Patterson v. Kern County Sheriff's Officer

Filing 10

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 2/28/2012. Amended Complaint due by 4/2/2012. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JAMES R. PATTERSON,

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CASE NO.

Plaintiff,

ORDER DISMISSING PLAINTIFF’S
COMPLAINT WITH LEAVE TO AMEND

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1:12-CV-0132-MJS (PC)

v.

(ECF NO. 1)

KERN COUNTY SHERIFF’S OFFICE,

AMENDED COMPLAINT DUE WITHIN
THIRTY DAYS

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Defendant.
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/

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SCREENING ORDER

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I.

PROCEDURAL HISTORY

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On January 25, 2012, Plaintiff James Patterson, a state prisoner proceeding pro se

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and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No.

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1.)

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Plaintiff’s Complaint is now before the Court for screening.

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II.

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SCREENING REQUIREMENT
The Court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that ... the action or appeal ... fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges,

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or immunities secured by the Constitution and laws' of the United States.” Wilder v. Virginia

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Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not

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itself a source of substantive rights, but merely provides a method for vindicating federal

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rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393–94 (1989).

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III.

SUMMARY OF COMPLAINT

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Plaintiff was incarcerated at the Ledro Pretrial Detention Center in Bakersfield,

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California (“Ledro”), during the events alleged in the Complaint. (Compl. p. 5, ECF No. 1.)

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Plaintiff complains that Defendant used excessive force against him, and was indifferent

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to his resultant medical needs, violating his civil rights. (Compl. at 3-5.)

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Plaintiff Complaint is confusing. It appears to name as Defendant the Kern County

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Sheriff’s Office based upon the conduct of unnamed individual sheriff officers. (Id. at 1, 5.)

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On September 5, 2011, Plaintiff, while on suicide watch and in “mechanical

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restraints”, “was beaten and sprayed with foam pepper spray ... kicked twisted and left to

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[burn]” by “[unnamed] detention officers1 [] as an abusive form of torture.” (Id. at 3-5.)

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Plaintiff claims he suffered eye and ear infections, and medical and mental damage

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including bad dreams. (Id. at 3, 5.) He seeks “force punitive damages”. (Id. at 3.)
IV.

ANALYSIS

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A.

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To state a claim under Section 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and (2)

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Pleading Requirements Generally

that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,
1245 (9th Cir.1987).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief ....“ Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff

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must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible

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on its face.’“ Id. Facial plausibility demands more than the mere possibility that a defendant

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committed misconduct and, while factual allegations are accepted as true, legal conclusions

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are not. Id. at 1949–50.

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Consisting of 1 sergeant, 1 fem ale, 2 m ales. (Com pl. at 5.)

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B.

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A local government unit may not be held responsible for the acts of its employees

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under a respondeat superior theory of liability. Monell v. Department of Social Services, 436

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Municipal Liability

U.S. 658, 691 (1978). A local government unit may only be held liable if it inflicts the injury

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complained of through a policy or custom. Waggy v. Spokane County Washington, 594 F.3d
707, 713 (9th Cir. 2010).

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A local government unit can be held liable under section 1983 under three theories.

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First, where the implementation of official policies or established customs, causes the

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constitutional injury. Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th Cir.

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2010). Second, where acts or omissions causing the constitutional injury amount to official

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policy of the municipality. Id. at 1249. Finally, where an official has ratified the

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unconstitutional decision or action of an employee of the municipality. Id. at 1250. “A

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custom can be shown or a policy can be inferred from widespread practices or ‘evidence

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of repeated constitutional violations for which the errant municipal officers were not

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discharged or reprimanded.’” Pierce v. County of Orange, 526 F.3d 1190, 1211 (9th Cir.

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2008).

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A policy can be one of action or inaction and “is defined as ‘a deliberate choice to
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follow a course of action ... made from among various alternatives by the official or officials

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responsible for establishing final policy with respect to the subject matter in question.’”

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Waggy, 594 F.3d at 713 (quoting Monell, 436 U.S. at 589).

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To find a municipality liable for a failure to act, the plaintiff must show that an
employee of the municipality violated his constitutional rights, that the customs or policies

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of the municipality amount to deliberate indifference, and those “customs or policies were
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the moving force behind” the violation of plaintiff's constitutional rights. Long v. County of

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Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006). For a custom or policy to be the moving

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force behind the constitutional violation, it must be “closely related to the ultimate injury.”

