Gibson v. Chief Medical Officer of California Department of Corrections et al

Filing 14

ORDER signed by Circuit Judge Marsha S. Berzon on 4/9/10: Application to Proceed In Forma Pauperis 2 and Motions to Proceed In Forma Pauperis 8 , 9 , and 12 are granted. Motion to Appoint Counsel is denied without prejudice 7 . Motion for Le ave to File a Second Amended Complaint is granted 10 . Second Amended Complaint 11 is dismissed without prejudice for failure to state a claim upon which relief may be granted. Plaintiff has 30 days from the date this Order is filed to file a third amended complaint in compliance with this Order. The Clerk of the Court shall send plaintiff a Prisoner Complaint form along with this order. (Kaminski, H)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 T h is case was reassigned to the undersigned judge. (Dkt. # 4). Plaintiff Robert D. 17 G ib s o n , who is currently confined in the Salinas Valley Prison, has filed a pro se civil rights 18 C o m p lain t pursuant to 42 U.S.C. § 1983. (Dkt. #s 1, 5, 11). After reviewing Gibson's 19 A p p lic a ti o n to Proceed In Forma Pauperis (Dkt. #2) and Motions to Proceed In Forma 20 P a u p e r is (Dkt. #s 8, 9, 12), the Court will grant Gibson's request to proceed in forma 21 p a u p e ris . The Court will also grant Gibson's Motion to File a Second Amended Complaint 22 (D k t. # 10). After screening Gibson's Second Amended Complaint pursuant to 28 U.S.C. 23 § 1915A, to the extent discussed below, the Court will dismiss the Second Amended 24 C o m p la in t (Dkt. #11) without prejudice. The Court will grant Gibson leave to file an 25 a m e n d e d complaint. 26 27 28 vs. C H IE F MEDICAL OFFICER OF CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants. ROBERT D. GIBSON, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) C a s e No. 2:09-cv-00230-MSB ORDER I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

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I.

A p p l ic a tio n to Proceed In Forma Pauperis & Filing Fee G ib s o n requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

(D k t. #s 2, 8, 9, 12). Gibson has made the showing required by § 1915(a)(1), (2) and his re q u e st to proceed in forma pauperis will be granted. (Id.). Pursuant to 28 U.S.C. § 1 9 1 5 (b )(1 ), Gibson is obligated to pay the statutory filing fee of $350.00 for this action. An in itia l partial filing fee will not be assessed as Gibson's inmate account has a negative b a la n c e. Gibson is required to make monthly payments of twenty percent of the preceding m o n th 's income credited to his account. By separate order, the Court will direct the C a lif o rn ia Department of Corrections to collect these payments and forward them to the C le rk of the Court each time the amount in Gibson's account exceeds $10.00, until the filing fe e is paid in full. 28 U.S.C. § 1915(b). II. S e c o n d Amended Complaint G ib so n filed a Motion for Leave to File a Second Amended Complaint (Dkt. # 10). In his Second Amended Complaint, Gibson eliminated several causes of action raised in his o rig in al and First Amended Complaints. (Dkt. #s 1, 5). The Court will grant Gibson's M o tio n for Leave to File a Second Amended Complaint. Gibson should take note, however, th a t an amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1 2 5 8 , 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1 5 4 6 (9th Cir. 1990). After amendment, the Court treats the previous complaints as n o n e x is te n t. Ferdik, 963 F.2d at 1262. Any cause of action raised in the previous complaints is waived if it is not raised in the amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th C ir. 1987). Thus, any cause of action Gibson raised in his original or First Amended C o m p lain t is waived and the Court will consider only those claims specifically asserted in th e Second Amended Complaint. III. M o tio n to Appoint Counsel G ib s o n moves the Court to appoint counsel to represent him pursuant to 28 U.S.C. § 1 9 1 5 ( e ) . (Dkt. # 7). "[T]here is no constitutional right to appointed counsel for § 1983 c la im s . . . ." Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Nonetheless, 28 -2-

