Blomdahl v. Jones ( 2021 )

1 WO SH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Adam Paul Blomdahl, No. CV 20-01207-PHX-MTL (DMF) 10 Plaintiff, 11 v. ORDER 12 Unknown Jones, et al., 13 Defendants. 14 15 Plaintiff Adam Paul Blomdahl, who is currently confined in Maricopa County Jail, 16 brought this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 11.) Defendant moves 17 for summary judgment, and Plaintiff opposes.1 (Docs. 78, 84.) Also before the Court is 18 Plaintiff’s Motion for Preliminary Injunction (Doc. 90), which Defendant opposes (Doc. 19 92), as well as Plaintiff’s “Motion to Re-affirm Stay for Injunctive Relief” (Doc. 95), which 20 the Court construes as a motion for injunctive relief. 21 I. Background 22 On screening Plaintiff’s Second Amended Complaint (Doc. 11) under 28 U.S.C. 23 § 1915A(a), the Court determined that Plaintiff stated a Fourteenth Amendment deliberate 24 indifference claim against Officer Brian Jones in Count 1 for failing to provide Plaintiff 25 with a shower and denying him medical care. (Doc. 12.) The Court directed Jones to 26 answer and dismissed the remaining claims and Defendants. (Id.) 27 28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 82.) 1 In Count 1, Plaintiff alleges that on June 17, 2019, he was forced into a filthy cell 2 that had feces smeared on the walls because he had “refused a ‘3hr out’ pod.” (Doc. 11 at 3 3.) Plaintiff claims that he became seriously ill on June 19, 2019, and when he told 4 Defendant Jones that he was sick and begged for a shower, Defendant Jones ignored him. 5 (Id.) Plaintiff claims the next time Defendant Jones walked by, Plaintiff, “out of 6 desperation,” said that he was suicidal. (Id.) Defendant Jones allegedly responded by 7 asking Plaintiff if he wanted Defendant Jones to get him a rope and, for the remainder of 8 the shift, harassed Plaintiff while Plaintiff was in severe pain from his illness. (Id.) 9 Plaintiff claims that because Defendant Jones intentionally denied him medical care, 10 despite knowing Plaintiff needed medical care, Plaintiff suffered emotional distress, 11 prolonged illness, and needless pain and suffering. (Id.) 12 Defendant Jones now moves for summary judgment and argues that his conduct did 13 not violate Plaintiff’s Fourteenth Amendment rights. (Doc. 78.) 14 II. Motions for Preliminary Injunction 15 Plaintiff asks the Court to issue injunctive relief that prohibits him from being forced 16 “to take a cellmate and/or punish him for refusing a cellmate.” (Doc. 90 at 4.) Plaintiff 17 claims that he “made a medical claim regarding his classification to a one-man cell but was 18 denied and subject to excessive force, and punishment, [and] denied all property.” (Doc. 19 95 at 1.) The Court is unable to grant the requested relief because the allegations in 20 Plaintiff’s motions are not before the Court in this action. Plaintiff’s only claim against 21 Defendant Jones concerns Defendant Jones’ alleged denial of medical care on June 19, 22 2019, which does not include a medical claim for a one-man cell. New claims may not be 23 presented in a motion for injunctive relief and must be brought in a separate action or 24 amended complaint. See Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 25 631, 636 (9th Cir. 2015) (a plaintiff seeking injunctive relief must “establish a relationship 26 between the injury claimed in the party’s motion and the conduct asserted in the 27 complaint”) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam)). 28 Thus, Plaintiff’s Motions will be denied. 