The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
BAILEY REED, )
)
Plaintiff, )
)
vs. ) Case No. 3:18-CV-1968-GCS
)
SOUTHERN ILLINOIS UNIVERSITY )
d/b/a SOUTHERN ILLINOIS )
UNIVERSITY AT EDWARDSVILLE, )
RANDALL PEMBROOK, )
KARA SHUSTRIN, and )
CHAD MARTINEZ, )
)
Defendants. )
MEMORANDUM & ORDER
SISON, Magistrate Judge:
In her second amended complaint, Plaintiff Bailey Reed brings five claims against
Defendants Southern Illinois University d/b/a Southern Illinois University at
Edwardsville (“SIUE”), Randall Pembrook, Kara Shustrin, and Chad Martinez following
an allegedly mishandled Title IX investigation into a campus sexual assault that Reed
reported to school officials. Reed alleges Title IX violations against SIUE for
demonstrating deliberate indifference to sexual harassment and a hostile environment
(Count I); for failure to accommodate, failure to eliminate a hostile environment, and
failure to prevent retaliation against her (Count II); for gender discrimination based on
an erroneous result (Count III); and for fostering an official policy and practice of
deliberate indifference to sexual harassment and violence on campus (Count V). She also
alleges violations of her equal protection rights to personal security and bodily integrity
by all Defendants (Count IV). By motion dated May 21, 2020, SIUE seeks to strike certain
portions of Reed’s second amended complaint and asks the Court to dismiss Counts II,
III, and V. (Doc. 103). Reed responded in opposition on June 4, 2020. For the reasons
delineated below, SIUE’s motion is granted in part and denied in part.
MOTIONS TO STRIKE
SIUE asks the Court to strike allegations in the second amended complaint that
fall into three categories: (1) references to Ashley Cox as a defendant, who is no longer a
party to this action; (2) references to Ashley Cox as an employee of SIUE; and (3)
references to actions by Plaintiff’s counsel during the investigation into Reed’s allegations
of sexual assault. Though motions to strike are disfavored, Federal Rule of Civil
Procedure 12(f) allows district courts to strike “an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” A moving party must show that the
“challenged allegations ‘are so unrelated to plaintiff’s claim as to be devoid of merit,
unworthy of consideration, and unduly prejudicial.’” Siegel v. HSBC Holdings, plc, 283
F.Supp.3d 722, 730 (N.D. Ill. 2017)(quoting E & J Gallo Winery v. Morand Bros. Beverage Co.,
247 F.Supp.2d 979, 982 (N.D. Ill. 2003)(internal quotations omitted)). That is, SIUE, as the
moving party, bears the burden of demonstrating that the allegations should be stricken.
The Seventh Circuit directs that district courts should only grant motions where a
moving party can show that the challenged language either “bears no possible relation to
the controversy” (i.e., whether it is relevant to the claims at issue) or “may cause the
objecting party prejudice.” Talbot v. Robert Matthews Distrib. Co. 961 F.2d 654, 664 (7th Cir.
1992). In resolving a Rule 12(f) motion, the Court applies the same standard as that
applied under Rule 12(b)(6). Reed’s well-pleaded allegations are accepted as true and are
viewed in the light most favorable to her. See Santiago v. Wells, 599 F.3d 749, 756 (7th Cir.
2010).1
Reed does not object to SIUE’s request to strike references to Ashley Cox as a
defendant, explaining the references were the result of a clerical error. As such, the
references will be stricken, and the Court turns to SIUE’s remaining arguments. In a brief
argument, SIUE asks the Court to strike allegations in five paragraphs that refer to Ashley
Cox as an employee of SIUE. Of the five paragraphs, the first, paragraph 5, is a paragraph
listing the parties and is covered by the motion to strike references to Cox as a defendant.
The other four describe Cox as an employee of “Call for Help,” a non-profit rape crisis
center and allege that she also was an employee of SIUE. SIUE calls the allegations
conclusory, unsupported, and contrary to undisputed facts, but they raise no developed
argument supporting the motion to strike. As such, the motion to strike the references to
Cox as an SIUE employee fails to meet the high burden for imposing such a disfavored
remedy.