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U .S .C . § 1915(e)(1) "confers on a district court the discretion to designate counsel to re p re se n t an indigent civil litigant" upon a finding of "exceptional circumstances." Wilborn v . Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quotation omitted). "A finding of e x c ep tio n a l circumstances requires an evaluation of both the likelihood of success on the m e r its [and] the ability of the petitioner to articulate his claims pro se in light of the c o m p l e x ity of the legal issues involved. Neither of these factors is dispositive and both must b e viewed together before reaching a decision." Id. (alteration in original) (internal quotation m ar k s and citation omitted). G ib s o n contends that appointment of counsel is warranted in this case because (1) he " c an n o t afford to hire private counsel," (2) he is limited in his ability to investigate and p u rs u e discovery due to his imprisonment, (3) the issues in his case are "extremely complex," (4 ) he "will be seeking temporary medical injunction orders," and (5) his "failing health will a ls o be a factor in his ability to prosecute this action." (Dkt. # 7 at 1-2). None of these f a c to rs constitutes an exceptional circumstance, however. Gibson's inability to hire private co u n sel does not necessitate the appointment of counsel, as the Court has granted Gibson's re q u e st to proceed in forma pauperis. Nor does Gibson's need for investigation warrant a f in d in g of exceptional circumstances. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1 9 9 7 ), overruled in part en banc on other grounds, 154 F.3d 952, 954 n.1 (1998). A d d itio n a lly, Gibson has not made the requisite showing of probable success on the merits a n d an inability to articulate his claims pro se in light of the complexity of the legal issues in v o lv e d in this case. Moreover, Gibson has not shown that his health prevents him from a d e q u a tely pursuing this litigation as he has already filed multiple pleadings and motions in th is case. The Court will therefore deny Gibson's motion to appoint counsel without p re ju d ic e . IV. S ta tu to r y Screening of Prisoner Complaints T h e Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised -3-

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c la im s that are legally frivolous or malicious, fail to state a claim upon which relief may be g ra n te d , or seek monetary relief from a defendant who is immune from such relief. 28 U .S .C . § 1915A(b)(1), (2). V. B a c k gro u n d G ib so n is currently housed at the Salinas Valley Prison in Soledad, California. (Dkt. # 11 at 2). Gibson alleges four causes of action: 1) that 42 U.S.C. §1997e is unconstitutional b e c a u se it is a Bill of Attainder, violates the First Amendment because it blocks access to th e courts, violates the Seventh Amendment right to a civil trial, and violates the Ninth A m e n d m e n t; 2) that California Penal Code §§ 2600-2601 is unlawfully applied to him ex p o s t facto because it was enacted after he was sentenced; 3) that the defendants have violated th e Eighth Amendment because they have failed to provide him treatment for Hepatitis C; a n d 4) that the prison's poor food diet and unsanitary conditions violate the Eighth A m e n d m e n t. G ib s o n names the following parties as defendants: Arnold Schwarzenegger, Governor o f the State of California (id. at 2-3); Robin Dezember, the Director of the Division of C o rre c tio n a l Health Care Services of the California Department of Corrections and R e h a b ilita tio n (id. at 3); the Chief Dietitian of the California Department of Corrections (id.); E d m u n d G. Brown, Attorney General of California (id. at 4); Trace Maiorino, Deputy A tto rn e y General of California (id.); Kellis M. Hammond, Deputy Attorney General of C a lif o rn ia (id.); and William Cashdollar, Deputy Attorney General of California (id. at 5, 1 0 ). Gibson suffers from Hepatitis C. (Id. at 8). Gibson alleges that the defendants are d e lib e ra te ly indifferent to his condition. (Id. at 9). He contends that prison officials have re f u se d to treat him with anti-viral drugs, which he believes would improve his condition or e ra d ic a te the virus. (Id. at 7-8). Gibson also contends that the Chief Medical Officer has f a ile d to change the protocol for treatment of Hepatitis C and to implement a policy for im m e d ia te anti-viral drug treatment of qualified prisoners. (Id. at 9). Gibson also alleges n e g lig e n c e and malpractice based on a liver biopsy procedure that he describes as -4-

