Pies-Lonsdale v. Lemus

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 Case No.: 3:22-cv-0309-TWR-JLB

GABRIEL PIES-LONSDALE,

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ORDER: (1) GRANTING MOTION

Plaintiff,

13 TO PROCEED IN FORMA

14 PAUPERIS (ECF No. 2)

15 v. (2) DISMISSING CLAIMS AND

DEFENDANT HARTLEY FOR

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FAILING TO STATE A CLAIM

17 UNDER 28 U.S.C. §§ 1915(e)(2)(B)

LEMUS, Chaplain; T. HARTLEY, Case AND 1915A(b) AND

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Manager,

19 (3) DIRECTING U.S. MARSHAL TO

Defendants.

EFFECT SERVICE AS TO

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DEFENDANT LEMUS PURSUANT

21 TO 28 U.S.C. § 1915(d) AND FED. R.

CIV. P. 4(c)(3)

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23 On March 4, 2022, Gabriel Pies-Lonsdale (“Plaintiff”), currently detained after

24 being arrested for violating the terms of his supervised release1, and proceeding pro se, has

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1 Plaintiff was arrested on December 7, 2021 after an alleged violation of the terms of his supervised

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release. See United States v. Pies-Longsdale, 3:21-cr-3090-GPC-1, ECF No. 81; see also Bias v.

1 filed a civil action pursuant to 42 U.S.C. § 1983. (See ECF No. 1, the “Complaint”.) At

2 the time the Complaint was filed, Plaintiff was detained at GEO Western Region Detention

3 Facility. See id. He has since been transferred to the Metropolitan Correction Center

4 (“MCC”). (See ECF No. 3.) On March 8, 2022, this Court dismissed the Complaint

5 without prejudice because Plaintiff did not pay the $402 civil filing fee required by 28

6 U.S.C. § 1914(a) or file a Motion to Proceed in forma pauperis (“IFP”) pursuant to 28

7 U.S.C. § 1915(a). (See ECF No. 2.) The Court received notice on March 21, 2022 that the

8 March 8, 2022 Order was retuned and undeliverable (see ECF No. 4), consequently, the

9 Court resent the Order to Plaintiff’s new address, and gave Plaintiff until May 29, 2022 to

10 either pay the $402 filing fee or provide adequate proof of his inability to pay. (See ECF

11 No. 5.) Plaintiff timely filed a Motion to Proceed in forma pauperis on March 24, 2022.

12 (See ECF No. 6.)

13 I. Motion to Proceed in forma pauperis

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

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

16 $402.2 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

17 prepay the entire fee only if he is granted leave to proceed in forma pauperis pursuant to

18 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);

19 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, the Prison Litigation

20 Reform Act’s (“PLRA”) amendments to § 1915 require that all prisoners who proceed in

21 forma pauperis, pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 577

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Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (A court “may take notice of proceedings in other

24 courts, both within and without the federal judicial system, if those proceedings have a direct relation to

matters at issue.”) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).

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2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52.

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

(eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to persons granted leave to

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proceed IFP. Id.

1 U.S. 82, 83–84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015),

2 regardless of whether their action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) &

3 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

4 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment

5 of fees to file an affidavit that includes a statement of all assets possessed and demonstrates

6 an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In

7 support of this affidavit, the PLRA also requires prisoners to submit a “certified copy of

8 the trust fund account statement (or institutional equivalent) for . . . the 6-month period

9 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

10 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the

11 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account

12 for the past six months, or (b) the average monthly balance in the account for the past six

13 months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C.

14 § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then

15 collects subsequent payments, assessed at 20% of the preceding month’s income, in any

16 month in which his account exceeds $10, and forwards those payments to the Court until

17 the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 84.

18 In support of his motion to proceed in forma pauperis, Plaintiff has submitted a

19 certified prison certificate issued by MCC which attests as to his trust account activity

20 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. Civ. Local Rule 3.2. (See ECF No. 3);

21 Andrews, 398 F.3d at 1119. This certificate indicates Plaintiff has an average monthly

22 balance of $50.48, and an average of $50.48 in monthly deposits credited to his account

23 over the 6-month period immediately preceding the filing of his Complaint. His available

24 balance as of March 16, 2022, was $0.00. See id. at 4–5. Therefore, the Court GRANTS

25 Plaintiff’s Motion to Proceed in forma pauperis (see ECF No. 6). Further, the Court

26 declines to exact any initial filing fee because his prison certificates indicate he may have

27 “no means to pay it,” Bruce, 577 U.S. at 84, and directs the Warden of MCC, or his

1 designee, to instead collect the entire $350 balance of the filing fees required by 28 U.S.C.