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Long, 442 F.3d at 1190.

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Plaintiff has failed to adequately allege municipal liability. The Complaint does not

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identify any specific policy, widespread practice, or ratified conduct that was the moving
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force behind the alleged violation.

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The Court will grant Plaintiff an opportunity to amend. In order to state a claim

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against Defendant Kern County Sheriff’s Office, Plaintiff must allege truthful facts that

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demonstrate specific policies and practices were deliberately indifferent to the use of

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excessive force against him and the moving force behind the alleged constitutional violation.

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C.

Personal Participation

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Under Section 1983, Plaintiff must demonstrate that each individually named

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defendant personally participated in the deprivation of his rights. Jones v. Williams, 297

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F.3d 930, 934 (9th Cir. 2002). The Supreme Court has emphasized that the term

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“supervisory liability,” loosely and commonly used by both courts and litigants alike, is a

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misnomer. Iqbal, 129 S.Ct. at 1949. “Government officials may not be held liable for the

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unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id.
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at 1948. Rather, each government official, regardless of his or her title, is only liable for his

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or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant,

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through his or her own individual actions, violated Plaintiff's constitutional rights. Id. at

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1948–49.

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“As a general rule, the use of ‘John Doe’ to identify a defendant is not favored.”

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Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). “It is permissible to use Doe

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defendant designations in a complaint to refer to defendants whose names are unknown

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to plaintiff. Although the use of Doe defendants is acceptable to withstand dismissal of a

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complaint at the initial review stage, using Doe defendants creates its own problem: those

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persons cannot be served with process until they are identified by their real names.”

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Robinett v. Correctional Training Facility, 2010 WL 2867696, *4 (N.D. Cal. July 20, 2010).
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Plaintiff fails to identify, or name as Doe defendants, the individual detention officers

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allegedly involved in this incident. Plaintiff, if he chooses to amend, may not proceed against

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individual detention officers unless he identifies them, or names them as Doe defendants,

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and truthfully alleges how each personally violated, or knowingly directed a violation of his

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constitutional rights.

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Plaintiff is advised that any named Doe defendants cannot be served by the United
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States Marshal until Plaintiff has identified them as actual individuals and amended his

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complaint to substitute the defendants' actual names. The burden remains on Plaintiff to

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promptly discover the full names of Doe defendants. Id.

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D.

Excessive Force

Plaintiff alleges that Defendant used excessive force against him in violation of the
constitutional right to be free of such force.2

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It rem ains unclear from the pleadings whether Plaintiff had been convicted of a crim e at the tim e
of the alleged violations. Claim s for excessive force, when brought by a detainee who has been neither
charged nor convicted of a crim e, are analyzed under the Fourteenth Am endm ent reasonableness
standard. Gibson v. County of W ashoe, 290 F.3d 1175, 1185–86 (9th Cir. 2002); Frost v. Agnos, 152 F.3d
1124, 1128 (9th Cir. 1998). Claim s for excessive force, when brought by a prisoner who has been charged
and convicted, are analyzed under the Eighth Am endm ent cruel and unusual punishm ents standard.
W ilkins v. Gaddy, –––U.S. ––––, ––––, 130 S.Ct. 1175, 1178 (2010).

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The analysis of an excessive force claim brought pursuant to Section 1983 begins

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with “identifying the specific constitutional right allegedly infringed by the challenged

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application of force.” Graham v. Connor, 490 U.S. 386, 394 (1989).

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The Due Process Clause of the Fourteenth Amendment protects pre-trial detainees

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from the use of excessive force. Redman v. County of San Diego, 942 F.2d 1435, 1440
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(9th Cir. 1991) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). In resolving a

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substantive due process claim, courts must balance “several factors focusing on the

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reasonableness of the officers’ actions given the circumstances.” White v. Roper, 901 F.2d

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1501, 1507 (9th Cir. 1990) (quoting Smith v. City of Fontana, 818 F.2d 1411, 1417 (9th Cir.

