                            NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-3808-16T4

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

QUAM M. WILSON, a/k/a
WILSON G,

     Defendant-Appellant.
_________________________________

                Submitted September 24, 2018 – Decided October 12, 2018

                Before Judges Messano and Rose.

                On appeal from Superior Court of New Jersey, Law
                Division, Monmouth County, Indictment Nos. 11-07-
                1334, 12-03-0429, 12-03-0432 and 12-03-0436.

                Joseph E. Krakora, Public Defender, attorney for
                appellant (Kevin G. Byrnes, Designated Counsel, on
                the brief).

                Christopher J. Gramiccioni, Monmouth County
                Prosecutor, attorney for respondent (Mary R. Juliano,
                Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Quam Wilson appeals from a December 21, 2016 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

                                       I.

      We discern the salient facts and procedural history from the record on

appeal. Between July 2011 and March 2012, defendant was charged with

various drug and weapons offenses in multiple counts of four separate

Monmouth County indictments. On April 9, 2012, pursuant to a negotiated plea

agreement, defendant pled guilty to one count of each indictment:         count

nineteen of Indictment No. 11-07-1334 charging him with second-degree certain

persons not to have a firearm (certain persons), N.J.S.A. 2C:39-7(b)(1); count

two of Indictment No. 12-03-0429, charging him with third-degree possession

of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(3); count three of

Indictment No. 12-03-0432, charging him with third-degree distribution of

heroin, N.J.S.A. 2C:35-5(b)(3); and count one of Indictment No. 12-03-0436,

charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-

5(10)(a)(1). The State agreed to recommend a seven-year term of imprisonment

with five years of parole ineligibility, pursuant to N.J.S.A. 2C:39-7(b)(1), on

                                                                        A-3808-16T4
                                       2
count nineteen to run concurrently with five-year concurrent terms of

imprisonment on each of the drug counts. The State also agreed to dismiss the

remaining counts of each indictment.

      Represented by assigned counsel at the plea proceeding, defendant

testified he was pleading guilty of his own free will, he was satisfied with his

attorney's services, he understood he had a right to trial and he was waiving that

right. Defendant provided a separate factual basis for each of his guilty pleas.

Pertinent to this appeal, regarding the certain persons offense, defendant

admitted he placed a gun in his bedroom "[i]n between [his] clothes[,]" having

been previously convicted of burglary in 2011.

      Prior to sentencing before a different judge, defendant retained private

counsel who filed a motion to withdraw defendant's guilty plea pursuant to State

v. Slater, 198 N.J. 145 (2009) (Slater motion).    In essence, defendant claimed

he was not guilty of the certain persons offense because the gun belonged to his

godmother. Defendant also asserted that he was coerced to plead guilty because

the police told him that if he did not admit ownership of the weapon, "his

[g]odmother would lose her children . . . to protective services."       He also

claimed plea counsel did not file motions to suppress evidence and his

statements because she thought the motions lacked merit. Finally, defendant

                                                                          A-3808-16T4
                                        3
claimed plea counsel did not provide him with discovery pertaining to his

conversations with the police. Defendant did not challenge his guilty pleas to

the three drug offenses.

      In a thorough, well-reasoned oral decision, the motion judge analyzed the

Slater factors and denied the motion. Relevant here, the judge found:

                   [Defendant] does not provide any facts which
            would support a conclusion that he was misadvised by
            his attorney or that would provide a basis to conclude
            such motions, if filed and heard, would have resulted in
            the suppression of any evidence or statements.

                  In fact, other than making clear that he and his
            attorney discussed the merits of filing of such motions,
            he does not offer any direct argument or assertion that
            he's entitled to a withdrawal of his plea because his
            attorney held such an opinion regarding the motions or
            communicated the opinion to him.

                  He does not provide any facts or argument that
            his attorney's advice regarding the motions was
            incorrect. He does not provide any facts or argument
            that such possible motions had substantive merit or
            would have been granted or would have made any
            difference in his decision to enter his pleas of guilty.

                   Again, his limited recitation of the facts related
            to those possible motions simply confirms that he and
            his attorney discussed the motions, and that it was his
            attorney's opinion that such motions lack merit and as a
            result the motions were not filed.

                  Most simply stated with regard to Mr. Wilson's
            reference to those possible motions, his certification

                                                                        A-3808-16T4
                                       4
            and legal argument asserted in his counsel's brief do not
            address any of the factors set forth in Slater as they
            might relate to those motions. With regard to his
            reference to those possible motions, Mr. Wilson simply
            fails to meet his burden of demonstrating that there is
            anything about them which would support his request
            to withdraw his guilty plea.

After he denied defendant's motion, the judge imposed the sentence

recommended by the State.

      Defendant filed a direct appeal, seeking a remand for evidentiary hearings

regarding his motion to withdraw his guilty plea and a reweighing of the

aggravating and mitigating sentencing factors. He also sought additional jail

credits pursuant to State v. Hernandez, 208 N.J. 24 (2011). An excessive

sentencing panel affirmed his judgment and sentence, but remanded to the trial

court to award additional jail credits on Indictment No. 11-07-1334.     State v.

Wilson, No. A-4490-12 (App. Div. Jan. 14, 2014). Defendant did not petition

the Supreme Court for certification.

      Defendant then filed a pro se PCR petition, alleging ineffective assistance

of his plea counsel on several grounds: "failure to vigorously pursue and attain

a favorable plea bargain"; "failure to disclose co-defendants['] plea agreement";

"failure to vigorously pursue a drug program"; and failure to move to suppress

evidence regarding the certain persons offense. Defendant subsequently filed

                                                                         A-3808-16T4
                                       5
an amended petition, with the assistance of appointed PCR counsel, claiming

that his plea counsel and private counsel were ineffective in failing to provide

him with discovery and failing to conduct a "a sufficient pre-trial investigation."

Defendant also renewed the claim he advanced in his Slater motion, i.e., that

plea counsel pressured him to plead guilty because he was concerned his

godmother's children would be removed from her custody if he did not admit

ownership of the gun seized from his bedroom.

      Following oral argument on December 21, 2016, the PCR judge denied

defendant's petition in a comprehensive oral decision. In doing so, the PCR

judge reviewed defendant's plea colloquy and the claims he asserted in his Slater

motion. The judge also set forth the legal authority pertaining to PCR petitions,

and applied that authority to defendant's contentions.

      Initially, the judge determined most of defendant's claims against plea

counsel were procedurally barred because they were "essentially the same

claims raised in defendant's motion to withdraw his plea."1 Citing Rule 3:22-3,

which provides that "PCR is not a substitute for a direct appeal," the judge

1
  R. 3:22-4. Although it is unclear from our January 14, 2014 order affirming
the trial court's judgment, during oral argument at his excessive sentencing
appeal, defendant sought a remand regarding the denial of his Slater motion.
Nonetheless, we have considered defendant's arguments on the merits, here, as
did the PCR judge.
                                                                           A-3808-16T4
                                        6
further found defendant "could have appealed the denial of the motion to

withdraw his guilty plea to the Appellate Division but failed to do so."

      Nonetheless, the PCR judge considered, in great detail, the merits of

defendant's claims against plea counsel and private counsel. In particular the

judge recognized defendant "failed to present any competent evidence[] . . . that

his attorneys performed deficiently or that he suffered legal prejudice from

counsel's alleged unreasonable acts or omission." She then addressed each of

defendant's claims.

      For example, the PCR judge found plea counsel's failure to file motions

to suppress evidence and defendant's statement "comport[ed] with [counsel's]

sound and effective trial strategy." Defendant "failed to articulate any facts to

substantiate his claim that [plea counsel] should have filed these motions." The

PCR judge also reiterated the motion judge's findings set forth above, noting

defendant's claims concerning coercion were "previously litigated in the context

of the motion to withdraw his [guilty] plea." Nonetheless, the PCR judge found

defendant's claims lacked merit because defendant would have been exposed to

a lengthy prison sentence had he exercised his right to trial on the certain persons

charge.

                                                                            A-3808-16T4
                                         7
        Noting the gun was seized pursuant to a search warrant, and finding

defendant failed to articulate any facts that would demonstrate his motion s

would have been successful, the PCR judge found:

                    Even in the context of an ineffective assistance of
              counsel claim, a defendant still bears the burden of
              demonstrating that his Fourth Amendment claim is
              meritorious, [State v.] Goodwin, . . . 173 N.J. [583,] 597
              [(2002)], State v. Fisher, 156 N.J. 494, 501 (1988). See
              also Kimmelman v. Morrison, 477 U.S. 365, 384
              (1986). "Failure to file a suppression motion does not
              constitute per se ineffective assistance of counsel."

