Turley v. Laqunas

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MACEY E. TURLEY, Jr., Case No.: 23cv231-LL-BLM

CDCR #BF8128,

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ORDER:

Plaintiff,

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v. (1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

C/O LAQUNAS, ASU Floor Staff

15 [ECF No. 2];

Correctional Officer; Lt. HUSS,

16 Lieutenant on B Yard; Sgt. HARRISON,

(2) SCREENING COMPLAINT

Sergeant in ASU on B Yard; Sgt. KING,

17 PURSUANT TO 28 U.S.C. § 1915(e)(2)

Sergeant in ASU on B Yard,

AND 28 U.S.C. § 1915A(b)

18 Defendants.

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20 Macey E. Turley, Jr. (“Turley” or “Plaintiff”), currently incarcerated at California

21 State Prison, Corcoran (“CSP-COR”), is proceeding pro se with a civil rights complaint

22 pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. He has also filed a Motion to

23 Proceed in Forma Paupers (“IFP”). ECF No. 2.

24 I. Motion to Proceed IFP

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

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

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1 $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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

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

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

5 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

6 Bruce v. Samuels, 577 U.S. 82, 85 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th

7 Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.

8 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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

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

11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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

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

15 in the account for the past six months, whichever is greater, unless the prisoner has no

16 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

17 of the prisoner then collects subsequent payments, assessed at 20% of the preceding

18 month’s income, in any month in which his account exceeds $10, and forwards those

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

20 577 U.S. at 85.

21 In support of his IFP Motion, Turley has submitted a certified copy of his trust

22 account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. See ECF

23 No. 2 at 4; Andrews, 398 F.3d at 1119. The trust account statement shows that Turley has

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1 In civil actions except for applications for a writ of habeas corpus, civil litigants bringing

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suit must pay the $350 statutory fee in addition to a $52 administrative fee. See 28 U.S.C.

27 § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14

(eff. Dec. 1, 2020). The $52 administrative fee does not apply to persons granted leave to

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1 an available balance of $3.03. See id. at 4. Therefore, the Court GRANTS Turley’s Motion

2 to Proceed IFP (ECF No. 2), declines to exact the initial filing fee because his trust account

3 statement indicates he may have “no means to pay it,” Bruce, 577 U.S. at 85, and directs

4 the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) or

5 his designee, to instead collect the entire $350 balance of the filing fees required by 28

6 U.S.C. § 1914 pursuant to the installment payment provisions set forth in 28 U.S.C.

7 § 1915(b)(1) and forward them to the Clerk of the Court. See 28 U.S.C. § 1915(b)(4)

8 (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or

9 appealing a civil action or criminal judgment for the reason that the prisoner has no assets

10 and no means by which to pay the initial partial filing fee”). Bruce, 577 U.S. at 85; Taylor,

11 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing

12 dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of

13 funds available to him when payment is ordered”).

14 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

15 A. Legal Standard

16 Because Turley is a prisoner, his Complaint requires a pre-answer screening

17 pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the Court

18 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,

19 malicious, fails to state a claim, or seeks damages from defendants who are immune. See

20 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C.

21 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28

22 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous

23 or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

24 903, 920 n.1 (9th Cir. 2014) (citation omitted).

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

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

27 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

28 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

1 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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

3 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

4 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

5 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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

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

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

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

10 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

11 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

12 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

13 “Section 1983 creates a private right of action against individuals who, acting under

14 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

15 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

16 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

17 Graham v. Connor, 490 U.S. 386, 393‒94 (1989) (internal quotation marks and citations

18 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right

19 secured by the Constitution and laws of the United States, and (2) that the deprivation was

20 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

21 F.3d 1128, 1138 (9th Cir. 2012).

22 B. Plaintiff’s Factual Allegations

23 The events recounted in the Complaint are alleged to have occurred while Turley

24 was incarcerated at R.J. Donovan State Prison (“RJD”). Compl., ECF No. 2–4. Turley

25 claims he asked Defendants Harrison, King, and Huss for “legal access to the court or to

26 make a legal call to find out what was going on with [a] custody hearing” involving his

27 daughter. Id. at 7. According to Turley, his failure to appear at the July 14, 2022 hearing

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1 caused him to lose custody of his daughter and he “tried to take [his] own life over it.” Id.

