Ardds v. Hudge et al

Filing 24

ORDER (1) Denying Motion For Leave To File Supplemental Complaint As Moot; (2) Directing U.S. Marshal To Effect Service Of FAC; And (3) Denying Motion To Notify Director's Office (Dkt #s 20 , 21 , 23 ). Signed by Judge William Q. Hayes on 5/4/2017. (IFP package prepared on the First Amended Complaint.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANTOINE L. ARDDS,
CDCR No. P-59915,

Case No.: 3:16-cv-2904-WQH-BLM
ORDER: (1) DENYING MOTION
FOR LEAVE TO FILE
SUPPLMENTAL COMPLAINT AS
MOOT; (2) DIRECTING U.S.
MARSHAL TO EFFECT SERVICE
OF FAC; AND (3) DENYING
MOTION TO NOTIFY DIRECTOR’S
OFFICE

Plaintiff,

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vs.

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D. HODGE; L. ROMERO; D. PARAMO;
P. BARAMONTE; G. VALDOVINOS;
RENTERIA; C. GARDINEZ; McGEE;
SMITH,

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[ECF Doc. Nos. 20, 21, 23]

Defendants.
HAYES, Judge:

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I.

Procedural History

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Antoine L. Ardds (“Plaintiff”), currently incarcerated at the California Health Care

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Facility, located in Stockton, California, and proceeding pro se, initially filed a document

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entitled “Coloring Agreement” which the Court liberally construed to be an attempt to

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file a civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff also filed

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a Motion for Preliminary Injunctive Relief (ECF No. 6), as well as certified copies of his

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inmate trust account statement, which the Court liberally construed as a Motion to
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Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF Nos. 2, 15).

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In addition, Plaintiff filed a “Supplemental Complaint,” along with a “Motion to Dismiss

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Improperly Named Defendant” and a Motion for Leave to File a Supplemental

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Complaint. (ECF Nos. 8, 10, 14.)
On February 28, 2017, this Court granted Plaintiff’s Motion to Proceed IFP, denied

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his Motion for Preliminary Injunction, granted his Motion to Dismiss improperly named

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defendant and dismissed his Complaint for failing to state a claim upon which relief

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could be granted. (ECF No. 18.) On March 1, 2017, Plaintiff filed a Motion requesting

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leave to file a supplemental complaint. (ECF No. 20). However, on March 27, 2017,

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Plaintiff filed his First Amended Complaint (“FAC”). (ECF No. 21.) Therefore, his

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need to file a supplemental pleading is now moot.

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Finally, Plaintiff has filed a document entitled “Ex Parte Motion” in which he is

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requesting that this Court “notify the Director’s officer” regarding an alleged excessive

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force incident which occurred at his current place of confinement. (ECF No. 23.) The

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Court construes this as a request for injunctive relief.

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II.

Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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As the Court previously informed Plaintiff, because Plaintiff is a prisoner and is

Standard of Review

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proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C.

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§ 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a

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prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state

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a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203

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F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2));

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Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. §

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1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

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malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

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903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d

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680, 681 (7th Cir. 2012)).
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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

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relief [is] ... a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.
Plaintiff’s Allegations

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B.

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On August 19, 2016, Plaintiff was housed at the Richard J. Donovan Correctional

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Facility (“RJD”). (See FAC at 7.) At the time Plaintiff arrived at RJD, he had “pending

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disciplinary actions and appeals” from his previous place of incarceration, Salinas Valley

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State Prison (“SVSP”). (Id.) Specifically, Plaintiff was suing a correctional officer at

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SVSP, D. Lopez, who is not a defendant in this action. (Id.) Plaintiff claims D. Lopez

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sent emails and made phone calls to RJD prison officials which he claims “prompt[ed]

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sudden harassment from RJD officials in such a short period of time.” (Id.)

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Plaintiff was given priority to visit the prison law library on October 24, 2016.

