Haynes v. Chau

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6 UNITED STATES DISTRICT COURT

7 SOUTHERN DISTRICT OF CALIFORNIA

8

9 EARL EUGENE HAYNES, Case No.: 3:19-cv-02257-JAH-KSC

CDCR #H-23481,

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ORDER:

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

Dr. JOHN CHAU, Physician & Surgeon;

13 [ECF No. 2]

Dr. D. ROBERTS, Chief Medical

14 Executive; Sgt. M. ARTEGA,

2) DISMISSING DEFENDANTS AND

Correctional Sergeant,

15 CLAIMS PURSUANT TO

Defendants. 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

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17 3) GRANTING MOTION TO AMEND

AND DENYING MOTION FOR

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TEMPORARY RESTRAINING

19 ORDER [ECF Nos. 6, 8]

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AND

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4) DIRECTING U.S. MARSHAL

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TO EFFECT SERVICE UPON

23 DEFENDANT CHAU PURSUANT

TO 28 U.S.C. § 1915(d) AND

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Fed. R. Civ. P. 4(c)(3)

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26 Earl Eugene Haynes (“Plaintiff”), currently incarcerated at Richard J. Donovan

27 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil

28 rights action filed pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. Plaintiff seeks

1 to sue his treating physician at RJD, Dr. John Chau, RJD’s Chief Medical Executive, Dr.

2 D. Roberts, and Correctional Sergeant M. Artega, alleging they all failed to provide him

3 adequate medical care and/or accommodations for a ventral hernia he developed

4 sometime between June and September 2019. See id. at 10‒16.

5 Plaintiff has not paid the filing fee required by 28 U.S.C. § 1914(a); instead, he has

6 filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).

7 See ECF No. 2. He has also submitted another document entitled “Order to Show Cause

8 & Temporary Restraining Order,” which the Court accepted for filing in light of his pro

9 se status despite its non-compliance with Local Civil Rules 7.1.b and 7.1.f.1, and

10 construes as a Motion for a Temporary Restraining Order (“TRO”) pursuant to Fed. R.

11 Civ. P. 65. See ECF Nos. 5, 6; Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th

12 Cir. 2003) (“Courts have a duty to construe pro se pleadings liberally, including pro se

13 motions as well as complaints.”). Plaintiff has since filed an additional Motion seeking

14 leave to amend his previous Motion for TRO. See ECF No. 8.

15 I. Motion to Proceed IFP

16 All parties instituting any civil action, suit or proceeding in a district court of the

17 United States, except an application for writ of habeas corpus, must pay a filing fee of

18 $400.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

19 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

20 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

21 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed

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1 The medical records Plaintiff attaches and incorporates by reference to his Complaint indicate he is a

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male to female transgender inmate and they use both male and female pronouns when referring to him/her.

25 However, Plaintiff uses only male pronouns in the body of his pleading; therefore, the Court will do the

same until he requests otherwise. See Compl. at 12, 15‒16‒17.

26

2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See

27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.

June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed

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1 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v.

2 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182,

3 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28

4 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

5 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

6 “certified copy of the trust fund account statement (or institutional equivalent) for ... the

7 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

8 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

9 trust account statement, the Court assesses an initial payment of 20% of (a) the average

10 monthly deposits in the account for the past six months, or (b) the average monthly

11 balance in the account for the past six months, whichever is greater, unless the prisoner

12 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having

13 custody of the prisoner then collects subsequent payments, assessed at 20% of the

14 preceding month’s income, in any month in which his account exceeds $10, and forwards

15 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2);

16 Bruce, 136 S. Ct. at 629.

17 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate

18 Statement Report as well as a Prison Certificate completed by an accounting officer at

19 RJD. See ECF No. 3; 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at

20 1119. These statements show Plaintiff maintained an average monthly balance of

21 $254.23, and had $163.28 in average monthly deposits credited to his account over the 6-

22 month period immediately preceding the filing of his Complaint. His available balance as

23 of November 26, 2019, however, was only $22.53. See ECF No. 3 at 1, 3.

24 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and

25 assesses his initial partial filing fee to be $50.84 pursuant to 28 U.S.C. § 1915(b)(1).

26 Because his available balance at the time of filing was insufficient to cover this initial fee,

27 however, the Court will direct the Secretary of the CDCR, or his designee, to collect it

28 only if sufficient funds are available in Plaintiff’s account at the time this Order is

1 executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be

2 prohibited from bringing a civil action or appealing a civil action or criminal judgment

3 for the reason that the prisoner has no assets and no means by which to pay the initial

4 partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28

5 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case

6 based solely on a “failure to pay ... due to the lack of funds available to him when

7 payment is ordered.”). The remaining balance of the $350 total fee owed in this case must

8 be collected by the agency having custody of the prisoner and forwarded to the Clerk of

9 the Court pursuant to 28 U.S.C. § 1915(b)(2).

