Pember 067165 v. Ryan

1 NA — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Jay Lynn Pember, No. CV 17-04069-PHX-JJT (JFM) 10 Plaintiff, 11 v. ORDER — 12 — Charles L. Ryan, et al., — 13 — Defendants. — 14 — 15 I. Background 16 Plaintiff Jay Lynn Pember, who is currently confined in the Arizona State Prison 17 Complex-Eyman, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 . 18 On screening Plaintiff’s Second Amended Complaint (Doc. 73) pursuant to 28 U.S.C. 19 § 1915A(a), the Court determined that Plaintiff stated Eighth Amendment medical care 20 claims against Defendants Babich, Gay, Johnson, Hawley, and Does 6-15 in Count Two 21 and ordered them to answer.1 (Doc. 101.) The Court dismissed the remaining claims and 22 Defendants. (Id.) 23 Plaintiff previously filed a “Motion for Temporary Res[t]raining Order and 24 Preliminary Injunction” (Docs. 15, 19), a “Motion for Order-Access to Legal Supplies” 25 (Doc. 25), and a “Motion for Temporary Restraining Order and Preliminary Injunction” — 26 — — 27 — 1 The Court gave Plaintiff 60 days to file a notice of substitution substituting the 28 actual names of Does 6-15. (Doc. 101.) Does 6-9 were substituted for their actual names, Gertz, Schmid, Demery, and Torrez, respectively. (See Doc. 115.) Does 10-15 were dismissed for failure to timely substitute. (See Doc. 130.) 1 (Doc. 29). In the motions for injunctive relief, Plaintiff sought a Court Order directing 2 Defendants to provide him adequate pain medication, to take him to an outside 3 neurosurgeon, and to give him access to legal supplies. (Doc. 54.) In an October 29, 2018 4 Order (Doc. 54), the Court denied Plaintiff’s motions for injunctive relief. In denying 5 Plaintiff’s motions, the Court found that the evidence showed Plaintiff had been taken to 6 see a neurologist on August 3, 2018, additional consult requests had been submitted 7 pursuant to the neurologist’s recommendations, Plaintiff’s pain was being treated with 8 Meloxicam, and Plaintiff’s right to access the courts had not been violated. (Doc. 54.) 9 However, the Court denied the motions with leave to re-file if Plaintiff’s pain medication 10 was again discontinued; if he was not scheduled for an EMG, MRI, and physical therapy 11 as recommended by Dr. Feiz-Erfan; and/or if he was not scheduled for a neurosurgery 12 follow-up as recommended. (Id.) 13 On January 30, 2019, Plaintiff filed a Motion for a Temporary Restraining Order 14 and a Preliminary Injunction (Doc. 78). In an August 27, 2019 Order, the Court granted 15 the Motion to the extent it ordered Defendants to file a notice within 20 days (1) indicating 16 Plaintiff’s condition at the present time and his current course of treatment, specifically 17 pertaining to pain management; (2) showing that Plaintiff either is currently receiving 18 physical therapy, or such relief is no longer medically indicated; (3) showing that Plaintiff 19 has received an MRI of his lumbar spine, or that an MRI of the lumbar spine is no longer 20 medically-indicated; and (4) showing that Plaintiff has seen or is scheduled to see Dr. Feiz21 Erfan for a follow-up evaluation and recommended care. The Court denied the Motion in 22 all other respects. 23 On September 12, 2019, Plaintiff filed a Motion for Contempt (Doc. 159). On 24 September 16, 2019, Defendants filed a Notice in response to the Court’s August 27, 2019 25 Order (Doc. 160). On September 20, 2019, Plaintiff filed a Reply to Defendants’ Notice 26 (Doc. 163). On September 24, 2019, Plaintiff filed a Motion for Preliminary Injunction 27 Hearing (Doc. 166). On October 15, 2019, Plaintiff filed a Second Motion for Contempt — 28 — 1 (Doc. 177). In an October 16, 2019 Order, Magistrate Judge Metcalf denied Plaintiff’s 2 Motion to Strike. 