1 III. Summary Judgment Standard 2 A court must grant summary judgment “if the movant shows that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 4 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 5 movant bears the initial responsibility of presenting the basis for its motion and identifying 6 those portions of the record, together with affidavits, if any, that it believes demonstrate 7 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 8 If the movant fails to carry its initial burden of production, the nonmovant need not 9 produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 10 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 11 to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 12 contention is material, i.e., a fact that might affect the outcome of the suit under the 13 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 14 jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 15 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 16 Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 17 favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 18 it must “come forward with specific facts showing that there is a genuine issue for trial.” 19 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 20 citation omitted); see Fed. R. Civ. P. 56(c)(1). 21 At summary judgment, the judge’s function is not to weigh the evidence and 22 determine the truth but to determine whether there is a genuine issue for trial. Anderson, 23 477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 24 all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 25 materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 26 . . . 27 . . . 28 . . . 1 IV. Relevant Facts 2 As of June 17, 2019, Plaintiff was housed in closed custody in a one man, one hour 3 out2 cell in Maricopa County Jail. (Doc. 79 (Def.’s Statement of Facts) ¶ 2.) At some point 4 on June 17, 2019, Sergeant Fisk informed Plaintiff that he was being transferred to a three 5 hour out cell, and Plaintiff refused. (Id. ¶ 3; Doc. 79-1 at 8 (Pl. Dep. 18:7–12).) Sergeant 6 Fisk escorted Plaintiff to his new three hour out cell. (Doc. 79 ¶ 3; Doc. 79-1 at 9 (Pl. Dep. 7 26:13–17).) Plaintiff’s three hour out cell had feces on the walls and other surfaces. (Doc. 8 79 ¶ 4.) At deposition, Plaintiff testified that when he arrived at his new cell, he “was very 9 ill, very tired, faint, and [had] stabbing pains in [his] guts, and diarrhea[.]” (Doc. 79-1 at 10 11 (Pl. Dep. 41:1–2).) Plaintiff also testified that he received cleaning supplies on June 18, 11 2019. (Id. at 18 (Pl. Depo. at 22–24).) 12 On June 19, 2019 at 6:00 a.m., Defendant Jones walked by Plaintiff’s cell; Plaintiff 13 wanted to ask Defendant Jones for a shower, but Plaintiff was feeling sick and could not 14 get up, so he was unable to ask Defendant Jones for a shower. (Doc. 79-1 at 11 (Pl. Dep. 15 41:15–18.) At approximately 7:00 a.m., Defendant Jones walked by Plaintiff’s cell again, 16 and Plaintiff told Defendant Jones, “This room is filthy. I just got here. . . . I don’t know 17 what the schedule is in this unit, but I need—I think I’m sick. I need medical. I need a 18 shower.” (Id. at 12 (Pl. Dep. 42:5–8).) According to Plaintiff’s deposition testimony, 19 Defendant Jones responded, “It’s too late for that. . . . You’re supposed to be up at 6:00 in 20 the morning when we first come by.” (Id. (Pl. Dep. 42:10–12).) Plaintiff then told 21 Defendant Jones, “I’m sick. . . . I couldn’t get up [at 6:00 a.m.] . . . Can you please let me 22 out for a shower just this one time?” (Id. (Pl. Dep. 42:12–14).) Defendant Jones responded, 23 “No. . . . You’re not—You were not up. That means I got you down for a refusal.” And 24 then Defendant Jones walked away. (Id. (Pl. Dep. 42:15–19).) 25 26 27 2 Assignment to a “one hour out” cell means that Plaintiff was allowed to leave his cell for one hour a day, and assignment to a “three hours out” cell meant that Plaintiff 28 would be allowed to leave his cell for three hours a day. (See Doc. 79-1 at 6–7 (Pl. Dep. 15:23–16:2).) 1 On June 19, 2019 at 8:00 a.m., Plaintiff barricaded his cell against Maricopa County 2 Sheriff’s Office (MCSO) Inmate Rules and Regulations to get Defendant Jones’ attention. 3 (Id. ¶ 6.) Plaintiff testified at deposition that he told Defendant Jones, “The reason I am 4 barricading is because . . . I am sick. . . . I need medical. . . . I feel suicidal. . . . I need to 5 get out of this filthy cell.” (Doc. 79-1 at 15 (Pl. Dep. 46:12–15).) Plaintiff testified that 6 Defendant Jones responded, “Do you want me to get you a rope[?]” (Id. (Pl. Dep. 46:18).) 