2 at 6–7.

3 On August 4, 2022, Turley alleges he told Defendant Laqunas he needed medical

4 help for stomach pain and Laqunas told him he would contact the nurse after he finished

5 the count. Id. at 1. A nurse arrived thirty minutes later to dispense medication. Id. When

6 Turley expressed frustration at the slowness of the nurse’s response, telling the nurse it was

7 an emergency and that he needed help, Turley claims the nurse explained he had not been

8 told about Turley’s request for medical help. Id. When Laqunas later walked by Turley’s

9 cell, Turley claims he called him a “f-ing liar” and “got a razor [he] had in the cell and told

10 him [he] was going to cut himself if he didn’t help me.2” Id. at 1, 7. Turley claims Laqunas

11 then turned his head and walked away. Id. Turley then started cutting himself with the

12 razor. Id. According to Turley, a different correctional officer walked by and saw Turley

13 cutting himself, called a code, and told Turley to give him the razor and he would help him.

14 Id.

15 Although it is not clear from the Complaint what happened next, Turley alleges that

16 on August 6, 2022, he told Harrison, King, and Huss he “want[ed] to sit down in a peaceful

17 protest,” but they “jumped” on him and used excessive force against him. Id. at 5–7.

18 C. Discussion

19 1. Defendant Laqunas

20 The Eighth Amendment requires that inmates have “ready access to adequate

21 medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate

22 indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle

23 v. Gamble, 429 U.S. 97, 104 (1976). “A prison official acts with ‘deliberate

24 indifference . . . only if the [prison official] knows of and disregards an excessive risk to

25 inmate health and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting

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2 Turley also states he “may [have] said I was gonna cut him too.” Compl., ECF No. 1 at

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1 Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on other

2 grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)). “Under

3 this standard, the prison official must not only ‘be aware of facts from which the inference

4 could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also

5 draw the inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

6 Turley has not sufficiently alleged that Laqunas knew he was at “substantial risk of

7 serious harm” and that he actually drew that inference. Id. “Deliberate indifference ‘may

8 appear when prison officials deny, delay or intentionally interfere with medical treatment

9 . . . .’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (quoting Hutchinson v.

10 United States, 838 F.2d 390, 394 (9th Cir. 1988)). But “[i]nadvertent failures to provide

11 adequate medical care, mere negligence or medical malpractice, delays in providing care

12 (without more) . . . are all insufficient to constitute an Eighth Amendment violation.”

13 Norvell v. Roberts, No. 20-cv-0512 JLS (NLS), 2020 WL 4464454, at *4 (S.D. Cal. Aug.

14 4, 2020) (citing Estelle, 429 U.S. at 105–07); Wood v. Housewright, 900 F.2d 1332, 1334

15 (9th Cir. 1990). Turley’s allegation that Laqunas did not alert the nurse to his stomach pain,

16 is, at most, “mere negligence” or a “delay[] in providing care,” which is not enough to

17 plausibly allege an Eighth Amendment violation. Id.; Iqbal, 556 U.S. at 678.

18 Turley’s allegation regarding his suicide attempt, on the other hand, is sufficient to

19 plausibly allege an Eighth Amendment violation. Iqbal, 556 U.S. at 678. “A heightened

20 suicide risk or an attempted suicide is a serious medical need.” Conn v. City of Reno, 591

21 F.3d 1081, 1095 (9th Cir. 2010), vacated, 563 U.S. 915 (2011), opinion reinstated in

22 relevant part, 658 F.3d 897 (9th Cir. 2011) (citing Farmer, 511 U.S. at 837; Kamakeeaina

23 v. City & Cty. of Honolulu, No. 11-cv-00770 JMS, 2014 WL 1691611, at *7 (D. Haw. Apr.

24 29, 2014), affirmed sub nom. Kamakeeaina v. Maalo, 680 F. App’x 631 (9th Cir. 2017)

25 (finding statements that plaintiff was “ready to commit suicide” were sufficient to show

26 serious medical need).) Turley alleges he showed Laqunas a razor and told him he was

27 going to cut himself; Laqunas ignored him and walked away. Compl., ECF No. 1 at 1, 7.