10 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

11 A. Standard of Review

12 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

13 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

14 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

15 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

16 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

17 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

18 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

19 the targets of frivolous or malicious suits need not bear the expense of responding.’”

20 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

21 Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

22 “The standard for determining whether a plaintiff has failed to state a claim upon

23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

25 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

26 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

27 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

28 12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

1 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

2 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

3 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

4 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

5 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

6 relief [is] . . . a context-specific task that requires the reviewing court to draw on its

7 judicial experience and common sense.” Id. The “mere possibility of misconduct” or

8 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

9 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

10 (9th Cir. 2009).

11 Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the

12 Court may consider exhibits attached to his Complaint. See Fed. R. Civ. P. 10(c) (“A

13 copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all

14 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555

15 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d

16 426 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may

17 be considered” in ruling on a Rule 12(b)(6) motion to dismiss.)).

18 B. Plaintiff’s Factual Allegations

19 On May 29, 2019, Plaintiff was admitted to Alvarado Hospital from RJD for a

20 hiatal hernia3 surgery performed by Justin King, M.D. See Compl. ¶¶ 9‒10. While in

21 post-op recovery at Alvarado, and still under Dr. King’s care, Plaintiff developed a

22 “fascial dehiscence within the incision site,” which required a second surgery on June 4,

23 2019. Id. ¶ 13. On June 5, 2019, Plaintiff was discharged from Alvarado to RJD’s

24 Correctional Treatment Center (“CTC”), where he remained in post-op recovery and

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3 “A hiatal hernia occurs when part of the stomach pushes upward through the small opening (hiatus)

27 through which the esophagus passes on its way to the stomach.” Alvarez v. Hashemi, No. 1:16‒CV‒

00203‒AWI‒JLT PC, 2019 WL 1099838, at *9 (E.D. Cal. Mar. 7, 2019).

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1 under the care of Dr. D. Clayton. Id. ¶¶ 15‒16. On June 20, 2019, he was returned to

2 RJD’s E-Facility for further post-op “recovery, wound care, & monitoring” by Dr. Chau.

3 Id. ¶ 17.

4 On June 25, 2019, Plaintiff continued to experience abdominal pain and “noticed

5 the first signs of swelling & distension.” Id. ¶ 19. He was examined by Dr. Chau who

6 noted Plaintiff’s complaints of “mild abdominal discomfort,” but “no fever or chills.” See

7 Pl.’s Ex. F, ECF No. 1 at 21. Dr. Chau’s progress notes also included an “Assessment

8 Plan” indicating a “follow‒up with surgery” had been scheduled in 2 days. Id. at 22.5

9 Plaintiff claims, however, that “27 June 2019 came & went with no follow up.” See

10 Compl., ¶ 20.

11 On July 11, 2019, Plaintiff was summoned or “ducated” to see Dr. Chau for a post-

12 op consultation “initiated by Dr. King, who supervised [his] suture removal.” Id. ¶ 21.

13 Plaintiff claims he again renewed his complaints of pain, discomfort, swelling and

14 “noticeable” distension, but Dr. Chau “did nothing,” except reschedule him for a later

15 appointment, and “instruct[] [him] to use an abdominal binder at all times.” Id., see also

16 Pl.’s Ex. H, ECF No. 1 at 25.6

17 ///

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4 Neither Dr. King nor Dr. Clayton are named as Defendants.

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21 5 The Court notes that in addition to Plaintiff’s “large hiatal hernia status post open surgery and

fundoplication 5-29-19,” Dr. Chau’s July 11, 2019 Progress Notes also describe Plaintiff as a “71 year-

22 old male to female transgender, morbidly obese,” and cites a “Problem List” of “Past Medical History

Ongoing” concerns including more than a dozen other medical conditions, including avascular necrosis

23 of the hip, chronic GERD, constipation and lower back pain, degenerative disc disease, diabetes mellitus

type 2, dyslipidemia, foraminal stenosis of the lumbar region, gender dysphoria, BPH, COPD,

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hypertension, major depressive disorder, mild sleep apnea, acute chest pain, and “noncompliance with

25 medical treatment and regimen.” See Pl.’s Ex. H, ECF No. 1 at 25.

26 6 An abdominal binder or truss “is a supportive undergarment that physicians recommend as non-surgical

way to ease discomfort or pain from a hernia because it applies gentle pressure on the hernia and keeps it

27 in place.” Wilkins v. Magat, No. 15-CV-01706-YGR (PR), 2018 WL 4638699, at *15 n.31 (N.D. Cal.

Sept. 25, 2018) (citing https://www.webmd.com/digestive-disorders/qa/what-are-nonsurgical-treatments-

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1 On September 4, 2019, Plaintiff was again examined by Dr. Chau who noted he

2 had tolerated the May 29, 2019 procedure well, but “unfortunately now ha[d] a ventral

3 hernia.” See Compl. ¶ 23 & Ex. I at 28.7 Dr. Chau reported the new hernia was “soft and

4 redu[c]ible,” told Plaintiff “not to worry about it,” and recommended he “use an

5 abdominal truss on a trial basis.” Compl. ¶ 25 & Ex. I at 28.

6 Plaintiff continued to experience pain, discomfort, and anxiety due to “the

7 worsening incision area manifesting swelling, tenderness, and redness,” see Compl. ¶ 28,

8 and claims Dr. Chau “was completely aware [that] the incision scar had separated a

9 second time in 60-days, allowing [Plaintiff’s] small bowel to protrude.” Id. ¶ 29.

10 Therefore, Plaintiff submitted a “Health Care Service Request” or CDCR Form 7362,

11 “explaining the dire circumstances that were becoming worse with pronounced

12 abdominal distension.” Id. ¶ 30.

13 On September 26, 2019, Plaintiff was again examined by Dr. Chau, who reported

14 that Plaintiff “now present[ed] with [a] large ventral hernia,” and complaining of

15 “discomfort” and a “burning sensation over [the] area” that “bother[ed] him throughout

16 the night.” See Compl. ¶ 31, Pl.’s Ex. J, ECF No. 1 at 32. Dr. Chau’s Progress Notes

17 taken during the September 26, 2019 consult further indicate Plaintiff “wish[ed] to

18 consider possible surgery for ventral hernia repair,” and they include an order requesting

19 that Plaintiff be referred for “general surgery.” See Pl.’s Ex. J, ECF No. 1 at 32. Plaintiff

20 claims Dr. Chau’s Progress Notes “grossly distort the tenor [of] the consultation,” fail to

21 describe it as “contentious,” and “downplay the severity of [his] hernia.” Compl. ¶¶ 31‒

22 32.

23 ///

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26 7 “A ventral hernia is a bulge of tissues through an opening of weakness within [the] abdominal wall

muscles. It can occur at any location on [the] abdominal wall. Many are called incisional hernias because

27 they form at the healed site of past surgical incisions. Here abdominal wall layers have become weak or

thin, allowing for abdominal cavity contents to push through.” See https://www.healthline.com/

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1 On October 15, 2019, Plaintiff claims he consulted with Dr. R. Zhang, the

2 “physician[n] on duty.” Id. ¶ 34. Plaintiff repeated his complaints of pain, swelling, and

3 discomfort, but Zhang also noted his hernia remained “soft and reducible,” and that

4 Plaintiff “seem[ed] comfortable throughout the interview.” Zhang informed Plaintiff of a

5 “pending surgical consultation at the end of the month,” and Zhang’s Progress Notes

6 indicate Plaintiff “agreed with the plan.” Id. at 35; cf. Pl.’s Ex. K, ECF No. 1 at 35‒36.

7 However, Plaintiff claims Dr. Zhang’s description of the October 15, 2019 exam, like Dr.

8 Chau’s, are “mislead[ing],” “self-serving,” and a “complete distortion of the truth,” since

9 he “has no option to disagree & is at the professional mercy of medical staff regarding

10 any scheduling.” Id. ¶¶ 35-36.

11 At the time he filed his Complaint no surgery had yet to be scheduled. Id. ¶ 37.

12 Plaintiff contends his “new hernia is a medical emergency requiring immediate medical

13 intervention,” “irrespective of Dr. Chau’s blasé attention.” Id. ¶ 33.

14 C. 42 U.S.C. § 1983

15 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

16 elements: (1) that a right secured by the Constitution or laws of the United States was

17 violated, and (2) that the alleged violation was committed by a person acting under the

18 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

19 1035-36 (9th Cir. 2015).

20 D. Supervisory Liability – Defendant D. Roberts

21 In addition to Dr. Chau, who served as the E‒Facility’s treating physician

22 responsible for providing Plaintiff with post-operative “recovery, wound-care &

23 monitoring,” see Compl. ¶¶ 17‒33, Plaintiff also names D. Roberts, RJD’s Chief Medical

24 Executive, as a Defendant. Id. at 2. Plaintiff identifies Roberts by his title, and contends

25 he is liable for failing to “oversee the operations of the Medical Department to ensure

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1 prisoners receive proper medical care.” Id. at ¶¶ 6, 46‒48. However, Plaintiff does not

2 mention Roberts again in the body of his pleading, and does not explain the role he or she

3 may have played in any decisions Dr. Chau is alleged to have made regarding his medical

4 care or need for a second hernia surgery. “[A] defendant may not be held liable under

5 § 1983 merely because he had certain job responsibilities.” Hernandez v. Aranas, No.

6 218CV00102JADBNW, 2020 WL 569347, at *4 (D. Nev. Feb. 4, 2020) (citing Starr v.

7 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)).

8 In short, Plaintiff fails to include any “further factual enhancement” to show how,

9 or to what extent, Dr. Roberts may be held personally liable for any constitutional injury.