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1987)) (overruled on other grounds)). In the White case, the Ninth Circuit articulated four

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factors that courts should consider in resolving a due process claim alleging excessive
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force. The factors are (1) the need for the application of force, (2) the relationship between

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the need and the amount of force that was used, (3) the extent of the injury inflicted, and

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(4) whether force was applied in a good faith effort to maintain and restore discipline. White

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901 F.2d at 1507.

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The Cruel and Unusual Punishments Clause of the Eighth Amendment protects
prisoners from the use of excessive physical force. Wilkins v. Gaddy, –––U.S. ––––, ––––,

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130 S.Ct. 1175, 1178 (2010); See Hudson v. McMillian, 503 U.S. 1, 8–9 (1992); see also

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Bell v. Wolfish, 441 U.S. 520, 535 (1979). To state an Eighth Amendment claim, a plaintiff

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must allege that the use of force was an “unnecessary and wanton infliction of pain.” Jeffers

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v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001). The malicious and sadistic use of force to

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cause harm always violates contemporary standards of decency, regardless of whether or

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not significant injury is evident. Hudson, 503 U.S. at 9; see also Oliver v. Keller, 289 F.3d

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623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis

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uses of force, not de minimis injuries). However, not “every malevolent touch by a prison

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guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth

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Amendment's prohibition of cruel and unusual punishments necessarily excludes from

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constitutional recognition de minimis uses of physical force, provided that the use of force

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is not of a sort repugnant to the conscience of mankind.” Id. at 9–10.

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Whether force used by prison officials was excessive for purposes of the Eighth

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Amendment is determined by inquiring if the “force was applied in a good-faith effort to

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maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at 6–7. The

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Court must look at the need for application of force; the relationship between that need and
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the amount of force applied; the extent of the injury inflicted; the extent of the threat to the

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safety of staff and inmates as reasonably perceived by prison officials; and any efforts made

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to temper the severity of the response. Whitley, 475 U.S. at 321. The absence of significant

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injury alone is not dispositive of a claim of excessive force. Wilkens, 130 S.Ct. at 1176–77;

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See Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991) (unprovoked and unjustified attack

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on prisoner violates constitution regardless of degree of injury).
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Plaintiff’s allegations that while in mechanical restraints he was beaten and sprayed

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with pepper spray, kicked, twisted and left unwashed for an unspecified period of time may

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be unreasonable and constitute excessive force where unnecessary and unjustified under

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the circumstances. Plaintiff provides little if any factual detail regarding the nature of the

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mechanical restraints, the specific events immediately leading up to the use of force, the
amount and duration of force applied, and his response to force. See Giles v. Kearney, 571

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F.3d 318, 330 (3d Cir. 2009) (no excessive force against inmate when guards deny inmate’s

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request for pain medication, and administer a single shot of pepper spray, as a

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proportionate response when inmate becomes agitated and refuses to obey orders); see

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also Fennell v. Gilstrap, 559 F.3d 1212, 1217, (11th Cir. 2009) (finding a jailor’s kick to

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pretrial detainee’s face, resulting in fractures, not to be excessive force under the

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Fourteenth Amendment where inmate was struggling with other officers and had not yet

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been secured, and officers immediately offered medical care, the court there noting “use

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of force does not ‘shock the conscience’ if it is applied in ‘a good-faith effort to maintain or

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restore discipline.’”)
It is not clear that Plaintiff suffered physical injury as a result of Defendant’s alleged

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conduct. Plaintiff’s belief that he has suffered facial infections secondary to being pepper
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sprayed is speculative, conclusory and factually unsupported.

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The Court will grant Plaintiff an opportunity to amend this claim. In order to state a

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cognizable claim for excessive force in an amended complaint, Plaintiff must provide truthful

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facts, not just speculation or suspicion, that support the allegation that, under the

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circumstances, each named defendant acted unreasonably, maliciously, sadistically, and

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motivated by a desire to cause harm to Plaintiff. See Dennis v. Huskey, 2008 WL 413772,
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*4, *5 (E.D.Cal. Feb.13, 2008) (Plaintiff provided sufficient factual detail to support the

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allegation that the defendant slammed the food port door shut maliciously and sadistically

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for the very purpose of causing harm rather than in a good faith effort to maintain or restore

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discipline). Plaintiff must also describe in detail what physical injury, if any, he experienced

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as a result.

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E.