Rather, the judge concluded "defendant's bald assertion[s] of innocence are in

direct conflict with [his] sworn statement to [the plea judge]" generally

acknowledging his guilt and specifically indicating the gun was seized from his

bedroom, and "he put it there."

        Further, the PCR judge determined defendant did not present any support

for his claim that counsel was ineffective for failing to seek a drug program for

defendant. In particular, defendant did not provide proof that he was qualified

for a drug program or that such a program was available. However, the judge

recognized defendant could petition the court for a change in custodial sentence

after he completes his mandatory term of parole ineligibility. 2 The PCR judge

2
    R. 3:21-10(b)(1).
                                                                           A-3808-16T4
                                          8
also found the record belied defendant's contention that plea counsel "reviewed

discovery with [him]."

      Finally, the PCR judge found defendant's bald assertions neither

established a prima facie case of ineffective assistance of counsel nor a

likelihood of success on the merits.       Accordingly, the judge exercised her

discretion pursuant to Rule 3:22-10 and denied defendant's request for a hearing.

This appeal followed.

      On appeal, defendant raises the following points for our consideration :

            POINT I

            THE DEFENDANT WAS DENIED EFFECTIVE
            ASSISTANCE OF COUNSEL AS GUARANTEED
            BY THE SIXTH AMENDMENT TO THE UNITED
            STATES CONSTITUTION AND ART[ICLE I],
            PAR[AGRAPH] 10 OF THE NEW JERSEY
            CONSTITUTION.

            A. The Trial Attorneys Failed to Provide the Defendant
            with a Complete Defense.

            B. The Plea Agreement is Null and Void Because the
            Defendant Was Pressured To Enter a Guilty Plea
            without Having Sufficient Knowledge About the Facts
            of His Case.

            POINT II

            THE DEFENDANT IS ENTITLED                     TO     AN
            EVIDENTIARY HEARING.

                                                                         A-3808-16T4
                                       9
            POINT III

            PROCEDURAL BARS DO NOT APPLY.

                                       II.

      "Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Pursuant to Rule

3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was

a "[s]ubstantial denial in the conviction proceedings of defendant's rights under

the Constitution of the United States or the Constitution or laws of the State of

New Jersey."

      "[A] defendant asserting ineffective assistance of counsel on PCR bears

the burden of proving his or her right to relief by a preponderance of the

evidence." State v. Gaitan, 209 N.J. 339, 350 (2012). A defendant must prove

counsel's performance was deficient; it must be demonstrated that counsel' s

handling of the matter "fell below an objective standard of reasonableness" and

that "counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); State v. Fritz, 105 N.J. 42, 52 (1987)

(adopting the Strickland two-part test in New Jersey).

                                                                          A-3808-16T4
                                       10
      A defendant must also prove counsel's "deficient performance prejudiced

the defense." Strickland, 466 U.S. at 687. Prejudice is established by showing

a "reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Id. at 694. Thus, petitioner must

establish that counsel's performance was deficient and petitioner suffered

prejudice in order to obtain a reversal of the challenged conviction. Id. at 687;

Fritz, 105 N.J. at 52.

      Further, the mere raising of a claim for PCR does not entitle the defendant

to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div. 1999). Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a prima facie

claim of ineffective assistance, material issues of disputed facts lie outside the

record, and resolution of the issues necessitates a hearing. R. 3:22-10(b); State

v. Porter, 216 N.J. 343, 355 (2013). We review a judge's decision to deny a PCR

petition without an evidentiary hearing for abuse of discretion. See Preciose,

129 N.J. at 462. We review any legal conclusions of the trial court de novo.

State v. Nash, 212 N.J. 518, 540-41 (2013); State v. Harris, 181 N.J. 391, 419

(2004).

                                                                           A-3808-16T4
                                       11
      While, as noted, we disagree with the PCR judge that defendant's claims

were barred procedurally, the judge astutely rejected defendant's claims on the

merits, giving due deference to counsel's strategy.      Here, that strategy was

specifically designed to limit defendant's sentencing exposure by obtaining a

favorable plea agreement encompassing four open indictments, including

weapons and drug offenses. As the PCR judge recounted, there was ample

evidence in the record that counsel negotiated a plea agreement that was

reasonable in light of defendant's sentencing exposure for the certain persons

offense. Indeed, plea counsel successfully negotiated for that sentence to run

concurrently to three separate drug counts in three different indictments.

      We are satisfied from our review of the record that defendant failed to

demonstrate a prima facie showing of ineffectiveness of counsel under the

Strickland/Fritz test. We therefore discern no abuse of discretion in the denial

of defendant's PCR petition, and affirm primarily for the reasons set forth in the

PCR judge's well-reasoned opinion.          The judge correctly concluded an

evidentiary hearing was not warranted. See Preciose, 129 N.J. at 462-63.

      Affirmed.

                                                                          A-3808-16T4
                                       12


807 F.Supp. 439 (1992)
UNITED STATES of America and Dayna K. Rich, Revenue Agent of the Internal Revenue Service, Petitioners,
v.
John Russell BERRY, Respondent.
No. 91-15-G.
United States District Court, W.D. Tennessee, W.D.
September 30, 1992.
*440 Bill C. Clifton and Michael J. Stengel, Memphis, TN, for respondent.
Michael J. Martineau, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, DC, for U.S.

