Gregory Cook v. Patricia Caruso

NOT RECOMMENDED FOR PUBLICATION
File Name: 13a0697n.06
FILED
No. 11-1454 Jul 29, 2013
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

GREGORY COOK, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
PATRICIA CARUSO, et al., ) MICHIGAN
)
Defendants-Appellees. )
)

Before: MARTIN, BOGGS, Circuit Judges; COLLIER, District Judge.*

BOYCE F. MARTIN, Jr., Circuit Judge. Gregory Cook, a Michigan prisoner, filed the

underlying action pro se pursuant to 42 U.S.C. § 1983, alleging that various prison officials and

employees violated his right under the Eighth Amendment to be free from cruel and unusual

punishment. This appeal poses two issues. First, did the district court err in granting the summary-

judgment motion of defendants Patricia Caruso and Dennis Straub, Director and Assistant Director,

respectively, of the Michigan Department of Corrections? The answer is no, because Cook failed

to proffer facts showing that either of them became aware of facts from which either Caruso or

Straub could draw an inference that he faced a substantial risk of serious harm. Second, did the

district court err in dismissing his lawsuit for failure to exhaust his administrative remedies? Again,

*
The Honorable Curtis L. Collier, United States District Judge for the Eastern District of Tennessee, sitting
by designation.
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Gregory Cook v. Patricia Caruso et al.

the answer is no, because Cook’s first grievance failed to give notice to prison officials of the

problem that formed the basis of his later lawsuit, and his second grievance was time-barred.

Therefore, we AFFIRM the district court’s judgment.

Gregory Cook was diagnosed with epilepsy while serving in the United States Army, which

honorably discharged him in 2001. Cook was incarcerated in the Michigan Department of

Corrections in 2006; shortly after his arrival, the prison issued him a Special Accommodation Notice

because of his epilepsy. The Notice ordered that Cook be placed on a bottom bunk in a ground-floor

cell and was to be effective until December 2007.

The Michigan Department of Corrections transferred Cook to another prison in January 2007

and assigned him to a top bunk in a second-floor cell. Cook told prison employees Lane, Truly,

Steward, and Nobles that the prison needed to comply with the Notice, but Cook remained assigned

to a top bunk.

In February and March 2007, Cook sent three letters to Caruso, with copies to Straub,

notifying them that the prison had not complied with the Notice. In the first letter, Cook stated “I

fear for my life or serious injury due to me having grand mal seizures,” and asked Caruso to

intervene on his behalf. In the second letter, Cook stated “I fear serious injury or even death. Please

correct this matter.” In the third letter, Cook stated “I fear for my life and/or serious injury,” and he

asked Caruso to “correct this matter.” Neither Caruso nor Straub responded to any of Cook’s letters.

Also in February and March, both Cook’s girlfriend and his mother called Caruso’s and

Straub’s offices to convey their concern that he had been assigned to a top bunk; someone in

Caruso’s office told both of them that the matter would be looked into.

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Then, on March 13, 2007, Cook wrote the prison health care staff to ask if the Notice was

still in effect; the staff responded in writing three days later confirming that the Notice would be in

effect until December 2007. Cook then informed prison employees Gladney and Kristenson, both

verbally and in writing, that the prison needed to assign him to a bottom bunk. The prison did not

change his bunk assignment.

On March 20, 2007, Cook suffered a grand mal seizure while on his top bunk. He fell,

hitting his head on the floor and injuring his back. About an hour after suffering the seizure, the

prison sent him in an ambulance to the hospital. X-rays were taken, which did not show that Cook

suffered any injuries. Cook alleged in his complaint, however, that his condition subsequently

worsened so that he was confined to a wheelchair.

The day after his fall, Cook filed his first grievance, in which he wrote that he wished to

grieve the prison’s healthcare department staff’s “failure to respond to a medical emergency” that

occurred the previous day. Cook wrote that he suffered from epilepsy, experienced a seizure, and

fell from the top bunk and required urgent medical attention. He alleged that the healthcare staff did

not follow the prison’s directives because “it took approximately an hour before I was seen by my

healthcare professional[.]” Cook requested that the healthcare staff “be disciplined” in accordance

with prison rules. Cook did not, however, name the healthcare staff whom he alleged had violated

the directives. The prison gave Cook a receipt showing that it had received the first grievance at

Step I of the prison’s grievance procedure.