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Plaintiff claims that Defendant was deliberately indifferent to his serious medical

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needs.3 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

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Indifference to Medical Needs

inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439

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F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The

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two prong test for deliberate indifference requires the plaintiff to show (1) “a serious medical

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need’ by demonstrating that ‘failure to treat a prisoner's condition could result in further

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significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant's

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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin

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v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991)), (overruled on other grounds by WMX

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Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)) (quoting Estelle, 429 U.S. at 104).

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Deliberate indifference is shown by “a purposeful act or failure to respond to a prisoner's

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pain or possible medical need, and harm caused by the indifference.” Jett, 439 F.3d at 1096

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(citing McGuckin, 974 F.2d at 1060). In order to state a claim for violation of the Eighth

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Amendment, a plaintiff must allege sufficient facts to support a claim that the named

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defendant(s) “[knew] of and disregard[ed] an excessive risk to [plaintiff's] health ....” Farmer

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v. Brennan, 511 U.S. 825, 837 (1994).
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In applying this standard, the Ninth Circuit has held that before it can be said that a
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It rem ains unclear from the pleadings whether Plaintiff had been convicted of a crim e at the tim e
of the alleged violations. As a pretrial detainee, Plaintiff is protected from conditions of confinem ent which
am ount to punishm ent. Bell v. W olfish, 441 U.S. 520, 535-36 (1979); Sim m ons v. Navajo County, Ariz.,
609 F.3d 1011, 1017-18 (9th Cir. 2010); Clouthier v. County of Contra Costa, 591 F.3d 1232, 1244 (9th
Cir. 2010). W hile pretrial detainees’ rights are protected under the Due Process Clause of the Fourteenth
Am endm ent, the standard for claim s brought under the Eighth Am endm ent has long been used to analyze
pretrial detainees’ conditions of confinem ent claim s. Sim m ons, 609 F.3d at 1017-18; Clouthier, 591 F.3d
at 1242; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The law applicable to Plaintiff's m edical
indifference claim is the sam e regardless of his custody status.

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prisoner's civil rights have been abridged, “the indifference to his medical needs must be

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substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this

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cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing

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Estelle, 429 U.S. at 105–06). A defendant acts with deliberate indifference when he

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knowingly fails to respond to a serious medical need, thereby inflicting harm on the plaintiff.

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Farmer, 511 U.S. 825 at 837-42. Even gross negligence is insufficient to establish
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deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332,
1334 (9th Cir. 1990).

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Also, “a difference of opinion between a prisoner-patient and prison medical

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authorities regarding treatment does not give rise to a [Section] 1983 claim.” Franklin v.

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Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). To prevail, Plaintiff “must show that the

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course of treatment the doctors chose was medically unacceptable under the circumstances
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... and ... that they chose this course in conscious disregard of an excessive risk to plaintiff's

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health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986). A prisoner's mere

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disagreement with diagnosis or treatment does not support a claim of deliberate

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indifference. Sanchez v. Veld, 891 F.2d 240, 242 (9th Cir. 1989).

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“Serious Medical needs” encompass conditions that are life-threatening or that carry
risks of permanent serious impairment if left untreated, those that result in needless pain

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and suffering when treatment is withheld and those that have been diagnosed by a

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physician as mandating treatment.” Scarver v. Litscher, 371 F.Supp.2d 986, 999 (W.D.Wis.

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2005) (citing Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997)). See McGuckin, 974

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F.2d at 1059–60 (“[T]he existence of an injury that a reasonable doctor or patient would find

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important and worthy of comment or treatment; the presence of a medical condition that

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significantly affects an individual's daily activities; or the existence of chronic and substantial

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pain are examples of indications that a prisoner has a ‘serious' need for medical treatment.”)

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Plaintiff fails to allege an underlying serious medical need. He alleges that he was

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beaten, sprayed with pepper spray which caused a burning sensation, kicked, twisted, and

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left unwashed for an unspecified period of time. There are no allegations as to the nature,

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extent, and duration of any consequent pain, injuries, or distress. Plaintiff has failed to
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allege a serious medical need sufficient to satisfy the first prong of deliberate indifference.

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There are no facts suggesting that Defendant was deliberately indifferent to Plaintiff's

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medical needs. Plaintiff alleges that, upon being pepper sprayed, he was “left to burn.”

