Contreras v. Diaz

Opinion

6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 RAMON CONTRERAS, Case No.: 19-cv-02108-BAS-WVG 11 CDCR #V-99014, ORDER DISMISSING FIRST 12 Plaintiff, AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM 13 v. PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b) 14 RALPH DIAZ; PATRICK COVELLO; K. COTTRELL; C. ROCHA; V. 15 CORTES; J. JUAREZ, 16 Defendants. 17 18 Before the Court is Plaintiff’s First Amended Complaint (“FAC”). (ECF No. 4.) 19 For the reasons explained below, the Court DISMISSES the FAC with leave to amend. 20 I. PROCEDURAL HISTORY 21 On November 1, 2019, Ramon Contreras (“Plaintiff”), currently incarcerated at 22 Ironwood State Prison (“ISP”) located in Blythe, California, and proceeding pro se, filed 23 a civil rights complaint pursuant to 42 U.S.C. § 1983 (“Compl.”) against officials at the 24 California Department of Corrections and Rehabilitation (“CDCR”), along with prison 25 officials at the Richard J. Donovan (“RJD”) in San Diego, California. (Compl., ECF No. 26 1.) Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he 27 filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) 28 pursuant to 28 U.S.C. § 1915(a). (Mot. to Proceed IFP, ECF No. 2). 1 On January 13, 2020, the Court granted Plaintiff’s Motion to Proceed IFP and 2 dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) 3 and § 1915A(b). (ECF No. 3.) Plaintiff was granted leave to file an amended pleading in 4 order to correct the deficiencies identified in the Court’s Order. (Id. at 12–13.) Plaintiff 5 was cautioned that Defendants not named and any claim not re-alleged in his amended 6 complaint will be considered waived. (Id.) See S.D. Cal. CivLR 15.1; Hal Roach 7 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 8 amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 9 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re- 10 alleged in an amended pleading may be “considered waived if not repled”). 11 On January 27, 2020, Plaintiff filed the FAC. (ECF No. 4.) In his FAC, Plaintiff 12 no longer names Cruz, Seaman, and Plascencia as Defendants. (See id.) Accordingly, the 13 claims against these parties are deemed waived and they are DISMISSED from this 14 action. See Lacey, 693 F.3d at 928. 15 II. SCREENING 16 A. Standard of Review 17 As the Court previously informed Plaintiff, because he is a prisoner and is 18 proceeding IFP, his FAC also requires a pre-answer screening pursuant to 28 U.S.C. 19 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 20 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a 21 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 22 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 23 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 24 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need 25 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 26 2014) (citation omitted). 27 “The standard for determining whether a plaintiff has failed to state a claim upon 28 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 1 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 2 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 3 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 4 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 5 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 6 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 7 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 8 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 9 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 10 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 11 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 12 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 13 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this 14 plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th 15 Cir. 2009). 