(PC) Norwood v Nanganama, et al.,, No. 2:2009cv02929 - Document 45 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/17/10 ORDERING plaintiff's motion for an expert witness 20 is denied. Defendants' motion to strike 29 is denied. Also, RECOMMENDING that defend ants' motion to dismiss 21 be granted in that: Defendant Nanganama is dismissed for plaintiff's failure to exhaust administrative remedies; Defendant Ramen is dismissed, but plaintiff may file an amended complaint with respect to Ramen at a future date to be determined by the court. MOTION to DISMISS 21 referred to Judge Lawrence K. Karlton. Objections due within 14 days.(Plummer, M)
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(PC) Norwood v Nanganama, et al., Doc. 45 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 GREGORY NORWOOD, 10 11 12 Plaintiff, vs. NANGANAMA, et al., 13 16 ORDER & FINDINGS AND RECOMMENDATIONS Defendants. 14 15 No. CIV S-09-2929 LKK GGH P / I. Introduction Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. Pending before the court is defendants’ May 6, 2010, motion to dismiss for 18 failure to exhaust administrative remedies and failure to state a claim (Doc. 21). Plaintiff filed an 19 opposition on June 3, 2010, and defendants filed a reply. Plaintiff also filed a sur reply on June 20 23, 2010, which defendants have filed a motion to strike (Doc. 29). Also pending is plaintiff’s 21 motion to appoint an expert dermatologist (Doc. 20). 22 II. Background 23 This case is currently proceeding on the original complaint filed on October 21, 24 2009. Service is pending for several other defendants, but the served defendants bringing the 25 instant motions are Dr. Nanganama and Dr. Raman. Plaintiff alleges that while housed at 26 California State Prison - Sacramento (CSP-Sac), for approximately three weeks, Dr. Nanganama 1 Dockets.Justia.com 1 provided inadequate medical care concerning plaintiff’s skin condition and body bugs. Plaintiff 2 alleges that Dr. Raman also provided inadequate medical care for these same conditions while 3 plaintiff was housed at California Substance Abuse Treatment Facility (SATF). 4 Dr. Nanganama moves for dismissal as plaintiff failed to exhaust administrative 5 remedies and Dr. Raman moves for dismissal for plaintiff’s failure to state a claim on which 6 relief may be granted. 7 III. Motion to Strike 8 9 Defendants move to strike plaintiff’s sur reply to the motion to dismiss. As plaintiff is proceeding pro se, the undersigned will consider the extra filing. Defendants’ motion 10 is denied. 11 IV. Motion to Dismiss 12 Legal Standard 13 Exhaustion 14 The Prison Litigation Reform Act of 1995 (PLRA) amended 42 U.S.C. § 1997e to 15 provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 16 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional 17 facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 18 Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 19 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding the conditions of 20 their confinement, whether they involve general circumstances or particular episodes, and 21 whether they allege excessive force or some other wrong. Porter, 534 U.S. at 532. 22 Exhaustion of all “available” remedies is mandatory; those remedies need not 23 meet federal standards, nor must they be “plain, speedy and effective.” Id. at 524; Booth v. 24 Churner, 532 U.S. 731, 740, n. 5 (2001). Even when the prisoner seeks relief not available in 25 grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Booth, 532 26 U.S. at 741. A prisoner “seeking only money damages must complete a prison administrative 2 1 process that could provide some sort of relief on the complaint stated, but no money.” Id. at 2 734.1 3 A prisoner need not exhaust further levels of review once he has either received 4 all the remedies that are “available” at an intermediate level of review, or has been reliably 5 informed by an administrator that no more remedies are available. Brown v. Valoff, 422 F.3d 6 926, 934-35 (9th Cir. 2005). As there can be no absence of exhaustion unless some relief 7 remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief 8 remained available, whether at unexhausted levels or through awaiting the results of the relief 9 already granted as a result of that process. Brown, 422 F.3d at 936-37. 10 The PLRA requires proper exhaustion of administrative remedies. Woodford v. 11 Ngo, 548 U.S. 81, 83-84 (2006). “Proper exhaustion demands compliance with an agency's 12 deadlines and other critical procedural rules because no adjudicative system can function 13 effectively without imposing some orderly structure on the course of its proceedings.” Id. at 14 90-91. Thus, compliance with prison grievance procedures is required by the PLRA to properly 15 exhaust. Id. The PLRA's exhaustion requirement cannot be satisfied “by filing an untimely or 16 otherwise procedurally defective administrative grievance or appeal.” Id. at 83-84. 