(PC) Hernandez v. Tulare County Correction Center et al, No. 1:2016cv00413 - Document 118 (E.D. Cal. 2018)

Court Description: ORDER Denying Plaintiff's Motion for Leave to File a Sur-Reply; Overruling Plaintiff's Objections to Corizon's Reply; and Granting Defendants' Motions for Summary Judgment re 68 , 85 , 101 , 111 , signed by Magistrate Judge Erica P. Grosjean on 9/17/18. CASE CLOSED. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ALBERT HERNANDEZ, 11 ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE A SURv. REPLY; OVERRULING PLAINTIFF’S OBJECTIONS TO CORIZON’S REPLY; TULARE COUNTY CORRECTION CENTER, AND GRANTING DEFENDANTS’ et al., MOTIONS FOR SUMMARY JUDGMENT 12 13 14 Case No. 1:16-cv-00413-EPG (PC) Plaintiff, 15 Defendants. (ECF Nos. 68, 85, 101, 111) 16 17 18 I. INTRODUCTION Albert Hernandez (“Plaintiff”) is a prisoner proceeding pro se in this civil rights action 19 alleging general negligence, intentional infliction of emotional distress, failure to protect, failure 20 to provide medical treatment in violation of the Eighth Amendment, failure to provide 21 accommodation of a disability in violation of the Fourteenth Amendment, and invasion of privacy 22 in violation of the Fourth Amendment against Tulare County Correction Center (“Tulare County” 23 or the “County”), Sheriff Mike Boudreaux, and Corizon Health Services (“Corizon”) 24 (collectively, “Defendants”). On January 11, 2016, Plaintiff commenced this action in the 25 Superior Court of the State of California for the County of Tulare. On March 25, 2016, Corizon 26 removed the action to this court pursuant to 28 U.S.C. § 1441(a). (ECF No. 1). 27 28 On January 11, 2018, Sheriff Boudreaux and Tulare County (collectively, the “County Defendants”) filed a motion for summary judgment. (ECF No. 68). On April 9, 2018, Plaintiff filed his opposition to the County Defendants’ motion for summary judgment. (ECF No. 95). On 1 1 April 11, 2018, the County Defendants filed their reply. (ECF No. 98). On April 18, 2018, 2 Plaintiff filed a supplement to his opposition, (ECF No. 100), and on April 30, 2018, filed a 3 motion for leave to file a sur-reply, (ECF No. 101). 4 On March 9, 2018, Corizon filed a motion for summary judgment. (ECF No. 85). On June 5 5, 2018, Plaintiff filed his opposition to Corizon’s motion for summary judgment. (ECF No. 102). 6 On June 26, 2018, Corizon filed its reply. (ECF No. 108). On July 12, 2018, Plaintiff filed 7 objections to Corizon’s reply. (ECF No. 111). For the reasons set forth below, Plaintiff’s motion for leave to file a sur-reply, (ECF No. 8 9 10 11 12 101), is denied, Plaintiff’s objections to Corizon’s reply, (ECF No. 111), is overruled, and Defendants’ motions for summary judgment, (ECF Nos. 68, 85), are granted. II. SUMMARY OF PLAINTIFF’S CLAIMS Plaintiff alleges that he was a pre-trial detainee in the custody of Tulare County 13 Corrections. In preparation for transport to a court appearance, on April 21, 2015 at 4:30 am, jail 14 officials conducted a body search and shackled his ankles. Jail officials then placed him in a 15 holding cell. At 6:30 am, jail officials conducted another body search and transported him to 16 court. When he arrived at the court, jail officials conducted another body search before he 17 proceeded to the court appearance. 18 After the court appearance, Plaintiff was transported back to Tulare County Corrections. 19 Jail officials were conducting body searches of processing and returning prisoners on a newly 20 purchased x-ray scanning machine. Jail officials instructed him to remove his shoes and proceed 21 to the scanning platform. Plaintiff told jail officials that he has chronic disabilities— a hip injury 22 and diabetes. He asked them to remove the shackles from his ankles because it was difficult for 23 him to step on two separated elevations in a standing position, but jail officials ignored him. 24 Instead, jail officials ordered him to remove and pick up his shoes, and to follow orders. A fellow 25 prisoner assisted by bending down to hand Plaintiff his shoes as his waist shackles “were almost 26 not removed.” 27 28 As he approached the scanning platform, Plaintiff stepped on the elevated plate and his ankle shackles caught and hung on the corner of the plate, causing him to trip and fall face first on 2 1 top of the elevated platform step. Plaintiff had no ability to stop the impact of the fall with his 2 hands because they were in waist shackles. The fall caused injury and damages to Plaintiff’s lip 3 and the right side of his temple. There was a “¾ incision” that bled throughout the day. Plaintiff 4 also suffered headaches, pain, and dental fracture, and has two loose front teeth that may require 5 dental extraction and the use of dentures. 6 Plaintiff further alleges that jail officials failed to treat his medical needs, and one jail 7 official, Deputy Hall, made numerous comments, including that Plaintiff should quit crying like a 8 baby and that Plaintiff cried worse than her youngest child. 9 Plaintiff also alleges that the medical provider, Corizon Health Services, failed to provide 10 him with immediate medical treatment, bandages, gauzes, or ointment. Corizon refused to 11 provide him with medical attention, and instructed him to sit and wait for a nurse to provide him 12 with a wheelchair to take him to the infirmary. Stephanie, a registered nurse, returned fifteen 13 minutes later, but provided no means to be transported for treatment. 14 Plaintiff alleges that defendants failed to protect him from injury and harm, failed to treat 15 his medical needs in violation of the Eighth Amendment, ignored his request for disability 16 accommodation thereby exposing him to unreasonable risk in violation of the Fourteenth 17 Amendment, limited his expectation of privacy in his body during cavity searches without 18 legitimate penological purpose, and intentionally inflicted emotional distress. Lastly, Plaintiff 19 states that he singled out Sheriff Boudreaux as a defendant because Boudreaux sets policies, 20 operations, and training of all Tulare County jail staff and officials. 21 III. 22 PROCEDURAL MOTIONS A. Motion for Leave to File Sur-Reply 23 Plaintiff’s motion for leave to file a sur-reply to the County Defendant’s reply is denied. 