7 According to Plaintiff’s testimony, he then told Defendant Jones, “Aren’t you going to let 8 me out of here? Can you please let me out of here? I’m begging you. I’m in pain. I need 9 a shower. I need medical.” (Id. at 16 (Pl. Dep. 47:2–4).) But Defendant Jones responded, 10 “No. . . . You should have been up here at 6:00 in the morning, and that’s the rules. 11 [Defendant Jones begins laughing.] You’re shit out of luck.” And then Defendant Jones 12 walked away while using a hard object to knock on Plaintiff’s door to harass him. (Id. (Pl. 13 Dep. 47:6–10, 20–24).) Plaintiff testified that Defendant Jones continued to walk by his 14 cell “for hours” and continued to harass him until the next shift came on duty at 2:00 p.m. 15 (Id. at 17 (Pl. Dep. 48:13–18).) 16 Defendant Jones asserts that Plaintiff never asked him for a shower or medical 17 attention and asserts that Plaintiff never told him was suicidal or sick. (Doc. 79 ¶¶ 15, 17.) 18 Defendant Jones denies telling Plaintiff that he was too late for a shower and medical 19 attention. (Id. ¶ 16.) Defendant Jones also denies asking Plaintiff, “Do you want me to get 20 you a rope?” and denies knocking on Plaintiff’s cell door or otherwise harassing Plaintiff 21 on June 19, 2019. (Id. ¶¶ 18, 19.) 22 On June 19, 2019 at approximately 2:00 p.m., Plaintiff completed a MCSO Health 23 Needs Request when the next shift started, and he received medical attention on the 24 morning of June 20, 2019. (Id. ¶ 9; Doc. 79-1 at 17 (Pl. Dep. 48:19–21).) Plaintiff testified 25 at deposition that he received an antibiotic on June 20, 2019, but that he was not told what 26 condition it was for and or what his diagnosis was. (Doc. 79 ¶ 10; Doc. 79-1 at 19 (Pl. 27 Dep. 57:16–24).) However, Plaintiff’s medical records show that he was actually 28 prescribed Loperamide—which is an anti-diarrheal, not an antibiotic—twice per day for 1 one week. (Doc. 85 (Pl. Statement of Facts) ¶¶ 10, 12; Doc. 85-1 at 1, 9 (Pl.’s Ex. E).) 2 After Plaintiff left the medical unit, he “ended up getting a shower” and “cleaned [his] 3 room again.” (Doc. 79-1 at 20 (Pl. Dep. 58:23–25).) Plaintiff began feeling better a day 4 or two after being seen in the medical unit. (Id. (Pl. Dep. 58:20–22).) 5 Plaintiff never sought any other medical attention for anything related to this case 6 while he was in MCSO custody after June 20, 2019 except for a sleep aid. (Doc. 79 ¶ 12.) 7 Almost a year later in June 2020, Plaintiff got sick with stomach pains again while 8 he was in the custody of the Arizona Department of Corrections (ADC). (Doc. 79-1 at 21– 9 22 (Pl. Dep. 61:10–11, 24–25, 66:14–15).) Plaintiff was placed on pain medications 10 around this time and complained of pain in his back, head, chest, lungs, knee, and stomach, 11 but Plaintiff does not recall whether any doctor told him the pain medication was related 12 to the events alleged in his Second Amended Complaint. (Id. at 23 (Pl. Dep. 72:7–10, 18– 13 25); Doc. 79 ¶ 14.) 14 V. Fourteenth Amendment Medical Care Claim 15 A. Legal Standard 16 The Ninth Circuit Court of Appeals has held that “claims for violations of the right 17 to adequate medical care ‘brought by pretrial detainees against individual defendants under 18 the Fourteenth Amendment’ must be evaluated under an objective deliberate indifference 19 standard.” Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (quoting 20 Castro v. County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016)). To state a medical 21 care claim, a pretrial detainee must show 22 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those 23 conditions put the plaintiff at substantial risk of suffering 24 serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable 25 official in the circumstances would have appreciated the high 26 degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such 27 measures, the defendant caused the plaintiff’s injuries. 28 Id. at 1125. “With respect to the third element, the defendant’s conduct must be objectively 1 unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each 2 particular case.’” Castro, 833 F.3d at 1071 (quoting Kingsley v. Hendrickson, 576 U.S. 3 389, 397, 135 S. Ct. 2466, 2473 (2015); Graham v. Connor, 490 U.S. 386, 396 (1989)). 