# Anderson v. San Diego Sheriff's Office

> District Court, S.D. California · February 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10083059

## Case

- **Court:** District Court, S.D. California
- **Decided:** February 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10083059

## How later opinions describe it (automated extraction)

- noting that screening pursuant to § 1915A “incorporates the familiar standard 19 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 20 12(b)(6)”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 MICHAEL ANDERSON, Case No. 20cv2438-MMA-RBM
Booking #20924254,
12
ORDER GRANTING MOTION TO
Plaintiff,
13 PROCEED IN FORMA PAUPERIS;
vs.
14
[Doc. No. 2]
SAN DIEGO SHERIFF’S OFFICE;
15
GEORGE BAILEY DETENTION
DISMISSING CLAIMS AND
16 FACILITY; A. APEZ; OFFICER 4;
DEFENDANTS FOR FAILING TO
MICHAEL R. BARNETT; OFFICER
17 STATE A CLAIM PURSUANT TO
McDONALD,
28 U.S.C. § 1915(e)(2)(B) AND
18 Defendants. 28 U.S.C. § 1915A(b)
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21 Plaintiff Michael Anderson, while incarcerated at the San Diego County Sheriff
22 Department’s George Bailey Detention Facility (“GBDF”) in San Diego, California, and
23 proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. See
24 Compl., Doc. No. 1. Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when
25 he filed his Complaint; instead, he has filed a Motion to Proceed In Forma Pauperis
26 (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2.
27 I. Motion to Proceed IFP
28 All parties instituting any civil action, suit or proceeding in a district court of the
1 United States, except an application for writ of habeas corpus, must pay a filing fee of
2 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
3 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
4 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
5 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
6 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
7 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
8 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed.
9 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.
10 2002).
11 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
12 “certified copy of the trust fund account statement (or institutional equivalent) for ... the
13 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
14 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
15 trust account statement, the Court assesses an initial payment of 20% of (a) the average
16 monthly deposits in the account for the past six months, or (b) the average monthly
17 balance in the account for the past six months, whichever is greater, unless the prisoner
18 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution
19 having custody of the prisoner then collects subsequent payments, assessed at 20% of the
20 preceding month’s income, in any month in which his account exceeds $10, and forwards
21 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. §
22 1915(b)(2); Bruce, 136 S. Ct. at 629.
23 In support of his IFP Motion, Plaintiff has submitted a copy of his San Diego
24 County Sheriff’s Department Inmate Trust Account Activity statement. See Doc. No. 2
25

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1 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.
Dec. 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed
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1 at 6; 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. This
2 statement shows that Plaintiff had only a $32.56 available balance to his credit at the time
3 of filing. See id.
4 Based on this accounting, the Court assesses no initial partial filing fee pursuant to
5 28 U.S.C. § 1915(a)(1) and (b)(1), as Plaintiff has insufficient funds with which to pay an
6 initial fee at the time this Order issues. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n
7 no event shall a prisoner be prohibited from bringing a civil action or appealing a civil
8 action or criminal judgment for the reason that the prisoner has no assets and no means
9 by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d
10 at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal
11 of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds
12 available to him when payment is ordered.”).
13 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP, declines to exact
14 an initial filing fee because his trust account statements suggest he may have “no means
15 to pay it,” Bruce, 136 S. Ct. at 629, and instead directs the Watch Commander at GBDF,
16 or their designee, to collect the entire $350 balance of the filing fee required by 28 U.S.C.
17 § 1914 and to forward all payments to the Clerk of the Court pursuant to the installment
18 provisions set forth in 28 U.S.C. § 1915(b)(1).
19 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A
20 A. Standard of Review
21 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
22 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
23 statutes, the Court must review and sua sponte dismiss an IFP complaint, and any
24 complaint filed by a prisoner seeking redress from a governmental entity, or officer or
25 employee of a governmental entity, which is frivolous, malicious, fails to state a claim, or
26 seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122,
27 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.
28 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The
1 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need
2 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th
3 Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.
4 2012)).
5 All complaints must contain “a short and plain statement of the claim showing that
6 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are
7 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
8 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
9 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining
10 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
11 requires the reviewing court to draw on its judicial experience and common sense.” Id.
