         11-1365-ag
         Phuntsok v. Holder
                                                                                BIA
                                                                                Hom, IJ
                                                                               A089 249 906
                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 10th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                    Circuit Judges.
11       ______________________________________
12
13       PHUNTSOK PHUNTSOK,
14                Petitioner,
15
16                            v.                                11-1365-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                    Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:                    Tony West, Assistant Attorney
26                                          General; Anthony C. Payne, Senior
27                                          Litigation Counsel; Tiffany L.
28                                          Walters, Trial Attorney, Office of
29                                          Immigration Litigation, Civil
30                                          Division, United States Department
31                                          of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED.

 5       Petitioner, Phuntsok Phuntsok, a native of Nepal, seeks

 6   review of a March 21, 2011, decision of the BIA affirming

 7   the February 23, 2009, decision of Immigration Judge (“IJ”)

 8   Sandy K. Hom denying his application for asylum, withholding

 9   of removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Phuntsok Phuntsok, No. A089 249 906 (B.I.A.

11   March 21, 2011), aff’g     No. A089 249 906 (Immig. Ct. N.Y.

12   City Feb. 23, 2009).     We assume the parties’ familiarity

13   with the underlying facts and procedural history of the

14   case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified by the BIA, i.e. minus his

17   finding that Phuntsok was not credible.     See Xue Hong Yang

18   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

19   The applicable standards of review are well-established.

20   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

21   F.3d 510, 513 (2d Cir. 2009).

22

23

                                     2
 1   I.   Asylum

 2        To meet the definition of “refugee” and thus establish

 3   eligibility for asylum, an applicant must first establish

 4   his nationality, or lack of nationality.     See 8 U.S.C.

 5   § 1158(b)(1)(A), (B); 8 C.F.R. § 1208.13(a) (placing the

 6   burden of proving refugee status on the applicant);

 7   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d

 8   Cir. 2006).     Here, the agency’s finding that Phuntsok failed

 9   to establish his identity is supported by substantial

10   evidence.

11        Phuntsok argues that the IJ arbitrarily afforded

12   minimal weight to the documents he proffered to establish

13   his Tibetan ethnicity and Chinese citizenship, including

14   various letters from New York offices of Tibetan

15   organizations.     However, as the IJ noted, Phuntsok acquired

16   these documents from satellite offices in the United States

17   after he had left Nepal.     Moreover, the majority of the

18   documents provided conclusory affirmations of Phuntsok’s

19   Tibetan ethnicity, without mention of the basis upon which

20   the authors confirmed his ethnicity, while the letters from

21   the Office of Tibet and the Nechung Foundation were based on

22   his Green Book, which post-dated his arrival in the United

23   States.     The IJ, therefore, reasonably afforded minimal

                                     3
 1   evidentiary weight to the evidence of Phuntsok’s Tibetan

 2   ethnicity.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

 3   F.3d 315, 342 (2d Cir. 2006) (holding that the weight

 4   afforded to the applicant’s evidence in immigration

 5   proceedings lie largely within the discretion of the IJ);

 6   Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214-15 n.5

 7   (B.I.A. 2010) (holding that “the failure to attempt to prove

 8   the authenticity of a document . . . is significant,”

 9   particularly when the document in question was apparently

10   obtained for removal proceedings rather than a

11   contemporaneously created record of a past event).

12       The IJ also reasonably afforded greater weight to

13   Phuntsok’s I-94 Arrival-Departure Card and U.S. religious

14   worker visa, which list his citizenship as Nepalese, because

15   they were issued by a government agency only after Phuntsok

16   established his identity as Nepalese to that agency.    See

17   Xiao Ji Chen, 471 F.3d at 342.    Although Phuntsok submitted

18   letters from his wife and friend asserting that the Nepalese

19   passport he obtained the visa with was fraudulent, the IJ

20   reasonably gave little weight to the letters because they

21   were unsworn.   See id.

22       Phuntsok also argues that the IJ erred by giving less

23   weight to the copy of his Household Registry Booklet, which

                                   4
 1   indicated that he was a resident of China, because he failed

 2   to submit the original Booklet.      The copies, however, were

 3   not separately certified as required.         See 8 C.F.R. § 287.6.

 4   Even assuming that the copy did not need to be certified,

 5   the IJ reasonably afforded less weight to the copy because

 6   Phuntsok testified that he had the original in Nepal, which

 7   his wife also asserted in her letter, yet did not explain

 8   why he only submitted copies.       See id.

 9       Furthermore, contrary to Phuntsok’s assertion, the IJ

10   was not required to advise him of the need for additional

11   corroborating evidence prior to rendering his decision.         See

12   Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009)

13   (noting that immigration judge may not have the opportunity

14   to assess totality of evidence after all evidence is

15   submitted and alien may seek a remand to explain absence of

16   corroborating evidence).   The IJ also reasonably found that

17   numerous documents were reasonably available to him,

18   including an identity card from China for him or his family,

19   letters from siblings and parents that his wife, who was in

20   contact with his family, could have obtained, and documents

21   evidencing his travel from Tibet to Nepal, all of which

22   Phuntsok did not attempt to attain.      Accordingly, the

23   agency’s conclusion that Phuntsok failed to establish his

                                     5
 1   alleged Tibetan nationality is supported by substantial

 2   evidence.

 3   II. Withholding of Removal and CAT Relief

 4       Eligibility for withholding of removal and CAT relief

 5   does not depend on the alien’s nationality.   Rather,

 6   withholding of removal is granted with reference to a

 7   specific country to which an alien may be removed.      See

 8   8 U.S.C. § 1231(b)(3)(A) (“[T]he Attorney General may not

 9   remove an alien to a country if the Attorney General decides

10   that the alien’s life or freedom would be threatened in that

11   country [on account of a protected ground].”); see also

12   Matter of I-S- & C-S-, 24 I. & N. Dec. 432, 434 (BIA 2008)

13   (“[A] grant of withholding does not prevent the DHS from

14   removing an alien to a country other than the one to which

15   removal has been withheld.”).

16       Here, the IJ ordered Phuntsok removed to Nepal, and

17   because Phuntsok did not allege that he was harmed or would

18   be harmed in Nepal, substantial evidence supports the

19   agency’s denial of withholding of removal.    See Yanqin Weng,

20   562 F.3d at 513.   Similarly, the agency’s denial of CAT

21   relief was not in error because Phuntsok’s CAT claim was

22   based on the same factual predicate as his claim for

                                     6
 1   withholding of removal.   See Paul v. Gonzales, 444 F.3d 148,

 2   155-56 (2d Cir. 2006).

 3       For the foregoing reasons, the petition for review is

 4   DENIED.   As we have completed our review, any stay of

 5   removal that the Court previously granted in this petition

 6   is VACATED, and any pending motion for a stay of removal in

 7   this petition is DISMISSED as moot.    Any pending request for

 8   oral argument in this petition is DENIED in accordance with

 9   Federal Rule of Appellate Procedure 34(a)(2), and Second

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13

                                    7


88 F.3d 136
1996 Copr.L.Dec. P 27,536, 39 U.S.P.Q.2d 1367
Eddie PALMIERI, Plaintiff-Appellant,v.John DEFARIA;  Rafael Padilla;  Randy Barlow;  Teddy Mulet;Mike Scaglione and Robert Rodriguez, Defendants,Gloria Estefan;  Sony Music Entertainment Inc.;  EpicRecords, a division of Sony Music EntertainmentInc., et al., Defendants-Appellees.
No. 1403, Docket 95-7660.
United States Court of Appeals,Second Circuit.
Argued May 6, 1996.Decided July 5, 1996.

Brian D. Caplan, New York City (Goodkind Labaton Rudoff & Sucharow LLP, Mark S. Arisohn, Jonathan Gardner, of Counsel), for Plaintiff-Appellant.
L. Peter Parcher, New York City (Parcher & Hayes, P.C., Jonathan Liebman, Orin S. Snyder, Jeffrey I. Carton, of Counsel), for Defendants-Appellees.
Before FEINBERG, CABRANES and PARKER, Circuit Judges.
FEINBERG, Circuit Judge:

1
Plaintiff Eddie Palmieri appeals from a judgment of dismissal entered in the United States District Court for the Southern District of New York, Richard Owen, J., in favor of defendants-appellees, the singer-composer Gloria Estefan and the entertainment companies that distribute Estefan's music.   Ultimately Palmieri seeks review of the district court's in limine ruling excluding certain evidence.   For the reasons stated below, we decline to review the merits of that ruling.