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(Compl. at 3.) Nothing before the Court demonstrates that Plaintiff advised Defendant of a

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serious medical need, or that Defendant was otherwise aware of such and then intentionally

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denied, delayed, or interfered with treatment, so as to state a claim for deliberate
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indifference. See Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998) (a prisoner must

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allege that prison officials actually drew the inference between the [medical condition] and

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a specific risk of harm). It does not appear that, following the application of force, Plaintiff

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complained to Defendant of injuries or physical distress, or that Defendant was otherwise

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aware of such. See Reyes v. McGrath, 444 Fed. Appx. 126, 127 (9th Cir. 2011) (deliberate
indifference stated where, following use of pepper spray, inmate displays symptoms of

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harmful effects, defendants were aware of these symptoms, and refused to provide showers
or medical care).

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Nor do the facts alleged demonstrate that Defendant caused Plaintiff physical harm.

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Plaintiff’s belief that he has suffered infections secondary to being pepper sprayed, however

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sincerely held, are speculative, conclusory and factually unsupported. See Bumpus v.

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Canfield, 495 F.Supp.2d 316, 322 (W.D.N.Y. 2007) (prison physician’s delay of several

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days in dispensing inmate’s medication did not demonstrate deliberate indifference to

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inmate’s serious medical needs, where there was no evidence that inmate experienced any

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complications during the time he was waiting for his prescription to be refilled); see also

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McGuckin, 974 F.2d at 1060 (where delay in treatment is alleged as basis for deliberate

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indifference, the prisoner must also demonstrate that the delay led to further injury); see
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also Jackson v. Meachum, 699 F.2d 578, 583 (1st Cir.1983) (“[to] make the Eighth
Amendment a guarantor of a prison inmate's prior mental health ... would go measurably
beyond what today would generally be deemed ‘cruel and unusual’”).

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Plaintiff fails to state a medical deliberate indifference claim against Defendant. The
Eighth Amendment does not require that prisoners receive “unqualified access to health

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care.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).
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The Court will allow leave to amend. If Plaintiff chooses to amend, he must set forth

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sufficient facts showing (1) a serious medical need, and (2) a deliberately indifferent

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response to that need on the part of each defendant.

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V.

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CONCLUSION AND ORDER
Plaintiff's Complaint does not state a claim for relief under Section 1983. The Court

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will grant Plaintiff an opportunity to file an amended complaint. Lopez v. Smith, 203 F.3d
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1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a

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deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948–49. Plaintiff must set forth

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“sufficient factual matter ... to ‘state a claim that is plausible on its face.’” Id. at 1949 (quoting

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Twombly, 550 U.S. at 555.) Plaintiff must also demonstrate that each named defendant

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personally participated in a deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934

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(9th Cir. 2002).

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Plaintiff should note that although he has been given the opportunity to amend, it is

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not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007). Plaintiff should carefully read this Screening Order and focus his efforts on curing

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the deficiencies set forth above.
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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint

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be complete in itself without reference to any prior pleading. As a general rule, an amended

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complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967). Once an amended complaint is filed, the original complaint no longer serves any

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function in the case. Therefore, in an amended complaint, as in an original complaint, each

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claim and the involvement of each defendant must be sufficiently alleged. The amended
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complaint should be clearly and boldly titled “First Amended Complaint” refer to the

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appropriate case number, and be an original signed under penalty of perjury. Plaintiff's

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amended complaint should be brief. Fed.R.Civ.P. 8(a). Although accepted as true, the

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“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level

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....” Twombly, 550 U.S. at 555.

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Based on the foregoing, it is HEREBY ORDERED that:
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1. The Clerk's Office shall send Plaintiff (1) a blank civil rights amended complaint form and

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(2) a copy of his Complaint, filed January 25, 2012;

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2. Plaintiff's Complaint is dismissed for failure to state a claim upon which relief may be

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granted;

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3. Plaintiff shall file an amended complaint within thirty (30) days from service of this order;

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and

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4. If Plaintiff fails to file an amended complaint in compliance with this order, this action shall

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be dismissed, with prejudice, for failure to state a claim and failure to prosecute, subject to

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the “three strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio 658 F.3d

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1090 (9th Cir. 2011).

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IT IS SO ORDERED.
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Dated:

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ci4d6

February 28, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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