Rosas et al v. The City of Corpus Christi et al
Filing
82
ORDER Granting in part and Denying in part 46 Motion for Summary Judgment.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(srussell, 2)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
RAY ROSAS, et al,
Plaintiffs,
VS.
THE CITY OF CORPUS CHRISTI, et al,
Defendants.
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December 27, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 2:17-CV-70
ORDER ON THE CITY OF CORPUS CHRISTI’S
MOTION FOR SUMMARY JUDGMENT
After an investigation, the Corpus Christi Police Department (CCPD) sought the
arrest of Santiago Garcia, Jr., a suspected drug dealer who had conducted illegal narcotics
transactions with a CCPD officer from the home of his grandmother, Virginia Rosas.
This action is based on injuries allegedly suffered in the course of a CCPD Special
Weapons and Tactics (SWAT) Team raid of the Rosas residence, involving the execution
of an arrest/search warrant on a no-knock basis using flash-bang distraction devices and a
full SWAT Team. Virginia Rosas and the other family members who were caught up in
the raid have sued the City of Corpus Christi, along with the SWAT Team officers,
complaining of excessive force, cruel and unusual punishment, unlawful arrest and
detention, malicious prosecution, and assault. D.E. 1.
Before the Court is the City of Corpus Christi’s motion for summary judgment,
seeking to eliminate all claims asserted against it. D.E. 46. Also before the Court are
Plaintiffs’ response and the City’s reply. D.E. 61, 76. For the reasons set out below, the
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Court GRANTS the motion and DISMISSES the claims addressed in the motion. A
single unaddressed claim appears to remain.
DISCUSSION
Pursuant to 42 U.S.C. § 1983, Plaintiffs allege constitutional claims against all
Defendants (the City and its police officers), without distinction, including:
1. Excessive force in the restraint, arrest, and custody of Plaintiffs;
2. Excessive force in deploying and using a flash-bang device, contrary to
CCPD policy, contrary to the manufacturer’s instructions, in the wrong
room, and without being able to see into the room to assess risks;
3. Cruel and unusual punishment of Plaintiff Ray Rosas during pretrial
detention, based upon false accusations and prolonged solitary
confinement;
4. Deliberate indifference to Plaintiff Ray Rosas’s medical condition while
in custody;
5. Unlawful seizure of Plaintiffs; and
6. Malicious prosecution.
D.E. 1. Pursuant to Texas state law, Plaintiffs again allege malicious prosecution against
all Defendants. As to the individual Defendants only, they allege the state law claim of
assault.1
Specifically as to the City of Corpus Christi, Plaintiffs allege:
1. Failure to supervise CCPD officers;
2. Failure to train CCPD officers;
3. Failure to discipline CCPD officers who violate policies and procedures;
and
4. Acquiescence in the unconstitutional behavior of CCPD officers,
including failure to discipline and creating a practice or custom of
unconstitutional police conduct with respect to all of the § 1983 claims
set out above.
1
Plaintiffs allege assault and battery. Under Texas law, an assault charge subsumes within its scope a charge of
battery. Tex. Penal Code § 22.01.
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In ten separate motions, Defendants each seek summary judgment dismissing the claims
against them. This Order addresses only the motion filed by the City.
A. Malicious Prosecution
The City seeks summary judgment on the malicious prosecution claim brought
through § 1983 because there is no freestanding constitutional right to be free from
malicious prosecution. Castellano v. Fragozo, 352 F.3d 939, 942, 945 (5th Cir. 2003)
(en banc). Rather, claims for wrongful pretrial seizure must be pursued under the Fourth
Amendment; claims for the manufacture of evidence and use of that evidence, along with
reliance on perjured testimony to obtain a conviction, are Fourteenth Amendment due
process claims. They are not malicious prosecution claims that attempt to give state law
elements constitutional proportions. Id.
Plaintiffs have not briefed any response to this issue and the City is correct in its
analysis of the federal claim. Consequently, the court GRANTS IN PART the motion for
summary judgment and DISMISSES the federal malicious prosecution claim as alleged
against the City. However, the City’s motion does not challenge the Texas state law
claim for malicious prosecution and Plaintiffs’ response is silent on that issue. While it is
unclear whether Plaintiffs intended to make the state law claim against the City, its
separate nature precludes the Court from addressing it on the current briefing. See
generally, DeLeon v. City of Dallas, 141 F. App'x 258, 263 (5th Cir. 2005) (while
Castellano precludes a federal malicious prosecution claim, it does not affect a state law
claim, which will not be disturbed absent proper briefing).