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The prison did not respond to Cook’s grievance by the date it stated on the receipt that it

would respond, so Cook moved the grievance to Step II, noting that he was moving his grievance

to Step II because the prison had failed to respond to Step I within the required time.

The prison responded to the grievance at Step II by stating that Cook alleged in his grievance

that “health care refused to respond to a seizure he experienced” on March 20, 2007. The prison

explained that its review of the record revealed that Cook was seen by a medical provider on March

20, 2007. The prison explained that the medical provider “ruled out to see a neurologist and to

continue Dilanti. Mr. Cook was also seen by nursing in the clinic on [March 20, 2007] for a fall and

possible Dilanti over dose. He was sent to the E.R.” In the section of the prison’s grievance

response form titled “Conclusion,” the prison stated that the grievance was “resolved.” The prison

did not assert that Cook had failed to comply with any of the grievance procedure’s rules.

Cook then moved the grievance to Step III; he stated that the reason for his appeal was that

both the Step I and Step II respondents “failed to respond within the required time period consistent”

with the prison’s grievance policy.

In August 2007, the prison responded to the grievance at Step III by concluding that the

grievance had been resolved because the prison treated Cook by taking him to the hospital. In its

response, the prison stated that Cook alleged “he did not receive appropriate emergency treatment

when he had a seizure and fell from the top bunk in his room.” The prison acknowledged that Cook

“did not receive a timely response at step I or step II and proceeded to step III” in accordance with

the prison’s grievance policy. Turning to the merits of Cook’s grievance, the prison stated that “[t]he

information presented upon appeal to step III has been reviewed in addition to the medical record.”

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The prison asserted that Cook “received treatment through the emergency room for injuries received

and follow up care to his seizure.” The prison explained that its “[i]nvestigation” showed that after

suffering the seizure, the prison took Cook to the emergency room where x-rays were taken with

“negative results.” The prison stated that Cook “has been appropriately placed on a bottom bunk.”

The prison concluded by stating that “[t]his matter will be addressed administratively and any

corrective action deemed necessary will be taken. No further relief can be provided. Grievance

resolved.” Again, the prison responded on the merits and did not claim that Cook had failed to

comply with any of the grievance procedures’ rules.

Then, on August 14, 2008—over a year after he fell off the top bunk—Cook filed a second

grievance at Step I. In this second grievance, Cook gave the date of incident as March 20, 2007: the

date on which he suffered a seizure and fell. In this second grievance, Cook complained that he

seriously injured his back because of the prison staff’s negligence in allowing him to remain in a top

bunk instead of assigning him to a bottom bunk. He stated that he had a doctor’s order for a bottom

bunk because of his epilepsy. He further stated that he told health care staff Gladney and Kristenson

verbally and in writing about his being placed on the top bunk, but noted that “they allowed me to

stay in this forseeable [sic] danger.” The prison denied the second grievance at Step I by asserting

that Cook had exceeded the time limit in filing it.

Cook then moved the second grievance to Step II; in doing so, Cook wrote that the prison’s

Step I response to this second grievance had failed to address Cook’s having sustained a serious

injury because of the prison staff’s failing to follow the Notice. Cook requested that the prison give

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him physical therapy or surgery to repair the damage done to his back in the fall from the top bunk.

He also asked for $45.5 million in punitive, compensatory and other damages.

The prison responded to the second grievance at Step II, summarizing Cook’s Step I

grievance as complaining that he had a doctor’s order to be on a bottom bunk, which the prison did

not follow, and that he had a seizure and fell out of the bunk injuring his back. The prison

summarized its response at Step I by stating that the grievance was untimely. The prison noted that

Cook had moved this second grievance to Step II because he alleged that he sustained a serious

injury due to staff failing to follow the medical order. The prison noted that Cook requested, in his

Step I grievance, physical therapy or surgery to repair the damage done by falling on his back from

the top bunk. The prison then summarized its Step II investigation by stating that it had reviewed

Cook’s medical record and describing the medical treatment the prison had given him. In the section

of the form titled “Conclusion,” the prison wrote “Grievance: Denied.”

