Strasser v. State of Oregon

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RONALD-KENNETH STRASSER, Case No. 3:19-cv-1051-SI

Plaintiff, OPINION AND ORDER

v.

STATE OF OREGON, et al.,

Defendants.

Ronald-Kenneth Strasser. Plaintiff, pro se.

Ellen F. Rosenbaum, Attorney General; Jesse B. Davis, Senior Assistant Attorney General,

OREGON DEPARTMENT OF JUSTICE, 100 SW Market Street, Portland, OR 97201. Of Attorneys for

the State of Oregon, Governor Kate Brown, Shelley Hoffman, Katy Coba, Robert D. Herndon,

Jeffery S. Jones, Thomas J. Rastetter, Debbie Spradley, John S. Foote, Christopher K. Heywood,

Department of Public Safety Systems and Training, Samantha G. Olson, and All Clerks of

Clackamas County Court and their Associates.

Michael H. Simon, District Judge.

Plaintiff Ronald-Kenneth Strasser, representing himself, brings this lawsuit against

numerous state and local officials. Plaintiff asserts claims under 42 U.S.C. § 1983, alleging that

Defendants violated Plaintiff’s rights under the Fourth and Eighth Amendments to the United

States Constitution, as incorporated by the Fourteenth Amendment. Before the Court is a motion

to dismiss filed by the State of Oregon; Governor Kate Brown; Clackamas County Circuit Court

Judges Robert D. Herndon, Thomas J. Rastetter, and Jeffrey S. Jones; Clackamas County State

Risk Manager Shelley Hoffman; Department of Administrative Services employee Katy Coba;

Clackamas County Trial Court Administrator Debbie Spradley; Clackamas County District

Attorneys John S. Foote and Christopher Heywood;1 the Department of Public Safety Systems

and Training; and all Clackamas County clerks and their associates (collectively, the State

Defendants).2 The State Defendants argue that most of them are immune from suit, and that

Plaintiff fails to state a claim against those who are not immune from suit. For the reasons

discussed below, the Court grants the State Defendants’ Motion to Dismiss.

STANDARDS

A motion to dismiss for failure to state a claim may be granted only when there is no

cognizable legal theory to support the claim or when the complaint lacks sufficient factual

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual

allegations, a court must accept as true all well-pleaded material facts alleged in the complaint

and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-

Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629

F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint

“may not simply recite the elements of a cause of action, but must contain sufficient allegations

1 The Fourth Amended Complaint misspells Christopher Heywood’s last name as

“Haywood.”

2 A summons has not yet been issued in this case. It does not appear that Plaintiff has

served any Defendants in this action. Defendants Clackamas County Sheriffs Craig Roberts,

Dave Ellington, Daniel Joseph O’Keefe, Greg Klepper, and Morgan Guthner; Clackamas County

Risk and Safety Manager Eric Machado; Captain David O’Shaughnessy; Sergeant Corey R.

Smith; County Administrator Donald Krupp; Chief Executive Officer Deputy Laurel Butman;

Commissioner Ken Humberston; the Oregon State Sheriff’s Association; Washington County

Sheriff Pat Garrett; and DPI Security have not yet appeared.

of underlying facts to give fair notice and to enable the opposing party to defend itself

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all

reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon

Off. Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit a

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556

U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation

marks omitted).

A court must liberally construe the filings of a self-represented, or pro se, plaintiff and

afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th

Cir. 2010). Further, “a pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.” Florer v. Congregation Pidyon

Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011) (quotation marks omitted). “Unless it is

absolutely clear that no amendment can cure the defect, . . . a pro se litigant is entitled to notice

of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the action.”

Garity v. APWU Nat’l Lab. Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original)

(quoting Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)). Under

Rule 8(a)(2) of the Federal Rules of Civil Procedure, however, every complaint must contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.” This

standard “does not require ‘detailed factual allegations,’” but does demand “more than an

unadorned, the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).

BACKGROUND

Plaintiff’s claims arise primarily from his alleged arrest and beating in a Clackamas

County Circuit Court on July 6, 2017. Plaintiff alleges that one year before his July 6th arrest,

Judge Herndon improperly ordered Plaintiff’s arrest for “driving while revoked” and held him

“in the dungeon” for ninety days “for ransom.” Plaintiff also alleges that several months before

his July 6th arrest, Judge Rastetter wrongfully held Plaintiff in contempt and ordered Sheriff

O’Keefe to seize Plaintiff’s phone by force. Plaintiff alleges that on July 6, 2017, Judge Jones

ordered Plaintiff’s arrest and beating in court, wrongfully ordered his detainment for 58 days,

and ordered a video of the beating to be “censored.” Plaintiff also alleges that Clackamas County

Sheriffs Klepper, O’Keefe, and Guthner, Captain O’Shaughnessy, and Sergeant Smith

“purchased” Plaintiff’s fingerprints. Plaintiff alleges that all named Defendants conspired to

bring about Plaintiff’s July 6th arrest and beating for financial gain.

