Pinson v. Federal Bureau of Prisons

• Court: District Court, D. Arizona
• Decided: February 25, 2025
• Docket: 4:23-cv-00442
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jeremy Pinson, No. CV-23-00442-TUC-RM

10 Plaintiff, ORDER

11 v.

12 Federal Bureau of Prisons, et al.,

13 Defendants. 14 15 Plaintiff Jeremy Pinson, proceeding pro se, sues Defendant United States of 16 America, alleging—in the currently operative First Amended Complaint—violations of 17 the First Amendment and the Federal Tort Claims Act (“FTCA”). (Doc. 7; see also Doc. 18 18.) The following Motions are pending before the Court: 19 • Plaintiff’s Motion for Leave to File Second Amended Complaint (Doc. 22) 20 • Defendant’s Motion to Partially Dismiss First Amended Complaint for 21 Lack of Subject Matter Jurisdiction (Doc. 23) 22 • Plaintiff’s Motion for Issuance of Subpoena and Appointment of Counsel 23 (Doc. 27) 24 • Debra Pinson’s Motion to Intervene and for Permissive Joinder (Doc. 34) 25 • Defendant’s Motion for Clarification Regarding Plaintiff’s Proposed 26 Second Amended Complaint (Doc. 36) 27 • Plaintiff’s Motion for Preliminary Injunction and for Appointment of 28 Counsel and Special Master (Doc. 37) 1 • Plaintiff’s Motion for Leave to Conduct Expedited Discovery (Doc. 38) 2 • Plaintiff’s Motion to Strike Response (Doc. 57) 3 • Plaintiff’s Motion for Consideration of GAO Report in Screening Proposed 4 Second Amended Complaint (Doc. 59) 5 • Plaintiff’s Motion for Expedited Decisions on Pending Motions (Doc. 63) 6 • Plaintiff’s Motion to Withdraw Request to Amend (Doc. 67) 7 • Plaintiff’s Motion for Issuance of Order to Show Cause Regarding Access 8 to Courts (Doc. 69) 9 • Plaintiff’s Motion for Leave to File Untimely Reply (Doc. 88) 10 • Plaintiff’s Motion for Leave to File Reply to Responses to Order to Show 11 Cause (Doc. 91) 12 • Plaintiff’s Motion for Order to File Declarations and Motion for Extension 13 of Time to File Replies (Doc. 92) 14 • Plaintiff’s Emergency Motion for a Preliminary Injunction (Doc. 94) 15 • Defendant’s Motion to Strike (Doc. 95) 16 • Plaintiff’s Third Emergency Motion for a Preliminary Injunction (Doc. 96) 17 The Court will order Defendant to file a third supplemental response to Plaintiff’s 18 Motion for Issuance of Order to Show Cause (Doc. 69), and will resolve that Motion after 19 the filing of the third supplemental response. The Court will resolve Plaintiff’s 20 Emergency Motions for Preliminary Injunctions (Docs. 94, 96) by separate Order. The 21 Court addresses the other pending Motions below.1 22 I. Background 23 When Plaintiff initiated this action, she2 was housed in the United States 24 Penitentiary (“USP”)-Tucson. (See Doc. 1.) On January 11, 2024, Plaintiff filed a

