Stacker et al v. California Department of Corrections and Rehabilitation et al

Filing 137

TENTATIVE RULING by District Judge George H. Wu on 10/7/2019 re 114 Motion for Summary Judgment. Plaintiff's supplemental brief due 10/18/2019. Defendants' response due 10/25/2019. (Kaminski, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:16-cv-2913-GHW

Title

Valerie J. Stacker, et al. v. J. Johnson, et al.

Present: The Honorable

Date

October 7, 2019

GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Javier Gonzalez

Terri A. Hourigan

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Valerie Stacker, PRO SE

R. Lawrence Bragg

PROCEEDINGS:

DEFENDANTS CARDENAS, LOPEZ AND JOHNSON'S MOTION
FOR SUMMARY JUDGMENT [114]

The Court’s Tentative Ruling is circulated and attached hereto. Court confers with the parties. For
reasons stated on the record, Plaintiff will have until October 18, 2019 to file any supplement brief.
Defendants will respond by October 25, 2019. The matter will stand submitted.

:
Initials of Preparer
CV-90 (06/04)

CIVIL MINUTES - GENERAL

12

JG
Page 1 of 1

Stacker, et al. v. Cal. Dep’t of Corrs. & Rehab., et al., Case No. 2:16-cv-2913-GHW
Tentative Ruling on Motion for Summary Judgment

Defendants Cardenas, Lopez and Johnson (“Defendants”) – the only remaining
identified defendants in this action – move for summary judgment.

The operative

complaint is the Fourth Amended Complaint (“FAC”) filed May 6, 2019, by plaintiffs, in
pro per, Valerie J. Stacker, individually and as next friend of Jermaine L. Stacker
(“Valerie”), and the Estate of Jermaine L. Stacker (collectively, “Plaintiffs”). The FAC
contains two claims for relief, one (which includes a survival action) pursuant to 42 U.S.C.
§ 1983 for violation of the Eighth and Fourteenth Amendments due to deliberate
indifference to serious medical needs, health and safety and failure to protect, and one for
“general negligence – wrongful death.” According to the undisputed facts, see Footnote 2,
infra, this case concerns events surrounding the death of Jermaine L. Stacker (“Decedent”)
following an apparent fentanyl overdose at Kern Valley State Prison on November 25,
2015, and Plaintiffs’ contention that Defendants should have taken precautions to prevent
the decedent from suffering the overdose.1 See Defendants’ Response to Statement of
Genuine Disputes, Docket No. 135-1, ¶¶ 22, 43, 49, 70-71. Valerie is the Decedent’s
mother. See id. ¶ 1.
For a basic reason discussed below, the Court will grant summary judgment in
Defendants’ favor on Plaintiffs’ Section 1983 claim (and then decline supplemental
jurisdiction over the only other claim pled in the FAC). Before addressing that reason,
however, the Court highlights for the parties the standards that are applied at summary
judgment, because those standards are at least partially responsible for Plaintiffs’ failure to
proceed with this litigation beyond this motion (at least in this Court).
A. Summary Judgment Standards/Rules
Summary judgment is proper when “the movant shows that there is no genuine
1

As stated in ¶ 6 of the FAC:
Defendants Correctional Officer J. Johnson, C/O J. Lopez, C/O J. Cardenas and C/O Does
1-10, at all relevant times herein, were employed by CDCR as correctional officers at
KVSP. On information and belief, they were first responders to the call for help and
medical treatment on November 25, 2015.

See Docket No. 109 at page 3 of 28.