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(Id.) Plaintiff went to the designated waiting area to be escorted to the law library. (Id. at

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8.) Plaintiff showed Defendant Hodge his pass for the law library. (Id.) However, as

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Plaintiff began to walk to the law library, he alleges Correction Officer D. Jones1 “began

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to make threats of sending killas” to Plaintiff’s cell. (Id.) Plaintiff alleges that Jones

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“kept dashing out insults” which caused Plaintiff to walk back to his unit instead of

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attending the law library. (Id.)
Plaintiff alleges that Defendant D. Hodge used the information on his Plaintiff’s to

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“go into the computer and look up Plaintiff’s conviction.” (Id.) Plaintiff further alleges

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that Hodge informed other correctional officers about the nature of Plaintiff’s conviction

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which caused “intentional harassments.” (Id.) After Plaintiff returned to his cell, he

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informed Correctional Officer Rucker2 “about the incidents with Defendant D. Hodge

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and Officer D. Jones.” (Id.) Plaintiff asked to speak with his psychologist due to

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“feeling depressed and paranoid.” (Id. at 9.) Correctional Officer Rucker reissued a pass

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for Plaintiff to return to the law library. (Id.)

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Plaintiff then approached Defendant Romero to give him his pass for the law

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library. (Id.) Plaintiff claims Romero took Plaintiff’s pass and “tore it up.” (Id.)

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Romero told Plaintiff to return to his unit. (Id.) Plaintiff did return to his unit and

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informed Correctional Officer Rucker of what had transpired with Romero. (Id.)

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Plaintiff again sought leave to meet with his psychologist. (Id.) However, Correctional

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Officer Rucker informed Plaintiff that he would have to wait until his scheduled time

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later that day because there was insufficient staff to escort him to his psychologist. (Id.)

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Later that afternoon, Plaintiff was again released to go to the prison law library.

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(Id.) He was being “searched by officers in the search line” when he claims that Hodge

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began to “yell out bits and pieces of commitment offense and prior convictions.” (Id. at

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9-10.) Hodge allegedly said in the presence of other inmates and staff, “you’re in here

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Correctional Officer Jones is not a named defendant in this action. (See FAC at 8.) Instead, Plaintiff
claims that he is mentioned “in favor of proof of arguments in the events that occurred” and the
“[d]ispute was handled with grace.” Id.

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Correctional Officer Rucker is not a named defendant.
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for ‘rape’ now, but what about 20 years ago?.” (Id.at 10.) Plaintiff claims that Hodge

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and Romero “once again refused to let Plaintiff walk through the yard gate for the law

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library” and instead, Plaintiff walked to the “E.O.P. Mental Health Building” for a “drop

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in visit with his psychiatrist.” (Id.) Plaintiff told his psychiatrist of the harassment by

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Hodge and Romero. (Id.)

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Seven days later, on October 31, 2016, Plaintiff attended a counseling session in

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which he informed his correctional counselor that he “needed to cut his session short, due

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to law library appointments.” (Id.) He informed Correctional Counselor Lee of the

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incidents with Hodge and Romero in the past and was issued a new pass to attend the law

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library. (Id. at 11.) Plaintiff then showed Romero his pass to the law library and claims

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that Romero again “snatched and tossed” the pass into his pocket. (Id.) Romero

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“instructed Plaintiff to return back to his unit” and Plaintiff asked Romero “why are you

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still harassing me?” (Id.) Plaintiff claims Romero responded by telling him that “if you

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don’t like it” file a grievance or “sue the Warden.” (Id.)

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Plaintiff went to see his psychologist to “inform” him of the “harassments and

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intimidate[ing] actions” of Romero and Hodge. (Id.) Plaintiff was “instructed to wait for

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an escort” and spoke to “Captain or Lieutenant Poladion”3 about the events with Romero

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and Hodge. (Id.)

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On November 7, 2016, Plaintiff “informed unit officers” of his priority pass to the

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law library. (Id. at 12.) The unit officers called Defendant Valdovinos to escort Plaintiff

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to the law library but Valdovinos told the unit officers that the law library was “closed

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due to it being searched.” (Id.) However, Plaintiff claims this was not true and the law

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library was open. (Id.) Plaintiff alleges that he has been “red flagged” because of his

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“criminal history.” (Id.)

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Plaintiff claims that he brought his complaints to Defendants McGee, Smith,

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Captain Poladion is not a named defendant in this action.
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Gardinez, as well as Sergeant Kane and Wilbourn.4 (Id.) Plaintiff wrote letters to

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Defendant Paramo, Warden for RJD, regarding his complaints of staff misconduct. (Id.