16 B. Plaintiff’s Allegations 17 On June 13, 2018, while Plaintiff was housed at RJD, “a full search of the housing 18 unit Plaintiff was housed in was conducted.” (FAC at 5.) During the search of Plaintiff’s 19 cell, Plaintiff alleges Defendant Rocha “falsely claimed” that Plaintiff had a “controlled 20 substance” and filed a “false incident and rules violation report (‘RVR’).” (Id.) Due to 21 this purportedly “false claim,” Plaintiff “spent . . . approximately 5 months in an 22 administrative segregation unit (‘ASU’).” (Id.) 23 Plaintiff was “ultimately exonerated” on January 10, 2019 and the “RVR was 24 dismissed when he went for a rehearing on the RVR charge.” (Id.) Plaintiff claims that 25 “due process rights that should be provided to inmates during disciplinary proceedings 26 were not provided to the Plaintiff.” (Id.) 27 Plaintiff alleges Defendant Rocha “claimed that he was the first and only officer to 28 search Plaintiff’s cell” but this claim “was proven to be false.” (Id. at 6.) Defendant 1 Cottrell “was the superior officer overseeing the search” and “informed Plaintiff why he 2 was going to be placed in ASU.” (Id.) Plaintiff told Defendant Cottrell that “he did not 3 have a controlled substance in his property and that he had no knowledge of any 4 controlled substance being inside the cell he occupied.” (Id.) Plaintiff also asked why he 5 was being sent to ASU when he was “not the only inmate occupying the cell.” (Id.) 6 Defendant Cottrell “responded by saying that the controlled substance was discovered in 7 Plaintiff’s property.” (Id.) 8 However, Plaintiff alleges Defendant Cottrell was “not acting as an impartial 9 officer in her decision to only charge and place Plaintiff in ASU.” (Id.) Plaintiff claims 10 this is a violation of CDCR policy that “mandates that when contraband is discovered in a 11 cell occupied by two inmates and none of the inmates takes responsibility for the 12 contraband both inmates are to be charged and placed in ASU.” (Id.) This purported 13 policy violation was “noted” by the “officer who ultimately exonerated” Plaintiff. (Id.) 14 Plaintiff contends that Defendant Rocha did not place Plaintiff’s cellmate in ASU 15 because he did “not want to deal” with Plaintiff’s cellmate because he is “hearing 16 impaired.” (Id. at 7.) Plaintiff alleges that Defendant Rocha did not want to “deal with 17 all the extra work so he lied.” (Id.) 18 While Plaintiff was housed in ASU, he “maintained his innocence.” (Id.) 19 However, during the committee hearing held on September 6, 2018, Plaintiff “agreed to 20 sign a 128B NIK chrono accepting the results of the field test that was conducted on the 21 contraband in order to proceed with the truth finding process.” (Id.) Plaintiff claims the 22 only reason he agreed to sign this chrono was because “Defendant Covello and other 23 committee members informed/guaranteed Plaintiff that it could not be used as evidence to 24 find him guilty at his RVR hearing.” (Id.) 25 Plaintiff had another committee meeting on September 20, 2018 and alleges 26 Defendant Covello “reassured him that the 128B NIK chrono he signed could not be used 27 against him.” (Id.) Plaintiff contends that Defendant Covello “further claimed that he 28 1 would follow Plaintiff’s case in order to make sure proper procedure would be followed.” 2 (Id.) 3 On October 11, 2018, Plaintiff “went before Defendant Cortes for his RVR 4 hearing.” (Id.) Although Plaintiff “presented his case establishing his innocence, 5 Defendant Cortes found him guilty on the ground that he accepted ‘ownership’ of the 6 controlled substance when he signed the 128B NIK chrono.” (Id.) However, Plaintiff 7 informed Defendant Cortes that Defendant Covello “and other committee members had 8 guaranteed that the 128B NIK Chrono could not be used to find him guilty.” (Id.) 9 Defendant Cortes told Plaintiff that “if the Warden was conducting the hearing, he would 10 probably find Plaintiff not guilty” but since Defendant Cortes was the hearing officer who 11 was conducting the hearing, Defendant Cortes was “finding Plaintiff guilty.” (Id. at 7–8.) 12 Plaintiff claims Defendant Cortes was “not an impartial fact finder,” “denied his 13 requests to have Defendant Rocha available/present so he could question him,” refused to 14 “accept/incorporate into the record a written document Plaintiff prepared,” and his 15 decision to “find Plaintiff guilty was arbitrary.” (Id. at 8.) 16 After the guilty finding, Plaintiff “sent Defendant Covello and Juarez” grievance 17 forms “explaining what happened at the RVR hearing and requesting for them to step in 18 and correct the arbitrary guilty finding.” (Id.) However, Plaintiff alleges neither 19 responded. (See id.) Plaintiff claims Defendant Juarez “was not an impartial fact-finder 20 because he affirmed Defendant Cortes’ arbitrary guilty finding on October 28, 2018.” 