Similarly, the argument that the statements about counsel’s role in the second
amended complaint’s factual allegations must be stricken is undeveloped. SIUE recites a
portion of Illinois Supreme Court Rule 3.7, which provides that, generally, lawyers
should not “act as advocate at a trial in which the lawyer is likely to be a necessary
1 Reed attaches to her response exhibits that are not part of her amended complaint or any pleading.
The Court has the discretion to either exclude the exhibits or, with notice, to convert SIU’s motion to one
for summary judgment under Rule 56. See Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). In this
instance, the Court will ignore Reed’s exhibits and examine SIU’s arguments under Rule 12.
witness,” and suggests, without analysis or support, that it is unnecessary and improper
for Plaintiff’s counsel to inject herself into the factual allegations in this action. However,
the plain language of the rule refers to disqualification only at trial, and given that the
case is still in the pleading stage, such an argument is clearly premature. See, e.g., DT
Boring, Inc. v. Chicago Public Building Commission, No. 15-C-11222, 2016 WL 3580756, at *5
(N.D. Ill. June 28, 2016)(noting that plaintiff’s motion for disqualification under Rule 3.7
should be denied because the action was still in the pleading stage).
There are exceptions to the general rule regarding lawyers as necessary witnesses,
which are not addressed in the motion, and SIUE fails to establish that Plaintiff’s counsel
is a necessary witness. In fact, Reed in her response explains that the allegations can be
established through methods that do not include the attorney’s testimony, which means
that the attorney is not a “necessary witness.” See, e.g., Walton v. Diamond, No. 12-C-4493,
2012 WL 6587723, at *2 (N.D. Ill. Dec. 14, 2012)(stating that definition of “necessary
witness” is “one whose testimony is unobtainable elsewhere[]” and that attorney is not a
necessary witness where evidence can be elicited through other means). The allegations
have gone unchallenged in this action through multiple iterations of Reed’s complaint,
and the Court will not strike them now without a thorough analysis from the moving
party.
MOTION TO DISMISS
1. Motion to Dismiss Standard
A complaint must include enough factual content to give the opposing party
notice of what the claim is and the grounds upon which it rests. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009). To satisfy the
notice-pleading standard of Rule 8, a complaint must provide a “short and plain
statement of the claim showing that the pleader is entitled to relief” in a manner that
provides the defendant with “fair notice” of the claim and its basis. Erickson v. Pardus, 551
U.S. 89, 93 (2007)(citing Twombly, 550 U.S. at 555 and quoting Fed. R. Civ. Proc. 8(a)(2)).
In ruling on a motion to dismiss for failure to state a claim, a court must “examine
whether the allegations in the complaint state a ‘plausible’ claim for relief.” Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011)(citing Iqbal, 556 U.S. at 677-678). A complaint
“must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face,” rather than providing allegations that do not rise above the
speculative level. Id.
2. Allegations Relevant to Counts II, III, and V
SIUE seeks dismissal of Counts II, III, and V of Reed’s second amended complaint.
The Court has recited Reed’s allegations at length in earlier orders and need not repeat
them here. See Doc. 58, 59, 91. Relevant to Count II, Reed alleges that SIUE demonstrated
deliberate indifference to sexual harassment and to a hostile educational environment by
failing to investigate in a timely manner and failing to discipline the student who Reed
alleges sexually assaulted her. She also claims that she was excluded from participating
in, and was denied the benefits of, her educational program due to: training failures by
SIUE, the favoring of male students in Title IX investigations, displays of hostility
towards gender and reliance on gender based attitudes and stereotypes by SIUE
employees and officials, offering of more rights and protections to a male student than to
a female student, and through other actions which she claims demonstrate both a failure
to accommodate her safety needs and a desire to undermine her credibility in a public
manner.
In Count III, Reed alleges that SIUE displayed gender discrimination in its
investigation of her allegations of sexual assault, pointing to Defendant Martinez’s
allegedly biased and inappropriate questioning of Reed and other female witnesses and
to his reliance on gender stereotypes in his investigative findings. She also alleges that
the appellate process was tainted by gender bias, leading SIUE to reach an erroneous
result based on that bias. In Count V, Reed alleges that SIUE had an official policy, as
evidenced by pattern and practice, of deliberate indifference to sexual harassment and
sexual violence on campus. That policy allegedly created a heightened risk of students
being victimized.