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at 13.) Plaintiff claims he received a response on December 19, 2016 and February 21,

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2017 “acknowledging Plaintiff’s staff misconduct complaints against the defendants and

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their supervisors.” (Id.)

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Defendants Baramonte, Smith, McGee, and Gardinez were informed of Plaintiff’s

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complaint through the administrative grievance process. (Id.) However, Plaintiff alleges

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that these Defendants ignored Plaintiff’s complaints. (Id.) Plaintiff further claims that he

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was only housed at RJD for 100 days and therefore, these acts taken by Defendants

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“could be in retaliation for the civil actions” filed by Plaintiff against SVSP officials.

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(Id.) Plaintiff maintains that Defendants are part of a “tight knit social group” that refer

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to themselves as the “C Facility ‘Green Wall’” which Plaintiff claims is a “correctional

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officers prison gang.” (Id. at 14.)
On December 5, 2016, Plaintiff was returning from a “mental health treatment

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group” when he was “summoned” by a “unit clerk” to observe the “misuse of force by

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defendants G. Valdovinos and L. Romero upon inmate Hance.” (Id. at 15.) Plaintiff

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claims he observed Valdovinos and Romero “snatch and drag” this inmate and “slam”

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him into a security door. (Id.) Plaintiff alleges Hance later came to him to request his

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assistance as Hance claimed he was being sent to administrative segregation (“Ad-Seg”)

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as a “cover up” for the alleged excessive use of force. (Id. at 16.) Plaintiff informed

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Hance that he would help him “document further harassments” from Valdovinos and

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Romero. (Id.) Later that morning, as Plaintiff and Hance were walking, he claims that

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Defendant Valdovinos “yelled out that inmate J. Hance was a child molester” in the

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presence of other inmates. (Id.)

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Plaintiff claims Valdovinos later retaliated against him for assisting Hance by

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Sergeants Kane and Wilbourn are not named defendants in this action.
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denying Plaintiff’s right to participate in his religious services on December 2, 2016. (Id.

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at 18.) Plaintiff showed Valdovinos his pass but claims Valdovinos “snatched it,” then

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“tore it up” and instructed Plaintiff to return to his cell. (Id.) Plaintiff further claims that

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Valdovinos from December 17, 2016 to January 3, 2017 began to “threaten and harass

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Plaintiff during his morning retrieval of his kosher meals.” (Id.) When Plaintiff objected,

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he claims Valdovinos told him that he could file a grievance but Valdovinos would

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prevail because he had “Lieutenants and Sergeants that will find [Plaintiff] guilty.” (Id.

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at 19.)

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On December 17, 2016, Plaintiff claims that in retaliation for informing prison

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officials of the alleged misconduct of Valdovinos, Romero, and Hodge, these Defendants

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used Plaintiff’s cell mate as an “instrument of attack to harm Plaintiff.” (Id.) Plaintiff

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alleges his cellmate “attempted to carry out an assault under the influence of speed or

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heroin.” (Id. at 20.) However, Plaintiff claims it was a “failed attempt.” (Id.)

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Correctional Officer Gomez responded to the altercation but was allegedly told by

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Defendants Smith, McGee, and Gardinez “not to document the incident” so that they

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could continue to “place abusive and assaultive inmates into his cell.” (Id.)

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Plaintiff was given a pass to participate in his “Mental Health Treatment group” on

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January 10, 2017 but was told by Romero to “get off my [expletive] dirt.” (Id.) Plaintiff

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claims he “did not engage in the negative outburst of playground behavior.” (Id. at 21.)

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As Plaintiff began to walk to his unit, Romero allegedly yelled out “Ardds is a rat and

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snitch, his friends are the Judge and D.A.’s office.” (Id.) Plaintiff also claims Romero

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told other inmates “if I catch any inmate speaking with [Plaintiff], I will personal come

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into your house (“cell”) and destroy your property.” (Id.) Plaintiff claims this caused

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him to have suicidal thoughts about “returning back to his cell [to] take a razor and cut

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his neck.” (Id.)

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Plaintiff’s cell mate was able to help him “calm down” and attend his mental

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health group. (Id.) Plaintiff told his psychologist of his claims and she informed him that

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he could wait until an EOP5 Sergeant could come to escort him to his cell. (Id. at 22.)