3 II. Motion for Contempt and Objections 4 On September 12, 2019, Plaintiff filed a Motion for Contempt (Doc. 159), which 5 the Court construes as a Motion for Contempt and Objection to Magistrate Judge Metcalf’s 6 August 8, 2019 Order denying Plaintiff’s Motion for Extension. Plaintiff states that 7 Defendants have intentionally delayed this case and failed to carry out the neurosurgeon’s 8 recommendations. Plaintiff states that Defendants retaliated against him by discontinuing 9 medications and prescribing him a “harmful cocktails of drugs.” (Id. at 2-3.) Plaintiff 10 alleges that he was prescribed keppra and tramadol, which caused him to suffer dizziness, 11 anger, and hallucinations. Plaintiff’s tramadol prescription was discontinued on September 12 4, 2019 because of the side effects he was experiencing. Plaintiff claims he does not have 13 any pain relief, and Corizon and ADC retaliated against him and interfered with his medical 14 treatment, causing his medications to be discontinued. Plaintiff claims that this all occurred 15 after the deadlines for amendments, supplements, and disclosures expired. 16 Plaintiff asks the Court to find Defendant Demery and non-party Ortiz in contempt 17 of the Court’s August 27, 2019 Order, objects to the Magistrate Judge Metcalf’s August 8, 18 2019 Order, and asks the Court to order counsel to meet with Plaintiff regarding a possible 19 settlement. 20 A. Contempt 21 Plaintiff’s asserts that Defendant Demery and non-party Ortiz are in contempt of the 22 Court’s August 27, 2019 Order by failing to carry out the neurosurgeon’s recommendations 23 and provide him with proper medication. 24 1. Legal Standard 25 Under Federal Rule of Civil Procedure 70(e), the district court may hold a 26 disobedient party in contempt. “This power may be used by a district court to impose 27 compliance with its lawful orders.” S. Cal. Darts Assoc. v. S. Cal. Darts Assoc., Inc., No. 28 CV 12-01899-RGK (JCGx), 2012 WL 12882764 , at *1 (citing Shillitani v. United States, — 1 — 384 U.S. 364, 370 (1966) (“[t]here can be no question that courts have inherent power to 2 enforce compliance with their lawful orders through civil contempt”)). The Court has broad 3 discretion in deciding whether to hold a party in contempt. Hook v. Ariz. Dep’t of Corrs., — 4 — 107 F.3d 1397 , 1403 (9th Cir. 1997). 5 The movant has the initial burden to show “by clear and convincing evidence that 6 the contemnors violated a specific and definite order of the court.” In re Bennett, 298 F.3d 7 1059, 1069 (9th Cir. 2002) (citation and quotation omitted). Once the initial burden is 8 satisfied, the “burden then shifts to the contemnors to demonstrate why they were unable 9 to comply.” Id. (citation and quotation omitted). Generally, a violation is found where a 10 party fails “to take all reasonable steps within the party’s power to comply” with a court 11 order, and “[t]he contempt need not be willful.” Reno Air Racing Ass’n., Inc. v. McCord, — 12 — 452 F.3d 1126, 1130 (9th Cir. 2006) (citations and quotations omitted). Good faith action 13 based on a reasonable interpretation of a court order is a defense to civil contempt. Id. 14 “Substantial compliance” with a court order is also a defense to civil contempt, regardless 15 of “a few technical violations,” as long as every reasonable effort has been made to comply. 16 In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993) 17 (citations omitted). 18 2. Discussion 19 The Court’s August 27, 2019 Order required Defendants to file a notice with 20 documentary evidence indicating Plaintiff’s condition at the present time and his current 21 course of treatment, specifically pertaining to pain management. The Court also required 22 Defendants to show in the notice that (1) Plaintiff either was currently receiving physical 23 therapy, or such relief was no longer medically indicated, (2) Plaintiff has received an MRI 24 of his lumbar spine, or that an MRI of the lumbar spine is no longer medically indicated, 25 and (3) Plaintiff has seen or is scheduled to see Dr. Feiz-Erfan for a follow-up evaluation 26 and recommended care. Ortiz is not a party to this action and therefore cannot be held in 27 contempt. — 28 — 1 On September 16, 2019, Defendants filed a Notice in accordance with the Court’s 2 August 27, 2019 Order. Therefore, Plaintiff has failed to meet his initial burden of showing 3 by clear and convincing evidence that Defendant Demery violated a specific and definite 4 order of this Court, and the Court will deny this portion of Plaintiff’s Motion. 