24 (ECF No. 101). Neither the Local Rules nor the Federal Rules of Civil Procedure authorizes the 25 filing of a sur-reply. Hill v. England, 2005 WL 3031136, *1 (E.D. Cal. Nov. 8, 2005). However, a 26 district court may in its discretion allow a sur-reply “where a valid reason for such additional 27 briefing exists.” Id. Plaintiff states that he is requesting to file a sur-reply because the County 28 Defendants “attempt[] to confuse the court and continue[] to deny that the plaintiff did not suffer 3 1 any disability while in the custody of Tulare County Corrections Center, where such plaintiff[] 2 contentions are based on personal knowledge and set forth facts, that would be admissible in 3 evidence, and w[h]ere the plaintiff attested under penalty of perjury that the contents of the 4 motion and pleadings are true and correct.” (ECF No. 101 at 1). Plaintiff, in effect, wants the last 5 word on the County Defendants’ motion for summary judgment. This is not a valid reason for 6 such additional briefing. Plaintiff has had ample opportunity to submit evidence supporting his 7 contentions and rebutting the County Defendants’ arguments. Plaintiff has submitted over one 8 hundred pages of arguments and evidence in opposition to the motion for summary judgment as 9 well as a supplement to his opposition. The motion is now more than fully briefed. Accordingly, 10 11 12 Plaintiff’s motion for leave to file a sur-reply is denied. B. Objections to Corizon’s Reply Plaintiff also objects to Corizon’s reply on its motion for summary judgment, (ECF No. 13 108). In its reply, Corizon objects to the medical opinions proffered by both “Plaintiff and his 14 fellow inmate[]” witnesses in their declarations. (ECF No. 108 at 1 n. 1). Corizon argues that the 15 declarations fail to show the declarants are competent to testify as required by Federal Rule of 16 Civil Procedure 56(c)(4) or qualified to offer admissible opinion under Federal Rules of Evidence 17 701 and 702. Plaintiff opposes Corizon’s objections and characterization of the witnesses, and 18 argues that his witnesses should not be labeled “inmates” as doing so would cause unfair 19 prejudice. (ECF No. 111 at 2). Plaintiff goes on to make substantive arguments in opposition to 20 the motion for summary judgment. Id. at 3-21. 21 It appears that Plaintiff’s argument is premised on a misunderstanding. Corizon does not 22 argue that portions of the declarations offered by Plaintiff should be disregarded because the 23 declarants are inmates, but rather because the declarants are not medical professionals. (ECF No. 24 108 at 1 n. 1). A trial court can only consider admissible evidence in ruling on a motion for 25 summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). “Affidavits 26 submitted in support of or in opposition to a summary judgment motion must be ‘made on 27 personal knowledge, ... set forth such facts as would be admissible in evidence, and ... show 28 affirmatively that the affiant is competent to testify to the matters stated therein.’” Bieghler v. 4 1 Kleppe, 633 F.2d 531, 533 (9th Cir. 1980) (quoting Fed. R. Civ. P. 56(e)). 2 Pursuant to Fed. R. Evid. 702, a witness qualified as an expert may testify in the form of 3 an opinion about issues as to which their expertise may assist the trier of fact. A witness may 4 qualify as an expert if he or she has obtained expertise on a subject through “knowledge, skill, 5 experience, training, or education.” Fed. R. Evid. 702. Lay witnesses, however, may not testify 6 based on scientific, technical, or other specialized knowledge within the scope of Rule 702, and 7 may testify only as to matter of which they have personal knowledge. Fed. R. Evid. 701 (“If a 8 witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: 9 (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s 10 testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other 11 specialized knowledge within the scope of Rule 702.”). Here, Plaintiff’s declarants are lay witnesses who appear to opine on matters outside of 12 13 their expertise. For example, declarant Ricardo Rocha asserts, “I do state that Albert Hernandez 14 incision required possible [sic] 2 to 3 stitches from blood loss in first two days.” (ECF No. 102 at 15 70). Mr. Rocha does not state that he is a medical professional or that he otherwise possesses 16 specialized knowledge, skill, experience, training, or education in the medical field. Id. at 69-70. 17 Therefore, he is unqualified to offer expert opinion as to what medical treatment Plaintiff should 18 have received. See Fed. R. Evid. 701, 702. Accordingly, Corizon’s objections are sustained, and 19 Plaintiff’s objections are overruled. The Court will disregard any testimony by any declarant that 20 does not comport with the Federal Rules of Civil Procedure and the Federal Rules of Evidence. 21 IV. 22 23 SUMMARY JUDGMENT MOTIONS A. Legal Standard Summary judgment in favor of a party is appropriate when there “is no genuine dispute as 24 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 25 56(a); Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is a genuine 26 dispute about material facts, summary judgment will not be granted.”). A party asserting that a 27 fact cannot be disputed must support the assertion by “citing to particular parts of materials in the 28 record, including depositions, documents, electronically stored information, affidavits or 5 1 declarations, stipulations (including those made for purposes of the motion only), admissions, 2 interrogatory answers, or other materials, or showing that the materials cited do not establish the 3 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 4 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 5 A party moving for summary judgment “bears the initial responsibility of informing the 6 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 7 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 8 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 9 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party 10 moves for summary judgment on the basis that a material fact lacks any proof, the Court must 11 determine whether a fair-minded jury could reasonably find for the non-moving party. Anderson 12 v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in 13 support of the plaintiff’s position will be insufficient; there must be evidence on which the jury 14 could reasonably find for the plaintiff.”). “[A] complete failure of proof concerning an essential 15 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 16 477 U.S. at 322. “[C]onclusory allegations unsupported by factual data” are not enough to rebut a 17 summary judgment motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citing Angel v. 18 Seattle-First Nat’l Bank, 653 F.2d 1293, 1299 (9th Cir. 1981)). 