Brotherton v. United States

MOTION to Dismiss for Failure to State a Claim and, MOTION to Dismiss for Lack of Jurisdiction

E.D. Wash.June 26, 2017

United States’ Motion to Dismiss - 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOSEPH H. HARRINGTON Acting United States Attorney Rudy J. Verschoor Joseph P. Derrig Assistant United States Attorneys Post Office Box 1494 Spokane, WA 99210-1494 Telephone: (509) 353-2767 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON PATRICK BROTHERTON, Plaintiff, vs. UNITED STATES OF AMERICA, Defendant. No. 2:17-cv-00098-JLQ UNITED STATES’ MOTION TO DISMISS FOR LACK OF JURISDICTION & FAILURE TO STATE COGNIZABLE CLAIM Hearing: 6:30 p.m., August 18, 2017 (w/o oral argument) Defendant United States, through its counsel, Joseph H. Harrington, Acting United States Attorney (EDWA), and the undersigned Assistant U.S. Attorney, moves the Court pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for an Order dismissing Plaintiff’s Federal Tort Claims Act (FTCA) lawsuit with prejudice. I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Patrick Brotherton, a veteran, was treated by healthcare providers at the Mann-Grandstaff VA Medical Center (VAMC or VA) in Spokane for a number of years. See Complaint, ¶ 2.1 (ECF No. 1). On January 10, 2014, Plaintiff informed VAMC healthcare providers he was having surgery performed by an outside (i.e., non-VAMC) health-care provider on January 17, 2014. Id., ¶ 2.4. On January 17, 2014, Dr. Craig Barrow, a private orthopedic surgeon Plaintiff engaged, performed elective surgery on Plaintiff’s right ankle. Id., ¶ 2.11. Due to complications from Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 United States’ Motion to Dismiss - 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 diabetes, Plaintiff alleges the surgical wound did not heal properly after surgery and that his foot ultimately had to be amputated. Id., ¶¶ 2.10 - 2.11. For background purposes, the Court should be aware that Plaintiff filed a separate lawsuit on June 27, 2016, in Spokane County Superior Court against Dr. Craig Barrow, Jane Doe Barrow, and the Orthopaedic Specialty Clinic of Spokane concerning the same alleged negligent health care - surgical events set forth in Plaintiff’s present FTCA Complaint. See Spok. Co. Sup. Ct. Cause No. 16-2-02426-7 and Declaration of Rudy J. Verschoor, ¶ 2. On December 27, 2016, Plaintiff filed an Amended Complaint in that state action, adding Providence Health & Services and Providence Health & Services, Washington as defendants. Id., Exhibit 2. In addition, on January 13, 2017, Mr. Brotherton, for reasons unknown to this Defendant, filed another lawsuit in Spokane County Superior Court (Cause No. 17-2-00144-3) against the same defendants named in the amended complaint in Cause No. 16-2-0246-7. Id., Exhibit 3. These state cases have since been consolidated.1 On March 15, 2017, Plaintiff filed the instant FTCA Complaint against the United States in this Court. Plaintiff’s Complaint purports to assert two counts of medical negligence against the United States (i.e., the VAMC through its employee healthcare providers): (1) Failure to Secure Informed Consent before Plaintiff’s orthopedic surgery was performed by Dr. Barrow; and (2) Negligence. Id., ¶¶ 4.1 - 5.4. In Count 1, Plaintiff alleges that Dr. Sim (a VA physician) and other unspecified VA medical providers failed to obtain informed consent from the Plaintiff before Dr. Barrow performed the elective ankle surgery procedure. In Count 2, Plaintiff sets forth a conclusory claim of medical negligence without identifying any specific standard of care applicable to alleged VAMC employee health care providers. 1 It is the United States’ position that Plaintiff has properly pursued any medical negligence claims he may have against the proper defendants in the state court actions. Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 United States’ Motion to Dismiss - 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff also fails to identify any breach of a standard of care by VAMC providers and fails to provide any indication of cause in fact or legal cause of alleged damages. II. STANDARDS FOR DISMISSAL UNDER RULES 12(b)(1) & 12(b)(6) Defendant seeks dismissal of the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to assert a cognizable claim. On a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Wyler Summit Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998). A court addressing a Rule (12)(b)(1) motion to dismiss for lack of subject matter jurisdiction, however, is not restricted to the face of the pleadings. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009). Rather, the court may consider declarations or other evidence to resolve factual questions bearing on the jurisdictional issue without converting the motion into one for summary judgment. Id. Further, while a court generally assumes factual allegations to be true, the court does not assume the truth of legal conclusions merely because they are cast in the form of factual allegations. Western Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (citations omitted). Defendant seeks dismissal of Count 2 of the Complaint because it does not state a claim against the United States for which relief can be granted. Fed. R. Civ. P. 12(b)(6). “A motion to dismiss under Fed. R. Civ. P. 12(b)(6) to dismiss for failure to state a claim can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim.” Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (citing Conley v. Gibson, 355 U.S. 41 (1957)). III. LEGAL ANALYSIS A. District Court Lacks Jurisdiction Over the Informed Consent Claim. This Court lacks subject matter jurisdiction over Plaintiff’s informed consent claim in Count 1 because the doctor that performed the surgery on Plaintiff (Dr. Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 United States’ Motion to Dismiss - 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Barrow) was not a VAMC or federal employee. The Failure to Obtain Informed Consent claim in Count 1 further fails because the VAMC had no duty under Washington law to obtain informed consent when no VA doctors were involved in Plaintiff’s elective ankle surgery with a non-VAMC health care provider. Federal courts are courts of limited jurisdiction; as such, they are only empowered to hear those cases authorized by the Constitution and federally enacted statutes. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). It is presumed a case lies outside the jurisdiction of the federal courts unless a Plaintiff competently proves otherwise. Id; Thornhill Publishing Co. v. General Telephone & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). Sovereign immunity is an important limitation on subject matter jurisdiction. See Chadd v. United States, 794 F.3d 1104, 1108 (9th Cir. 2015). The United States may only be sued if it has clearly waived its sovereign immunity. Id. Where subject matter jurisdiction is lacking, the complaint must be dismissed. Id. “Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence.” Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (citing Rattlesnake Coal v. E.P.A., 509 F.3d 1095, 1102 n.2 (9th Cir. 2007)); Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983). The federal government’s waiver of sovereign immunity must be unequivocally expressed, will not be implied, and will be strictly construed in favor of the sovereign. Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted); Foster v. United States, 522 F.3d 1071, 1074 (9th Cir. 2008). “Under the FTCA’s limited waiver of sovereign immunity, the United States is liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment, ‘in accordance with the law of the place where the act or omission occurred.’” Autrey v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (emphasis in original) (citing 28 U.S.C. § 1346(b)(1)). “The FTCA includes Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 United States’ Motion to Dismiss - 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 officers and employees of ‘any federal agency’ but expressly excludes ‘any contractor with the United States.’” Id. (citing 28 U.S.C. § 2671); United States v. Orleans, 425 U.S. 807, 813-14 (1976). Dr. Barrow, the doctor who performed the surgery on Plaintiff’s ankle, is not a VA employed physician or a federal government employee. Declaration of Scott Nye, ¶ 4. Dr. Barrow is a privately employed physician who was working at the Orthopaedic Specialty Clinic of Spokane at the time of Plaintiffs’ ankle surgery. Id.; see also Verschoor Decl. Ex. 2, ¶1.4; Ex. 3, ¶ 1.4. Because Dr. Barrow was not a federal employee, the FTCA does not apply and the District Court lacks jurisdiction. Id. Therefore, the United States cannot be held liable for any alleged negligence resulting from Dr. Barrow’s alleged negligent surgery. Logue v. United States, 412 U.S. 521, 531-32 (1973) (government cannot be held liable under the FTCA for act of those that are not federal employees); Yanez v. United States, 63 F.3d 