12 The “mere possibility of misconduct” falls short of meeting this plausibility standard.
13 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
14 “The standard for determining whether a plaintiff has failed to state a claim upon
15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
17 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
18 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
19 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
20 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter,
21 accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at
22 678 (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
23 “When there are well-pleaded factual allegations, a court should assume their
24 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
25 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
26 (“[W]hen determining whether a complaint states a claim, a court must accept as true all
27 allegations of material fact and must construe those facts in the light most favorable to
28 the plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro
1 se, particularly in civil rights cases, to construe the pleadings liberally and to afford the
2 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
3 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not
4 “supply essential elements of claims that were not initially pled.” Ivey v. Board of
5 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
6 Finally, the “[c]ourt[] must consider the complaint in its entirety,” including
7 “documents incorporated into the complaint by reference” to be part of the pleading when
8 determining whether the plaintiff has stated a claim upon which relief may be granted.
9 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Fed. R. Civ. P.
10 10(c) (“A copy of a written instrument that is an exhibit to a pleading for all purposes.”);
11 Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
12 B. 42 U.S.C. § 1983
13 “Section 1983 creates a private right of action against individuals who, acting
14 under color of state law, violate federal constitutional or statutory rights.” Devereaux v.
15 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
16 substantive rights, but merely provides a method for vindicating federal rights elsewhere
17 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks
18 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)
19 deprivation of a right secured by the Constitution and laws of the United States, and (2)
20 that the deprivation was committed by a person acting under color of state law.” Tsao v.
21 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
22 C. Factual Allegations
23 On August 18, 2020, Plaintiff was “laying down on [his] bunk when [he] heard
24 “worker in.” Compl. at 3. Plaintiff alleges his cell door was opened and “sixteen –
25 twenty Hispanics had rushed in and attacked [him] and [his] fellow African Americans.”
26 Id.
27 Plaintiff claims that “all [he] could do was defend [himself] against the officers
28 [as] they broke up the riot.” Id. Officer McDonald purportedly told Plaintiff “get yo
1 bitch ass down” while “letting an inmate” spit on Plaintiff. Id. Plaintiff “crawled out [of]
2 the way” and McDonald allegedly tased him once in the back. Id. Plaintiff “dropped,
3 turned over” and was tased again in his right arm, once in the center of his stomach, and
4 once “right under [his] heart.” Id. Plaintiff further claims that “during the tossing four
5 officers jumped on [him]” and he suffered a fractured wrist as a result.” Id.
6 Soon after, Plaintiff alleges that he “started coughing up blood.” Id. at 4. In
7 addition, Plaintiff’s right hand went numb and he had lower back pain. (See id.) Plaintiff
8 was scheduled to get an x-ray but on the day of his appointment, he was “transferred to
9 Central Jail.” Id.
10 Plaintiff seeks a “reduction on bail,” $53,000 in compensatory damages, and
11 $53,000 in punitive damages. Id. at 7.
12 D. Individual Causation
13 As an initial matter, Plaintiff’s Complaint fails to contain any specific factual
14 allegations against Defendants Apez or Barnett and contains no “further factual
15 enhancement” which describes how, or to what extent, these individuals became aware
16 of, or were actually aware of, any alleged constitutional violation. “Because vicarious
17 liability is inapplicable to . . . §1983 suits, a plaintiff must plead that each government-
18 official defendant, through the official’s own individual actions, has violated the
19 Constitution.” Iqbal, 556 U.S. at 676; see also Jones v. Community Redevelopment
20 Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff
21 must “allege with at least some degree of particularity overt acts which defendants
22 engaged in” in order to state a claim).
23 “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks
24 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must
25 be individualized and focus on the duties and responsibilities of each individual
26 defendant whose acts or omissions are alleged to have caused a constitutional
27 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988), citing Rizzo v. Goode,
28 423 U.S. 362, 370-71 (1976). There are no factual allegations linking Defendants Apez
1 or Barnett to any of his claims regarding alleged constitutional violations.
2 Thus, for these reasons, the Court finds that Plaintiff’s claims against Apez and
3 Barnett must be dismissed for failing to state a claim upon which relief may be granted.
4 E. San Diego Sheriff’s Office
5 To the extent that Plaintiff names the “San Diego Sheriff’s Office,” (“SDSO”) and
6 GBDF as Defendants, he fails to state a claim upon which § 1983 relief may be granted.
7 Departments of municipal entities are not “persons” subject to suit under § 1983;
8 therefore, a local law enforcement agency, like the SDSO, and detention facilities are not
9 proper parties. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal.