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However, Reteria and Romero escorted him and Plaintiff claims he was “pushed up

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against the wall and hand cuffed.” (Id.) While Plaintiff had been attending his group

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session, he alleges Reteria had “gone through” his legal folders in his cell and

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“destroyed” his documents. (Id.) Gardinez later told Defendants to “release Plaintiff

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back to his unit and give him back all of his property items.” (Id. at 23.) However,

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Plaintiff claims Reteria and Romero destroyed all of his legal papers and “refused to give

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Plaintiff his identification card.” (Id.)

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Plaintiff made another suicide attempt by using a razor to “slice and cut his neck.”

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(Id.) Plaintiff was transported to an outside hospital and claims that Romero was one of

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the escorting officer to “intentionally intimidate him” to not report the “previous events

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to mental health staff.” (Id. at 24.) Romero told him “not to return to ‘C’ facility if he

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knows what’s good for him.” (Id.) Plaintiff was later “transferred into RJD’s Mental

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Health crisis bed” and then transferred on February 7, 2017 to the California Health Care

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Facility in Stockton, California. (Id. at 25.)

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C.

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“Section 1983 creates a private right of action against individuals who, acting

42 U.S.C. § 1983

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under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

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Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

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and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

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deprivation of a right secured by the Constitution and laws of the United States, and (2)

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that the deprivation was committed by a person acting under color of state law.” Tsao v.

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Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

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Enhanced Out Patient
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Here, the Court finds Plaintiff’s FAC contains factual content sufficient to survive

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the “low threshold” for proceeding past the sua sponte screening required by 28 U.S.C.

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§§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir.

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2012); Iqbal, 556 U.S. at 678. Accordingly, the Court will direct the U.S. Marshal to

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effect service upon the Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The

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officers of the court shall issue and serve all process, and perform all duties in [IFP]

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cases.”); FED. R. CIV. P. 4(c)(3) (“[T]he court may order that service be made by a United

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States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma

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pauperis under 28 U.S.C. § 1915.”).

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D.

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While the Court has found that Plaintiff has alleged facts sufficient to survive the

Exhaustion

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sua sponte screening process, the Court must caution Plaintiff that this action may

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ultimately be dismissed for failing to properly exhaust his administrative remedies before

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bringing this action. A majority of Plaintiff’s claims are alleged to have arisen from

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events that occurred just a few days to weeks before he filed his initial Complaint and

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some of the claims are alleged to have arisen after he filed his initial Complaint.

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Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall

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be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other

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Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

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such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This

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statutory exhaustion requirement applies to all inmate suits about prison life, Porter v.

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Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief

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sought by the prisoner or the relief offered by the process. Booth v. Churner, 532 U.S.

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731, 741 (2001).

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“Proper exhaustion demands compliance with an agency’s deadlines and other

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critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006). “[T]o properly

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exhaust administrative remedies prisoners must ‘complete the administrative review

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process in accordance with the applicable procedural rules,’[ ]-rules that are defined not
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by the PLRA, but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199,

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218 (2007) (quoting Woodford, 548 U.S. at 88); see also Marella v. Terhune, 568 F.3d

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1024, 1027 (9th Cir. 2009) (“The California prison system’s requirements ‘define the

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boundaries of proper exhaustion.’”) (quoting Jones, 549 U.S. at 218). The Ninth Circuit

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has consistently held, however, “that the PLRA requires only that a prisoner exhaust

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available remedies, and that a failure to exhaust a remedy that is effectively unavailable

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does not bar a claim from being heard in federal court.” McBride v. Lopez, 807 F.3d 982,

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986 (9th Cir. 2015); Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010); Albino v. Baca,

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747 F.3d 1162, 1177 (9th Cir. 2014) (en banc), cert. denied sub nom. Scott v. Albino, 135

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S. Ct. 403 (2014)). “To be available, a remedy must be available ‘as a practical matter’; it

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must be ‘capable of use; at hand.’” Albino, 747 F.3d at 1171.

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Because the failure to exhaust is an affirmative defense, Defendants bear the

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burden of raising it and proving its absence. Jones, 549 U.S. at 216; Albino, 747 F.3d at

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1166. “In the rare event that a failure to exhaust is clear from the face of the complaint, a

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defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166.

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Otherwise, Defendants must produce evidence proving the Plaintiff’s failure to exhaust,

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and they are entitled to summary judgment under Rule 56 only if the undisputed

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evidence, viewed in the light most favorable Plaintiff, shows he failed to exhaust. Id.