1

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Miranda v. City of Cornelius, 429 F.3d 858, 860 n.1 (9th
Cir. 2005). To satisfy its burden at summary judgment, moving parties without the burden
of persuasion (such as Defendants here) “must either produce evidence negating an
essential element of the nonmoving party’s claim or defense or show that the nonmoving
party does not have enough evidence of an essential element to carry its ultimate burden of
persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099,
1102 (9th Cir. 2000) (emphasis added); see also Devereaux v. Abbey, 263 F.3d 1070, 1076
(9th Cir. 2001) (en banc) (“When the nonmoving party has the burden of proof at trial, the
moving party need only point out ‘that there is an absence of evidence to support the
nonmoving party’s case.’”) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986),
and citing Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000));
Fairbank, 212 F.3d at 532 (holding that the Celotex “showing” can be made by “pointing
out through argument…the absence of evidence to support plaintiff’s claim”).
If the party moving for summary judgment meets its initial burden of
identifying for the court the portions of the materials on file that it believes
demonstrate the absence of any genuine issue of material fact, the
nonmoving party may not rely on the mere allegations in the pleadings in
order to preclude summary judgment[, but instead] must set forth, by
affidavit or as otherwise provided in Rule 56, specific facts showing that
there is a genuine issue for trial.
T.W. Elec. Serv., Inc., v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987)
(internal citations and quotation marks omitted) (emphasis added).
The opposing party must “cit[e] to particular parts of materials in the record” or
show that the materials the moving party cited do not establish the absence or presence of
a genuine dispute. Fed. R. Civ. P. 56(c)(1); see also Fed. R. Civ. P. 56(c)(3) (“The court
need consider only the cited materials, but it may consider other materials in the record.”).
In addition, under this Court’s Local Rules, where the moving party on a motion for
summary judgment has “claimed and adequately supported” material facts, those facts “are
admitted to exist without controversy except to the extent that such material facts are (a)
included in the ‘Statement of Genuine Disputes’ [described in Local Rule 56-2] and (b)
controverted by declaration or other written evidence filed in opposition to the motion.”
See C.D. Cal. L.R. 56-3; see also Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1058 (9th

2

Cir. 2009) (“The ‘party opposing summary judgment must direct [the court’s] attention to
specific, triable facts,’ and the reviewing court is ‘not required to comb through the record
to find some reason to deny a motion for summary judgment.’”) (quoting S. Cal. Gas Co.
v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003) and Carmen v. San Francisco
Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)); see also Carmen, 237 F.3d at
1029 (“[W]hatever establishes a genuine issue of fact must both be in the district court file
and set forth in the response.”).2
“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes
that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The Court must then determine whether “a reasonable jury
could return a verdict for the nonmoving party.” Id.; see also Triton Energy Corp. v.
Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (“The mere existence of a scintilla of
evidence in support of the non-moving party’s position is not sufficient.”).
Generally-speaking, in judging evidence at the summary judgment stage, the court
does not make credibility determinations or weigh conflicting evidence, and views all
evidence and draws all inferences in the light most favorable to the non-moving party. See
T.W. Elec., 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Motley v. Parks, 432 F.3d
1072, 1075 n.1 (9th Cir. 2005) (en banc); Miranda, 429 F.3d at 860 n.1. Conclusory,
speculative testimony in affidavits and moving papers is insufficient to raise genuine issues
of fact and defeat summary judgment. See National Steel Corp v. Golden Eagle Ins. Co.,
121 F.3d 496, 502 (9th Cir. 1997); Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730,
738 (9th Cir.1979). And factual assertions made in legal memoranda, but not supported
by the evidence submitted, are insufficient. See S.A. Empresa De Viacao Aerea Rio
Grandense v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1980).
B. Plaintiffs’ Section 1983 Claim
With respect to Plaintiffs’ claim based upon 42 U.S.C. § 1983, Defendants have
2

If the Court had need to consider Plaintiffs’ efforts in this regard for purposes of resolving this motion –
which, for the reasons expressed infra, it does not – those efforts would be plainly insufficient given this
District’s Local Rules and this Court’s Standing Order governing summary judgment motions. See Docket
Nos. 121-23, 130.
3

argued, at least in part, that they are entitled to qualified immunity. As is discussed below,
this puts Plaintiffs to the test of overcoming an increasingly formidable requirement in civil
rights litigation.3
“‘Qualified immunity attaches when an official’s conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018). A qualified immunity inquiry
asks two questions: (1) was there a violation of a constitutional right, and, if so, (2) was the
right at issue “clearly established” such that it would have been clear to a reasonable officer
that his conduct was unlawful in that situation? See Saucier v. Katz, 533 U.S. 194, 201-02
(2001), overruled on other grounds by Pearson v. Callahan, 239 S.Ct. 808 (2009). Courts
have discretion to choose which of the two prongs is addressed first. See Plumhoff v.
Rickard, 572 U.S. 765, 774 (2014); Tolan v. Cotton, 572 U.S. 650, 656 (2014).
“Defendants are entitled to [qualified immunity] only if the facts alleged and evidence
submitted, resolved in [Plaintiffs’] favor and viewed in the light most favorable to
[Plaintiffs], show that [Defendants’] conduct did not violate a federal right; or, if it did, the
scope of that right was not clearly established at the time.” Blankenhorn v. City of Orange,
485 F.3d 463, 471 (9th Cir. 2007). Thus, the facts must be viewed in Plaintiffs’ favor.
However, once the facts taken in the light most favorable to the party asserting the
injury show violation of a constitutional right, a court is to examine whether the right at
issue was clearly established at the time of the defendant’s alleged misconduct such that it
would be clear that his conduct was unlawful in the situation he confronted. See Young v.
Cty. of Los Angeles, 655 F.3d 1156, 1167-68 (9th Cir. 2011). “A clearly established right
is one that is ‘sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.’” Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (quoting
3