10 See Iqbal, 556 U.S. at 676-77; Jones v. Comm’ty Redev. Agency of City of Los Angeles,

11 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some

12 degree of particularity overt acts which defendants engaged in” in order to state a claim).

13 Plaintiff does claim Roberts is responsible to “hire & employ doctors for the operation of

14 State Prisons,” see Compl., at 2, but “[v]icarious liability is inapplicable to … § 1983

15 suits, [and] a plaintiff must plead that each Government-official defendant, through [his]

16 own individual actions, has violated the Constitution,” in order to plead a plausible claim

17 for relief. Iqbal, 556 U.S. at 676; see also Crowley v. Bannister, 734 F.3d 967, 977 (9th

18 Cir. 2013) (supervisor may be held liable under Section 1983 only if there is “a sufficient

19 causal connection between the supervisor’s wrongful conduct and the constitutional

20 violation”) (citations and internal quotation marks omitted); Fayle v. Stapley, 607 F.2d

21 858, 862 (9th Cir.1979) (when a named defendant holds a supervisorial position, the

22 causal link between the defendant and the claimed constitutional violation must be

23 specifically alleged); Victoria v. City of San Diego, 326 F. Supp. 3d 1003, 1013 (S.D.

24 Cal. 2018) (“Liability under § 1983 arises only upon a showing of personal participation

25 by the defendant.”).

26 Plaintiff’s Complaint is simply devoid of any factual allegations sufficient to show

27 Dr. Roberts “participated in or directed [Dr. Chau’s alleged] violations, or knew of the

28 violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th

1 Cir.1989); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); accord Starr, 652 F.3d

2 at 1207–08 (“A supervisor can be liable in his individual capacity for his own culpable

3 action or inaction in the training, supervision, or control of his subordinates; for his

4 acquiescence in the constitutional deprivation; or for conduct that showed a reckless or

5 callous indifference to the rights of others.”).

6 For these reasons, the Court dismisses Dr. Roberts as a party to this action sua

7 sponte based on Plaintiff’s failure to state a plausible claim for relief against him pursuant

8 to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii) and 28 U.S.C. § 1915A(b)(1), (2); Lopez, 203 F.3d

9 at 1126-27; Wilhelm, 680 F.3d at 1121.

10 E. ADA Claims‒Sgt. M. Artega

11 Plaintiff also names Sgt. M. Artega as a Defendant, and claims Artega is the “ADA

12 Coordinator for E-Facility.” See Compl. ¶ 7. Plaintiff does not specify what role Artega

13 played with respect to his medical care or his accommodations, but he concludes Artega

14 is “responsible” for ensuring disabled prisoners receive “services, programs & activities”

15 under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and

16 contends “medical care falls under ‘services,’” and therefore, Artega may be held liable

17 for failing to meet his “disability-related needs.” Id. ¶ 52.

18 The ADA applies to prisons and jails. See 42 U.S.C. § 12131(1)(B); U.S. v.

19 Georgia 546 U.S. 151, 154 (2006). In order to state a claim under Title II of the ADA,

20 however, Plaintiff must allege:

21 (1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to

participate in or receive the benefit of some public entity’s services,

22

programs, or activities;’ (3) he ‘was either excluded from participation in or

23 denied the benefits of the public entity’s services, programs, or activities, or

was otherwise discriminated against by the public entity;’ and (4) ‘such

24

exclusion, denial of benefits, or discrimination was by reason of [his]

25 disability.’

26 O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citing

27 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (quoting Thompson v.

28 Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam)).

1 Even assuming Plaintiff’s ventral hernia is a qualified disability, and that he is

2 otherwise entitled to participate or benefit from some RJD service, program, or activity,

3 Plaintiff does not allege that Sgt. Artega, or any other named Defendant, discriminated

4 against him because of his hernia. O’Guinn, 502 F.3d at 1060; see also Weinreich v. Los

5 Angeles Cty. Metro. Transp. Auth., 114 F.3d 976, 978-79 (1997) (requiring plaintiff to

6 plead and prove the defendant’s actions supporting a Rehabilitation Act claim were taken

7 “solely by reason of disability.”). Title II of the ADA “prohibit[s] discrimination on the

8 basis of disability.” Lowell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Medical

9 treatment, the lack of treatment, an alleged misdiagnosis, or allegations of inadequate

10 care alone do not support an ADA claim. See e.g., Marlor v. Madison County Idaho, 50

11 Fed. App’x 872, 874 (9th Cir. 2002). Because the ADA prohibits discrimination because

12 of disability, not inadequate treatment for a disability, as Plaintiff appears to allege here

13 with respect to his post-operative care and/or alleged need for a second hernia surgery,

14 his purported ADA claim fails. See Simmons, 609 F.3d at 1022, overruled on other

15 grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016); see also

16 Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he Act would not be violated

17 by a prison’s simply failing to attend to the medical needs of its disabled prisoners....The

18 ADA does not create a remedy for medical malpractice.”). Inadequate treatment or lack

19 of treatment for Plaintiff’s medical condition does not in itself suffice to create liability

20 under the ADA. Tandel v. Cty. of Sacramento, 2015 WL 1291377, at *18 (E.D. Cal. Mar.

21 20, 2015); Bryant, 84 F.3d at 249 (“No discrimination is alleged; Bryant was not treated

22 worse because he was disabled. His complaint is that he was not given special

23 accommodation.”).

24 Finally, Plaintiff may not pursue an ADA claim for damages against any of the

25 individually named Defendants, including Sgt. Artega, because there is no individual

26 liability under Title II. See Heinke v. County of Tehama Sheriff’s Dept., No. CVI S-12-

27 2433 LKK/KJN, 2013 WL 3992407, at *7 (E.D. Cal. Aug.1, 2013). The ADA’s

28 definition of “public entity” does not include individuals. See Hardwick v. Curtis

1 Trailers, Inc., 896 F. Supp. 1037, 1038-39 (D. Or. 1995) (individual liability is precluded

2 under ADA Title II) (citing Miller v. Maxwell’s Intern., Inc., 991 F.2d 583 (9th Cir.

3 1993)); see also Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999); 42

4 U.S.C. § 12131(1); Vinson v. Thomas, 288 F.3d 1145 (9th Cir. 2002) (“[A] plaintiff

5 cannot bring an action under 42 U.S.C. § 1983 against a State official in [his or] her

6 individual capacity to vindicate rights created by Title II of the ADA ...”); Weathers v.

7 Hagemeister-May, No. 1:13-CV-01932-AWI, 2014 WL 309444, at *4 (E.D. Cal. Jan. 28,

8 2014).

9 For these reasons, the Court finds Plaintiff has failed to allege a plausible claim for

10 relief under the ADA, and also dismisses Sgt. Artega as a party to this action sua sponte

11 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1). See Lopez, 203

12 F.3d at 1126-27; Wilhelm, 680 F.3d at 1121.

13 F. Eighth Amendment Inadequate Medical Care Claims ‒ Dr. Chau

14 With respect to the gravamen of Plaintiff’s Complaint and his Eighth Amendment

15 inadequate medical care claims against Dr. Chau, however, the Court finds his Complaint

16 contains plausible Eighth Amendment allegations sufficient to surpass the “low

17 threshold” set for initial screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

18 See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; Estelle v. Gamble, 429 U.S. 97,

19 104 (1976) (prison officials’ deliberate indifference to an inmate’s serious medical needs

20 constitutes cruel and unusual punishment in violation of the Eighth Amendment).

21 While it is well established that “a mere difference of medical opinion ... [is]

22 insufficient, as a matter of law, to establish deliberate indifference,” Toguchi v. Chung,

23 391 F.3d 1051, 1058 (9th Cir. 2004) (alterations in original) (citation omitted), in some

24 cases a prisoner may state a claim of deliberate indifference to medical needs based on a

25 difference of medical opinion. See, e.g., Gould v. California Dep’t of Corr. & Rehab.,

26 No. 2:18-CV-1981-JAM-EFB P, 2020 WL 704000, at *3 (E.D. Cal. Feb. 12, 2020). To

27 do so, the prisoner must allege that “the course of treatment the doctors chose was

28 medically unacceptable under the circumstances,” and that they “chose this course in

1 conscious disregard of an excessive risk to [the prisoner’s] health.” Jackson v. McIntosh,

2 90 F.3d 330, 332 (9th Cir. 1996) (citations omitted). Under this standard, “denying an

3 inmate a surgery without performing an honest or sufficient medical evaluation of the

4 patient might constitute deliberate indifference.” Gould, 2020 WL 704000, at *3 (citing

5 Jackson, 90 F.3d at 332). “Deliberate indifference ‘may appear when prison officials

6 deny, delay or intentionally interfere with medical treatment, or it may be shown in the

7 way in which prison physicians provide medical care.’” Colwell v. Bannister, 763 F.3d

8 1060, 1066 (9th Cir. 2014) ((quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th

9 Cir. 1988)). To establish a claim of deliberate indifference arising from a delay in

10 providing care, the prisoner must allege the delay was harmful. See Berry v. Bunnell, 39

11 F.3d 1056, 1057 (9th Cir. 1994); Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d

12 404, 407 (9th Cir. 1985).