21 (Id.) 22 Plaintiff’s father wrote to the “Office of Internal Affairs” and the “Office of the 23 Ombudsman.” (Id.) At Plaintiff’s December 6, 2018 committee hearing, “two 24 representatives [from the Office of the Ombudsman] showed up.” (Id.) Plaintiff again 25 informed the committee that he had only been found guilty “due to the 128B NIK chrono 26 he signed which he was told by Defendant Covello and other committee members that it 27 could not be used as evidence to find him guilty.” (Id.) Defendant Juarez was one of the 28 committee members and “acknowledged that he made an error by affirming Defendant 1 Cortes’ decision to find Plaintiff guilty, so he released [Plaintiff] from ASU and ordered 2 the RVR re-issued and reheard on the ground that a due process violation occurred.” (Id. 3 at 9.) 4 Plaintiff alleges he suffered a “dramatic change” to his “living conditions” while he 5 was housed in the ASU. (Id.) He was not permitted to have his “personal property and 6 appliances,” given only a “pair of boxers, a pair of socks,” and a “jumpsuit (if there are 7 any available), two sheets, one blanket, and one towel.” (Id.) Plaintiff was placed in 8 handcuffs every time he left his cell and “ASU inmates are only allowed behind the glass 9 visits.” (Id.) Plaintiff was not permitted to “use the phone or purchase packages.” (Id.) 10 In addition, Plaintiff was only allowed “10 hours of outside recreation per week.” (Id.) 11 On January 10, 2019, Plaintiff “had his hearing for the re-issued RVR and he was 12 found not guilty.” (Id. at 11.) According to the “disciplinary hearing results,” Plaintiff 13 was found not guilty “because Defendant Rocha provided inconsistent reports and 14 statements.” (Id.) In addition, Plaintiff’s cellmate “submitted a declaration and reported 15 to an investigative employee that the controlled substance belonged to him.” (Id.) 16 Plaintiff seeks injunctive relief, along with compensatory and punitive damages. 17 (Id. at 15.) 18 C. Due Process Under the Fourteenth Amendment 19 To the extent Plaintiff alleges Defendants violated his due process rights by issuing 20 a false RVR that resulted in being housed in the ASU and subjected to disciplinary 21 hearings, he fails to state a claim upon which § 1983 relief can be granted. See 28 U.S.C. 22 § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 23 The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person 24 of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. 25 “The requirements of procedural due process apply only to the deprivation of interests 26 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 27 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 28 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 1 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v. 2 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 3 995 F.2d 898, 904 (9th Cir. 1993)). 4 A prisoner is entitled to certain due process protections when he is charged with a 5 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 6 Wolff v. McDonnell, 418 U.S. 539, 564–571 (1974)). “Such protections include the rights 7 to call witnesses, to present documentary evidence and to have a written statement by the 8 fact-finder as to the evidence relied upon and the reasons for the disciplinary action 9 taken.” Id. These procedural protections, however, “adhere only when the disciplinary 10 action implicates a protected liberty interest in some ‘unexpected matter’ or imposes an 11 ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of 12 prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)); Ramirez v. 13 Galaza, 334 F.3d 850, 860 (9th Cir. 2003). 14 Although the level of the hardship must be determined on a case-by-case basis, and 15 “[i]n Sandin’s wake the Courts of Appeals have not reached consistent conclusions for 16 identifying the baseline from which to measure what is atypical and significant in any 17 particular prison system,” Wilkinson v. Austin, 545 U.S. 209, 223 (2005), courts in the 18 Ninth Circuit look to: 19 1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,’ and thus 20 comported with the prison’s discretionary authority; 2) the duration of the condition, and the degree of restraint imposed; and 3) whether the state’s 21 action will invariably affect the duration of the prisoner’s sentence. 22 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87); see also Chappell v. 23 Mandeville, 706 F.3d 1052, 1064–65 (9th Cir. 2013). Only if the prisoner alleges facts 24 sufficient to show a protected liberty interest must courts next consider “whether the 25 procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334 F.3d at 860. 