Cook then moved the second grievance to Step III, stating that the prison staff’s failure to

follow the Notice had resulted in a back injury that the prison had not remedied, in violation of the

Eighth Amendment to the United States Constitution. He repeated his request for the prison to

provide him with money damages, surgery, and rehabilitation.

The prison responded by saying that it had reviewed all of the information, including

electronic medical records, and concluded that it rejected the grievance as untimely, thereby

upholding at Step III the prison’s rejection of the grievance as untimely at Step I.

Cook sued the following prison officials and employees, alleging that they violated his right

under the Eighth Amendment to be free from cruel and unusual punishment: Caruso, the Director

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of the Michigan Department of Corrections; Straub, the Assistant Director of the Michigan

Department of Corrections; Kristenson, a Corrections Department Nurse; Steward, the Assistant

Deputy Warden of Housing where Cook was incarcerated; Truly, a Resident Unit Manager at the

prison where Cook was incarcerated; Lane, an Assistant Resident Housing Supervisor; and Gladney,

a Corrections Department Nurse. Cook alleged that Caruso and Straub failed to make policy or take

corrective action to prevent predictable violations of Cook’s constitutional rights. He alleged that

the defendants were deliberately indifferent to the substantial risk that he would suffer serious injury

as a consequence of his having been assigned to a top bunk.

Defendants Caruso and Straub then moved for summary judgment, arguing that Cook had

failed to allege facts in his complaint showing that Caruso and Straub were personally involved in

the alleged wrongdoing. The defendants argued that, as a matter of law, Cook could not hold Caruso

and Straub liable under a theory of respondeat superior. To support their motion, Straub and Caruso

both averred that they had no personal involvement in the events that formed a basis for Cook’s

complaint. Caruso swore that she did not become aware of Cook’s allegations against her until she

was served with his complaint.

The defendants also moved to dismiss Cook’s complaint on the basis that Cook had failed

to exhaust the prison’s administrative remedies. The defendants argued that he failed to exhaust the

prison’s administrative remedies for three reasons: first, because, in his first grievance, he failed to

name the defendants he later sued; second, because he did not set forth a theory of recovery; and

third, because he filed the second grievance untimely—nearly seventeen months after his seizure and

fall happened. Cook, acting pro se, opposed the motions. The district court granted the motion for

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summary judgment and granted the motion to dismiss, dismissing Cook’s action without prejudice,

but dismissing the action as to Caruso and Straub “with prejudice.” Cook timely appealed; the

Vanderbilt Appellate Litigation Clinic at Vanderbilt Law School agreed to represent him in this

appeal.

We first address Cook’s argument that the district court erred in granting summary judgment

in favor of Caruso and Straub. We review de novo a district court’s grant of summary judgment.

EEOC v. Prevo’s Family Market, Inc., 135 F.3d 1089, 1093 (6th Cir. 1998). Summary judgment

is proper if there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law. Id. The party moving for summary judgment bears the burden of

demonstrating that there is an absence of evidence to support the nonmoving party’s case. Id. Once

the moving party satisfies its burden, the burden shifts to the nonmoving party to set forth specific

facts showing a triable issue. Mosholder v. Barnhardt, 679 F.3d 443, 448–49 (6th Cir. 2012) (citing

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Fed. R. Civ. P. 56(e)). The

court must determine either whether the evidence—viewed in the light most favorable to the

nonmoving party—presents a sufficient disagreement to require submission to the fact-finder, or

whether the evidence is so one-sided that the moving party must prevail as a matter of law. Prevo’s

Family Market, Inc., 135 F.3d at 1093 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52

(1986)).