13 Here, Plaintiff claims Dr. Chau was aware of his pain, discomfort, swelling, and

14 “noticeable” distention as early as July 11, 2019, see Compl. ¶ 21, that he had developed

15 a ventral hernia by September 4, 2019, id. ¶ 25, and “was completely aware [that] the

16 incision scar had separated a second time in 60-days, allowing [Plaintiff’s] small bowel to

17 protrude” when he examined him on that day. Id. ¶ 29. Nevertheless, Plaintiff contends

18 Dr. Chua failed to address his complaints of pain, discomfort, burning, and anxiety, and

19 instead “downplay[ed] the severity of [his] hernia” until September 29, 2019, when it had

20 then become “large,” his incision area had worsened, and he presented with a

21 “pronounced abdominal distention,” and a “red, open, & raw” incision “showing what

22 appear[ed] to be bowel underneath the skin.” See id. ¶¶ 28‒32.

23 These allegations, taken in the light most favorable to Plaintiff, are sufficient to

24 support a reasonable inference that Dr. Chau’s actions and/or inactions went beyond mere

25 difference in medical opinion and rose to the level of deliberate indifference. Iqbal, 556

26 U.S. at 678.

27 Therefore, the Court will order the U.S. Marshal to effect service upon Dr. J. Chau

28 on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and

1 serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he

2 court may order that service be made by a United States marshal or deputy marshal ... if

3 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).9

4 III. Motion to Amend and Motion for TRO

5 Finally, in both his original Motion for TRO and his Motion to Amend, Plaintiff

6 requests immediate injunctive relief “requiring Defendants to arrange for emergency

7 treatment by an outside medical clinic or facility,” and to “schedule ventral hernia repair”

8 surgery. See ECF No. 6 at 7; ECF No. 8 at 3‒4.

9 A. Standard of Review

10 Procedurally, a federal district court may issue emergency injunctive relief only if

11 it has personal jurisdiction over the parties and subject matter jurisdiction over the

12 lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)

13 (noting that one “becomes a party officially, and is required to take action in that

14 capacity, only upon service of summons or other authority-asserting measure stating the

15 time within which the party served must appear to defend.”). The court may not attempt

16 to determine the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v.

17 Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir.

18 1983); Lathrop v. Unidentified, Wrecked & Abandoned Vessel, 817 F. Supp. 953, 961

19 (M.D. Fl. 1993); Kandlbinder v. Reagan, 713 F. Supp. 337, 339 (W.D. Mo. 1989); Suster

20 v. Marshall, 952 F. Supp. 693, 701 (N.D. Ohio 1996); see also Califano v. Yamasaki, 442

21 U.S. 682, 702 (1979) (injunctive relief must be “narrowly tailored to give only the relief

22 to which plaintiffs are entitled”). An injunction binds only “the parties to the action,”

23 their “officers, agents, servants, employees, and attorneys,” and “other persons who are in

24 active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C).

25

26

27 9 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a

substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v.

28

1 The substantive purpose of a TRO is to preserve the status quo before a

2 preliminary injunction hearing may be held; its provisional remedial nature is designed

3 merely to prevent irreparable loss of rights prior to judgment. Granny Goose Foods, Inc.

4 v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). But the

5 legal standard that applies to a motion for a TRO is the same as a motion for a

6 preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d

7 832, 839 n.7 (9th Cir. 2001).

8 Substantively, “[a] preliminary injunction is an extraordinary remedy never

9 awarded as of right, and the grant of a preliminary injunction is a matter committed to the

10 discretion of the trial judge[.]” Epona v. Cty. of Ventura, 876 F.3d 1214, 1227 (9th Cir.

11 2017) (internal quotation marks and citations omitted). “‘A plaintiff seeking a

12 preliminary injunction must establish that he is likely to succeed on the merits, that he is

13 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

14 equities tips in his favor, and that an injunction is in the public interest.” Glossip v. Gross,

15 __ U.S. __, 135 S. Ct. 2726, 2736-37 (2015) (quoting Winter v. Natural Resources

16 Defense Council, Inc., 555 U.S. 7, 20 (2008)). “Under Winter, plaintiffs must establish

17 that irreparable harm is likely, not just possible, in order to obtain a preliminary

18 injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.

19 2011).

20 In addition, the PLRA requires prisoners to satisfy additional requirements when

21 seeking preliminary injunctive relief against prison officials:

22 Preliminary injunctive relief must be narrowly drawn, extend no further than

necessary to correct the harm the court finds requires preliminary relief, and

23

be the least intrusive means necessary to correct that harm. The court shall

24 give substantial weight to any adverse impact on public safety or the operation

of a criminal justice system caused by the preliminary relief and shall respect

25

the principles of comity set out in paragraph (1)(B) in tailoring any

26 preliminary relief.

27 18 U.S.C. § 3626(a)(2).