17 The State of California provides its prisoners the right to appeal administratively 18 “any departmental decision, action, condition or policy which they can demonstrate as having an 19 adverse effect upon their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). It also provides them 20 the right to file appeals alleging misconduct by correctional officers and officials. Id. § 21 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner 22 must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal 23 24 25 26 1 That the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See Booth, 532 U.S. at 737; see also Porter, 534 U.S. at 525 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records). 3 1 on a 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) 2 third level appeal to the Director of the CDCR. Barry v. Ratelle, 985 F.Supp. 1235, 1237 (S.D. 3 Cal. 1997) (citing Cal.Code Regs. tit. 15, § 3084.5). A final decision from the Director's level of 4 review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38. 5 Failure to exhaust administrative remedies is an affirmative defense properly 6 raised by a defendant in an unenumerated Fed. R. Civ. P. Rule 12(b) motion. Jones v. Bock, 549 7 U.S. 199, 216 (2007). If the court concludes the prisoner has not exhausted non-judicial 8 remedies, the proper remedy is dismissal of the claim without prejudice. Wyatt v. Terhune, 315 9 F.3d 1108, 1119-1120 (9th Cir. 2003). Defendants bear the burden of raising and proving 10 non-exhaustion. Id. at 1119. The court may resolve any disputed material facts on the 11 exhaustion issue by looking beyond the pleadings in deciding a motion to dismiss for failure to 12 exhaust. Id. at 1119-20. No presumption of truthfulness attaches to a plaintiff's assertions 13 associated with the exhaustion requirement. See Ritza v. Int'l Longshoremen's and 14 Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988). 15 Failure to State a Claim 16 In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 17 a complaint must contain more than a “formulaic recitation of the elements of a cause of action;” 18 it must contain factual allegations sufficient to “raise a right to relief above the speculative 19 level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). “The 20 pleading must contain something more...than...a statement of facts that merely creates a suspicion 21 [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice 22 and Procedure § 1216, pp. 235-236 (3d ed. 2004). “[A] complaint must contain sufficient factual 23 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 24 ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). 25 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 26 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 4 1 In considering a motion to dismiss, the court must accept as true the allegations of 2 the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. 3 Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the 4 motion and resolve all doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 5 89 S. Ct. 1843, 1849, reh’g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will “‘presume 6 that general allegations embrace those specific facts that are necessary to support the claim.’” 7 National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 8 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). 9 Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 10 11 Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972). The court may consider facts established by exhibits attached to the complaint. 12 Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also 13 consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 14 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other 15 papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 16 1986). The court need not accept legal conclusions “cast in the form of factual allegations.” 17 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 18 A pro se litigant is entitled to notice of the deficiencies in the complaint and an 19 opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See 20 Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987). 21 Eighth Amendment 22 In order to state a § 1983 claim for violation of the Eighth Amendment based on 23 inadequate medical care, plaintiff must allege “acts or omissions sufficiently harmful to evidence 24 deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). 25 To prevail, plaintiff must show both that his medical needs were objectively serious, and that 26 defendants possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 299 5 1 (1991); McKinney v. Anderson, 959 F.2d 853 (9th Cir. 1992) (on remand). The requisite state of 2 mind for a medical claim is “deliberate indifference.” Hudson v. McMillian, 503 U.S. 1, 6 3 (1992). 4 A serious medical need exists if the failure to treat a prisoner’s condition could 5 result in further significant injury or the unnecessary and wanton infliction of pain. Indications 6 that a prisoner has a serious need for medical treatment are the following: the existence of an 7 injury that a reasonable doctor or patient would find important and worthy of comment or 8 treatment; the presence of a medical condition that significantly affects an individual’s daily 9 activities; or the existence of chronic and substantial pain. See, e.g., Wood v. Housewright, 900 10 F. 2d 1332, 1337-41 (9th Cir. 1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200-01 11 (9th Cir. 1989). McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other 12 grounds, WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 13 In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court defined a very 14 strict standard which a plaintiff must meet in order to establish “deliberate indifference.” Of 15 course, negligence is insufficient. Farmer, 511 U.S. at 835. However, even civil recklessness 16 (failure to act in the face of an unjustifiably high risk of harm which is so obvious that it should 17 be known) is insufficient. Id. at 836-37. Nor is it sufficient that a reasonable person would have 18 known of the risk or that a defendant should have known of the risk. Id. at 842. 19 It is nothing less than recklessness in the criminal sense – subjective standard – 20 disregard of a risk of harm of which the actor is actually aware. Id. at 837-42. “[T]he official 21 must both be aware of facts from which the inference could be drawn that a substantial risk of 22 serious harm exists, and he must also draw the inference.” Id. at 837. Thus, a defendant is liable 23 if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by 24 failing to take reasonable measures to abate it.” Id. at 847. “[I]t is enough that the official acted 25 or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. If the risk 26 was obvious, the trier of fact may infer that a defendant knew of the risk. Id. at 840-42. 6 1 2 However, obviousness per se will not impart knowledge as a matter of law. Also significant to the analysis is the well established principle that mere 3 differences of opinion concerning the appropriate treatment cannot be the basis of an Eighth 4 Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Franklin v. 5 Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). However, a physician need not fail to treat an 6 inmate altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of 7 Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical 8 condition, even if some treatment is prescribed, may constitute deliberate indifference in a 9 particular case. Id. 10 Additionally, mere delay in medical treatment without more is insufficient to state 11 a claim of deliberate medical indifference. Shapley v. Nevada Bd. of State Prison Com’rs, 766 12 F.2d 404, 407 (9th Cir. 1985). Although the delay in medical treatment must be harmful, there is 13 no requirement that the delay cause “substantial” harm. McGuckin, 974 F.2d at 1060, citing 14 Wood v. Housewright, 900 F.2d 1332, 1339-40 (9th Cir. 1990). A finding that an inmate was 15 seriously harmed by the defendant’s action or inaction tends to provide additional support for a 16 claim of deliberate indifference; however, it does not end the inquiry. McGuckin, 974 F.2d at 17 1060. In summary, “the more serious the medical needs of the prisoner, and the more 18 unwarranted the defendant’s actions in light of those needs, the more likely it is that a plaintiff 19 has established deliberate indifference on the part of the defendant.” Id. at 1061. 20 Superimposed on these Eighth Amendment standards is the fact that in cases 21 involving complex medical issues where plaintiff contests the type of treatment he received, 22 expert opinion will almost always be necessary to establish the necessary level of deliberate 23 indifference. Hutchinson v. United States, 838 F.2d 390 (9th Cir. 1988). Thus, although there 24 may be subsidiary issues of fact in dispute, unless plaintiff can provide expert evidence that the 25 treatment he received equated with deliberate indifference thereby creating a material issue of 26 fact, summary judgment should be entered for defendants. The dispositive question on this 7 1 summary judgment motion is ultimately not what was the most appropriate course of treatment 2 for plaintiff, but whether the failure to timely give a certain type of treatment was, in essence, 3 criminally reckless. 4 Discussion 5 Dr. Nanganama 6 Defendant Nanganama contends that plaintiff failed to properly exhaust the claims 7 against him. Nanganama treated plaintiff when plaintiff was housed CSP-Sac between October 8 23, 2007 and November 15, 2007. Based on plaintiff’s complaint, it only appears that 9 Nanganama saw plaintiff once and plaintiff contends that the doctor only treated plaintiff’s skin 10 11 infection but not his body bugs. Defendant’s motion to dismiss contains several declarations and exhibits that 12 contend that plaintiff filed no timely inmates appeals regarding Nanganama’s treatment. The 13 only appeal mentioning Nanganama’s treatment was an appeal filed July 28, 2009, more than 18 14 months after it occurred and well beyond the time limit to file an appeal. Motion to Dismiss, 15 Exh. E. As this appeal was not properly filed, it will not serve to satisfy the exhaustion 16 requirement. See Woodford at 83-84. Nor were there any earlier appeals that were screened out. 17 In his opposition, plaintiff does not dispute that he did not properly exhaust his 18 claims against Nanganama. Plaintiff states that while he was in administrative segregation at 19 CSP-Sac, he placed a grievance in his cell door with the outgoing mail. Plaintiff also states that 20 he has submitted other grievances for unrelated issues that were never processed. Plaintiff then 21 concludes that his appeal concerning Nanganama must have been discarded by staff. Plaintiff 22 states he did not follow up with the appeal or file a second appeal as he was transferred back to 23 SATF. Plaintiff has not included a copy of this alleged appeal that was discarded, in fact plaintiff 24 has included no copies of any appeals in his complaint or opposition. 25 26 The undersigned notes that the exhibits to the motion to dismiss contain many of plaintiff’s inmate appeals regarding medical care for his skin condition, thus it is apparent that he 8 1 knows how to use the inmate appeal system.2 Moreover, plaintiff’s argument that he was 2 transferred out of CSP-Sac, just after he submitted his appeal, will not excuse his failure to 3 exhaust. Plaintiff retained the ability to appeal at a different institution as is demonstrated by his 4 appeal concerning Nanganama in July 2009. 5 Moreover, as plaintiff is no doubt aware based on his ability to file inmate 6 appeals, there are several levels to the appeals process so if his first appeal had been properly 7 filed he would have needed to proceed to the second and third levels of appeal to completely 8 exhaust. It would seem plaintiff never questioned that his appeal was not answered by prison 9 officials so he could further exhaust it. If the appeal was discarded by prison staff as plaintiff 10 alleges, he does not explain why he did not attempt to file another appeal to again attempt to 11 exhaust. Filing one appeal that may or may not have been discarded does not demonstrate 12 futility. Plaintiff’s argument that his original may have been screened out for lack of an 13 additional form is not supported by the evidence as defendant has shown that no appeals were 14 filed that could have been screened out. 15 Ultimately, plaintiff’s bare allegations that his appeal was discarded by staff will 16 not counter the weighty evidence that defendant has presented that plaintiff failed to exhaust his 17 administrative remedies. Thus, defendant Nanganama should be dismissed from this action for 18 plaintiff’s failure to exhaust. 19 Dr. Ramen 20 Defendant Ramen, a doctor at SATF, contends that plaintiff’s allegations fail to 21 state a claim. The entirety of plaintiff’s allegations against Dr. Ramen are that: 22 Later I was seen by Doctor Ramen who also told me that he knew I had bugs, but the medical department was under great scrutiny and he or no doctor was going to make previous doctors liable. I offered to show Salmi [another doctor] and Ramen the eggs that was left by the bugs. Dr. Ramen without examining me ask 23 24 25 26 2 As many of the appeals involve Dr. Ramen, it would appear that plaintiff properly exhausted his claim against Dr. Ramen and may account for why this defendant did not bring a motion to dismiss for failure to exhaust. 9 1 me where the rashes were at, that I told him I had, I told him on fingers, legs, back, chest, and crotch. He told me that he was ordering me to see a dermatologist. 2 3 Complaint at 7-8. 4 In February 2009, plaintiff alleges that Ramen did not treat him and instead 5 referred plaintiff to a dermatologist though plaintiff was not seen by the dermatologist until June 6 2009. However, plaintiff makes no allegations that Ramen was responsible for the delay.3 7 It is also noteworthy that according to plaintiff’s complaint, prior to his visit to 8 Ramen, the other doctors and nurses at SATF provided treatment for skin infections and scabies, 9 but the treatments were ineffective. Plaintiff states that the medical staff knew the treatments 10 were ineffective but it was the only treatment that the prison had available. In fact, plaintiff 11 faults other defendants for continuing treatments that were not effective so it does not appear that 12 plaintiff wished Ramen to continue those treatments.4 13 Therefore, assuming that all of plaintiff’s allegations are true, plaintiff’s medical 14 condition was not improving with the treatment at the prison and Ramen did not use the 15 ineffective treatments and instead referred plaintiff to an outside physician for treatment. It is not 16 clear how this demonstrates deliberate indifference on behalf of Ramen. If anything, it shows 17 that Ramen provided adequate medical care and made the referral to an outside physician, which 18 appears is what plaintiff desired. That plaintiff was not happy with the outside physician who 19 eventually treated him, is not evidence against Ramen. Plaintiff also states that Ramen would 20 not say that plaintiff had ‘bugs’ due to fear of liability. Assuming this is true, and as Ramen still 21 made the outside referral, this does not constitute deliberate indifference. 22 23 In his opposition, plaintiff alleges that Ramen’s referral to an outside dermatologist somehow demonstrates deliberate indifference, as Ramen knew the process would 24 3 25 26 In his opposition to the motion to dismiss, plaintiff states the delay in seeing the dermatologist was because the prison medical board had to approve the request. 4 It is not clear from the complaint why Ramen did not treat plaintiff. 10 1 take weeks or months, and the only available treatment was ineffective. Assuming this is 2 accurate it is not clear what course of action plaintiff wanted Ramen to follow. That Ramen did 3 not possess the ability to properly treat plaintiff and the outside referral was not immediate, is not 4 a violation of the Eighth Amendment based on plaintiffs bare allegations. Plaintiff has failed to 5 present sufficient factual assertions that state a claim that is plausible on its face. See Iqbal at 6 1949. 7 The motion to dismiss against Ramen should be granted, but plaintiff should be 8 allowed leave to amend. However, as the remaining defendants are in the process of being 9 served with the operative complaint it would not be appropriate for plaintiff to immediately file 10 an amended complaint. Problems would arise in this action if Ramen proceeded on an amended 11 complaint while the remaining defendants proceeded on the original complaint. Should these 12 findings and recommendations be adopted, the undersigned will issue a further order regarding 13 an amended complaint once the remaining defendants are served and based on their actions in 14 response to the original complaint. 15 V. Motion for Expert Witness 16 Plaintiff requests an expert dermatologist. Federal Rule of Evidence 706 allows 17 the Court to appoint expert witnesses on its own motion or on motion by a party. Fed. R. Evid. 18 706; Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th 19 Cir. 1999). Rule 706(a) does not authorize the district court to provide a plaintiff with funds for 20 an expert witness or to appoint such a witness on a plaintiff’s behalf; rather, it permits the 21 appointment of an expert to aid the court. At this early stage in the proceedings and as the 22 undersigned is recommending that the defendants be dismissed and leave granted to amend for 23 Ramen and the other defendants are still being served, the appointment of an expert witness is 24 unnecessary. Plaintiff’s motion for appointment of an expert witness is denied. 25 \\\\\ 26 \\\\\ 11 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s motion for an expert witness (Doc. 20) is denied; 3 2. Defendants’ motion to strike (Doc. 29) is denied. 4 IT IS HEREBY RECOMMENDED that defendants’ motion to dismiss (Doc. 21) 5 be granted in that: 6 7 1. Defendant Nanganama is dismissed for plaintiff’s failure to exhaust administrative remedies; 8 9 2. Defendant Ramen is dismissed, but plaintiff may file an amended complaint with respect to Ramen at a future date to be determined by the court. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 12 days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 15 shall be served and filed within fourteen days after service of the objections. The parties are 16 advised that failure to file objections within the specified time may waive the right to appeal the 17 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: 11/17/2010 19 /s/ Gregory G. Hollows 20 UNITED STATES MAGISTRATE JUDGE 21 GGH: AB norw2929.mtd 22 23 24 25 26 12