5 B. Objection 6 1. Legal Standard 7 Federal Rule 72(a) provides that, within 14 days of being served a copy of a 8 magistrate judge’s order deciding a pretrial, non-dispositive matter, “[a] party may serve 9 and file objections to the order.” Fed. R. Civ. P. 72(a). An appeal from the determination 10 of a magistrate judge is reviewed by the district judge under a “clearly erroneous or 11 contrary to law” standard. Id., 28 U.S.C. § 636 (b)(1)(A). 12 2. Discussion 13 a. Magistrate Judge Metcalf’s August 8, 2019 Order 14 On July 25, 2019, Plaintiff filed a Motion for Extension seeking leave to amend the 15 deadline for motions to amend or supplement, file a supplemental complaint, and pursue 16 discovery with any newly added defendants (Doc. 143). In his August 8, 2019 Order 17 (Doc. 149) denying Plaintiff’s July 25, 2019 Motion for Extension of Time, Magistrate 18 Judge Metcalf determined that Plaintiff had failed to show good cause to amend the 19 schedule because Plaintiff failed to show that “with diligence his new claims or 20 amendments could not have been made earlier.” (Id. at 2.) Judge Metcalf therefore denied 21 Plaintiff’s Motion for Extension. b. Plaintiff’s Motion for Clarification and Motion for — 22 — Reconsideration — 23 — On August 16, 2019, Plaintiff filed a Motion for Clarification and Motion for — 24 — Reconsideration of the Magistrate Judge Metcalf’s August 8, 2019 Order (Doc. 150). In — 25 — the Motion, Plaintiff argues that he could not serve discovery requests on Defendants Gertz, — 26 — Schmid, Demery, Torrez, and Johnson because these Defendants were fictitiously — 27 — identified when the deadline for discovery requests passed. Plaintiff also argues that his — 28 — failure to comply with deadlines for amendments was involuntary and the result of 1 medications that affect his “awareness-behavior-comprehension-memory,” consistent 2 seizures due to the discontinuation of his medication, and his mental health issues. 3 c. Magistrate Judge Metcalf’s August 28, 2019 Order 4 On August 28, 2019, Magistrate Judge Metcalf issued an Order addressing 5 Plaintiff’s Motion for Clarification and Motion for Reconsideration (Doc. 155). With 6 regard to Plaintiff’s request for clarification, Judge Metcalf informed Plaintiff that the 7 August 8, 2019 Order did not deny Plaintiff discovery as to the newly appearing 8 Defendants. Instead, the Court denied the request for discovery on any new defendants 9 Plaintiff sought to add in any amended or supplemental complaint. Judge Metcalf informed 10 Plaintiff that in an Order filed on July 18, 2019, the Court directed that “any further motions 11 to amend the schedule based upon the appearance of a new party shall be filed within 21 12 days of such appearance.” Judge Metcalf ordered Defendants to file a response within 14 13 days to Plaintiff’s Motion with regard to discovery deadlines for any newly appearing 14 defendants. 15 With regard to Plaintiff’s request to file an amended or supplemental complaint, 16 Judge Metcalf concluded that Plaintiff failed to identify any newly discovered evidence 17 that he could not have presented in an earlier motion and that Plaintiff failed to point to any 18 change in the controlling law or clear error. Judge Metcalf further concluded that Plaintiff’s 19 health and mental health issues did not justify reconsideration and that the new claims 20 Plaintiff sought to assert—retaliation claims—did not involve the same core factual issues. 21 (Doc. 155 at 4.) 22 d. Defendants’ Response 23 On September 11, 2019, Defendants filed a Response to Plaintiff’s Motion for 24 Reconsideration (Doc. 158). Defendants argue that the Plaintiff’s Motion should be denied. 25 Defendants state that Plaintiff filed his Motion more than 21 days after Defendant Torrez 26 filed his answer and prior to Defendant Gertz’s appearance. Defendants also state that 27 Plaintiff’s Motion was timely as to Defendant Schmid. Defendants further argue that 28 Defendant Johnson should be dismissed and no discovery should be allowed as to Johnson 1 because Plaintiff failed to properly serve Johnson and has failed to respond to the Court’s 2 Order to Show Cause as to why Johnson should not be dismissed. 