10 1996) (“Naming a municipal department as a defendant is not an appropriate means of
11 pleading a § 1983 action against a municipality.”) (citation omitted); Powell v. Cook
12 County Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993) (“Section 1983 imposes liability on
13 any ‘person’ who violates someone’s constitutional rights ‘under color of law.’ Cook
14 County Jail is not a ‘person.’”).
15 “Persons” under § 1983 are state and local officials sued in their individual
16 capacities, private individuals and entities which act under color of state law, and/or the
17 local governmental entity itself. Vance, 928 F. Supp. at 995-96. The SDSO is a law
18 enforcement agency or department of the County of San Diego, but it is not a “person”
19 subject to suit under § 1983. See e.g., United States v. Kama, 394 F.3d 1236, 1239 (9th
20 Cir. 2005) (“[M]unicipal police departments and bureaus are generally not considered
21 ‘persons’ within the meaning of section 1983.”); Rodriguez v. Cnty. of Contra Costa,
22 2013 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013) (citing Hervey v. Estes, 65 F.3d 784,
23 791 (9th Cir. 1995)) (“Although municipalities, such as cities and counties, are amenable
24 to suit under Monell [v. Dep’t of Social Servs, 436 U.S. 658 (1978)], sub-departments or
25 bureaus of municipalities, such as the police departments, are not generally considered
26 “persons” within the meaning of § 1983.”); Nelson v. Cty. of Sacramento, 926 F. Supp.
27 2d 1159, 1170 (E.D. Cal. 2013) (dismissing Sacramento Sheriff’s Department from
28 section 1983 action “with prejudice” because it “is a subdivision of a local government
1 entity,” i.e., Sacramento County); Gonzales v. City of Clovis, 2013 WL 394522 (E.D. Cal.
2 Jan. 30, 2013) (holding that the Clovis Police Department is not a “person” for purposes
3 of section 1983); Wade v. Fresno Police Dep’t, 2010 WL 2353525 at *4 (E.D. Cal. June
4 9, 2010) (finding the Fresno Police Department to not be a “person” under section 1983).
5 Therefore, Plaintiff cannot pursue any § 1983 civil rights claims against the “San Diego
6 Sheriff’s Department.” See Boone v. Deutsche Bank Nat’l Tr. Co., No. 2:16-CV-1293-
7 GEB-KJN-PS, 2017 WL 117966, at *3 (E.D. Cal. Jan. 12, 2017) (“Because the Solano
8 County Sheriff’s Department is not a ‘person’ within the meaning of Section 1983,
9 plaintiffs cannot maintain their claims against it under that statute as a matter of law.”).
10 To the extent Plaintiff intends to assert a claim against the County of San Diego
11 itself, his allegations are also insufficient. A municipal entity may be held liable under
12 § 1983 only if he alleges facts sufficient to plausibly show that he was deprived of a
13 constitutional right by individually identified employees who acted pursuant to the
14 municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429
15 U.S. 274, 280 (1977); Monell, 436 U.S. at 691; Villegas v. Gilroy Garlic Festival Ass’n,
16 541 F.3d 950, 964 (9th Cir. 2008). The County of San Diego may not be held vicariously
17 liable under § 1983 simply because one of its employees is alleged to have acted
18 wrongfully. See Board of Cty. Comm’rs. v. Brown, 520 U.S. 397, 403 (1997); Monell,
19 436 U.S. at 691 (“[A] a municipality cannot be held liable solely because it employs a
20 tortfeasor.”); Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014). Instead, the
21 municipality may be held liable “when execution of a government’s policy or custom ...
22 inflicts [a constitutional] injury.” Monell, 436 U.S. at 694; Los Angeles Cty., Cal. v.
23 Humphries, 562 U.S. 29, 36 (2010).
24 Therefore, the Court DISMISSES all claims against the San Diego Sheriff’s
25 Office and George Bailey Detention Facility for failing to state a claim upon which §
26 1983 relief can be granted.