870, 872 (9th Cir. 1995) (citing 28 U.S.C. § 2671 and Logue, 412 U.S. at 93) (Congress incorporated into the definitions of the Act the exemption from liability caused by employees of a contractor). B. No Doctor at the VA Had a Duty to Obtain Informed Consent. Plaintiff claims Dr. Sim at the VA (Plaintiff’s primary care physician) failed to inform Plaintiff of the risk, before the orthopedic surgery was performed, that he might lose his foot as a result of the surgical procedure. Compl., ¶¶ 4.3-4.5 (ECF No. 1). This claim fails for several reasons. First, Dr. Sim is not a surgeon and was not involved in Plaintiff’s ankle surgery. Declaration of Dr. Daniel C. Sim, ¶¶ 1, 3. Second, since Dr. Sim was not involved in Plaintiff’s ankle surgery, he had no duty to obtain informed consent before the surgical procedure was performed by an outside, non-VA doctor. Dr. Scott Nye, Chief of Staff at the Spokane VAMC, testified that Plaintiff was referred out to the community for his ankle surgery. Declaration of Scott Nye, ¶ 2 and Exhibit 1. Plaintiff’s Complaint also makes no allegation that Dr. Sim Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 United States’ Motion to Dismiss - 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was involved in the surgery. See generally ECF No. 1; see generally, Exs. 2 and 3 (which aver that Dr. Barrow performed the surgery). The Complaint also fails to allege that some other VA employee was involved in the surgery. Dr. Nye confirmed that no VA doctors were involved in Plaintiff’s surgery. Nye Decl., ¶ 4. Thus, where no VAMC health care provider was involved at all in the surgery, the VA had no duty to obtain informed consent. In Bottemiller ex rel. Bottemiller v. Gentle Dental Service Corp., 114 Wash.App. 1078, 2002 WL 31895159 (Wash. Ct. App. 2002) at *10, the Washington Court of Appeals held that a health care provider not involved in the surgery that allegedly injured the minor child-plaintiff had no duty to obtain informed consent from the patient. Id. The Washington Court of Appeals noted that healthcare providers do not have equal informed consent obligations. Id. The court also noted that the majority of jurisdictions addressing the duty of referring physicians have held that such referring physicians do not have a duty to obtain a patient’s informed consent. Id. The only exception is where a referring physician “retained a degree of participation and control in that treatment.” Id. Washington law applies to this FTCA case. Neither Dr. Sim nor any other VA physician or health care provider participated in Plaintiff’s surgery. Nye Decl., ¶ 4; Sim Decl., ¶ 3. The VA had no role in the surgery as it referred Plaintiff into the local private provider community. Nye Decl., ¶ 3; Sim Decl., ¶ 2. Significantly, in both the Complaints filed in state court, Plaintiff specifically named Dr. Barrow as the doctor that performed his surgery and was the health care provider that failed to obtain informed consent. Verschoor Decl., Ex. 2 (Cause No. 16-2-02426-7, ¶¶ 3.7 - 3.8; 4.1 - 4.7); and Ex. 3 (Cause No. 17-2-00144- 3, ¶¶ 3.7 - 3.8; 4.1 - 4.7). Because there was no involvement by any VA health care provider in the surgery, and Plaintiff specifically averred it was Dr. Barrow who failed Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 United States’ Motion to Dismiss - 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to obtain informed consent, Plaintiff’s informed consent claim against the United States fails. Since Plaintiff is unable to establish a cognizable duty under state law requiring a non-participating VA physician to obtain informed consent, there is no basis for a determination of liability under the FTCA. See Fullmer v. United States, 34 F.Supp.2d 1325 (D. Utah. 1997) (where no duty could be found under state law, no liability exists under the FTCA) (aff’d Fullmer, ex rel. Fullmer v. United States, 166 F.3d 1220 (10th Cir. 1999)). Indeed, subject matter jurisdiction is absent under the FTCA when no actionable duty exists under state law. See Irish v. United States, 2015 WL 4622743 (D. Nev. 2015) at *2; Matthews v. United States, 2011 WL 3471140 (D. Guam 2011) at *7; Gist v. United States, 1991 WL 279289 (D. Kan. 1991) at *3. Here, no duty to obtain informed consent fell on Dr. Sims or any other VA physician or employee. Since this Court lacks jurisdiction and because the informed consent count fails to state a valid claim, the Court must dismiss Plaintiff’s Informed Consent claim in Count 1 of his Complaint. Id. C. Count 2 Must be Dismissed For Failure to State a Cognizable Claim. In Count 2, Plaintiff alleges negligence, but fails to inform the Court or Defendant of a specific duty owed, how that undisclosed duty was breached, and how such a breach was the cause in fact and the legal cause of any described damages. While notice pleading only requires a plaintiff to provide a “short and plain statement of the claim showing that the pleader is entitled to relief,” Plaintiff has failed to meet that burden here. Fed. R. Civ. P. 8(a)(2). “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior error, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (Souter, J., dissenting). “A pleading that offers labels and conclusions and a formulaic recitation of the elements of a cause of action will not do.” Id. (internal quotations and citation Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 United States’ Motion to Dismiss - 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 omitted). “Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Id. (citation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant acted unlawfully.” Id. (internal citations and quotations omitted). The Ninth Circuit, in discussing the pleading requirements established in Iqbal reiterated, “… the facts alleged in a complaint must state a claim that is plausible on its face.” Moss v. U.S. Secret Service, 572 F.3d 962, 972 (9th Cir. 2009). “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678. Here, Plaintiff has done nothing more than allude to a cause of action (negligence) without providing any factual enhancement that would make such a claim “plausible on its face.” Iqbal, 556 U.S. at 678. Recall, under Washington law (which is applied in an FTCA case brought in Washington), to recover on a claim of negligence, a plaintiff must show (1) the existence of a duty to the plaintiff; (2) breach of that duty; (3) causation in fact; (4) legal causation; and (5) a resultant injury. Lowman v. Wilbur, 178 Wash. 2d 165, 169 (Wash. 2013); Mohr v. Grantham, 172 Wash.2d 844, 850 (Wash. 2011) (citing RCW 7.70.040). Plaintiff has failed to sufficiently allege the required elements of a negligence claim as required by Iqbal. Plaintiff has simply recited, in paragraph 5.2 of the Complaint (ECF No. 1), the statutory definition of a medical malpractice claim. See Revised Code of Washington § 7.70.040. But Plaintiff has not identified what the applicable standard of care is, what it consists of and the scope of that standard of care, nor has he provided any factual statement regarding how any alleged standard of Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 United States’ Motion to Dismiss - 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 care was breached by an employee of the VA (other than the informed consent claim). Plaintiff has also failed to plausibly explain how any such breach was both a cause in fact and legal cause of Plaintiff’s injury. Nowhere does the Complaint mention any acts or omissions by a VA health care provider, other than those related to the informed consent claim in Count 1. Here, Plaintiff has barely provided a “formulaic recitation of the elements of a cause of action” (Iqbal, 556 U.S. at 678) and no “facts that are merely consistent with a defendant’s liability” (Moss, 572 F.3d at 972). Such conclusory allegations are exactly what the Supreme Court in Iqbal deemed inadequate. Moss, 572 F.3d at 970. “Dismissal under Rule 12(b)(6) can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t., 901 F. 2d 696, 699 (9th Cir. 1990), abrogated on other grounds by Twombly, 550 U.S. 544; Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (“a court discounts conclusory statements, which are not entitled to the presumption of truth, before determining whether a claim is plausible”) (citing Iqbal, 556 U.S. at 678). Here, Count 2, based on some unspecified, conclusory negligence claim must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because it fails to state a claim. Iqbal, 556 U.S. at 678.2 Further still, since all the facts in the instant Complaint relate only to Plaintiff’s Count 1 (the informed consent claim), Count 2 is duplicative and repetitive of his claim in Count 1. For this additional reason, Count 2 must be dismissed. See e.g., McKinnon v. Dollar Thrifty Automotive Group, Inc., 2013 WL 791457 (N.D. Cal. 2 Rule 12(h)(3) also requires a court to dismiss, including sua sponte ,“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter …” Where subject matter jurisdiction is lacking, the complaint must be dismissed, particularly where amendment will not cure the jurisdictional defect. Oregon v. Legal Services Corp., 552 F.3d 965, 972 (9th Cir. 2009). Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 United States’ Motion to Dismiss - 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2013) (dismissing duplicative claims); Parker v. Arizona Dep’t of Corrections, 2010 WL 1416038 (D. Az. 2010) (same). Washington law allows recovery in a medical malpractice lawsuit based on three possible theories: (1) injury resulting from failure of a health care provider to follow the acceptable standard of care; (2) health care provider promised the patient the injury suffered would not occur; and (3) a failure to obtain informed consent. RCW § 7.70.030. However, Plaintiff is not allowed to plead a “lack of informed consent” claim and then bring another count of negligence based on that same legal theory. McKinnon, Id., Parker, id., and RCW 7.70.030. Plaintiff has done that here, and the duplicative claim in Count 2 must be dismissed. When dismissing claims under Fed. R. Civ. P. 12(b)(6), a court should consider granting the Plaintiff leave to amend the complaint “unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). Here, Plaintiff’s general and conclusory alleged negligence claim in Count 2 of the Complaint is contingent and based upon the same alleged medical care and conduct set forth in Count 1 of the Complaint (i.e., alleged Failure to Obtain Informed Consent). Therefore, amendment will not cure Plaintiff’s defects for the following reasons. First, the District Court does not have jurisdiction over the surgery-based claim since no VAMC employee was involved in Plaintiff’s surgical procedure or care. See Section A (No Jurisdiction), infra. Second, the VAMC owed no cognizable duty to obtain informed consent from Plaintiff’s before his surgical procedure performed by the independently-employed Dr. Barrow. See Section B (No Duty to Obtain Informed Consent), infra. Therefore, any amendment is futile since Plaintiff’s legal claims are both jurisdictionally and legally defective. Cook, Perkiss and Liehe, Inc., Id. Dismissal of the Complaint with prejudice is appropriate and warranted. Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 United States’ Motion to Dismiss - 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the foregoing reasons, the Court should dismiss this completely baseless case with prejudice. RESPECTFULLY SUBMITTED this 26th day of June, 2017. JOSEPH H. HARRINGTON Acting United States Attorney s/ Rudy J. Verschoor RUDY J. VERSCHOOR JOSEPH P. DERRIG Assistant United States Attorneys Attorneys for Defendant United States Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 United States’ Motion to Dismiss - 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on June 26, 2017, I caused to be delivered via the method listed below the document to which this Certificate of Service is attached (plus any exhibits and/or attachments) to the following: NAME & ADDRESS Method of Delivery J. Gregory Casey Marshall W. Casey M. Casey Law 1106 N. Washington, Suite B Spokane, WA 99201 greg@spokanelawcenter.com marshall@spokanelawcenter.com ☒CM/ECF System ☐Electronic Mail ☐U.S. Mail ☐Other: _______________________ s/Rudy J. Verschoor Assistant United States Attorney Case 2:17-cv-00098-JLQ Document 5 Filed 06/26/17 13 Case 2:17-cv-00098-JLQ Document 5-1 Filed 06/26/17 14 Case 2:17-cv-00098-JLQ Document 5-1 Filed 06/26/17 15 Case 2:17-cv-00098-JLQ Document 5-2 Filed 06/26/17 16 Case 2:17-cv-00098-JLQ Document 5-3 Filed 06/26/17 17 Case 2:17-cv-00098-JLQ Document 5-3 Filed 06/26/17 18 Case 2:17-cv-00098-JLQ Document 5-4 Filed 06/26/17 19 Case 2:17-cv-00098-JLQ Document 5-4 Filed 06/26/17 20 Case 2:17-cv-00098-JLQ Document 5-4 Filed 06/26/17 21 Case 2:17-cv-00098-JLQ Document 5-4 Filed 06/26/17 22 Case 2:17-cv-00098-JLQ Document 5-4 Filed 06/26/17 23 Case 2:17-cv-00098-JLQ Document 5-4 Filed 06/26/17 24 Case 2:17-cv-00098-JLQ Document 5-4 Filed 06/26/17 25 Case 2:17-cv-00098-JLQ Document 5-5 Filed 06/26/17 26 Case 2:17-cv-00098-JLQ Document 5-5 Filed 06/26/17 27 Case 2:17-cv-00098-JLQ Document 5-5 Filed 06/26/17 28 Case 2:17-cv-00098-JLQ Document 5-5 Filed 06/26/17 29 Case 2:17-cv-00098-JLQ Document 5-5 Filed 06/26/17 30 Case 2:17-cv-00098-JLQ Document 5-5 Filed 06/26/17 31 Case 2:17-cv-00098-JLQ Document 5-5 Filed 06/26/17 32 Case 2:17-cv-00098-JLQ Document 5-6 Filed 06/26/17 33 Case 2:17-cv-00098-JLQ Document 5-6 Filed 06/26/17