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B. Cruel and Unusual Punishment
Defendant City of Corpus Christi seeks summary judgment on the cruel and
unusual punishment claim brought under the Eighth Amendment because Plaintiffs were
pretrial detainees and that particular claim applies only to convicted prisoners. Hare v.
City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996) (basic human needs of a pretrial
detainee are covered by procedural and substantive due process rights under the
Fourteenth Amendment). Plaintiffs did not respond to this narrow issue. The Court
agrees that Plaintiff Ray Rosas’s claim is for events that took place during his pretrial
detention and thus cannot be brought pursuant to the Eighth Amendment. Therefore,
summary judgment is GRANTED IN PART and the Eighth Amendment claim is
DISMISSED as against the City.
However, Plaintiff Ray Rosas may bring a claim for poor treatment as a state
pretrial detainee under the procedural and substantive due process provisions of the
Fourteenth Amendment. The City has not suggested that the removal of the reference to
the Eighth Amendment is fatal to the factual claim of poor treatment and the invocation
of constitutional guarantees, generally. Plaintiffs’ complaint regarding conditions of
confinement is cognizable, as the Fourteenth Amendment rights of a pretrial detainee are
at least as great as those of a convicted prisoner who sues under the Eighth Amendment.
City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).
While the City seeks to limit the rights of pretrial detainees to prohibitions against
self-incrimination and double jeopardy, courts have held that “the Due Process Clause of
its own force requires that conditions of confinement satisfy certain minimal standards
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for pretrial detainees . . . .” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 127
(1992). It is inappropriate for the conditions of confinement to operate to punish a person
who has not been convicted of a crime. Bell v. Wolfish, 441 U.S. 520, 531-40 (1979).
Yet those conditions may include restrictions attendant to the legitimate operational
concerns of an incarcerating facility. Id.
Therefore, despite the City’s challenge to the Eighth Amendment claim, the Court
–for the moment—retains Plaintiffs’ parallel complaint for due process violations during
Ray Rosas’ pretrial detention. Fact questions relevant to the assessment of such a claim
have not been briefed or shown to be eliminated as a matter of law at this juncture.
Unless eliminated by the requirements of municipal liability as set out below, those
Fourteenth Amendment claims remain.
C. Municipal Liability for Excessive Force,
Poor Treatment of Pretrial Detainee, and Unlawful Seizure
1. The Requirement of a Policy
The City seeks protection from liability for the actions of its employees or agents
pursuant to the holding in Monell v. New York Department of Social Services, 436 U.S.
658, 694 (1978). It is well-settled that the City does not have respondeat superior
liability for allegedly unconstitutional conduct of its law enforcement personnel. Id. at
691. Instead, to establish liability, Plaintiffs must not only show that the personnel in fact
engaged in unconstitutional conduct, they must show that they did so pursuant to an
existing City policy, custom, or practice of which the City policymakers knew, which
served as a moving force behind the conduct. Id. at 694; Valle v. City of Houston, 613
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F.3d 536, 541–42 (5th Cir. 2010). For purposes of this analysis, the Court will assume
without deciding that there was unconstitutional police conduct and focus on whether
there was a City policy behind it.
A policy can be an officially adopted statement, ordinance, regulation, or decision
of the City’s lawmaking officers or policy-making authority. Id. Plaintiffs do not assert
such a formal policy. Instead, Plaintiffs’ only claim to a City policy falls under the
second manner of proof: “Official municipal policy includes . . . practices so persistent
and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S.
51, 61 (2011). To constitute a widespread and persistent policy, Plaintiffs must show a
large number2 of very similar instances3 occurring for so long or so frequently4 that a
pattern can be attributed to the policymaker.
A policymaker’s failure to scrutinize a practice is insufficient. While it may make
unconstitutional conduct more likely, such inadvertence is equally consistent with an
employee maintaining constitutionally compliant conduct. It is thus not a moving factor
behind unconstitutionality. Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S.
397, 410-11 (1997). Instead, there must a conscious disregard of an obvious risk that the
employee would subsequently inflict a particular constitutional injury. Id.
2. The Knock and Announce Requirement
Plaintiffs’ claim that the City has an unconstitutional policy is based on an alleged
widespread and persistent violation of the “knock and announce” requirement of search
2
3
4
McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989).
Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005).
Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984).
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and seizure. Fourth Amendment jurisprudence includes a “knock and announce” feature
when executing a warrant at a residence. Miller v. United States, 357 U.S. 301, 309
(1958) (noting that the requirement existed in the common law as far back as fifteenth
century England, reflecting the adage that a man’s house is his castle). While that
requirement carries a well-established exception for cases involving small amounts of
narcotics that can be disposed of during a knock and announce delay, Plaintiffs argue that
the drug disposal exception should not apply here, where CCPD had sufficient evidence
to arrest Garcia without retrieving any drugs from the home.
Id. at 309 (noting
exceptions for destruction of evidence and peril of bodily harm); United States v. Banks,
540 U.S. 31, 41-43 (2003) (discussing the importance of the totality of the circumstances
in applying exceptions to the knock and announce requirement); Wilson v. Arkansas, 514
U.S. 927, 937 (1995).
Likewise, there is an exception to the “knock and announce” requirement when
the safety of the officers is threatened by a significant known risk of violence, such as
when the persons in the residence are known to possess firearms. Richards v. Wisconsin,
520 U.S. 385, 395 (1997) (requiring facts to support reasonable suspicion that a risk of
violence exception should apply); United States v. Howard, 106 F.3d 70, 74 (5th Cir.
1997) (same). Plaintiffs argue that the violence exception does not apply here because
the investigating officer who provided the affidavit in support of the warrant did not have
personal knowledge of any gun ownership and had not confirmed information to that
effect, provided by his confidential informant.
Plaintiffs seek to assign liability to the City for the police officers’ conduct in this
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case because, rather than pursue an individualized assessment of the risk factors in this
case, they relied on the City’s acquiescence in a pattern or custom of making blanket
exceptions to the knock and announce requirement any time the search and seizure
involves a felony drug investigation. The Supreme Court disapproved of such blanket
exceptions in Richards v. Wisconsin, supra, and the Fifth Circuit followed suit in Bishop
v. Arcuri, 674 F.3d 456, 467 (5th Cir. 2012). The Supreme Court’s concern was that
blanket exceptions could easily accumulate and swallow the rule.
3. No Blanket Policy in CCPD Undermining
the Knock and Announce Requirement
Plaintiffs allege that the CCPD leadership acquiesces in the SWAT Team’s
alleged blanket policy of both (a) failing to question and confirm the information in the
warrant affidavit and risk-assessment matrix, and (b) using the full force of its resources
as a default mode for executing all no-knock warrants in drug-related cases.
To
substantiate that claim, Plaintiffs cite exclusively to the testimony of CCPD command:
Captain David Cook, Captain William Breedlove, and Assistant Chief of Police Mark
Schauer. Without deciding whether these individuals qualify as policymakers who can
bind the City, the Court considers whether their testimony supports the existence of the
policies alleged.
According to David Cook, who is CCPD’s Commander of the Emergency
Response Unit,5 the SWAT Team appropriately relies on the accuracy of observations
and information gathered by the investigating officer. D.E. 61-15. That information is
5
The Emergency Response Unit includes the Hostage Negotiation Team, the Dive Team, the Bomb Squad, and
SWAT Team. D.E. 46-5.
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communicated in the affidavit supporting the warrant and in the Search Warrant
Classification Matrix, which is their risk-assessment tool.
A. Once the warrant is turned over to us and we’re requested
and the matrix meets the standard and we’re requested to
run the warrant and the warrant is signed, we prepare an
operations plan. And that discussion of whether there’s a
less evasive [sic] manner, whether that unit could have
provided is not discussed by SWAT. We are – we are
following the request of the unit who has requested our
assistance.
Q. The thoughts of a better way to do it is something that is
done by that division that is requesting the warrant?
A. That is correct.
D.E. 61-15, p. 23. Cook’s testimony further acknowledges that there are, in fact, times
when the referring unit discusses the particular needs for the execution of a warrant, such
as whether a house needs to be hit. D.E. 61-15, p. 25.
Captain William Breedlove, the SWAT Team Executive Officer, testified to
essentially the same facts, stating that they executed warrants on the basis of the
investigating unit’s information and request. D.E. 61-24. There is no evidence in the
summary judgment record that Assistant Chief of Police Mark Schauer said anything
different with respect to the information on which warrants were executed. D.E. 46-17.
Nothing in the testimony of the three officers on which Plaintiffs rely for this point
supports the inference that an unconstitutional blanket policy is in effect for all drugrelated warrants. The testimony does not show that all drug-related warrants are executed
on a no-knock basis. The testimony does not show that they are executed without regard
to whether there is evidentiary support for exigent circumstances. The testimony does
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not discuss whether any drug-related warrants are uniformly executed on a full-throttle
basis. Neither is there any evidence that the SWAT Team practices have ever been
known to result in any unconstitutional search or seizure, excessive force, or poor
treatment of a pretrial detainee aside from the allegations in this case.
Plaintiffs have not met their burden of proof to demonstrate any widespread and
persistent unconstitutional instances of SWAT Team warrant executions. Not a single
additional operation is offered as even questionable. This case, therefore, does not fall
within the scope of Bishop, 674 F.3d at 467, which recognized that a blanket exception to
the knock and announce rule for all drug-related warrants was not constitutional.
As highlighted by Bishop, whether a no-knock warrant is constitutionally
permissible depends on an officer being able to point to specific facts to explain safety
concerns or the need for preservation of evidence. Id. at 466. Here, the SWAT Team’s
use of the affidavit supporting the warrant as well as the risk-assessment matrix is an
effort to communicate those specific facts. And Plaintiffs do not assert that the facts in
the warrant and matrix used here were insufficient on the face of the documents.
Instead, they claim that errors or inaccuracies should have been discovered by a
re-investigation of the referring unit’s work. Yet Plaintiffs offer no authority for the
suggestion that one arm of a police force cannot rely on the work of another. Rather,
such reliance is the norm. See, United States v. Ibarra—Sanchez, 199 F.3d 753, 759—60
(5th Cir. 1999) (under the “collective-knowledge doctrine,” one officer's personal
knowledge of the facts can be imputed to others who rely on it in working the case).
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Plaintiffs do not argue that reliance on the work of other departments is
unreasonable because of some recurring problem with the information gathered. Such an
argument would be contrary to the evidence of record. Commander Cook testified that
Officer Andy Trevino, the case agent who supplied the facts to support the warrant and
who filled out the matrix, was an experienced officer with integrity and a reputation for
truthfulness. D.E. 61-15, p. 14. While Plaintiffs have raised a number of questions about
Officer Trevino’s representation of the facts underlying the no-knock warrant and matrix
involved in this case, the evidence—at best—illustrates only a single occurrence of police
error, which is insufficient to establish a widespread and persistent, unconstitutional
practice.
4. Conclusion
Under Monell, even if CCPD got it wrong in this case, the City cannot be held
liable absent a policy that is the moving force behind unconstitutional action. Plaintiffs
have not satisfied their burden to raise a disputed issue of material fact on the only such
policy they have claimed. Instead, Plaintiffs’ own evidence shows that the SWAT Team
executes no-knock warrants as requested by CCPD units, on the basis of individualized
facts regarding exigent circumstances set out by investigating officers and as requested
by referring units. Thus there is no blanket exception to the knock and announce rule or
default mode involving overreaching of which to complain. The Court GRANTS IN
PART the City’s motion for summary judgment and DISMISSES all claims alleged
against the City for excessive force, poor treatment of pretrial detainees (as previously
carried forward), and unlawful seizure.
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D. Failure to Train
Plaintiffs allege liability against the City for failure to properly train the police
force on the use of force in its operations, including having appropriate policies in place
and teaching officers to properly interpret and follow those policies. The City seeks
summary judgment on this claim because Plaintiffs cannot show that their training
program is deficient or that the City is deliberately indifferent to any specific need for
training relevant to the issues in this case.
“[T]he inadequacy of police training may serve as the basis for § 1983 liability
only where the failure to train amounts to deliberate indifference to the rights of persons
with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378,
388 (1989); Burns v. City of Galveston, 905 F.2d 100, 103-04 (5th Cir. 1990).
But it may happen that in light of the duties assigned to
specific officers or employees the need for more or different
training is so obvious, and the inadequacy so likely to result
in the violation of constitutional rights, that the policymakers
of the city can reasonably be said to have been deliberately
indifferent to the need.
City of Canton, Ohio, 489 U.S. at 390.
The only failure to train complaint asserted in Plaintiffs’ response is, “Somebody
obviously has failed to train the Corpus Christi Police Department on the long-established
requirements for a no-knock warrant or Investigator Trevino and the Corpus Christi
Police Department did not care. Proper training would help.” D.E. 61, p. 4. The
Supreme Court warned against the acceptance of such a claim.
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That a particular officer may be unsatisfactorily trained will
not alone suffice to fasten liability on the city, for the officer's
shortcomings may have resulted from factors other than a
faulty training program. It may be, for example, that an
otherwise sound program has occasionally been negligently
administered. Neither will it suffice to prove that an injury or
accident could have been avoided if an officer had had better
or more training, sufficient to equip him to avoid the
particular injury-causing conduct. Such a claim could be
made about almost any encounter resulting in injury, yet not
condemn the adequacy of the program to enable officers to
respond properly to the usual and recurring situations with
which they must deal. And plainly, adequately trained
officers occasionally make mistakes; the fact that they do says
little about the training program or the legal basis for holding
the city liable.
City of Canton, Ohio, 489 U.S. at 390–91.
Attached to Assistant Chief Schauer’s and Captain Donnie Mersing’s affidavits
are excerpts from the CCPD Policy Manual. D.E. 46-17. They include section 200 on
the use of force, section 306 on search and seizure procedures and temporary detentions,
and section 306.4, including in its search protocol the directive to carry out searches
“with due regard and respect for private property interests and in a manner that minimizes
damage.”
D.E. 46-17, p. 25; D.E. 46-18, pp. 17-22, 32-34.
“Members of this
Department will conduct searches in strict observance of the constitutional rights of
persons being searched. All seizures by this Department will comply with relevant
federal and state law governing the seizure of persons and property.” Policy 306.2, D.E.
46-18, p. 32.
According to the affidavit of Captain Mersing, who is in charge of training, all
CCPD officers receive training on the constitutional limits restricting the scope and
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manner of searches and seizures, the use of force, and the treatment of detainees. That
training meets and exceeds Texas state requirements, including copious hours of
instruction, on-the-job field training, one-on-one mentoring, and in-service training. D.E.
46-18. Without a specific showing of facts to support a deliberate indifference finding, a
City is protected from liability if it relies on a training program that meets state standards.
Benavides v. Cty. of Wilson, 955 F.2d 968, 974 (5th Cir. 1992).
Plaintiffs have offered no evidence that this training is insufficient or fails to cover
the specific knock and announce issues on which they rely. Neither do their expert
reports (D.E. 61-13, 61-14) address any particular defect in the training program. While
they complain of failures in gathering or assessing the information on which the officers
relied in planning the SWAT Team operation, evidence of a one-time error does not rise
to a level that places the entire training program in question. See City of Canton, Ohio,
489 U.S. at 390–91; Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998) (evidence of
a single incident is ordinarily insufficient to establish a deficient policy).
Plaintiffs have failed to raise a disputed issue of material fact that the City failed to
train officers in a manner that was deliberately indifferent to the rights of the public.
Consequently, the Court GRANTS IN PART the City’s motion for summary judgment
and DISMISSES Plaintiffs’ failure to train claim.
E. Failure to Supervise
Plaintiffs also allege that the City failed to ensure proper supervision of its police
force. To establish a failure to supervise claim, Plaintiffs must prove that: (1) the officers
were not supervised; (2) there is a causal connection between the alleged failure to
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supervise and the alleged violation of Plaintiffs’ rights; and (3) the failure to train or
supervise constituted deliberate indifference to Plaintiffs’ constitutional rights.
Brumfield v. Hollins, 551 F.3d 322, 332 (5th Cir. 2008). The City asserts that it is
entitled to summary judgment eliminating this claim because an appropriate chain of
command was in place throughout the CCPD operations. D.E. 46-5. Moreover, it claims
that there is no evidence of deliberate indifference.
Plaintiffs do not address this claim in their response. They have not directed this
Court to any evidence that supervision was lacking or that the City’s attitude toward it
amounted to deliberate indifference. The Court GRANTS IN PART the City’s motion
for summary judgment and DISMISSES Plaintiffs’ claim for failure to supervise.
F. Failure to Discipline
Plaintiffs assert a claim against the City for failure to discipline its police officers,
thus creating a policy of ratifying unconstitutional conduct. In their complaint, Plaintiffs
reference only the failure to discipline the officers involved in the SWAT Team operation
at issue in this case. D.E. 1. The City seeks summary judgment dismissing this claim
because it, in fact, enforces its policies through disciplinary procedures; it is not aware of
any facts or unconstitutionality warranting disciplinary measures against the officers
involved in this case; and one incident does not establish a City policy. D.E. 46, 46-17;
City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988); Coon v. Ledbetter, 780 F.2d
1158, 1161-62 (5th Cir. 1986) (a policymaker who defends conduct that is later shown to
be unlawful does not necessarily incur liability on behalf of the municipality). Indeed, no
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claims of excessive force triggering disciplinary measures were lodged against the
officers for this incident prior to filing this suit. D.E. 46-17.
Again, Plaintiffs have not responded to this issue with evidence or arguments.
The Court GRANTS IN PART the City’s motion for summary judgment and
DISMISSES Plaintiffs’ claims against it for failure to discipline.
CONCLUSION
For the reasons set out above, the Court GRANTS the City’s motion for summary
judgment (D.E. 46) in its entirety and DISMISSES all of the claims Plaintiffs have
asserted against the City, with the exception of the state law malicious prosecution claim,
which was not addressed in its motion.
ORDERED this 27th day of December, 2018.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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