26 The Court does find that Plaintiff has alleged facts sufficient to show that the 27 deprivations he suffered as a result of his first disciplinary conviction imposed the type of 28 “atypical and significant hardship” required by Sandin to invoke a liberty interest entitled 1 to Wolff’s procedural safeguards. (See FAC at 9.) 2 However, insofar as Plaintiff claims Rocha filed a “false incident and [RVR]” that 3 led to Plaintiff being sent to the ASU (see FAC at 5), his allegations fail to state a 4 plausible due process claim. See Iqbal, 556 U.S. at 678. First, “[t]he issuance of a false 5 RVR, alone, does not state a claim under section 1983.” Murschel v. Paramo, 2018 WL 6 539159, at *5 (S.D. Cal. 2018) (citing Dawson v. Beard, 2016 WL 1137029, at *5–6 7 (E.D. Cal. 2016)). Instead, claims of arbitrary action by prison officials must grounded in 8 “‘the procedural due process requirements as set forth in Wolff v. McDonnell.’” Id. at *5 9 (citing Ellis v. Foulk, 2014 WL 4676530, at *2 (E.D. Cal. 2014) (quoting Hanrahan v. 10 Lane, 747 F.2d 1137, 1140 (7th Cir. 1984))). “[T]here is no due process right to be free 11 from false disciplinary charges,” Solomon v. Meyer, 2014 WL 294576, at *2 (N.D. Cal. 12 2014), because “[t]he Constitution demands due process, not error-free decision-making.” 13 Chavira v. Rankin, 2012 WL 5914913, at *1 (N.D. Cal. 2012); see also Johnson v. 14 Felker, 2013 WL 6243280, at *6 (E.D. Cal. 2013) (“Prisoners have no constitutionally 15 guaranteed right to be free from false accusations of misconduct, so the mere falsification 16 of a [rules violation] report does not give rise to a claim under section 1983.”) (citing 17 Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and Freeman v. Rideout, 808 F.2d 18 949, 951–53 (2d Cir. 1986)). 19 To the extent Plaintiff claims he was denied procedural safeguards at his two 20 disciplinary proceedings, his allegations are also insufficient. Disciplinary hearings must 21 comport with the minimum requirements of due process and the decisions of a prison 22 disciplinary must be supported by “some evidence.” See Wolff, 418 U.S. at 558-60; 23 Superintendent v. Hill, 472 U.S. 445, 454–55 (1985). Under Wolff’s procedural 24 safeguards, due process requires that the prisoner receive: (1) written notice of the charges 25 against the prisoner; (2) a brief period of time to prepare for the hearing; (3) a written 26 statement by the fact finder regarding the facts relied upon and the reasons for the 27 disciplinary action; (4) an opportunity to call witnesses and present documentary 28 1 evidence; and (5) an opportunity to seek the aid of a fellow inmate or prison staff for 2 complex matters. 418 U.S. at 563–70. 3 Here, Plaintiff alleges that he was denied the right to call witnesses at his first 4 hearing and Defendant Cortes refused to “accept/incorporate into the record a written 5 document Plaintiff prepared.” (FAC at 8.) Plaintiff does not allege that any Wolff 6 standards were not met at his second disciplinary hearing and therefore, the Court finds 7 that Plaintiff has failed to state a Fourteenth Amendment due process claim as to his 8 second disciplinary hearing. 9 However, even if not all of Wolff’s procedural safeguards were met at Plaintiff’s 10 first disciplinary hearing, he has alleged the presence of “some evidence” that was relied 11 on by Defendant Cortes in finding Plaintiff guilty at his first disciplinary hearing. 12 Superintendent, 472 U.S. at 454–55. Specifically, Plaintiff alleges Defendant Cortes 13 relied on the chrono Plaintiff had signed, along with the purportedly “false” report 14 prepared by Defendant Rocha. (See FAC at 5, 8.) “Ascertaining whether [the some 15 evidence] standard is satisfied does not require examination of the entire record, 16 independent assessment of the credibility of witnesses, or weighing of the evidence.” 17 Superintendent, 472 U.S. at 454–55. Rather, “the relevant question is whether there is 18 any evidence in the record that could support the conclusion reached” by the disciplinary 19 hearing officer. Id. Plaintiff’s own allegations support a finding that there was “some 20 evidence” in the record to support the finding and thus, the Court finds that Plaintiff has 21 failed to state a Fourteenth Amendment due process claim against any named Defendant. 