I. Background

2
In May 1991, Palmieri filed his complaint claiming copyright infringement in violation of 17 U.S.C. § 106.   Palmieri is a co-owner of the copyright in the song "Paginas De Mujer."   Palmieri alleged that Estefan's song "Oye Mi Canto" is substantially similar to "Paginas De Mujer," and he sought to prove that prior to composing "Oye Mi Canto," Estefan had access to "Paginas De Mujer."

3
In May 1995, defendants moved in limine "to exclude certain areas of [Palmieri's] proposed evidence" on the issue of Estefan's access to Palmieri's song.   In an unpublished Memorandum Opinion, dated June 2, 1995, Judge Owen granted the motion in part and denied it in part.   The judge determined that Palmieri's proposed evidence of radio air play of his song, including royalty statements based on estimated air play, was insufficient as a matter of law to infer access.   Judge Owen also held that (1) evidence that two associates of defendant Gloria Estefan possessed a recording of Palmieri's song and (2) testimony of Jose Estefan, Gloria's brother-in-law, that the song was played at Estefan family gatherings, were not sufficiently probative of access.

4
Additionally, defendants sought to exclude Palmieri's evidence that approximately 40,000 copies of "Paginas de Mujer" were sold nationwide prior to the time "Oye Mi Canto" was composed, and at least 2,000 copies were sold in the Miami area, where Gloria Estefan lives.   Judge Owen was "unable to assess the propriety of ... admissibility" of this evidence on the record before him.   On this issue, he "den[ied] the motion in limine and await[ed] the proffer of evidence, subject to a possible motion to strike."   Thus, the district court expressly preserved for trial, albeit conditionally, Palmieri's evidence of access based on the alleged "wide dissemination" of his song through record sales.

5
Palmieri was also prepared to offer evidence that he was a leader in the development of salsa music and had won five Grammy awards, and that Cheo Feliciano (Palmieri's lead singer) was extremely popular.   He further alleged that Emilio Estefan, Gloria's husband, had stated that he and his wife were both "big fans" of Palmieri's music.   Palmieri argued, based on Fisher-Price Toys v. My-Toy Co., 385 F.Supp. 218, 220 (S.D.N.Y.1974), that Gloria Estefan's professional interest in salsa music, Palmieri's status in the field and the availability of his song allowed an inference that Estefan had a reasonable opportunity to copy his song.   Judge Owen did not rule on the admissibility of this additional evidence.

6
The judge filed his opinion on June 2, 1995.   On June 5, the parties appeared for trial.   At that time, Palmieri's counsel requested a stay of trial so that Palmieri could take an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), of the court's evidentiary ruling three days earlier.   This request was denied.   Palmieri's counsel then apparently attempted to have the judge rule against him and exclude Palmieri's evidence of record sales.   Presumably Palmieri's strategy at this point was to have the court exclude all of his evidence, determine that his evidence was insufficient as a matter of law and enter a final appealable judgment against him.   This request was denied because the evidence of record sales alone may have been sufficient to sustain a jury finding of access.   The district court explained as follows:

7
If I heard what your total proof was on record sales you might make it....  The record on this is sketchy.   We haven't had the witnesses on the stand.   We don't know who sold what, where.   We haven't heard anybody cross-examined.   I am sympathetic to your posture, but I don't want the Court to be put in the position of making a ruling on the record that I can not say would support either way, which is exactly why I came out saying that one, give it a shot.

8
Palmieri's counsel informed the court that Palmieri still felt he had insufficient evidence to proceed to trial and would permit judgment to be entered against him.   He did not specifically ask for a voluntary dismissal under Fed.R.Civ.P. 41(a), but he did indicate that he wanted a final judgment entered so that he could appeal the in limine evidentiary ruling.   Defendants stated that they would not consent to a voluntary dismissal.   However, they encouraged the court to enter a final judgment against Palmieri, although they did not formally move for an involuntary dismissal under Fed.R.Civ.P. 41(b) based on Palmieri's failure to prosecute.

The following colloquy ensued:

9
THE COURT:  Again, though, let me be sure that the foundation for it is there....  I did not in effect make a ruling that you do or do not have other evidence that is sufficient.   All I did was rule on what was challenged by those motions, and reached the rulings that I did and the opinion was filed.   What steps go forward from that under the circumstances, as you've now put it on the record, that obviously is for you as a party to determine.

10
...

11
[PALMIERI'S COUNSEL]:  And we intend to seek appellate review of [the in limine ruling], and as we discussed in chambers, rather than permit an interlocutory appeal, your Honor said that we have the right to enter judgment here and take an appeal from the ruling.

12
THE COURT:  No, I didn't say that.   The problem is we are here ready for trial.   There is a jury panel waiting across the street from whose members the jury would be selected.   We are ready for trial, and in effect, I take it the defendant is on record as being ready for trial, correct?

13
[DEFENDANTS' COUNSEL]:  We're ready, your Honor.

14
THE COURT:  And the plaintiff is saying, given those rulings and your assessment of what's left over, you do not believe you could prevail and, therefore, you are so announcing to the Court that you are not ready.   Therefore, given the fact that the case is otherwise ready, I am in the position of having to say, since you don't proceed, I find for the defendant.   That's what it amounts to.

15
[PALMIERI'S COUNSEL]:  As long as it's understood that we're not waiving our appellate rights, your Honor.

16
THE COURT:  I understand that whatever appellate rights you have you continue to possess, but you possess it against a certain framework, which is that we're here ready for trial, and you say that rulings that I made, in your view, mean that you couldn't prevail, and, therefore, you do not want to go forward....  Nevertheless, the fact is we're here ready to take whatever proof you want to offer, and you are saying, I do not choose to go forward, given my assessment of the case.

17
The judge then entered a judgment of dismissal against Palmieri, stating in the judgment that "Defendants announced themselves ready for trial.   Plaintiff declined to proceed to trial."

18
Palmieri then appealed to this court.

II. Discussion

19
Palmieri's notice of appeal indicates that he is appealing from the judgment of dismissal.   However, he states in his brief to us that the issue on this appeal is "[w]hether ... the District Court improperly excluded, prior to trial, individual items of circumstantial evidence of access...."  Defendants contend that because Palmieri's claim was dismissed for failure to prosecute, the dismissal may only be reviewed for an abuse of discretion, and we may not substantively review the in limine evidentiary ruling.   Palmieri responds that we may review that ruling on the merits because the judgment was a voluntary dismissal, which he solicited after the in limine evidentiary ruling effectively dismissed his case.

20
This appeal illustrates the problems that arise when a party tries to evade the final judgment rule.   In the federal system, parties may appeal ordinarily only from "final decisions of the district courts."  28 U.S.C. § 1291.   An in limine evidentiary ruling does not constitute a final ruling on admissibility, Luce v. United States, 469 U.S. 38, 41-42, 105 S.Ct. 460, 463-64, 83 L.Ed.2d 443 (1984), and an appeal of such an order is barred.  Coursen v. A.H. Robins Co., 764 F.2d 1329, 1342 (9th Cir.), corrected by 773 F.2d 1049 (9th Cir.1985).   The rationale underlying this rule was stated in Luce, in which the Supreme Court held that a defendant must testify at trial in order to appeal an in limine ruling allowing the use of impeachment testimony:

21
Any possible harm flowing from a district court's in limine ruling ... is wholly speculative.   The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the ... proffer.   Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.

22
469 U.S. at 41-42, 105 S.Ct. at 463-64;  see also Coursen, 764 F.2d at 1342.   The rule is a practical one.   There is no reason to spend scarce judicial resources reviewing a decision that may be changed due to developments at trial.

23
In this case, after the district court refused to certify an interlocutory appeal of its in limine evidentiary ruling, Palmieri sought to obtain appellate review of the ruling by having a judgment entered against him.   However, as we recently stated in Chappelle v. Beacon Communications, 84 F.3d 652, 654-55 (2d Cir.1996):

24
If a litigant could refuse to proceed whenever a trial judge ruled against him, wait for the court to enter a dismissal [pursuant to Rule 41], and then obtain review of the judge's interlocutory decision, the policy against piecemeal litigation and review would be severely weakened.   This procedural technique would in effect provide a means to avoid the finality rule embodied in 28 U.S.C. § 1291.

25
(quoting Dannenberg v. Software Toolworks, 16 F.3d 1073, 1076-77 (9th Cir.1994)) (internal quotations omitted, brackets added by Chappelle ).

26
With these general principles in mind, we turn to the propriety of the district court's judgment dismissing the complaint.   We note that it is somewhat unclear whether the district court intended to grant a motion by Palmieri for a voluntary dismissal pursuant to Fed.R.Civ.P. 41(a) or dismissed this case for failure to prosecute.   As will become clear, the analysis in each situation leads to the same result.