ORDER DENYING PETITION OF THE UNITED STATES TO ENFORCE THE INTERNAL REVENUE SERVICE SUMMONS
GIBBONS, District Judge.
Before the court is the petition of the United States to enforce an Internal Revenue Service summons on John Berry, pursuant to 26 U.S.C. §§ 7402(b) and 7604(a).
On January 15, 1990, the Internal Revenue Service began a civil investigation concerning the tax liability of Dr. John Berry and his wife, Dr. Karen Berry, for the 1988 tax year. The Berry's joint return was randomly selected for examination. On February 16, 1990, John Berry notified IRS Agent Dayna K. Rich through his attorneys that he would invoke his Fifth Amendment privilege against self-incrimination with regard to the investigation. Thereafter, Agent Rich served both John and Karen Berry with an I.R.S. administrative summons pursuant to 26 U.S.C. §§ 7402(b) and 7604(a). This summons ordered both John and Karen Berry to appear before Agent Rich and to produce all documents and records reflecting their incomes for the 1988 tax year. This court held a show cause hearing on this matter on March 27, 1992.
*441 Pursuant to the summons, John Berry appeared on March 19, 1992, with two or more boxes purportedly containing tax records. He declined, however, to identify specifically what records the boxes contained or to turn them over to Agent Rich. He also invoked his Fifth Amendment privilege against self-incrimination. The government now seeks to compel John Berry to comply with the summons and produce the requested documents and records pertaining to the 1988 tax year.
The court finds initially that the IRS has made out a prima facie case that it is entitled to enforcement of the summons. This finding shifts the burden to John Berry to disprove the existence of a valid purpose or to show that enforcement of the summons would be an abuse of the Court's process or otherwise would be improper. United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1948).
Berry argues that enforcement of the petition would violate his Fifth Amendment privilege against self-incrimination and relies specifically on the act of production doctrine set forth in United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984). Under this doctrine, the very act of producing documents may be privileged because whether or not the contents of the documents themselves are privileged, a government subpoena compels the holder of the documents to perform an act that may have testimonial aspects and an incriminating effect. Id. at 612, 104 S.Ct. at 1241.
Berry argues the production of the requested documents would be testimonial and might tend to incriminate him for several reasons. The first is that the government does not know whether the summonsed records exist. He asserts that, by producing the documents, he will inform the IRS that the documents requested do exist and are in his possession. Second, he claims that producing the documents will inform the Internal Revenue Service that the records are both reliable and authentic and that no other documents related to the subject of the investigation are in his possession.
In response, the government cites numerous cases for the proposition that enforcement of an IRS summons does not violate the taxpayer's rights under the Fifth Amendment unless the taxpayer is "faced with substantial and real hazards of self-incrimination." United States v. Reis, 765 F.2d 1094, 1096 (11th Cir.1985). It maintains that his invocation of the Fifth Amendment is too broad and generalized to be sustained, and further that, because this investigation is civil, he should not be allowed to invoke the privilege. They conclude that "[a] taxpayer ... must comply with an IRS summons `as long as it is issued in good faith and prior to a recommendation for criminal prosecution.'" (Brief of the United States in Support of Petition to Enforce Internal Revenue Service Summons, quoting Reis, 765 F.2d at 1096).
Certainly, a taxpayer seeking Fifth Amendment protection "must provide more than mere speculative, generalized allegations of possible tax-related criminal prosecution." Reis, 765 F.2d at 1096. In determining whether such a danger of incrimination exists, a trial judge must examine the "implications of the question[s] in the setting in which [they are] asked." Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 817, 95 L.Ed. 1118 (1951). The judge "`[m]ust be governed as much by ... personal perception of the peculiarities of the case as by the facts actually in evidence.'" Hoffman, 341 U.S. at 487, 71 S.Ct. at 818 (quoting Ex parte Irvine, 74 F. 954, 960 (C.C.Ohio 1896). However, "[t]his does not mean that the defendant must confess the crime he has sought to conceal by asserting the privilege. The law does not require him to `prove guilt to avoid admitting it.'" United States v. Neff, 615 F.2d 1235 (9th Cir.1980) (quoting Marchetti v. United States, 390 U.S. 39, 50, 88 S.Ct. 697, 703, 19 L.Ed.2d 889 (1968)). Ultimately, "[i]t is for the court to decide whether his silence is justified." Hoffman, 341 U.S. at 486, 71 S.Ct. at 817.
In United States v. Schlansky, 709 F.2d 1079 (6th Cir.1983), the United States Court of Appeals for the Sixth Circuit found no *442 testimonial component in the compelled production of a binder containing the taxpayer's cancelled checks, bank statements, invoices and receipts, all of which were glued to his accountant's worksheets. The court said that the "key question" in such a case was whether the compelled production involves testimonial communication and that:
The answer to this question in turn depends on whether the very act of production supplies a necessary link in the evidentiary chain. Does it confirm that which was previously unknown to the government; e.g., the existence or location of materials? Does it supply assurance of authenticity not available to the government from sources other than the persons summonsed? Though the party seeking to avoid compliance does not have to show more than is required to demonstrate that the privilege is properly claimed, he must make some showing that the act of production alone would involve an incriminating testimonial communication.
Id. at 1084 (citation omitted). Because there was no question as to the existence, location or authenticity of these documents since the taxpayer's accountant and banks had seen everything the binder contained, the Schlansky court held that the taxpayer was not entitled to invoke the Fifth Amendment.
John Berry has asserted more than a broad, generalized Fifth Amendment privilege. From the testimony presented at the March 27, 1992 show cause hearing, and from the affidavits Berry has filed with the court under seal, the court agrees that he is faced with a substantial threat of self-incrimination. Agent Rich testified that she had no specific knowledge of either the existence or the contents of the summonsed records. While Agent Rich states that "[t]here is no Justice Department referral in effect within the meaning of I.R.C. § 7602(c)" with respect to Berry, it is uncontroverted that Agent Rich is required to refer this case to the Justice Department for criminal investigation if she finds evidence of fraud. Further, it is clear from the testimony that compelling John Berry to produce the summonsed documents is tantamount to forcing him not only to verify the existence of such records reflecting his 1988 income, but also that the documents are in his possession and control, that they are reliable and authentic, and that they are indeed the specific records called for by the summons.
The court finds that John Berry is entitled to invoke his Fifth Amendment privilege against self-incrimination with regard to the Internal Revenue Service summons. The petition of the United States to enforce that summons on John Berry is therefore denied.
IT IS SO ORDERED.


                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 15-1329
                                     _____________

                 TUCKER INDUSTRIAL LIQUID COATINGS, INC.,
                                      Appellant

                                             v.

                     BOROUGH OF EAST BERLIN;
          DAVID RICHARDS, Council Member of Borough of East Berlin;
          ROBERT CLAYTON, Council Member of Borough of East Berlin;
         DAVID WOODWARD, Council Member of Borough of East Berlin;
         CHARLES PHILLIPS, Council Member of Borough of East Berlin;
          WILLIAM POWELL, Council Member of Borough of East Berlin;
       STANLEY HOLLENBAUGH, Council Member of Borough of East Berlin
                            ______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. No. 11-cv-01416)
                       District Judge: Honorable John E. Jones III
                                    ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 28, 2016
                                   ______________

           Before: VANASKIE, SHWARTZ, and RESTREPO, Circuit Judges.

                                  (Filed: August 4, 2016)
                                     ______________

                                        OPINION

       
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                    ______________

RESTREPO, Circuit Judge.

       Tucker Industrial Liquid Coatings, Inc. (“Tucker” or “Appellant”) appeals two

orders of the District Court. The first order, among other things, granted Appellees’1

motion to dismiss Tucker’s substantive due process claim for failure to state a claim on

which relief can be granted. The second order granted Appellees’ motion for summary

judgment on Tucker’s equal protection claim. For the reasons that follow, we will affirm

both orders.2

                                             I

       In 1993, Bernard Tucker and his son Brian Tucker founded Tucker Industrial

Liquid Coatings, Inc., a company specializing in the application of industrial coatings to

component parts manufactured by others. In 1998, Tucker moved to its current location

at 407 North Avenue, East Berlin, Pennsylvania.

       In 2002, the Borough of East Berlin (“Borough”) revised its zoning ordinance. As

a result, the North Avenue facility was zoned in a “mixed use” district. “Light industrial

use” – Tucker’s existing use of its property – was only allowed in a “mixed use” district

1
       “Appellees” refers to David Richards, Robert Clayton, David Woodward, and
Charles Phillips.
2
       We consider the facts alleged in Tucker’s Third Amended Complaint in reviewing
the dismissal of Tucker’s substantive due process claim. We consider the full record in
reviewing Tucker’s equal protection claim, which was resolved at summary judgment.
                                             2
by way of special exception.3 In 2005, Tucker wanted to expand its operations by

building a 20,800 square foot addition on the North Avenue property. Before

construction began, Tucker, through its contractor, asked Borough Manager Michael

Thoman what it needed to do to comply with the Borough’s regulations. Thoman was the

Borough Permit Officer, Code Enforcement Officer, and Zoning Officer at the time.

Tucker applied for, and was ultimately granted, the following: (1) a Borough Building

Permit;4 (2) an Adams County Building Permit; and (3) a Use and Occupancy Permit.5

Thoman determined that these documents were the only documents Tucker needed for

the expansion. After receiving the permits and spending approximately $1,200,000 on

the project, Tucker completed the North Avenue addition in 2006.

       In early 2008, Tucker continued its expansion of operations in the Borough by

purchasing the former Tyco facility located on East King Street for approximately

$3,600,000. Tyco previously used the facility to manufacture electronic components for

communications and consumer products, and Tucker wanted to use the facility in the

same way it used the North Avenue facility – to apply industrial coatings to various parts.

       Tucker’s tenure in East Berlin was not without its issues. At some point after

3
        Though the parties’ briefing does not make this clear, we assume that Tucker’s
light industrial use of the pre-expansion North Avenue facility was “grandfathered in,”
since that use predated the 2002 zoning revisions.
4
        Tucker’s application for the Borough Building Permit was not signed by anyone
on behalf of Tucker, and included the wrong business name – Trucker Property LP. In
addition, the Borough Building Permit itself did not indicate that a special exception
would be required, despite that fact that Tucker proposed “light industrial use” in a
“mixed use” zone.
5
        The Use and Occupancy permit was not granted until September 25, 2006, which
was some time after Tucker began using and occupying the new addition.
                                             3
Tucker relocated to the North Avenue facility, the Pennsylvania Department of

Environmental Protection (“DEP”) discovered problems at the North Avenue facility,

including surface coating and emissions reporting violations, and failure to obtain a plan

approval and operating permit. To correct these issues, Tucker and the DEP entered into

a Consent Assessment of Civil Penalty on November 27, 2002, whereby Tucker would

pay a civil penalty of $5,500.

       The North Avenue facility again came under regulatory scrutiny when the DEP

issued Tucker a notice of violation on May 19, 2008. At issue were VOC emissions, and

the operation of three spray paint booths without the appropriate approvals and operating

permits. On November 14, 2008, Tucker was issued a second notice of violation by the

DEP. To resolve both notices of violation from 2008, Tucker entered into a Consent

Order and Agreement in April 2009. Therein, Tucker agreed, among other things, to pay

a civil penalty of $154,500.