28 ///

1 Section 3626(a)(2) places significant limits upon a court’s power to grant

2 preliminary injunctive relief to inmates, and “operates simultaneously to restrict the

3 equity jurisdiction of federal courts and to protect the bargaining power of prison

4 administrators—no longer may courts grant or approve relief that binds prison

5 administrators to do more than the constitutional minimum.” Gilmore v. People of the

6 State of California, 220 F.3d 987, 998-99 (9th Cir. 2000).

7 B. Application to Plaintiff’s Case

8 First, the Court notes Plaintiff’s case is still in its preliminary screening stage, the

9 United States Marshal has yet to effect service upon Dr. Chau on his behalf, and Plaintiff

10 has not “certified in writing any efforts made to give notice and the reasons why it should

11 not be required.” Fed. R. Civ. P. 65(b)(1)(B). Indeed, the Court has no personal

12 jurisdiction over any Defendant at this time. See Fed. R. Civ. P. 65(d)(2); Murphy Bros.,

13 Inc., 526 U.S. at 350; Zepeda, 753 F.2d at 727-28.

14 Second, even if the Court had personal jurisdiction over Dr. Chau, Plaintiff has

15 failed to establish “specific facts in an affidavit or a verified complaint [to] clearly show

16 that immediate and irreparable injury, loss, or damage will result to [him] before the

17 adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A); Winter, 555 U.S.

18 at 20; Alliance for the Wild Rockies, 632 F.3d at 1131. “The fact that plaintiff has met the

19 pleading requirements allowing him to proceed with the complaint does not, ipso facto,

20 entitle him to a preliminary injunction.” Claiborne v. Blauser, No. CIV S-10-2427 LKK,

21 2011 WL 3875892, at *8 (E.D. Cal. Aug. 31, 2011), report and recommendation

22 adopted, No. CIV S-10-2427 LKK, 2011 WL 4765000 (E.D. Cal. Sept. 29, 2011).

23 Instead, to meet the “irreparable injury” requirement, Plaintiff must do more than

24 plausibly allege imminent harm; he must demonstrate it. Caribbean Marine Servs. Co.,

25 Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). This requires Plaintiff to

26 demonstrate by specific facts and evidence that there is a credible threat of immediate and

27 irreparable harm. See Fed. R. Civ. P. 65(b). “Speculative injury does not constitute

28 irreparable injury sufficient to warrant granting a preliminary injunction.” Carribbean

1 Marine Servs. Co., 844 F.3d at 674-75.

2 Here, Plaintiff claims Dr. Chau has failed to adequately address his medical needs

3 by downplaying his complaints, inaccurately documenting his condition, and by failing to

4 arrange or ensure he would be scheduled for a ventral hernia surgery on an “emergency”

5 basis. See Compl. ¶¶ 33‒34. In his Motion to Amend his TRO, Plaintiff contends his pain

6 level has increased, he is unable to function at a prison job assignment, and remains

7 wheelchair bound despite an “obvious need for repair surgery.” See ECF No. 8 at 3.

8 Plaintiff concludes that “[t]he lack of diligent monitoring … is not only disconcerting, but

9 could be life-threatening possibly causing irreparable harm.” Id.

10 While the Court must construe the allegations in Plaintiff’s Complaint in the light

11 most favorable to him in order to determine whether he has sufficiently pleaded a

12 plausible claim for relief against Dr. Chua under the Eighth Amendment, see Iqbal, 556

13 U.S. at 679, these claims alone do not establish that he currently faces the type of

14 immediate and credible threat of irreparable injury necessary to justify extraordinary

15 injunctive relief at this stage of the case. Lyons, 461 U.S. at 102; Winter, 129 S. Ct. at

16 375–76; Alliance for the Wild Rockies, 632 F.3d at 1131 (“Under Winter, plaintiff[ ] must

17 establish that irreparable harm is likely, not just possible.”); Goldie’s Bookstore, Inc. v.

18 Superior Court of State of Cal., 739 F.2d 466, 472 (9th Cir. 1984) (“Speculative injury

19 does not constitute irreparable injury.”). Rigsby v. State, No. CV 11-1696-PHX-DGC,

20 2013 WL 1283778, at *5 (D. Ariz. Mar. 28, 2013) (denying prisoner’s TRO based on fear

21 of potential future injury based on past assaults); Chappell v. Stankorb, No. 1:11-CV-

22 01425-LJO, 2012 WL 1413889, at *2 (E.D. Cal. Apr. 23, 2012) (denying injunctive relief

23 where prisoner’s claims of injury based on current or future housing decisions were

24 nothing “more than speculative.”), report and recommendation adopted, No. 1:11-CV-

25 01425-LJO, 2012 WL 2839816 (E.D. Cal. July 9, 2012). A presently existing actual

26 threat must be shown, even though injury need not be certain to occur. See Zenith Radio

27 Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130-31 (1969); FDIC v. Garner, 125

28 F.3d 1272, 1279-80 (9th Cir. 1997); Caribbean Marine, 844 F.2d at 674.

1 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should

2 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’”

3 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong,

4 520 U.S. 968, 972 (1997) (per curiam)); see also Ctr. for Competitive Politics v. Harris,

5 784 F.3d 1307, 1312 (9th Cir. 2015) (movant “bears the heavy burden of making a clear

6 showing’ that it [i]s entitled to a preliminary injunction”). At this early stage of the case,

7 while Plaintiff has sufficiently pleaded a plausible claim for relief with respect to Dr.