19 In judging the evidence at the summary judgment stage, the Court “must draw all 20 reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros 21 de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It need only 22 draw inferences, however, where there is “evidence in the record… from which a reasonable 23 inference… may be drawn…”; the court need not entertain inferences that are unsupported by 24 fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). Additionally, the evidence of the non- 25 movant is to be believed. Anderson, 477 U.S. at 255. Moreover, the Court must liberally 26 construe Plaintiff’s filings because he is a prisoner proceeding pro se in this action. Thomas v. 27 Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). 28 In reviewing a summary judgment motion, the Court may consider other materials in the 6 1 record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. 2 San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). B. Analysis1 3 4 i. Fourth Amendment Violation of Limited Expectation of Privacy Plaintiff alleges that the County, Corizon, and Boudreaux2 violated his Fourth 5 6 Amendment “limited expectation of privacy” in his body by analyzing his body cavities using a 7 full-body scanner without a legitimate penological interest. 8 The County Defendants do not dispute that they subjected Plaintiff to a body cavity search 9 using a full-body scanner. Rather, they argue that the search was performed to further a legitimate 10 security interest, and did not amount to a violation of Plaintiff’s constitutional rights. The 11 disagreement, therefore, is not a dispute of fact, but rather a question of law. 12 The Fourth Amendment guarantees the right of the people to be secure against 13 unreasonable searches. “This right extends to incarcerated prisoners; however, the reasonableness 14 of a particular search is determined by reference to the prison context.” Michenfelder v. Sumner, 15 860 F.2d 328, 332 (9th Cir.1988). In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court set 16 forth a balancing test to analyze whether searches of detainees violate the Fourth Amendment. In 17 that case, pretrial detainees at a federal correctional facility argued that a policy requiring them to 18 expose their body cavities for visual inspection as part of a strip search conducted after every 19 contact visit with a person from outside the institution violated their Fourth Amendment rights. 20 Id.at 558. The visual inspection required male prisoners to lift their genitals and spread their 21 buttocks, and female prisoners to expose their vaginal and anal cavities. Id.at 558 n.39. Jail 22 officials did not touch the prisoners during the visual inspection. Id. “Corrections officials 23 testified that visual cavity searches were necessary not only to discover but also to deter the 24 25 26 27 28 1 Throughout his oppositions, Plaintiff attempts to augment his claims by arguing that Defendants acted in retaliation for his filing a complaint and failed to grant him equal protection in violation of his constitutional rights. (ECF No. 95 at 10). Plaintiff did not allege any such claims in the operative complaint, and cannot amend his claims to defeat summary judgment. Therefore, the Court will not analyze these arguments. 2 Plaintiff appears to be suing Sheriff Boudreaux in his official capacity, as opposed to in his individual capacity, as Plaintiff concedes that Sheriff Boudreaux did not personally participate in any of the events alleged in this action, and is sued only because he is Sheriff of Tulare County. (ECF No. 1-1 at 7). The Court will thus analyze the claims against Sheriff Boudreaux as claims against an entity, i.e. Tulare County Sheriff Department. 7 1 smuggling of weapons, drugs, and other contraband into the institution.” Id. “Balancing the 2 significant and legitimate security interests of the institution against the privacy interests of the 3 prisoners,” the Court held that the visual body cavity searches were reasonable, and did not 4 violate the Fourth Amendment. Id. at 558-560. The Court explained: 5 6 7 8 9 10 11 12 The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And prisoner attempts to secrete these items into the facility by concealing them in body cavities are documented in this record [] and in other cases. Id. at 559 (internal citations omitted). The visual inspection in the present case is substantially less intrusive than the visual 13 inspection found reasonable under the Fourth Amendment in Bell. Here, jail officials attempted to 14 subject Plaintiff to a visual inspection upon his return from outside of the jail facility. (ECF Nos. 15 1-1 at 6; 68-6 at 2). The visual inspection was to be conducted using an x-ray full-body scanner. 16 Id. The x-ray search was minimally intrusive in both manner and scope. Plaintiff was fully 17 clothed. (ECF Nos. 1-1 at 6; 68-6 at 2). Jail officials did not instruct him to expose his genitals or 18 buttocks. Id. And, jail officials did not touch him. Id. The visual inspection involved only the 19 viewing of an x-ray image of Plaintiff’s form—a screening procedure comparable to those 20 regularly conducted by the Transportation Security Administration on passengers boarding an 21 airplane. (ECF No. 98 at 1-3). 22 The County Defendants maintain that the purpose of the routine visual inspection is to 23 ensure that prisoners do not bring weapons or other contraband into the jail facility. (ECF Nos. 24 68-6 at 2). As the Court held in Bell, the need of jail officials to discover and to deter the 25 smuggling of weapons, drugs, and other contraband into a jail facility is a significant and 26 legitimate security interest. Thus, in balancing this legitimate security interest against the minimal 27 invasion of personal rights that the search entails, the Court concludes that the x-ray search is 28 reasonable under the Fourth Amendment. Thus, the County Defendants are entitled to judgment 8 1 2 as a matter of law. Additionally, Corizon argues that it is entitled to summary judgment on Plaintiff’s 3 invasion of privacy, failure to protect, and failure to accommodate a disability claims because 4 they do not relate to any conduct by Corizon or a Corizon employee. (ECF No. 94 at 12). There 5 are no factual allegations in the operative complaint to state a claim for liability on the part of 6 Corizon or a Corizon employee regarding these claims. (ECF No. 1-1). The record is also devoid 7 of any evidence that would support a finding of liability against Corizon or a Corizon employee 8 regarding these claims. Accordingly, Corizon is entitled to judgment as a matter of law on 9 Plaintiff’s claims of invasion of privacy, failure to protect, and failure to accommodate a 10 disability. 