       The DEP was not alone in finding fault with Tucker’s operations – several

Borough residents filed numerous Air Quality Complaints with the Borough about

Tucker throughout 2007 and 2008. These complaints, along with similar odor complaints

about other entities, were raised with the Borough Council at their regular meetings. As

was the practice, all odor complaints were collected by the Public Safety Chairman and

forwarded to the DEP.

       As a result of an election, the Borough Council membership changed in January

2008. Appellees Richards, Philips, Clayton, and Woodward joined the Borough Council.

During the March 5, 2008 Borough Council meeting the Council, which included

                                             4
Appellees, entertained discussion about odor and air quality concerns throughout the

Borough. A Tucker representative who spoke at the March 2008 meeting declined an

invitation to participate in an informal discussion of the complaints that had been

received to date.

       On October 7, 2008, in response to the May 2008 DEP notice discussed above,

Bernard Tucker sent the Borough a letter indicating Tucker had submitted a plan

approval to the DEP’s air quality program. On November 5, 2008, the Borough sent a

letter to the DEP that replied to Tucker’s plan approval application. On November 21,

2008, the DEP responded to the concerns expressed in the Borough’s November 5, 2008

letter. In August 2009, the DEP held a public hearing on Tucker’s proposed plan

approval.

       Also in August 2009, the Borough sent Tucker two enforcement notices outlining

alleged violations of the Borough’s zoning ordinance.6 One notice addressed Tucker’s

failure to secure a special exception for light industrial use when it built the addition at

the North Avenue facility. The second notice addressed Tucker’s failure to secure a

special exception for light industrial use of the East King Street (Tyco) facility.

Thereafter, Tucker appealed these enforcement notices to the Zoning Hearing Board and

requested special exceptions to operate the addition to the North Avenue facility and the

East King Street (Tyco) facility for “light industrial uses.” The Zoning Hearing Board

held hearings on these applications on October 27, 2009, December 8, 2009, January 26,

6
       Prior to sending these enforcement notices, one of the Appellees visited the DEP
offices on multiple occasions to review Tucker’s DEP file.
                                               5
2010, March 16, 2010, April 13, 2010, April 27, 2010, May 18, 2010, and May 25, 2010.

On July 6, 2010, the Zoning Hearing Board announced its decision and concluded: (1)

Tucker did not have a vested right in the light industrial use of the addition to the North

Avenue facility; (2) Tucker was not entitled to a continuation of Tyco’s non-conforming

light industrial use of the East King Street facility; and (3) Tucker had failed to

demonstrate the right to a special exception for light industrial use at either facility.

       On August 5, 2010, Tucker filed a land use appeal from the decision of the Zoning

Hearing Board in the Court of Common Pleas of Adams County, Pennsylvania. On

December 6, 2011, the Court of Common Pleas affirmed in part and reversed in part the

Zoning Hearing Board’s determinations. Specifically, the court: (1) denied Tucker’s

claim that its due process rights to a fair and impartial tribunal were violated; (2) reversed

the Zoning Hearing Board’s determination that Tucker was not entitled to a vested right

in the use of the addition at the North Avenue facility; and (3) affirmed all other findings

and conclusions made by the Zoning Hearing Board.

       Tucker commenced this action by filing a Complaint in the United Stated District

Court for the Middle District of Pennsylvania on August 1, 2011. Eventually, Tucker

filed a Third Amended Complaint, which the Appellees moved to dismiss. The District

Court granted the motion with respect to Tucker’s substantive due process claim,

procedural due process claim, and municipal liability claim under Monell v. New York

City Deepartment of Social Services., 436 U.S. 658 (1978). The District Court permitted

Tucker’s equal protection claim to proceed. Following the close of discovery, Appellees

moved for summary judgment on Tucker’s equal protection claim. The District Court

                                               6
granted the motion, thereby terminating Tucker’s last remaining claim. This timely

appeal followed, which challenges the District Court’s dismissal of Tucker’s substantive

due process claim and the grant of summary judgment in favor of Appellees on the equal

protection claim.

                                              II7

        Tucker argues that the District Court erred at the motion to dismiss stage because

the court “applied too stringent of a pleading standard and failed to acknowledge that

Tucker properly pled the Appellees’ personal and political animus.” Appellant’s Br. 21.

Tucker also argues that the District erred at the summary judgment stage because the

court “erroneously found no genuine issue of material fact as to Tucker’s equal protection

claim . . . [due to] the court ignor[ing] several key pieces of evidence . . . [and] resolving

[a] credibility dispute . . . .” Id. We disagree, and we will affirm both orders.

                                              A

       In dismissing Tucker’s substantive due process claim, the District Court concluded

that “mere interference with the use and enjoyment of the North Avenue property,

7
       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
       We review the District Court’s dismissal order de novo. Powell v. Weiss, 757 F.3d
338, 341 (3d Cir. 2014). “In doing so, we ‘accept all factual allegations as true, construe
the complaint in the light most favorable to the plaintiff, and determine whether, under
any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Id.
(quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)).
       We also review the District Court’s decision on summary judgment de novo.
Chesapeake Appalachia, LLC v. Scout Petroleum, LLC, 809 F.3d 746, 753 (3d Cir.
2016). Summary judgment is appropriate where, drawing all reasonable inferences in
favor of the non-moving party, “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
                                               7
regardless of the personal or political animus which may have motivated those actions, is

insufficient to state a substantive due process claim.” JA36. In doing so, the District

Court relied on our decisions in Lindquist v. Buckingham Township, 106 F. App’x 768

(3d Cir. 2004) (not precedential), and Eichenlaub v. Township of Indiana, 385 F.3d 274

(3d Cir. 2004). The District Court interpreted both cases as supporting the proposition

that “municipal land use actions or determinations which do not involve ‘allegations of

hostility to constitutionally-protected activity on the premises’ do not come within the

realm of egregious, conscience-shocking behavior that has long been requisite of a

substantive due process claim.” JA36 (quoting Eichenlaub, 385 F.3d at 285). The

District Court found that “[t]he overwhelming weight of decisional law in this Circuit

provides that land use decisions do not rise to the level of a substantive due process

violation unless interference with a constitutionally-protected right, such as the right to

privacy, is the motivation for or the result of the action.” JA38. The District Court

concluded that Tucker did not state a substantive due process violation under this matrix,

and thus found that Appellees were “entitled to the full protections of the doctrine of

qualified immunity.”8 Id.

       Tucker argues that the District Court erred in ignoring the Appellees’ personal and

political animus for Tucker, and that we should reverse the District Court’s dismissal of

the substantive due process claim. Appellant’s Br. 22. We find no such error.

8
       The District Court also noted that Tucker incorrectly relied on the “improper
motive” test that originated in Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988), was
repeated in DeBlasio v. Zoning Board of Adjustment, 53 F.3d 592 (3d Cir. 1995), but was
ultimately rejected in United Artists Theatre Circuit v. Township of Warrington, 316 F.3d
392 (3d Cir. 2003).
                                              8
       To succeed on a § 1983 claim, a plaintiff must “prove two essential elements: (1)

that the conduct complained of was committed by a person acting under color of state

law; and (2) that the conduct deprived the plaintiff of rights, privileges, or immunities

secured by the Constitution or laws of the United States.” Schneyder v. Smith, 653 F.3d

313, 319 (3d Cir. 2011). Under the second element, “[t]o establish a substantive due

process claim, a plaintiff must prove the particular interest at issue is protected by the

substantive due process clause and the government’s deprivation of that protected interest

shocks the conscience.” Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008).

       Tucker begins by stating that “[c]ases involving a real property interest are

‘unquestionably’ fundamental for substantive due process purposes . . . . Thus, the

substantive due process clause protects Tucker’s right to use its real property without

interference from the government.” Appellant’s Br. 24 (citations omitted). Tucker next

argues that “[b]ehavior is conscience shocking when a zoning controversy involves

allegations of ‘hostility to a constitutionally-protected activity on the premises.’” Id. at

25 (quoting Eichenlaub, 385 F.3d at 285). Tucker finally argues that “[u]se and

enjoyment of property is a constitutionally protected activity.” Id. (citing DeBlasio, 53

F.3d at 600-01). Under Tucker’s suggested interpretation of the law outlined above, any

zoning controversy that interfered with the use and enjoyment of property would

automatically shock the conscience. This is not the law.