27 F. Medical care claims
28 “[C]laims for violations of the right to adequate medical care ‘brought by pretrial
1 detainees against individual defendants under the Fourteenth Amendment’ must be
2 evaluated under an objective deliberate indifference standard.” Gordon v. Cty. of
3 Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (quoting Castro v. County of Los Angeles,
4 833 F.3d 1060, 1070 (9th Cir. 2016)). Therefore, “the plaintiff must ‘prove more than
5 negligence but less than subjective intent - something akin to reckless disregard.’” Id.
6 Plaintiff must allege facts sufficient to show that:
7 (i) [each] defendant made an intentional decision with respect to the
conditions under which [he] was confined; (ii) those conditions put [him] at
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substantial risk of suffering serious harm; (iii) [each] defendant did not take
9 reasonable available measures to abate that risk, even though a reasonable
official in the circumstances would have appreciated the high degree of risk
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involved—making the consequences of the defendant’s conduct obvious; and
11 (iv) by not taking such measures, [each] defendant caused [his] injuries.
12 Gordon, 888 F.3d at 1125.
13 Here, Plaintiff may have alleged facts sufficient to state a claim but none of the
14 named Defendants are alleged to have any involvement in his medical care. If Plaintiff
15 chooses to amend his pleading, he must specifically identify the individuals whom he
16 claims are responsible for the alleged failure to provide him with adequate medical
17 attention.
18 G. Excessive Force claim
19 Based on the remaining allegations set forth above, the Court finds Plaintiff’s
20 excessive force claim against Defendant McDonald is sufficient to survive the “low
21 threshold” for proceeding past the sua sponte screening required by 28 U.S.C.
22 §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir.
23 2012; Iqbal, 556 U.S. at 678.
24 H. Leave to Amend
25 Because the Court has determined that some of Plaintiff’s claims survive the sua
26 sponte screening process, the Court will give Plaintiff the opportunity to either: (1) notify
27 the Court of the intent to proceed with his excessive force claim against McDonald only;
28 or (2) file an amended pleading correcting all the deficiencies of pleading identified by
1 the Court in this Order. Plaintiff must choose one of these options within forty-five (45)
2 days from the date this Order is filed. If Plaintiff chooses to proceed as to his claims
3 against McDonald only, the Court will issue an Order directing the U.S. Marshal to effect
4 service of his Complaint on McDonald and dismiss the remaining claims and defendants.
5 III. Conclusion and Order
6 Good cause appearing, IT IS HEREBY ORDERED that:
7 1. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (Doc. No.
8 2) is GRANTED.
9 2. The Watch Commander for GBDF, or their designee, shall collect from
10 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly
11 payments from the account in an amount equal to twenty percent (20%) of the preceding
12 month’s income and forward payments to the Clerk of the Court each time the amount in
13 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS
14 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED
15 TO THIS ACTION.
16 3. The Clerk of the Court is directed to serve a copy of this Order on Watch
17 Commander, George Bailey Detention Facility, 446 Alta Road, San Diego, California
18 92158.
19 IT IS FURTHER ORDERED:
20 4. The Court DISMISSES Plaintiff’s claims against Defendants San Diego
21 Sheriff’s Department, George Bailey Detention Facility, A. Apez, Officer 4, and Michael
22 Barnett for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).
23 5. The Court GRANTS Plaintiff forty-five (45) days leave from the date of this
24 Order in which to either: (1) Notify the Court of the intention to proceed with the claims
25 against McDonald only; or (2) File an Amended Complaint which cures all the
26 deficiencies of pleading noted. Plaintiff’s Amended Complaint must be complete in itself
27 without reference to his original pleading. Defendants not named and any claims not re-
28 alleged in the Amended Complaint will be considered waived. See CIVLR 15.1; Hal
1 || Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)
2 ||(‘[A]n amended pleading supersedes the original.”’); Lacey, 693 F.3d at 928 (noting that
3 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading
4 || may be “considered waived if not repled.”).
5 6. The Court DIRECTS the Clerk of the Court to provide Plaintiff with a
6 || blank copy of its form complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his use
7 amending.
8 IT IS SO ORDERED.
9 || DATE: February 4, 2021 MM A, □□ i 1 Ly □□
10 Hon. Michael M. Anello
ll United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10083059. Public record. Not legal advice.