4 The “‘mere lack of due care by a state official’ does not deprive an individual of 5 life, liberty, or property under the Fourteenth Amendment.” Castro, 833 F.3d at 1071 6 (quoting Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). A plaintiff must “prove more 7 than negligence but less than subjective intent—something akin to reckless disregard.” Id. 8 A mere delay in medical care, without more, is insufficient to state a claim against prison 9 officials for deliberate indifference. See Shapley v. Nev. Bd. of State Prison Comm’rs, 766 10 F.2d 404, 407 (9th Cir. 1985). 11 B. Discussion 12 Construing the facts in Plaintiff’s favor, the first Gordon element is met where 13 Plaintiff informed Defendant Jones—more than once—that he was sick, in pain, and 14 suicidal, and Defendant Jones made intentional decisions regarding Plaintiff’s medical care 15 and his conditions of confinement. See Castro, 833 F.3d at 1070 (noting that this first 16 element would not be satisfied only if the defendant’s conduct resulted from something 17 totally unintentional, such as an accident). 18 The second element considers whether Plaintiff faced a substantial risk of suffering 19 serious harm. Again, interpreting the facts in the light most favorable to Plaintiff, Plaintiff 20 told Defendant Jones that he was sick and suicidal and needed to go to medical, and 21 Defendant Jones laughed at Plaintiff, asked him he wanted a rope, and walked away. It is 22 undisputed that Plaintiff was prescribed anti-diarrheal medication the following morning. 23 On these facts, where Plaintiff reported being suicidal and suffering from significant pain 24 and reported being sick more than once, and Defendant Jones did not send Plaintiff to the 25 medical unit, inform the medical staff of Plaintiff’s condition, or otherwise respond to 26 Plaintiff’s medical complaints, there exists genuine issues of material fact as to whether 27 Plaintiff faced a substantial risk of suffering serious harm. See McGuckin v. Smith, 974 28 F.2d 1050, 1059 (9th Cir. 1992) (quoting Estelle v. Gamble, 429 U.S. 97, 104 1 (1976)), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 2 Cir. 1997) (“The existence of an injury that a reasonable doctor or patient would find 3 important and worthy of comment or treatment; the presence of a medical condition that 4 significantly affects an individual's daily activities; or the existence of chronic and 5 substantial pain are examples of indications that a prisoner has a ‘serious’ need for medical 6 treatment.”) 7 As to the third Gordon element, the parties dispute whether Defendant Jones took 8 reasonable available measures to avert the risk of harm to Plaintiff. Defendant Jones asserts 9 that Plaintiff never told him that he was in pain or suicidal, but the Court must construe the 10 facts in Plaintiff’s favor that he informed Defendant Jones more than once that he was 11 experiencing significant pain, begged to be taken to medical, and that during their second 12 interaction at 8:00 a.m., Plaintiff reported that he was suicidal, and Defendant Jones taunted 13 him by asking whether he wanted a rope before walking away. The Court must also take 14 as true that Plaintiff had to wait several hours until the next shift arrived to submit a Health 15 Needs Request, during which he continued to be in severe pain, and was finally seen by 16 the medical staff the following morning. Taking as true that Defendant Jones responded 17 to Plaintiff’s report of being suicidal by asking Plaintiff whether he wanted a rope and told 18 Plaintiff’s that he was “shit out of luck” in response to Plaintiff’s request to go to medical, 19 a reasonable juror could find that the conditions of confinement imposed by Defendant 20 Jones amounted to punishment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979) (in 21 considering the conditions of pretrial detention, courts consider whether the conditions 22 amount to punishment). These facts further support that Defendant Jones did not act as a 23 reasonable official in circumstances where a prisoner complained of severe pain and being 24 suicidal. A reasonable juror could find that Defendant Jones’ conduct satisfies the 25 requirement that there be something akin to reckless disregard for the consequences of his 26 actions. 