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III.

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Motion for Preliminary Injunction
Plaintiff has also filed an “Ex Parte Motion to Notify the Director’s Office” which

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the Court has construed as a motion for preliminary injunctive relief. (ECF No. 23.) In

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this Motion, Plaintiff alleges that he has been subjected to excessive force while

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incarcerated at the California Health Care Facility in Stockton, California. (Id. at 1.) He

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also claims that he is being denied mental health care services at this facility. (Id. at 2.)

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Pursuant to FED. R. CIV. P. 65(a), “[t]he Court may issue a preliminary injunction

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only on notice to the adverse party,” and it may issue a TRO without written or oral

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notice only if “specific facts in an affidavit or a verified complaint clearly show that

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immediate and irreparable injury, loss, or damage will result to the movant before the
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adverse party can be heard in opposition.” FED. R. CIV. P. 65 (b)(1)(A).

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A federal district court may issue emergency injunctive relief only if it has

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personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit. See

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Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting that

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one “becomes a party officially, and is required to take action in that capacity, only upon

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service of summons or other authority-asserting measure stating the time within which

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the party served must appear to defend.”). The court may not attempt to determine the

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rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 U.S.

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229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 1983). Pursuant to

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Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties,” their

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“officers, agents, servants, employees, and attorneys,” and “other persons who are in

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active concert or participation.” FED. R. CIV. P. 65(d)(2)(A)-(C).

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In this matter, Plaintiff’s claims are against RJD officials and the claims Plaintiff

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raises in this motion are against individuals at his current place of incarceration and not

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the Defendants currently before this Court. Therefore, the Court cannot grant Plaintiff

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injunctive relief because it has no personal jurisdiction over the persons he seeks to

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enjoin. See FED. R. CIV. P. 65(a)(1), (d)(2); Murphy Bros., Inc., 526 U.S. at 350; Zepeda,

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753 F.2d at 727-28.

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VI.

Conclusion and Order

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For all the reasons explained the Court:

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1.

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DENIES Plaintiff’s Motion for Leave to File Supplemental Complaint as

moot (ECF No. 20).
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DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC (ECF No. 21)

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and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each named

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Defendant. In addition, the Clerk will provide Plaintiff with a certified copy of the

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February 28, 2016 Order granting Plaintiff’s Motion to Proceed IFP, a certified copy of

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his FAC and the summons so that he may serve the Defendants. Upon receipt of this “IFP

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Package,” Plaintiff must complete the U.S. Marshal Form 285s as completely and
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accurately as possible, and return them to the United States Marshal according to the

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instructions the Clerk provides in the letter accompanying his IFP package.

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3.

ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon

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the named Defendants as directed by Plaintiff on the U.S. Marshall Form 285s provided

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to him. All costs of that service will be advanced by the United States. See 28 U.S.C.

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§ 1915(d); FED. R. CIV. P. 4(c)(3).

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4.

ORDERS the served Defendants to reply to Plaintiff’s FAC within the time

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provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42

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U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the

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right to reply to any action brought by a prisoner confined in any jail, prison, or other

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correctional facility under section 1983,” once the Court has conducted its sua sponte

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screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a

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preliminary determination based on the face on the pleading alone that Plaintiff has a

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“reasonable opportunity to prevail on the merits,” the defendant is required to respond);

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and

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5.

ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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serve upon the named Defendants, or, if appearance has been entered by counsel, upon

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Defendants’ counsel, a copy of every further pleading, motion, or other document

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submitted for the Court’s consideration pursuant to FED. R. CIV. P. 5(b). Plaintiff must

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include with every original document he seeks to file with the Clerk of the Court, a

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certificate stating the manner in which a true and correct copy of that document was

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served on Defendants or their counsel, and the date of that service. See S.D. CAL. CIVLR

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5.2. Any document received by the Court which has not been properly filed with the

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Clerk or which fails to include a Certificate of Service upon Defendants may be

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disregarded.

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///

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///

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///
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IT IS FURTHER ORDERED that

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6.

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Plaintiff’s Ex Parte Motion to Notify Director’s Office (ECF No. 23) is

DENIED without prejudice.
Dated: May 4, 2017

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3:16-cv-2904-WQH-BLM