2 § 1914 and forward them to the Clerk of the Court pursuant to the installment payment

3 provisions set forth in 28 U.S.C. § 1915(b)(1).

4 II. Screening Pursuant to 28 U.S.C. § 1915(e) and § 1915A(b)

5 A. Standard of Review

6 The PLRA obligates the Court to review complaints filed by all persons proceeding

7 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and]

8 accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the

9 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as

10 soon as practicable after docketing.” See 28 U.S.C. § 1915(e)(2), (h), § 1915A(a)–(c).

11 Under these provisions of the PLRA, the Court must sua sponte dismiss complaints, or any

12 portions thereof, which are frivolous, malicious, fail to state a claim, or which seek

13 damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b);

14 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes

15 v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

16 All complaints must contain “a short and plain statement of the claim showing that

17 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

18 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

19 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

20 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether

21 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires

22 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere

23 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

24 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

25 “When there are well-pleaded factual allegations, a court should assume their

26 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”

27 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)

1 (“[W]hen determining whether a complaint states a claim, a court must accept as true all

2 allegations of material fact and must construe those facts in the light most favorable to the

3 plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that

4 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). On the

5 other hand, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of

6 the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

7 550 U.S. at 555).

8 In addition, the court “ha[s] an obligation where the petitioner is pro se, particularly

9 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the

10 benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing

11 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)). However, it may not “supply

12 essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the

13 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

14 B. Plaintiff’s Allegations

15 In his Complaint, Plaintiff alleges that while detained at GEO Western Region

16 Detention Facility (“GEO-WRDF”) he was denied the right to practice his religion. He

17 contends that on February 17, 2022, he submitted a request to Chaplain Lemus, which

18 stated:

19 I would like Haitian Voodoo prayers so I can find salvation thru my religion

as I am documented thru the B.O.P. thank you for allowing me to practice my

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First Amendment Right.

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22 (See Complaint at 3.) Plaintiff received a response from Lemus denying his request on

23 February 24, 2022 stating, “Voodoo practices are all about rituals that we do not allow in

24 this facility for security and safety reasons.” (See id.) That same day, Plaintiff filed a

25 grievance with the detention facility, stating that he requested voodoo prayers and

26 “chaplain Lemus imposed a substantial burden on [his] religious exercise.” (See id. at 4.)

27 On February 26, 2022, when Lemus was making her “rounds,” Plaintiff asked her why she

1 denied his request since nothing in the request involved practices that were “threatening”

2 to the security of the facility. (See id. at 3.) Lemus responded: “[B]ecause your religion is

3 not a religion.” (See id.)

4 Plaintiff alleges his First Amendment right to exercise his religion and his rights

5 under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) were violated

6 by Lemus, and T. Hartley, a case manager at GEO-WRDF. (See id. at 4.) He seeks an

7 injunction preventing defendants from denying him “religious documents for and of

8 prayers” and “religious physical items for pray[er] rituals.” (See id. at 6.) He also seeks

9 $800,000,000 in compensatory and punitive damages. (See id.)

10 C. 42 U.S.C. § 1983 and/or Bivens Action

11 Section 1983 is a “vehicle by which plaintiffs can bring federal constitutional and

12 statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d

13 1063, 1067 (9th Cir. 2006). To state a claim under section 1983, Pies-Lonsdale must allege

14 two essential elements: (1) that a right secured by the Constitution or laws of the United

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

16 under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frey, 789

17 F.3d 1030, 1035‒36 (9th Cir. 2015). Here, the allegations giving rise to Plaintiff’s claims

18 took place in a private detention facility operated by GEO, which houses federal detainees.3

19 As such, Plaintiff has not alleged Defendants were acting under color of state law. Instead,

20 because Plaintiff was a federal detainee while held at GEO-WRDF, the Court liberally

21 construes his First Amendment claim to arise under Bivens v. Six Unknown Named Agents

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3 The Court takes judicial notice of the fact that “GEO’s Western Region Detention Facility contract

with the United States Marshal Service was operating under a two-year option period which was

25 scheduled to end on September 30, 2021,” but on September 21, 2021, it was announced that the

contract would be extended an additional six months, beginning on October 1, 2021. See Press Release,

26 “The GEO Group Enters Into Six-Month Contract Extension With U.S. Marshals Service for Western

Region Detention Facility” (Sept. 21, 2021) (visited April 26, 2022).