3 e. Magistrate Judge Metcalf’s September 24, 2019 Order 4 In his September 24, 2019 Order, Judge Metcalf granted Plaintiff’s Motion for 5 Clarification to the extent his Order provided Plaintiff with the clarification he was seeking 6 (Doc. 165). The Order concluded that Plaintiff failed to provide a basis for Judge Metcalf 7 to reconsider his August 8th Order. Judge Metcalf also informed Plaintiff that, if he can 8 show good cause under Rule 16(b) regarding his attempts to file a motion to amend the 9 schedule as to newly served defendants, he should file a motion. 10 3. Conclusion 11 Plaintiff has failed to show that Judge Metcalf made any factual determinations or 12 rulings on Plaintiff’s Motion for Extension that were “clearly erroneous or contrary to law.” 13 First, Plaintiff has yet to supply a proposed amended complaint. Local Rule of Civil 14 Procedure 15.1 requires that “[a] party who moves for leave to amend a pleading . . . must 15 attach a copy of the proposed amended pleading as an exhibit to the motion.” Second, 16 Plaintiff failed to show good cause to amend the scheduling order, as required by Rule 17 16(b)(4) of the Federal Rules of Civil Procedure. Judge Metcalf’s July 18, 2019 Order 18 stated that “any further motions to amend the schedule based upon the appearance of a new 19 party shall be filed within 21 days of such appearance.” As Judge Metcalf noted, if Plaintiff 20 believes he can show good cause regarding his attempts to file a motion to amend the 21 schedule as to the newly served defendants, he should file a motion for Judge Metcalf to 22 address. 23 Plaintiff alleges that after the deadlines to amend and supplement expired, he was 24 retaliated against and prescribed medication that made him hallucinate and become dizzy 25 and angry, and his pain medication was discontinued. Although Plaintiff’s claims of 26 retaliation may be related to the claims in this action, the elements of a retaliation claim 27 are completely different than the elements of a medical care claim. Also, it appears several 28 of Plaintiff’s new medical care allegations concern non-parties Ortiz and Centurion. To the 1 extent Plaintiff wishes to assert these claims, he should do so by filing a complaint in a new 2 case. 3 C. Settlement 4 Plaintiff asks the Court to order Defendants’ counsel to meet with him to discuss a 5 possible settlement. Under Local Rule of Civil Procedure 83.10, the Court may conduct a 6 settlement conference if both parties request one. At this time, Defendants have not 7 indicated a similar desire for a settlement conference; therefore, Plaintiff’s request for a 8 settlement conference will be denied without prejudice. 9 III. Motion for Preliminary Injunction Hearing 10 In his Motion (Doc. 166), Plaintiff asks the Court to set a preliminary injunction 11 hearing regarding his current medical condition and treatment. Defendants filed a Response 12 opposing Plaintiff’s request for a preliminary injunction hearing. (Doc. 173) 13 A. Plaintiff’s Current Medical Treatment 14 1. Physical Therapy 15 On August 3, 2018, Dr. Feiz-Erfan recommended that Plaintiff start physical 16 therapy for his neck, back, and left arm and leg pain. (Doc. 85 at 31.) In their Notice, 17 Defendants state that on September 26, 2018, Plaintiff had a physical therapy evaluation, 18 and an Alternative Treatment Plan (ATP) was issued on October 2, 2018. The ATP 19 provided that Plaintiff was approved for “HEP (home exercise program) directed therapy 20 to be conducted in medical to documented compliance not for formal PT.” (Doc. 160 at 2.) 