Cunio v. Brown et al

Filing 26

ORDER: Granting Motion to Dismiss for Failure to State a Claim 20 . Signed on 5/27/2015 by Magistrate Judge Thomas M. Coffin. (plb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

STERLING RAY CUNIO,

Case No. 6:14-cv-01647-TC

Plaintiff,

ORDER

v.
KATE BROWN, in her Official
Capacity as Governor of the
State of Oregon; COLETTE S.
PETERS, in her Official
Capacity as the Director of
the Oregon Department of
Corrections; KRISTIN WINGESYANEZ, in her Official
Capacity as Chairperson,
Oregon Board of Parole and
Post-Prison Supervision;
jointly and severally,
Defendants.
COFFIN, Magistrate Judge:
Plaintiff Sterling Cunio,

one of five individuals under the

age of 17 convicted of aggravated murder between 1989 and 1995,
filed a complaint in this Court under 42 U.S.C.
Kate

Brown,

Colette

Peters,

and

Kristin

§

1983. Defendants

Winges-Yanez

move

to

dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b) (1)
and Fed.

R.

Civ.

Page 1 - ORDER

P.

12 (b) (6).

For the reasons set forth below,

defendants' motion is granted.
BACKGROUND

Plaintiff was born in April 1977. First Am. Compl.
45.

("FAC") 'li

In

birthday,

January

1994,

three

months

shy

of

his

17th

plaintiff kidnaped, robbed, and killed two people with 18-year-old
Wilford Hill.

Id.

at

'li

4 9;

Hallman

Decl.

1. 1

Ex.

Following

a

stipulated facts trial, the criminal court convicted plaintiff of
two

counts

of

aggravated

murder,

two

counts

of

kidnaping, and two counts of first-degree robbery,

first-degree
and sentenced

him to two consecutive sentences of life with parole, followed by
partially-consecutive,

upward-durational

departure

sentences

totaling 280 months' imprisonment. FAC 'll'll 50-52; Hallman Decl. Ex.
2.

At the time of plaintiff's conviction, Oregon had generally
replaced its indeterminate sentencing and parole scheme with a
system of determinate sentencing based on guidelines. State ex rel.
Engweiler

v.

Nevertheless,

Felton,

350

Or.

592,

598,

260

P.3d

448

(2011).

juvenile aggravated murderers continued to receive

indeterminate life sentences with the possibility of parole until
1995. Id.; see also White v. Belleque, 2010 WL 5625800, *1 (D.Or.
Oct.

21,

2010),

1

adopted by .2011 WL 208262

(D.Or.

Jan.

21,

2011)

In moving for dismissal, defendants submitted documents
relating to the underlying state court proceedings. See generally
Hallman Decl. Plaintiff furnished some of the same documents, as
well as additional materials regarding his sentencing and
appeals; where duplicative, the Court cites to defendants'
submissions. See generally O'Connor Decl. The parties' evidence
is subject to judicial notice as plaintiff's complaint either
incorporates those documents by reference or they are part of the
public record and not subject to reasonable dispute. Fed. R.
Evid. 201; Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir.
2001)·.
Page 2 - ORDER

("Oregon law specifically provided that

juveniles who committed

aggravated murder when under age seventeen could not be sentenced
to death, life without parole (true life) or to a mandatory thirty
year minimum sentence, the three sentencing options available for
adults convicted of such an offense [such that] life imprisonment
with no mandatory minimum" was the only available sentencing option
in 1994)

(citation omitted). In other words, Oregon law applied a

bifurcated

sentencing

scheme

to

individuals

under

the

age

of

seventeen convicted in a single criminal judgment of aggravated
murder and other non-murder felonies between 1989 and 1995.
Although
Supervision

the

Oregon

("Board")

Board

of

Parole

and

Post-Prison

controls the amount of time an individual

spends in prison for an indeterminate sentence, it did not have any
rules governing parole decisions until 1999. Engweiler, 350 Or. at
599. The Board's first set of juvenile aggravated murderer rules
("JAM Rules") required it to conduct a prison term hearing and set
a "review date" for each prisoner, which would determine a schedule
for reviews and could ultimately result in a parole release date.
Id.

The

review

considered

the

date

was

crime's

set

on

severity

the
and

basis
the

of

a

matrix

inmate's

that

criminal

history/risk assessment. Id. If the Board denied parole, the inmate
could petition for review after 480 months (40 years) to establish
that he was capable of rehabilitation within a reasonable period of
time. Id.
In

1999,

plaintiff

the

pursuant

Board
to

conducted

the

JAM

a

Rules

prison
and

term

hearing

determined

that

for
the

applicable unified matrix range was "life." Hallman Decl. Ex. 3. As
a result, plaintiff could not ask the Board to review his parole
Page 3 - ORDER

eligibility until 2039 - ten years longer than adults convicted of
the

same

crime

and

sentenced

to

the

mandatory

minimum.

Upon

administrative review, the Board upheld its decision and the Oregon
Court

of

Appeals

subsequently

dismissed

plaintiff's

petition.

Hallman Decl. Exs. 4-5.
In 2011,

the Oregon Supreme Court invalidated the 1999 JAM

Rules, holding that the Board did not have authority to require an
intermediate review process where the prisoner must demonstrate
that he is capable of rehabilitation before he is deemed eligible
for parole consideration. Engweiler, 350 Or. at 616. Instead, the
Board was authorized to conduct a parole hearing regarding juvenile
aggravated murderers and either set an initial release date or
explain why it

chose not

to

do

so.

Id.

at

630.

Based on the

Engweiler decision, the Board promulgated a new set of JAM Rules,
which,

in pertinent part,

required it to conduct a "prison term

hearing" and set a "projected parole release date" for inmates who
committed aggravated murder between 1989 and 1995. Or. Admin. Rule
255-032-0005(4).

Such

individuals

are

no

longer

required

to

demonstrate that they are capable of rehabilitation before the
Board may consider them eligible for parole; rather, the projected
parole

release

date

is

determined

"in

accordance

with

the

guidelines and matrix that apply with respect to the date of the
crime." Id.
In 2012, plaintiff received a prison term hearing under the
revised JAM Rules,

during which the

Board determined that

the

applicable matrix range was "576 months to life." Hallman Decl. Ex.
6,

at 2.

The Board found that two aggravating factors,

mitigating

factor

Page 4 - ORDER

and one

("evidence of reduced responsibility" due

to

age), existed at the time of plaintiff's 1995 entry into custody.
Id.; see also O'Connor Decl. Ex. 4, at 4-6 (Board describing its
procedures at plaintiff's 2012 prison term hearing). Based on that
evidence,
years)

the Board set a unified prison term of 576 months

- i.e. 288 months

(24 years)

(48

for each count of aggravated

murder. Hallman Decl. Ex. 6, at 2. As such, plaintiff will not be
up for parole until his exit interview in 2042, which will be his
first

opportunity

to

present

evidence

rehabilitation. Id.; FAC

~~

Plaintiff's

determinate

remaining

of

maturation

or

40-43, 57; Or. Admin. R. 255-060-0006.
sentences

are

consecutive

thereto; accordingly, he will only begin serving those sentences
once

paroled.

Hallman

Decl.

Ex.

6,

at

2.

In

addition

sentences arising from the January 1994 incident,
sentenced to 7 0 months'
sentences,

for

the

imprisonment,

second-degree

to

the

plaintiff was

consecutive to all other

assault

he

incarcerated at the age of 20. Id. at 4; FAC

~~

committed

while

55-58.

Plaintiff timely sought administrative review of the Board's
2012 decision, arguing, in pertinent part, that the Board violated
the

Eighth

and

Fourteenth

Amendments

by

refusing

evidence of rehabilitation and by "impos[ing]
effectively means
Decl.

Ex.

decision,
Appeals,

7,

at

[he]
2-3.

In May 2014,

his

consider

a prison term that

will spend his life in prison." Hallman

plaintiff filed
renewing

to

a

after the Board upheld its

petition with

constitutional

the Oregon Court of

arguments.

See

generally

Hallman Decl. Exs. 8-9.
In October 2014, plaintiff commenced a lawsuit in this Court
under

42

U.S.C.

§

1983,

alleging

that

"Oregon's

sentencing scheme creates a de facto life sentence in
Page 5 - ORDER

bifurcated

violatio~

of"

the Eighth and Fourteenth Amendments. 2 Pl.'s Resp. to Mot. Dismiss
18;

FAC

80-87.

':![':![

In

November

2014,

briefing

relating

to

the

Board's prison term decision was completed before the Oregon Court
of Appeals, however, that case has not yet been set for submission
or argument.

3

O'Connor Decl. Ex. 8, at 21; Hallman Decl. Ex. 10. In

March 2015, defendants filed the present motion to dismiss.
STANDARDS

Where the court lacks subject-matter jurisdiction, the action
must be dismissed. Fed. R. Civ. P. 12(b) (1). The party seeking to
invoke

the

jurisdiction

of

the

court

bears

the

burden

of

establishing that such jurisdiction exists. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). In resolving a Fed. R. Civ. P.
12(b) (1)

motion,

subject-matter
necessary:

the

court

jurisdiction and

may

hear

resolve

evidence

factual

regarding

disputes

where

"no presumptive truthfulness attaches to plaintiff's

allegations, and the existence of disputed material facts will not
preclude

the

[court]

from evaluating

for

itself the merits

jurisdictional claims." Kingman Reef Atoll Invs.,

LLC v.

of

United

States, 541 F.3d 1189, 1195 (9th Cir. 2008).
Similarly, where the plaintiff "fails to state a claim upon
which relief can be granted," the court must dismiss the action.
Fed.

R.

Civ.

P.

12 (b) (6).

To survive a motion to dismiss,

the

complaint must allege "enough facts to state a claim to relief that
2

Plaintiff subsequently amended his complaint but did not
substantively alter the nature of his claims.
3

Plaintiff also has an appeal pending from the circuit
court's denial of his petition for post-conviction relief, in
which he alleged identical constitutional violations. FAC ':![ 21;
O'Connor Decl. Exs. 9-16. As both parties recognize, that case' is
not relevant to these proceedings. Defs.' Mot. Dismiss 6 n.4.
Page 6 - ORDER

is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). For purposes of a Fed. R. Civ. P. 12(b) (6) motion,
the complaint is liberally construed in favor of the plaintiff and
its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422,
1424 (9th Cir. 1983). Bare assertions that amount to nothing more
than a

"formulaic recitation of the

elements" of a

claim "are

conclusory and not entitled to be assumed true." Ashcroft v. Iqbal,
556 U.S.
relief,

662,

681

the

(2009). Rather, to state a plausible claim for

complaint

"must

contain

sufficient

allegations

of

underlying facts" to support its legal conclusions. Starr v. Baca,
652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101
(2012) .
DISCUSSION

Defendants assert that dismissal is warranted under Younger v.
Harris,
state

401 U.S.
court

37

(1971),

proceeding.

in light of plaintiff's coterminous

Alternatively,

defendants

argue

that

plaintiff's complaint fails to state a claim as a matter of law.
Absent

"exceptional

circumstances,"

the

Younger

doctrine

precludes federal courts sitting in equity from enjoining "pending
state criminal proceedings" or state "civil enforcement actions
akin to criminal proceedings." ReadyLink Healthcare, Inc. v. State
Comp.
and

Ins.

Fund,

internal

754 F.3d 754,

quotations

758-59

omitted).

district court is required if:

(9th Cir. 2014)

Abstention

by

(citations

the

federal

(1) the state proceeding is ongoing;

(2) that proceeding implicates important state interests; (3) there
is an adequate opportunity to raise constitutional challenges in
the state proceeding; and (4) the requested relief would enjoin or
have

the

practical

Page 7 - ORDER

effect

of

enjoining

the

ongoing

state

proceeding.

Id.

(citations

omitted);

see

also

California, 404 F.3d 1106, 1111-13 (9th Cir. 2005)

Canatella

v.

(summarizing the

Younger doctrine's impact on federal jurisdiction).
Initially,

plaintiff's appeal of the Board's 2012 decision

represents the type of state proceeding covered by Younger. Maney
v.

Winges-Yanez,

2014

(citations omitted).

WL

5038302,

8,

2014)

plaintiff "acknowledges

Furthermore,

*3

(D.Or.

Oct.

[that,

identical to this case,] his arguments [before the Oregon Court of
Appeals rely on] the Eighth and Fourteenth Amendments and recent
case

law

Dismiss

interpreting

23;

asserting

those

provisions."

see also Hallman Decl.

in

his

appellate

brief

Ex.

Pl.'s

9,

that

at

he

Resp.

43-52

has

no

to

Mot.

(plaintiff
meaningful

opportunity for release due to the combination of his determinate
sentences and the Board's 2012 decision). Plaintiff also does not
dispute that the first,

second,

and fourth Younger elements are

met. Pl.'s Resp. to Mot. Dismiss 19-28; Gilbertson v. Albright, 381
F. 3d 965, 982-83 (9th Cir. 2004)

(en bane); Maney, 2014 WL 3778309

at *7. This case therefore hinges on the third Younger factor or
the existence of exceptional circumstances.
I.

Adequate Opportunity to Raise Constitutional Challenges
Plaintiff argues that "[t]he unique application of Oregon's

bifurcated sentencing scheme [prevents] state court review [of] the
merits" of his allegations regarding the combined effect of his
indeterminate

and

determinate

sentences.

Dismiss 21-22. According to plaintiff,

Pl.'s

Resp.

to

Mot.

the Board "relied on the

procedural bars caused by the state's bifurcated sentencing scheme
to

avoid

grappling

with

the

federal

presented in the case." Id. at 24.
Page 8 - ORDER

constitutional

questions

Plaintiff's argument is premised on two misconceptions. First,
the Board did not refuse to consider his constitutional claims and
has not raised any procedural bars in relation thereto. See Defs.'
Mot.

Dismiss 9 (defendants are neither uare aware of" nor assert

any uprocedural bar that would prevent plaintiff from obtaining a
decision on the merits
record

before

the

Court

in the

state proceeding") .

demonstrates

that

the

Indeed,

Board

the

rejected

plaintiff's claims on the merits and is defending them before the
Oregon Court of Appeals on the merits. See Hallman Decl. Ex. 8, at
1-2

(Board's

claims:

initial

assessment

of

plaintiff's

"[y] ou argue that this prison term,

consecutive

(sentencing

imprisonment
remaining

[but

your]

combined with your

guidelines)

sentences

argument

not

allegations

are

is
not

constitutional

amounts

persuasive

to

life

[and your]

supported by the

factual

record, are not sufficiently developed or explained in the review
request, are without merit, or some combination of these factors");
see also O'Connor Decl. Ex.
plaintiff's

pending

bars) . 4 Thus,

appeal,

7, at 27-29
asserting

(defendants'
no

relevant

response to
procedural

as defendants observe, while "the Board completely

lacks any authority to review or modify plaintiff's guidelines
sentences[,] that does not mean that the Board [or the Oregon Court
of Appeals cannot] consider the fact that plaintiff has 280 months
of guideline sentences consecutive to his two life terms as part of

4

An independent review of defendants' opposition reflects
one reference to a procedural bar concerning whether plaintiff
upreserved or exhausted his claim that the exclusion of evidence
about [his] institutional conduct or psychological evaluation was
inconsistent with OAR 255-035-0022(2) ."O'Connor Decl. Ex. 7, at
19, 28-29. This issue is unrelated to plaintiff's constitutional
claims and immaterial to the third Younger element.
Page 9 - ORDER

the

analysis

of

whether

the

prison

decision

term

was

constitutional." Defs.' Reply to Mot. Dismiss 4.
Second, this Court's review of sentencing and parole decisions
is bifurcated in precisely the
review.

It

is

same way as the Oregon courts'

well-established under

the Heck doctrine

that

a

plaintiff may not bring claims that lie "within the core of habeas
corpus" in a civil suit under 42 U.S.C.
757 F.3d 834, 840 (9th Cir. 2013)

§

1983. Thornton v. Brown,

(citation and internal quotations

omitted) . As such, "a person who is in state custody may not use

§

1983 to challenge the very fact or duration of confinement." Id. at
841

(citation and internal quotations omitted). Rather,

all such

claims must be brought under federal habeas corpus following the
exhaustion of state remedies. Preiser v. Rodriguez, 411 U.S. 475,
489-90 (1973). As plaintiff acknowledges, Oregon law prescribes a
similar procedure for seeking post-petition relief based on the
alleged unlawfulness of a conviction or sentence.
Mot. Dismiss 11-14; see also Or. Rev. Stat.

§

Pl.'s Resp. to

138.540 (a petition

for post-conviction relief is the "exclusive means" for challenging
the very fact or duration of confinement).
Conversely,

a

plaintiff

may

conditions of his confinement,
parole decision, under 42 U.S.C.
U.S.

74,

82-84

(2005).

bring

claims

regarding

the

or the procedures relating to a
§

1983. Wilkinson v. Dotson, 544

Oregon law likewise provides a mechanism

through which an inmate can challenge the constitutionality of a
parole decision or appeal a final order of the Board. Or. Admin. R.
255-080-0010 (5);

Or.

Rev.

Stat.

§

144.335 (1).

Upon review,

the

Oregon Court of Appeal may consider, amongst other things, whether
the

Board's

order

Page 10. ORDER

is

"[i] nconsistent

with

an

agency

rule,

an

officially stated agency position, or a prior agency practice" or
is "in violation of a constitutional or statutory provision." Or.
Rev. Stat.§§ 144.335(3), 183.482(8) (b)"; see also Dubinka v. Judges
of Superior Ct., 23 F.3d 218, 223-24 (9th Cir. 1994)
factor

met

where

the

"state

law

[does]

not

(third Younger

impose

procedural

barriers to raising the constitutional claims in the state court
proceedings")

( citation omitted) .

In sum, both Oregon and federal courts may consider whether a
prisoner's conviction or sentence is unconstitutional in only one
type

of ·proceeding:

habeas

corpus

at

the

post-conviction relief at the state level.
consider,

in a

separate type

lawfulness of detention,

federal

level

and

Both forums may also

of proceeding,

challenges

to

the

including to the constitutionality of a

parole decision. Plaintiff's pending case with the Oregon Court of
Appeals

and this

latter category.

42 U.S.C.

§ 1983 action both fall within the

Accordingly, plaintiff cannot show that the scope

of relief in this Court is broader, or even different,

from that

which he can receive before the state courts .. 5
Finally,
5

the

Court

notes

that

similar

constitutional

Plaintiff relies on Meredith v. Oregon, 321 F.3d 807 (9th
Cir. 2003) (as amended), in support of the proposition that
Oregon's administrative procedures erect procedural bars in
relation to his constitutional claims. As discussed herein, that
is simply not the case. Moreover, Meredith is distinguishable, as
that case involved entirely discrete and singular administrative
review procedures that rendered the plaintiff's state court
constitutional claims time-barred. Meredith, 321 F.3d at 810-20.
By contrast, there are no timeliness issues inherent to this case
and, unlike in Meredith, the Board did not prevent plaintiff from
presenting evidence regarding his constitutional claims. As a
result, the equitable and comity considerations underlying
Meredith have no application here. See Baffert v. Cal. Horse
Racing Bd., 332 F.3d 613, 620-21 (9th Cir. 2003) (declining
jurisdiction under Younger, and distinguishing Meredith, where
the state forum was not inadequate on timeliness grounds).
Page 11- ORDER

challenges to Board decisions have been held to nfall . . . within
the carefully defined boundaries" of Younger abstention. See Sopher
v. Washington, 2008 WL 4793173, *10 (D.Or. Oct. 30, 2008), aff'd,
370

Fed.Appx.

identical

846

(9th Cir.

constitutional

2010)

(where

challenges

is

the plaintiff raised

his

state

appeal

of

a

circuit court decision denying mandamus relief, Younger applied to
preclude the exercise of federal jurisdiction); see also McClure v.
Baker,

2008

abstention

WL

268361,

appropriate

*1-2
in

a

(D.Or.

Jan.

constitutional

29,

2008)

challenge

(Younger
to

Board

procedures); Nelson v. Murphy, 44 F.3d 497, 502 (7th Cir.), cert.
denied, 516 U.S. 1027 (1995)

(nan inmate already participating in

state litigation must make his stand there rather than attempt the
equivalent of federal-defense removal by filing an independent §
1983

suit").

adequate

Therefore,

opportunity

to

the Court
fairly

finds
and

that plaintiff has

fully

raise

his

an

federal

constitutional claims before the Oregon Court of Appeals.
II.

Other Exceptional Circumstances
Plaintiff contends that,

even if nthe four elements of the

Younger doctrine are satisfied,

the Younger abstention doctrine

does not apply because extraordinary circumstances render the state
court incapable of fairly and fully adjudicating
constitutional claims." Pl.'s Resp.

to Mot.

[his]

Dismiss 24

federal
(citation

and internal quotations omitted). Yet, beyond noting generally that
n[t]his case is the continuation of years of litigation resulting
from defendants' failure to comply with state and federal law when
deciding

how

to

determine

the

eligibility

for

release

of

[plaintiff] and the four other boys under 17 years old convicted of
aggravated murder in adult court," plaintiff does not specify in
Page 12- ORDER

what manner such circumstances are present. Id. at 24-25.
In any event, federal courts have "confined very narrowly" the
type

of

circumstances

under

which

federal

intervention

is

appropriate despite the existence of pending state criminal or
quasi-criminal proceedings. See Younger, 401 U.S. at 53-54 (federal
court may retain

jurisdiction where,

showing of "bad faith

[or]

for

instance,

there

is

harassment" by state officials,

a

the

state law involved is "flagrantly and patently violative of express
constitutional prohibitions," or there are other "extraordinary
circumstances in which the necessary irreparable
shown")
v.

injury can be

(citation and internal quotations omitted); see also Kugler

Helfant,

421 U.S.

(1975)

(" [t] he

course,

makes

very
it

117,

124-25,

nature

of

impossible

immediate,

extraordinary
to

situation that might create a

reh'g denied,

anticipate

421

U.S.

1017

circumstances,
and

define

of

every

sufficient threat of such great,

and irreparable injury as to warrant intervention in

state criminal proceedings . . . [nevertheless, such circumstances
must create] an extraordinarily pressing need for immediate federal
equitable relief, not merely in the sense of presenting a highly
unusual factual situation")
Here,

plaintiff

does

not

identify

the

substantial and imminent irreparable injury.
Pl.'s Resp.

to Mot.

Dismiss.

existence

of

any

See generally FAC;

He likewise does

not cite to any

source of law that clearly requires the Board to provide a release
hearing sooner than 2042,
6

6

such that the Court cannot conclude that

Plaintiff nonetheless does cite to White in support of the
proposition that the Board was required to give him a review
hearing. Pl.'s Resp. to Mot. Dismiss 15. Plaintiff's reliance on
this case is unpersuasive in two respects. First, the Board
Page 13- ORDER

the Board's decision clearly violated his constitutional rights.
Id. Further, plaintiff has not cited to, and the Court is not aware
of, any authority holding, either directly or by analogy, that a
delay in providing an aggravated murderer, who was also sentenced
to

other

serious

crimes

for

which

he

must

serve

time,

the

meaningful opportunity to present evidence of rehabilitation or
maturation

constitutes

the

kind

of

exceptional

circumstance

contemplated by Younger. Id.; see also Carden v. Montana, 626 F~2d
82, 8 3-8 4 (9th Cir. 198 0)

(allegations of a speedy trial violation

did not warrant federal intervention)

Thus,

that the Board wrongly denied him a

release

without

more,

preclude

application

of

the

plaintiff's belief
hearing does
Younger

not,

abstention

doctrine.
Because
exceptional

each

of

the

Younger

elements

circumstances are present,

this

are

met

and

no

Court must decline

jurisdiction over plaintiff's federal lawsuit. Moreover, dismissal
is the proper remedy as plaintiff is seeking only declaratory and
injunctive relief in these proceedings.

Gilbertson,

381 F.3d at

979-82. Defendants' motion is granted.

Ill
Ill
Ill
Ill

issued new JAM Rules after White on which it based its 2012
pris?n term decision; to date, no court has invalidated those
rules. Second, unlike the inmates in White, plaintiff was
convicted of two counts of aggravated murder, which resulted in
consecutive terms of imprisonment. White, 2010 WL 5625800 at *1.
Page 14- ORDER

CONCLUSION

Defendants' motion to dismiss
~ase

(doc. 20) is GRANTED and this

is DISMISSED.

Dated

this~day

United

Page 15- ORDER

of May 2015.

Judge