A. Voluntary dismissal

27
Palmieri argues that the judgment in this case was a voluntary dismissal, apparently in the belief that his willingness to dismiss strengthens his argument that we should review the evidentiary ruling on the merits.   We disagree.   According to Rule 41(a)(2), a voluntary dismissal is without prejudice unless stated otherwise, and the judgment in this case is silent on the issue.  "It is well settled that a plaintiff who seeks and receives a voluntary dismissal of his action without prejudice usually cannot maintain or prosecute an appeal from the order of dismissal."  Empire Volkswagen v. World-Wide Volkswagen, 814 F.2d 90, 94 (2d Cir.1987) (internal quotation marks and citation omitted);  see also Chappelle, 84 F.3d at 654 (party precluded from appealing dismissal of some claims when balance of claims voluntarily dismissed without prejudice).   Because such a plaintiff may reinstate his action regardless of the decision of the appellate court, permitting an appeal is clearly an end-run around the final judgment rule.

28
Palmieri relies on our statement in Empire Volkswagen that a plaintiff may "appeal from a voluntary dismissal when the plaintiffs' 'solicitation of the formal dismissal was designed only to expedite review of [a prior] order which had in effect dismissed [plaintiffs'] complaint.' "  814 F.2d at 94 (quoting Raceway Properties v. Emprise Corp., 613 F.2d 656, 657 (6th Cir.1980)) (brackets added by Empire Volkswagen ).   Palmieri argues that, given the in limine evidentiary ruling and the reasoning behind it, "the District Court clearly would have determined the [remaining] record sales evidence to be not probative of access and insufficient as a matter of law after [Palmieri] rested."   Palmieri thus concludes that (1) the ruling effectively dismissed his case, and (2) under the exception to the usual rule of non-appealability noted in Empire Volkswagen, he is entitled to appeal the in limine ruling.   We are not persuaded by this argument, primarily because the district court expressly declined to take the position that arguably brings the Empire Volkswagen exception into play--that Palmieri's proof as a whole was insufficient as a matter of law.   Moreover, all of the evidentiary rulings, including those decided against Palmieri, were subject to change at trial in the district court's discretion.   Therefore, it cannot be said that Palmieri was faced with a nonappealable order effectively dismissing his case.   Thus, if the dismissal here was a voluntarily dismissal under Rule 41(a), we decline to review the merits of the in limine ruling.

B. Involuntary dismissal

29
The district court's dismissal can also be fairly regarded as based upon a failure to prosecute, and defendants so characterize it.   It is somewhat ironic that defendants take this position because the scope of our review of an involuntary dismissal may be greater than our review of a voluntary one.

30
A district court may dismiss a claim with prejudice for failure to prosecute.   See Zagano v. Fordham Univ., 900 F.2d 12, 15 (2d Cir.), cert. denied, 498 U.S. 899, 111 S.Ct. 255, 112 L.Ed.2d 213 (1990) (court may deny plaintiff's motion for voluntary dismissal and then dismiss for failure to prosecute).   Such authority "is an inherent '... control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.' "  Theilmann v. Rutland Hospital, 455 F.2d 853, 855 (2d Cir.1972) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962)).   While we will review a dismissal for failure to prosecute, our review in such a case is limited to whether the dismissal was an abuse of the district court's discretion.  Link, 370 U.S. at 633, 82 S.Ct. at 1390.  "In order to properly appraise the exercise of discretion by the trial judge, we must carefully examine each case in its own factual circumstances."  Michelsen v. Moore-McCormack Lines, 429 F.2d 394, 395 (2d Cir.1970).

31
Applying that standard, it is clear that Palmieri expressly refused to proceed to trial due to the district court's adverse in limine evidentiary ruling.   Under the circumstances, the court had no real choice but to dismiss the case.   See Spain v. Gallegos, 26 F.3d 439, 455 (3d Cir.1994);  Zagano v. Fordham Univ., 900 F.2d at 15.

32
We will not review the in limine evidentiary ruling on the merits.   Any purported error in the ruling could have been addressed at trial, and Palmieri willingly gave up this option.   Cf. United States v. Miles, 889 F.2d 382, 384 (2d Cir.1989) (appellate court would not review pre-trial ruling where defendant failed to renew objection at trial and district court had informed counsel that pre-trial ruling was "for present purposes only").   The purpose of an in limine motion is "to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial."  Banque Hypothecaire Du Canton De Geneve v. Union Mines, 652 F.Supp. 1400, 1401 (D.Md.1987).   Palmieri asks us to hold that an in limine evidentiary ruling is reviewable on the merits at the instance of the party offering the excluded evidence even though that party refuses to go to trial.   If we did that, not only would we be faced with piecemeal appeals but also trial judges would be much more reluctant to grant these motions.

33
The district judge here continually showed his willingness to revisit all of his rulings depending upon how the evidence developed.   For instance, Palmieri sought to introduce royalty statements issued by Broadcast Music, Inc., a national performing rights society which collects and pays royalties to writers and publishers for the public performance of musical compositions.   Royalties are based on a formula that extrapolates an approximate amount of radio plays from a finite number of plays actually logged.   Because Palmieri did not have a witness who would testify that there was a realistic relationship between the formula and actual radio plays, the district judge excluded the evidence.   However, he made it clear that with such a witness, the evidence could be admissible.   Compare Michelsen, 429 F.2d at 396 (dismissal not an abuse of discretion where plaintiff declined to present his case at all;  if plaintiff had proceeded, district judge would have had basis for assessing importance of unavailable testimony) with Merker v. Rice, 649 F.2d 171, 175 (2d Cir.1981) (finding an abuse of discretion where it would have been "futile" for plaintiff to proceed with the trial already in process).

34
In this case, when Palmieri refused to go to trial he had evidence that approximately 40,000 copies of his song were sold nationwide, and over 2,000 were sold in the Miami area, where Gloria Estefan lives.   He also had evidence that he was an important figure in the salsa music world and that Gloria Estefan and her husband were fans.   And Palmieri was still uncovering additional evidence that bolstered his case.   Palmieri's counsel stated at the hearing on the in limine motion that he had recently discovered another album that contained Palmieri's song and that approximately 20,000 copies of that album had been sold.

35
Thus, if we treat the district court's dismissal of the action as involuntary for failure to prosecute, the dismissal was not an abuse of discretion.

36
Finally, it may be that certain interlocutory orders merge into a final judgment for failure to prosecute and may be reviewed on the merits.   Such a view could find support in two cases that neither party has cited to us:  Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176 (2d Cir.1990) (reviewing denial of class certification after plaintiff's case was dismissed under Rule 41(b) for failure to prosecute its individual claim), cert. denied, 498 U.S. 1025, 111 S.Ct. 675, 112 L.Ed.2d 667 (1991) and Allied Air Freight v. Pan American World Airways, 393 F.2d 441 (2d Cir.)  (reviewing grant of stay), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968).   But in Gary Plastic and Allied Air Freight, the prior order as a practical matter stopped the plaintiff's action altogether or could not be examined again at trial.   As stated above, this is not such a case.

37
Palmieri made clear to the district court that he sought to appeal the in limine evidentiary rulings without proceeding to trial.   However, under the circumstances, there was no course of action he could have taken that would have allowed this to occur.  "By saying that he reserved the right to appeal, the plaintiff cannot thereby make appealable an order otherwise unappealable."  Evans v. Calmar S.S. Co., 534 F.2d 519, 522 (2d Cir.1976).