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" in c o m p e te n t" and "botched," causing him "unnecessary pain and delay in his treatment for [ H e p a titis ]." (Id. at 12). In addition, Gibson alleges that the prison's food is unsanitary and contributes to his p o o r health. (Id. at 13). According to Gibson, the food is stored outdoors and is left u n c o v e re d . (Id.). In addition, Gibson contends that the food is "sodium laced" and "lacks a n y nutritional value." (Id.). Furthermore, Gibson alleges that the California Attorney General's office engaged in a "[p]attern of [r]acketeering [a]ctivity" by using false affidavits and tampering with w itn e s s e s in three earlier civil rights cases Gibson filed. (Id. at 10-11). According to Gibson, th e se actions deprived him of his civil rights by blocking him from bringing a legal action. (Id . at 11). G ib s o n also challenges the validity of 42 U.S.C. § 1997e. He states that he has been u n a b l e to find legal counsel in another civil rights action "that went to [j]ury [t]rial" because th e law disadvantages prisoners in such matters, (id. at 14-15), and so contends that the law is an unlawful bill of attainder and violates the First Amendment because it makes the prison g rie v a n c e procedure a prerequisite despite "full knowledge of the tyrannical acts of [s]tate [ o ]f f ic ia ls ." (Id. at 14.). Gibson also contends that the law's waiver clause violates the First A m e n d m e n t right to petition and the Seventh Amendment right to a trial, and gives p re f e r e n c e to attorneys who practice on behalf of free citizens in violation of Article One, s e c tio n 9 of the U.S. Constitution. (Id. at 14-15) Finally, Gibson challenges the validity of California's prison regulations. Gibson c o n ten d s that the California law, Cal. Penal Code §§ 2600-2601, which governs certain p ris o n conditions, is unlawfully applied ex post facto to him because it was enacted in 1994, s e v e ra l years after he had been sentenced. (Id. at 16-17). According to Gibson, at the time h e was sentenced, an Inmate Bill of Rights existed that protected prisoners from "oppressive a n d tyrannical acts of prison officials," but the 1994 change in the law "reduced the level of . . . medical care, food, clothing and other living conditions or housing needs" in violation o f the Inmate Bill of Rights. (Id. at 16). -5Gibson argues that these changes are

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u n c o n stitu tio n a lly applied to him ex post facto because they "attach[] new legal c o n s e q u e n c e s " to his sentence. (Id. at 17). VI. D is c u s s io n 4 2 U.S.C. § 1983 provides a cause of action against persons acting under color of state la w who have violated rights guaranteed by the United States Constitution. See Buckley v. C ity of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Demery v. Kupperman, 735 F.2d 1139, 1 1 4 6 (9th Cir. 1984). To state a valid claim for relief under § 1983, a plaintiff must allege th a t he suffered a specific injury as a result of a defendant's specific conduct and show an a f f irm a tiv e link between the injury and that defendant's conduct. Rizzo v. Goode, 423 U.S. 3 6 2 , 371-72, 377 (1976). A. P le a d in g Standard

P r o se pleadings are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 5202 1 (1972). Nonetheless, a pro se plaintiff must satisfy the pleading standard set forth in the F e d e ra l Rules of Civil Procedure, which requires a "short and plain statement of the claim s h o w in g that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). " E a c h allegation must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, thed e f en d a n t-u n la w f u lly-h a rm e d - m e accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (20 0 9 ). "Threadbare recitals of the elements of a cause of action, supported by mere c o n c lu s o ry statements, do not suffice." Id. B. C la im s Against "Defendants" Generally

G ib s o n asserts several claims against "defendants" generally. The Court notes, h o w e v e r, that "[t]he inquiry into causation must be individualized and focus on the duties a n d responsibilities of each individual defendant whose acts or omissions are alleged to have c a u se d a constitutional deprivation." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). T h u s , to the extent the Court can reasonably infer the individual defendants against whom G ib s o n asserts a claim, it will do so. To the extent it cannot, the Court will dismiss them w ith o u t prejudice. -6-

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C.

E ig h th Amendment

T h e Eighth Amendment prohibits the imposition of cruel and unusual punishment and " e m b o d ie s `broad and idealistic concepts of dignity, civilized standards, humanity and d e c en c y.'" Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Jackson v. Bishop, 404 F.2d 5 7 1 , 579 (8th Cir. 1968)). Gibson alleges an Eighth Amendment violation based on in a d e q u ate medical treatment and prison conditions at the Salinas Valley Prison. (Dkt. # 11 a t 7-9, 12, 13, 19). To state a claim against a prison official under the Eighth Amendment a plaintiff must e s t a b l i s h that: (1) "the deprivation alleged . . . [is] sufficiently serious" under an objective s ta n d a rd , and (2) the "prison official [] ha[d] a sufficiently culpable state of mind" under a s u b je c tiv e standard. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks a n d citation omitted). The objective requirement is met where the "prison official's act or o m is s io n [] result[s] in the denial of the minimal civilized measure of life's necessities." Id. (in te rn a l quotation marks and citation omitted). The subjective requirement is met where the p ris o n official acts with "deliberate indifference to inmate health or safety." Id. (internal q u o ta tio n marks and citation omitted). A prison official acts with deliberate indifference w h e n he "knows of and disregards an excessive risk to inmate health or safety; the official m u s t both be aware of facts from which the inference could be drawn that a substantial risk o f serious harm exists, and he must also draw the inference." Id. at 837. Furthermore, d e lib e ra te indifference is a higher standard than negligence or lack of ordinary due care. Id. a t 835. i. Medical treatment A prison official violates the Eighth Amendment when he acts with "deliberate in d if f ere n c e to serious medical needs of prisoners." Estelle, 429 U.S. at 104. Factors in d ic a tin g a serious medical need include: (1) whether a reasonable doctor would consider th e condition "worthy of comment or treatment"; (2) whether the condition "significantly a f f e c ts an individual's daily activities;" and (3) whether the condition involves "chronic and s u b s ta n tia l pain." Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). To establish -7-

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d e lib e ra te indifference the plaintiff must show both "a purposeful act or failure to respond to a prisoner's pain or possible medical need and . . . harm caused by the indifference." Jett v . Penner, 439 F.3d 1091, 1097 (9th Cir. 2006) (citation omitted). A prisoner cannot show d e lib e ra te indifference merely by showing a "`difference of medical opinion' . . . [r]ather, to p re v a il on a claim involving choices between alternative courses of treatment, a prisoner m u s t show that the chosen course of treatment `was medically unacceptable under the c irc u m s ta n c e s ,' and was chosen `in conscious disregard of an excessive risk to the prisoner's h e a lth .'" Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (quoting Jackson v. M c I n to s h , 90 F.3d 330, 332 (9th Cir.1996)). "Prison officials are deliberately indifferent to a prisoner's serious medical needs when they `deny, delay, or intentionally interfere with m e d ic a l treatment.'" Lopez, 203 F.3d at 1131. Mere claims of "indifference," "negligence," o r "medical malpractice" do not constitute deliberate indifference. Broughton v. Cutter L a b s ., 622 F.2d 458, 460 (9th Cir. 1980). "In order to state a cognizable claim, a prisoner m u st allege acts or omissions sufficiently harmful to evidence deliberate indifference to s e rio u s medical needs." Estelle, 429 U.S. at 105. Here, Gibson fails to show deliberate indifference on the part of prison officials with re sp e c t to his medical treatment. He argues that his hepatitis will worsen if he does not re c e iv e anti-viral treatment, (Dkt. # 11 at 7-9), but does not allege that the treatment he is re c e iv in g is medically unacceptable under the circumstances or that it was chosen in c o n sc io u s disregard of an excessive risk to his health. Gibson also alleges that a "botched" b io p s y was performed in "total disregard for [his] safety and health" and "caus[ed] [him] u n n e c es s a ry pain and delay in his treatment." (Id. at 12). He does not, however, explain how h is biopsy was "botched" or allege facts sufficient to support his conclusory allegations c o n c ern in g the harm caused by the biopsy or the defendants' alleged deliberate indifference to his medical needs. Gibson therefore fails to state a claim under the Eighth Amendment b a se d on medical treatment. ii. Prison Food

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" A d e q u a te food is a basic human need protected by the Eighth Amendment." Keenan v . Hall, 83 F.3d 1083, 1091 (9th Cir. 1996) (citing Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th C ir. 1982). "While prison food need not be `tasty or aesthetically pleasing,' it must be `a d e q u ate to maintain health.'" Id. (quoting LeMaire v. Maass, 12 F.3d 1444, 1456 (1993)). T h e Supreme Court has stated that a disciplinary diet providing less than 1,000 calories per d a y "might be tolerable for a few days and intolerably cruel for weeks or months." Hutto v. F in n e y , 437 U.S. 678, 687 (1978); see also Foster v. Runnels, 554 F.3d 807, 812-13 (9th Cir. 2 0 0 9 ) (holding that an allegation that sixteen meals had been withheld over twenty-three d a ys, leading to weight loss and dizziness, was sufficient to state a claim under the Eighth A m e n d m e n t ). G ib so n alleges that the prison food at the Salinas Valley Prison is kept in unsanitary c o n d itio n s and contains harmful amounts of sodium. (Dkt. #11 at 13). He also alleges that th e food is inadequately nutritional and "contributes to [his] bad health." (Id.). Gibson does n o t, however, allege specific facts to support his conclusory allegations that the food is u n s a n ita ry or explains how it harms his health. He does not allege that the prison diet a m o u n ts to a sufficiently serious denial of the minimal measure of necessities or that it c o n stitu te s deliberate indifference by prison officials. Accordingly, Gibson fails to state a c laim against the Chief Dietitian of the Department of Corrections under the Eighth A m e n d m e n t. D. 4 2 U.S.C. § 1997e

G ib so n alleges that 42 U.S.C. § 1997e violates the First, Seventh, and Ninth A m e n d m e n ts and is an unlawful Bill of Attainder. According to Gibson, § 1997e has made it impossible for him to find legal counsel and its purpose is "to punish incarcerated p e rs o n [ s]." (Dkt. #11 at 14). To state a claim of denial of access to the courts, a prisoner " m u s t identify a `nonfrivolous,' `arguable' underlying claim" that the prisoner has been or w ill be unable to pursue properly because the defendant's actions have denied the prisoner m e a n in g f u l access to the courts. See, e.g., Christopher v. Harbury, 536 U.S. 403, 415 (2002) (q u o tin g Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996)). Here, Gibson alleges only a -9-

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" [ p ]a tte rn of [r]acketeering [a]ctivity" by certain attorneys in the California Attorney G e n e ra l's Office in other civil actions he has pursued in court, but not that he has in fact been d e n i e d access to the courts. Gibson also fails to identify any legal basis underlying his c o n c lu so ry assertions regarding the constitutionality of 42 U.S.C. § 1997e. He therefore fails to state a claim upon which relief can be granted against the California Attorney General d e f e n d a n t s. E. C a lifo r n ia Penal Code sections 2600-2601