In their summary-judgment motion, Caruso and Straub argued that they were not “personally

involved” in the activity that formed the basis of Cook’s complaint—the failure to assign him to a

lower bunk. They argued that they had not “impliedly authorized, approved, or knowingly

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acquiesced in the allegedly unconstitutional conduct.” The district court granted the defendants’

motion on the basis that Cook had not proved that they were “personally involved” in the violation

of Cook’s constitutional rights. To find a supervisory official liable, a defendant need not prove

personal involvement, but must at least show that the official “implicitly authorized [or] approved”

or “knowingly acquiesced in” the alleged constitutional violation. Sheehee v. Lutrell, 199 F.3d 295,

300 (6th Cir. 1999). Although the district court applied an overly strict standard, Cook nevertheless

fails to demonstrate that supervisor liability is warranted. We may “affirm the decision of the district

court if it is correct for any reason, even a reason different from that relied upon by the district

court.” Taylor v. McKee, 649 F.3d 446, 450 (6th Cir. 2011) (citing Dixon v. Clem, 492 F.3d 665,

673 (6th Cir. 2007)).

Here, the district court did not err in granting summary judgment because Cook did not

satisfy the strictures of Farmer v. Brennan, 511 U.S. 825 (1994). To hold a prison official liable

under the Eighth Amendment for denying a prisoner humane conditions of confinement, a prisoner

must make two showings. Id. at 834. First, the prisoner must prove that he or she suffered a

deprivation; this alleged deprivation “must be, objectively, ‘sufficiently serious.’” Id. (quoting

Wilson v. Seiter, 501 U.S. 294, 298 (1991). Second, a prisoner must prove that a prison official acted

with a “‘sufficiently culpable state of mind.’” Id. (quoting Wilson, 501 U.S. at 297) (rest of citation

omitted). In prison condition cases, this sufficiently culpable state of mind “is one of ‘deliberate

indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 302–03) (rest of citations

omitted).

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Farmer defined “deliberate indifference” as a subjective, not an objective test. Id. at 837.

Farmer held that a prisoner must show that the official both knew of and disregarded an excessive

risk to inmate health or safety, meaning that the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists and must also draw the

inference. Id. The Court added that a prisoner need not show that a prison official acted or failed

to act while actually believing that harm would befall a prisoner; rather, the prisoner has met his or

her burden by proving that the official acted or failed to act despite his or her knowledge of a

substantial risk of serious harm. Id. at 842. The Court explained that “[w]hether a prison official

had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the

usual ways, including inference from circumstantial evidence.” Id. (citations omitted). Moreover,

“a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the

risk was obvious.” Id. (citation omitted). The Court hypothesized that prison officials defending

against an Eighth Amendment claim based on deliberate indifference might try to show, for example,

“that they did not know of the underlying facts indicating a sufficiently substantial danger and that

they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit

unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Id. at 844.

Here, in responding to the summary judgment motion, Cook submitted the three letters he

sent to Caruso, with copies to Straub, in February and March 2007, informing her that the prison had

not complied with the Notice to put him on a bottom bunk. The letters stated that the prison had

issued him a Notice forbidding his assignment to a top bunk, that he was epileptic and suffered from

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grand mal seizures, and that he feared serious injury or even death because the prison was not

following the Notice. The letters also asked that he be assigned to a bottom bunk.

But Cook did not proffer any evidence to show that Caruso or Straub ever read the letters,

nor drew any inferences about them. Under Farmer, a prisoner must show both that the official

became aware of facts from which the official could draw the inference that a substantial risk of

serious harm exists and that the official drew the inference. Id. at 837. In opposing the summary-

judgment motion, Cook did not proffer facts to show either that Caruso or Straub became aware of

the facts of his inappropriate bunk placement or that they drew any inference from those facts.

Therefore, summary judgment as to them was proper.

We note that the district court also held that summary judgment as to Straub and Caruso was

proper because “the unnotarized declarations and letters” that Cook submitted in opposition to the

prison’s summary judgment motion were hearsay. In this regard, the district court erred because the

letters and affidavits fit within an exception to the hearsay rule.

Whether a piece of evidence is hearsay is a question of law that we review de novo. United

States v. Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009). Hearsay is an out-of-court statement

offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Nevertheless, “[a] statement

offered as evidence of the bare fact that it was said, rather than for its truth, is not hearsay.”

Rodriguez-Lopez, 565 F.3d at 314 (citing Blair v. Henry Filters, Inc., 505 F.3d 517, 524 (6th Cir.

2007) (out-of-court statement offered for the fact that it was said was not hearsay) overruled on other

grounds by Goss v. FBL Servs, Inc., 557 U.S. 167 (2009)). The rule, then, is that a statement or

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writing offered to establish the state of mind of the hearer or reader that the statement or writing

induces, such as receiving notice, is not hearsay.

Cook, however, did not submit these letters to prove that the prison had issued him a Notice,

nor to prove the truth or falsity of his being an epileptic, nor that he feared serious injury. Rather,

Cook offered the affidavits and letters to prove that Caruso and Straub had received notice of Cook’s

situation; therefore, he offered this evidence to prove the bare fact that he had written to Caruso and

Straub, rather than for the truth of the letters’ contents.

The same analysis applies to the affidavits from Cook’s mother and his girlfriend. Cook

submitted them not for their truth, but to establish notice—that his mother and girlfriend had called

both Caruso and Straub and spoke to someone (although not Caruso nor Straub) in their offices to

let them know about Cook’s situation. Whether or not whoever in their offices they spoke to actually

told Caruso and Straub about the calls is a jury question.

The district court also erred because a district court may consider, for summary judgment

purposes, an un-notarized affidavit if the affiant signs under penalty of perjury. 28 U.S.C. § 1746.

Here, Cook’s mother and girlfriend both signed and dated their affidavits “pursuant to 28 U.S.C. §

1746 . . . under the penalty of perjury.” The district court should not have found that Cook’s

evidence was hearsay. He submitted this evidence to counter Caruso’s and Straub’s affidavits that

they had no personal involvement in refusing to place Cook on the bottom bunk. But the district

court’s error in this regard does not mean that summary judgment was not proper. As discussed

above, the evidence Cook submitted could not establish that Caruso and Straub acted with deliberate

indifference to his situation.

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Next, we address Cook’s argument that the district court erred in dismissing his lawsuit for

failure to exhaust his administrative remedies through the prison’s grievance process. We review

de novo a district court’s dismissal of a prisoner’s civil-rights claim for failure to exhaust

administrative remedies. Risher v. Lappin, 639 F.3d 236, 239–40 (6th Cir. 2011) (citing Boyd v.

Corr. Corp. of Am., 380 F.3d 989, 993 (6th Cir. 2004)). Under the Prison Litigation Reform Act,

42 U.S.C. § 1997e, non-exhaustion is an affirmative defense for which the defendants bear the

burden of proof. Id. at 240 (citing Jones v. Bock, 549 U.S. 199, 216 (2007); Napier v. Laurel Cnty.,

Ky., 636 F.3d 218, 224–25 (6th Cir. 2011)).

A prisoner must exhaust the prison’s administrative remedies before filing a lawsuit under

section 1983. 42 U.S.C. § 1997e(a). Requiring exhaustion serves two purposes. First, it gives an

agency “‘an opportunity to correct its own mistakes with respect to the program it administers before

it is haled into federal court,’” and it discourages “‘disregard of [the agency’s] procedures.’”

Woodford v. Ngo, 548 U.S. 81, 89 (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)).

Second, exhaustion promotes efficiency. Id. This is because “[c]laims generally can be resolved

much more quickly and economically in proceedings before an agency than in litigation in federal

court.” Id. Proper exhaustion of administrative remedies requires “compliance with an agency’s

deadlines and other critical procedural rules because no adjudicative system can function effectively

without imposing some orderly structure on the course of its proceedings.” Id. at 90–91 (footnote

omitted). Here, the administrative remedy is the prison’s grievance procedure. The purpose of a

grievance in the prison context is “to alert prison officials to a problem.” Bock, 549 U.S. at 219

(citing Johnson v. Johnson, 385 F.3d 503 (6th Cir. 2004)).