3. Count II and Count III: Deliberate Indifference Claims Based on Title IX
Investigation and Post-Report Conduct by Defendants
Title IX states that “[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any educational program or activity receiving Federal financial assistance.” 20
U.S.C. § 1681(a). SIUE argues that Count II must be dismissed because neither the
Supreme Court nor the Seventh Circuit expressly recognize claims for failure to
accommodate, creation of a hostile environment, or retaliation under Title IX arising out
of student-on-student discrimination. SIUE cites to Davis v. Monroe County Bd. of Educ.,
526 U.S. 629 (1999), in which the Supreme Court weighed “whether a private damages
action may lie against the school board in cases of student-on-student harassment,” and
concluded that “it may, but only where the funding recipient acts with deliberate
indifference to known acts of harassment in its programs or activities.” Id. at 633. The
Court continued that “such an action will lie only for harassment that is so severe
pervasive, and objectively offensive that it effectively bars the victim’s access to an
educational opportunity or benefit.” Id.
The Court explained that where a “funding recipient does not engage in
harassment directly, it may not be liable for damages unless its deliberate indifference
subjects its students to harassment. That is, the deliberate indifference must, at a
minimum, cause students to undergo harassment or make them liable or vulnerable to
it.” Id. at 644-645 (internal quotations and citing references omitted). Educational
institutions “may be liable for ‘subject[ing]’ their students to discrimination where the
[institution] is deliberately indifferent to known acts of student-on-student sexual
harassment and the harasser is under the school’s disciplinary authority.” Id. at 646-647.
The Court went further, however, adding that “[s]chool administrators will continue to
enjoy the flexibility they require so long as funding recipients are deemed ‘deliberately
indifferent’ to acts of student-on-student harassment only where the recipient’s response
to the harassment or lack thereof is clearly unreasonable in light of the known
circumstances.” Id. as 648.
SIUE summarizes Davis as a case where “a student reported being sexually
harassed repeatedly by another student, but the school did almost nothing to address the
harassment.” (Doc. 104, p. 5 n.2). Based on Davis and interpretations of it in this Circuit,
SIUE suggests that its “educational and disciplinary decisions and actions are not
actionable” and that Reed’s claim should be read only as one that challenges such
decisions. (Doc. 104, p. 6). In doing so, SIUE relies on Gabrielle M. v. Park Forest-Chicago
Heights, IL Sch. Dist., 315 F.3d 817 (7th Cir. 2003). In Gabrielle M., the Seventh Circuit
explains that Davis requires that “school[s] not act clearly unreasonably in response to
known instances of harassment.” Id. at 825 (citing Davis, 526 U.S. at 649) (emphasis in
original). However, the case does not go so far as to hold that educational and disciplinary
decisions are not actionable. Rather, Gabrielle M. notes that “courts should refrain [from]
second-guessing the disciplinary decisions made by school administrators.” Id. at 825
(citing Davis, 526 U.S. at 649). This distinction is significant in weighing whether Reed
states a claim.
There is space in these requirements to second-guess decisions if they are clearly
unreasonable, so Reed’s claim is not barred by Davis and its progeny. Reed’s claim is
pleaded in a way that lines up with SIUE’s own description of Davis: she alleges that she
was sexually assaulted by a student, that she got an order of protection against that
student, that the student violated the order of protection, and that the school’s
investigation into her sexual assault was deeply flawed. In essence, Reed claims that she
was repeatedly harassed and that SIUE did almost nothing about it. Reed sufficiently
states factual allegations that, if true, could rise to the level of a clearly unreasonable
response to her sexual assault reporting. As such, Reed states a claim that survives SIUE’s
motion to dismiss, even under the limitations of Davis.
SIUE also argues that neither the Supreme Court nor the Seventh Circuit recognize
claims of an erroneous result based on gender bias and that Doe v. Columbia College
Chicago, 933 F.3d 849 (7th Cir. 2019) specifically rejects an erroneous result theory for Title
IX claims. In Columbia College, the Seventh Circuit reiterated the elements of a Title IX
discrimination claim. To successfully state a claim, a plaintiff must “allege (1) the
educational institution received federal funding, (2) plaintiff was excluded from
participation in or denied the benefits of an educational program, and (3) the educational
institution in question discriminated against plaintiff based on gender.” Columbia College,
933 F.3d at 854 (citing Doe v. Purdue University, 928 F.3d 652, 657 (7th Cir. 2019)).
SIUE relies on a statement by the Seventh Circuit as supporting the contention that
an erroneous result claim does not exist. Specifically, the Seventh Circuit stated:
“[r]ecently, this Court held that tests or categories labeled ‘erroneous outcome’ or
‘selective enforcement’ or ‘deliberate indifference’ or ‘archaic assumptions’ need not be
considered because at bottom they all ask the same question: whether ‘the alleged facts,
if true, raise a plausible inference that the university discriminated . . . “on the basis of
sex”?’” Columbia College, 933 F.3d at 854-855 (citing Purdue University, 928 F.3d at 668-669)
(alterations in original). However, this statement, when read in context, leads the Court
to a different conclusion, i.e., how a plaintiff labels a claim is not instructive to its success;
rather, the Court must always weigh whether a claim plausibly alleges that a university
discriminated on the basis of sex regardless of the label a plaintiff assigns to a claim. In
Count III, Reed alleges each of the elements of a Title IX discrimination claim, and the
Court declines to adopt SIUE’s position that there is no erroneous result theory of relief
available to her under controlling precedent.
Finally, in a single sentence directed at Count II and a single sentence directed at
Count III, SIUE argues that Counts II and III must be dismissed as duplicative of Count
I. In Count I, Reed alleges that SIUE demonstrated deliberate indifference to sexual
harassment and to a hostile campus environment by failing promptly and appropriately
to investigate and respond to her sexual harassment allegations. Without a more
developed argument from SIUE to the contrary, the Court declines to dismiss Counts II
and III as duplicative of Count I in that multiple theories of relief and different conduct
can give rise to Title IX claims in a variety of situations.2 Reed’s claims, on their face, point
to different conduct and different theories of discrimination such that they are not
pleaded in a manner that is duplicative.
4. Count V: Pre-Assault Official Policy Claim
As to Count V, SIUE again argues that an official policy claim is not recognized by
the Supreme Court or by the Seventh Circuit, so it must be dismissed. Both the Ninth
Circuit, in Karasek v. Regents of Univ. of California, 956 F.3d 1093 (9th Cir. 2020), and the
10th Circuit, in Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007), recognize
official policy claims based on Supreme Court precedent in Title IX discrimination cases.
In Simpson, the Tenth Circuit analyzed Davis and an earlier Supreme Court case, Gebser v.
Lago Vista Independent School District, 524 U.S. 274 (1998), and stated:
In the context of Gebser or Davis, the school district could not be said to
have intentionally subjected students to harassment unless it knew of the
2 SIUE cites to Doe v. Bd. of Educ. of Cmty. Unit Sch. Dist. No. 5, 680 F. Supp. 2d 957 (C.D. Ill. 2010) to
support its argument for dismissing alternative Title IX claims as being duplicative of a Title IX
deliberative indifference claim. However, the court in Doe offers little by way of analysis and cites to no
legal authority for its holding. As such, Doe is of no persuasive value to this Court, and the Court chooses
not to follow it.
harassment and deliberately decided not to take remedial action. But the §
1983 municipal-liability cases reveal how the standard changes when the
claim “involve[s] official policy,” Gebser, 524 U.S. at 290, 118 S.Ct. 1989,
although the underlying principle—liability only for intentional acts by the
institution itself—remains the same.
. . .
We conclude that a funding recipient can be said to have “intentionally
acted in clear violation of Title IX,” Davis, 526 U.S. at 642, 119 S.Ct. 1661,
when the violation is caused by official policy, which may be a policy of
deliberate indifference to providing adequate training or guidance that is
obviously necessary for implementation of a specific program or policy of
the recipient. Implementation of an official policy can certainly be a
circumstance in which the recipient exercises significant “control over the
harasser and the environment in which the harassment occurs.” Id. at 644,
119 S.Ct. 1661.
Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1178 (10th Cir. 2007) (emphasis in
original).
To suggest that Supreme Court precedent does not recognize an official policy
claim is unsupported by precedent and analysis in other Circuits. While the issue has not
been addressed in the Seventh Circuit, that alone is insufficient to lead this Court to rule
definitively that such a claim does not exist or has been rejected or not recognized in this
Circuit. As Reed argues, there is a significant difference between a claim that is not
recognized and a claim that has yet to be considered. Caution should be exercised before
stating definitely that a claim is not recognized.
SIUE also argues that Reed fails to plead facts to establish each element of an
official policy claim using the elements laid out in Karasek¸ the case Reed relied in moving
to amend her complaint. As an initial matter, a Title IX official policy claim, like all Title
IX claims, requires that a plaintiff allege that an official policy of a funding recipient
discriminates on the basis of sex. See Gebser, 524 U.S. at 290. In Karasek, the Ninth Circuit
noted that the official policy, or pre-assault, claim at issue involved a school intentionally
violating Title IX. See Karasek, 956 F.3d at 1112 (citing Davis, 526 U.S. at 642). In such an
instance, a “school need not have had actual knowledge of a specific instance of sexual
misconduct or responded with deliberate indifference to that misconduct before damages
liability may attach.” Id. (citing Gebser, 524 U.S. at 290).
In Karasek, students alleged an official policy claim based on a university’s alleged
avoidance of Title IX reporting requirements by funneling sexual harassment reports
through an informal investigation process. See Karasek, 956 F.3d at 1114. The Ninth Circuit
considered the appropriate elements of such an official policy claim and held that:
[A] pre-assault claim should survive a motion to dismiss if the plaintiff
plausibly alleges that (1) a school maintained a policy of deliberate
indifference to reports of sexual misconduct,[] (2) which created a
heightened risk of sexual harassment that was known or obvious (3) in a
context subject to the school’s control, and (4) as a result, the plaintiff
suffered harassment that was “so severe, pervasive, and objectively
offensive that it can be said to [have] deprive[d] the [plaintiff] of access to
the educational opportunities or benefits provided by the school.” Davis,
526 U.S. at 650, 119 S.Ct. 1661.
Id. at 1112.
Karasek requires the heightened risk to be known or obvious, but not that a
university have actual knowledge. Other courts, however, do require actual knowledge
of a more particularized risk. In the Southern District of New York, “[p]re-assault cases
have found that universities may be held responsible for its [sic] pre-assault, deliberate
indifference when they have ‘actual knowledge of sexual assault(s) committed in a
particular context or program or by a particular perpetrator or perpetrators.’” Roskin-Frazee
v. Columbia University, No. 17 Civ. 2032 (GBD), 2018 WL 6523721, at *5 (S.D.N.Y. Nov. 26,
2018)(quoting Tubbs v. Stony Brook University, No. 15 Civ. 0517 (NSR), 2016 WL 8650463,
at *9 (S.D.N.Y. Mar. 4, 2016)) (emphasis in original). Evaluating Simpson, the Roskin-Frazee
court rejected a claim of a generalized awareness by Columbia University of the problem
of sexual misconduct on campus and of its deficiencies in responding to the problem
when it stated: “[a]s pre-assault cases have readily acknowledged, ‘something more than
[a] general knowledge of assaults campus-wide (i.e., some greater specificity) is required
to satisfy the actual knowledge requirement [for Title IX liability].’” Id. (quoting Tubbs,
2016 WL 8650463, at *9).
In the Tenth Circuit, Simpson involved allegations of sexual assault by football
recruits where University of Colorado officials were warned about the serious risk of
sexual assaults if they failed to implement adequate policies for supervising recruits and
sexual-assault prevention training for athletes. See Simpson, 500 F.3d at 1173. Similarly, in
the Middle District of Tennessee a pre-assault claim survived where plaintiffs were
sexually assaulted by student-athletes and the university had known about assaults, and
had attempted to cover them up, for at least 20 years. See Doe v. University of Tennessee,
186 F.Supp.3d 788, 805-808 (M.D. Tenn. 2016). See also Doe v. Michigan State University,
No. 1:18-cv-390, 2019 WL 5085567, at *8-10 (W.D. Mich. Aug. 21, 2019)(allowing an official
policy claim to proceed where plaintiff alleged sexual assaults by student-athletes and
plaintiff claimed reports against athletes were handled differently “behind closed
doors”). Karasek seemingly stands alone in eschewing actual knowledge and allowing a
broader claim to proceed. See Karasek, 956 F.3d at 1114. The Ninth Circuit still requires,
however, that a plaintiff establish the heightened risk be known or obvious, which it
found in the university’s program of actively redirecting sexual assault reports outside
of the Title IX process.
Absent guidance from the Seventh Circuit, the Court must determine whether
Reed states a viable claim for relief based on persuasive, rather than binding, precedent.
In Davis, the Supreme Court was clear that, based on Gebser, actual notice “is not a bar to
liability where a funding recipient intentionally violates the [Title IX] statute.” Davis, 526
U.S. at 642. As discussed above, some courts require specific or particularized notice in
pre-assault claims. The Ninth Circuit requires only that the risk be “known or obvious.”
As analyzed in Karasek, if Reed could establish that SIUE intentionally pursued an official
policy that discriminated on the basis of sex, then she could state a claim without
demonstrating actual knowledge as required by some courts.
The problem is that Reed does not allege intentional pursuit of an official policy
that resulted in gender discrimination. She alleges that SIUE was warned by the
Department of Education in August 2017 that it had a pattern of failing fully to investigate
sexual assault claims and that its investigations were known to exclude relevant evidence
and to miss timely deadlines. Reed also claims that parents of a woman who reported a
sexual assault wrote to the Board of Trustees to warn them that their deficient
investigation process empowered and emboldened perpetrators.
Reed does not address how, outside of the opinions of another student’s parents,
the deficient and slow investigative process led to her being sexually harassed or how the
process created a heightened risk of sexual harassment that was obvious to SIUE. Despite
Reed’s argument that the Department of Education warned SIUE that its investigations
were flawed and would cause a heightened risk of sexual harassment or sexual violence,
the second amended complaint does not allege that such a warning was issued by anyone
other than the parent of another student. If such a warning existed from an official or
agency, Reed’s claim would be more similar to that of the plaintiffs in Simpson who were
assaulted after, among other allegations, a local prosecutor warned the university of a
heightened risk caused by their failure to supervise athletic recruits. Instead, Reed’s claim
is more akin to that in Roskin-Frazee and Tubbs, discussed above, where something more
than the university’s general knowledge of assaults on campus and awareness by the
university of its deficient response was required to state a claim.
Even under the relaxed notice-pleading requirements of Rule 8, a plaintiff must
provide more than threadbare recitals of the elements of a claim. The allegations in Reed’s
complaint instead suggest that the school was reckless or negligent in its investigatory
process by failing to comply with Title IX timing and evidentiary requirements, rather
than having a clear intention to slow or redirect investigations in order to discriminate
based on gender. In that way, Reed’s claim fails to rise to the level of the claim in Karasek.
The allegations in the second amended complaint are insufficient to establish that there
was a heightened risk that was known or obvious, if this Circuit followed the logic of
Karasek, or that there was actual knowledge by SIUE that it was deliberately indifferent
to ahead of the attack on Reed, as other courts require. Specifically, the Court finds that,
absent an allegation of actual notice of a particularized risk, the pre-assault claim in Count
V should be dismissed.
CONCLUSION
For the above-stated reasons, Defendant SIUE’s motion to dismiss (Doc. 103) is
GRANTED in part and DENIED in part. References to Ashley Cox as a defendant are
stricken from Plaintiff Bailey Reed’s second amended complaint, and Count V is
dismissed for failure to state a claim. Counts I, I], III, and IV remain pending. To the extent
that SIUE needs to amend its answer to Reed’s amended complaint, it shall do so no later
than July 1, 2020.
Digitally signed
IT IS SO ORDERED. by Judge Sison
Attiet 5 Date:
Dated: 10, 2020. \eaT
ated June 2020.06.10
11:48:35 -05'00'
GILBERT C. SISON
United States Magistrate Judge
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