21 Plaintiff was directed to start the home exercise program, which was “delineated by 22 handouts and demonstrated by physical therapy.” (Id.) 23 2. MRI of Lumbar Spine 24 On August 3, 2018, Dr. Feiz-Erfan recommended Plaintiff obtain a lumbar spine 25 MRI without contrast. (Doc. 85 at 31.) In their Notice, Defendants have provided evidence 26 that authorization for the MRI was obtained on September 4, 2019 and stated it was 27 “pending scheduling.” (Id. at 3, 13-14.) In Plaintiff’s October 29, 2019 Motion for 28 Extension of Time, he states that he received an MRI of his lumbar spine on October 18, 1 2018. (Doc. 185 at 2.) Plaintiff states he has not yet received a copy of the results from the 2 MRI, but Provider Ortiz discussed a summary of the results with Plaintiff. (Id.) Based on 3 that conversation, the MRI revealed that Plaintiff has “‘significant conclusive’ lumbar 4 injuries along with a[n] undiagnos[ed] lumbar birth defect of scoliosis.” (Id.) 5 3. Follow-Up with Dr. Feiz-Erfan 6 On August 3, 2018, Dr. Feiz-Erfan recommended that Plaintiff return for a follow7 up appointment in two months. (Doc. 85 at 31-32.) In their Notice, Defendants state that 8 Plaintiff saw an outside neurologist on September 12, 2019. (Doc. 160 at 3.) The 9 neurologist recommended labs, an EEG study, an MRI of the brain with and without 10 contrast, and an x-ray of the cervical spine; suggested Plaintiff try Topiramate 50mg; 11 directed Plaintiff to follow-up with neurology in four weeks to go over the labs and 12 imaging; and recommended that Tramadol be limited. (Id.) Nurse Practitioner Ortiz saw 13 Plaintiff on September 12. (Id.) Ortiz ordered labs, requested an MRI consult, requested a 14 neurology consult for an EEG, and requested a follow-up appointment. (Id.) Ortiz 15 disagreed with the neurologist’s recommendation that Plaintiff try Topiamate because 16 “Plaintiff was currently doing well with Keppra.” (Id.) Ortiz prescribed Plaintiff Tylenol17 3 “until neurosurgery consult was completed.” (Id.) Ortiz also disagreed with the 18 neurologist’s recommendation that Plaintiff follow-up with neurology in four weeks 19 because “Plaintiff is stable on current medication regime”; instead, Ortiz stated that he 20 would enter a consult request after the imaging and labs were completed. (Id.) In his 21 October 29, 2019, Motion for Extension, Plaintiff states that he was transported to have an 22 MRI of his lumbar spine, a CT brain scan with dye, and a CT brain scan without dye. 23 (Doc. 185 at 2.) Plaintiff also states that he had a brain EEG test on October 21, 2019. (Id.) 24 It is not clear whether the labs, x-ray of the cervical spine, or follow-up with the neurologist 25 has been scheduled. 26 4. Pain Management 27 Plaintiff’s Gabapentin prescription was discontinued on January 26, 2019, because 28 Nurse Practitioner Weigel found that Plaintiff’s lab levels did not match his prescribed 1 dose, and the “low levels indicat[ed] potential abuse of the drug.” (Doc. 85 at 9.) On the 2 same day, Weigel prescribed Plaintiff codeine/acetaminophen. (Id.) ADC indicates in its 3 Response that, as of February 14, 2019, Plaintiff was prescribed codeine/acetaminophen. 4 (Doc. 89 at 3.) Plaintiff states in his Reply that “Corizon has consistently discontinued [his] 5 pain medication,” and as of February 27, 2019, he was not receiving any prescribed pain 6 medication. (Doc. 100 at 1, 5.) Plaintiff states that Weigel discontinued his prescription for 7 Meloxicam on February 10, 2019, and his prescription for Tylenol-3 was discontinued on 8 February 27, 2019. (Id. at 5; Doc. 92 at 4.) Consequently, the Court found there were 9 serious questions as to whether Defendants’ treatment of Plaintiff’s pain was medically 10 acceptable. 11 In their Notice, Defendants state that Plaintiff is currently taking “Diclofenac 12 Sodium (NSAID) 50 mg, twice a day and Tylenol #3 for his pain.” (Doc. 160 at 3.) In his 13 Motion for Contempt, Plaintiff states that he “can’t get pain relief,” is unable to sleep 14 through the night because he is in pain, has not taken any pain medication since September 15 4, 2019, and is currently “prescribed no pain medication.” (Doc. 160). On October 1, 2019, 16 Plaintiff noted that his “pain is clearly not being managed.” (Doc. 169 at 6.) In his 17 October 29, 2019 Motion for Extension, Plaintiff indicates that Provider Ortiz submitted a 18 request for a prescription for Gabapentin for Plaintiff, but the request has not yet been 19 approved. (Doc. 185 at 3.) 