G ib s o n claims that Cal. Penal Code §§ 2600-2601 violate the U.S. Constitution b e c a u se they are applied to him ex post facto. The U.S. Constitution provides that "No State s h a ll . . . pass any . . . ex post facto Law." U.S. Const. art. I, § 10. The Ex Post Facto Clause is violated if: (1) state regulations have been applied retroactively to a defendant; and (2) the n e w regulations have created a "sufficient risk" of increasing the punishment attached to the d e f e n d a n t's crimes. Himes v. Thompson, 336 F.3d 848, 854 (9th Cir. 2003). In order to v io la te the clause, the law in question must essentially alter "the definition of criminal c o n d u c t" or increase the "punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 442 (19 9 7 ). H e re , Gibson alleges that prison regulations regarding "medical care, food, clothing a n d other living conditions or housing needs" are stricter now than at the time he was s e n te n c e d . (Dkt. #11 at 16). He does not, however, allege that the new regulations have c re a te d a sufficient risk of increasing his punishment. He therefore fails to state a claim upon w h ic h relief can be granted. V II. W a r n in g s A. A d d r e s s Changes

G ib so n must file and serve a notice of a change of address in accordance with Rule 8 3 -1 8 2 (f ) and 83-183(b) of the Local Rules of Civil Procedure. Gibson must not include a m o tio n for other relief with a notice of change of address. Failure to comply may result in d is m is s a l of this action. B. Copies - 10 -

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G ib s o n must submit an additional copy of every filing for use by the Court. See L R C iv 5-133(d)(2). Failure to comply may result in the filing being stricken without further n o tic e to Gibson. C. P o s s ib le "Strike"

B e c a u se the Complaint has been dismissed for failure to state a claim, if Gibson fails to file an amended complaint correcting the deficiencies identified in this Order, the d ism issal will count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). U n d e r 28 U.S.C. § 1915, a prisoner may not bring a civil action in forma pauperis "if the p ris o n e r has, on 3 or more prior occasions, while incarcerated or detained in any facility, b ro u g h t an action or appeal in a court of the United States that was dismissed on the grounds th a t it was frivolous, malicious, or fails to state a claim upon which relief may be granted, u n less a prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). D. Possible Dismissal

I f Gibson fails to timely comply with every provision of this Order, including these w a rn in g s , the Court may dismiss this action without further notice. See, e.g., Ferdik, 963 F .2 d at 1260-61(a district court may dismiss an action for failure to comply with the court's o rde r). A c c o r d in g l y , IT IS HEREBY ORDERED THAT: (1) G ib s o n 's Application to Proceed In Forma Pauperis (Dkt. # 2) and Motions

to Proceed In Forma Pauperis (Dkt. #s 8, 9, and 12) are granted pursuant to 28 U.S.C. § 1 9 1 5 (a)(1). (2 ) G ib s o n is obligated to pay the statutory filing fee of $350.00 for this action

p u rsu a n t to 28 U.S.C. § 1915(b)(1). All fees must be collected and paid in accordance with th is Court's order to the California Department of Corrections, which will be filed co n cu rren tly with this Order. (3) G ib s o n ' s Motion to Appoint Counsel is denied without prejudice. (Dkt. # 7).

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(4) (D k t. # 10). (5)

G ib s o n ' s Motion for Leave to File a Second Amended Complaint is granted.

G ib s o n ' s Second Amended Complaint (Dkt. #11) is dismissed without

p r e ju d ic e for failure to state a claim upon which relief may be granted. Gibson has 30 days f ro m the date this Order is filed to file a third amended complaint in compliance with this O rde r. (6 ) this order. (7 ) If Gibson fails to file an amended complaint within 30 days from the date of T h e Clerk of the Court shall send Gibson a Prisoner Complaint form along with

th is Order, the Clerk of the Court shall, without further notice, enter a judgment of dismissal o f this action with prejudice that states that the dismissal counts as a "strike" under 28 U.S.C. § 1915(g). (8 ) T h e Clerk of the Court shall include with this Order a form for filing an

a m e n d e d complaint.

D A T E D this 9th day of April, 2010.

/s/ Marsha S. Berzon MARSHA S. BERZON United States Circuit Judge, sitting by designation

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