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1 of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Johnson v. Corr. Corp. of

2 Am., 2014 WL 2919300, at *2-3 (S.D. Cal. June 26, 2014) (construing an ICE detainee

3 plaintiff’s claims asserted under § 1983 against a private corporation operating under

4 contract with a federal agency as Bivens claims); Karboau v. Clark, 2012 WL 5350159, at

5 *6-7 (W.D. Wash. Oct. 9, 2012) (dismissing an excessive force and failure to protect claim

6 asserted by plaintiff, an ICE detainee, against GEO Group employees because the claims

7 were beyond the reach of Bivens); Bromfield v. McBurney, 2008 WL 2746289, at *7-13

8 (W.D. Wash. July 8, 2008) (where defendant GEO Group had contracted with the federal

9 government to operate a federal immigration detention facility, GEO Group and its

10 employees were acting under color of federal law).

11 Even liberally construing Plaintiff’s claim under Bivens, however, Plaintiff fails to

12 state a First Amendment free exercise claim. First, neither the Supreme Court nor the Ninth

13 Circuit Court of Appeals has ever extended Bivens to free exercise claims. See Iqbal, 556

14 U.S. at 675 (declining to decide whether a free exercise claim is actionable under Bivens).

15 The Third Circuit, however, has stated that because the Religious Freedom Restoration Act

16 (“RFRA”) provides an “alternative remedial scheme” with all “appropriate relief” for free

17 exercise violations “we can conceive no adequate justification for extending Bivens to Free

18 Exercise claims. Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016) (citing

19 Wilkie v. Robbins, 551 U.S. 537 (2007) and Holt v. Hobbes, 574 U.S. 352 (2015)).

20 Moreover, assuming arguendo Bivens extends to free exercise claims, Plaintiff still

21 fails to state a claim because Defendants in this case are employees of a private detention

22 facility operated by GEO Group under contract with the United States Marshal Service.

23 Bivens actions are not available against employees of a private corporation operating under

24 contract with federal government. Minneci v. Pollard, 565 U.S. 118, 131 (2012) (finding

25 no Bivens cause of action where a federal prisoner seeks damages from privately employed

26 personnel working at privately operated federal facility). Therefore, Plaintiff has failed to

27 state a Bivens claim for relief.

1 D. RFRA

2 Plaintiff also contends Defendants violated his rights under the RLUIPA. (See

3 Complaint at 4.) Under RLUIPA, “[n]o [state or local] government shall impose a

4 substantial burden on the religious exercise of a person residing in or confined to an

5 institution,” unless the government shows that the burden furthers “a compelling

6 governmental interest” and does so by “the least restrictive means.” 42 U.S.C. § 2000cc-

7 1(a)(1)–(2). Thus, RLUIPA applies to state governments. See Holt v. Hobbs, 574 U.S.

8 352, 357 (2015). Because Plaintiff is a federal detainee, the Court liberally construes his

9 claim under the RFRA, which applies to the federal government4 and sets forth a standard

10 similar to RLUIPA. See Cutter v. Wilkinson, 544 U.S. 709, 715 (2005).

11 The RFRA states that the “[g]overnment shall not substantially burden a person’s

12 exercise of religion even if the burden results from a rule of general applicability [unless]

13 “application of the burden . . . (1) is in furtherance of a compelling governmental interest;

14 and (2) is the least restrictive means of furthering that compelling governmental interest.”

15 42 U.S.C. § 2000bb-1. Congress enacted RFRA “in order to provide very broad protection

16 for religious liberty.” Holt, 574 U.S. at 356–57 (quoting Burwell v. Hobby Lobby Stores,

17 Inc., 573 U.S. 682, 693 (2014)). RFRA places a more demanding burden on the

18 government “to ‘sho[w] that it lacks other means of achieving its desired goal without

19 imposing a substantial burden on the exercise of religion by the objecting part[y].’” Holt,

20 574 U.S. at 364–65 (quoting Burwell, 573 U.S. at 728).

21 1. Lemus

22 Construing his allegations liberally, Plaintiff has stated a plausible claim that the that

23 Lemus substantially burdened his ability to practice his religion. The Court therefore will

24 permit Plaintiff’s RFRA claim for money damages to proceed against Lemus. See Tanzin

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26 4 The United States Supreme Court held that RFRA was unconstitutional as applied to the states in City

of Boerne v. Flores, 521 U.S. 507, 519 (1997), but RFRA continues to apply to the federal government

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and its officers. Sossamon v. Texas, 563 U.S. 277, 281 (2011).