As observed in Morales v. Fry, 873 F.3d 817, 823 (9th Cir. 2017):
In recent years, the [Supreme] Court has tightened the inquiry [as to qualified immunity]
to focus closely on an analysis of existing precedent. In 2011, the Court clarified that while
it “do[es] not require a case directly on point . . . existing precedent must have placed the
statutory or constitutional question beyond debate,” such that “every” reasonable official
− not just "a" reasonable official − would have understood that he was violating a clearly
established right. Ashcroft [v. al-Kidd], 563 U.S. at 741 (emphasis added). In later cases,
the Court reiterated that clearly established law should not be defined “at a high level of
generality” and that the “dispositive question” is “whether the violative nature of particular
conduct is clearly established.” See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 308, 193 L. Ed.
2d 255 (2015) (per curiam) (quoting Ashcroft, 563 U.S. at 742).
4

Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012)); see also Motley, 432 F.3d at 1077
(“Finally, even if the violated right was clearly established,…it may be difficult for a police
officer fully to appreciate how the legal constraints apply to the specific situation he or she
faces. Under such a circumstance, ‘[i]f the officer’s mistake as to what the law requires is
reasonable,…the officer is entitled to the immunity defense.”) (quoting Saucier, 533 U.S.
at 205); Sjurset v. Button, 810 F.3d 609, 616 (9th Cir. 2015). But see Morales v. Fry, 873
F.3d 817, 824-25 (9th Cir. 2017) (characterizing, as “explicitly repudiated by the Supreme
Court,” the Ninth Circuit’s prior “qualified immunity method of analysis evoking ‘double
reasonableness’”). As a result, as it is frequently-phrased, this “immunity protects ‘all but
the plainly incompetent or those who knowingly violate the law.’” White v. Pauly, 137
S.Ct. 548, 551 (2017) (quoting Mullenix, 136 S.Ct. at 308); see also Sheehan v. City & Cty.
of S.F., 135 S.Ct. 1765, 1774 (2015).
For a legal principle to be “clearly established,” it “must have a sufficiently clear
foundation in then-existing precedent. The rule must be ‘settled law,’ which means it is
dictated by ‘controlling authority’ or ‘a robust consensus of cases of persuasive authority.’
It is not enough that a rule is suggested by then-existing precedent.” D.C. v. Wesby, 138
S.Ct. 577, 589-90 (2018) (“Wesby”) (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)
(per curiam) and Ashcroft v. al-Kidd, 563 U.S. 731, 741-42 (2011)); see also Plumhoff, 134
S.Ct. at 2024 (referencing the absence of “any case – let alone a controlling case or a robust
consensus of cases” – that clearly established the proposed right); Boyd v. Benton Cty., 374
F.3d 773, 781 (9th Cir. 2004) (“[I]n the absence of binding precedent, we ‘look to whatever
decisional law is available to ascertain whether the law is clearly established for qualified
immunity purposes, including decisions of state courts, other circuits, and district courts.’”)
(quoting Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003))4.
Crucially, it is Plaintiffs who bear the burden of proving the existence of a clearly
established right as of the time of the allegedly impermissible conduct. See Plumhoff, 134
S.Ct. at 2023; Maraziti v. First Interstate Bank of California, 953 F.2d 520, 523 (9th Cir.
4
Boyd’s formulation of the permissible scope of authority that may be considered still appears to be good
law. See, e.g., Estate of Levingston v. Cty. of Kern, No. 1:16-cv-00188-DAD-JLT, 2018 WL 1335410, *9
(E.D. Cal. Mar. 15, 2018). But see S.B. v. Cty. of San Diego, 864 F.3d 1010, 1016 (9th Cir. 2017)
(“‘[D]istrict court decisions – unlike those from the courts of appeals – do not necessarily settle
constitutional standards or prevent repeated claims of qualified immunity.’”) (quoting Hamby v. Hammond,
821 F.3d 1085, 1095 (9th Cir. 2016)).