25 1 On January 10, 2025, Defendant filed a Notice of Conditional Settlement, stating that Plaintiff and Defendant have reached an agreement to resolve this matter, conditional 26 upon approval by the United States Attorney General or his designee. (Doc. 100.) The parties subsequently filed a Joint Status Report, notifying the Court that they have 27 executed a settlement agreement, and the settlement has been submitted for payment. (Doc. 107.) However, the parties have not asked the Court to stay resolution of the 28 pending Motions in light of the settlement. 2 Plaintiff is transgender and uses female pronouns. 1 Notice of Change of Address, informing the Court that she had been transferred to USP- 2 Allenwood in White Deer, Pennsylvania. (Doc. 17.) On March 15, 2024, the Court 3 screened Plaintiff’s First Amended Complaint (“FAC”) pursuant to 28 U.S.C. § 4 1915A(a), and ordered Defendant United States to answer Counts One and Three. (Doc. 5 18.) In Count One, Plaintiff asserts a First Amendment retaliation claim, alleging that 6 Bureau of Prisons (“BOP”) employees at USP-Tucson retaliated against her by holding 7 her in the Special Housing Unit (“SHU”) and providing false and misleading information 8 to secure her transfer to USP-Allenwood. (Doc. 7 at 3, 7-20.) In Count Three, Plaintiff 9 asserts an FTCA claim alleging that USP-Tucson staff failed to protect her from an attack 10 by an inmate named Tyrone Brown and exacerbated the mental and emotional trauma 11 caused by the attack. (Id. at 5, 7-20.) 12 After being transferred to USP-Allenwood, Plaintiff sought leave to file a Second 13 Amended Complaint (“SAC”). (Doc. 22.) The proposed SAC adds new defendants, a 14 new Fifth Amendment claim alleging that Plaintiff was placed in solitary 15 confinement/segregated housing (“restrictive housing”) without due process, and a new 16 hybrid Eighth Amendment/FTCA claim arising from the mental health effects of 17 Plaintiff’s long-term placement in restrictive housing. (Doc. 22-1.) 18 On June 4, 2024, in lieu of filing an Answer, Defendant filed a Motion to Dismiss, 19 arguing that this Court should dismiss Count One of the FAC for lack of subject-matter 20 jurisdiction because Plaintiff cannot establish injury-in-fact and redressability, and 21 because it seeks impermissible relief, and that the Court should partially dismiss Count 22 Three to the extent Plaintiff alleges constitutional violations or seeks injunctive relief. 23 (Doc. 23.) 24 Plaintiff thereafter filed a number of motions related to her confinement in the 25 Secure Administrative Unit (“SAU”) at USP-Allenwood. On July 22, 2024, Plaintiff and 26 her mother, Debra Pinson, filed a Motion to Intervene and for Permissive Joinder, 27 alleging that Debra Pinson’s constitutional rights to maintain a relationship with her 28 daughter had been abridged by Plaintiff’s placement in the SAU. (Doc. 34.) On July 29, 1 2024, Plaintiff filed a Motion for Preliminary Injunction, seeking to enjoin the BOP from 2 housing her in the SAU or any other restrictive housing units at USP-Allenwood. (Doc. 3 37.) On August 2, 2024, Plaintiff filed a Motion for Leave to Conduct Expedited 4 Discovery, arguing that she should be allowed to conduct expedited discovery related to 5 her proposed SAC and her Motion for Preliminary Injunction due to irreparable injury 6 that she was experiencing as a result of her confinement in the SAU. (Doc. 38.) 7 On October 7, 2024, Plaintiff moved to withdraw as moot her Motion for Leave to 8 File SAC, her Motion for Preliminary Injunction, her Motion for Leave to Conduct 9 Expedited Discovery, and Debra Pinson’s Motion to Intervene, averring that she had been 10 told she was going to be redesignated to a Reintegration Unit and would no longer be 11 placed in restrictive housing. (Doc. 67.) Instead of being moved to a Reintegration Unit, 12 however, Plaintiff was moved temporarily to the SHU at USP-Terre Haute (Doc. 70; 13 Doc. 72 at 2), and then to the Federal Correctional Institution in El Reno, Oklahoma 14 (“FCI El Reno”) (Doc. 78 at 2; Doc. 79; Doc. 82 at 2). Plaintiff was initially placed in 15 the general population unit of FCI El Reno but was moved to the SHU on November 12, 16 2024. (Doc. 82 at 2.) 17 While at USP-Terre Haute, Plaintiff filed a Motion for Issuance of Order to Show 18 Cause Regarding Access to Courts, seeking to withdraw her previously filed Motion to 19 Withdraw, and alleging that the Bureau of Prisons had discontinued her medication and 20 was denying her access to legal files and supplies. (Doc. 69.) The Court required 21 Defendant to file an expedited response to the Motion for Issuance of Order to Show 22 Cause. (Doc. 71.) Defendant filed a Response, followed by two Supplements. (Docs. 23 72, 78, 82.) Plaintiff then filed a flurry of documents related to her confinement at FCI El 24 Reno (Docs. 86, 88, 91, 92. 94, 96), some of which Defendant moved to strike (Doc. 95). 25 II. Plaintiff’s Motion for Leave to File Second Amended Complaint (Doc. 22) 26 Plaintiff seeks leave to amend her complaint to allege violations of the Fifth 27 Amendment (Count Two) and the Eighth Amendment (Count Four), as well as an 28 additional violation of the FTCA (Count Four), and to add as individual defendants Mark 1 Gutierrez, Muhammad Zantout, Christopher Marlow, Ashley Noble, and Stephen 2 Williams. (Doc. 22; see also Doc. 22-1.) In her proposed SAC, Plaintiff continues to 3 seek $10,000,000.00 against the United States on the FTCA claim in Count Three; she 4 also seeks $25,000,000.00 against the United States on the FTCA portion of Count Four, 5 and $500,000.00 each against the individual defendants. (Doc. 22-1 at 14-15.) In 6 addition, Plaintiff seeks injunctive relief enjoining the BOP from placing her in restrictive 7 housing and from retaliating against her for exercising her First Amendment rights. (Id.) 8 A. Legal Standard 9 With the exception of amendments made as a matter of course,3 a party “may 10 amend its pleading only with the opposing party’s written consent or the court’s leave.” 11 Fed. R. Civ. P. 15(a)(2). Leave should freely be given “when justice so requires.” Id. In 12 determining whether to grant leave to amend, courts consider the following factors: 13 “undue delay, bad faith or dilatory motive on the part of the movant[;] repeated failure to 14 cure deficiencies by amendments previously allowed[;] undue prejudice to the opposing 15 party by virtue of allowance of the amendment[; and] futility of amendment.” Eminence 16 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Futility alone may 17 justify denying leave to amend. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). 18 The test for determining futility is the same as the test for determining whether a pleading 19 survives a motion to dismiss under Rule 12(b)(6). White v. Relay Res., No. C19-0284- 20 JCC, 2019 WL 5677541, at *1 (W.D. Wash. Oct. 31, 2019). Under that test, “a 21 complaint must contain sufficient factual matter, accepted as true, to state a claim to relief 22 that is plausible on its face,” meaning the complaint’s factual allegations must “allow[] 23 the court to draw the reasonable inference that the defendant is liable for the misconduct 24 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 25 . . . . 26 3 A party may amend its pleading once as a matter of course within certain timeframes. 27 See Fed. R. Civ. P. 15(a)(1). Plaintiff argues that she may amend as a matter of course because this is her first amendment of her own volition; however, she cites no authority 28 in support of that proposition, and the text of Rule 15 does not distinguish between volitional and non-volitional amendments. 1 B. Discussion 2 Plaintiff’s proposed SAC adds factual detail to existing claims and adds new 3 claims and defendants. Although some claims of the proposed SAC fail on screening 4 under 28 U.S.C. § 1915A(a), as discussed below, the proposed amendment is not entirely 5 futile. Furthermore, Plaintiff moved to file the proposed SAC early in this case, before 6 Defendant had answered or otherwise responded to the FAC and prior to the 7 commencement of discovery. Given the timing of the Motion, the Court does not find 8 undue delay, bad faith or dilatory motive on Plaintiff’s part, nor does the Court find 9 undue prejudice to Defendant in allowing the amendment. Accordingly, the Court finds 10 that leave to amend under Federal Rule of Civil Procedure 15 is appropriate and will 11 grant Plaintiff’s Motion. 12 III. Defendant’s Motion to Partially Dismiss First Amended Complaint for 13 Lack of Subject Matter Jurisdiction (Doc. 23) 14 Defendant moves for partial dismissal of Plaintiff’s FAC for lack of subject-matter 15 jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. 23.) Defendant 16 argues that this Court lacks subject-matter jurisdiction over Count One of the FAC 17 because Plaintiff cannot establish injury-in-fact and redressability. (Id. at 3-8.) 18 Defendant also argues that Count One should be dismissed because Plaintiff’s requests 19 for injunctive relief are vague, are overly broad, and request impermissible relief. (Id. at 20 8-12.) Finally, Defendant argues that this Court lacks jurisdiction over Count Three to 21 the extent Plaintiff alleges constitutional violations or seeks injunctive relief. (Id. at 13- 22 14.) 23 As discussed below, the Court will grant Plaintiff’s Motion for Leave to File SAC. 24 Accordingly, Defendant’s Motion to Dismiss will be denied as moot, as it addresses a 25 pleading that is no longer operative. See Ramirez v. County of San Bernardino, 806 F.3d 26 1002, 1008 (9th Cir. 2015) (“an amended complaint supersedes the original, the latter 27 being treated thereafter as non-existent”). However, as further discussed below, the 28 Court will consider the arguments raised in Defendant’s Motion to Dismiss in screening 1 Plaintiff’s SAC. 2 IV. Defendant’s Motion for Clarification (Doc. 36) 3 Defendant’s Motion for Clarification asks the Court to consider the arguments 4 raised in its Motion to Dismiss in screening Plaintiff’s proposed SAC or, alternatively, to 5 allow Defendant to respond to Plaintiff’s Motion for Leave to File SAC. (Doc. 36.) 6 Plaintiff argues that Defendant failed to timely respond to her Motion for Leave to File 7 SAC, and that Defendant’s Motion for Clarification is merely an attempt to circumvent 8 that failure. (Doc. 40 at 2, 4.)4 9 The Court will grant Defendant’s Motion for Clarification to the extent that, in the 10 interests of judicial efficiency, the Court will consider the arguments raised in 11 Defendant’s Motion to Dismiss in screening Plaintiff’s SAC. 12 V. Plaintiff’s Motion for Consideration of GAO Report (Doc. 59) 13 Plaintiff asks the Court to consider a report issued by the Government 14 Accountability Office (“GAO Report”) in screening her proposed SAC and in ruling on 15 her Motion for Preliminary Injunction and Defendant’s Motion to Dismiss. (Doc. 59.) 16 Plaintiff argues that the GAO Report details the BOP’s systemwide misuse of restrictive 17 housing, which relates to her allegations in this case regarding her prolonged placement 18 in restrictive housing. (Id.) Defendant argues that the Court should “deny Plaintiff’s 19 request because it is an improper piecemeal amendment to prior pleadings and does not 20 comply with LRCiv 15.1(a).” (Doc. 65 at 2.) Defendant notes that the GAO Report was 21 in existence at the time Plaintiff filed her proposed SAC and her pending Motion for 22 Preliminary Injunction, and that Plaintiff should have attached the GAO Report to those 23 filings in the first instance. (Id. at 3.) Defendant further argues that Plaintiff fails to 24 explain how the GAO Report supports the claims alleged in the proposed SAC or the 25 4 The Court notes that Plaintiff filed her Motion for Leave to File SAC before Defendant 26 had appeared in this action. Defendant avers that it was not served with a copy of the Motion for Leave to File SAC (Doc. 36 at 1), while Plaintiff avers that she mailed 27 Defendant a copy of the Motion on June 8, 2024 (Doc. 40 at 2). Regardless of whether Defendant timely received a copy of the Motion, the Court finds the interests of judicial 28 efficiency would be served by considering the arguments raised in Defendant’s Motion to Dismiss in screening Plaintiff’s SAC. 1 arguments raised in the Motion for Preliminary Injunction. (Id. at 3 n.2.) Finally, 2 Defendant argues that Plaintiff’s Motion is a belated attempt to file a surresponse to 3 Defendant’s Motion to Dismiss. (Id. at 4-5.) 4 Plaintiff could have attached the GAO Report to her Motion for Leave to File 5 SAC, her Motion for Preliminary Injunction, and her Response to Defendant’s Motion to 6 Dismiss, rather than belatedly asking the Court to consider the GAO Report in 7 conjunction with those filings. Furthermore, there is no need for the Court to consider 8 the GAO Report in evaluating Defendant’s Motion to Dismiss, which is being denied as 9 moot. Nor is there a need to consider the GAO Report in screening Plaintiff’s SAC, as 10 the Court will assume the truth of the allegations of the SAC for purposes of screening. 11 However, the Court will partially grant Plaintiff’s Motion to the extent it has reviewed 12 the GAO Report to determine whether it is relevant to Plaintiff’s Motion for Preliminary 13 Injunction (Doc. 37). The GAO Report discusses overuse and misuse of restrictive 14 housing by the BOP, but it does not discuss retaliatory placement in restrictive housing 15 (see Doc. 60), and it does not alter the Court’s conclusion—discussed below—that 16 Plaintiff’s Motion for Preliminary Injunction is moot. 17 VI. Screening of SAC 18 Under the Prison Litigation Reform Act (“PLRA”), the Court is required to screen 19 complaints brought by prisoners seeking relief against a governmental entity or an officer 20 or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must 21 dismiss a complaint or any portion thereof if a plaintiff has raised claims that are 22 frivolous or malicious, that fail to state a claim upon which relief may be granted, or that 23 seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 24 § 1915A(b)(1)–(2).5 25 In Count One of the proposed SAC, Plaintiff reasserts the First Amendment 26 5 In response to Defendant’s Motion for Clarification, Plaintiff argues that screening is 27 not required under the PLRA, but that she has no objection to the Court screening her proposed SAC. (Doc. 40 at 3.) The Court finds that screening is appropriate, as the 28 PLRA requires the Court to dismiss any portion of a complaint that fails to state a claim upon which relief may be granted. 1 retaliation claim raised in her FAC. (Doc. 22-1 at 10, 16-25.) In support of this claim, 2 Plaintiff alleges that BOP employees at USP-Tucson retaliated against her in violation of 3 the First Amendment by placing her in the SHU, filing false disciplinary charges, and 4 making false statements to procure her transfer to the SAU at USP-Allenwood. (Id. at 5 16-25.) Plaintiff seeks injunctive relief prohibiting the BOP from retaliating against her 6 and housing her in the SAU or any similar unit. (Id. at 14-15.) 7 The doctrine of mootness—part of the case or controversy requirement of Article 8 III of the Constitution—“requires that an actual, ongoing controversy exist at all stages of 9 federal court proceedings.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 10 2011). “A case becomes moot . . . if events subsequent to the filing of the case resolve 11 the parties’ dispute.” Id. When a plaintiff seeks only injunctive relief on a claim, “past 12 exposure to illegal conduct does not in itself show a present case or controversy . . . if 13 unaccompanied by any continuing, present adverse effects.” Los Angeles v. Lyons, 461 14 U.S. 95, 102 (1983) (internal quotation and alteration marks omitted). “The possibility 15 that a similar incident may occur in the future at another facility is not enough to create a 16 ‘case or controversy’ for purposes of awarding declaratory or injunctive relief.” Parks v. 17 Wren, No. 5:12-cv-01353-SVW-KES, 2019 WL 4854854, at *10 (C.D. Cal. Aug. 6, 18 2019), report and recommendation adopted, No. 5:12-cv-01353-SVW-KES, 2019 WL 19 4849202 (C.D. Cal. Sept. 27, 2019). However, “a prison transfer does not defeat 20 jurisdiction where a prisoner’s injury stems from a system-wide policy.” Tiedemann v. 21 von Blanckensee, 72 F.4th 1001, 1008 (9th Cir. 2023) (internal quotation and alteration 22 marks omitted). 23 Liberally construed, Plaintiff’s SAC alleges that the BOP has a system-wide 24 policy of retaliating against inmates—in the form of transfers and placement in restrictive 25 housing—for activities protected by the First Amendment. (See Doc. 22-1 at 16-25.) 26 Indeed, in screening Plaintiff’s FAC, the Court recognized that Plaintiff’s First 27 Amendment claim seeks injunctive relief aimed at the BOP systemwide and that the 28 claim for injunctive relief was therefore not rendered moot by Plaintiff’s transfer from 1 USP-Tucson. (Doc. 18 at 5 n.5.)6 The Court will require the United States to answer 2 Count One of the SAC. 3 In Count Two of the SAC, Plaintiff alleges that she has been placed in isolation 4 without due process in violation of the Fifth Amendment. (Doc. 22-1 at 11, 21-23.) In 5 support of this claim, she relies on the same allegations underlying her First Amendment 6 retaliation claim, namely, that BOP employees at USP-Tucson filed false disciplinary 7 charges and made false statements to procure her transfer to the SAU at USP-Allenwood. 8 (Id.) Plaintiff seeks the same injunctive relief sought in the First Amendment retaliation 9 claim. (Id. at 14-15.) Liberally construed, Count Two alleges a system-wide policy of 10 placing inmates in restrictive housing without due process, and seeks injunctive relief 11 aimed at the BOP systemwide. Accordingly, the Court finds that the claim has not been 12 rendered moot by Plaintiff’s transfers, and the Court will require the United States to 13 answer Count Two of the SAC. 14 In Count Three of the SAC, Plaintiff reasserts the FTCA claim asserted in her 15 FAC, alleging that United States employees failed to protect her from an attack by inmate 16 Tyrone Brown. (Doc. 22-1 at 12, 19-20.) Plaintiff seeks monetary damages on this 17 claim. (Id. at 14.)7 The Court will require the United States to answer Count Three of 18 the SAC. 19 In Count Four of the SAC, Plaintiff alleges violations of the Eighth Amendment 20 and the FTCA arising from the effects on Plaintiff’s mental health of long-term 21 placement in restrictive housing. (Doc. 22-1 at 13, 26-30.) Plaintiff adds as individual 22 defendants Gutierrez, Zantout, Marlow, Noble, and Williams, seeking monetary damages 23 against them. (Id. at 6-7, 14.) Plaintiff alleges that Noble urged the Transgender 24 6 The Court is unpersuaded by Defendant’s argument, raised in its Motion to Dismiss, 25 that Plaintiff’s First Amendment claim must be dismissed because the requested injunctive relief is too broad and vague. (Doc. 23 at 8-12.) Even if Plaintiff’s requested 26 injunctive relief is vague or overly broad, more appropriately tailored relief could be crafted. 27 7 While the Court agrees with Defendant’s arguments, raised in the Motion to Dismiss, that an FTCA claim cannot be premised on alleged constitutional violations and that 28 injunctive relief is unavailable under the FTCA (Doc. 23 at 13-14), the Court does not interpret Count Three as alleging constitutional violations or seeking injunctive relief. 1 Executive Council to house Plaintiff in the SAU at USP-Allenwood despite knowing that 2 housing Plaintiff there would place her at a heightened risk of suicide and self-harm. (Id. 3 at 28.) Plaintiff alleges that Gutierrez, Zantout, Marlow, and Williams failed to protect 4 her from incidents of self-harm in the SAU despite knowing she was suicidal and had 5 access to razors. (Id. at 30.) 6 The United States is the only proper defendant in an action brought under the 7 FTCA. Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) (per curiam). 8 Accordingly, Count Four will be dismissed to the extent it asserts FTCA claims against 9 Gutierrez, Zantout, Marlow, Noble, and Williams. 10 To the extent Plaintiff is asserting a damages claim in Count Four under Bivens v. 11 Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Court finds that the claim 12 arises in a new context, as it differs in meaningful ways from previous Bivens cases 13 decided by the Supreme Court. See Hernandez v. Mesa, 589 U.S. 93, 102 (2020). 14 Furthermore, special factors—including separation-of-powers principles and the 15 availability of an alternative remedial structure in the form of the administrative 16 grievance process available to federal prisoners—counsel against extending Bivens to this 17 new context. See id.; Egbert v. Boule, 596 U.S. 482, 497 (2022). As Plaintiff seeks only 18 monetary damages against Gutierrez, Zantout, Marlow, Noble, and Williams in Count 19 Four, and Plaintiff cannot obtain such damages against the individual defendants under 20 either the FTCA or Bivens, the Court will dismiss Gutierrez, Zantout, Marlow, Noble, 21 and Williams as defendants, and will dismiss Count Four to the extent it asserts claims 22 against those defendants. 23 The Court will require the United States to answer Count Four of the SAC to the 24 extent Plaintiff seeks a permanent injunction enjoining the BOP from placing her in 25 solitary confinement/restrictive housing. The Court will also require the United States to 26 answer the FTCA portion of Count Four, which the Court liberally construes as alleging 27 that United States employees breached a duty to protect Plaintiff from harm arising from 28 long-term placement in solitary confinement. 1 The parties may stipulate to an extension of Defendant’s deadline for answering 2 the SAC in light of their settlement. 