Plaintiff brings four claims under 42 U.S.C. § 1983. First, Plaintiff asserts a claim against

the sheriffs and deputies involved in his alleged July 6th beating for violating the Fourth and

Eighth Amendments. Second, Plaintiff asserts a claim against Governor Brown, Hoffman,

Roberts, and Ellington, alleging that they consciously disregarded Plaintiff’s rights in violation

of the U.S. and Oregon Constitutions. Third, Plaintiff asserts a claim against Clackamas County,

alleging that it violated the “Fourth, Eighth, and other Amendments” for its deliberate

indifference to inmates’ rights. Plaintiff asserts a fourth claim (labeled as the “Fifth Cause of

Action”) against Clackamas County and the State of Oregon for “ratifying” the actions of those

involved in Plaintiff’s alleged arrests and beating.

Plaintiff filed this case on July 3, 2019 and then filed two amended complaints. On

April 20, 2021, the Court identified deficiencies in Plaintiff’s Second Amended Complaint and

gave Plaintiff leave to file a Third Amended Complaint. ECF 33. Plaintiff filed a Third Amended

Complaint. The Court then granted Plaintiff’s request to file a Fourth Amended Complaint,

which is the operative complaint.

DISCUSSION

A. Whether Plaintiff’s Fourth Amended Complaint May Incorporate by Reference

Plaintiff’s Third Amended Complaint

Plaintiff’s Fourth Amended Complaint attempts to incorporate by reference the Third

Amended Complaint. See FAC ¶ 192. An amended complaint, however, supersedes all

previously filed complaints. CDK Glob. LLC v. Brnovich, --- F.4th ---, 2021 WL 4944824, at *3

(9th Cir. Oct. 25, 2021) (holding that the trial court did not err by denying an injunction on

claims not included in the amended complaint because “[a]n amended complaint ‘supersedes the

original complaint’” (quoting P. Bell Tel. Co. v. linkLine Commc’ns, Inc., 555 U.S. 438, 456 n.4

(2009))). Further, the local rules of this district provide that a plaintiff may not incorporate by

reference a previously filed complaint into an amended complaint. Local Rule 15-1 (“An

amended or supplemental pleading must reproduce the entire pleading and may not incorporate

any part of the prior pleading by reference.”). Thus, for the purposes of this motion, the Court

only looks to allegations in Plaintiff’s Fourth Amended Complaint.

B. Eleventh Amendment Immunity

Plaintiff brings what he calls his Fifth Cause of Action against the State of Oregon and

Clackamas County. The State Defendants argue that the Eleventh Amendment bars Plaintiff’s

claim against State of Oregon and that the Court should therefore dismiss the State from this

lawsuit.

Eleventh Amendment sovereign immunity precludes a plaintiff from recovering damages

or injunctive relief in federal court against a state or its agencies. See Savage v. Glendale Union

High Sch., 343 F.3d 1036, 1040 (9th Cir. 2003). There are two exceptions to the Eleventh

Amendment’s jurisdictional bar: (1) Congress can abrogate the Eleventh Amendment without the

consent of the states in certain situations; and (2) a state may waive its immunity by consenting

to suit in federal court but must do so by “the most express language or by such overwhelming

implication from the text as [will] leave no room for any other reasonable construction.”

Micomonaco v. State of Washington, 45 F.3d 316, 319 (9th Cir. 1995) (alteration in original)

(quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40 (1985)). A statute consenting

to suit in state court does not constitute consent to suit in federal court. Fordyce v. City of

Seattle, 55 F.3d 436, 441 (9th Cir. 1995).

The State of Oregon has not consented to be sued in federal court or otherwise waived its

immunity as is relevant to Plaintiff’s claims because the State of Oregon has not in express terms

consented to suit. See Micomonaco, 45 F.3d at 319; Delong Corp. v. Or. State Highway

Comm’n, 343 F.2d 911, 912 (9th Cir. 1965) (per curiam) (affirming the district court’s

conclusion that the State of Oregon had not waived Eleventh Amendment immunity by signing

an agreement with the United States to receive federal funds to aid construction of a bridge).

Plaintiff’s argument that the State of Oregon is not a state “within the meaning of case law” lacks

merit because Plaintiff has alleged no facts showing that the State of Oregon is not a state within

the United States entitled to Eleventh Amendment immunity. Thus, Plaintiff may not bring his

claims against the State of Oregon in this federal court. The Court therefore dismisses Plaintiff’s

Fifth Cause of Action against the State of Oregon and dismisses the State of Oregon from this

lawsuit.

C. Judicial Immunity

Plaintiff brings his Second Cause of Action against Clackamas County Circuit Court

Judge Herndon, Judge Jones, Judge Rastetter, trial court administrator Spradley, and all clerks of

the Clackamas County Circuit Court. The State Defendants argue that Plaintiff’s claims against

these Defendants should be dismissed because judges are absolutely immune from suit and court

administrators and clerks have quasi-judicial immunity.

Judges are absolutely immune from liability for damages, declaratory relief, and

generally for injunctive relief3 sought as a result of judicial acts performed in their judicial

capacity. Moore v. Brewster, 96 F.3d 1240, 1243-44 (9th Cir. 1996), superseded by statute on

other grounds; Mullis v. U.S. Bankr. Ct. for Dist. of Nev., 828 F.2d 1385, 1388 (9th Cir. 1987);

see also Craig v. Villicana, 676 F. App’x 716 (9th Cir. 2017). To qualify for judicial immunity, a

judge must have performed “judicial acts” within the scope of his or her jurisdiction. Stump v.

Sparkman, 435 U.S. 349, 356-57 (1978). “An act is judicial in nature if it is a function normally

performed by a judge and the parties to the act were dealing with the judge in his judicial

capacity.” McGuire v. Clackamas Cnty. Counsel, 2009 WL 4456310, at *4 (D. Or.

Nov. 24, 2009) (citing Stump, 435 U.S. at 362). Judges have “absolute immunity even when their

3 Prospective injunctive relief against a judicial official may be available under § 1983 in

the limited circumstances when “a declaratory decree was violated or declaratory relief was

unavailable.” 42 U.S.C. § 1983.

actions are erroneous, malicious, or in excess of judicial authority.” Tanner v. Heise, 879

F.2d 572, 576 (9th Cir. 1989).

The Ninth Circuit has extended absolute immunity to court clerks and similar staff, even

for what could be considered administrative or ministerial functions if those functions are “quasi-

judicial” in nature. See, e.g., In re Castillo, 297 F.3d 940, 951-53 (9th Cir. 2002), as amended

(Sept. 6, 2002); Moore, 96 F.3d at 1244. The Ninth Circuit has held that functions giving rise to

quasi-judicial immunity include scheduling and giving notice of hearings and handling a

supersedeas bond. Castillo, 297 F.3d at 952; Moore, 96 F.3d at 1244. The court has also cited

with approval the Second Circuit’s decision holding that absolute immunity arises because “[a]

court’s inherent power to control its docket is part of its function of resolving disputes between

parties. This is a function for which judges and their supporting staff are afforded absolute

immunity.” Castillo, 297 F.3d at 951 (quoting Rodriguez v. Weprin, 116 F.3d 62, 66 (2d

Cir. 1997)).

Plaintiff brings his claims against Judge Herndon, Judge Jones, and Judge Rastetter based

on allegations that they found Plaintiff guilty, ordered Plaintiff’s cell phone taken from him

before he was ready while Plaintiff was in the courtroom, held him in contempt, issued a warrant

for Plaintiff’s arrest, ordered his incarceration (or “kidnapping” and placement in the “dungeon,”

as Plaintiff alleges), and ordered that the audio portion of an evidentiary video be “censored.”

These actions are all judicial in nature and for which Judge Herndon, Judge Jones, and Judge

Rastetter have absolute immunity, even assuming the facts are as Plaintiff alleges. Plaintiff’s

argument that these three judges are not properly in office lacks merit because Plaintiff has

alleged no facts calling into question whether they hold valid positions as judges and because a

federal civil lawsuit under § 1983 is not the proper method or forum to challenge a state court

judge’s qualifications for office.

Plaintiff also alleges that Judge Herndon, Judge Jones, and Judge Rastetter engaged in a

conspiracy to “kidnap” Plaintiff and have him “beaten” by sheriff’s office personnel. Speculative

and conclusory allegations that these judges engaged in a conspiracy do not preclude absolute

immunity. “To foreclose immunity upon allegations that judicial and prosecutorial decisions

were conditioned upon a conspiracy or bribery serves to defeat” the policies underlying broad

judicial and prosecutorial immunity. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en

banc). “As long as the judge’s ultimate acts are judicial actions taken within the court’s subject

matter jurisdiction, immunity applies.” Id.; see also Khazali v. Berns, 2016 WL 4479915, at *2

(W.D. Wash. Aug. 24, 2016) (“Judicial immunity applies even if there are allegations that a

judicial decision resulted from a bribe or a conspiracy.”); Gozzi v. County of Monterey, 2014

WL 6988632, at *7 (N.D. Cal. Dec. 10, 2014) (“Moreover, even if the Judicial Defendants had

acted corruptly and received bribes, as Plaintiff appears to allege, they would still be immune

from Plaintiff’s § 1983 claim.”).

Plaintiff also asserts his Second Cause of Action against the Clackamas County Circuit

Court Administrator Spradley and all Clackamas County court clerks, among other Defendants.

Plaintiff alleges that these Defendants engaged in a conspiracy to kidnap and beat Plaintiff and

that this conspiracy was “for profit” because the court administrator is responsible for the court’s

bookkeeping. Plaintiff also alleges that Spradley refused to let him view the court’s bookkeeping

records and accounts. Quasi-judicial immunity protects Spradley and all court clerks from

Plaintiff’s claims based on the performance of their administrative and ministerial duties, such as

bookkeeping, processing warrants for Plaintiff’s arrest, and processing paperwork related to

Plaintiff’s criminal proceedings. See Castillo, 297 F.3d at 951-53. Plaintiff’s speculative

allegations of conspiracy do not overcome the protections of quasi-judicial immunity. See

McCarthy v. Mayo, 827 F.2d 1310, 1314-15 (9th Cir. 1987) (holding that allegations of

conspiracy do not remove quasi-judicial immunity); Badea v. Bowman, 917 F.2d 27, 1990

WL 163358, at *1 (9th Cir. 1990) (unpublished table decision) (holding that “[a]llegations of bad

faith, personal interest, outright malevolence, or conspiracy fail to pierce the cloak” of the court

clerk defendants’ quasi-judicial immunity). Plaintiff’s argument that Spradley is not properly in

office lacks merit because Plaintiff has alleged no facts calling into question that Spradley was

hired as a court clerk and acted under her duties as a clerk, and because a federal civil rights

lawsuit under § 1983 is not the proper method or forum for challenging a state court clerk’s

employment.

Plaintiff’s invocation of the “de facto officer doctrine” is not relevant here because it only

applies to officers subject to the Appointments Clause acting under color of their title but whose

appointments were later discovered deficient. Ryder v. United States, 515 U.S. 177, 180 (1995).

Only certain officers of the federal government are subject to the Appointments Clause. See U.S.

CONST. art. II, § 2, cl. 2 (stating that the clause applies to appointments of “Ambassadors, other

public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United

States”). The Appointments Clause does not apply to state court clerks and judges. Accordingly,

the Court dismisses all claims against Judge Herndon, Judge Jones, Judge Rastetter, Spradley,

and all Clackamas County Circuit Court clerks.

D. Prosecutorial Immunity

Plaintiff also asserts his Second Cause of Action against former District Attorney Foote

and former Deputy District Attorney Heywood, among other Defendants. The State Defendants

argue that Defendants Foote and Heywood should be dismissed from this suit because they have

absolute prosecutorial immunity.

A prosecutor is entitled to absolute prosecutorial immunity for actions that are intimately

associated with the judicial phase of the criminal process. Van de Kamp v. Goldstein, 555

U.S. 335, 341 (2009). To be entitled to absolute immunity, the prosecutorial act need not occur

within the courtroom. See Buckley v. Fitzsimmons, 509 U.S. 259, 272 (1993) (“[T]he duties of

the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of

a prosecution and actions apart from the courtroom.” (quotation marks and citation omitted)). A

prosecutor’s functions protected by absolute immunity include initiating a prosecution and

presenting the State’s case, appearing at a probable cause hearing to present evidence in support

of a search warrant application, professional evaluation of evidence assembled by the police and

appropriate preparation for its presentation at a trial or grand jury after a decision to seek an

indictment has been made, and preparing and filing an arrest warrant. See id. at 273; Van de

Kamp, 555 U.S. at 343; Ewing v. City of Stockton, 588 F.3d 1218, 1232-33 (9th Cir. 2009).

Plaintiff’s only allegations about District Attorneys Foote and Heywood are that they

participated in the conspiracy to arrest and beat Plaintiff. These allegations involve only Foote

and Heywood’s actions associated with the judicial phase of the criminal process and do not

show that they acted “clearly outside the scope of [their] authority.” See McCarthy, 827 F.3d

at 1315. Plaintiff’s allegations of conspiracy do not remove Defendants Foote and Heywood’s

prosecutorial immunity. See id. (holding that allegations of conspiracy did not remove the

defendant prosecutors’ immunity because “[t]he intent of the prosecutor when performing

prosecutorial acts plays no role in the immunity inquiry”). Accordingly, the Court dismisses

Plaintiff’s claims against Defendants Foote and Heywood.

E. Failure to State a Claim

Plaintiff has not alleged any specific facts about Governor Brown, Katy Coba, the

Department of Public Safety Standards and Training, or Shelley Hoffman. To plausibly state a

claim under § 1983, Plaintiff must “allege specific facts linking each defendant to a § 1983

violation.” Ortez v. Washington County, 88 F.3d 804, 809 (9th Cir. 1996). Plaintiff only includes

Governor Brown, Katy Coba, the Department of Public Safety Standards and Training, and

Shelley Hoffman in a group named the “Supervising Defendants,” and then alleges that those

Supervising Defendants engaged in a conspiracy to arrest and beat Plaintiff and failed to

adequately train employees and failed to investigate complaints of unconstitutional conduct.

There is no respondeat superior liability under § 1983. “A defendant may be

held liable as a supervisor under § 1983 ‘if there exists either (1) his or her personal involvement

in the constitutional deprivation, or (2) a sufficient causal connection between

the supervisor's wrongful conduct and the constitutional violation.’” Starr, 652 F.3d

at 1207 (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). The requisite showing can

be established by demonstrating that the supervisor: (1) set in motion a series of acts by others or

knowingly refused to terminate a series of acts by others, which the supervisor knew or

reasonably should have known would cause others to inflict constitutional injury; (2) had his or

her own culpable action or inaction in the training, supervision, or control of his or her

subordinates; (3) acquiesced in the constitutional deprivation by subordinates; or (4) engaged in

conduct that shows reckless or callous indifference to the rights of others. Id. at 1207-08. “A

plaintiff must allege facts, not simply conclusions, that show that an individual was personally

involved in the deprivation of [the plaintiff's] civil rights.” Barren v. Harrington, 152

F.3d 1193, 1194 (9th Cir. 1998).

Plaintiff has not alleged facts relating to the “Supervising Defendants” having any

personal involvement in the alleged deprivation of Plaintiff’s rights or otherwise linked any

“Supervising Defendant” to an alleged violation of law. Plaintiff has therefore failed to state a

claim against Governor Brown, Katy Coba, the Department of Public Safety Standards and

Training, and Shelley Hoffman. Accordingly, the Court dismisses all claims against Governor

Brown, Katy Coba, the Department of Public Safety Standards and Training, and Shelley

Hoffman.

Plaintiff also names Samantha Olson as a “Respondent (not defendant).” ECF 47 ¶ 113. It

appears that Plaintiff intends to include Olson as an individual with information relevant to his

claims, but not as a defendant. Plaintiff did not list Olson as a defendant in the caption of his

complaint, describes her as “not defendant,” and describes her actions with approval. Plaintiff’s

only allegation involving Olson is that, as an assistant District Attorney, she saw a video of

Plaintiff’s beating and “refused to proceed.” Id. Because Olson is not a defendant, the Court need

not dismiss her from this case.

F. Leave to Amend

The State Defendants argue that Plaintiff’s claims against them should be dismissed with

prejudice. The Court agrees. The dismissal based on judicial, quasi-judicial, and sovereign

immunity could not be cured with an amendment. For the claims against the remaining

defendants, the Court has already given Plaintiff a detailed description of the deficiencies in his

complaint and ample opportunity to amend his claims to cure those deficiencies. Plaintiff has

been unable to cure the deficiencies. Further amendment would be futile.

CONCLUSION

The Court GRANTS the State Defendants’ Motion to Dismiss (ECF 52). Plaintiff’s

claims against the State Defendants are dismissed with prejudice. In addition, the Court reminds

Plaintiff that the Court previously extended the deadline for service of process to

November 19, 2021 (ECF 56). If Plaintiff has not served the remaining Defendants in this

lawsuit by November 19, 2021, the Court will dismiss this case without prejudice.

IT IS SO ORDERED.

DATED this 5th day of November, 2021.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge