Sanchez-Mercedes v. USA

MOTION to Dismiss for Lack of Jurisdiction

D. Conn.August 8, 2016

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ISAEL SANCHEZ-MERCEDES, : Civil No. 3:16CV00560(AWT) : Plaintiff, : v. : : : UNITED STATES OF AMERICA, : Defendant. : August 8, 2016 MOTION TO DISMISS The Defendant United States of America hereby files a Motion to Dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because this Court does not have subject matter jurisdiction over the complaint. A Memorandum in Support of the Motion to Dismiss is filed contemporaneously hereto. Respectfully submitted, DEIRDRE M. DALY UNITED STATES ATTORNEY s/ ALAN MARC SOLOWAY ASSISTANT U.S. ATTORNEY 157 CHURCH STREET-25th FL. NEW HAVEN, CT 06508 (203)821-3700 FAX: (203) 773-5373 FEDERAL BAR NO. ct01581 alan.soloway@usdoj.gov : Case 3:16-cv-00560-AWT Document 11 Filed 08/08/16 Page 1 of 2 CERTIFICATE OF SERVICE This is to certify that a copy of the within and foregoing Motion was filed with the Clerk of the Court on August 8, 2016 using the CM/ECF notification system which will send copies to all parties registered to receive the same. s/ ALAN MARC SOLOWAY Case 3:16-cv-00560-AWT Document 11 Filed 08/08/16 Page 2 of 2 Page 1 of 14 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ISAEL SANCHEZ-MERCEDES, : Civil No. 3:16CV00560(AWT) : Plaintiff, : : v. : : : UNITED STATES OF AMERICA, : : Defendant. : August 8, 2016 MEMORANDUM IN SUPPORT OF THE MOTION TO DISMISS OF THE UNITED STATES I. Plaintiff The Plaintiff Isael Sanchez-Mercedes (Register Number 60142-066), is a federal inmate presently incarcerated at the Federal Correctional Institution at Danbury, CT (“FCI Danbury”). The events giving rise to this lawsuit occurred while plaintiff was incarcerated at the Federal Correctional Complex in Petersburg, VA (“FCC Petersburg”). On May 22, 2007 plaintiff was sentenced by the U.S. District Court for the Eastern District of Pennsylvania to a 360-month term of imprisonment followed by a 3- year term of supervised for offenses to include Conspiracy to Possess with Intent to Distribute 5 Kilograms or More of Cocaine in violation of 21 U.S.C. §846, as well as Possession with Intent to Distribute 5 Kilograms or More of Cocaine in violation of 21 U.S.C. §841 (A) (1) and (B)(1)(A). On November 1, 2014 his term of imprisonment was reduced to 287 months. Criminal Docket No. 06-cr-115-1 (E.D.Pa.). Assuming plaintiff Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 1 of 14 Page 2 of 14 receives all Good Conduct Time (GCT) available, his projected release date is March 1, 2027. II. Background Plaintiff alleges on May 6, 2014, Correctional Officer (“CO”) G. Patterson confiscated a cane from plaintiff during a controlled inmate movement at FCC Petersburg. Although plaintiff states he told the officer the cane was authorized and the cane was marked with a label authorizing him to possess it, the officer refused to return the cane. Plaintiff then attempted to climb the stairs to his housing unit, at which time he fell down and injured his left shoulder and spine. See Exhibit A, Form BP-AO943, Small Claim for Property Damage or Loss (31 U.S.C. § 3723), signed and dated August 26, 2015. An investigation performed by FCC Petersburg Lieutenant S. Ortiz, on or about June 3, 2014, shows CO Patterson confiscated a cane from plaintiff after he refused to provide written authorization to possess it on May 6, 2014. During this investigation plaintiff told Lieutenant Ortiz that he attempted to show CO Patterson a label on the cane which authorized its possession, but could not produce a written authorization document so he relinquished the cane and walked away. During the June 3, 2014 interview, plaintiff did show Lieutenant Ortiz a written authorization to possess the cane; when plaintiff was asked why he did not show this authorization to CO Patterson on May 6, plaintiff stated it was the officer’s job to get on the radio and verify his authorization to possess the cane. See Exhibit B. Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 2 of 14 Page 3 of 14 A review of BOP records shows plaintiff filed an Administrative Claim with the BOP’s Mid-Atlantic Regional Office on September 10, 2015. See Exhibit A. An investigation into plaintiff’s claim performed by staff at FCC Petersburg showed plaintiff’s cane was confiscated when, while returning from Recreation, he could not provide a copy of his medical authorization to possess the cane and that plaintiff stated it was the officer’s job to verify the existence of such authorization. This investigation concluded that plaintiff failed to provide staff with medical authorization for the cane and then chose to ascend the stairs without it, but that he had not experienced a compensable loss as a result of negligence on the part of any BOP employee. Accordingly, his claim was denied. Plaintiff was notified of this decision by letter signed and dated on October 8, 2015, see Exhibit D, and timely filed the instant lawsuit. Plaintiff should be considered to have properly exhausted available administrative remedies necessary to maintain this suit under the Federal Tort Claims Act, 28 U.S.C. §2672 (“FTCA”). III. Standard of Review A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1) must be granted if the plaintiff fails to establish jurisdiction. AFederal courts are empowered to hear only those cases that (1) are within the judicial power of the United States, as defined by the Constitution; and (2) have been entrusted to them by a jurisdictional grant by Congress.@ 12 C. Wright & A. Miller, Federal Practice and Procedure ' 3522 (1984). See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978). Federal court jurisdiction cannot be presumed, but must be affirmatively and Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 3 of 14 Page 4 of 14 positively pled. Norton v. Larney, 266 U.S. 511, 515 (1925). This burden is a particularly heavy one when the object of plaintiff=s suit is the sovereign. See National Indian Youth Council v. Bruce, 485 F.2d 97, 99 (10th Cir. 1973). If the district court concludes that it does not have subject matter jurisdiction, it must dismiss the claim. See Golden Hill Paqussett Tribe of Indians v. Weicker, 839 F. Supp. 130, 136 (D. Conn. 1993), remanded on other grounds, 39 F.3d 51 (2d Cir. 1994). In considering a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), the Court may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue. Robinson v. Government of Malaysia, 269 F.3d 133, 141 n.6 (2d Cir. 2001). Further, although under Rule 12(b)(1) a court must accept as true all material factual allegations in the complaint, the court will not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); see also Cedars-Sanai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993). At all times, A[t]he burden of proving jurisdiction is on the party asserting it.@ Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996) (citation omitted). IV. The Discretionary Function Exception to the FTCA bars this claim Plaintiff files suit against the United States under the provisions of the FTCA. Plaintiff claims the government is liable because a correctional officer confiscated his cane during a controlled movement, causing him to fall down a flight of stairs after attempting to ascend them without the cane. Plaintiff’s attempt to recover damages under this theory of the case is barred by sovereign immunity, specifically by the “Discretionary Function Exception” (“DFE”) to the FTCA. Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 4 of 14 Page 5 of 14 The United States Government, as sovereign, is immune from suit unless it consents to be sued. The terms of its consent to be sued define the court’s jurisdiction to entertain any lawsuit against the government. See United States v. Sherwood, 312 U.S. 584, 586 (1941). Congress has created a limited waiver of sovereign immunity in the FTCA, and lawsuits alleging negligent conduct by the government must comply with the terms and conditions prescribed by Congress. Honda v. Clark, 386 U.S. 484, 501 (1967). The Supreme Court has specifically reminded the courts that the FTCA is a partial waiver of sovereign immunity, and courts are not at liberty to extend that waiver beyond the intention of Congress. United States v. Kubrick, 444 U.S. 111, 117 (1979). The United States is liable under the FTCA for the negligent acts or omissions of its employees while acting within the scope of their employment, under circumstances in which a private person would be liable pursuant to the law of the place where the acts or omissions occurred. 28 U.S.C. 2674(b). The FTCA under 28 U.S.C., §1346(b)(1), establishes: “Subject to the provisions of Chapter 171 of this title, the district courts, together with the United States District Court for The District of the Canal Zone, and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act of omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Although the FTCA specifically waives government immunity for negligent actions or omissions of government employees acting within the scope of their employment, there are exceptions that limit the waiver of sovereign immunity and preclude liability even where the government is negligent. The “discretionary function exception” (“DFE”) articulated at 28 Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 5 of 14 Page 6 of 14 U.S.C. Section 2680 (a) is one such exception to the United States’ limited waiver of sovereign immunity, and is a jurisdictional defense that can be raised at any time when the United States is sued under terms of the FTCA. See Hydrogen Technology Corp. v. United States, 831 F.2d 1155 (1st 1987), cert. den., 486 U.S. 1022 (1988). This statute disallows: “Any claim based upon which an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the Government, whether or not the discretion involved be abused.” The Supreme Court has noted that the discretionary function exception “marks the boundaries between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” See United States v. S.A. Empresa de Viacao Aerea, 467 U.S. 797, 808 (1994). In Berkovitz v. United States, 486 U.S. 531 (1988), the Court outlined a test to determine the applicability of the exception. First, a court must determine whether the challenged conduct involves an element of judgment or choice. Id at 536. Second, if the conduct involves judgment or choice, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. Id. Thus, the discretionary function exception applies when a governmental actor makes a judgment he is authorized to make and the judgment is based on considerations of public policy. Coulthurst v. United States, 214 F.3d 106, 109 (2d Cir. 2000) quoting United States v. Gaubert, 499 U.S. 315, 321-25 (1991). See also Salafia v. United States, 578 F. Supp 2d 435 (D. Conn. 2008). Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 6 of 14 Page 7 of 14 Confiscation of Plaintiff’s Cane Cannot Form the Basis for Liability CO Patterson’s act of confiscating plaintiff’s cane was a discretionary act based in considerations of public policy. Because of this the discretionary function exception applies, the court has no jurisdiction in this matter and must dismiss the complaint. As a threshold matter, it is crucial to identify the challenged act or omission and to place this conduct in context. While identifying the conduct being challenged is not necessarily dependent upon how the plaintiff frames the case, Rosebush v. United States, 119F.3d 438, 442 (6th Cir. 1997) (court rejected both plaintiffs' and United States' formulation of the issue of what conduct was challenged and determined for itself the "relevant inquiry"); Fisher Bros. Sales, Inc. v. United States, 46 F.3d 279, 286 (3rd. Cir. 1995) (en banc) (court need not accept plaintiffs' "characterization" of facts, including what conduct their claims are purportedly “based upon"), here it is helpful that both plaintiff and BOP agree Officer Patterson’s confiscation of the cane appears to be the act giving rise to this suit. That plaintiff believes Officer Patterson’s conduct to be the basis of liability is obvious from a plain reading of the complaint, which goes so far to identify him as the defendant in this matter. Compl. at ¶¶ 8, 14-16, 21-23. As CO Patterson’s act of confiscating plaintiff’s cane brings it within the ambit of the DFE, BOP joins plaintiff in this theory of the case. Under the Supreme Court’s decision in United States v. Gaubert, 499 U.S. 315 (1991), the discretionary function exception bars suit if two conditions are met: “(1) the acts alleged to be negligent must be discretionary, in that they involve an element of judgment or choice and are not compelled by statute or regulation and (2) the judgment Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 7 of 14 Page 8 of 14 or choice in question must be grounded in considerations of public policy or susceptible to policy analysis.” Coulthurst v. United States, 214 F.3d 106, 109 (2d Cir. 2000) (internal quotation marks omitted) (citing Gaubert, 499 U.S. at 322-23; Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536-37 (1988)). If (under the first prong) a statute, rule, or regulation allows a government employee to exercise discretion, a “strong presumption” arises that (under the second prong) “the agent’s acts are grounded in policy when exercising that discretion.” Gaubert, 499 U.S. at 324; accord Fazi v United States, 935 F.2d 535, 538 (2d Cir. 1991). 1. Gaubert’s First Prong Is Met Officer Patterson’s confiscation of plaintiff’s cane during a controlled move, where plaintiff could not provide written authorization to possess said cane, was discretionary so as to satisfy the first prong of the Gaubert inquiry. Plaintiff provides no evidence of any statute or regulation mandating a particular course of action where staff find inmates in possession of unauthorized items which might threaten the security and good order of the institution, as is his burden. Kelly v. United States, 241 F.3d 755, 760 (9th Cir. 2001) (government satisfies first prong of test because “plaintiffs point to no statute, regulation, or policy that mandates” a particular course of government action); ALX El Dorado, Inc. v. Southwest Sav. & Loan Ass’n / FSLIC, 36 F.3d 409, 411-12 (5th Cir. 1994) (“[Plaintiffs] have failed to point to even one relevant mandatory limitation on that statutory discretion. Such averments [of generalized failures to follow mandatory rules] are insufficient, in themselves, to defeat the first part of the Gaubert test.” (footnotes omitted)). In fact, the only statute governing BOP’s obligation to safeguard inmates is 18 U.S.C. § 4042, and it is phrased generally leaving specific decisions how to do so to the judgment of prison staff: Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 8 of 14 Page 9 of 14 The Bureau of Prisons, under the direction of the Attorney General, shall-- (1) have charge of the management and regulation of all Federal penal and correctional institutions; (2) provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States . . . [and] *27 (3) provide for the protection, instruction, and discipline of all persons charged with or convicted of offenses against the United States. . . . 18 U.S.C. § 4042(a). Courts have traditionally given prison authorities wide discretion in determining matters of prison security. In Rhodes v. Chapman, 452 U.S. 337, 349 n. 14 (1981), the Supreme Court stated, “[A] prison’s internal security is peculiarly a matter normally left to the discretion of prison administrators”. Similarly, in Bell v. Wolfish, 441 U.S. 520, 547 (1979), the Court ruled that “prison administrators ...should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve order and discipline and maintain institutional security.” This deference “requires that neither judge, nor jury freely substitute their judgment for that of officials who have made a considered choice.” Whitley v. Albers, 475 U.S. 312, 321 (1986). That 18 U.S.C. § 4042 is a broad grant of discretion to prison officials as how best to implement particular security practices within federal correctional institutions has been widely upheld by the courts. In Santana-Rosa v. United States, 335 F.3d 39 (1st Cir. 2003) a prisoner sued the United States over allegations that he was beaten by another inmate with a steel brush. The plaintiff alleged the BOP failed its duty to protect inmates and permitted inmates access to tools that could be used as weapons. The court held because 18 U.S.C. § 4042 does not mandate a specific course of action, allegations of negligence stemming from particular security practices were barred by the discretionary function Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 9 of 14 Page 10 of 14 exception. Santana-Rosa, 335 F.3d at 44. Similar findings as to the lack of a mandate within 18 U.S.C. § 4042 have been reached by other courts. See Montez v. United States, 359 F.3d 392, 399 (6th Cir., 2004)( § 4042 “do[es] not prescribe a mandatory course of conduct for prison officials to follow when making decisions regarding inmates’ safety.”); Cohen v. United States, 151 F.3d 1338, 1342 (11th Cir. 1998)(“[E]ven if § 4042 imposes on the BOP a general duty of care to safeguard prisoners, the BOP retains sufficient discretion in the means it may use to fulfill that duty to trigger the discretionary function exception.”); Calderon v. United States, 123 F.3d 947, 949-950 (7th Cir. 1997)( § 4042 “sets forth no particular conduct the BOP personnel should engage in or avoid while attempting to fulfill their duty to protect inmates.”); see also Subrun v. United States, 2010 WL 3809856 (D.P.R., 2010); Mitchell v. United States, 149 F.Supp.2d 1111 (D. Az., June 30, 1999). In the Second Circuit, the discretionary acts correctional officers perform during controlled movements are exactly those Congress sought to shield from liability through the discretionary function exception. In Ellis v. United States, 134 Fed. Appx. 483 (2d Cir. 2005), the Court found the discretionary function exception applicable where an officer failed to bar inmates from entering housing units in which they did not reside, where the unauthorized inmates later assaulted an inmate in that housing unit. In Ellis¸ actions taken while enforcing the controlled movement policy (during which officers may search inmates for unauthorized items, check identification cards, and ensure they are moving with alacrity between secured locations) were found to fit squarely within the protections of the discretionary function exception. Ellis, 134 Fed. Appx. at 484 (“Ellis does not challenge the district court’s correct determination that enforcement of the controlled movement policy falls within the scope of the discretionary function exception.”), citing Calderon v. United Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 10 of 14 Page 11 of 14 States, 123 F.3d 947, 951 (7th Cir. 1997) (“[W]e must now consider whether the discretion exercised by the BOP is the type of discretion which the exception seeks to protect. Specifically, we must determine whether BOP’s actions were based on considerations of public policy….[i]t is clear that balancing the need to provide inmate security with the rights of inmates to circulate and socialize within the prison involved considerations based upon public policy.”). In the absence of mandatory policies regarding how to search inmates, confiscate items which might serve as makeshift weapons, and enforce the controlled movement of inmates, Officer Patterson’s act of confiscating plaintiff’s cane neatly satisfies the first prong of Gaubert. 2. Officer Patterson’s Action Were Grounded in Considerations of Policy The second level of the discretionary function analysis is to determine whether the judgment exercised by Officer Patterson was “based on considerations of public policy.” Gaubert, 499 U.S. at 323. The issue is whether the nature of the challenged conduct is susceptible to policy analysis, but not the subjective intent of the actor exercising his discretion. Gaubert, 499 U.S. at 325. Here we find Gaubert’s second prong easily satisfied. Because 18 U.S.C. § 4042 gives BOP staff discretion over how to protect inmates and manage prison facilities (including how to control the movement of inmates), there is a “strong presumption” that the government’s actions were policy-based. Gaubert, 499 U.S. at 324; Dykstra v. BOP, 140 F.3d 791, 796 (8th Cir. 1998); Calderon, 123 F.3d at 950. Plaintiff cannot overcome that presumption. Indeed, the “endeavor of maintaining order and preserving security within our nation’s prisons” is “inherently policy-laden.” Cohen, 151 F.3d at 1343; accord Dykstra, 140 F.3d at 796 (“These factors upon which prison officials base Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 11 of 14 Page 12 of 14 such decisions are inherently grounded in social, political, and economic policy.”). Policy factors that form the basis for prison administration decisions include “inmate safety, . . efficient resource allocation,” Coulthurst, 214 F.3d at 109, “security levels, available resources, classification of inmates,” Dykstra, 140 F.3d at 796, “the rights of inmates to circulate and socialize within the prison,” Calderon, 123 F.3d at 951, “maintaining order and preserving security,” Cohen, 151 F.3d at 1344, and “potential for violence,” Buchanan v. United States, 915 F.2d 969, 972 (5th Cir. 1990), among others. The Second Circuit itself has held “that enforcement of the controlled movement policy falls within the scope of the discretionary function exception.” Ellis, 134 Fed. Appx. at 484. Because Officer Patterson’s confiscation of a potentially unauthorized item from an inmate during a controlled move was susceptible to policy analysis, if not squarely grounded in public policy as determined by several Courts of Appeals, the second prong of Gaubert is met. 3. Officer Campbell had no “duty” to Plaintiff After Confiscating His Cane There are concerns that CO Patterson may have had some “duty” to plaintiff after confiscating his cane, sending him unsteadily on his way to climb four flights of stairs to his housing unit. Such concerns are misplaced. The issue of “duty” under state law is separate and distinct from the applicability of the discretionary function exception to the FTCA. If the discretionary function exception applies to the conduct at issue, the court simply lacks jurisdiction and need not reach the merits of the underlying cause of action. Furthermore, negligence is irrelevant to the discretionary function inquiry. The express language of 28 U.S.C. §2680(a) states the discretionary function exception applies “whether or not the discretion be abused”, which proposition finds support by the Supreme Court in Gaubert Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 12 of 14 Page 13 of 14 emphasizing “[i]n the end, Gaubert’s Amended Complaint alleges nothing more than negligence…”. Gaubert, 499 U.S. at 334. By characterizing the “challenged conduct” as Officer Patterson’s decision to confiscate plaintiff’s cane, the issue of whether Patterson owed a “duty” to plaintiff is never reached, nor does it provide an alternate theory of the case plaintiff might use to circumvent the application of the discretionary function exception to the FTCA. WHEREFORE, it is respectfully prayed that the motion to dismiss is granted with prejudice. Respectfully submitted, DEIRDRE M. DALY UNITED STATES ATTORNEY s/ ALAN MARC SOLOWAY ASSISTANT U.S. ATTORNEY 157 CHURCH STREET-25th FL. NEW HAVEN, CT 06508 (203)821-3700 FAX: (203) 773-5373 FEDERAL BAR NO. ct01581 alan.soloway@usdoj.gov Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 13 of 14 Page 14 of 14 This is to certify that a copy of the within and foregoing Memorandum was filed with the Clerk of the Court on August 8, 2016 using the CM/ECF notification system which will send copies to all parties registered to receive the same. s/ ALAN MARC SOLOWAY CERTIFICATE OF SERVICE Case 3:16-cv-00560-AWT Document 11-1 Filed 08/08/16 Page 14 of 14 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 1 of 12 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 2 of 12 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 3 of 12 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 4 of 12 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 5 of 12 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 6 of 12 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 7 of 12 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 8 of 12 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 9 of 12 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 10 of 12 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 11 of 12 Case 3:16-cv-00560-AWT Document 11-2 Filed 08/08/16 Page 12 of 12