these contentions, it is useful to distinguish between the claim of sexual harassment by what plaintiff characterizes as "sexually derogatory name-calling.... sexual slurs, and sex intimidation" and the claim of disparate treatment, which relates to matters such as the times for coffee breaks, rules for telephone usage and the like (Pretrial order § III.A. ¶ 5).
Plaintiff testified at her deposition that the alleged verbal abuse of which she complains went on for years, the January 6, 1992 incident being only one of a long series of similar occurrences. (McKenney Dep. 89, 93, 96-100, 107, 125) Defendants nevertheless argue that the continuing violation doctrine does not apply to conduct of this character. They argue, in reliance on Butts v. City of New York Dept. Of Housing, 990 F.2d 1397, 1401 (2d Cir.1993), and Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1612, 128 L.Ed.2d 339 (1994), that the doctrine applies only to specific discriminatory policies or mechanisms and not to "multiple incidents of discrimination." (Def. Reply Br. at 3-4)
As this Court recently has noted in another case, the continuing violations doctrine is among the more confusing and inconsistent areas of discrimination law. Johnson v. Nyack Hospital, 891 F.Supp. 155, 162 (S.D.N.Y.1995). Among the points of uncertainty is precisely the issue defendants raise: whether the doctrine applies absent a formal discriminatory mechanism. In Johnson, however, this Court  after considering not only Lambert, but the Second Circuit's more *622 recent decision in Cornwell v. Robinson, 23 F.3d 694 (2d Cir.1994)  concluded "that related acts may come within the continuing violation doctrine even absent a formal discriminatory structural mechanism." Johnson, 891 F.Supp. at 163 (emphasis added). Without recapitulating the analysis set forth in that opinion, the Court there held that the continuing violations doctrine applies: "[i]f the discriminatory acts within and without the limitation period are sufficiently similar and frequent to justify a conclusion that both are part of a single discriminatory practice chargeable to the employer" and the circumstances are such that the plaintiff was not bound to have sued earlier. Id. at 165 (emphasis added).
Here it is quite clear that plaintiff's evidence, if credited by the trier of fact, would suffice to establish a persistent pattern of frequent, sexually based verbal abuse of the plaintiff by Gibson. There is evidence from which the trier could find that this abuse was not confined to plaintiff and that it was open and notorious at OTB. Indeed, there is evidence that Gibson's mistreatment of women was brought to Ms. Dukes' attention and that she fired the official who complained rather than act against Gibson. (Katz Decl., May 10, 1995, ¶¶ 12-22) Thus, there is ample basis for finding that Gibson's behavior is fairly chargeable to the employer. Unlike Johnson, there is nothing in the circumstances of this case that warrants the conclusion, as a matter of law, that plaintiff was obliged to seek legal redress earlier, particularly in view of her absence on medical leave for over a year. While the trier would be entitled to reject plaintiff's account, that is what trials are for. There are genuine issues of fact material to determination of defendants' statute of limitations argument with respect to the verbal abuse aspect of plaintiff's claim.
The complaints of disparate treatment, whether viewed as part of the hostile environment claim or independently, suggest a similar pattern. Plaintiff's affidavit and deposition testimony, if credited, establishes a continuing pattern of gender-animated harassment commencing in 1988 and continuing until 1992. In consequence, the statute of limitations branch of defendants' motion is rejected in its entirety.

The Sufficiency of Plaintiff's Claims
Defendants next contend that plaintiff has failed to make out a prima facie case on any of her theories.
The assertion that plaintiff's evidence, if credited, would be insufficient to go to a jury on the sexual harassment and disparate treatment claims, especially in light of the Court's ruling on the statute of limitations issue, is devoid of merit. The evidence of sexual harassment manifestly raises a genuine issue of fact under the controlling standard. Harris v. Forklift Systems, Inc., ___ U.S. ___, ___ _ ___, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1994). As far as disparate treatment is concerned, defendants do not contest that plaintiff is a member of a protected class and that she satisfactorily performed the duties of her position. Their contention that plaintiff has offered no evidence of gender-related differences in treatment is irreconcilable with the material submitted on plaintiff's behalf.
The retaliation claim is another matter. Plaintiff's contention that Gibson's insubordination complaint constituted retaliation for her complaint against Gibson is inconsistent with the record. The insubordination complaint was made on January 9, 1992, whereas plaintiff did not file her complaint based on Gibson's behavior until March 3, 1992. Thus, all that remains of plaintiff's charge is plaintiff's contention that her transfer to the Revenue Department, which did post-date her EEOC complaint, was retaliatory.[3]
In order to establish a prima facie case of retaliation, the plaintiff "must show participation in protected activity, an employment *623 action disadvantaging [her for engaging] in the protected activity, and a causal connection between the proposed activity and the adverse employment action." Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.1991). If the plaintiff establishes a prima facie case, the burden of going forward with evidence of a "legitimate, nondiscriminatory reason" for the action shifts to the defendant. If the defendant produces such evidence, the burden shifts to the plaintiff to establish that the reason proffered is pretextual and that an improper motive animated the action complained of, Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir.1995).
Plaintiff contends that her transfer to Revenue was a demotion. She testified that her responsibilities in the new job are less, there is no overtime, and it is more difficult to be promoted from the new position. (McKenney Dep. 149-52) Her testimony on this subject, however, consists entirely of unsubstantiated, conclusory assertions. Indeed, to the extent she offered any specifics at all, they established that the duties of the two positions are quite comparable. (Id. 71-72, 150-51) The salary and job title concededly are the same. Her papers in opposition to this motion do not even try to support the characterization of the transfer as a demotion, dealing with the entire issue in a single conclusory phrase. (Pl.Br. 24)
There is no Title VII violation absent a materially adverse change in the terms and conditions of employment. Crady v. Liberty National Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir.1993); Medwid v. Baker, 752 F.Supp. 125, 136 (S.D.N.Y.1990). Here there is no genuine issue of material fact concerning the transfer. Even if the motive for the transfer was retaliatory, there was no material adverse change. Accordingly, the retaliation claim is dismissed.

Conclusion
For the foregoing reasons, defendants' motion for summary judgment dismissing the complaint is granted with respect to plaintiff's retaliation claim and denied in all other respects.
This case is marked ready for trial, effective December 4, 1995, on twenty-four hours notice. Any motions in limine and, if either party has demanded a jury trial, requests to charge and proposed voir dire questions, shall be served and filed (with two additional courtesy copies sent to chambers via the 8th floor mailroom) no later than December 1, 1995.
SO ORDERED.
NOTES
[1]  McKenney and Bogart continued their fusillade of accusatory memoranda during the interval between Gibson's intervention and Jacquet's reprimand. (Id. 10-13)
[2]  This date appears to be an error in the Division of Human Rights complaint. Judging from the various memoranda (Sands Decl.Exs. 2-6), the date of the confrontation seems to have been January 6, 1992.
[3]  Plaintiff's deposition refers to complaints she allegedly made about Gibson beginning in October 1988. (McKenney Dep. 80-84) None, however, is documented in any way. There is no suggestion or evidence that the 1992 insubordination charge was related to these alleged complaints years earlier. (Cf. Pretrial order § I at 2) Indeed, plaintiff's deposition clearly indicates that Gibson's insubordination charge against her stemmed directly from the January 6, 1992 incident. (McKenney Dep. 138)


     Case: 12-51068   Document: 00512501280    Page: 1   Date Filed: 01/15/2014

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                No. 12-51068
                                                                January 15, 2014
                                                                  Lyle W. Cayce
MARK DAVID SIMMONS,                                                    Clerk

                                         Plaintiff-Appellant

v.

HAYS COUNTY SHERIFF’S DEPARTMENT, 22nd District; JOHN
CAVENAUGH; INSPECTOR BRUCE BOARDMAN; JAMIE PAGE; JOHN
CHUDLEIGH,

                                         Defendants-Appellees

_________________________________________________________________________

Consolidated w/ 13-50290

MARK DAVID SIMMONS,

                                          Plaintiff-Appellant

v.

JESSE HERNANDEZ; SUSAN HENRY; GARY CUTLER; BRAD ROBINSON;
JULIE VILLALPONDO,

                                          Defendants – Appellees

                Appeals from the United States District Court
                      for the Western District of Texas
                           USDC No. 1:11-CV-343
                           USDC No. 1:11-CV-976
     Case: 12-51068       Document: 00512501280        Page: 2    Date Filed: 01/15/2014

                         No. 12-51068 cons w/ No. 13-50290

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
             Mark David Simmons, now Texas prisoner # 01775527, appeals the
summary judgments granted by the district court in two civil rights cases that
he filed against various officials and employees of the Hays County jail,
alleging that the defendants violated his constitutional rights while he was a
pretrial detainee at the jail. Simmons’s motion to consolidate the cases on
appeal is GRANTED. To the extent, however, that Simmons attempts to
incorporate pleadings he filed in the district court by reference into his
appellate briefs, he may not do so. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). In addition, we do not consider claims raised in his briefs
concerning his criminal case, the alleged ineffective assistance of his trial
counsel and appellate counsel in his criminal case, or actions taken by the
Texas Department of Criminal Justice (TDCJ) since his post-conviction
incarceration as those claims were not the subject of the instant civil rights
suits.
         We review the grant of a motion for summary judgment de novo. Xtreme
Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009).
Summary judgment is appropriate if the record discloses “that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law.” FED R. CIV. P. 56(a).
         Simmons sued the defendants named in his first 42 U.S.C. § 1983 suit
only in their individual capacities.             Accordingly, Simmons’s allegations
concerning three detainees’ deaths at the jail in an apparent attempt to
establish an unconstitutional custom or policy on the part of the jail need not