27 The final element requires a showing that Defendant Jones’ failure to take 28 reasonable measures caused Plaintiff injury. The facts above show that Plaintiff informed 1 Defendant Jones of being suicidal and in significant pain and that Defendant Jones did not 2 consult the medical or mental health staff or take any action in response to Plaintiff’s 3 complaints. Construing the facts in Plaintiff’s favor, Plaintiff’s condition deteriorated after 4 his encounters with Defendant Jones, and he was left in severe pain for several hours for 5 the remainder of Defendant Jones’ shift and while Defendant Jones continued to walk by 6 his cell. There is a question of material fact whether Defendant Jones’ failure to act as a 7 reasonable official caused Plaintiff to suffer unnecessary and severe pain for several hours 8 before Plaintiff was finally able to seek medical care at the start of the next shift, which 9 can be inferred as indifference. On this record, a reasonable jury could conclude that by 10 not taking reasonable available measures, Defendant Jones caused Plaintiff’s to suffer 11 unnecessary pain. 12 Summary judgment will therefore be denied to Defendant Jones on the merits of 13 Plaintiff’s Fourteenth Amendment claim. 14 C. Qualified Immunity 15 In the alternative, Defendant Jones contends that he is entitled to qualified 16 immunity. Government officials enjoy qualified immunity from civil damages unless their 17 conduct violates “clearly established statutory or constitutional rights of which a reasonable 18 person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). There are 19 two prongs in the qualified-immunity inquiry: “(1) whether ‘the facts alleged show the 20 official’s conduct violated a constitutional right; and (2) if so, whether the right was clearly 21 established’ as of the date of the involved events ‘in light of the specific context of the 22 case.’” Tarabochia v. Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014) (internal quotation 23 omitted.) In its analysis, the district court must view the facts “in the light most favorable 24 to the injured party.” Chappell v. Mandeville, 706 F.3d 1052, 1058 (9th Cir. 2013) (citation 25 omitted). 26 The Court has already determined that, when viewing the facts in Plaintiff’s favor, 27 there exist material factual disputes whether Defendant Jones violated Plaintiff’s 28 constitutional right to adequate medical care. The qualified immunity question therefore 1 turns on the second prong—whether the right at issue was clearly established at the time. 2 Defendant Jones contends that “it has not been clearly established by existing 3 precedent that the purported wrongdoing by Officer Jones, including failing to provide a 4 shower to a pre-trial detainee, violated Plaintiff’s constitutional rights.” (Doc. 78 at 9.) 5 But Defendant’s narrow focus on the denial of a shower does not fully capture Plaintiff’s 6 constitutional claim. 7 By June 2019 when Plaintiff’s claim in this action arose, it was well established that 8 jail officials have a duty to ensure that detainees are provided with medical care and that 9 jail officials are deliberately indifferent when they fail to respond to a prisoner’s pain or 10 possible medical need. See Gordon, 888 F.3d at 1122-23 (explaining that Supreme Court 11 held in 1976 that prison officials’ deliberate indifference to serious medical needs of 12 prisoners violates Eighth Amendment and that as early as 1986, the Ninth Circuit 13 concluded that such Eighth Amendment guarantees provide the minimum standard of care 14 for determining the rights of pretrial detainees to medical care under Fourteenth 15 Amendment Due Process Clause); see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 16 2000); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Moreover, it was clearly 17 established that although conditions of