38
Judgment affirmed.


451 S.W.2d 445 (1970)
Jonathan P. SHERMER et al., Appellants,
v.
Billy R. HAYNES et al., Appellees.
No. 5-5190.
Supreme Court of Arkansas.
March 16, 1970.
Rehearing Denied April 13, 1970.
Bethell, Stocks, Callaway & King, Ft. Smith, for appellants.
Sexton & Wiggins, Ft. Smith, for appellees.
HARRIS, Chief Justice.
The issue in this case is the construction of a restrictive covenant contained in a subdivision plat[1] limiting use to "residential *446 purposes only." Appellees, owners of various lots in Rockwood Terrace Addition, located within the city of Fort Smith, instituted suit against Jonathan P. Shermer, appellant herein, and owner of three lots in said addition, seeking an injunction prohibiting Shermer from making any use of the property he owned in Rockwood Terrace, other than a use for single family residential purposes. Appellant answered, setting out that he proposed to build an apartment building for residential use, and he asked that the court interpret the language of the restrictive covenants, and enter a declaratory judgment determining that he was entitled to build an apartment structure upon the property. In response to the prayer for declaratory judgment, appellees stated that such issue was moot for the reason that the court had already entered a declaratory judgment on the identical issue which Shermer sought to have relitigated; that the issue was res judicata.
On trial, the court stated that it was considering the record in Case No. 5551, styled J. P. Shermer et al. v. Billy Haynes et al., the plat and Bill of Assurance of Rockwood Terrace subdivision, the zoning ordinances of the city of Fort Smith, the proposed plans for a 36-unit apartment project which Shermer proposed to construct on the three lots that he owned, and the testimony of the parties. The court held that the principal issue, i. e., the use to which Lots 10, 11 and 12 might be put by Shermer, had been decided in Case No. 5551 adversely to Shermer, and the issue was thus res judicata. The court further held that the plat and Bill of Assurance of Rockwood Terrace, when considered in the entirety, made manifest an intent to restrict the use of the lots in the said subdivision to a single residence per lot. The court further found that appellees would suffer irreparable harm and injury if Shermer were permitted to construct the 36-unit apartment project in Rockwood Terrace. Shermer was enjoined and restrained from constructing or attempting to construct the apartment, and his prayer for a declaratory judgment was dismissed. From the decree entered in accordance with these findings, appellant brings this appeal. For reversal, it is first urged that the court erred in holding that the restrictive covenants limited development to single family residences as distinguished from other residential uses. It is then asserted that the court erred in holding that appellant was barred by the plea of res judicata.
We first discuss the second contention, and in doing so, it will be necessary to review the earlier suit. In June of 1968, Shermer and wife filed a complaint (Case No. 5551) setting out their ownership of the previously mentioned lots in Rockwood Terrace, and reciting that the board of commissioners of the city of Fort Smith had passed an ordinance which zoned the property as C-4, a classification that would permit the use of the property for commercial purposes. The complaint then asserted:
"* * * Despite the property being zoned C-4, the above plat was filed of record on November 27, 1962, establishing a restriction to the effect that said property shall be used exclusively for residential purposes. Said restriction is therefore null and void."
Shermer prayed that the court issue its decree construing the restriction on appellees' property, declaring said restriction invalid and unenforceable. In the alternative, it was prayed for judgment declaring that "the erection of a C-4 (commercial) building" was not prohibited by any restriction as to the use of said premises.[2] The lot owners in Rockwood Terrace answered, pleading that the restrictive covenants provided "all lots shall be used for residential purposes only," and asking that the complaint be dismissed. The court *447 found that the property had been zoned commercial, or C-4, before the plat for Rockwood Terrace, with its restrictive covenants, had been filed; however, the court stated:
"* * * In this instance, certainly residential is a higher standard than commercial and it must be assumed, from the action taken within its discretion, that the Board recognized the same in this instance by approving the plat with the restrictive covenants. * * *
"* * * The City Government was certainly empowered so to do and has acted within its discretion in this regard. Citizens, in reliance upon this action, have entered into contracts and undertakings between themselves and others, including lending institutions not parties to this action; so that now to say that it was a slip, or a mistake, and that the original C-4 commercial zoning applies, or takes precedence over the plat with restrictive covenants, under all of the circumstances of this case would be not only inequitable, but unjust and an abridgement of contracts, as well as undue hardship to those concerned, directly and indirectly, in this particular case."
The court held that the restrictive covenants "are hereby declared to be valid and enforceable and declared valid and enforceable as to all of the 33 lots in said Rockwood Terrace Addition to the City of Fort Smith, Arkansas, and plaintiffs are directed to pay the cost of this action."
We do not agree that the decree in Case No. 5551 barred appellant from seeking a construction of the term, "residential purposes only" in the instant litigation. What is the test in determining a plea of res judicata? In Hastings v. Rose Courts, Inc., 237 Ark. 426, 373 S.W.2d 583, this court, quoting from an earlier case,[3] said:
"`The test in determining the plea of res judicata is not alone whether the matters presented in the subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issue and might have been litigated in the former suit.' The test is not whether the matters in the second suit were actually litigated in the former suit between the parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit."
We also quoted language from the United States Supreme Court decision in Russell v. Place, 94 U.S. 606, 24 L.Ed. 214 as follows:
"It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to give this operation to the judgment it must appear either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the recordas, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered,the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. * * *"
We agree with appellant that the issue in No. 5551 was whether the zoning ordinance or the restrictive covenants controlled permissible usesnot what residential use could be made of the property. It was not necessary to define "residential purposes only"nor to determine whether the phrase meant single family residences or multiple residences. In fact, appellant was seeking to place a commercial building on the premises. The court simply held *448 that the restrictive covenants were binding, rather than the zoning ordinance, and this was the only matter adjudicated.
Relative to the first contention, let it be remembered that courts do not favor restrictions upon the utilization of land, and if a particular mode of utilization is excluded, the exclusion must clearly appear. Moore v. Adams, 200 Ark. 810, 141 S.W.2d 46. In 14 A.L.R.2d, there is an annotation upon the subject, "Multiple Residence as Violation of Restrictive Covenant." At Page 1381, we find:
"Restrictions which, without more, merely limit the use of the property to `residence' or `dwelling' purposes have generally been held not to have the effect of forbidding the erection or maintenance of multiple dwellings, the courts taking the view that such terms were directed only at the type of use to be made of the property, and not at the number of families which might make such use. However, the Michigan courts have consistently given a narrower meaning to the word `dwelling,' holding that it connoted a single-family residence."
At Page 1403, we find:
"Another common group of restrictions frequently relied upon to exclude multiple dwellings are those built about the terms `residence' or `residential purposes.' It is the weight of authority that such a restriction, in and of itself, does not prohibit use of the land for the various types of multiple dwellings, the courts frequently remarking that the effect of the term is only to limit the use of the property to living as distinguished from business or commercial uses."
Again, at Page 1404:
"The courts have consistently held that a restriction of property to `residence' or `residential' purposes does not, in the absence of some further qualification, ban the erection or maintenance of apartment houses upon the property, so long as the structures are not to be used for other than residential purposes."
It is evident that the exclusion language presently before us is rather general, the type which the courts have almost uniformly held does not restrict to single family residences. This too is commented on in the annotation at Page 1409, as follows:
"Although the courts are in substantial agreement that a restriction to `residence' purposes, standing alone, does not prohibit multiple dwellings, this unanimity disappears when the modifying terms `a,' `one,' or `a single' is prefixed to the word `residence.'[4]"
The intent to restrict the use of Rockwood Terrace to single family residences could have been clearly and unambiguously shown.
Appellees point out that one of the restrictive covenants in the present case requires that "all residences are to have a minimum of 1200 square feet of living area, exclusive of carports, garages or porches." This is the strongest circumstance, if it may be so classed, to support the argument of the appellees, since the plans for the apartment house only call for 520 square feet in a particular unit. Still, there will be considerably more than 1200 square feet of living area in the apartment building, and there is nothing in the clause which *449 calls for 1200 square feet "in each unit," or "each single residence." We, of course, are not permitted to supply the missing words.
From what has been said, it is apparent that the trial court erred in its findings. The decree is reversed, and the cause remanded for the entry of a decree consistent with this opinion.
It is so ordered.
NOTES
[1]  A plat of Rockwood Terrace was introduced into evidence, the reverse side containing the Bill of Assurance.
[2]  Under C-4, many uses were permitted, including multi-family apartments; however, Shermer was only seeking, in the litigation, the right to construct a commercial building.
[3]  Timmons v. Brannan, 225 Ark. 220, 280 S.W.2d 393.
[4]  Even then, as pointed out in the annotation at Page 1381: ¶ "There is a wide split of authority as to whether the restriction to `one,' `a' or `a single' residence, dwelling, house, or building, will effectively exclude multiples, and considerable authority may be found for either view." ¶ It is then pointed out that, when the adjective, "private," to the general terms, "dwelling" and "residence," is added, it appears that the majority of the courts are agreed that an intent to restrict the use to single-family dwellings is sufficiently shown; also, "one-family" residences or dwellings have generally been held to exclude multiples.


                           PD-0942&0943-15

                                   NO.

DAVID BLAINE McKINLEY                           §           IN THE COURT OF
                                                §
v.                                              §           CRIMINAL APPEALS              FILED IN
THE STATE OF TEXAS                              §           OF TEXAS            C0URT OF CRIMINAL APPEALS
                                                                                JUL 24 2015

                       Pro Se Motion for Extension of Time                           Abel a
                   To File Petition for Discretionary Review                                C0s a'
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       COMES NOW the Appellant/Petitioner in the above-styled and numbered cause and

respectfully moves this Honorable Court to extend the time for filing the Appellant's Petition for

Discretionary Review in this cause and in support thereof would show to the Court the

following:

       1.     The style and number of this case in the Court of Appeals, is: David Blaine

McKinley v. The State ofTexas. Appeal No. 10-14-00202-CR and 10-14-00203-CR.

       2.     The style and number of the case in the trial court is: The State of Texas v. David

Blaine McKinley. Cause No. 37611-CR and 37612-CR from the 40th Judicial District Court of

Ellis County, Texas.

       3.     The Appellant was convicted of the felony offense of Continuous Sexual Abuse

of a Child, a First Degree Felony and Indecency with a child.

       4.     Judgment was entered on April 11, 2014 and punishment was assessed at 25

years confinement in the Texas Department of Criminal Justice—Institutional Division.

       5.     The conviction was affirmed in the Court of Appeals on July 2,2015.

PRO SE MOTION FOR AN EXTENSION OF TIME TO FILE PETITION FOR DISCRETIONARY REVIEW - Page 1
        6.      The deadline for filing the Appellant's Petition for Discretionary Review in this
cause is August 1,2015.

        7.      An extension of time for a period of sixty (60) days is requested that would make
the due date August 31, 2015.

        8.      No prior request for an extension of time has been made.

        9.      The facts relied upon to show good cause for the requested extension is, as
follows: The Appellant/Petitioner was represented by court appointed counsel during the appeal
of this case to the Court of Appeals. The Appellant/Pertioner has elected to proceed pro se.
Therefore, additional time is needed for the Appellant/Petitioner to either prepare and file the
Petition pro se or to seek legal assistance in filing the Petition.

       WHEREFORE, PREMISES CONSIDERED, the Appellant /Petitioner respectfully
requests that this Honorable Court extend time for filing the Petition for Discretionary Review in
this cause to fib G^r 3 \ , 2015.

                                                Respectfully submitted,

                                                 )avid Blaine McKinlev
                                                David         McKinley
                                                TDCJ # 01926785
                                                Stiles Unit
                                                3060 FM 3514
                                                Beaumont, Texas 77705

PRO SE MOTION FOR AN EXTENSION OF TIME TO FILE PETITION FOR DISCRETIONARY REVIEW - Page 2
                              CERTIFICATE OF SERVICE

       The Appellant/Petitioner hereby certifies that a true and correct copy of the foregoing

Motion has been mailed to the District Attorney, Appellate Division, Ellis County Courthouse,

109 S. Jackson Street, Waxahachie, Texas 75165, and mailed via U.S. mail, to the Office of the

State Prosecuting Attorney, P.O. Box 12405, Capitol Station, Austin, Texas 78711, on the II

day of.TVoly , 2015.

                                           David Blaine McKinley                   T

PRO SE MOTION FOR AN EXTENSION OF TIME TO FILE PETITION FOR DISCRETIONARY REVIEW - Page3


                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 10-1439
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Leroy Laron Eason,                       *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: August 23, 2010
                                  Filed: August 23, 2010
                                  ___________

Before LOKEN, MURPHY, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Federal inmate Leroy Eason appeals the district court’s1 order denying his
motion to compel the government to move for a post-conviction sentence reduction.
After careful review, we find the district court did not abuse its discretion in denying
Eason’s motion, because he did not meet his burden of showing that the government’s
refusal to move for a sentence reduction was premised on an unconstitutional motive

      1
        The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
or was not rationally related to a legitimate government end. See United States v.
Marks, 244 F.3d 971, 975 (8th Cir. 2001).

      Accordingly, we affirm the judgment of the district court.
                     ______________________________

                                        -2-


190 F.2d 897
ACHESON, Secretary of Statev.MARIKO KUNIYUKI.
No. 12772.
United States Court of Appeals Ninth Circuit.
July 27, 1951.

J. Charles Dennis, U.S. Atty., John E. Belcher and Kenneth J. Selander, Asst. U.S. Atty., all of Seattle, Wash., for appellant.
Wirin, Rissman & Okrand, Los Angeles, Cal., for appellee.
Before MATHEWS, BONE and POPE, Circuit Judges.
PER CURIAM.

1
Counsel fail to appreciate that Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, compels the statement in this court's opinion to which appellee particularly objects.  That statement was: 'The fact, if it be a fact, that she did not intend to lose her nationality and did not know that she would lose it if she voted in these elections is immaterial.'

2
In the Savorgnan case, the court said, 338 U.S.at page 499, 70 S.Ct.at page 296: 'The petitioner's principal contention is that she did not intend to give up her American citizenship, although she applied for and accepted Italian citizenship, and that her intent should prevail.  However, the acts upon which the statutes expressly condition the consent of our Government to the expatriation of its citizens are stated objectively.  There is not suggestion in the statutory language that the effect of the specified overt acts, when voluntarily done, is conditioned upon the undisclosed intent of the person doing them.'

3
The statement that the rules there applied with respect to expatriation 'are stated objectively', was, in our view, but a brief way of stating what was said in the decision of the Court of Appeals which was affirmed in that case.  The latter court said: 'The motive for her conduct is distinguishable from her intent to act as she did.  Such motive has no bearing on the determination of this question.  Nor is the fact that she was misinformed or mistaken as to the legal consequences of her conduct of any significance here.  One cannot avoid the force of a statute by asserting a mistaken conclusion as to its sanctions or effects.  If these factors were permitted consideration, the operation of the statute would depend not upon the voluntarily performed act of becoming naturalized in a foreign state, but upon extent of the legal knowledge and the subjective intention or motivation of the person involved.  Such tests cannot be used to determine the operation of the statute.'  Savorgnan v. United States, 7 Cir., 171 F.2d 155, 159.

4
What was thus said, both by the Court of Appeals and the Supreme Court in respect to Savorgnan, was but a restatement of the ancient rule that ignorance of the law is no excuse.  Nor may facts which show no more than a possible ignorance of the legal consequences of appellee's acts be made to serve as proof of compulsion.

5
The petition for rehearing is denied.


NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

14-P-1793                                               Appeals Court

               COMMONWEALTH     vs.   ANTOINE KEENE.

               No. 14-P-1793.         March 28, 2016.

Firearms. Constitutional Law, Search and seizure, Reasonable
     suspicion. Search and Seizure, Reasonable suspicion.
     Practice, Criminal, Motion to suppress.

     This case began when two men, one of whom is the defendant,
ran out of a nightclub in Stoughton at 12:52 A.M. on April 21,
2013. When stopped by Stoughton police Officer Mark Baldner,
they said they were leaving the club because there was a fight
inside, which was true. The officer told them they could leave,
and saw them get into a Nissan Altima vehicle, the license plate
number of which he wrote down. He did not see them again.

     Approximately ten minutes later there was a shooting
outside the nightclub. The officer told Stoughton police
dispatch to issue a "be on the lookout" (BOLO) bulletin for the
Altima, requesting that it be "stop[ped] and h[e]ld."

     Although the defendant and his companion had left the scene
before the shooting occurred, the Boston police department
issued a broadcast for units to be on the lookout for a Nissan
Altima with the license plate number provided by Officer
Baldner, which was described as "coming back to 130 Cummings
Highway, [Boston] containing two occupants" and "last seen
heading northbound on route 138." The broadcast directed units
to "stop and hold for the Stoughton [police department]
regarding a shooting" and, for reasons that are unexplained in
the record, added that the occupants "should be considered armed
and dangerous."
                                                                   2

     Boston police officers saw the Altima on Radcliffe Street
in Mattapan. They stopped the car and approached it with guns
drawn, ordering its occupants to keep their hands up and make no
sudden movements. The officers secured the defendant, who had
been driving, and put him in a police car with his hands cuffed
behind his back.

     Police searched the car for a gun without success. An
officer from the K9 unit then conducted a more thorough search,
during which he lifted the armrest of the driver's side door,
which seemed to be loose and not sealed as designed. He saw a
cloth bag and the baseplate of firearm magazine. He then closed
the armrest and put his K9 partner inside the car, and the dog
alerted to the driver's side door armrest. Two firearms were
recovered.

     A Suffolk County grand jury returned indictments against
the defendant, and the defendant filed a motion to suppress. A
judge of the Superior Court allowed that motion, and the
Commonwealth filed this interlocutory appeal.

     The Commonwealth does not contend that the Stoughton police
had a reasonable basis based upon articulable facts to believe
that the defendant or his companion had committed, was
committing, or was about to commit a crime, see Terry v. Ohio,
392 U.S. 1, 21 (1968), let alone to believe that they were armed
and dangerous, see Arizona v. Johnson, 555 U.S. 323, 326-327
(2009). They left the scene of the shooting ten minutes before
the shooting took place, and there is no evidence in the record
that they had anything to do with the shooting or that they were
seen with any firearms at the nightclub. The Commonwealth
argues only that the evidence should not have been suppressed
because the Boston police officers were acting reasonably in
response to a BOLO radio report that described the defendant and
his companion as "considered armed and dangerous."

     The Commonwealth misperceives the nature of the
constitutional inquiry. Of course the Boston police officers on
the scene responded appropriately to the BOLO. Indeed, we may
assume that their response was reasonable given the incorrect
information they had been given.

     But the question whether there was a constitutional
violation, and whether the Fourth Amendment requires the
suppression of the evidence seized, requires an examination not
only of the actions of the Boston police but of the Stoughton
police as well, and not only of the police officers, but of the
                                                                3

police dispatchers. In United States v. Hensley, 469 U.S. 221
(1985), the Supreme Court addressed the question whether an
officer of a police department may make a Terry-stop1 in reliance
on a "wanted flier" issued by a neighboring police department
indicating that the defendant was suspected of robbery. The
Court upheld such a stop provided, among other things, that "the
police who issued the flier or bulletin possessed a reasonable
suspicion justifying a stop." Id. at 233. "Of course, this
requirement is equally applicable where information is
transmitted between officers by radio rather than by a wanted
flier . . ." Commonwealth v. Fraser, 410 Mass. 541, 546 (1991).
Here, where the Stoughton police department was not aware of any
articulable facts that supported a reasonable suspicion
sufficient to warrant a stop of the defendant's vehicle, that
stop violated the Fourth Amendment, and the evidence seized from
the vehicle must be suppressed.

     In light of this conclusion, we need not determine whether,
as the defendant argues, the scope of the Commonwealth's search
would have been permissible only on the basis of probable cause.

                                     Order allowing motion to
                                       suppress affirmed.

     Teresa K. Anderson, Assistant District Attorney, for the
Commonwealth.
     Rebecca Kiley for the defendant.

     1
         See Terry v. Ohio, supra.


556 F.Supp. 625 (1983)
David TARTER, et al., Plaintiffs,
v.
William RAYBUCK, et al., Defendants.
No. C81-1891A.
United States District Court, N.D. Ohio, E.D.
February 7, 1983.
*626 George B. Vasko, Akron, Ohio, for plaintiffs.
Dennis M. Whalen, G. Frederick Compton, Jr., Cuyahoga Falls, Ohio, for defendants.

MEMORANDUM OPINION
DOWD, District Judge.
The plaintiffs, David Tarter, a student at Cuyahoga Falls High School, and his parents, Dennis and Judy Tarter, filed a complaint alleging that certain of their constitutional rights were violated by five school administrators and the Board of Education of Cuyahoga Falls[1] in March of 1981. The action is brought pursuant to the provisions of 42 U.S.C. § 1983.
Neither party requested a jury. The case was tried to the Court in a bench trial and subsequently briefed by the parties.
The Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT
1. On March 3, 1981, plaintiff David Tarter was enrolled as a student in the junior class of Cuyahoga Falls High School.
*627 2. A designated smoking area has been provided for high school students in an area known as the "pit" in a parking lot adjacent to Cuyahoga Falls High School.
3. Prior to March 3, 1981, reports had been received by the Cuyahoga Falls High School Administration regarding alleged drug use and vandalism by students while located in the "pit".
4. As a result of the reports, three administrators of the high school, David Rump, as the Administrative Principal, and defendant unit principals, William Raybuck and William Spargur, met early on the morning of March 3, 1981, and assembled in concealed surveillance positions within the high school to observe student activity in the smoking pit.
5. Rump, Raybuck and Spargur observed a number of high school students passing and smoking marijuana joints or cigarettes and the exchange of money and plastic bags which appeared to contain marijuana cigarettes or joints.
6. The plaintiff, David Tarter, was observed by defendants Raybuck and Spargur while standing in a circle of students to smoke a marijuana joint and to exchange a plastic bag and money with another Cuyahoga Falls student, Michael Cosner.
7. As a result of the observations, the defendants Rump, Raybuck and Spargur went to the pit simultaneously and directed a number of students, including the plaintiff, into the high school building.
8. Some of the students were questioned first by high school officials and then searched by police officials who arrived at the request of the high school officials.
9. David Tarter was taken to the high school clinic and questioned by the defendants Raybuck and Spargur regarding his activity in the smoking pit. Raybuck detected the odor of marijuana on the breath of David Tarter.
10. Prior to the confrontation of Tarter, the defendant William Spargur met with and questioned Michael Cosner after retrieving a marijuana joint in the area of the smoking pit, which Cosner had thrown away as Spargur approached. Cosner claimed that he had purchased marijuana cigarettes while in the smoking pit from a student whom he identified from the school yearbook as the plaintiff Tarter.
11. The defendant Spargur informed the defendant Raybuck of his conversation with Cosner prior to the Tarter confrontation.
12. Raybuck, upon confronting the plaintiff Tarter, advised Tarter of what Raybuck had seen including the Tarter-Cosner exchange and the receipt of subsequent information that Tarter had been the seller in the Tarter-Cosner exchange. Raybuck advised Tarter that they wanted to conduct a search of Tarter.
13. Tarter voluntarily complied with the request of William Raybuck and produced the contents of his pockets and boots which disclosed no evidence of marijuana.
14. In an earlier confrontation on the morning of March 3, 1981, the defendant William Spargur was handed a plastic bag of marijuana cigarettes concealed under the trousers of student Dave Richardson who had been seen engaging in an exchange of what appeared to be marijuana cigarettes with a student in a transaction separate from the Tarter-Cosner exchange.
15. Prior to the Spargur-Raybuck-Tarter confrontation in the clinic, William Raybuck was present when an officer of the Cuyahoga Falls Police Department began a search of Greg Kmet, another student observed smoking marijuana in the pit on March 3, 1981. The police officer asked Kmet to unbutton his pants. After Kmet complied, with some hesitation, and lowered his pants, the police officer and Raybuck observed a big bulge in his underwear which was patted by the police officer with ensuing crinkling-like paper sound. At that point Kmet stated, "You're not searching me any more," and bolted from the school with the police officer in pursuit.
16. Against the background of the Richardson-Kmet discoveries, Raybuck and Spargur requested Tarter to unfasten and lower his trousers for inspection. However, the plaintiff David Tarter refused to comply *628 with the request. Raybuck and Spargur ceased their search and requested that the Cuyahoga Falls Police Department be requested to return to the school.
17. Following the observations by the principals of the students in the pit and prior to the confrontation of Tarter by Spargur and Raybuck, the defendant William Raybuck notified plaintiff Judy Tarter, the mother of David Tarter, of the observations in the pit and requested Mrs. Tarter come to the high school.
18. Dennis and Judy Tarter, parents of David Tarter, arrived at Cuyahoga Falls High School after the plaintiff David Tarter advised defendants Raybuck and Spargur that he would not permit a search of his trousers.
19. Dennis and Judy Tarter were taken to the high school clinic where David Tarter and defendants Raybuck and Spargur were located. The group was joined by the defendants Rump and Rovnyak.
20. While the plaintiffs and the defendants Raybuck, Spargur, Rovnyak and Rump were in the clinic, a discussion ensued concerning the occurrences on March 3, 1981.
21. The plaintiffs were advised that the Cuyahoga Falls Police Department had been summoned. The plaintiffs announced they were leaving the building. The plaintiffs were requested to wait but refused and immediately left the premises without interference from any of the defendants.
22. During the 1980-1981 school year, the Cuyahoga Falls City School District Board of Education had in effect a code of student conduct and discipline procedure which was made known to students in the Cuyahoga Falls High School. Under that code, the possession and/or use of drugs was prohibited and subject to suspension and/or expulsion action. The adoption and enforcement of the conduct code and discipline procedure was pursuant to and in compliance with Sections 3313.66 and 3313.661, Ohio Revised Code.
23. On March 3, 1981, David Tarter was suspended from school for ten (10) days for possession and/or use of marijuana based upon the observations of Defendants Raybuck, Spargur and Rump and the detectible odor of marijuana on the breath of David Tarter as observed by Defendant Raybuck.
24. Subsequent to the morning of March 3, 1981, David Tarter was suspended and ultimately expelled from attendance at the Cuyahoga Falls High School for the remainder of the semester for sale or purchase of drugs, use of marijuana, habitual truancy, and extensive discipline record for the 1980-1981 school year.
25. On April 1, 1981, a hearing was held before the Cuyahoga Falls City School District Board of Education on David Tarter's appeal of the expulsion decision of the Superintendent. After hearing all of the evidence presented by the Administration of the Cuyahoga Falls High School, Dennis and Judy Tarter, and their attorney, the Board of Education upheld the expulsion decision of the Superintendent. David Tarter neither attended nor testified at the expulsion appeal hearing.
26. David Tarter has not enrolled in the Cuyahoga Falls School District or any other school district after the expiration of the term of his expulsion.
27. The defendants throughout the events described above acted under the color of state law.
28. Other than for the fact of the plaintiff David Tarter's expulsion from the second semester of the 1980-81 school year, the damages suffered by the plaintiffs were nominal in nature.

CONCLUSIONS OF LAW
1. The search of a student conducted by and at the request of a high school principal does not constitute an infringement of a constitutionally protected right of the student where the student consents to the search.
2. The plaintiff David Tarter having consented to the search conducted by and at the request of defendants Raybuck and Spargur, principals of Cuyahoga Falls High School, the ensuing search did not violate a constitutionally protected right of the plaintiff David Tarter.
*629 3. The search of David Tarter conducted by the defendants Raybuck and Spargur following Raybuck and Spargur's observations of the activities in the pit and the declarations of Tarter's fellow student, Michael Cosner, was reasonable in the context of Fourth Amendment constraints. See Horton v. Goose Creek Independent School District, 677 F.2d 471, 483 (5th Cir.1982).
4. The request of the defendants Raybuck, Spargur and Rump that the plaintiffs remain in the high school clinic did not constitute false imprisonment as the mobility of the plaintiffs was not impeded or hindered, nor did the defendants act in any manner which would have reasonably given rise to the belief on the part of one or more of the plaintiffs that their mobility was impeded or hindered.
5. The expulsion of the plaintiff David Tarter from the balance of the second semester in the school year 1980-81 at Cuyahoga Falls High School was in compliance with due process of law and the provisions of R.C. § 3313.66 et seq.
6. The plaintiffs failed to prove any conduct on the part of any of the defendants that would support a judgment for either compensatory or punitive damages.

CONTINUATION OF OPINION
The decision of the administrators of Cuyahoga Falls High School to employ self help in an attempt to abate rumored illegal drug activity on the school grounds resulted in the expulsion of numerous students including the plaintiff David Tarter. Subsequently, the plaintiffs began this action claiming that conduct of the administrators violated their constitutional rights. First the plaintiffs challenged the search of David Tarter as constituting a violation of his Fourth Amendment right to be free from an unlawful search and seizure. Secondly, the plaintiffs claimed they were falsely imprisoned while located in the high school clinic with several of the administrators. Finally, the complaint challenged, on constitutional grounds, the procedure by which David Tarter was expelled from Cuyahoga Falls High School for the balance of the second semester of his junior year.
At trial, no attempt was made to attack the expulsion procedures. Rather, the plaintiffs prosecuted claims of an unconstitutional search of the student-plaintiff, David Tarter, and the false imprisonment of all three plaintiffs.
With respect to the claim of the violation of David Tarter's Fourth Amendment rights, this Court has found, as set forth in the findings of fact, that the plaintiff David Tarter freely and voluntarily consented to a search of his person to the extent that a search was conducted. But assuming arguendo that the plaintiff David Tarter was intimidated by the presence of his high school principals to consent involuntarily to the search, such a finding would not render the search unconstitutional without further inquiry. Rather, under such circumstances, the issue would be whether the decision of the high school principals to undertake the search of plaintiff, David Tarter, on the morning of March 3, 1981, was, under all the circumstances, as known by the defendant-principals Raybuck and Spargur, reasonable in the context of Fourth Amendment constraints. Horton v. Goose Creek Independent School District, 677 F.2d 471 (5th Cir.1982), at page 483 addresses the issue of the interplay between the Fourth Amendment rights of the student and the duties and powers of teachers and school administrators with respect to searches of students on school premises. The Court stated:
... The basic concern of the fourth amendment is reasonableness, and reasonableness depends on the circumstances. Often the ordinary requirements of the fourth amendment are modified to deal with special situations .... [Citations omitted] The public school presents special circumstances that demand similar accommodations of the usual fourth amendment requirements. When society requires large groups of students, too young to be considered capable of mature restraint in their use of illegal substances or dangerous instrumentalities, to congregate *630 in the public schools, it assumes a duty to protect them from dangers posed by anti-social activities  their own and those of other students  and to provide them with an environment in which education is possible. To fulfill that duty, teachers and school administrators must have broad supervisory and disciplinary powers. At the same time, though, we must protect the fourth amendment rights of students ....
When the school official acts in furtherance of his duty to maintain a safe environment conducive to education, the usual accommodation is to require that the school official have "reasonable cause" for his action .... 677 F.2d at 483-84.
Applying the test of Horton, supra, to the facts at hand, it is apparent that the defendants Raybuck and Spargur, acting as high school principals with responsibility for the control and discipline of the students at Cuyahoga Falls High School, and taking into consideration all of the information that they had acquired prior to their attempt to commence a search of David Tarter, acted reasonably in connection with the search of David Tarter on March 3, 1981. Consequently, even assuming the absence of David Tarter's consent to the search of his person to the extent that a search was conducted, his Fourth Amendment constitutional rights were not violated by defendants Raybuck and Spargur. The action of Raybuck and Spargur was reasonable in view of the following circumstances. They had observed Tarter to engage in what reasonably appeared to be the smoking of a marijuana cigarette. They had observed an exchange between Tarter and Cosner of money and what appeared to be a package of marijuana cigarettes. Cosner had identified Tarter as the person selling him marijuana. Raybuck had smelled the odor of marijuana on Tarter's breath. Raybuck and Spargur each observed that other Cuyahoga Falls high school male students had concealed containers of marijuana cigarettes in their trousers or underwear. Under such circumstances, and given the duties and responsibilities of Spargur and Raybuck as principals of the high school, their decision to undertake the search of David Tarter to determine whether in fact he had concealed marijuana on his person was reasonable in the context of Fourth Amendment rights enjoyed by Tarter.
The plaintiffs' claim of false imprisonment relates to the presence of the three plaintiffs in the high school clinic at a time when the defendants, Rump, Raybuck and Spargur, were also present. The plaintiffs testified that the principal, Mr. Rump, stood next to the exit door from the clinic, and by so doing, blocked the only exit available to the plaintiffs to leave the clinic. However, when directly confronted, David Tarter stated that Mr. Rump did not resist the departure of the plaintiffs. Mrs. Tarter also testified with respect to the alleged detention as follows:
A. I felt very strained, far as  Mr. Rump was the only thing blocking the door, and I felt I could get out.
Q. So you had no problem leaving?
A. No. I knew with my husband there, I would be able to leave, yes.
Q. Once your husband announced you were leaving, there was no further attempt to make you stay?
A. No, he just kind of pushed Mr. Rump aside and we walked out. (Tr. 46; 47)
Supplementing the testimony of the plaintiffs is the testimony of the defendants Raybuck, Spargur, Rovnyak and Rump, all of which indicates at no time were the plaintiffs subjected to false imprisonment. The plaintiffs' claim of false imprisonment is patently without merit.
Judgment is awarded the defendants with respect to the plaintiffs' claims.