3 VII. Plaintiff’s Motion for Preliminary Injunction (Doc. 37) 4 Plaintiff seeks an order enjoining the BOP from maintaining the SIS Report from 5 Investigations TCP-23-0021 in Plaintiff’s Central File or using them in her 6 classifications, enjoining the BOP from housing Plaintiff in the SAU at USP-Allenwood 7 or in any other restrictive housing unit at that facility, and appointing a special master to 8 monitor the preliminary injunctive relief. (Doc. 37 at 18.) 9 Plaintiff’s request to enjoin the BOP from housing her in any restrictive housing 10 unit at USP-Allenwood is moot because Plaintiff is no longer housed at USP-Allenwood 11 and there is no indication that she is likely to be transferred back to that facility. 12 Although not entirely clear, Plaintiff appears to allege that the SIS Investigation Report 13 for TCP-23-0021 played a role in her transfer to the SAU at USP-Allenwood. There is 14 no indication whether the report has played a role in Plaintiff’s subsequent transfers. 15 Because Plaintiff’s Motion relates to her prior confinement at USP-Allenwood, the Court 16 will deny the Motion as moot. 17 VIII. Debra Pinson’s Motion to Intervene (Doc. 34) 18 Plaintiff and her mother, Debra Pinson, move for Debra Pinson’s intervention and 19 joinder in this matter, alleging that Plaintiff’s transfer to the SAU at USP-Allenwood—a 20 solitary confinement facility more than 500 driving miles from Debra Pinson’s 21 residence—made it “physically and economically prohibitive” for Debra Pinson to visit 22 Plaintiff, thereby infringing Debra Pinson’s “constitutional rights to freedom of 23 association/substantive due process in maintaining a relationship with her daughter.” 24 (Doc. 34 at 3, 5.) 25 Defendant opposes the Motion, arguing that neither permissive joinder under 26 Federal Rule of Civil Procedure 20(a)(1) nor intervention under Rule 24(b)(1)(B) is 27 appropriate. (Doc. 45.) Defendant argues that the Court lacks subject-matter jurisdiction 28 over Plaintiff’s First Amendment retaliatory transfer claim, which is the only claim that 1 could potentially tie this action to Debra Pinson’s alleged claims, and that even if the 2 Court determines it has jurisdiction over the First Amendment retaliatory transfer claim, 3 Debra Pinson’s claims do not arise out of the same transaction or occurrence and do not 4 involve a common question of law or fact. (Id. at 5-11.) Defendant also argues that 5 allowing Debra Pinson to join or intervene as a plaintiff in this case would not serve the 6 interests of justice. (Id. at 3, 9.) 7 Plaintiff is no longer housed in the SAU at USP-Allenwood, and the Court takes 8 judicial notice that Plaintiff’s current facility, FCI El Reno, is located within 500 miles of 9 Debra Pinson’s residence listed in the Motion to Intervene. (See Doc. 34 at 5.)8 Debra 10 Pinson’s claims for injunctive relief are moot to the extent they are premised on 11 allegations that Debra Pinson’s constitutional rights have been violated by Plaintiff’s 12 placement in the SAU at USP-Allenwood and/or in a facility located more than 500 miles 13 away. 14 Even if not entirely moot, the Motion lacks merit, as neither joinder under Federal 15 Rule of Civil Procedure 20 nor intervention under Rule 24 is appropriate. Two or more 16 persons may join as plaintiffs in one action if: 17 (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of 18 transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. 19 20 Fed. R. Civ. P. 20(a)(1). “Rule 20 is designed to promote judicial economy, and reduce 21 inconvenience, delay, and added expense.” Coughlin v. Rogers, 130 F.3d 1348, 1351 22 (9th Cir. 1997). Where each plaintiff’s “claim is discrete, and involves different legal 23 issues” that “must be viewed in a separate and individual light,” joinder does not serve 24 “the interests of justice.” Id. 25 “On timely motion, the court may permit anyone to intervene who . . . has a claim 26 or defense that shares with the main action a common question of law or fact.” Fed. R. 27 8 “The court may judicially notice a fact that is not subject to reasonable dispute because 28 it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). 1 Civ. P. 24(b)(1)(B). In exercising its discretion whether to allow permissive intervention, 2 “the court must consider whether the intervention will unduly delay or prejudice the 3 adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). 4 Plaintiff’s claims relating to her placement in restrictive housing, and Debra 5 Pinson’s asserted claims, involve discrete legal and factual issues and will each need to 6 be viewed in a separate and individual light. For example, while Plaintiff’s First 7 Amendment retaliation claim relates to the reasons for Plaintiff’s placement in restrictive 8 housing, her Fifth Amendment claim involves whether the placement complied with due 9 process, and her Eighth Amendment claim relates to the effect of the placement on 10 Plaintiff’s mental health, Debra Pinson’s claims involve the effect on Debra Pinson’s 11 ability to visit her daughter that the placement in restrictive housing has caused. Given 12 the distinct factual and legal issues at stake, allowing the claims to proceed in one action 13 would not promote judicial efficiency. Furthermore, as this Court has previously noted, 14 Plaintiff, as a non-lawyer, cannot appear as Debra Pinson’s representative in this matter 15 (Doc. 64 (citing Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997)), and 16 the Court is troubled that Plaintiff has attempted to file motions on Debra Pinson’s 17 behalf. Plaintiff’s impermissible attempts to litigate on Debra Pinson’s behalf are reason 18 alone to deny the Motion to Intervene. See West v. Ulloa, No. 2:17-cv-04892-VBF-KES, 19 2018 WL 5974346, at *4 (C.D. Cal. Feb. 7, 2018). 20 IX. Motion to Strike Response (Doc. 57) 21 Plaintiff moves to strike Defendant’s Response to Debra Pinson’s Motion to 22 Intervene for failure to serve the Response on Debra Pinson. (Doc. 57.) In response, 23 Defendant avers that Plaintiff, rather than Debra Pinson, filed and served the Motion to 24 Intervene, but that Defendant nevertheless mailed a copy of its Response to Debra Pinson 25 on October 7, 2024. (Doc. 66.) 26 A motion to strike is proper “if it seeks to strike any part of a filing or submission 27 on the ground that it is prohibited (or not authorized) by a statute, rule, or court order.” 28 LRCiv 7.2(m)(1). The Local Rules of Civil Procedure allow a party to file a response to 1 a motion. LRCiv 7.2(c). Because Defendant’s Response is expressly allowed by the 2 Local Rules, the Court finds no basis to strike the filing. Furthermore, any issues 3 concerning lack of service on Debra Pinson have been remedied by Defendant’s mailing 4 of a copy of the Response to Debra Pinson on October 7, 2024. (See Doc. 66.) Plaintiff’s 5 Motion to Strike will be denied. 6 X. Plaintiff’s Motion for Issuance of Subpoena and Appointment of Counsel 7 (Doc. 27) 8 Plaintiff seeks the issuance of a subpoena pursuant to Federal Rule of Civil 9 Procedure 45(a) and General Order 18-19, for purposes of obtaining Office of Inspector 10 General records regarding complaints that Plaintiff and other inmates filed related to 11 Tyrone Brown. (Doc. 27.) Plaintiff states that, while housed in the SAU at USP- 12 Allenwood, she lacked access to a printer, and she was therefore unable to submit a 13 proposed subpoena in compliance with General Order 18-19. (Id. at 13-14.) Plaintiff 14 asks that the Court order the Clerk to mail her a blank subpoena and a blank USM-285 15 form. (Id. at 14.) Plaintiff also requests the appointment of counsel, arguing that she has 16 shown a likelihood of success on the merits and that her ability to litigate her claims pro 17 se is hindered by the claims’ complexity, her placement in restrictive housing, and 18 discovery disputes that she anticipates will arise. (Id. at 8-14.) 19 Defendant takes no position on Plaintiff’s request for the appointment of counsel 20 but objects to her request for the issuance of a subpoena, arguing that the request is 21 premature given the filing of Defendant’s Motion to Dismiss and because the Court has 22 not yet issued a scheduling order. (Doc. 32 at 1-2.) Defendant further argues that it is 23 not possible to determine whether Plaintiff’s request for documents satisfies applicable 24 regulations and that Plaintiff’s Motion does not comply with General Order 18-19 25 because Plaintiff did not attach a copy of her proposed subpoena. (Id. at 2.) 26 To the extent Plaintiff seeks the issuance of a subpoena, the Court will deny her 27 Motion without prejudice and with leave to refile—after the commencement of 28 discovery—a motion that includes a proposed subpoena, in compliance with General 1 Order 18-19. Although it is unclear whether Plaintiff continues to lack access to a 2 printer, the Court will grant Plaintiff’s request for a blank subpoena and blank USM-285 3 form to assist her in complying with General Order 18-19. 4 There is no constitutional right to the appointment of counsel in a civil case. See 5 Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). In 6 proceedings in forma pauperis, the court may request an attorney to represent any person 7 unable to afford one. 28 U.S.C. § 1915(e)(1). Appointment of counsel under 28 U.S.C. 8 § 1915(e)(1) is required only when “exceptional circumstances” are present. Terrell v. 9 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A determination with respect to 10 exceptional circumstances requires an evaluation of the likelihood of success on the 11 merits as well as the ability of the plaintiff to articulate her claims pro se in light of the 12 complexity of the legal issues involved. Id. “‘Neither of these factors is dispositive and 13 both must be viewed together before reaching a decision.’” Id. (quoting Wilborn v. 14 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 15 Having considered both elements, the Court does not find that exceptional 16 circumstances require the appointment of counsel at this time. Plaintiff’s likelihood of 17 success on the merits of her claims is unclear at this point, and Plaintiff is an experienced 18 pro se litigator who has demonstrated an ability to articulate her claims pro se. 19 Furthermore, speculative concerns about future discovery disputes do not support the 20 need to appoint counsel at this time. 21 XI. Plaintiff’s Motion for Leave to Conduct Expedited Discovery (Doc. 38) 22 Plaintiff seeks leave to conduct expedited discovery with respect to her Motion for 23 Preliminary Injunction and the claims in her proposed SAC. (Doc. 38.) Defendant 24 argues that Plaintiff fails to satisfy her burden of showing the need for expedited 25 discovery because she does not specify the discovery she is seeking. (Doc. 44 at 2-4.) 26 Defendant also asks the Court to strike a portion of Plaintiff’s Motion as an unauthorized 27 surresponse to Defendant’s Motion to Dismiss. (Id. at 5-6.)9

28 9 The Court declines to strike any portion of the Motion but will consider Plaintiff’s substantive arguments concerning the Motion to Dismiss only to the extent they impact 1 Rule 26(d)(1) of the Federal Rules of Civil Procedure precludes parties from 2 seeking discovery from any source before the parties have conferred as required by Rule 3 26(f). Rule 26(f), in turn, provides that the “parties must confer as soon as practicable— 4 and in any event at least 21 days before a scheduling conference is to be held or a 5 scheduling order is due under Rule 16(b).” Rule 16(b) states that a district judge must 6 issue a scheduling order after receiving the parties’ Rule 26(f) report or holding a 7 scheduling conference. Fed R. Civ. P. 16(b)(1). Rule 16(b) further states: “The judge 8 must issue the scheduling order as soon as practicable, but unless the judge finds good 9 cause for delay, the judge must issue it within the earlier of 90 days after any defendant 10 has been served with the complaint or 60 days after any defendant has appeared.” Fed. 11 R. Civ. P. 16(b)(2). Good cause for expedited discovery exists “where the need for 12 expedited discovery, in consideration of the administration of justice, outweighs the 13 prejudice to the responding party.” Semitool, Inc. v. Tokyo Electron Am., Inc., 208 14 F.R.D. 273, 276 (N.D. Cal. 2002). 15 Given the filing of Defendant’s Motion to Dismiss challenging this Court’s 16 subject-matter jurisdiction, the Court finds good cause to delay issuance of a scheduling 17 order until after Defendant files an answer to Plaintiff’s SAC. For the same reasons, and 18 due to Plaintiff’s failure to specify what discovery she seeks to conduct on an expedited 19 basis, the Court finds that the prejudice to Defendant of conducting expedited discovery 20 outweighs the need for such discovery. Accordingly, Plaintiff’s Motion for Leave to 21 Conduct Expedited Discovery will be denied. 22 XII. Plaintiff’s Motion for Expedited Decisions (Doc. 63) 23 Plaintiff’s Motion for Expedited Decisions on Pending Motions seeks expedited 24 resolution of Plaintiff’s Motion for Leave to File SAC and Defendant’s Motion to 25 Dismiss, arguing that the Motion to Dismiss is meritless and has delayed the progression 26 of this case, thereby prolonging “severe constitutional deprivations” arising from the 27