5

1992); Emmons v. City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019); Olivier v. Baca,
913 F.3d 852, 860 (9th Cir. 2019); see also Reese v. Cty. of Sacramento, 888 F.3d 1030,
1038 (9th Cir. 2018) (“We agree with the district court that Reese has not identified any
sufficiently analogous cases showing that under similar circumstances, a clearly
established Fourth Amendment right against the use of deadly force existed at the time of
the shooting.”); Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 947 (9th Cir. 2017)
(“In typical cases, the plaintiff ‘identif[ies] a case where an officer acting under similar
circumstances as [the defendant] was held to have violated the Fourth Amendment.’ In the
absence of ‘a case directly on point, we compare ‘specific factors’ relevant to the excessive
force inquiry to determine whether a reasonable officer would have known that the conduct
in question was unlawful.’”) (quoting S.B. v. Cty. of San Diego, 864 F.3d 1010, 1015-16
(9th Cir. 2017) and Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)). Equally
(and perhaps more) critically, the Supreme Court has – especially in recent years –
“‘repeatedly told courts – and the Ninth Circuit in particular – not to define clearly
established law at a high level of generality.’” Kisela, 138 S.Ct. at 1152 (quoting Sheehan,
135 S.Ct. 1765, 1775-76 (2015)); see also White, 137 S.Ct. at 552 (“Today, it is again
necessary to reiterate the longstanding principle that ‘clearly established law’ should not
be defined ‘at a high level of generality.’”) (quoting Ashcroft, 563 U.S. at 742); Mullenix,
136 S.Ct. at 308; Sheehan, 135 S.Ct. at 1776 (“Qualified immunity is no immunity at all if
‘clearly established’ law can simply be defined as the right to be free from unreasonable
searches and seizures.”); Wesby, 138 S.Ct. at 590. Instead, “the clearly established law
must be ‘particularized’ to the facts of the case.” White, 137 S.Ct. at 552.
The level of specificity the Supreme Court requires is relatively considerable. For
instance, in Mullenix – though dealing with a factual situation far afield from what is
involved here – the Supreme Court rejected the Fifth Circuit’s formulation of a clearly
established rule as being “that a police officer may not ‘use deadly force against a fleeing
felon who does not pose a sufficient threat of harm to the officer or others.’” 136 S.Ct. at
308-09 (quoting Luna v. Mullenix, 773 F.3d 712, 725 (5th Cir. 2014)). Instead, it required
that the “clearly established” analysis confront the fact that the officer in question
“confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed
vehicular flight, who twice during his flight had threatened to shoot police officers, and

6

who was moments away from encountering an officer at Cemetery Road.” Id. at 309. It
then distinguished other “excessive force cases involving car chases” by emphasizing
various, relatively granular, distinctions. See id. at 309-10; see also Wesby, 138 S.Ct. at
590-91 (“We start by defining ‘the circumstances with which [the officers] w[ere]
confronted.’ The officers found a group of people in a house that the neighbors had
identified as vacant, that appeared to be vacant, and that the partygoers were treating as
vacant. The group scattered, and some hid, at the sight of law enforcement. Their
explanations for being at the house were full of holes. The source of their claimed
invitation admitted that she had no right to be in the house, and the owner confirmed that
fact.”) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); Sheehan, 135 S.Ct. at
1777 (“The panel majority concluded that [certain specified cases] ‘would have placed any
reasonable, competent officer on notice that it is unreasonable to forcibly enter the home
of an armed, mentally ill suspect who had been acting irrationally and had threatened
anyone who entered when there was no objective need for immediate entry.’ But even
assuming that is true, no precedent clearly established that there was not ‘an objective need
for immediate entry’ here.”) (quoting 743 F.3d at 1229); Vos v. City of Newport Beach,
892 F.3d 1024, 1035 (9th Cir. 2018) (“Here, officers confronted a reportedly erratic
individual that took refuge in a 7-Eleven, cut someone with scissors, asked officers to shoot
him, simulated having a firearm, and ultimately charged at officers with something in his
upraised hand. The relevant inquiry is whether existing precedent placed the conclusion
that officers acted unreasonably in these circumstances ‘beyond debate.’”) (quoting
Mullenix, 136 S.Ct. at 309); Reese, 888 F.3d at 1039 (“Critically, Reese points to no case
that considered the relevant question whether Deputy Rose, having come within striking
distance of a suspect who had held a knife a fraction of a second before, was objectively
unreasonable in using deadly force before determining whether the suspect still possessed
the knife.”); Estate of Lopez by and through Lopez v. Gelhaus, 871 F.3d 998, 1018 n.17
(9th Cir. 2017).
The Court has reviewed all of Plaintiffs’ filings that might be understood as
contributing to a timely opposition to this motion. See Docket Nos. 121-24, 130-31. The
only attention that it perceives Plaintiffs having given the issue of qualified immunity is a
single sentence in their filing on August 21, 2019, in which they state “Finally Defendants