11 ii. Violation of the Fourteenth Amendment 12 “Prisoners who sue prison officials for injuries suffered while in custody may do so under 13 the Eighth Amendment's Cruel and Unusual Punishment Clause or, if not yet convicted, under the 14 Fourteenth Amendment's Due Process Clause.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 15 1067-68 (9th Cir. 2016), cert. denied sub nom. Los Angeles Cty., Cal. v. Castro, 137 S. Ct. 831, 16 (2017). Plaintiff alleges that his injuries resulted while he was a pre-trial detainee in the custody 17 of the County Defendants. Thus, the Court must analyze his claims under the Fourteenth 18 Amendment. 19 A county or other local governmental entity may be liable for a constitutional deprivation 20 where the plaintiff can “satisfy the requirements for municipality liability established by Monell 21 and its progeny.” Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016) (citing 22 Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978)). Under Monell, an 23 entity defendant cannot be held liable for a constitutional violation solely because it employs a 24 tortfeasor. 436 U.S. at 691. An entity defendant can only be held liable for injuries caused by the 25 execution of its policy or custom or by those whose edicts or acts may fairly be said to represent 26 official policy. Id. at 694. A “policy” is a “deliberate choice to follow a course of action . . . made 27 from among various alternatives by the official or officials responsible for establishing final 28 policy with respect to the subject matter in question.” Fogel v. Collins, 531 F.3d 824, 834 (9th 9 1 Cir. 2008). “In addition, a local governmental entity may be liable if it has a ‘policy of inaction 2 and such inaction amounts to a failure to protect constitutional rights.’” Lee v. City of Los 3 Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th 4 Cir. 1992)). 5 In Castro, the Ninth Circuit articulated the elements of a pretrial detainee’s Fourteenth 6 Amendment claim against an entity. 833 F.3d at 1073-74. The court upholding a lower courts’ 7 jury instructions on such a claim, concluded that to prevail on a claim against an entity defendant, 8 a prisoner plaintiff must establish each of the following elements: (1) the prisoner plaintiff was 9 deprived of a constitutional right; (2) the entity defendant had a longstanding practice or custom; 10 (3) the entity defendant’s longstanding practice or custom was unconstitutional in that it was 11 deliberately indifferent to a substantial risk of serious harm to prisoners; and (4) the entity 12 defendant’s longstanding practice or custom was the moving force behind the harm to the 13 prisoner plaintiff. Id. at 1073 14 15 1. Failure to Protect Claim Plaintiff alleges that the County Defendants failed to protect him from injury and harm. In 16 the operative complaint, Plaintiff states that a jail officials’ direction to get on the full-body 17 scanner platform while wearing ankle shackles caused his injury. (ECF No. 1-1 at 16). In his 18 opposition to the instant motions, Plaintiff contends that the full-body scanner was unsafe because 19 it did not have a handrail. (ECF No. 95 at 20). 20 The County Defendants contend that Plaintiff cannot show that they knew of and 21 disregarded an excessive risk to his health or safety. (ECF No. 68-1 at 6). They argue that a single 22 trip and fall incident fails to come close to a condition that poses a substantial risk of serious harm 23 to prisoners. They also argue the full-body scanner was not missing its handrail at the time of the 24 incident. Id. at 6. 25 Initially, the County Defendants offer evidence in the form of photographs and a 26 declaration that the full-body scanner was equipped with a handrail at the time of the incident. 27 (ECF No. 68-5 at 2; 68-7 at 1-4). The photographs were not taken at the time of the incident, 28 however. (ECF No. 68-4 at 1-2). In opposition, Plaintiff offers evidence in the form of a 10 1 declaration that the scanner was not equipped with a handrail at the time of the incident. (ECF 2 No. 102 at 61). This would appear to create a dispute of fact; however, whether the scanner was 3 equipped with a handrail is not a material issue. Plaintiff does not allege that he fell because the 4 full-body scanner was missing a handrail. He alleges that he fell because the chains of his ankle 5 shackles caught on a step of the full-body scanner. (ECF No. 1-1 at 6). Plaintiff further alleges 6 that he was unable to use his hands to stop the impact of his fall because his hands were in waist 7 shackles. (ECF No. 1-1 at 6). Thus, the absence or presence of a handrail is an immaterial dispute, 8 insufficient to defeat summary judgment. 9 Plaintiff also alleges that being instructed to step on the scanning platform while wearing 10 ankle shackles placed him at risk for suffering harm. (ECF No. 1-1 at 16). The full-body scanner 11 employed by the County Defendants is a SecurPass Body Scanner. (ECF No. 68-6 at 2). There are 12 two steps, each approximately three (3) inches tall, that prisoners must clear while stepping onto 13 the SecurPass Body Scanner platform. Id. The County Defendants concede that it is their policy 14 and practice to process prisoners returning from court through a body-scan machine, and that the 15 prisoners must wear shackles. (ECF No. 68-6 at 2). The remaining inquiry then is whether the 16 County Defendants were deliberately indifferent to a substantial risk of serious harm to prisoners 17 in employing such a policy. 18 “The deliberate indifference standard for municipalities is always an objective inquiry.” 