28 whether good cause exists under Federal Rule of Civil Procedure 16(b)(2) to delay issuance of a scheduling order and commencement of discovery. 1 conditions of Plaintiff’s prior confinement in the SAU at USP-Allenwood. (Doc. 63 at 1, 2 9-10.) Defendant takes no position on Plaintiff’s request for expedited rulings but asks 3 the Court to strike as an unauthorized surresponse the portion of Plaintiff’s Motion that 4 argues the merits of Defendant’s pending Motion to Dismiss. (Doc. 68.)10 5 Plaintiff moves for leave to file an untimely reply in support of her Motion for 6 Expedited Decisions, averring that she did not receive a copy of Defendant’s Response 7 until November 12, 2024, due to her transfers between facilities. (Doc. 88.) The Court 8 will grant Plaintiff’s Motion for Leave to File Untimely Reply (Doc. 88) and has 9 considered the Reply attached thereto (Doc. 88-1). 10 The Court will grant Plaintiff’s Motion for Expedited Decisions to the extent this 11 Order provides any of the relief requested. 12 XIII. Plaintiff’s Motion to Withdraw (Doc. 67) 13 On October 7, 2024, Plaintiff moved to withdraw various filings on the grounds 14 that she had been informed she would be transferred to a Reintegration Unit and would 15 no longer be housed in restrictive housing. (Doc. 67.) Plaintiff later moved to withdraw 16 her Motion to Withdraw. (Doc. 69.) The Court will deem the Motion to Withdraw as 17 withdrawn. 18 XIV. Plaintiff’s Motion for Issuance of Order to Show Cause (Doc. 69) and 19 Related Motions 20 Plaintiff filed her Motion for Issuance of Order to Show Cause while temporarily 21 housed at USP-Terre Haute. (Doc. 69.) In the Motion, Plaintiff alleged that the BOP was 22 denying her access to a telephone and email; was refusing to provide her with pens, 23 writing paper, envelopes, and postage stamps; was denying her access to a photocopier 24 and a law library; and was withholding her legal files. (Id. at 1-2.) Plaintiff further 25 alleged that the BOP had suddenly discontinued her medications. (Id. at 2-3.) Plaintiff 26 asked the Court to order the BOP “to explain and, if possible, resolve” her concerns on an 27 expedited basis. (Id. at 4.)

28 10 The Court declines to strike any portion of Plaintiff’s Motion but has considered the arguments raised therein only to the extent they are relevant to the relief requested. 1 The Court ordered Defendant to file an expedited response. (Doc. 71.) Defendant 2 filed a Response on October 29, 2024 (Doc. 72), followed by two Supplements (Docs. 3 78, 82). In its initial Response, Defendant averred that Plaintiff was in transit from USP- 4 Allenwood to USP-Terre Haute from October 7-8, 2024; that she arrived at USP-Terre 5 Haute on October 9, 2024; and that she was immediately placed in the SHU under 6 administrative detention due to safety concerns arising from Plaintiff’s relationship to 7 another inmate housed in general population at that institution. (Doc. 72 at 2.) 8 Defendant denied that Plaintiff lacked access to a telephone, email, or mail at USP-Terre 9 Haute. (Id. at 2-3.) Defendant further disputed Plaintiff’s allegations that she lacked 10 access to pens, paper, envelopes, postage, and a law library. (Id. at 4-5.) Defendant 11 averred that Plaintiff’s legal paperwork was being stored with her personal property, and 12 that Plaintiff received a box of certified legal mail on October 17, 2024, but refused to 13 sign for it. (Id. at 4.) Defendant further averred that, on October 11, 2024, medical staff 14 at USP-Terre Haute discovered that staff at USP-Allenwood had erroneously 15 discontinued Plaintiff’s medications rather than continuing them in-transit, and that the 16 Clinical Director, upon learning of the error, issued a verbal order to resume twelve 17 medications. (Id. at 5.) 18 In its first Supplement filed on October 31, 2024, Defendant averred that Plaintiff 19 had been re-designated and was being transferred to FCI El Reno, a medium security 20 facility. (Doc. 78 at 2.) In its second Supplement filed on November 14, 2024, 21 Defendant averred that Plaintiff arrived at FCI El Reno on November 1, 2024, and was 22 initially housed in the general population unit but, on November 12, 2024, was moved to 23 the SHU on administrative detention after concerns were raised regarding Plaintiff’s 24 safety in general population. (Doc. 82 at 2.) Defendant further averred that Plaintiff’s 25 legal calls had been rescheduled and that Plaintiff had been receiving all prescribed 26 medications since arriving at FCI El Reno. (Id. at 3-4.) Defendant discussed Plaintiff’s 27 access to telephones, email, pens, paper, envelopes, postage, legal paperwork, and the 28 law library while she was housed in the general population unit at FCI El Reno. (Id.) 1 Plaintiff filed a sealed Reply in support of her Order to Show Cause on November 2 19, 2024, complaining that her transfers were interfering with her ability to communicate 3 with her attorney in a separate case, Pinson v. United States, No. 22-cv-00298-RM, and 4 asserting that Defendant was violating aspects of injunctive relief issued in that case. 5 (Doc. 86 at 3-5, 9-10.) Plaintiff also complained of safety concerns affecting her as a 6 transgender inmate in general population at FCI El Reno. (Id. at 5-12.) Plaintiff 7 confirmed that her medications had been resumed and that she had been provided stamps, 8 paper, and envelopes. (Id. at 9.) However, she averred that her legal files remained in 9 USP-Terre Haute. (Id.) Plaintiff thereafter filed a Motion for Leave to File Reply, 10 seeking leave to file a supplemental reply discussing her current conditions of 11 confinement, and asserting that Defendant’s Supplements are “misleading due to rapidly 12 changing locations and conditions affecting plaintiff within those locations.” (Doc. 91 at 13 3.) 14 Plaintiff then filed a Motion for Order to File Declarations and Motion for 15 Extension of Time to File Replies, in which she seeks leave to file untimely replies in 16 support of her Motion for Consideration of GAO Report and Motion to Strike Response, 17 and asks the Court to order the BOP’s Director and Regional Director to file declarations 18 under penalty of perjury explaining why she was placed in the SHU at FCI El Reno. 19 (Doc. 92.) In support of these requests, Plaintiff complains about her conditions of 20 confinement, and she avers that she continues to lack access to her legal files and is 21 unable to obtain pens, paper, envelopes, and postage stamps in the SHU at FCI El Reno 22 without selling her meal trays. (Id.) 23 Defendant moves to strike Documents 86, 91, and the majority of Document 92, 24 arguing that the filings are an improper attempt to litigate issues arising in Pinson v. 25 United States, No. 22-cv-00298-RM. (Doc. 95.) Plaintiff argues that there is no basis to 26 strike the filings and that doing so would infringe upon her right to freedom of speech. 27 (Doc. 99.) 28 In light of Plaintiff’s pro se status, the Court declines to strike the filings at issue; 1 however, the discussion of extraneous matters contained in those filings weighs against 2 granting Plaintiff’s requests to file untimely replies in support of her Motion for 3 Consideration of GAO Report and Motion to Strike Response. The Court finds it 4 appropriate to resolve those Motions on the existing briefs, as set forth above. The Court 5 also declines to order the BOP’s Director and Regional Director to file declarations 6 explaining why Plaintiff was placed in the SHU at FCI El Reno. 7 Defendant’s most recent Supplemental Response to Plaintiff’s Motion for Issuance 8 of Order to Show Cause discusses in detail the conditions that Plaintiff faced in the 9 general population unit at FCI El Reno, but it does not adequately discuss the conditions 10 that Plaintiff faces in the SHU. (See Doc. 82.) Given that Plaintiff avers that she 11 continues to lack access to her legal files and cannot obtain paper, envelopes, and stamps 12 without selling her meal trays (see Doc. 92), the Court will order Defendant to file a third 13 Supplement addressing Plaintiff’s access to legal files, legal supplies, mail, and a law 14 library while housed in the SHU at FCI El Reno. Plaintiff may file a reply to Defendant’s 15 third supplemental response, but the reply must be limited to addressing Plaintiff’s access 16 to legal files and supplies, mail, and a law library. If the parties jointly agree to vacate 17 these briefing deadlines in light of their pending settlement, they may file a stipulation. 18 IT IS ORDERED: 19 1. Plaintiff’s Motion for Leave to File Second Amended Complaint (Doc. 22) 20 is granted, as set forth above. The Clerk of Court is directed to file pages 21 6-30 of Document 22-1 as Plaintiff’s Second Amended Complaint. 22 2. Count Four of Plaintiff’s Second Amended Complaint is dismissed with 23 prejudice to the extent it is asserted against the individual defendants. 24 3. Mark Gutierrez, Muhammad Zantout, Christopher Marlow, Ashley Noble, 25 and Stephen Williams are dismissed. 26 4. Defendant United States of America shall answer Counts One through Four 27 of the Second Amended Complaint within the standard timeframe provided 28 by the Federal Rules of Civil Procedure. 1 5. Defendant’s Motion to Partially Dismiss First Amended Complaint for 2 Lack of Subject Matter Jurisdiction (Doc. 23) is denied as moot. 3 6. Plaintiff’s Motion for Issuance of Subpoena and Appointment of Counsel 4 (Doc. 27) is partially granted to the extent that the Clerk is directed to 5 mail Plaintiff a blank subpoena and a blank USM-285 form. The Motion is 6 otherwise denied without prejudice. 7 7. Debra Pinson’s Motion to Intervene and for Permissive Joinder (Doc. 34) is 8 denied. 9 8. Defendant’s Motion for Clarification (Doc. 36) is granted, as set forth 10 above. 11 9. Plaintiff’s Motion for Preliminary Injunction (Doc. 37) is denied as moot. 12 10. Plaintiff’s Motion for Leave to Conduct Expedited Discovery (Doc. 38) is 13 denied. 14 11. Plaintiff’s Motion to Strike Response to Motion to Intervene (Doc. 57) is 15 denied. 16 12. Plaintiff’s Motion for Consideration of GAO Report (Doc. 59) is partially 17 granted and partially denied, as set forth above. 18 13. Plaintiff’s Motion for Expedited Decisions on Pending Motions (Doc. 63) 19 is granted to the extent this Order provides any of the relief requested, and 20 is otherwise denied. 21 14. Plaintiff’s Motion to Withdraw (Doc. 67) is itself deemed withdrawn. 22 15. Plaintiff’s Motion for Issuance of Order to Show Cause (Doc. 69) is 23 partially granted to the extent the Court will allow Plaintiff to withdraw 24 her Motion to Withdraw and to the extent the Court has required Defendant 25 to file responses and will require a third supplemental response. 26 16. Within seven (7) days of the date this Order is filed, Defendant shall file a 27 third supplemental response to Plaintiff’s Motion for Issuance of Order to 28 Show Cause (Doc. 69). The third supplemental response shall address 1 Plaintiff's current access to legal files, legal supplies, mail, and a law 2 library. Plaintiff may file a reply to Defendant’s third supplemental 3 response within seven (7) days of service of the supplemental response, 4 limited to addressing the issue of her access to legal files, legal supplies, 5 mail, and a law library. 6 Plaintiff's Motion for Leave to File Untimely Reply (Doc. 88) is granted 7 and Plaintiff's Reply in Support of Motion for Expedited Rulings (Doc. 88- 8 1) is considered timely. 9 18. Plaintiff's Motion for Leave to File Reply (Doc. 91) is partially granted to 10 the extent the Court is allowing Plaintiff to file a reply to Defendant’s third 11 supplemental response, as set forth above. The Motion is denied to the 12 extent it requests any other relief. 13 19. Plaintiff's Motion for Order to File Declarations and Motion for Extension 14 of Time to File Replies (Doc. 92) is denied. 15 20. Defendant’s Motion to Strike (Doc. 95) is denied. 16 Dated this 24th day of February, 2025. 17 18 19 Ly □ *0 Honorable Rostmary Mgfquez 21 United States District □□□□□ 22 23 24 25 26 27 28

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AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action UNITED STATES DISTRICT COURT for the District of ) Plaintiff ) v. ) Civil Action No. ) ) Defendant ) SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION To: (Name of person to whom this subpoena is directed) O Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the material:

Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

The following provisions of Fed. R. Civ. P. 45 are attached — Rule 45(c), relating to the place of compliance; Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to respond to this subpoena and the potential consequences of not doing so. Date: CLERK OF COURT OR Signature of Clerk or Deputy Clerk Attorney’s signature The name, address, e-mail address, and telephone number of the attorney representing (name of party) , who issues or requests this subpoena, are:

Notice to the person who issues or requests this subpoena If this subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4).

AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 45.) received this subpoena for (name of individual and title, if any) on (date) . I served the subpoena by delivering a copy to the named person as follows:

on (date) ; or [returned the subpoena unexecuted because:

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of $ My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date: Server’s signature

Printed name and title

Server’s address Additional information regarding attempted service, etc.:

(c) Place of Compliance. (ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s (1) For a Trial, Hearing, or Deposition. A subpoena may command a study that was not requested by a party. person to attend a trial, hearing, or deposition only as follows: (C) Specifying Conditions as an Alternative. In the circumstances (A) within 100 miles of where the person resides, is employed, or described in Rule 45(d)(3)(B), the court may, instead of quashing or regularly transacts business in person; or modifying a subpoena, order appearance or production under specified (B) within the state where the person resides, is employed, or regularly conditions if the serving party: transacts business in person, if the person (i) shows a substantial need for the testimony or material that cannot be (i) is a party or a party’s officer; or otherwise met without undue hardship; and (ii) is commanded to attend a trial and would not incur substantial (ii) ensures that the subpoenaed person will be reasonably compensated. expense. (e) Duties in Responding to a Subpoena. (2) For Other Discovery. A subpoena may command: (A) production of documents, electronically stored information, or (1) Producing Documents or Electronically Stored Information. These tangible things at a place within 100 miles of where the person resides, is procedures apply to producing documents or electronically stored employed, or regularly transacts business in person; and information: (B) inspection of premises at the premises to be inspected. (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or (d) Protecting a Person Subject to a Subpoena; Enforcement. must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney If a subpoena does not specify a form for producing electronically stored responsible for issuing and serving a subpoena must take reasonable steps information, the person responding must produce it in a form or forms in to avoid imposing undue burden or expense on a person subject to the which it is ordinarily maintained or in a reasonably usable form or forms. subpoena. The court for the district where compliance is required must (C) Electronically Stored Information Produced in Only One Form. The enforce this duty and impose an appropriate sanction—which may include person responding need not produce the same electronically stored lost earnings and reasonable attorney’s fees—on a party or attorney who information in more than one form. fails to comply. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information (2) Command to Produce Materials or Permit Inspection. from sources that the person identifies as not reasonably accessible because (A) Appearance Not Required. A person commanded to produce of undue burden or cost. On motion to compel discovery or for a protective documents, electronically stored information, or tangible things, or to order, the person responding must show that the information is not permit the inspection of premises, need not appear in person at the place of reasonably accessible because of undue burden or cost. If that showing is production or inspection unless also commanded to appear for a deposition, made, the court may nonetheless order discovery from such sources if the hearing, or trial. requesting party shows good cause, considering the limitations of Rule (B) Objections. A person commanded to produce documents or tangible 26(b)(2)(C). The court may specify conditions for the discovery. things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or (2) Claiming Privilege or Protection. sampling any or all of the materials or to inspecting the premises—or to (A) Information Withheld. A person withholding subpoenaed information producing electronically stored information in the form or forms requested. under a claim that it is privileged or subject to protection as trial-preparation The objection must be served before the earlier of the time specified for material must: compliance or 14 days after the subpoena is served. If an objection is made, (i) expressly make the claim; and the following rules apply: (ii) describe the nature of the withheld documents, communications, or (i) At any time, on notice to the commanded person, the serving party tangible things in a manner that, without revealing information itself may move the court for the district where compliance is required for an privileged or protected, will enable the parties to assess the claim. order compelling production or inspection. (B) Information Produced. If information produced in response to a (ii) These acts may be required only as directed in the order, and the subpoena is subject to a claim of privilege or of protection as order must protect a person who is neither a party nor a party’s officer from trial-preparation material, the person making the claim may notify any party significant expense resulting from compliance. that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified (3) Quashing or Modifying a Subpoena. information and any copies it has; must not use or disclose the information (A) When Required. On timely motion, the court for the district where until the claim is resolved; must take reasonable steps to retrieve the compliance is required must quash or modify a subpoena that: information if the party disclosed it before being notified; and may promptly (i) fails to allow a reasonable time to comply; present the information under seal to the court for the district where (ii) requires a person to comply beyond the geographical limits compliance is required for a determination of the claim. The person who specified in Rule 45(c); produced the information must preserve the information until the claim is (iii) requires disclosure of privileged or other protected matter, if no resolved. exception or waiver applies; or (iv) subjects a person to undue burden. (g) Contempt. (B) When Permitted. To protect a person subject to or affected by a The court for the district where compliance is required—and also, after a subpoena, the court for the district where compliance is required may, on motion is transferred, the issuing court—may hold in contempt a person motion, quash or modify the subpoena if it requires: who, having been served, fails without adequate excuse to obey the (i) disclosing a trade secret or other confidential research, subpoena or an order related to it. development, or commercial information; or For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013). States Marshals Service See "Instructions for Service of Process by U.S. Mars

COURT CASE NUMBER TYPE OF PROCESS

NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC. TO SERVE OR DESCRIPTION OF PROPERTY TO SEIZE OR CONDEMN SERVE AT ADDRESS (Street or RFD, Apartment No., City, State and ZIP Code) NOTICE OF SERVICE COPY TO REQUESTER AT NAME AND ADDRESS BELOW Number of process to be served with this Form 285 Number of parties to be served in this case Check for service on U.S.A. CIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE (include Business and Alternate Addresses, Numbers, and Estimated Times Available for Service):

of Attorney other Originator requesting service on behalf of: TELEPHONE NUMBER DATE PLAINTIFF DEFENDANT SPACE BELOW FOR USE OF U.S. MARSHAL ONLY - DO NOT WRITE BELOW THIS LINE receipt for the total Total Process | District of District to Signature of Authorized USMS Deputy or Clerk Date ber of process indicated. Origin Serve only for USM 285 if more N N one USM 285 is submitted) °. °. certify and return that I [-] have personally served , [[] have legal evidence of service, [-] have executed as shown in "Remarks", the process described on the company, corporation, etc., at the address shown above on the on the individual, company, corporation, etc. shown at the address inserted below. hereby certify and return that I am unable to locate the individual, company, corporation, etc. named above (See remarks below) and title of individual served (ifnot shown above) Date Time □□ LIr ress (complete only different than shown above) Signature of U.S. Marshal or Deputy

Costs shown on attached USMS Cost Sheet >>

INSTRUCTIONS FOR COMPLETING USM-285, PROCESS RECEIPT AND RETURN

®@ The Form USM-285 is a five-copy form set designed as a control document for process served by a U.S. Marshal or designee. Process may include, but is not limited to, a summons and complaint, subpoena, writ, or court order. The United States Marshals Service (USMS) is authorized by law (28 U.S.C. § 1921) to charge fees for the service of process. The amount of fees charged is established by regulation (28 C.F.R. 80.114). Except in cases where the litigant has been granted permission by the court for waiver of prepayment of fees and costs, the USMS must request advance payment of the estimated fees and expenses for service of process. ® Please type or print legibly. Submit one copy of the Form USM-285 and one copy of each process for each individual, company, corporation, government agency, etc., to be served or property to be seized. ® In cases where the court has directed the USMS to effect service of a summons and complaint upon an officer or agent of the United States Government, submit a copy of the summons and complaint and Form USM-285 for each officer or agent upon whom service is desired. Submit two (2) additional copies of the summons and complaint for service upon the Government of the United States. The U.S. Marshal or designee will serve one copy upon the U.S. Attorney and will forward the other copy to the Attorney General of the United States. (When the applicable box is checked, completion of the final signature block by the U.S. Marshal or designee certifies service on the U.S. Attorney and the U.S. Attorney General, regardless of whether other defendants on the summons were served). Failure to provide sufficient copies will delay service of the summons. @ Mark all applicable check boxes and use the "Special Instructions" to advise of any information that will assist the USMS in expediting service. You are responsible for providing accurate and sufficient information that will identify the individual or entity to be served or the property to be seized. ® If more than one item of process and Form USM-2835 is submitted on a single case, the U.S. Marshal or designee will receipt for all of them on the first Form USM-285. You will receive for your records the "Acknowledgment of Receipt" copy for all the USM-285 forms you submit. When the process is served, you will receive the "Notice of Service" copy. This copy will be identical to the return to the Clerk of the U.S. District Court. ® Upon completion of all services, you will receive a "Billing Statement” copy of Form USM-285. You should return this "Billing Statement” copy to the USMS, together with your payment, in the form of a certified or bank check payable to the U.S. Marshal, for any amounts still owed. The USMS will not accept personal checks.