         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
         *

be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

                                             2
    Case: 12-51068     Document: 00512501280     Page: 3   Date Filed: 01/15/2014

                      No. 12-51068 cons w/ No. 13-50290

be considered. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). In addition,
to the extent that Simmons’s request for “reprimands” for the defendants can
be construed as a request for declaratory or injunctive relief, that request has
been rendered moot by his transfer from the Hays County jail to TDCJ. See
Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001). Because Simmons has
not addressed the dismissal of his claim against the Hays County Sheriff’s
Office, any challenge to that dismissal has been abandoned. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Yohey, 985 F.2d at 224-25.
      In his first civil rights suit, Simmons claimed that the defendants
violated the First and Fourteenth Amendments by attempting to hydrate him
with intravenous fluids while he was on a hunger strike to protest jail
conditions; violated his right to access to courts; denied him adequate medical
care; subjected him to unconstitutional conditions of confinement; and
subjected him to excessive force. The district court did not err in finding that
the defendants were qualifiedly immune with respect to those claims.
See Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013); Thompkins v. Belt, 828
F.2d 298, 304 (5th Cir. 1987); Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.
1983).   Because Simmons fails to address the district court’s reasons for
granting summary judgment with respect to his claim that Sheriff Deputy
Bobby Ramirez used excessive force against him, that claim has been
abandoned. Haines, 404 U.S. at 520-21; Yohey, 985 F.2d at 224-25.
      The district court also granted summary judgment with respect to
Simmons’s second civil rights suit, which sought punitive damages and
reprimands for the defendants, after considering whether the defendants
named in that suit were liable in either their individual or official capacities.
The Eleventh Amendment bars Simmons’s suit for damages, however, against
officials in their official capacity, Oliver v. Scott, 276 F.3d 736, 743 (5th Cir.
2002), and, for the reason noted above, any request by Simmons for declaratory

                                        3
    Case: 12-51068    Document: 00512501280     Page: 4   Date Filed: 01/15/2014

                      No. 12-51068 cons w/ No. 13-50290

or injunctive relief has been rendered moot. Accordingly, we consider only
whether the district court erred in granting the defendants’ summary
judgment motion with respect to Simmons’s claims against them in their
individual capacities for punitive damages. Under our precedent, “punitive
damages may be awarded [to a civil rights plaintiff] only when the defendant’s
conduct is motivated by evil intent or demonstrates reckless or callous
indifference to a person’s constitutional rights.” Williams v. Kaufman County,
352 F.3d 994, 1015 (5th Cir. 2003).
      Notably, Simmons fails to address or fails to adequately brief the district
court’s reasons for denying his claims for relief based upon his assertions and
arguments that prison officials were opening and copying his legal mail and e-
mail, that female officers were able to observe him in administrative
segregation on video-surveillance cameras, that his right to equal protection
was violated, and that his administrative segregation cell was not compliant
with the Americans with Disabilities Act. Accordingly, those claims have been
abandoned. See Haines, 404 U.S. at 520-21; Yohey, 985 F.2d at 224-25. As
Simmons also does not address the dismissal of Judge Bill Henry from the
second suit, any challenge to the dismissal of Judge Henry has been
abandoned. See Haines, 404 U.S. at 520-21; Yohey, 985 F.2d at 224-25.
      Our review of the summary judgment record confirms that the district
court was correct in concluding that the defendants named in Simmons’s
second civil rights suit were qualifiedly immune from the punitive damages
claims against them. See Williams, 352 F.3d at 1015; see also Farmer, 511 U.S.
at 847; Baranowski v. Hart, 486 F.3d 112, 124 (5th Cir. 2007); Woods v. Smith,
60 F.3d 1161, 1166 (5th Cir. 1995); Thompkins, 828 F.2d at 304; Thompson,
709 F.2d at 382. Accordingly, the district court’s summary judgments are
affirmed.

                                       4
    Case: 12-51068    Document: 00512501280     Page: 5   Date Filed: 01/15/2014

                      No. 12-51068 cons w/ No. 13-50290

      We note that while Simmons’s appellate brief in No. 13-50290 addresses
some of the claims that were the subject of his second civil rights suit, it also
raises a litany of complaints that are unsupported and, in many instances,
wholly unrelated to this appeal, including derogatory comments about how the
defendants dress for work, matters that predate his incarceration at the Hays
County jail, matters relating to his criminal trial, and events relating to his
post-conviction incarceration at TDCJ. Simmons is warned that future filings
that are deemed frivolous by the district court or this court will result in the
imposition of strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 385-87 (5th Cir. 1996).       He is further warned that if he
accumulates three strikes, he will not be allowed to proceed in forma pauperis
in any civil action while incarcerated or detained unless he is in imminent
danger of serious physical injury. See § 1915(g).
      AFFIRMED; MOTION TO CONSOLIDATE GRANTED.

                                       5