8 Chau, neither his Complaint, the medical records he has attached as exhibits, nor his

9 Motion for TRO, make the clear showing necessary to justify the “drastic remedy” of

10 immediate injunctive relief. See Lopez, 680 F.3d at 1072; 11A Charles Alan Wright &

11 Arthur R. Miller, Fed. Prac. & Proc. § 2949 (3d ed. 2019) (“Evidence that goes beyond

12 the unverified allegations of the pleadings and motion papers must be presented to

13 support or oppose a motion for a preliminary injunction.”); see also Herb Reed

14 Enterprises, LLC v. Fla. Entm’t Mgmt., Inc., 736 F.3d 1239, 1251 (9th Cir. 2013) (a party

15 seeking injunctive relief “must proffer evidence sufficient to establish a likelihood of

16 irreparable harm”); see also Tilei v. California Dep’t of Correction & Rehab., No. 3:19-

17 CV-1708-WQH-KSC, 2020 WL 819094, at *3 (S.D. Cal. Feb. 19, 2020) (finding claims

18 that prisoner was “likely to suffer ‘more’ irreparable harm or even death” after a

19 traumatic spinal injury speculative, not clearly supported by the record, and therefore

20 insufficient to warrant emergency injunctive relief).

21 Therefore, while the Court GRANTS Plaintiff’s Motion to Amend his Motion for

22 TRO (ECF No. 8), it must DENY his Motion for TRO (ECF No. 6) without prejudice

23 pursuant to Fed. R. Civ. P. 65.

24 IV. Conclusion and Orders

25 For all the reasons discussed, the Court:

26 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

27 (ECF No. 2).

28 ///

1 2. ORDERS the Secretary of the CDCR, or his designee, to collect from

2 Plaintiff’s trust account the $50.84 initial filing fee assessed, if those funds are available

3 at the time this Order is executed, and to forward whatever balance remains of the full

4 $350 owed in monthly payments in an amount equal to twenty percent (20%) of the

5 preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s

6 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE

7 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

8 ACTION.

9 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph

10 Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.

11 4. GRANTS Plaintiff’s Motion to Amend his Motion for TRO (ECF No. 8),

12 but DENIES his Motion for TRO without prejudice pursuant to Fed. R. Civ. P. 65 (ECF

13 No. 6).

14 5. DISMISSES Plaintiff’s supervisorial liability and ADA claims sua sponte

15 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) and DIRECTS

16 the Clerk of the Court to terminate the action with respect to Defendants D. ROBERTS

17 and M. ARTEGA.

18 6. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF

19 No. 1) upon Dr. J. CHAU and forward it to Plaintiff along with a blank U.S. Marshal

20 Form 285 for this Defendant. In addition, the Clerk will provide Plaintiff with a certified

21 copy of this Order, a certified copy of his Complaint (ECF No. 1), and a summons so that

22 he may serve Dr. J. CHAU. Upon receipt of this “IFP Package,” Plaintiff must complete

23 the USM Form 285 as completely and accurately as possible, include an address where

24 Dr. J. CHAU may be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c.,

25 and return it to the United States Marshal according to the instructions the Clerk provides

26 in the letter accompanying his IFP package.

27 7. ORDERS the U.S. Marshal to serve a copy of the Complaint (ECF No. 1)

28 and summons upon Dr. J. CHAU as directed by Plaintiff on the USM Form 285 provided

1 him. All costs of that service will be advanced by the United States. See 28 U.S.C.

2 1915(d); Fed. R. Civ. P. 4(c)(3).

3 8. ORDERS Defendant, once he has been served, to reply to Plaintiff's

4 Complaint within the time provided by the applicable provisions of Federal Rule of Civil

5 || Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be

6 || permitted to “waive the right to reply to any action brought by a prisoner confined in any

7 prison, or other correctional facility under section 1983,” once the Court has

8 || conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b),

9 thus, has made a preliminary determination based on the face on the pleading alone

10 || that Plaintiff has a “reasonable opportunity to prevail on the merits,” defendant is

11 required to respond).

12 9. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

13 serve upon Defendant, or if appearance has been entered by counsel, upon Defendant’s

14 || counsel, a copy of every further pleading, motion, or other document submitted for the

15 || Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every

16 || original document he seeks to file with the Clerk of the Court, a certificate stating the

17 |}manner in which a true and correct copy of that document has been served on Defendant

18 || or his counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document

19 ||received by the Court which has not been properly filed with the Clerk or which fails to

20 || include a Certificate of Service upon the Defendant, or his counsel, may be disregarded.

21 IT IS SO ORDERED.

22

23 || Dated: March 16, 2020

24 Hgn. John A. Houston

25 United States District Judge

26

27

28

20 on