7

assert qualified immunity as to Plaintiff’s claims.” Docket No. 131, at 8:17. That is the
entirety of Plaintiffs’ consideration of the topic of qualified immunity – in other words,
there is no discussion of clearly-established law whatsoever.
Pro per plaintiffs are not excepted from the requirements inherent in a summary
judgment motion. See Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018); Thomas v.
Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010); Bias v. Moynihan, 508 F.3d 1212, 1219 (9th
Cir. 2007) (rejecting argument that “as a pro se litigant the district court should have
searched the entire record to discover whether there was any evidence that supports her
claims” because “[a] district court does not have a duty to search for evidence that would
create a factual dispute” and “[a] district court lacks the power to act as a party’s lawyer,
even for pro se litigants”); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on
other grounds, Lacey v. Maricopa Cty., 693 F.3d 896, 925-28 (9th Cir. 2012) (en banc).
They have plainly failed their burden of identifying clearly established law. Therefore,
even if the Court were to assume that Defendants had engaged in one or more violations
of Constitutional rights for purposes of one of the steps set out in Saucier, Plaintiffs’
Section 1983 claim could not proceed beyond this stage because of their failure at the other
step.
In sum, the Court would grant Defendants’ motion as to Plaintiffs’ Section 1983
claim because of Plaintiffs’ wholesale failure to carry their burden of identifying clearly
established law, as understood by the Supreme Court, in order to be able to overcome
Defendants’ qualified immunity defense.
C. General Negligence – Wrongful Death
Defendants present at least two arguments that might dispose of (or at least might
be germane to disposition of) Plaintiffs’ claim for general negligence – wrongful death:
that Valerie lacks standing to sue for wrongful death and that the only claim submitted in
attempted compliance with California’s government claim presentation statutes was a
personal-capacity claim on Valerie’s behalf only. Whatever might be the proper resolution
of those arguments, however, Defendants also argue that once Plaintiffs’ Section 1983
claim is resolved, the Court should decline supplemental jurisdiction over the remainder of
the case and allow Plaintiffs to pursue it in California state court. The Court agrees with
this last suggestion.

8

When federal claims are resolved at or before the summary judgment stage, the
Supreme Court has indicated that it may be error to maintain supplemental jurisdiction over
related state-law claims. See also 28 U.S.C. § 1367(c)(3) (“The district courts may decline
to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district
court has dismissed all claims over which it has original jurisdiction.”); United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are
dismissed before trial, even though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.”); Sanford v. MemberWorks, Inc., 625 F.3d 550, 561
(9th Cir. 2010); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc)
(noting that “state law claims ‘should’ be dismissed if federal claims are dismissed before
trial,” though it is not true that they “must” be dismissed). In light of the Court’s disposition
of Plaintiffs’ Section 1983 claim, that would be the situation here if the Court continued to
maintain jurisdiction over Plaintiffs’ general negligence – wrongful death claim. In
addition, this case is only before this Court following its transfer from the Eastern District
of California due to an over-loaded docket in that District. Declining supplemental
jurisdiction over this last claim at this stage will enable 1) the parties to litigate this action,
if they so choose, in a venue closer to where it was originally-filed, and 2) the state courts
to address the issues of state law Defendants raise as a means to potentially barring
Plaintiffs’ remaining claim. See Gibbs, 383 U.S. at 726 (“Needless decisions of state law
should be avoided both as a matter of comity and to promote justice between the parties,
by procuring for them a surer-footed reading of applicable law.”).
Considering the grounds for the Court’s resolution of this motion, the Court has no
need to resolve Defendants’ evidentiary objections filed on September 19, 2019, in Docket
No. 135-2.5
D. Conclusion
For the reasons stated above, the Court grants Defendants’ motion with respect to
Plaintiffs’ Section 1983 claim and dismisses without prejudice Plaintiffs’ general
negligence/wrongful death claim pursuant to 28 U.S.C. § 1367(c)(3). Plaintiffs may pursue
that latter claim in an appropriate state court, if they are so-inclined.

5

The Court dismisses any remaining Doe defendants due to Plaintiffs’ apparent failure to timely serve
them following filing the FAC. See Fed. R. Civ. P. 4(m).
9