DEFENDANTS' COUNTERCLAIM
The defendants have brought a counterclaim seeking reasonable attorney fees and costs under the provisions of the Civil Rights Attorney's Fees Awards Act of 1976 (Act), 42 U.S.C. § 1988, Pub.L. No. 94-559 (Oct. 19, 1976), 90 Stat. 2641, as amended *631 (not in regard to fees in § 1983 cases) by Pub.L. 96-481 (Oct. 21, 1980), 94 Stat. 2330.
In relevant part, 42 U.S.C. § 1988 provides:
In any action or proceeding to enforce a provision of sections 1981, 1982, [or] 1983 ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. (Emphasis added.)
It is readily apparent that the defendants are the "prevailing party" in this action. Consequently, the question is whether the Court should, in the exercise of its discretion, allow reasonable attorneys fees.
Although the terms of the Act suggest that a defendant, as the prevailing party, is entitled to reasonable attorney's fees, the statute has been interpreted to set a higher standard for an award of attorney's fees to a defendant. The Senate Report on the Act stated that:
It is intended that the standards for awarding fees be generally the same as under the 1964 Civil Rights Act.... [Plaintiffs] should not be deterred from bringing good faith actions to vindicate the fundamental rights here involved by the prospect of having to pay their opponent's counsel fees should they lose. Such a party, if unsuccessful, could be assessed his opponent's fee only where it is shown that his suit was clearly frivolous, vexatious, or brought for harassment purposes...."
S.Rep. No. 94-1011, 94th Cong., 2d Sess., U.S.Code Cong. & Admin.News 1976, pp. 5908, 5912 (June 29, 1976) (emphasis added, footnotes and citations omitted). This passage indicates that Congress intended to award attorney's fees to a defendant only where the suit was "clearly frivolous, vexatious, or brought for harassment purposes." Further, this passage indicates that Congress intended for the standards developed in Title VII litigation to apply to the award of attorney's fees under § 1988. See Green v. Ten Eyck, 572 F.2d 1233, 1243-44, n. 11 (8th Cir.1978). In the leading decision discussing an award of attorney's fees to a defendant in a Title VII action, the Supreme Court stated:
[A] district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith ... or that the plaintiff continued to litigate after it clearly became so.
Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 421-22, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978).
Upon review of the evidence in this case in light of these standards, the Court finds that this action was "frivolous, unreasonable, or without foundation ...." Therefore, the Court concludes that the defendants are entitled to recover their reasonable attorney's fees under the provisions of 42 U.S.C. § 1988. An analysis of the evidence supporting this conclusion follows.
Pursuant to R.C. 3313.66 et seq., the plaintiff parents appealed the expulsion to the Board of Education of Cuyahoga Falls. Considerable testimony was taken with respect to that appeal. See Exhibit H. A study of the record of the expulsion hearing before the Board of Education fails to reveal any factual basis to warrant the filing of a complaint alleging conduct on the part of the defendants actionable under 42 U.S.C. § 1983.
The plaintiffs' complaint prayed for relief including an order from this Court compelling the defendant school board and defendant school administrators to permit the plaintiff David Tarter to reenter Cuyahoga Falls High School. The complaint was filed in September of 1981 after David Tarter, as a matter of law, was eligible to return to school because his expulsion was for only the semester, consistent with the provisions of Ohio Revised Code § 3313.66. The fact that the expulsion was for only the period of a semester was clearly indicated by a letter mailed to the plaintiffs following the expulsion. See Exhibit 5. Nonetheless, the student David Tarter made no attempt to reenter Cuyahoga Falls High School. His *632 parents failed to make any inquiry on behalf of David Tarter calculated to bring about his reentry into Cuyahoga Falls High School. The defendants took no action which in any way could have been construed as an attempt to prohibit David Tarter from returning to Cuyahoga Falls High School.
It is without dispute that the search of David Tarter on the morning of March 3, 1981, ceased immediately upon his revocation of the consent that he had earlier given to a search of his person. David Tarter has never maintained to the contrary. The claim that David Tarter and his plaintiff parents were wrongfully detained in the high school clinic is patently without merit.
Accordingly, the Court grants judgment to the defendants on their counterclaim for reasonable attorney's fees. The Clerk of this Court is directed to schedule a hearing with notice to all parties for the purpose of allowing the defendants to introduce evidence with respect to their reasonable attorney's fees and costs and also for the purpose of permitting the three plaintiffs to offer evidence with respect to whether reasonable attorney's fees should be assessed against all three plaintiffs equally or in some other manner.
NOTES
[1]  The motions for a directed verdict at the conclusion of the plaintiffs' case by Dr. Wilson, the superintendent of the school system and Miss Rovnyak and the Board of Education were sustained.


23 Mich. App. 64 (1970)
178 N.W.2d 106
PEOPLE
v.
SIMON
Docket No. 6,779.
Michigan Court of Appeals.
Decided March 30, 1970.
Rehearing denied May 4, 1970.
*65 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Stephen F. Osinski, Assistant Prosecuting Attorney, for the people.
I. Goodman Cohen, for defendant.
Before: LESINSKI, C.J., and QUINN and V.J. BRENNAN, JJ.
PER CURIAM.
October 1, 1968, defendant was tried by a jury and convicted of receiving stolen property of the value of over $100. CLS 1961, § 750.535 (Stat Ann 1970 Cum Supp § 28.803). He was sentenced and he appeals.
Defendant first contends it was reversible error to deny his motion to quash the information. The motion to quash was based on defendant's theory that the preliminary examination transcript contained no evidence of value at the time of the offense.
April 4, 1968, an Apache camping trailer was stolen. That same day defendant was caught hauling the trailer behind his automobile. He admitted he had stolen it. A qualified appraiser viewed the trailer May 21, 1968. His testimony at preliminary examination was that the trailer was worth $200 and that he had observed no new conditions or additions to the trailer when he appraised it. A police officer testified that the trailer was in police custody from April 4, 1968 to May 21, 1968.
On a motion to quash an information, a trial court must find that on the record, it was an abuse of *66 discretion for the magistrate to have bound the defendant over for trial. People v. Medley (1954), 339 Mich 486. The trial court was unable to make such a finding on the record before him, nor can we.
In the prosecuting attorney's opening statement, closing argument and also during some testimony, reference was made to the fact that defendant admitted stealing the trailer. Defendant now claims this was improper proof of a distinct offense and was reversibly erroneous.
An element of the offense charged is that defendant knew that the property received was stolen. Under CL 1948, § 768.27 (Stat Ann 1954 Rev § 28.1050), the proof and argument were proper.
Defendant has abandoned the other two issues raised on appeal.
Affirmed.


                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

No. 96-2281

                      BEN-TOVIM, AHARON,

                    Plaintiff, Appellant,

                              v.

                    YEDIOTH ISRAEL, INC.,

                     Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nancy J. Gertner, U.S. District Judge]

                            Before

                     Selya, Circuit Judge,

                  Cyr, Senior Circuit Judge,

                  and Lynch, Circuit Judge.

Ben-Tovim, Aharon on brief pro se.

Frances  S. Cohen, Anne  L. Showalter and  Hill & Barlow  on brief for

appellee, Yedioth Ahronoth, Ltd.

                        July 18, 1997

          Per Curiam.   Plaintiff-appellant  Ben-Tovim Aharom

appeals pro  se from the  denial of a postjudgment  motion to

vacate a forum non conveniens dismissal.  We affirm.

          Although the motion  to vacate did not  cite to any

rule (or other authority for bringing a collateral  attack on

the judgment),  we construe it  as a Rule 60(b)  motion.  The

motion   was   predicated   on   alleged   newly   discovered

misrepresentations  by   defendant  Yedioth   Ahronoth,  Ltd.

However,  Aharon  could  not  challenge  the  judgment  under

60(b)(2)  (newly discovered evidence)  or 60(b)(3)  (fraud or

misrepresentation)  because, under the terms of the rule, any

such motion must  be made within one year  after the entry of

judgment.   Baltia Air Lines, Inc. v. Transaction Management,

Inc.,  98  F.3d  640,  642  (D.C.  Cir.  1996);  Gonzalez  v.

Walgreens  Co., 918  F.2d  303,  305 (1st  Cir.  1990).   The

judgment of  dismissal was entered  on April 3, 1995  and the

current action was filed on June 24, 1996, more than fourteen

months later.

          In  addition,   Aharon  failed  to   demonstrate  a

60(b)(6) claim, a claim not subject to a specific limitations

period,   because   he    failed   to   show    extraordinary

circumstances.   See  Valley  Citizens for  a  Safe Env't  v.

Aldridge, 969  F.2d 1315, 1317  (1st Cir. 1992)  ("A district

court  will grant  a Rule  60(b)(6) motion  only if  it finds

'exceptional'  circumstances   that  justify   'extraordinary

                             -2-

relief.") (citation  omitted).   Most notably,  he failed  to

present  any  reason  justifying  departure from  the  normal

maximum limitation period required by 60(b)(2)  and 60(b)(3).

See Simon  v. Navon, 1997 WL 279921, at  *5 (1st Cir. June 2,

1997).  He also failed to show that his case (or  any part of

it) cannot proceed in Israel.1
                                         1

          Finally, although Aharon has  not raised the point,

we do  not think  the circumstances of  this case  sustain an

independent  action for "fraud upon the court."  Accordingly,

the  decision of  the district  court  denying the  motion to

vacate is affirmed.

   1Indeed, although  Aharon suggests  that  his invasion  of
               1
privacy claim cannot  proceed in Israel because it  is barred
by  the relevant statute of limitations, his Israeli attorney
opines that Yedioth Ahronoth, Ltd.  has waived any statute of
limitations defense.

                             -3-