1 v. Tanvir, ––U.S.––, 141 S. Ct. 486, 493 (2020) (“RFRA’s express remedies provision

2 permits litigants, when appropriate, to obtain money damages against federal officials in

3 their individual capacities.”); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1068 (9th

4 Cir. 2008) (concluding that to state a prima facie RFRA claim, a plaintiff must allege a

5 government action “substantially burdens” the plaintiff’s “exercise of religion”). The

6 Court dismisses Plaintiff’s claim for injunctive relief, however, because Plaintiff is no

7 longer housed at GEO-WRDF. See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995)

8 (holding an inmate’s transfer to another prison while his claims are pending will generally

9 moot any claims for injunctive relief relating to the conditions at the former prison).

10 2. Hartley

11 As to Defendant Hartley, Plaintiff fails to present any factual allegations concerning

12 his conduct or lack thereof. (See Complaint at 3–4.) Insofar as Plaintiff is attempting to

13 allege Hartley is vicariously liable for Lemus’ conduct, even assuming such a claim can be

14 raised, Plaintiff fails to allege sufficient facts to do so. See Iqbal, 556 U.S. at 678.

15 Therefore, Plaintiff’s RFRA claim against Hartley is dismissed without prejudice.

16 III. Conclusion and Order

17 For the reasons set forth above, the Court hereby:

18 (1) GRANTS Plaintiff’s Motion to Proceed in forma pauperis (see ECF No. 6);

19 (2) ORDERS the Warden of MCC, or his designee, to collect from Plaintiff’s

20 inmate trust account the $350 filing fee owed in this case by collecting monthly payments

21 from the account in an amount equal to twenty percent (20%) of the preceding month’s

22 income and forward payments to the Clerk of the Court each time the amount in the account

23 exceeds $ 10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE

24 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS

25 ACTION.

26 (3) DIRECTS the Clerk of the Court to serve a copy of this Order on Warden,

27 Metropolitan Correction Center, 808 Union Street, San Diego, California 92101.

1 (4) DISMISSES Defendant Hartley pursuant to 28 U.S.C. § 1915(e)(2) and

2 § 1915A based on Plaintiff’s failure to state a claim against him and DIRECTS the Clerk

3 of Court to terminate Hartley as a party to this action.

4 (5) DISMISSES Plaintiff’s: (1) Bivens free exercise claim in its entirety, and

5 (2) RFRA claim as to injunctive relief for failure to state a claim pursuant to 28 U.S.C.

6 § 1915(e)(2) and § 1915A(b).

7 (6) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No.

8 1) upon Defendant Lemus, Chaplain at GEO-WRDF, and forward it to Plaintiff along with

9 a blank U.S. Marshal Form 285. In addition, the Clerk will provide Plaintiff with a certified

10 copy of this Order and a certified copy of his Complaint, and the summons so that he may

11 serve Defendant Lemus. Upon receipt of this “IFP Package,” Plaintiff must complete the

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

13 Defendant may be found and/or subject to service pursuant to S.D. Cal. Civ. Local Rule

14 4.1c., and return them to the United States Marshal according to the instructions the Clerk

15 provides in the letter accompanying his “IFP package.”

16 (7) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons

17 upon Defendant Lemus upon receipt and as directed by Plaintiff on the completed USM

18 Form 285, and to promptly file proof of service, or proof of any attempt at service unable

19 to be executed, with the Clerk of Court. See S.D. Cal. Civ. Local Rule 5.2. All costs of

20 that service will be advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ.

21 P. 4(c)(3).

22 (8) ORDERS Defendant Lemus, once she has been served, to reply to Plaintiff’s

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

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

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

26 jail, prison, or other correctional facility under section 1983,” once the Court has conducted

27 its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has

1 || made a preliminary determination based on the face on the pleading alone that Plaintiff has

2 ||a “reasonable opportunity to prevail on the merits,” defendant is required to respond);

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

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

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

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

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

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

9 ||or their counsel, and the date of that service. See S.D. Cal. Civ. Local Rule 5.2. Any

10 document received by the Court which has not been properly filed with the Clerk or which

11 || fails to include a Certificate of Service upon the Defendant, or her counsel, may be

12 || disregarded.

13 IT IS SO ORDERED.

14 Dated: May 4, 2022 (2

[5 _\@ bre

16 Honorable Todd W. Robinson

United States District Judge

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