28 Turley then began cutting himself. Id. at 7. When another correctional officer walked by,

1 Turley cut himself in front of him and the officer called a code. Id. These allegations show

2 Laqunas “kn[ew] of and disregard[ed] an excessive risk to inmate health and safety.”

3 Toguchi, 391 F.3d at 1057.

4 2. Defendants Harrison, King, and Huss

5 Turley alleges Defendants Harrison, King, and Huss denied him access to the courts

6 when they refused to permit him to make a phone call to learn the status of a child custody

7 hearing he was involved in and denied him timely access to his legal materials. Compl.,

8 ECF No. 1 at 6–7. According to Turley, this caused him to lose custody of his child. Id.

9 Prisoners have a First Amendment right of access to the courts which guarantees

10 them the “capability of bringing contemplated challenges to sentences or conditions of

11 confinement before the courts,” and “prison officials may not actively interfere with a

12 plaintiff’s right to litigate.” Lewis v. Casey, 518 U.S. 343, 346, 356 (1996); Reagor v.

13 Sutton, No. 1:17-cv-01398-LJO-BAM (PC) 2018 WL 3031514, at *2 (E.D. Cal. June 15,

14 2018) (citing Lewis, 518 U.S. at 346). Claims for denial of access to court may arise from

15 the frustration or hindrance of “a litigating opportunity yet to be gained,” or from the loss

16 of a suit that cannot now be tried. Christopher v. Harbury, 536 U.S. 403, 412–15 (2002);

17 see Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (differentiating “between two

18 types of access to court claims: those involving prisoners’ right to affirmative assistance

19 and those involving prisoners’ rights to litigate without active interference”), overruled on

20 other grounds by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015).

21 The right is limited, however, to the filing of direct criminal appeals, habeas

22 petitions, and civil rights actions. Lewis, 518 U.S. at 354. It does “not create an abstract,

23 freestanding right to . . . legal assistance,” id. at 351, and does not “guarantee inmates the

24 wherewithal to transform themselves into litigating engines.” Id. at 355. The threshold

25 requirement for any claim based on the denial of access to court is the allegation of an

26 “actual injury.” See Lewis, 518 U.S. at 351–53; Silva, 658 F.3d at 1104. “[A]ctual injury”

27 is defined as “actual prejudice with respect to contemplated or existing litigation, such as

28 the inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see

1 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the “inability

2 to file a complaint or defend against a charge”).

3 Turley’s allegations do not plausibly allege a First Amendment access to courts

4 claim because he has not alleged Harrison, King, or Huss prevented him from filing

5 documents or accessing court proceedings in his criminal appeal, habeas petition, or civil

6 rights action. Lewis,518 U.S at 354–55; see also O’Neal v. San Bernardino Cnty. Sheriff’s

7 Dept., No. EDCV 11-803-DDP (MAN), 2011 WL 2883278, at *4 (C.D. Cal. July 19, 2011)

8 (“The right of access [to courts] does not extend to child custody cases.”) (quoting Aguilar

9 v. Lopez, No. C 96-3147 SI, 1996 WL 557679, at *2 (N.D. Cal. Sept. 16, 1996)). Further,

10 Turley’s allegations do not plausibly allege an actual injury from any purported denial of

11 access to courts because he has not alleged he would have been able to participate in the

12 custody hearing without the interference of Harrison, King, or Huss, or that had been able

13 to participate in the hearing, he would have been awarded custody of his child. Lewis, 518

14 U.S. at 348; Iqbal, 556 U.S. at 678.

15 Turley also claims Harrison, King, and Huss used excessive force against him on

16 August 6, 2022 by “jumping” on him despite him telling them he was going to “s[i]t down

17 in a peaceful protest.” Compl., ECF No. 1 at 6–7. Unnecessary and wanton infliction of

18 pain violates the Cruel and Unusual Punishments Clause of the Eighth Amendment.

19 Hudson v. McMillian, 503 U.S. 1, 5 (1992). In the context of prison officials who are

20 alleged to have used excessive physical force in violation of the Eighth Amendment, “the

21 core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or

22 restore discipline, or maliciously and sadistically to cause harm.” Id. at 6–7; Wilkins v.

23 Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing Hudson, 503 U.S. at 7) (internal

24 quotation marks omitted); see also Carrasco v. Cababe, No. 1:19-cv-00724-LJO-JDP,

25 2019 WL 6170118, at *2 (E.D. Cal. Nov. 20, 2019) (finding allegations that defendants

26 beat plaintiff without justification while he was restrained sufficient to state an excessive

27 force claim); Lees v. Singsong, No. 19-cv-01603-HSG, 2021 WL 1925728, at *2 (N.D.

28 Cal. 2021) (same).

1 Turley has not alleged sufficient facts to plausibly allege any force applied by

2 Harrison, King, and Huss was not “a good-faith effort to maintain or restore discipline,”

3 but rather was inflicted “maliciously and sadistically to cause harm.” Hudson, 503 U.S. at

4 6–7. Turley includes no details regarding the incident, such as what actions Harrison, King,

5 and Huss took and how they were excessive or unnecessary, nor has he explained how

6 those actions were taken for the purpose of causing him harm. Id. In addition, Turley has

7 not alleged he was harmed in any way by the actions of Harrison, King, and Huss. See

8 Hudson, 503 U.S. at 9–10 (“[T]he Eighth Amendment’s prohibition of ‘cruel and unusual

9 punishments necessarily excludes from constitutional recognition de minimus uses of

10 physical force.”) Turley has not provided sufficient factual detail to state a plausible claim

11 for relief pursuant to § 1983. Iqbal, 556 U.S. at 678 (“[t]hreadbare recitals of the elements

12 of a cause of action, supported by mere conclusory statements, do not suffice.”)

13 IV. Conclusion and Order

14 Based on the foregoing, the Court:

15 1) GRANTS Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2);

16 2) ORDERS the Secretary of the CDCR, or his designee, to collect from

17 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly

18 payments from the account in an amount equal to twenty percent (20%) of the preceding

19 month’s income and forward payments to the Clerk of the Court each time the amount in

20 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

21 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

22 HIS ACTION;

23 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail

24 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,

25 P.O. Box 942883, Sacramento, California, 94283-0001, or in the alternative by forwarding

26 an electronic copy to trusthelpdesk@cdcr.ca.gov;

27 4) DISMISSES Plaintiff’s First Amendment access to courts and his Eighth

28 Amendment excessive force claims against Defendants Harrison, King, and Huss sua

1 sponte for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C.

2 § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

3 5) DISMISSES Plaintiff’s Eighth Amendment medical care claim regarding his

4 stomach pain against Defendant Laqunas sua sponte for failing to state a claim upon which

5 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

6 6) GRANTS Plaintiff forty-five (45) days leave from the date of this Order, in

7 other words, by Thursday, May 25, 2023, in which to either: (1) file a Notice of Intent to

8 Proceed with his Eighth Amendment claim against Defendant Laqunas only; or (2) file an

9 Amended Complaint correcting all the deficiencies of pleading identified by the Court in

10 this Order.

11 If Plaintiff chooses to proceed with his Eighth Amendment claim regarding his

12 suicide attempt against Defendant Laqunas only, the Court will issue an Order directing

13 the U.S. Marshal to effect service of his Complaint on Defendant Laqunas and dismiss the

14 remaining First and Eighth Amendment claims against Defendants Laqunas, Harrison,

15 King, and Huss.

16 If Plaintiff chooses to file an amended pleading correcting the deficiencies outlined

17 in this Order, his Amended Complaint must be complete in itself without reference to his

18 original pleading. Defendants not named and any claims not re-alleged in the Amended

19 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc.,

20 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa

21 Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend

22 which are not re-alleged in an amended pleading may be “considered waived if not

23 repled.”). Plaintiff’s Amended Complaint must be entitled as his “First Amended

24 Complaint,” contain S.D. Cal. Civil Case No. 22-cv-01801-BAS-WVG in its caption, and

25 comply both with Fed. R. Civ. P. 8 and with S.D. Cal. CivLR 8.2.a.

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2 In order to assist Plaintiff in complying with these requirements, the Court further

3 ||DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its form

4 ||Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for his use should he choose to

5 || amend.

6 IT IS SO ORDERED.

7 ||Dated: April 10, 2023 NO

9 Honorable Linda Lopez

10 United States District Judge

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