19 Castro, 833 F.3d at 1074. “This Castro objective standard is satisfied when “a § 1983 plaintiff 20 can establish that the facts available to [] policymakers put them on actual or constructive notice 21 that the particular omission [or act] is substantially certain to result in the violation of the 22 constitutional rights of their citizens.” Mendiola–Martinez, 836 F.3d at 1248–49 (quoting Castro, 23 833 F.3d at 1076 and City of Canton v. Harris, 489 U.S. 378, 396 (1989) (O'Connor, J., 24 concurring in part and dissenting in part)) (emphasis omitted). 25 The record is devoid of any evidence that Defendants were on notice—either actual or 26 constructive—that prisoners would trip and fall when ascending the steps of the full-body scanner 27 while wearing ankle shackles. In fact, the County Defendants contend that Plaintiff himself was 28 able to clear the three-inch tall steps on two occasions prior to the incident while wearing ankle 11 1 shackles. (ECF No. 98 at 3). The County Defendants tender two x-ray images of Plaintiff taken 2 on March 24, 2015 and April 9, 2015. (ECF No. 98-1 at 2-3). The images show Plaintiff standing 3 on the scanner platform with both his hands and ankles in shackles. Id. 4 Plaintiff argues, contrary to the photographic evidence, that his shackles were removed on 5 March 24, 2015 and April 9, 2015. Plaintiff neither argues that the photographic evidence is 6 inauthentic nor offers any evidence in support of his contention that his shackles were removed. 7 Plaintiff only offers his bare assertion, which is insufficient to withstand summary judgment. See 8 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (stating that courts need 9 not find a “genuine issue” where the only evidence presented is “uncorroborated and self-serving” 10 testimony); Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 587 (1985) (“Where 11 the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, 12 there is no ‘genuine issue for trial.’” (quoting First National Bank of Arizona v. Cities Service 13 Co., 391 U.S. 253, 289 (1968)). 14 Moreover, any risk of serious harm to Plaintiff was not substantial. Plaintiff tripped, 15 accidentally. In the operative complaint, Plaintiff states, “As I approach [sic] steel platform to 16 step on elevated plate, ankle chain caught and hung on corner [of] steel plate, causing me to trip . 17 . . .” Tripping, accidentally, does not constitute a substantial risk of harm to form the predicate of 18 a constitutional violation. See Kingsley v. Hendrickson, 135 S.Ct. 2466, 2472 (2015) (stating that 19 a pretrial detainee cannot prevail on a claim alleging that an accident caused him harm); County 20 of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“[L]iability for negligently inflicted harm is 21 categorically beneath the threshold of constitutional due process.”). 22 23 24 Thus, the County Defendants have met their ultimate burden of persuasion and are entitled to judgment a matter of law. 2. Failure to Provide Medical Care 25 Plaintiff alleges that Defendants delayed and denied him medical care. 26 The County Defendants contend that Plaintiff cannot succeed on his claim for inadequate 27 medical care. (ECF No. 68-1 at 16-17). They argue that Plaintiff has conceded that he received 28 prompt medical care by acknowledging in a court filing, “Corizon Health Services Employees 12 1 who provide Health Services for Tulare County Correction Facility were called from infirmity 2 [sic], R.N. Stephanie and observed wound on lower lip, that was bleeding with a 3/4” gash.” 3 (ECF No. 12 at 5). Likewise, Corizon contends that Plaintiff sustained minor injuries and was 4 given appropriate care by a registered nurse and a dental nurse. (ECF No. 94 at 15). 5 In Gordon v. Cty. of Orange, the Ninth Circuit extended the objective deliberate 6 indifference standard articulated in Castro to inadequate medical care claims by pretrial detainees 7 against municipalities. 888 F.3d 1118 (9th Cir. 2018). Again, the “Castro objective standard is 8 satisfied when ‘a § 1983 plaintiff can establish that the facts available to [] policymakers put them 9 on actual or constructive notice that the particular omission [or act] is substantially certain to 10 result in the violation of the constitutional rights of their citizens.’” Mendiola–Martinez, 836 F.3d 11 at 1248–49 (quoting Castro, 833 F.3d at 1076 and Harris, 489 U.S. at 396). 12 Plaintiff does not allege that either the County Defendants or Corizon employ a policy or 13 custom of denying prisoners adequate medical care. Furthermore, the record is devoid of any 14 evidence that either the County Defendants or Corizon employed such a policy. For this reason 15 alone, Defendants are entitled to summary judgment on this Fourteenth Amendment claim. See 16 e.g. Taplin v. Multnomah Cty. Health Servs., No. 3:15-CV-01937-AA, 2017 WL 4369483, at *5 17 n. 3 (D. Or. Sept. 29, 2017), aff'd, 735 F. App'x 404 (9th Cir. 2018) (awarding summary judgment 18 to Sheriff’s Office and medical service provider where a pretrial detainee did not identify a 19 policy, practice, or custom to support municipal liability on his inadequate medical care claims); 20 Okpoti v. Las Vegas Metro. Police Dep't, No. 5CV00110APGCWH, 2017 WL 773871, at *4 (D. 21 Nev. Feb. 27, 2017), aff'd sub nom. Okpoti v. Las Vegas Metro. Police Dep't on behalf of Nevada, 22 712 F. App'x 671 (9th Cir. 2018) (awarding summary judgment where a pretrial detainee failed to 23 “present[] evidence showing a direct causal link between a municipal policy or custom and the 24 alleged constitutional deprivation.” (quotation marks omitted)). 