22 D. Respondeat Superior 23 Finally, Plaintiff names Ralph Diaz, Secretary for the CDCR, as a Defendant. (See 24 FAC at 1, 4.) Plaintiff offers no specific factual allegations regarding this Defendant 25 other than alleging that Diaz is “legally responsible for the overall operation” of the 26 CDCR and “each institution under its jurisdiction.” (Id. at 4.) However, Plaintiff fails to 27 state a plausible claim for relief under § 1983 because he fails to include “further factual 28 enhancement” which describes how or when this Defendant was actually aware of any of 1 the alleged due process violations. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 2 557). 3 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. 4 Sanderson, 9 F.3d 1433, 1437–38 (9th Cir. 1993). “Because vicarious liability is 5 inapplicable to . . . § 1983 suits, [Plaintiff] must plead that each government-official 6 defendant, through the official’s own individual actions, has violated the Constitution.” 7 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los 8 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at 9 least some degree of particularity overt acts which defendants engaged in” in order to 10 state a claim). 11 As currently pleaded, Plaintiff’s FAC offers no factual detail from which the Court 12 might reasonably infer a plausible claim for relief based on a violation of any 13 constitutional right on the part of the Secretary of the CDCR. Fed. R. Civ. P. 8 “demands 14 more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” and in order 15 “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, 16 accepted as true, to ‘state a claim for relief that is plausible on its face.’” Iqbal, 662 U.S. 17 at 678 (quoting Twombly, 550 U.S. at 555, 570). And a supervisory official may only be 18 held liable under § 1983 if Plaintiff alleges his “personal involvement in the constitutional 19 deprivation, or . . . a sufficient causal connection between the supervisor’s wrongful 20 conduct and the constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242-–43 (9th 21 Cir. 2018); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). 22 Plaintiff makes no such allegations in his FAC. Therefore, the Court sua sponte 23 dismisses Defendant Diaz based on Plaintiff’s failure to state a plausible individual 24 liability claim against him. See 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1); Lopez, 25 203 F.3d at 1126–27; Rhodes, 621 F.3d at 1004. 26 E. Leave to Amend 27 In light of his pro se status, the Court will grant Plaintiff leave to file an Amended 28 Complaint in order to address the pleading deficiencies identified in this Order, if he can. 1 || See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not 2 ||dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the 3 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v. 4 || Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 5 CONCLUSION AND ORDERS 6 For the reasons explained, the Court: 7 1. DISMISSES Defendants Cruz, Seaman, and Plascencia as Defendants. See 8 || Lacey, 693 F.3d at 928. 9 2. DISMISSES Plaintiff's FAC for failing to state a claim upon which □□□□□□ 10 |}may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)Gi) and § 1915A(b)(1), anc 11 ||} GRANTS him forty-five (45) days leave from the date of this Order in which to file ar 12 |} Amended Complaint which cures the deficiencies of pleading noted. Plaintiff’s Amendec 13 |}Complaint must be complete by itself without reference to his original pleading 14 Defendants not named and any claim not re-alleged in his Amended Complaint will be 15 |}considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc, 896 F.2d at 1546 16 || Lacey, 693 F.3d at 928. 17 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will □□□□□□ 18 final Order dismissing this civil action based both on his failure to state a claim upor 19 || which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ai1) and 1915A(b)(1) 20 || and his failure to prosecute in compliance with a court order requiring amendment. See 21 ||Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take 22 ||advantage of the opportunity to fix his complaint, a district court may convert the 23 dismissal of the complaint into dismissal of the entire action.’’). 24 3. The Clerk of Court is directed to mail Plaintiff a court approved civil right: 25 ||complaint form for his use in amending. 26 IT IS SO ORDERED. ) □□ 27 || DATED: April 8, 2020 (pict 4 (Hyphae 28 United States District Judge