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Here, Cook’s first grievance failed to alert the prison officials to the problem of his

placement on the top bunk. Instead, the first grievance complained of the inadequacy of the

emergency response to his fall. Cook’s first grievance completely failed to state the fact that his

prior requests for bottom-bunk placement went unheeded, which became the entire premise of this

lawsuit. Cook’s first grievance did not exhaust the prison’s administrative remedies because it failed

to alert the prison officials to the problem: that it had ignored his requests that the prison enforce its

own order that he be assigned to a bottom bunk.

While Cook’s second grievance did complain of his assignment to a top bunk, Cook failed

to exhaust the prison’s administrative remedies because he filed it untimely—more than a year after

the fall occurred.

Cook argues on appeal that his second grievance did exhaust the prison’s administrative

remedies, notwithstanding its tardiness, if we analogize his case to Reed-Bey v. Pramstaller, 603

F.3d 322 (6th Cir. 2010). In Reed-Bey, a prisoner appealed a district court’s judgment dismissing

his section 1983 lawsuit against Michigan prison officials on the ground that he did not exhaust his

claim as U.S.C. § 1997e(a) required. Id. at 323. We reversed and remanded, having concluded that

Reed-Bey had exhausted his claim because the Michigan Department of Corrections opted to dismiss

his grievance on the merits rather than to invoke its procedural bar. Id. at 326.

Reed-Bey filed a prison grievance complaining about the lack of follow-up care for an injury

he suffered during a prison basketball game. Id. at 323. When the prison failed to respond within

the time specified by the prison’s grievance policy, Reed-Bey filed a Step II grievance appeal. Id.

Two prison nurses rejected Reed-Bey’s initial grievance, noting that prison officials had requested

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an orthopedic consultation but were waiting for approval from a private health-management

company the prison used. Id. When prison officials failed to respond to his Step II appeal by the

required deadline, Reed-Bey filed a Step III appeal with the Director of Prisons. Later, a health unit

manager belatedly denied Reed-Bey’s Step II appeal, stating that his care complied with the

“‘contemporary standard of medical practice in the community’” and because the prison health staff

had given him adequate pain medication. Id. (citation omitted). Then, two months after the deadline

for resolving Reed-Bey’s Step III appeal had passed, the Director of Prisons denied Reed-Bey’s Step

III appeal on the merits.

We said that Reed-Bey’s appeal presented one question: whether he properly exhausted his

administrative remedies despite failing to name a single individual in his initial grievance. Id. at 324.

We reasoned that if the prison considers a grievance on the merits, this allows a federal court to

consider the grievance’s merits—“even when a procedural default might otherwise have resolved

the claim.” Id. at 325. We concluded that Reed-Bey “properly exhausted his claim because he

invoked one complete round of the Department’s grievance procedures and received merits-based

responses at each step.” Id. at 326 (emphasis added).

But Cook’s case is distinguishable from Reed-Bey because Cook did not receive merits-based

responses to his second grievance at any step in the grievance process. Here, the prison rejected

Cook’s second grievance at Step I by asserting the procedural defense that the grievance was

untimely. The prison did not address the grievance’s merits at Step II just because it examined the

basis for Cook’s injury and noted that further treatment had been ordered. Rather, if the prison had

examined the merits at Step II, its response would have discussed his actual bunk placement, and

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whether or not the prison had violated its own policy in assigning him to a top bunk. At Step III, the

prison stated that Cook alleged his bottom bunk detail was not honored causing him to fall during

a seizure. It went on to state that the prison had reviewed all the information presented upon appeal

to Step III, “including all electronic medical records.” It added that “[m]onetary compensation

requested is inappropriate in this forum. Pursuant to OP/PD 03.02.130 Grievance to be rejected as

untimely, illegible, duplicative. Untimely rejection occurred at Step I and is upheld at Step III.”

Simply mentioning that the prison reviewed the record does not a merits-based response make. The

rest of the Step III response reasserted the prison’s procedural defenses. For Reed-Bey’s holding to

apply, Cook would have had to receive “merits-based responses at each step.” Reed Bey, 603 F.3d

at 325 (emphasis added). He did not. Therefore, Cook’s second grievance failed to exhaust the

prison’s administrative remedies afforded by its grievance procedure. Because of this, and the other

reasons discussed, we AFFIRM the district court’s judgment.

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