Jimenez v. Department of Corrections, No. 3:2015cv02493 - Document 3 (S.D. Cal. 2016)
Court Description: ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b) (2). Pla's Complaint is dismissed for failing to state a claim upon which relief may be granted pursuant to 28 USC 1915(e)(2) and 1915A(b), and grants Pla 45 days leave from the date of this Order to file an Amended Complaint. Signed by Judge Cynthia Bashant on 2/25/2016. (Order electronically transmitted to Secretary of CDCR) (Blank 1983 First Amended Comlaint form t/w copy of this Order mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)
Download PDF
<![CDATA[
Jimenez v. Department of Corrections Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADAM JIMENEZ, 12 CDCR #F-29610, Civil No. Plaintiff, 13 14 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a) vs. 15 16 FOUR UNNAMED EMPLOYEES OF THE CALIFORNIA DEPARTMENT 17 OF CORRECTIONS AND REHABILITATION, 18 Defendants, 19 20 15-cv-02493-BAS(KSC) AND (2) SUA SPONTE DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) Adam Jimenez (“Plaintiff”), a California state prisoner currently incarcerated at 21 Lancaster State Prison (“Lancaster”) in Lancaster, California, has filed a civil rights 22 complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff alleges he 23 was housed at the R.J. Donovan Correctional Facility (“Donovan”) in San Diego, 24 California, from 2006 to 2008, where he had pre-existing medical conditions which 25 placed him at a heightened risk of developing, and more susceptible to the effects of, 26 Valley Fever, but Donovan prison officials transferred him to Kern Valley State Prison 27 (“Kern Valley”) in Delano, California, despite his medical condition and the risk of 28 contracting Valley Fever at Kern Valley. (Compl. at 3-4.) Plaintiff alleges he contracted -1- 15cv2493 Dockets.Justia.com 1 Valley Fever while at Kern Valley but did not receive medical treatment there, and was 2 then transferred to Lancaster “as a ‘high-risk’ medical [inmate]” where he is currently 3 not receiving treatment. (Id. at 4-5.) 4 Plaintiff claims that members of the Donovan Institutional Classification 5 Committee (“ICC”) which transferred him to Kern Valley violated his Eighth 6 Amendment rights because they were deliberately indifferent to his serious medical 7 needs (Count 1), and subjected him to cruel and unusual punishment (Count 2), by 8 transferring him “despite the knowledge of the serious risk of exposure to valley fever.” 9 (Id. at 3-4.) He claims in Count 3 that he received negligent medical care in violation 10 of the Eighth Amendment at Kern Valley and Lancaster because he did not receive 11 treatment for Valley Fever. (Id. at 5.) He lists as Defendants four unnamed employees 12 of the California Department of Corrections and Rehabilitation (“CDCR”), but does not 13 identify which Defendants took which actions alleged in the Complaint. (Id. at 2.) He 14 seeks an injunction requiring proper medication and prohibiting retaliation, as well as 15 compensatory and punitive damages. (Id. at 7.) 16 Plaintiff has not paid the civil filing fees required by 28 U.S.C. § 1914(a) to 17 commence a civil action; instead he has filed a Motion to Proceed In Forma Pauperis 18 (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) 19 I. MOTION TO PROCEED IFP 20 All parties instituting any civil action, suit, or proceeding in a district court of the 21 United States must pay a filing fee. See 28 U.S.C. § 1914(a).1 An action may proceed 22 despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed 23 IFP pursuant to 28 U.S.C. § 1915(a). Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 24 1999). However, if the plaintiff is a prisoner, as Plaintiff is here, even if he is granted 25 leave to proceed IFP, he remains obligated to pay the full entire fee in “increments,” see 26 1 In addition $350 27 administrative fee ofto the See 28statutory fee, civil litigants must pay an additional $50. U.S.C. § 1914(a)-(c) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014)). The additional $50 28 administrative fee does not apply to persons granted leave to proceed IFP. Id. -2- 15cv2493 1 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his 2 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2). 3 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 4 (“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of the 5 trust fund account statement (or institutional equivalent) for the . . . 6-month period 6 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews 7 v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 8 the Court assesses an initial payment of 20 percent of (a) the average monthly deposits 9 in the account for the past six months, or (b) the average monthly balance in the account 10 for the past six months, whichever is greater, unless the prisoner has no assets. See 28 11 U.S.C. § 1915(b)(1) & (4). The institution having custody of the prisoner then collects 12 subsequent payments, assessed at 20 percent of the preceding month’s income, in any 13 month in which the prisoner’s account exceeds $10, and forwards those payments to the 14 Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 15 In support of his IFP Motion, Plaintiff has submitted a prison certificate attesting 16 to his trust account balance and activity for the six-month period prior to the filing of his 17 Complaint as required by 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. This 18 certificate shows that Plaintiff has had no monthly deposits, has carried no balance, and 19 had no available funds to his credit at the time of filing. Therefore, the Court GRANTS 20 Plaintiff’s Motion to Proceed IFP (ECF No. 2), and assesses no initial partial filing fee 21 per 28 U.S.C. § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 22 shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal 23 judgment for the reason that the prisoner has no assets and no means by which to pay the 24 initial partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) 25 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 26 prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available 27 to him when payment is ordered.”) However, the entire $350 balance of the filing fees 28 -3- 15cv2493 1 due for this case must be collected by the CDCR and forwarded to the Clerk of the Court 2 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1) & (2). 3 II. SUA SPONTE SCREENING PER 28 U.S.C. § 1915(e)(2) AND § 1915A 4 “The court shall review, before docketing, if feasible or, in any event, as soon as 5 practicable after docketing,” complaints filed by all persons proceeding IFP, and by 6 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 7 convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or 8 the terms and conditions of parole, probation, pretrial release, or diversionary program.” 9 See 28 U.S.C. §§ 1915(e)(2) and 1915A. The Court must sua sponte dismiss complaints, 10 or any portions thereof, which are frivolous, malicious, fail to state a claim, or which 11 seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 12 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). 13 All complaints must contain “a short and plain statement of the claim showing 14 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 15 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported 16 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 17 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 18 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 19 requires the reviewing court to draw on its judicial experience and common sense.” Id. 20 at 679. The “mere possibility of misconduct” falls short of meeting the Iqbal plausibility 21 standard. Id.; see also Moss v. U. S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 22 “When there are well-pleaded factual allegations, a court should assume their 23 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 24 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 25 (“Under § 1915A, when determining whether a complaint states a claim, a court must 26 accept as true all allegations of material fact and must construe those facts in the light 27 most favorable to the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 28 1998) (noting that § 1915(e)(2) “parallels the language of Federal Rule of Civil -4- 15cv2493 1 Procedure 12(b)(6)”). However, while the court has an “obligation . . . where the 2 petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally 3 and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 4 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en 5 banc)), it may not, in so doing, “supply essential elements of the claim that were not 6 initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 7 1982). 8 “Section 1983 creates a private right of action against individuals who, acting 9 under color of state law, violate federal constitutional or statutory rights.” Devereaux 10 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 11 substantive rights, but merely provides a method for vindicating federal rights elsewhere 12 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 13 and citations omitted). “To establish § 1983 liability, a plaintiff must show both 14 (1) deprivation of a right secured by the Constitution and laws of the United States, and 15 (2) that the deprivation was committed by a person acting under color of state law.” 16 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 17 A. 18 Plaintiff alleges that while housed at Donovan from 2006 to 2008, he suffered Plaintiff’s Allegations 19 from Hepatitis C and other pre-existing “health problems” which increased his risk of 20 developing Valley Fever and increased his susceptibility to its effects. (Compl. at 3.) 21 He alleges that the members of the Donovan ICC, “in spite of” his pre-existing medical 22 conditions, and “with knowledge of the serious risk of substantial harm posed by valley 23 fever, unreasonably and with deliberate indifference exposed [him] to the risk of 24 contraction by transferring [him] to Kern Valley State Prison in [November 2008], as a 25 result, [he] contracted valley fever at Kern Valley State Prison.” (Id. at 3-4.) 26 Plaintiff alleges that “[w]hile at Kern Valley State Prison [his] health was rapidly 27 declining. [His] health problems consisted of difficulty in breathing, extreme spine joint 28 and muscle pain. . . . [He] had severe bowel irritation and pain, mental anguish, distress, -5- 15cv2493 1 agitation and frustration . . . [His] physical mobility was significantly impaired. . . . [his] 2 right visual acuity was also compromised. . . . [his] left eye was then compromised.” (Id. 3 at 4.) Plaintiff states that he was referred to various specialists at Kern Valley and 4 eventually tested positive for Valley Fever. (Id.) He alleges that after he was diagnosed 5 with Valley Fever he was told by his primary care provider at Kern Valley that he “was 6 not going to be medicated because the coccidiodomycosis titers were not that high on the 7 reference range.” (Id. at 5.) He alleges he was thereafter transferred to Lancaster “as a 8 ‘high-risk’ medical,” where he is “currently being denied Valley Fever medication.” 9 (Id.) Finally, he alleges that “Lancaster has moderate levels of coccidiodomycosis. This 10 transfer did not cure [him] and it exposed [him] to even more cocci. [He is] still 11 experiencing symptoms from the cocci.” (Id.) 12 B 13 The only Defendants identified in the Complaint are four unnamed employees of Individual Liability and Causation 14 the CDCR. (Compl. at 2-3.) It is unclear whether these employees are persons who sat 15 on the Donovan ICC which ordered Plaintiff’s transfer, or whether they are medical 16 providers at Kern Valley or Lancaster. (See id. at 3-5.) Even if the Court could discern 17 who Plaintiff intended to name as Defendants, Plaintiff merely alleges that the members 18 of the Donovan ICC acted “despite the knowledge of the serious risk of exposure to 19 valley fever to plaintiff,” and “in spite of the fact” that Plaintiff suffered from medical 20 conditions which apparently increased his risk of acquiring or being affected by Valley 21 Fever more than someone without those pre-existing conditions. (Id. at 3-4.) “Because 22 vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each 23 Government-official defendant, through the official’s own individual actions, has 24 violated the Constitution.” Iqbal, 556 U.S. at 676. The Complaint contains no “further 25 factual enhancement,” id., which describes how, or to what extent, any of the individuals 26 referenced in the Complaint became aware of, or were actually aware of, his alleged 27 serious medical needs. 28 -6- 15cv2493 1 “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks 2 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999). “The inquiry into causation must 3 be individualized and focus on the duties and responsibilities of each individual 4 defendant whose acts or omissions are alleged to have caused a constitutional 5 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 6 423 U.S. 362, 370-71, 375-77 (1976)). Plaintiff includes no detail as to what the 7 unnamed members of the Donovan ICC knew about his health conditions or the risk of 8 sending him to Kern Valley, or how they came about that knowledge. Neither does he 9 allege who at Kern Valley or Lancaster have denied him treatment for Valley Fever. 10 Rather, Plaintiff purportedly seeks to sue Defendants based on the positions they hold 11 and not because of any individually identifiable constitutional misconduct alleged to 12 have caused him injury. As such, his allegations are insufficient to state a section 1983 13 claim. Iqbal, 662 U.S. at 678 (noting that Fed. R. Civ. P. 8 “demands more than an 14 unadorned, the-defendant-unlawfully-harmed-me accusation.”) “To survive a motion 15 to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state 16 a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). 17 Accordingly, Plaintiff’s Complaint requires dismissal on this basis pursuant to 28 18 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126-27; Rhodes v. 19 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). 20 C. 21 Even if Plaintiff intended to name as Defendants the unnamed members of the Inadequate Medical Care Claim 22 Donovan ICC who transferred him, or his unnamed primary care providers at Kern 23 Valley and Lancaster who have allegedly not provided him with medical care, he has still 24 failed to state a plausible Eighth Amendment claim against any of those persons. Only 25 “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary 26 and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 27 429 U.S. 97, 104 (1976) (citation and internal quotation marks omitted). “A 28 determination of ‘deliberate indifference’ involves an examination of two elements: the -7- 15cv2493 1 seriousness of the prisoner’s medical need and the nature of the defendant’s response to 2 that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other 3 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 4 “Because society does not expect that prisoners will have unqualified access to 5 health care, deliberate indifference to medical needs amounts to an Eighth Amendment 6 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992) 7 (citing Gamble, 429 U.S. at 103-04). “A ‘serious’ medical need exists if the failure to 8 treat a prisoner’s condition could result in further significant injury or the ‘unnecessary 9 and wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting Gamble, 429 U.S. 10 at 104). 11 Plaintiff’s allegations regarding his contraction of Valley Fever and the effects it 12 has had on his medical condition (Compl. at 3-5), are sufficient to plead an objectively 13 serious medical need. McGuckin, 974 F.2d at 1059-60 (“The existence of an injury that 14 a reasonable doctor or patient would find important and worthy of comment or treatment; 15 the presence of a medical condition that significantly affects an individual’s daily 16 activities; or the existence of chronic and substantial pain are examples of indications 17 that a prisoner has a ‘serious’ need for medical treatment.”) However, even assuming 18 Plaintiff’s medical needs are sufficiently serious, his Complaint still fails to include any 19 further “factual content” to show that any Defendant acted with “deliberate indifference 20 to [his] serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 21 (quoting Gamble, 429 U.S. at 104). 22 While Plaintiff concludes he is “currently being denied Valley Fever medication 23 here at Lancaster State Prison,” and was “informed [by his primary care provider at Kern 24 Valley] that I was not going to be medicated because the coccidiodomycosis titers were 25 not that high on the reference range,” his Complaint lacks any specific allegations that 26 the failure to provide him with “medication for Valley Fever” was a result of indifference 27 rather than negligence or a disagreement regarding proper treatment. Iqbal, 556 U.S. at 28 678 (citing Twombly, 550 U.S. at 557). This is because to be deliberately indifferent, a -8- 15cv2493 1 Defendant’s acts or omissions must involve more than an ordinary lack of due care, as 2 “[a] difference of opinion” between a doctor and an inmate, or even between medical 3 professionals, regarding what medical care is appropriate “does not amount to a 4 deliberate indifference.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (citing 5 Gamble, 429 U.S. at 107). 6 Plaintiff’s Complaint contains no facts sufficient to show that his “primary care 7 provider” acted with deliberate indifference to his plight by “know[ing] of and 8 disregard[ing] an[y] excessive risk to his health and safety.” Farmer v. Brennan, 511 9 U.S. 825, 837 (1994). Indeed, the allegations describe “medical negligence” by failing 10 to provide Plaintiff with treatment for Valley Fever and by transferring him to Lancaster 11 (see Compl. at 5), but a § 1983 claim cannot sound merely in negligence. See Toguchi 12 v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in diagnosing or 13 treating a medical condition, without more, does not violate a prisoner’s Eighth 14 Amendment rights.”) (quoting McGuckin, 974 F.2d at 1059). “Deliberate indifference,” 15 on the other hand, “is a high legal standard,” and claims of medical malpractice or 16 negligence are insufficient to establish a constitutional deprivation. Simmons v. Navajo 17 Cnty., 609 F.3d 1011, 1019 (9th Cir. 2010) (citing Toguchi, 391 F.3d at 1060). 18 Similarly, Plaintiff has failed to set forth specific allegations regarding what or how the 19 members of the Donovan ICC knew about his medical condition, what and how they 20 knew of the risk of contracting Valley Fever at Kern Valley, and what and how they 21 knew of any potential risk to his health by transferring him there. See Farmer, 511 U.S. 22 at 837 (prison officials must know of and act with deliberate indifference to medical 23 needs in order to violate the Eighth Amendment); see also Iqbal, 556 U.S. at 678 24 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice.”) 26 Accordingly, the Court finds that Plaintiff’s Complaint fails to state an Eighth 27 Amendment inadequate medical care claim and is subject to sua sponte dismissal in its 28 entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 -9- 15cv2493 1 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. Because Plaintiff is proceeding without 2 counsel, the Court has provided him “notice of the deficiencies in his complaint in order 3 to ensure [he] uses the opportunity to amend effectively,” and will grant him an 4 opportunity to amend his Complaint. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 5 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 6 III. CONCLUSION AND ORDER 7 Good cause appearing, the Court: 8 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. 9 § 1915(a) (ECF No. 2). 10 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 11 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 12 monthly payments from his account in an amount equal to twenty percent (20%) of the 13 preceding month’s income and forwarding those payments to the Clerk of the Court each 14 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 15 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 16 ASSIGNED TO THIS ACTION. 17 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Scott 18 Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 19 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 20 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS 21 Plaintiff forty-five (45) days leave from the date of this Order in which to file an 22 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 23 Amended Complaint must be complete in itself without reference to his original 24 pleading. Defendants not named and any claims not re-alleged in the Amended 25 Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, 26 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 27 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 28 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an -10- 15cv2493 1 amended pleading may be considered “waived if not repled.”) The Clerk of Court will 2 send Petitioner a blank Southern District of California amended complaint form along 3 with a copy of this Order. 4 IT IS SO ORDERED. 5 DATED: February 25, 2016 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- 15cv2493
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