25 Nevertheless, even if Plaintiff did allege that Defendants implemented a policy or custom 26 that instructed or otherwise caused correctional and/or medical personnel to deny him sufficient 27 medical care, Defendants would still be entitled to judgment as a matter of law. The record 28 establishes that Defendants did, in fact, provide adequate medical care. 13 1 The County Defendants offer evidence that they provided Plaintiff with prompt medical 2 attention. (ECF No. 68-12 at 1-5). Plaintiff does not refute this evidence; instead, he corroborates 3 it. According to Plaintiff’s evidence, upon his fall, a jail official immediately removed the 4 shackles around his waist and ankles so that he could apply pressure with his t-shirt to his 5 bleeding lip. (ECF No. 102 at 61). A jail official then left the room to summon a Corizon medical 6 employee. Id. at 61, 77. A registered nurse arrived and observed Plaintiff’s injuries. Id. at 12-13, 7 61, 77. She instructed him to sit while she retrieved a wheelchair. (ECF Nos. 1-1 at16-17; 102 at 8 12-13, 61, 77). The nurse returned after ten or fifteen minutes with an aspirin and gauze for self- 9 treatment to stop the bleeding, accompanied by a dental nurse. (ECF Nos. 1-1 at 17; 102 at 13, 61, 10 75, 80-81). The dental nurse asked Plaintiff to open his mouth, observed his teeth, and indicated 11 that he was clear. (ECF No. 102 at 14, 54, 75). The registered nurse gave him an ice pack, 12 demonstrated how to use it, and instructed him to apply it to the wound area when the bleeding 13 stopped. (ECF No. 102 at 49). The registered nurse then gave Plaintiff a half-dozen gauzes and 14 cleared him to return to his cell. (ECF No. 102 at 13, 81). 15 When Plaintiff returned to his cell, he informed a jail official that his lip was still 16 bleeding, and she instructed him to hold the gauze on his wound to allow the blood to dry and 17 clot. (ECF No. 102 at 66, 81). Later that day, Plaintiff was given more gauze and instructed to 18 hold it against his wound. (ECF No. 102 at 75). At approximately 11:30 p.m. on April 21, 2015, 19 another member of the medical staff ordered that Plaintiff receive ointment, bandages, and 20 Ibuprofen, which he received at 4:00 a.m. on April 22, 2015. (ECF No. 102 at 16, 81). On April 21 30, 2015, Plaintiff received a tetanus shot. (ECF No. 102 at 17). On May 5, 2015, he was 22 transported to the infirmary to be seen by medical staff, Michael Roper, FNP-C, for complaints 23 arising from the accident. (ECF No. 102 at 67). 24 The evidence, therefore, establishes that the County Defendants did not make a deliberate 25 choice to disregard Plaintiff’s need for medical care. The County Defendants were cognizant of 26 Plaintiff’s need for medical attention, and contacted a medical professional who undertook to 27 provide Plaintiff with medical care. Thus, the County Defendants have met their ultimate burden 28 of persuasion and are entitled to judgment as a matter of law. 14 1 Corizon is also entitled to judgment as a matter of law. Plaintiff’s claim against Corizon is 2 essentially that the responding registered nurse, identified as Stephanie Willett, and dental nurse 3 should have provided him more medical care. Plaintiff states that he was not provided ointment, 4 bandages, or gauzes, he did not receive stitches, he was not evaluated for a concussion, and he 5 continued to bleed throughout the day to the following morning. (ECF No 1-1 at 17). 6 To establish a claim for violation of constitutional right to adequate medical care under 7 the Fourteenth Amendment, a plaintiff must demonstrate “more than negligence but less than 8 subjective intent—something akin to reckless disregard.” Id. “‘[M]ere lack of due care by a state 9 official’ does not deprive an individual of life, liberty, or property under the Fourteenth 10 Amendment.” Gordon, 888 F.3d at 1125 (quoting Castro, 833 F.3d at 1071). “Medical 11 malpractice does not become a constitutional violation merely because the victim is a prisoner.” 12 Estelle v. Gamble, 429 U.S. 97, 106 (1976). A “plaintiff must show that the course of treatment 13 the [medical professional] chose was medically unacceptable under the circumstances.” Jackson 14 v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 15 Corizon’s evidence establishes that they met the standard of care. Mrs. Willett states in 16 her declaration that when she encountered Plaintiff, she observed blood from cuts on his mouth 17 and chin. (ECF No. 94-2 at 3). He reported that he had a headache, but did not report that he had 18 lost consciousness from the fall. Id. He did not report and did not exhibit any symptoms or signs 19 of a potentially serious head injury. Id. She gave Plaintiff an ice pack and ibuprofen. Id. And, she 20 confirmed that Plaintiff should notify staff if his symptoms changed or worsened. Id. She 21 anticipated that when the bleeding stopped and the swelling reduced Plaintiff might be given 22 antibiotic ointment and bandages, but these interventions were not yet required. Id. at 8. 23 On May 5, 2015, Plaintiff was seen by Mr. Roper. (ECF No. 94-4 at 5). Plaintiff did not 24 report any injuries or signs of any abnormalities related to the fall. Id. On May 26, 2015, and May 25 29, 2015, Plaintiff complained of a headache. Id. at 7. On June 2, 2015, he was seen by a nurse. 26 Id. His vital signs were reported normal, and he was given ibuprofen. Id. On June 25, 2015, and 27 June 27, 2015, Plaintiff again complained of headaches. Id. at 8. On July 8, 2015, he was again 28 seen by Mr. Roper, and had a headache and excessive ear wax in his left ear. Id. He was 15 1 prescribed Excedrin for migraine and ear drops. Id. at 9. 2 Plaintiff does not dispute that he received this treatment. However, he maintains that Mrs. 3 Willet did not act appropriately within the standard of care for a registered nurse. Plaintiff states 4 that he did not receive the assessment, treatment, and analysis that he was entitled to because his 5 vitals were not checked, he was not transported in a wheelchair, he was not evaluated for a 6 concussion, he did not observe an emergency response bag, and he was not treated for left knee 7 injury. (ECF No. 102 at 52). However, Plaintiff fails to tender specific facts in the form of 8 competent and admissible evidence in support of his contention that his specific requests were 9 medically necessary or that the treatment he received was objectively unreasonable and was 10 medically unacceptable under the circumstances.3 See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. 11 at 586 n.11; Strong v. France, 474 F.2d 747, 749 (9th Cir. 1973). Thus, Corizon has met its 12 ultimate burden of persuasion and is entitled to judgment as a matter of law. 13 iii. Failure to Accommodate Disability 14 Plaintiff alleges that he told jail officials of his disabilities—moderate osteoarthritis of the 15 left hip and diabetes—but they ignored his request for a disability accommodation thereby 16 exposing him to an unreasonable risk of harm. (ECF Nos. 1-1 at 7; 95 at 36). The County Defendants do not dispute that they denied Plaintiff’s request for 17 18 accommodation. They contend that they were unware of any disability access issues as Plaintiff 19 failed to disclose any such issues in his intake records. (ECF No. 68-1 at 8). Plaintiff’s claims sound in Title II of the Americans with Disabilities Act (“ADA”) and 20 21 Section 504 of the Rehabilitation Act (“RA”). The ADA and RA requires public entities to make 22 reasonable accommodation to disabled individuals. Pierce v. Cty. of Orange, 526 F.3d 1190, 1215 23 (9th Cir. 2008). This requirement applies to state and county prisons. Pa. Dep't of Corr. v. Yeskey, 24 25 26 27 28 3 Plaintiff offers as evidence the declarations of Frank Jesus Guillen, Ramiro Rodriquez, and Ricardo Rocha, all of whom state that Plaintiff was entitled to additional medical care. See e.g. Declaration of Ramiro Rodriquez, ECF No. 102 at 65 (“Delaying and denying Hernandez medical care that was due process and needed for wound that I personaly [sic] believe needed a few stitches.”); Declaration of Ricardo Rocha, ECF No. 102 at 69 (“I do state that Albert Hernandez incision required possible [sic] 2 to 3 stitches from blood loss in first two days.”). None of the declarants, however, state that they have knowledge, skill, experience, training, or education in the medical field sufficient to qualify them as an expert under Fed. R. Evid. 702. Accordingly, their opinion as to what treatment Plaintiff should have received is not admissible. 16 1 524 U.S. 206, 210 (1998); Lee, 250 F.3d at 691. However, “[b]efore a public entity can be 2 required under the ADA to provide a disabled individual an auxiliary aid or service, a public 3 entity must have knowledge of the individual's disability and the individual's need for an 4 accommodation.” Robertson v. Las Animas Cty. Sheriff's Dep't, 500 F.3d 1185, 1196 (9th Cir. 5 2007). “[T]he entity must [] have knowledge that an individual requires an accommodation of 6 some kind to participate in or receive the benefits of its services.” Id. at 1197. The entity must 7 have knowledge of the limitations caused by an individual’s disability to take reasonable 8 measures to accommodate the limitations. Id. “[A] public entity is on notice that an individual 9 needs an accommodation when it knows that an individual requires one, either because that need 10 is obvious or because the individual requests an accommodation.” Id. at 1197-98. 11 Here, Plaintiff does not dispute that he failed to request a disability accommodation prior 12 to the incident at issue. Rather, Plaintiff argues that his need for an accommodation was obvious. 13 Plaintiff maintains that he had a recognized disability as he has a “chrono” for lower bunk 14 assignment and has been denied work assignments due to his disabilities. (ECF No. 95 at 9, 13). 15 Plaintiff also contends that Defendants should have consulted with his physician, and should have 16 known of his disabilities because they had transported him to numerous out-patient medical 17 appointments. Id. Based on these tacit indicia, Plaintiff argues, jail officials should have removed 18 his ankle shackles before directing him to attempt to climb two three-inch tall steps. 19 Defendants offer photographic evidence that Plaintiff was able to clear the three-inch tall 20 steps on two other occasions—one of which was less than two weeks prior—without the need for 21 an accommodation. (ECF No. 98-1 at 2-3). It stands to reason that Plaintiff’s limitation and 22 specific need for accommodation could not have been obvious if he was able to successfully 23 complete the same effort for which he sought accommodation without apparent limitation just 24 two weeks before. Plaintiff does not refute this evidence. Thus, Plaintiff’s need for an 25 accommodation was not actually known or obvious, and Defendants are entitled to judgment as a 26 matter of law. 27 28 iv. State Law Claims 1. Intentional Infliction of Emotional Distress 17 1 “The elements of intentional infliction of emotional distress are: (1) extreme and 2 outrageous conduct by the defendants with the intention of causing, or reckless disregard of the 3 probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional 4 distress; and (3) actual and proximate causation of the emotional distress by the defendant's 5 outrageous conduct.” Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1179-80 (E.D. Cal. 2008) 6 (citing Potter v. Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993)). Extreme and 7 outrageous conduct is that which is “so extreme as to exceed all bounds of that usually tolerated 8 in a civilized community,” Potter, 6 Cal.4th at 1001, and “of a nature which is especially 9 calculated to cause, and does cause, mental distress of a very serious kind.” Christensen v. Super. 10 Ct, 54 Cal.3d 868, 905 (1991) (emphasis in original). The defendant's conduct must be “‘intended 11 to inflict injury or engaged in with the realization that injury will result.’” Potter, 863 P.2d at 819. 12 “Liability for intentional infliction of emotional distress ‘does not extend to mere insults, 13 indignities, threats, annoyances, petty oppressions, or other trivialities.’” Hughes v. Pair, 209 14 P.3d 963, 976 (Cal. 2009) (quoting Rest.2d Torts, § 46, com. d.). 15 An employer may be held vicariously liable for the torts of its employees committed 16 within the scope of the employment, including an employee’s willful, malicious and even 17 criminal torts. Lisa M. v. Henry Mayo Newhall Mem'l Hosp., 907 P.2d 358, 360–61 (Cal. 1995). 18 However, an intentional tort gives rise to respondeat superior liability only if the resulting injuries 19 “‘as a practical matter are sure to occur in the conduct of the employer’s enterprise.’” Id. at 362 20 (quoting Hinman v. Westinghouse Elec. Co., 471 P.2d 988, 990 (Cal. 1970)). 21 Plaintiff’s intentional tort claim as described in the operative complaint is as follows: 22 “Intentional Infliction of Emotional Distress! By Defendants!” (ECF No. 1-1 at 7). The County 23 Defendants contend that Plaintiff fails to set forth factual allegations that any defendant acted 24 with extreme and outrageous conduct with the intention of causing, or reckless disregard of the 25 probability of causing, him emotional distress. (ECF No. 68-1 at 24). In his opposition, Plaintiff 26 fails to identify any conduct by any defendant that has caused him emotional distress. Instead, he 27 states, “Plaintiff corrects the error, claim of infliction of emotional distress and general negligence 28 caused by the defendants’ action,” and requests leave to amend the operative complaint. (ECF 18 1 No. 95 at 24). The County Defendants, in turn, argue that Plaintiff’s intentional tort and 2 negligence claims should be dismissed as error. (ECF No. 98 at 5). 3 The Court does not interpret Plaintiff’s statement as a request to voluntarily dismiss his 4 intentional tort claim, but rather a request to amend it. Nevertheless, the Court declines to grant 5 leave to amend at this late stage of litigation due to the prejudice to the opposing parties. See 6 Foman v. Davis, 371 U.S. 178, 182 (1962) (identifying several factors a court may consider in 7 deciding whether to grant leave to amend a complaint under Fed. R. Civ. P. 15: (1) whether the 8 plaintiff has previously amended his compliant, (2) undue delay, (3) bad faith, (4) futility of 9 amendment, and (5) prejudice to the opposing party); Eminence Capital, LLC v. Aspeon, Inc., 316 10 F.3d 1048, 1052 (9th Cir. 2003) (“As this circuit and others have held, it is the consideration of 11 prejudice to the opposing party that carries the greatest weight”); Peterson v. California, 1:10– 12 CV–01132–SMS, 2011 WL 3875622 (E.D. Cal. Sept. 1, 2011) (“Prejudice and undue delay are 13 inherent in an amendment asserted after the close of discovery and after dispositive motions have 14 been filed, briefed, and decided.”) (quoting Campbell v. Emory Clinic, 166 F. 3d 1157, 1162 15 (11th Cir. 1999)). 16 In any event, a fair-minded jury would not be able to reasonably find for Plaintiff. 17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The operative complaint does not 18 reveal any intentionally extreme and outrageous conduct by any defendant or employee of a 19 defendant. The only conduct that approaches intentional conduct is Deputy Hall’s comments that 20 Plaintiff should quit crying like a baby and cried worse than her youngest child. This conduct, 21 however, fails to approach extreme and outrageous. Deputy Hall’s conduct amounts to mere 22 insults or annoyances. See Hughes, 209 P.3d at 976. Thus, Defendants are entitled to judgment as 23 a matter of law. 24 25 2. Negligence “In order to establish negligence under California law, a plaintiff must establish four 26 required elements: (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock Inc., 349 27 F.3d 1191, 1203 (9th Cir. 2003). A nurse breaches her duty if she “fails to meet the standard of 28 care—that is, fails to use the level of skill, knowledge, and care that a reasonably careful nurse 19 1 would use in similar circumstances.” Massey v. Mercy Med. Ctr. Redding, 180 Cal. App. 4th 690, 2 694 (2009). “The standard of care against which the acts of a medical practitioner [including a 3 nurse] are to be measured is a matter peculiarly within the knowledge of experts; it presents the 4 basic issue in a malpractice action and can only be proved by their testimony, unless the conduct 5 required by the particular circumstances is within the common knowledge of laymen.” Id. 6 (quoting Alef v. Alta Bates Hospital, 5 Cal.App.4th 208, 215(1992)). “In other words, expert 7 opinion testimony is required to prove that a defendant nurse did not meet the standard of care 8 and therefore was negligent, “except in cases where the negligence is obvious to laymen.” Id. 9 (quoting Kelley v. Trunk 66 Cal.App.4th 519, 523 (1998)). For example, in Massey v. Mercy Med. 10 Ctr., a state appeals court applied the common knowledge exception where a nurse was tasked 11 with assisting a fall-risk postoperative patient to walk a short distance to the bathroom. Id. at 697. 12 The patient fell from a walker when he was left unattended and sustained serious injuries. Id. The 13 court concluded that the common knowledge exception applied as the nurse was engaged in a 14 routine, nontechnical task. Id. at 697. “California courts have incorporated the expert evidence requirement into their standard 15 16 for summary judgment in medical malpractice cases. When a defendant moves for summary 17 judgment and supports his motion with expert declarations that his conduct fell within the 18 community standard of care, he is entitled to summary judgment unless the plaintiff comes 19 forward with conflicting expert evidence.” Hanson v. Grode, 76 Cal.App.4th 601, 607(1999). Plaintiff alleges that Corizon4 breached its standard of care by denying him adequate 20 21 medical care. Corizon has offered expert testimony that the treatment Plaintiff received met the 22 standard of care. (ECF Nos. 94-2; 94-4). Plaintiff does not offer any conflicting expert testimony 23 that the treatment he received fell below the standard of care. Instead, Plaintiff argues that lay 24 witness testimony is sufficient to establish that Corizon breached its standard of care because the 25 negligence was obvious to laymen. The Court, however, disagrees. Again, the lay witnesses 26 improperly proffer opinions that require technical expertise. The witnesses testify as to what care 27 4 28 Plaintiff also alleges in the operative complaint that the County Defendants were negligent. (ECF No. 1-1 at 6). In his opposition, however, Plaintiff requests to amend his claims against Boudreaux and the County. (ECF. No. 94 at 24). As discussed above, the Court declines to grant Plaintiff leave to amend. 20 1 Plaintiff should have received, including how many stitches were necessary to treat his wound. 2 The amount of stitches a wound requires is not a routine, nontechnical task that can be performed 3 or recognized as obvious by a layperson. Thus, the lay witness testimonies are, again, 4 inadmissible and insufficient to create a dispute of fact. Accordingly, Corizon has met its burden, 5 and is entitled to judgment as a matter of law. 6 7 V. CONCLUSION AND ORDER Based on the foregoing, Tulare County Correction and Sheriff Mike Boudreaux’s motion 8 for summary judgment, (ECF No. 68), and Corizon Health Services’ motion for summary 9 judgment, (ECF No. 85), is granted in its entirety. 10 11 The Clerk of the Court is directed to enter judgment in favor of Tulare County Correction Center, Sheriff Mike Boudreaux, and Corizon Health Services, and to close the case. 12 13 14 15 IT IS SO ORDERED. Dated: September 17, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 21

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