       Rather, Eichenlaub stands for the proposition that uses that implicate a separately

protected constitutional right are analyzed differently than uses that do not implicate a

separately protected constitutional right. 385 F.3d at 285 (citing Assocs. in Obstetrics &

                                              9
Gynecology v. Upper Merion Twp., 270 F. Supp. 2d 633 (E.D. Pa. 2003)). Eichenlaub

recognized that the district court in Associates was correct to analyze the way the zoning

decision in Associates “shock[ed] the conscience” in the context of “judicial decisions

that address[ed] the protection of abortion services,” because abortion is a right that is

constitutionally protected under the Fourteenth Amendment. Id. at 285. Indeed, a later

reference in Eichenlaub makes the importance of the presence or absence of such a

separate constitutional right absolutely clear. In justifying the district court’s finding that

the alleged misconduct did not rise above a typical zoning dispute, in Eichenlaub we

remarked: “The local officials are not accused of seeking to hamper development in order

to interfere with otherwise constitutionally protected activity at the project site, or

because of some bias against an ethnic group.” Id. at 286 (emphasis added).

       It is undisputed that Tucker’s use of the property does not implicate a separately

protected constitutional right, and Tucker’s argument that “an extra right such as in

Associates is only required when the dispute revolves around a purported future use,”

Appellant’s Br. 26, is without foundation in law or reason and we reject it.

       By way of example, a zoning decision that effectively prevented an owner from

publishing a political newspaper would be analyzed under a framework that took into

account the fact that such a use was separately protected by the First Amendment, while a

zoning decision that effectively prevented an owner from manufacturing playing cards

would be analyzed differently, as there is no separate constitutional protection for

manufacturing playing cards. Both uses can serve as the basis for a substantive due

process claim, however, the “shocks the conscience” standard will be applied differently

                                              10
to the two, as one involves a separately protected constitutional activity and the other

does not. Tucker’s attempt to place all possible land uses on equal constitutional footing

for what “shocks the conscience” is both unpersuasive and contrary to our precedent.

       It is true that the “shocks the conscience” test “is not precise” and “varies

depending on the factual context.” Eichenlaub, 385 F.3d at 285 (citations and quotation

marks omitted). However, “[w]hat is clear is that this test is designed to avoid converting

federal courts into super zoning tribunals.” Id. It is the case here, as it was in

Eichenlaub, that “the misconduct alleged . . . does not rise sufficiently above that at issue

in a normal zoning dispute to pass the ‘shocks the conscience test.’” Id. at 286. In the

absence of a separately protected constitutional right, Tucker attempted to meet the

shocks the conscience standard by including an allegation that Appellees were motivated

by “personal and political animus.” JA78. There may be zoning disputes where, in the

absence of a separately protected constitutional right, allegations of personal and political

animus sufficiently shock the conscience in order to state a due process claim. Here,

however, Tucker’s mere inclusion of the phrase “personal and political animus” in the

Complaint is clearly insufficient. As the District Court correctly pointed out, “there is an

absolute dearth of facts within the amended pleading to even inferentially support this

broad assertion.” JA38. In sum, we agree with the District Court that Tucker failed to

state a substantive due process claim, and thus we will affirm its order dismissing

Tucker’s claim.

                                              B

                                              11
       To prevail on an equal protection claim under the “class of one” theory relied on

by Tucker, a plaintiff must demonstrate that: (1) it “has been intentionally treated

differently from others similarly situated;” and (2) “that there is no rational basis for the

difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per

curiam). In analyzing Appellee’s summary judgment motion, the District Court held that

Tucker “could be considered similarly situated” in all relevant respects to Pennwood

Products – another business located in East Berlin. JA66-67. The District Court also

held that Tucker “has failed to meet its heavy burden of showing that Defendants had no

rational justification for treating Tucker differently.” JA69.

       On appeal, Tucker asserts that “the District Court erred by failing to recognize that

Tucker contests the motives the Appellees asserted and, therefore, a triable issue of

material fact existed as the Appellees were motivated by personal vendettas and not a

legitimate interest.” Appellant’s Br. 27-28. We perceive no such error.

       As correctly recognized by the District Court, JA69, a successful class of one

plaintiff must show that any differential treatment it suffered was “irrational and wholly

arbitrary.” Eichenlaub, 785 F.3d at 286 (quoting Olech, 528 U.S. at 564) (internal

quotation marks omitted). “These challenges fail when ‘there is any reasonably

conceivable state of facts that could provide a rational basis for the classification.’”

Highway Materials, Inc. v. Whitemarsh Twp., 386 F. App’x 251, 259 (3d Cir. 2010) (not

precedential) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)).

       On the record before the District Court, such a reasonably conceivable state of

facts was present. First, when compared to Pennwood, Tucker received DEP Notices of

                                              12
Violation that were more recent, and more severe. Compare JA1530-37 (showing that

Pennwood’s most recent DEP violation occurred on July 6, 2005, and that no Pennwood

violation resulted in financial penalties or consent agreements), with JA507-12 (Consent

Assessment of Civil Penalty dated November 27, 2002, for Tucker, which resulted in a

$5,500 civil penalty) and JA1053-69 (Consent Order and Agreement dated April 16,

2009, addressing multiple Tucker violations from 2008, which resulted in a $154,500

civil penalty). Second, the Borough received a greater number of odor complaints about

Tucker than Pennwood, and the odor problem with Tucker persisted for a longer period

than the odor problem with Pennwood. Compare JA868-81 (containing thirteen Air

Quality Complaints about Tucker over the course of eight months in 2007 and 2008),

with JA1545-54 (containing ten Air Quality Complaints about Pennwood over the course

of three months in 2007). Third, Appellees had at least some reason to believe that

Tucker, unlike Pennwood, would not readily work with the Borough Council to address

residents’ concerns about odor problems. See JA1008 (Borough Council Meeting

Minutes from March 5, 2008, which reflect that a Tucker representative declined an

invitation to participate in informal discussions about odor complaints received about

Tucker). Accordingly, we cannot say that it was irrational and wholly arbitrary for

Appellees to review Tucker’s DEP file or seek to remediate the impact of Tucker’s light

industrial use in a mixed use zone, particularly where Tucker’s light industrial use of the

property is what caused the environmental issues and served as the basis for the odor

complaints by the Borough residents. Under these circumstances, we agree with the

                                            13
District Court that Appellees were entitled to summary judgment on Tucker’s equal

protection claim.

                                           III

      For the foregoing reasons, we will affirm both orders of the District Court.

                                           14


542 U.S. 919
DEKALB COUNTY, GEORGIAv.PRICKETT ET AL.
No. 03-1426.
Supreme Court of United States.
June 21, 2004

1
C. A. 11th Cir. Certiorari denied.

2
Reported below: 349 F. 3d 1294.


447 F.Supp. 804 (1978)
Mary B. HODGIN, on her behalf and on behalf of all other persons similarly situated
v.
Robert D. JEFFERSON, Richard W. Phoebus, Security Savings and Loan and Robert D. Jefferson, Individually.
Civ. A. No. N-77-1277.
United States District Court, D. Maryland.
March 13, 1978.
*805 *806 Barry J. Dalnekoff and Harold A. MacLaughlin, Baltimore, Md., for plaintiff.
John E. Sandbower, III and Joseph M. Roulhac, Baltimore, Md., for defendants.
NORTHROP, Chief Judge.
By her complaint, plaintiff Mary Hodgin has charged her former employer, defendant Security Savings and Loan Association, and several Security officers with discriminating against her and other women on the basis of sex. Plaintiff's complaint is based upon Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-5 (1970), the "Ku Klux Klan" Civil Rights Act, 42 U.S.C. § 1985 (1970), and several sections of the Equal Pay Act, 29 U.S.C. § 206 et seq. (1970). Jurisdiction is based upon the following statutes: 28 U.S.C. § 1331, (federal question jurisdiction); 28 U.S.C. § 1343, (civil rights jurisdiction, specifically § 1985); 28 U.S.C. § 2201, (granting jurisdiction in declaratory judgment cases); 42 U.S.C. § 2000e-5(f), (jurisdiction for Title VII cases); and although plaintiff has incorrectly denominated jurisdiction as 29 U.S.C. § 217, the Court will correct this to 29 U.S.C. § 216(b), (granting jurisdiction for suits involving back pay claims under § 206).
Presently before the Court are three defense motions: defendants have moved (1) to dismiss the complaint in all or in part; (2) to strike plaintiff's election of a jury trial; and (3) to dismiss the case as a class action or for partial summary judgment. The Court has reviewed the briefs filed by both sides, engaged in a thorough study of the applicable law and will now rule on the pending motions. First, a brief summary of the facts, as alleged in the complaint, is in order.

I. The Complaint

Plaintiff began her employment with defendant Security Savings and Loan (Security) on February 26, 1974. During her employment, she performed various administrative and managerial duties as Head Teller for Security. Plaintiff was offered a position as an Assistant Branch Manager, but at a salary lower than Security's stated minimum rate. Despite requests to defendant Jefferson, Assistant Treasurer and Assistant Secretary of Security, her salary was not raised. Plaintiff resigned, and her resignation became effective November 15, 1974. Plaintiff charges that the discriminatory practices of Security in general, and the refusal by Security to pay her the stated minimum rate in particular, caused her constructive termination.
Plaintiff filed charges of sex discrimination against Security with the Equal Employment Opportunity Commission (E.E. O.C.) on November 7, 1974. Plaintiff received a "right to sue" letter from the E.E.O.C. on May 6, 1977, and she filed this action on August 3, 1977. The complaint alleges a practice by defendants of discriminating against women as a class by offering them less compensation and benefits, and discouraging them from attempting to advance themselves. At the same time, defendants allegedly granted proportionally greater benefits to men and offered men training opportunities not offered to women. This practice of discrimination is alleged to have been in effect on or before February 26, 1974, and has continued to the present time.

II. The Motion to Dismiss

Defendants have moved to dismiss the entire complaint, or in the alternative, to (1) dismiss the § 1985 claim, (2) to dismiss the *807 Fair Labor Standards Act claim, and (3) to dismiss plaintiff's complaint to the extent that it asks for liquidated and exemplary damages.
It is clear that when considering a Rule 12(b)(6) motion, (as here), the Court should not dismiss the complaint unless it appears that the plaintiff can prove no set of facts in support of his or her claim which would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Thus, the Court need only test the legal sufficiency of plaintiff's complaint. Applying this standard to the case at bar, the Court cannot conclude that there are no facts upon which plaintiff could recover. Therefore, the Court will proceed to examine defendants' specific grounds for their motion.

A. The § 1985 Claim

In her complaint plaintiff has charged defendants Jefferson, Phoebus and other unnamed male employees of Security with conspiring to deprive women of their equal rights by advancing similarly skilled men and women at disparate rates; by compensating men and women unequally; by engaging in discriminatory hiring practices, and other unlawful activities. As an overt act of this conspiracy, plaintiff alleges that defendants offered her a salary at a rate lower than the rate paid to a similarly situated male predecessor.
Defendants have moved to dismiss this count, arguing that as a matter of law plaintiff has not stated a cause of action. Specifically, defendants first assert that a conspiracy has not properly been alleged. Defendants maintain that if the male employees of Security indeed discriminated against plaintiff on the basis of her sex, they were acting as agents of the corporation. Thus, no conspiracy would be made out since the only actor would be the corporation.
A review of the case law reveals that there is a split of authority on this question. Compare Girard v. 94th & Fifth Ave. Corp., 530 F.2d 66 (2d Cir.), cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798 (1976); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); with Dupree v. Hertz Corp., 419 F.Supp. 764 (E.D.Pa.1976); Jackson v. University of Pittsburgh, 405 F.Supp. 607 (W.D.Pa.1975). This Court concludes that the better reasoned cases are those that have held that a conspiracy claim can be alleged under these circumstances.
Individuals are not immune from liability under § 1985(3) merely because the same corporation employs them. Since such individuals remain liable for their own actions during non-business hours, it follows that their unauthorized acts in furtherance of a conspiracy may state a claim under § 1985(3). Thus, while authorized acts of the officials would constitute corporate action, (and hence would avoid a conspiracy charge), unauthorized acts would not.
Reading the complaint liberally, it appears plaintiff has charged that defendant Jefferson ignored the stated policies and established rates of Security in denying plaintiff her requested salary. Thus, his alleged actions appear unauthorized by Security. Accordingly, this Court concludes that a conspiracy within § 1985(3) has been sufficiently pled.
Defendants have additionally argued that "the complaint fails to allege the necessary intent on the part of the defendants to deprive the plaintiff of equal rights on the basis of some invidiously discriminatory animus," citing Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).
In Griffin, the Supreme Court delineated the requirements for a § 1985(3) claim. One must (1) conspire (2) for the purpose of depriving the plaintiff of equal protection of the laws, or of equal privileges and immunities under the laws, (3) by an overt act (4) causing injury. In Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976), the United States Court of Appeals for the Fourth Circuit interpreted § 1985(3)'s relationship to Title VII. The Fourth Circuit held that private discrimination does not violate the "equal protection of the laws" segment of § 1985(3) since that phrase refers to the fourteenth amendment, which *808 requires state action. Thus, unless a plaintiff can demonstrate that the private discrimination contravenes a privilege or immunity granted by the laws of the United States, he cannot state a claim within § 1985(3).
The Fourth Circuit next considered whether a Title VII claim could be enforced by § 1985(3). Finding that the Title VII procedures constituted the exclusive method by which such claims could be brought, the court held that § 1985(3) is not an available mechanism to enforce rights created by Title VII.
Accordingly, this Court must conclude that plaintiff's § 1985(3) claim must be dismissed unless she has pled a violation of her "privileges and immunities" separate and distinct from her Title VII claim. Doski v. M. Goldseker Co., supra at 1334; accord McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir. 1977). The Court concludes that plaintiff's claim under the Equal Pay Act, 29 U.S.C. § 206 (1970), constitutes such a violation.
As will be discussed below, the Court is of the opinion that plaintiff has sufficiently pled a violation of § 206(d). Thus, it is possible for defendants to have conspired to deprive her of her right to equal pay for equal work in violation of § 1985(3). Plaintiff has satisfied this component of a § 1985(3) claim.
The final requirement of Griffin is that the conspiracy be one motivated by "some racial or perhaps otherwise class-based, invidiously discriminatory animus . . .." Griffin, supra 403 U.S. at 102, 91 S.Ct. at 1798. The issue presented is whether sex discrimination constitutes such an animus within the purview of § 1985(3). The Fourth Circuit has left this issue open. Hughes v. Ranger Fuel Corp., 467 F.2d 6 (4th Cir. 1972). A number of other circuit courts have also reserved the question. See McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir. 1977); Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975). There is a substantial body of case law supporting either viewpoint. However, the Court believes that the modern trend is towards expanding the scope of class-based conspiracies which fall within the purview of § 1985(3). The argument for such an expansion was ably put forth recently by Judge Gignoux in Curran v. Portland Superintending School Committee, 435 F.Supp. 1063 (D.Me.1977). The court there found that "the great majority of federal courts have rejected the notion that the statute reaches only conspiracies motivated by racial bias." Id. at 1085. The court therefore concluded that sex discrimination could qualify as a basis for a § 1985(3) conspiracy. Accord Beamon v. W. B. Saunders Co., 413 F.Supp. 1167 (E.D.Pa.1976); Reichardt v. Payne, 396 F.Supp. 1010 (N.D. Cal.1975); contra Knott v. Missouri Pacific Railroad, 389 F.Supp. 856 (E.D.Mo.1975). Judge Gignoux noted recent appellate court decisions which had expanded the scope of the section and concluded that this result was consistent with the approach of the Supreme Court to the Civil Rights Reconstruction Actsaccording them a sweep as broad as their language. Curran, supra at 1085. This Court believes that Curran accurately reflects the state of the law, and adopts Judge Gignoux's reasoning. Therefore, the Court concludes that a claim within § 1985(3) has been made by plaintiff.

B. Equal Pay Act Claim

Defendants argue that "[t]he asserted claim under the Fair Labor Standards Act (29 U.S.C. § 206) in paragraphs 13-15 is clearly insufficient." Defendants appear to argue in their brief that since plaintiff received more than the minimum wage, she has no claim under § 206.
Defendants have apparently misconstrued plaintiff's claim. 29 U.S.C. § 206(d)(1) prohibits an employer from discriminating in wages on the basis of sex. 29 U.S.C. § 206(d)(3) additionally defines any money retained in violation of § 206(d)(1) as unpaid minimum wages. The employer is liable to the employee for these unpaid minimum wages as liquidated damages by virtue of 29 U.S.C. § 216(b). Thus, plaintiff has stated a cause of action under *809 the Equal Pay Act, since she has alleged that employees of different sexes were paid disparate wages for equal work. It is clear that these Equal Pay Act claims can be brought in conjunction with the Title VII claims. See, e. g., Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th Cir. 1977).
Defendants have also put forth the argument that "all or substantially all of any relief to which the plaintiff might be entitled were she to prevail is barred by the applicable Maryland statute of limitations of 3 years." This argument is based upon the wrong statute.
The applicable statute of limitation to this claim is contained within 29 U.S.C. § 255 (1970). That section provides that any action for unpaid minimum wages (as plaintiff's claim may be characterized here), must be commenced within two years after the cause of action accrued. The words "cause of action accrued" have been construed by the Supreme Court in Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 73 S.Ct. 580, 97 L.Ed. 821 (1953). The Court held simply that a "cause of action" is created when there is a breach of a duty owed to plaintiff. Thus, it would appear that plaintiff's claim would be time-barred by the statute of limitation since the final discriminatory act took place over two years prior to her complaint.
Section 255, however, contains a second limitation which is applicable to "willful" violations of the statutes. This limitation is three years. Reading plaintiff's complaint with an eye toward sustaining it, Conley v. Gibson, supra, the Court finds that she has alleged a willful violation of § 206(d).
Moreover, sex-based, discriminatory wage payments constitute a continuing violation of the Equal Pay Act. Hodgson v. Behrens Drug Co., 475 F.2d 1041 (5th Cir. 1973). Thus, plaintiff will be allowed back pay to three years prior to the filing of her complaint, assuming she can prove a willful violation of the Act. Cf. Anisgard v. Exxon Corp., 409 F.Supp. 212 (D.La.1975).

C. Motion to Strike Liquidated and Punitive Damages

The aforegoing disposes of defendants' argument that liquidated damages may not be demanded by plaintiff. Those damages are specifically authorized by 29 U.S.C. § 216(b).
It is also clear, however, that punitive damages are not available as a remedy for Title VII. See Russell v. American Tobacco Co., 528 F.2d 357 (4th Cir. 1975), cert. denied 425 U.S. 935 (1976). Accord EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975). Thus, to the extent that the request for punitive damages is based upon Title VII violations, the Court is constrained to deny the claim.

III. Defense Motion to Strike Election for Jury Trial

Defendants argue that plaintiff should not be allowed to try her case before a jury since her § 1985 and Equal Pay Act claims should be dismissed, leaving only her Title VII claim, which is equitable in nature. In the alternative, they contend that the § 1985 and Equal Pay Act issues are ancillary to the Title VII claim, and thus should be tried before the Court.
It is apparent that defendants' first argument is founded on the incorrect premise that the Court would dismiss all legal claims. Since the Court has retained a legal claim, the motion to strike plaintiff's jury election is inappropriate.
It is true that the great weight of case law illustrates that trial by jury is not required by Title VII. See, e. g., Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969); Williams v. Travenol Laboratories Inc., 344 F.Supp. 163 (N.D. Miss.1972). While the argument in favor of denying a jury trial where the legal claims are "ancillary" to the Title VII count is somewhat persuasive, the cases have held otherwise. For example, in Van Ermen v. Schmidt, 374 F.Supp. 1070 (W.D.Wis.1974) Judge James Doyle stated:
Where equitable and legal actions are joined in the same action and a jury trial *810 is demanded, only the most extraordinary circumstances can justify a denial of a jury trial on the legal claims. Characterization of the legal claim as incidental to the equitable claim cannot justify striking the jury demand. Id. at 1073. (Emphasis supplied).
This Court has recently tried a sex discrimination case in which the Title VII issues were tried to the Court, and the § 1983 issues were tried by the jury. See, Cussler v. University of Maryland, 430 F.Supp. 602 (D.Md.1977). The Court can discern no reason to act differently in this case.

IV. Motion to Dismiss the Class Action

Defendants have also moved to dismiss the class action. They attack the class action allegations on every ground available to them. They contend that the requisite elements of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequate representation, have not been made out. In addition they allege that neither 23(b)(2) or (b)(3) have been satisfied. The Court has carefully considered the pleadings filed by both sides, scrutinized the complaint, and concludes that this motion is premature.
Rule 23(c) requires the Court to determine whether the Court will certify the case as a class action "[a]s soon as practicable." This phrase, however, should not be construed to mean "immediately." Of course, the Court may not engage in a review of the merits of the case. Eisen v. Carisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). However, the determination of whether to certify a class should be predicated on more information than the pleadings provide. Weathers v. Peters Realty Corp., 499 F.2d 1197 (6th Cir. 1974). In the instant situation, where the Court only has the complaint before it, class certification is inappropriate. See Huff v. N. D. Cass Co. of Alabama, 485 F.2d 710 (5th Cir. 1973); see also Roman v. ESB, Inc., 550 F.2d 1343, 1349 (4th Cir. 1976).
Nevertheless, in order to properly lay the groundwork for the necessary discovery, the Court will delineate the scope of the proposed class action. First, it is apparent that the only count which can be brought as a class action is the Title VII count. Since 29 U.S.C. § 216(b) requires that "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party," a class action may not be maintained under this section. American Finance System, Inc. v. Harlow, 65 F.R.D. 94 (D.Md.1974); accord Lombardi v. Altemose Construction Co., 69 F.R.D. 410 (E.D.Pa.1975). It follows that since the Equal Pay Act claim cannot be maintained as a class action, the § 1985 claim cannot either, since the § 1985 claim is dependent upon the Equal Pay Act claim as previously outlined.
Secondly, the scope of the alleged class can be properly defined at least as far as time limitations are concerned. The better reasoned cases have held that the filing of charges with the E.E.O.C. tolls the statute of limitations for a Title VII claim by the representative plaintiff and her putative class. See, e. g., Pittman v. Anaconda Wire & Cable Co., 408 F.Supp. 286 (E.D.N. C.1976). But the plaintiff cannot represent persons who could not have filed a charge with the E.E.O.C. at the time she did. Presseisen v. Swarthmore College, 71 F.R.D. 34 (E.D.Pa.1976); Burwell v. Eastern Airlines, 68 F.R.D. 495 (E.D.Va.1975). Since plaintiff filed her charges on November 11, 1974, plaintiff's class, if eventually certified, will be limited to class members who could have filed a charge with the E.E.O.C. from January 16, 1974 to the present.
Considering the state of the pleadings, the Court believes that it should reserve ruling on the difficult questions presented by defendants' motion. The Court does note that there are potential obstacles to certifying plaintiff's case as a class action  specifically whether plaintiff can meet the requirements of numerosity and adequate representation. However, these issues will be held in abeyance until sufficient discovery has been had.

*811 V. Conclusion

An Order was entered on December 28, 1977, confirming the Court's oral rulings at the conclusion of the hearing on December 9, 1977:
(1) DENYING defendants' motion to dismiss;
(2) DENYING defendants' motion to strike plaintiff's election of a jury trial; and
(3) DENYING defendants' motion to dismiss this case as a class action or to strike class action allegations or for partial summary judgment at this time without prejudice pending discovery.


129 F.3d 130
97 CJ C.A.R. 2740
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
KENNETH KELLER, Petitioner-Appellant,v.STATE OF OKLAHOMA, Respondent-Appellee.
No. 97-6031.
United States Court of Appeals, Tenth Circuit.
Nov. 3, 1997.

1
Before PORFILIO and LUCERO, Circuit Judges, and MARTEN,** District Judge.

2
ORDER AND JUDGMENT*

3
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.  The case is therefore ordered submitted without oral argument.

4
Petitioner, an Oklahoma state prisoner proceeding pro se, appeals from the district court's order denying his petition for habeas corpus relief filed under 28 U.S.C. § 2254.1

5
Petitioner was accused of exposing himself to two women on May 23, 1990.  He was tried and convicted of indecent exposure after former conviction of a felony in May 1993, and sentenced to fifteen years' imprisonment.  He argues on appeal that:  (1) the trial court erred by continuing his trial so that prosecutors could comply with discovery requirements and by allowing testimony from State's witnesses whose testimony had previously been excluded;  (2) he was denied his constitutional right to a speedy trial;  (3) the trial court was without jurisdiction to try him as an habitual offender because the prosecutor did not file the second page of the information;  (4) trial counsel was constitutionally ineffective;  (5) appellate counsel was constitutionally ineffective;  (6) the trial court lacked subject matter jurisdiction because the information was not in proper form;  (7) the trial court erred by failing to provide the jury with verdict forms covering all possible verdicts the jury could reach;  and (8) the statute under which petitioner was convicted raises a serious constitutional issue because it is rarely applied as a felony.

6
We have carefully reviewed the record and petitioner's brief on appeal.  Petitioner's challenges to the trial court's subject matter jurisdiction and to the state statute are waived because he did not raise them in his objections to the magistrate judge's findings and recommendation.  See Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.1992).  In all other respects, we affirm for substantially the same reasons as those set forth in the magistrate judge's findings and recommendation, as adopted by the district court.

7
The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.

**
 The Honorable J. Thomas Marten, District Judge, United States District Court for the District of Kansas, sitting by designation

*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.  R. 36.3

1
 The district court granted petitioner a certificate of probable cause (CPC) for appeal.  Because he filed his petition in federal district court on September 13, 1996, however, he was required to obtain a certificate of appealability (COA) to proceed on appeal rather than a CPC. See United States v. Kunzman, No. 96-1310, 1997 WL 602507, at * 1 & n. 2 (10th Cir.  Oct. 1, 1997).  Nevertheless, the standard for obtaining either certificate is the same.  See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir.1996), cert. denied, 117 S.Ct. 746 (1997), overruled on other grounds by Kunzman, 1997 WL 602507, at * 1 n. 2. We therefore construe the district court's grant of a CPC as the grant of a COA


978 So.2d 85 (2006)
WILLIE ANTHONY JENNINGS
v.
STATE.
No. CR-05-1222.
Court of Criminal Appeal of Alabama.
April 5, 2006.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Dismissed.


946 So.2d 258 (2006)
STATE of Louisiana
v.
Carl W. BRISTER.
No. 06-884.
Court of Appeal of Louisiana, Third Circuit.
December 6, 2006.
*259 David W. Burton, District Attorney, Richard Alan Morton, Assistant District Attorney, DeRidder, LA, for Appellee, State of Louisiana.
W. Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Carl W. Brister.
Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
AMY, Judge.
The defendant, an adult, was charged by bill of information with two counts of felony carnal knowledge of a juvenile in violation of La.R.S. 14:80 for having sexual intercourse with a fifteen year-old female. Pursuant to a plea agreement, the defendant pled guilty to one count of felony carnal knowledge of a juvenile. The second count was dismissed. The defendant was sentenced to five years at hard labor with credit for time served. This sentence was ordered to run concurrently with any other sentences the defendant was subject to at the time of arrest. In addition, the defendant was ordered to pay a $1,000.00 fine plus court costs. He was also ordered to register as a sex offender pursuant to La.R.S. 15:542. The defendant filed a motion to reconsider the sentence, which the trial court denied. He now appeals, alleging that his sentence is excessive and that the trial court did not adequately consider certain mitigating factors. For the following reasons, we affirm as amended and remand with instructions.

Discussion
Errors Patent
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent in need of correction.
Pursuant to La.R.S. 15:537(A), a person convicted of or who pleads guilty to a sex offense, including felony carnal knowledge of a juvenile, "shall not be eligible for diminution of sentence for good behavior." Here, the trial court failed to deny the defendant diminution eligibility under the statute. In State v. S.D.G., 06-174, p. 5 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244, 1247 (citing State v. G.M.W., Jr., 05-391, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461), this court stated:
We note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court, and the trial court's failure to include a denial of diminution of sentence thereunder renders Defendant's sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences.
Here, the defendant's sentence is illegally lenient in that the trial court failed to deny diminution of sentence. Thus, we amend his sentence to reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537. The trial court is instructed to note the amendment in the court minutes.
*260 Excessive Sentence
The defendant argues that the "sentence imposed is excessive for this offender and this offense."
At his sentencing hearing, the defendant orally motioned the court to reconsider his sentence. He asserted that he was being sentenced more severely than his co-defendant who was sentenced to five years probation. This motion was denied. Thereafter, the defendant filed a written motion to reconsider sentence, in which he asserted that "[t]he sentence imposed is excessive." That motion was also denied.
Louisiana Revised Statutes 14:80 provides in pertinent part:
D. Whoever commits the crime of felony carnal knowledge of a juvenile shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.
In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331, this court explained the standard to be used in reviewing excessive sentence claims:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-0562 (La.5/30/03), 845 So.2d 1061, this court stated:
In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.
In sentencing the defendant, the trial court explained:

*261 Although you have no prior felony convictions, you have had a veryyou have very substantial contacts with law enforcement agencies, including several arrests and misdemeanor convictions. You are now 25 years of age and during the last eight years have been arrested at least eight times. You have been convicted of DWI, possession of marijuana, simple battery, driving under suspension and attempted theft. The charge of attempted theft was a result of a looting charge being reduced.
Considering your foregoing criminal record, the Court does not consider you to be a good candidate for probation. In arriving at your sentence, I have taken into consideration all of the provisions of the Code of Criminal Procedure 894.1.
Accordingly, it is the sentence of the Court that you serve five years with the Department of Corrections at hard labor.
After reviewing the record, we do not find that the defendant's sentence was excessive. The presentencing investigation report revealed a number of arrests and misdemeanor convictions. We note that the defendant was sentenced to half of the statutory maximum for this offense. Furthermore, pursuant to a plea agreement entered into with the State, the defendant was allowed to plead guilty to one count of felony carnal knowledge of a juvenile with the other count being dismissed. Had he not pled guilty, the defendant potentially faced two sentences that each carried a maximum sentence of ten years.
Additionally, in determining whether the defendant's sentence is excessive, we give no consideration to the sentence received by his co-defendant insofar as "a sentence must be individualized as to each defendant." State v. Lofton, 97-383, p. 5 (La.App. 3 Cir. 10/8/97), 701 So.2d 712, 715, writ denied, 98-0389 (La.6/5/98), 720 So.2d 679. As such, we find that the trial court did not abuse its discretion in imposing the defendant's sentence.
This assignment has no merit.
Mitigating Factors
The defendant argues that the "Trial Court failed to adequately consider the mitigating factors listed in La.Code Crim.P. art. 894.1 in imposing a sentence[.]"
After reviewing the record, we note that the defendant did not raise this issue at his sentencing hearing or in his written motion to reconsider the sentence. Pursuant to La.Code Crim.P art. 881.1(E), his failure to "include a specific ground upon which a motion to reconsider sentence may be based, including a claim for excessiveness, shall preclude . . . the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review." See State v. Evans, 27,183 (La.App. 2 Cir. 9/27/95), 661 So.2d 600 (because the defendant did not mention mitigating factors at his sentencing hearing or in his motion for reconsideration of sentence, he was precluded from asserting those issues on appeal). Likewise, we find that the defendant cannot raise this issue for the first time on appeal.
This assignment is without merit.

DECREE
For the foregoing reasons, the defendant's sentence is affirmed. The defendant's sentence is amended to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537. This matter is remanded to the trial court with instructions to make a notation in the minutes reflecting the amendment.
*262 AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.


                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3902
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Joanna Rae Dungy

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                              Submitted: May 4, 2016
                                Filed: May 9, 2016
                                  [Unpublished]
                                 ____________

Before WOLLMAN, BOWMAN, and MURPHY, Circuit Judges.
                       ____________

PER CURIAM.

      Joanna Rae Dungy directly appeals the district court’s1 judgment revoking her
supervised release and sentencing her to two months in prison and three years of

      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
supervised release with a special condition that she reside in a residential re-entry
program for up to 120 days following her incarceration. On appeal, Dungy argues
that the court lacked statutory authority to order placement in the residential re-entry
program and that the court abused its discretion in imposing this condition.

       After careful review, this court affirms. See 18 U.S.C. § 3583(d) (court may
order special release condition that is reasonably related to 18 U.S.C. § 3553(a)
factors, involves no greater deprivation of liberty than reasonably necessary, and is
consistent with policy statements); United States v. Wiedower, 634 F.3d 490, 493
(8th Cir. 2011) (court has broad discretion when imposing release conditions; when
crafting special condition, court must make individualized inquiry into facts and
circumstances underlying case and make sufficient findings on record so as to ensure
condition satisfies statutory requirements).

      The judgment is affirmed, and counsel’s motion to withdraw is granted.
                     ______________________________

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