confinement may be restrictive and harsh, they 18 cannot involve the “wanton and unnecessary infliction of pain” or be devoid of a legitimate 19 penological purpose. Id. In addition, although Plaintiff has not identified a preexisting 20 factually analogous case on point, at the time of Defendant Jones’ challenged action, the 21 controlling authority regarding a pretrial detainee's right of access to minimally adequate 22 medical care was sufficiently settled to provide more than fair notice to any reasonable 23 prison official that it was unlawful to ignore a detainee’s complaints of severe pain and 24 suicidal thoughts, and to do so for reasons unrelated to the pretrial detainee’s actual medical 25 needs. See, e.g., Castro, 833 F.3d at 1067 (contours of pretrial detainee’s right to adequate 26 medical care clearly established prior to 2009 such that prison official who knows “inmates 27 face a substantial risk of serious harm and disregards that risk by failing to take reasonable 28 measures to abate it” may be held liable under Section 1983). 1 Here, Defendant Jones’ arguments regarding qualified immunity rest primarily on 2 Defendant’s version of the facts; namely, that Defendant Jones was not aware of a 3 substantial risk of harm to Plaintiff. But the Court must construe the facts in Plaintiff’s 4 favor, and, when doing so, a reasonable official in Defendant Jones’ position would have 5 understood that failing to provide, or otherwise obtain, necessary treatment to a detainee 6 who reported being suicidal and suffering from significant pain over period of several 7 hours—and taunting the detainee instead of consulting the medical unit—constitutes a 8 failure to take reasonable measures to abate the risk to that detainee and effectively amounts 9 to a denial of medical care. It should have been clear to a reasonable official that an outright 10 denial of medical care to a detainee who complained of being sick, in severe pain, and 11 suicidal violated clearly established law. 12 In light of the material factual disputes in this case, summary judgment based on 13 qualified immunity is not appropriate. See Conner v. Heiman, 672 F.3d 1126, 1131 (9th 14 Cir. 2012) (a district court should decide the issue of qualified immunity only when the 15 material facts are not in dispute); Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 16 2003) (“[w]here the [defendant’s] entitlement to qualified immunity depends on the 17 resolution of disputed issues of fact in [his or her] favor, and against the non-moving party, 18 summary judgment is not appropriate”). Defendant Jones is not entitled to summary 19 judgment based on qualified immunity since there remain genuine disputes of material fact 20 as to whether Defendant Jones violated Plaintiff’s clearly established constitutional right 21 to minimally adequate medical care. 22 IT IS ORDERED: 23 (1) The reference to the Magistrate Judge is withdrawn as to Defendant’s Motion 24 for Summary Judgment (Doc. 78), Plaintiff’s Motion for Preliminary Injunction (Doc. 90), 25 and Plaintiff’s “Motion to Re-affirm Stay for Injunctive Relief” (Doc. 95). 26 (2) Plaintiff’s Motion for Preliminary Injunction (Doc. 90) is denied. 27 (3) Plaintiff’s “Motion to Re-affirm Stay for Injunctive Relief” (Doc. 95) is 28 denied. 1 | (4) | Defendant’s Motion for Summary Judgment (Doc. 78) is denied as discussed 2 | herein. 3 | (5) This matter is referred to Magistrate Judge Eileen S. Willett to conduct a 4 | settlement conference. 5 | (6) | Defense counsel shall arrange for the relevant parties to jointly call 6 | Magistrate Judge Willett's chambers at (602) 322-7620 within 14 days to schedule a date 7 | for the settlement conference. 8 | (7) If the settlement conference is not successful, the parties must file a joint 9 | status report within 30 days following the settlement conference proposing dates and times 10 | for a trial-setting conference. 11 | Dated this 30th day of November, 2021. 12 | | Mk Lo. ‘chal T. Siburde Michael T. Liburdi 15 | United States District Judge 16 | 17| 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 |