20 B. Preliminary Injunction Hearing 21 Based on the evidence and Plaintiff’s October 29, 2019 Motion for Extension of 22 Time, it appears Plaintiff has received an MRI of his lumbar spine, seen a neurologist, and 23 several of that neurologist’s recommendations have been carried out. Plaintiff also states 24 that Provider Ortiz has requested a Gabapentin prescription for Plaintiff. It therefore 25 appears Plaintiff has received or is receiving the recommended medical treatment. 26 Although the delay in carrying out the neurosurgeon’s recommendations is concerning, it 27 is a defendant’s current conduct that determines whether injunctive relief is warranted. See 28 Farmer v. Brennan, 511 U.S. 825, 845-46 (1994). Therefore, the Court will deny Plaintiff’s 1 Motion for a Preliminary Injunction Hearing without prejudice with leave to refile if 2 Plaintiff, as a result of a named Defendant’s actions, stops receiving medical treatment, his 3 pain is untreated, or he is not scheduled for a follow-up with neurosurgery or neurology.2 4 IV. Dismissal of Defendant Johnson 5 On August 21, 2019, Magistrate Judge Metcalf recommended that Defendant 6 Johnson be dismissed for failure to serve. (Doc. 152) 7 This Court “may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). It is “clear that 9 the district judge must review the magistrate judge’s findings and recommendations de 10 novo if objection is made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 11 1114, 1121 (9th Cir. 2003) (en banc); accord Schmidt v. Johnstone, 263 F. Supp. 2d 1219 , 12 1226 (D. Ariz. 2003) (“Following Reyna–Tapia, this Court concludes that de novo review 13 of factual and legal issues is required if objections are made, ‘but not 14 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 15 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 16 [magistrate judge’s] recommendations to which the parties object.”). District courts are not 17 required to conduct “any review at all . . . of any issue that is not the subject of 18 an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 19 U.S.C. § 636 (b)(1) (“A judge of the court shall make a de novo determination of those 20 portions of the [R & R] to which objection is made.”). 21 The Magistrate Judge’s Report and Recommendation recommends the dismissal of 22 Defendant Johnson without prejudice because Plaintiff failed to serve Defendant Johnson, 23 as required by Rule 4(m) of the Federal Rules of Civil Procedure. Plaintiff did not object 24 to the Report and Recommendation. Accordingly, the Magistrate Judge’s Report and 25 Recommendation will be accepted. 26 . . . . 27 . . . . — 28 — 2 As noted above, Centurion is not a defendant to this action. 1| V. Second Motion for Contempt 2 As noted above, on October 15, 2019, Plaintiff filed a Second Motion for Contempt. This Motion appears to be based on Plaintiff's argument that Defendants’ counsel failed to file a formal appearance in this action. Plaintiff is incorrect; counsel for Defendants have 5 | appeared by filing answers in this action. Accordingly, the Court will deny Plaintiffs 6 | Second Motion for Contempt. 7| ITIS ORDERED: 8 (1) The reference to the Magistrate Judge is withdrawn as to Magistrate Judge 9| Metcalfs Report and Recommendation (Doc. 152), Plaintiff's Motion for Contempt 10| (Doc. 159), Plaintiff's Motion for Preliminary Injunction Hearing (Doc. 166), and 11 | Plaintiff's Second Motion for Contempt (Doc. 177). 12 (2) Plaintiff’'s Motion for Contempt (Doc. 159) and Second Motion for Contempt 13 | (Doc. 177) are denied. 14 (3) The Magistrate Judge’s Report and Recommendation (Doc. 152) 1s 15 | ACCEPTED. 16 (4) Defendant Johnson is dismissed without prejudice. 17 (5) Plaintiff's Motion for Preliminary Injunction Hearing (Doc. 166) is denied 18 | without prejudice. 19 Dated this 18th day of November, 2019. CN iy. Unitgd StatesDistrict Judge — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —