1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Sabrina Smith et al., No. CV-18-00323-TUC-RCC 9
10 Plaintiffs, ORDER
11 v. 12 John T. Shartle et al., 13
14 Defendants.
15 Pending before the Court is Defendants’ Motion to Dismiss Plaintiffs’ fourth 16 amended Bivens complaint against Defendants John Domitrovich, Damian Tinnerello, 17 Kenneth Schied, Erik Kurtz, Antonio Inclan, Ernesto Yanez, Garrett Merrell, Orlando 18 Franco, Mark Dunham, Brandon Goodman, Sandra Montano, Ivan Ceniceros, Eleazor 19 Islas, Joshua Beans, Justin Nazarovich, and FNU Davis (“Bivens Defendants”). (Doc. 109.) 20 Alternatively, Defendants ask this Court to grant summary judgment on the basis that the 21 Bivens claims are untimely. (Id. at 10.) 22 This matter has been thoroughly briefed and the Court finds oral argument will not 23 aid in the resolution of the issues raised. See LR Civ. 7.2(f); Fed. R. Civ. P. 78(a); Partridge 24 v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (“[A] district court can decide the issue without 25 oral argument if the parties can submit their papers to the court.”). As set forth below, the 26 motion to dismiss is granted in part and denied in part. 27 a. Relevant Background 28 On July 5, 2016, Clinton Dewayne Smith was discovered in his cell at USP Tucson. 1 Smith had apparently been strangled to death by his cellmate Romeo Giovanni. The facts 2 as alleged indicate that Giovanni had for some time warned prison officials that he would 3 harm, perhaps even kill, any sex offender he was housed with. Plaintiffs—Sabrina Smith 4 and the Estate of Clinton Dewayne Smith—allege that prison officials were aware of these 5 threats and nevertheless placed Smith in a cell with Giovanni after outing Smith as a sex 6 offender. According to the complaint, Smith and Giovanni had several loud arguments that 7 could be heard throughout the Special Housing Unit (“SHU”) between June 28, 2016, when 8 they were first placed together, and July 5, 2016, when Smith was found dead in his cell. 9 Giovanni also repeatedly told officials that he would harm Smith and wrote threatening 10 messages on the wall of their shared cell. Both men reportedly requested to be separated 11 over the course of the week. Plaintiffs allege that Bivens Defendants—sixteen prison 12 officials at USP Tucson—failed to separate Smith and Giovanni despite the known risk 13 and failed to provide necessary protection to Smith. Plaintiffs have brought this Bivens 14 action alleging that Bivens Defendants’ failure to protect Smith violated the Fifth and 15 Eighth Amendments. 16 On July 2, 2018, Plaintiffs filed their first Bivens complaint arising out of the events 17 surrounding Smith’s death. (Doc. 1.) The complaint was filed against two named wardens 18 and seven un-named John Doe defendants. (Id.) At the time, Plaintiffs had not received the 19 information necessary to correctly identify the officials responsible for the events outlined 20 in the complaint. Nonetheless, Plaintiffs listed ten names in the complaint that they 21 suspected were the names of the officials involved based on Plaintiffs’ interviews with 22 prison witnesses. (Id. at 7–8.) Plaintiffs were unable to confirm and correctly identify the 23 names of the officials they had otherwise described in their original complaint until they 24 received initial discovery from the Department of Justice. Bivens Defendants were thus 25 named on December 5, 2019 in the third amendment complaint. (Doc. 73.) 26 Following Plaintiffs’ fourth amendment complaint (Doc. 103), Defendants filed the 27 present motion asking this Court to dismiss all claims or, in the alternative, grant summary 28 judgment based on the statute of limitations. (Doc. 109.) Defendants urge the Court to 1 dismiss on three grounds: (1) Plaintiffs’ claims against Bivens Defendants are time barred 2 by a two-year statute of limitations; (2) Plaintiffs’ claims present new Bivens contexts and 3 special factors counsel hesitation in extending a remedy to these contexts; and (3) Bivens 4 Defendants are entitled to qualified immunity. Each argument will be assessed in turn. 5 b. Standard of Review 6 The present motion to dismiss is brought under Federal Rule of Civil Procedure 7 12(b)(6) for failure to state a claim. The Court reviews such motions accepting as true all 8 well-pleaded factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The litigation 9 may go forward if the factual allegations in the complaint establish a plausible claim for 10 relief. Id. 11 In the alternative, Defendants ask this Court to grant summary judgment on the 12 grounds that Plaintiffs’ claims are untimely. However, the Court finds that a separate 13 summary judgment analysis regarding the statute of limitations in unnecessary given that 14 Defendants’ motion does not clearly set out distinct arguments for this standard and, even 15 assessing Bivens Defendants’ declarations provided beyond the pleadings for the purpose 16 of summary judgment, the Court’s findings are the same. As fully explained below, the 17 Court will dismiss the claims against six of the ten Bivens Defendants because the addition 18 of their names is an impermissible amendment outside of the statute of limitations period. 19 c. Statute of Limitations 20 i. Parties’ Arguments 21 Defendants argue that the Bivens claims in the fourth amended complaint are time 22 barred because the statute of limitations ran on July 5, 2018 and Plaintiffs did not name 23 Bivens Defendants until Plaintiffs filed their third amended complaint on December 5, 24 2019. (Doc. 109 at 15.) Defendants further argue that Plaintiffs cannot circumvent the 25 statute of limitations by relating the amendment back to the original complaint under 26 Federal Rule of Civil Procedure 15(c)(1)(C). (Id. at 16–17.) Specifically, they assert that 27 there was no notice or mistake as required to make such an amendment under Rule 15. (Id.) 28 First, Bivens Defendants did not receive notice within the 90-day period required by 1 Federal Rule of Civil Procedure 4(m), thereby prejudicing their ability to defend against 2 the claims. (Id. at 16.) Additionally, the use of John Doe defendants is not a “mistake 3 concerning the proper party’s identity” as contemplated by Rule 15(c)(1)(C)(ii). (Id. at 17.) 4 In response, Plaintiffs stress the difficulty they experienced obtaining the necessary 5 information from the Bureau of Prisons (“BOP”) in order to properly identify the officials 6 responsible for the actions described in the original complaint. (Doc. 128 at 2, 24.) 7 Therefore, Plaintiffs argue that Arizona Rule of Civil Procedure 10(d), which allows the 8 use of fictitious party names, permits the replacement of John Does with Bivens Defendants 9 without implicating Rule 15. (Id. at 25.) Even if Rule 15 is applied, Plaintiffs contend that 10 Bivens Defendants had constructive notice imputed through the BOP and United States 11 Attorney’s Office who share a “community of interest” with Bivens Defendants and were 12 aware of the lawsuit within the notice period. (Id. at 29–30.) Moreover, Plaintiffs assert 13 that the original complaint provided a clear indication to Bivens Defendants that they would 14 be implicated in the litigation because it identified ten of the Bivens Defendants by name 15 and explicitly described the roles and conduct targeted by the claim. (Id. at 25–27.) 16 Defendants challenge Plaintiffs’ application of Arizona Rule 10(d) to save their 17 claims. (Doc. 134 at 5.) They argue that, even if applicable, the rule only permits the use 18 of fictitious names when the plaintiff does not know the true names, and Plaintiffs knew of 19 ten of the Bivens Defendants at the time they filed the original complaint. (Id.) Finally, 20 Defendants argue that any reliance on Arizona Rule 10(d) is undermined by the 21 replacement of seven John Does with sixteen Bivens Defendants without explanation as to 22 how they are equivalent. (Id. at 5–6.) 23 ii. Standard for Relation Back of Unnamed Defendants 24 In Arizona, the statute of limitations for a Bivens action is two years. A.R.S. § 12- 25 542; Van Strum v. Lawn, 940 F.2d 406, 408–10 (9th Cir. 1991); Ramage v. United States, 26 No. 14-2132-TUC-CKJ, 2014 WL 4702288, at *6 (D. Ariz. Sept. 22, 2014). Nonetheless, 27 Federal Rule of Civil Procedure 15(c) permits the relation back of amendments to the 28 original complaint even after the time for new actions has expired. Fed. R. Civ. P. 15(c). 1 Rule 15(c) is “liberally applied.” Warden v. Walkup, No. CV-13-00283-TUC-DCB (BPV), 2 2018 WL 3084728, at *2 (D. Ariz. June 22, 2018) (citing ASARCO, LLC v. Union Pac. R. 3 Co., 765 F.3d 999, 1004 (9th Cir. 2004)). The Court has the discretion to determine whether 4 an amendment relates back under Rule 15(c). Id. (citing Louisiana-Pac. Corp. v. ASARCO, 5 Inc., 5 F.3d 431, 434–35 (9th Cir. 1993)). Moreover, “[t]he court should freely give leave 6 [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2); Walkup, 2018 WL 3084728, 7 at *2. The purpose is “to provide maximum opportunity for each claim to be decided on its 8 merits rather than on procedural technicalities.” ASARCO, LLC, 765 F.3d at 1005 (citation 9 omitted); Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 550 (2010) (Rule 15 reflects a 10 preference “for resolving disputes on their merits”). 11 Under Rule 15(c)(1), an amendment relates back to the original pleading when: 12 (A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of the conduct, 13 transaction, or occurrence set out—or attempted to be set out—in the original 14 pleading; or (C) the amendment changes the party or the naming of the party against whom a 15 claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period 16 provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: 17 (i) received such notice of the action that it will not be prejudiced in 18 defending on the merits; and (ii) knew or should have known that the action would have been 19 brought against it, but for a mistake concerning the proper party’s 20 identity. 21 Fed. R. Civ. P. 15(c)(1). 22 Thus, there are three primary requirements for relation back under Rule 15(c)(1)(C): 23 (1) the proposed amendment must arise out of the same conduct or transaction described 24 in the original pleading; (2) the prospective defendant must receive notice within 90 days 25 of the original complaint so as not to be prejudiced in defending against the claim; and (3) 26 the need to change the party or the naming of the party must result from a “mistake 27 concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(B)–(C); Fed. R. Civ. P. 28 4(m). 1 The notice requirement may be satisfied by either actual or constructive notice when 2 the circumstances indicate the prospective defendant had reason to expect the litigation 3 was aimed at him. See Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 195 (3d Cir. 2001); 4 Schiavone v. Fortune, 477 U.S. 21, 29 (1986); Tomlin v. Gafvert, CV 13-1980-PHX-SMM 5 (ESW), 2015 WL 4639242, at *5 (D. Ariz. Aug. 4, 2015). Moreover, notice may be 6 imputed to a defendant who shares a “community of interest” with an already-named 7 defendant. Singletary, 266 F.3d at 195–99; Tomlin, 2015 WL 4639242, at *5 (citing G.F. 8 Co. v. Pan Ocean Shipping Co., Ltd., 23 F.3d 1498, 1503 (9th Cir. 1994)). If the parties’ 9 business operations or other activities are so closely related that the commencement of an 10 action against one provides notice to the other, they are thought to share a community of 11 interest. Singletary, 266 F.3d at 197; Schiavone, 477 U.S. at 29. “The fundamental question 12 is whether the defendant has been put on notice with regard to the claim against him raised 13 by the amended pleading.” Warden v. Miranda et al., No. CV 14-02050-TUC-DCB, Doc. 14 62 at 8 (D. Ariz. June 28, 2016) (quoting Rural Fire Protection Co. v. Hepp, 366 F.2d 355, 15 362 (9th Cir. 1966)). 16 Rule 15 also requires that the prospective defendant “knew or should have known 17 that the action would have been brought against him, but for a mistake concerning the 18 proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii) (emphasis added); see also Krupski, 19 560 U.S. at 548 (placing the correct focus of the inquiry on the prospective defendant’s 20 knowledge and not on the plaintiff’s knowledge). Nonetheless, the Ninth Circuit has 21 determined that simply “[r]eplacing a ‘John Doe’ defendant with the actual name of a 22 defendant is not a ‘mistake’ that allows relation back under Rule 15(c)(1)(C).” Boss v. City 23 of Mesa, 7467 F. App’x 692, 694 (9th Cir. 2018) (citing Butler v. Nat’l Cmty. Renaissance 24 of Cal., 766 F.3d 1191, 1203–04 (9th Cir. 2014)). 25 1. Arizona Rule of Civil Procedure 10(d) 26 Rule 15 instructs courts to consider state rules regarding the relation back of 27 amendments “when that state’s law provides the applicable statute of limitations and is 28 more lenient.” Butler, 766 F.3d at 1198–1201; see also Fed. R. Civ. P. 15(c)(1)(A). This 1 district has previously applied Arizona Rule of Civil Procedure 10(d) to the question 2 presented in this case, finding that where Arizona Rule 10(d) resolves the issue, Rule 15 3 need not be implicated. See Walkup, No. CV-13-00283-TUC-DCB (BPV), 2018 WL 4 3084728, at *3; Tomlin, 2015 WL 4639242, at *4. 5 Arizona Rule of Civil Procedure 10(d) provides that a defendant may be referred to 6 in the pleadings by a fictitious name when the name of the defendant is unknown to the 7 plaintiff. Ariz. R. Civ. P. 10(d). “If the defendant’s true name is discovered, the pleading 8 or proceeding should be amended accordingly.” Id. “[T]he lack of knowledge of the true 9 name of a defendant must be real not feigned, and must not be willful ignorance, or such 10 as may be removed by some inquiry or resort to information that is easily accessible.” 11 Gonzalez v. Tidelands Motor Hotel Co., Inc., 598 P.2d 1036, 1037 (Ariz. Ct. App. 1979). 12 Arizona Rule 10(d) “implies that the plaintiff has at least some idea of the existence of a 13 defendant, but is without knowledge of the name.” Lane v. Elco Indus., Inc., 656 P.2d 650, 14 655 (Ariz. Ct. App. 1982); see also Miranda et al., No. CV 14-02050-TUC-DCB, Doc. 62 15 at 8. If the defendant has otherwise been clearly identified in the original complaint, there 16 is no need to implicate Rule 15(c) because Arizona Rule 10(d) applies and resolves the 17 issue. See Lane, 656 P.2d at 655; Miranda et al., No. CV 14-02050-TUC-DCB, Doc. 62 at 18 12. In this situation, the “substitution of the correct name at a later date does not add a party 19 to the case—it merely corrects the name of the defendant whom the plaintiff already has 20 sued.” Tomlin, 2015 WL 4639242, at *4 (citing McGill v. Nat’l Specialty Ins. Co., CV12– 21 1671–PHX–DGC, 2013 WL 331256, at *3 (D. Ariz. Jan. 29, 2013)). 22 However, if the plaintiff seeks to add a claim against a defendant that the plaintiff 23 did not originally intend to sue, Rule 15(c), rather than Arizona Rule 10(d), is applicable. 24 Tomlin, 2015 WL 4639242, at *4. Arizona Rule 10(d) does not resolve situations “where 25 [the plaintiff] has no idea that there are such parties against whom a claim might be 26 asserted.” Lane, 656 P.2d at 655. In such circumstances, the plaintiff “is in actuality adding 27 a party rather than merely inserting a name of a party already identified in the original 28 complaint.” Id. Arizona Rule 10(d) permits relation back after the statute of limitations has 1 expired if defendants had actual notice or should have known of the claim against them 2 within the time allowed for service. See Hartford Ins. Grp. v. Beck, 472 P.2d 955, 957 3 (Ariz. Ct. App. 1970). 4 iii. Arizona Rule 10(d) Analysis 5 Here, it is clear to the Court that Plaintiffs intended to sue Bivens Defendants from 6 the time of the original complaint but simply did not have access to the information 7 necessary to properly and assuredly identify them. This lack of knowledge was far from a 8 demonstration of willful ignorance. On the contrary, Plaintiffs have outlined the steps they 9 undertook to correctly identify the prison officials involved in the incident prior to filing 10 the original complaint. (Doc. 103 at 9 n.1.) However, following unsuccessful attempts to 11 obtain this information through BOP and Freedom of Information Act requests, Plaintiffs 12 resorted to interviewing prisoners who were witnesses to the events surrounding Smith’s 13 death. (Id.) According to Plaintiffs, these witnesses had difficulty recalling the names of 14 prison officials. (Id.) This is a reasonable assertion given the many conditions in prison that 15 would prevent prisoners from correctly recalling the names of specific correctional 16 officers. It is therefore understandable that Plaintiffs were hesitant to fully rely on the 17 names they received from these witnesses. Nonetheless, the original complaint 18 demonstrates Plaintiffs’ intent to sue Bivens Defendants—as well as their knowledge that 19 these individuals existed—in that the body of the complaint identifies ten of the Bivens 20 Defendants’ names as the suspected names of some of the officials involved. (Doc. 1 at 7– 21 8.) The original complaint also described the job titles of the target defendants and their 22 alleged conduct underlying the claim. (Id. at 32–34.) Specifically, Plaintiffs identified the 23 SHU Lieutenant (“John Doe 3”), SHU Manager (“John Doe 4”), and SHU Correctional 24 Officers (“John Does 5–7”)—individuals who Plaintiffs allege were responsible for placing 25 and keeping Smith and Giovanni together despite knowledge that Giovanni posed an 26 ongoing threat to Smith. (Id. at 6–7, 32–34.) 27 The Court finds that Arizona Rule 10(d) plainly permits the correction of the 28 fictitious names used for the ten Bivens Defendants whose names were listed in the original 1 complaint as the likely identities of intended defendants. These include Bivens Defendants 2 Islas, Ceniceros, Goodman, Yanez, Kurtz, Montano, Franco, Beans, Dunham, and 3 Domitrovich. By listing the names, Plaintiffs provided a clear indication that these ten 4 individuals were the targets of the litigation. Therefore, substituting their later-verified 5 names merely corrects the names of defendants that Plaintiffs had already intended to sue. 6 Moreover, the alleged conduct and job titles identified in the original complaint align with 7 these ten individuals. Specifically, Bivens Defendants Islas, Ceniceros, Goodman, Yanez, 8 Kurtz, Montano, Franco, Beans, and Dunham correlate to the SHU Correctional Officer 9 title of John Does 5 through 7, and Bivens Defendant Domitrovich correlates to the 10 supervisory role outlined in the description of John Does 1 through 3. The Court does not 11 find that there must be precise numerical correlation between the number of John Does and 12 Bivens Defendants, especially given that these ten were identified by name in the body of 13 the complaint. 14 Finally, Bivens Defendants Islas, Ceniceros, Goodman, Yanez, Kurtz, Montano, 15 Franco, Beans, Dunham, and Domitrovich were on notice that they were the intended 16 targets of the litigation at the time of the original complaint despite the use of fictitious 17 party names. As previously emphasized, their correct names were identified in the filing as 18 the likely, but unverified, names of the prison officials Plaintiffs intended to sue. Moreover, 19 as BOP employees at USP Tucson, these Bivens Defendants operated in the same 20 community of shared interest as parties who were also notified about the pending litigation. 21 The BOP was aware that Plaintiffs were seeking information regarding Smith’s death for 22 purposes of preparing this litigation and the two originally-named warden defendants were 23 also BOP employees at USP Tucson. This connection as well as the fact that their names 24 appeared in the complaint leads the Court to conclude that, at the very least, Bivens 25 Defendants Islas, Ceniceros, Goodman, Yanez, Kurtz, Montano, Franco, Beans, Dunham, 26 and Domitrovich should have known that they were the prospective defendants whose 27 identities Plaintiffs were seeking to confirm. Therefore, the Court agrees that Arizona Rule 28 10(d) resolves the statute of limitations issue without implicating Rule 15(c) as to ten of 1 the Bivens Defendants. It does not, however, resolve the question of the remaining six 2 Bivens Defendants who were only identified by job description or alleged conduct. The 3 Court must analyze these six Bivens Defendants under Rule 15(c) to determine whether the 4 substitution of their names can relate back to the original filing. 5 iv. Rule 15(c) Analysis 6 The Court concludes that Rule 15(c) does not permit the relation back of an 7 amendment replacing John Does with these six remaining Bivens Defendants Schied, 8 Tinnerello, Inclan, Merrell, Nazarovich, and Davis. Although the Court believes that 9 Bivens Defendants had constructive notice of the claim against them, the use of John Doe 10 names is simply not a mistake for purposes of relation back under Rule 15(c)(1)(C)(ii). 11 The proposed amendment, replacing John Does with Bivens Defendants, arises out 12 of the same conduct, transaction, or occurrence set out in the original complaint—the 13 events surrounding Smith’s death while he was housed with Giovanni. Although the 90- 14 day notice period expired on October 1, 2018, Bivens Defendants received constructive 15 notice at the time the original complaint was filed. As discussed above, Plaintiffs 16 extensively outlined the specific titles and alleged conduct of the individuals targeted by 17 the original complaint, giving Bivens Defendants Schied, Tinnerello, Inclan, Merrell, 18 Nazarovich, and Davis reason to expect the litigation was aimed at them. These six Bivens 19 Defendants would have also had constructive notice imputed to them because they share a 20 community of interest with a named defendant, specifically the wardens named as 21 defendants in the original complaint. Finally, the Court does not see that the ability of these 22 six Bivens Defendants to defend against the claim would be prejudiced because they should 23 have known who the intended targets of this litigation were from the start given their 24 familiarity with the events that occurred at USP Tucson. 25 Nevertheless, Defendants persuasively cite the Ninth Circuit’s opinion in Boss v. 26 City of Mesa for the proposition that the use of John Doe defendants is simply not a mistake 27 permitted by Rule 15(c). Boss, 746 F. App’x at 695 (“Replacing a ‘John Doe’ defendant 28 with the actual name of a defendant is not a ‘mistake’ that allows relation back under Rule 1 15(c)(1)(C).”). Therefore, the Court finds that Rule 15(c) does not allow relation back of 2 the amendment replacing John Does with Bivens Defendants Schied, Tinnerello, Inclan, 3 Merrell, Nazarovich, and Davis. The statute of limitations expired before these six 4 individuals were named in this litigation and, thus, the claims against them cannot proceed. 5 d. New Bivens Contexts 6 Next, Defendants argue that Plaintiffs’ claims against Bivens Defendants seek to 7 expand the Bivens implied remedy to two new contexts and several special factors counsel 8 this Court to hesitate to do so. (Doc. 109 at 19.) Therefore, Defendants urge the Court to 9 decline to imply a Bivens remedy. 10 According to Defendants, the relevant cases in which the Supreme Court recognized 11 a Bivens remedy—Carlson v. Green, 446 U.S. 14 (1980) and Davis v. Passman, 442 U.S. 12 228 (1979)—involve contexts that are different in a meaningful way from the present case. 13 (Doc. 109 at 21.) Defendants further argue that four special factors counsel hesitation 14 precluding the Court from extending a Bivens remedy: (1) Mr. Smith could have used the 15 Administrative Remedy Program to appeal his cell assignment and Plaintiffs are currently 16 pursuing the alternative remedy provided by the FTCA; (2) Congress has not provided a 17 cause of action against individual correctional officers despite extensive legislation 18 regarding prisoner litigation; (3) Bivens actions are not an appropriate method for litigating 19 government policies or procedures; and (4) Plaintiffs’ claims would hurt the government’s 20 ability to recruit and retain correctional officers, impose substantial costs on the 21 government, and improperly interfere with prison operation. (Id. at 23–32.) 22 Plaintiffs assert that neither the Eighth Amendment nor the Fifth Amendment claim 23 presents a new Bivens context. (Doc. 128 at 3.) They argue that the Eighth Amendment 24 claim put forth in this case corresponds to the failure-to-protect Bivens claim recognized in 25 Farmer v. Brennan, 511 U.S. 825 (1994). (Doc. 128 at 5.) Plaintiffs reject the argument 26 that Farmer is not an appropriate Bivens context although the Supreme Court did not 27 include Farmer in the list of permissible Bivens claims outlined in Ziglar v. Abbasi, 137 S. 28 Ct. 1843 (2017). (Doc. 128 at 6.) Additionally, Plaintiffs argue that the Fifth Amendment 1 due process claim against Bivens Defendants is not a new context because it arises out of 2 the same underlying conduct as the Eighth Amendment claim, specifically the failure to 3 protect Smith. (Id. at 6.) 4 Furthermore, Plaintiffs argue that even if the Court were to consider special factors, 5 none counsel hesitation. (Id. at 7.) First, the Administrative Remedy Program is not a 6 remedy available to Plaintiffs and is irrelevant because it does not address the harm that 7 this action seeks to remedy: Smith’s death. (Id. at 8.) Plaintiffs also disagree that the FTCA 8 is an adequate alternative remedy that precludes them from also pursuing a Bivens action 9 because (1) the FTCA and Bivens are complementary sources of liability and (2) Bivens 10 deters the conduct of individual officials, rather than simply the government as a whole, 11 and imposes punitive damages in way that the FTCA does not. (Id. at 10–11.) Similarly, 12 Plaintiffs contend that the Prison Litigation Reform Act (“PLRA”) and other congressional 13 legislation do not affect the Plaintiffs’ ability to bring the present claim. (Id. at 11.) 14 Specifically, Plaintiffs highlight that they are not prisoners, thus the PLRA’s intent to deter 15 “prisoner litigation” is not applicable. (Id.) They also emphasize that the PLRA does not 16 provide any remedy itself but rather restricts the claims that can be brought by prisoners. 17 (Id. at 11–12.) Plaintiffs argue that Congress had the opportunity to preclude the recovery 18 of damages from federal officials in all instances and has not done so, indicating that 19 Congress has accepted Bivens actions. (Id. at 12.) Finally, Plaintiffs rebuff the argument 20 that the present action is an inappropriate intrusion into government policy in the way that 21 Abbasi contemplated or that the costs to the government are sufficient reason to preclude 22 the claims. (Id. at 13.) 23 i. Two-Step Inquiry Under Bivens 24 A court that is asked to extend a Bivens remedy must engage in a two-step inquiry 25 to determine whether an implied right of action for damages against a federal official may 26 proceed. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 27 (1971); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001); Abbasi, 137 S. Ct. at 1857. 28 The Supreme Court has emphasized that “separation-of-powers principles” are central to 1 this inquiry. Abbasi, 137 S. Ct. at 1857. A court must therefore ask whether “there are 2 sound reasons to think Congress might doubt the efficacy or necessity of a damages 3 remedy” and “whether the Judiciary is well suited, absent congressional action or 4 instruction, to consider and weigh the costs and benefits of allowing a damages action to 5 proceed.” Id. at 1858. Nonetheless, while implying a remedy under Bivens is disfavored, it 6 may “still be available in a case against an individual federal officer who violates a person’s 7 constitutional rights while acting in his official capacity” as long as courts proceed with 8 appropriate caution. See Lanuza v. Love, 899 F.3d 1019, 1028 (2018) (citing Abbasi, 137 9 S. Ct. at 1857). 10 1. New Context 11 The first step in the Bivens inquiry is to decide whether the claim presents a “new 12 context.” Malesko, 534 U.S. at 68. The determination of what constitutes a new context is 13 relatively broad, but the central question is whether the asserted context is “different in a 14 meaningful way from previous Bivens cases decided by [the Supreme Court].” Abbasi, 137 15 S. Ct. at 1859. While the Supreme Court has not provided an exhaustive list defining 16 meaningful differences, it has offered the following insight: 17 A case might differ in a meaningful way because of the rank of 18 the officers involved; the constitutional right at issue; the 19 generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the 20 problem or emergency to be confronted; the statutory or other 21 legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of 22 other branches; or the presence of potential special factors that 23 previous Bivens cases did not consider. 24 Id. at 1860. It is not sufficient that the asserted claim arises under the same broad 25 constitutional provision where the context is otherwise meaningfully different. See 26 Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020). 27 In Abbasi, the Supreme Court listed the three seminal contexts in which it has 28 extended a Bivens remedy: Bivens (search in violation of the Fourth Amendment), Davis 1 (sex discrimination in violation of the Fifth Amendment Equal Protection Clause), and 2 Carlson (failure to provide medical care to a prisoner in violation of the Eighth 3 Amendment). Abbasi, 137 S. Ct. at 1855. The Supreme Court did not explicitly identify an 4 implied damages remedy for Eighth Amendment failure-to-protect claims in Abbasi. 5 However, in deciding Carlson, and underscoring the significance of this decision in Abbasi, 6 the Supreme Court made clear that a Bivens claim exists for “failure to provide adequate 7 medical treatment” under the Eighth Amendment. Id. at 1855; Carlson, 446 U.S. at 19. 8 Moreover, the Supreme Court has not directly rejected its decision in Farmer, 9 perhaps the most relevant case addressing Eighth Amendment failure-to-protect claims in 10 the context of a Bivens action. Farmer, 511 U.S. at 831. “The Supreme Court has 11 discouraged lower courts from renouncing its precedent on the belief that such cases were 12 overruled by implication, instead directing the lower courts to ‘follow the case which 13 directly controls,’ even if that precedent ‘appears to rest on reasons rejected in some other 14 line of decisions.’” Garraway v. Ciufo, No. 1:17–cv–00533–DAD–GSA–PC, 2018 WL 15 1710032, at *2 (E.D. Cal. Apr. 9, 2018) (quoting Rodriguez de Quijas v. Shearson/Am. 16 Exp., Inc., 490 U.S. 477, 484 (1989)); see also Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) 17 (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of 18 whether subsequent cases have raised doubts about their continuing vitality.”). Farmer 19 involved a Bivens claim against a prison official and found that the defendant could “be 20 held liable under the Eighth Amendment for denying humane conditions of confinement.” 21 Farmer, 511 U.S. at 847. The Farmer Court specifically emphasized that “prison officials 22 have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Id. at 23 833 (citation omitted). 24 After Abbasi, the Ninth Circuit has recognized a Bivens claim under the Eighth 25 Amendment when a prison official demonstrates deliberate indifference to prisoner safety. 26 Doreh v. Rodriguez, 723 F. App’x 530, 530 (9th Cir. 2018). A number of district courts 27 within the Ninth Circuit have also understood an Eighth Amendment failure-to-protect 28 claim to exist post-Abbasi. See, e.g., McDaniels v. United States, No. 14-02594-VBF-JDE, 1 2018 WL 7501292, at *5 (C.D. Cal. Dec. 28, 2018); Lee v. Matevousian, No. 1:18-cv- 2 00169-GSA-PC, 2018 WL 5603593, at *7 (E.D. Cal. Oct. 26, 2018); Marquez v. United 3 States, No. 3:18-cv-0434-CAB-NLS, 2018 WL 1942418, at *4 (S.D. Cal. Apr. 25, 2018); 4 Garraway, 2018 WL 1710032, at *2–3. Additionally, the Third and Fourth Circuits have 5 both concluded that Bivens claims arising in equivalent contexts to Farmer do not present 6 new contexts. Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir. 2018) (“[A]n inmate’s claim that 7 prison officials violated his Fifth Amendment rights by failing to protect him against a 8 known risk of substantial harm does not present a new Bivens context . . . . [T]he Supreme 9 Court ratified that kind of claim . . . in Farmer.”); Atkinson v. Holder, 925 F.3d 606, 621 10 n.6 (4th Cir. 2019) (“The Supreme Court may have recognized a fourth Bivens context in 11 Farmer.”); Doty v. Hollingsworth, Civ. No. 15-3016, 2018 WL 1509082, at *3 (D.N.J. 12 Mar. 27, 2018) (holding that an Eighth Amendment failure-to-protect claim premised on 13 inmate-on-inmate violence is not a new context given sufficient similarity to 14 both Carlson and Farmer). 15 a. Analysis of Eighth Amendment Claim 16 This Court finds that Plaintiffs’ Eighth Amendment claim based on a failure to 17 protect Smith does not present a new Bivens context. Both Carlson and Farmer involved 18 direct Eighth Amendment allegations against individual prison officials for their specific 19 actions failing to protect an inmate from an ongoing safety threat. In Farmer, that threat 20 specifically came from fellow inmates. The Court believes Plaintiffs’ allegations in this 21 case are equivalent. Therefore, there is no need to analyze the second prong of the Bivens 22 new context inquiry with regard to Plaintiffs’ Eighth Amendment claim. 23 Defendants call attention to the fact that this Court previously declined to recognize 24 an implied remedy when Plaintiffs originally brought their Bivens claims against two 25 wardens. (Doc. 109 at 12; Doc 44 at 4–5.) The facts underlying the claims against the 26 wardens meaningfully differed from the contexts in which the Supreme Court has 27 recognized a Bivens remedy. This Court was concerned that, in their original complaint, 28 Plaintiffs had not offered any indication that the wardens were personally aware of the 1 threat to Smith or personally involved in the events leading up to Smith’s death. The same 2 concerns do not exist for the allegations against individual Bivens Defendants. 3 b. Analysis of Fifth Amendment Claim 4 As this Court has previously stated, Plaintiffs’ claim based on a Fifth Amendment 5 due process violation presents a new context. (Doc. 44 at 4.) The most closely related case 6 in which the Supreme Court has implied a Bivens remedy is Davis. In Davis, the plaintiff 7 asserted a Fifth Amendment claim arising out of alleged sex discrimination in the 8 workplace in violation of equal protection. Although Plaintiffs’ second claim similarly 9 asserts a Fifth Amendment violation, the specific constitutional right at issue is 10 meaningfully different from that contemplated in Davis. The alleged violation of a due 11 process right to familial association under the Fifth Amendment involves a distinct context 12 from that of the Fifth Amendment right to equal protection. 13 Finally, although the underlying conduct is the same for the Eighth Amendment 14 claim as for the Fifth Amendment claim, the constitutional rights asserted and the analyses 15 required are dissimilar. This Court is not persuaded by Plaintiffs’ reading of Abbasi that 16 “what is significant in the new-context analysis is not the right at issue but the underlying 17 conduct.” (Doc. 128 at 6.) Because Plaintiffs’ Fifth Amendment claim presents a new 18 context, the Court is required to engage in the second step of the Bivens analysis to 19 determine whether special factors counsel hesitation. 20 2. Special Factors Counseling Hesitation as to Fifth Amendment 21 Claim 22 If a court finds that a new context exists, it must assess whether special factors 23 counsel the court to hesitate to extend an implied Bivens remedy. Abbasi, 137 S. Ct. at 24 1857. The Supreme Court has not exhaustively defined what special factors are, but it has 25 offered some examples. These include the potential cost to the government posed by 26 allowing a private cause of action against government officials; whether Congress has 27 passed legislation in the area that indicates it does not want courts to interfere; whether 28 national security is at stake; whether an alternative remedial structure exists; and whether 1 the claim addresses individual conduct or a broad policy. Id. at 1856–63. 2 Nonetheless, the central focus remains the separation of powers. Id. at 1857–58. 3 Therefore, a court must ask “whether the Judiciary is well suited, absent congressional 4 action or instruction, to consider and weigh the costs and benefits of allowing a damages 5 action to proceed.” Id. A special factor is one that “cause[s] a court to hesitate before 6 answering that question in the affirmative.” Id. A court is required to exercise caution when 7 deciding this question. Hernandez, 140 S. Ct. 735, 742 (2020) (“In both statutory and 8 constitutional cases, our watchword is caution.”). If such hesitation exists, a court must 9 refrain from extending a Bivens remedy to the new context. Abbasi, 137 S. Ct. at 1858. 10 a. Special Factors Analysis 11 Here, the Court finds that special factors counsel hesitation and, therefore, the Court 12 cannot extend a Bivens remedy to the new context presented by Plaintiff’s Fifth 13 Amendment claim. This Court previously quoted language from Abbasi discussing 14 Congress’s action post-Carlson in passing the PLRA. (Doc. 44 at 5.) In Abbasi, the 15 Supreme Court noted: 16 [I]t seems clear that Congress had specific occasion to consider 17 the matter of prisoner abuse and to consider the proper way to 18 remedy those wrongs . . . . [T]he Act itself does not provide for a standalone damages remedy against federal jailers. It could 19 be argued that this suggests Congress chose not to extend the 20 Carlson damages remedy to cases involving other types of prisoner mistreatment. 21
22 Abbasi, 137 S. Ct. at 1865. Thus, although the PLRA does not provide a standalone remedy 23 for prisoners to redress complaints against prison officials, it does cause this Court to 24 hesitate to say that the judiciary is best suited to weigh the costs and benefits of allowing a 25 damages action in this context. This is consistent with this Court’s previous determination 26 that concluding whether prisoners can pursue damages involves “‘a host of considerations 27 that must be weighed and appraised,’ and, as such, Congress is in a better position than the 28 Court to determine the parameters of such a damages claim.” (Doc. 44 at 6 (quoting 1 Portway v. Bracamontes, No. CV-15-00415-RCC, Doc. 92 at 5 (D. Ariz. Sept. 7, 2018).) 2 In sum, the Court finds that, while Plaintiffs’ Eighth Amendment claim does not 3 present a new context, Plaintiffs’ Fifth Amendment claim does in fact present a context 4 that is meaningfully different from those previously recognized by the Supreme Court. 5 Furthermore, special factors counsel this Court to hesitate to extend a Bivens remedy to the 6 new Fifth Amendment context. The greatest consideration here is the separation of powers 7 and the determination that Congress is best suited to consider the necessary costs and 8 benefits of permitting damages actions in this context. Therefore, the Court finds that 9 Plaintiffs’ Eighth Amendment claim may proceed, but Defendants’ motion to dismiss is 10 granted as to Plaintiffs’ Fifth Amendment claim. 11 e. Qualified Immunity 12 Lastly, Defendants argue that Bivens Defendants are entitled to qualified immunity 13 because Plaintiffs have not sufficiently alleged that Bivens Defendants personally 14 participated in the violation of a clearly established constitutional right. (Doc. 109 at 33– 15 34.) Defendants contend that (1) Plaintiffs improperly group Bivens Defendants’ alleged 16 conduct together without distinguishing the specific actions of each individual official and 17 (2) Plaintiffs’ allegations go beyond the discrete incident of Smith’s death to reach broad 18 policy concerns that cannot be addressed by a Bivens action. (Id. at 35–37.) 19 In response, Plaintiffs assert that they provided detailed allegations against each 20 Bivens Defendant. (Doc. 128 at 15.) Further, relying primarily on Farmer, Plaintiffs argue 21 that each individual Bivens Defendant disregarded an obvious risk of harm by either 22 placing Smith and Giovanni together or failing to separate them, thereby violating a clearly 23 established right to protection from other prisoners under the Eighth Amendment. (Id. at 24 15–23.) 25 As previously outlined, Plaintiffs’ Fifth Amendment claim will not proceed as it 26 presents a new context to which this Court hesitates to extend a Bivens remedy. 27 Furthermore, the claims against Bivens Defendants Schied, Tinnerello, Inclan, Merrell, 28 Nazarovich, and Davis will not move forward because the replacement of John Doe 1 Defendants with their names is an impermissible amendment. Thus, the Court will only 2 assess whether Bivens Defendants Islas, Ceniceros, Goodman, Yanez, Kurtz, Montano, 3 Franco, Beans, Dunham, and Domitrovich are entitled to qualified immunity insulating 4 them from Plaintiffs’ Eighth Amendment claim. 5 i. Qualified Immunity Standard 6 A court asked to determine whether officials are entitled to qualified immunity must 7 answer two questions: “(1) whether, taken in the light most favorable to the party asserting 8 the injury, the facts alleged show the officer’s conduct violated a constitutional right; and 9 (2) if so, whether the right was clearly established in light of the specific context of the 10 case.” O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (citing Krainski v. Nevada ex 11 rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 970 (9th Cir. 2010)); see 12 also Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). A clearly established right is one where 13 “every reasonable official would have understood that what he was doing violates that 14 right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (quotation marks omitted). 15 Moreover, the clearly established right must be specific to the facts of the instant case not 16 a generalized injury. White v. Pauly, 137 S. Ct. 548, 552 (2017). 17 A plaintiff also must allege that each defendant personally participated in the 18 violation of this clearly established constitutional right. See Iqbal, 556 U.S. at 676 (“[A] 19 plaintiff must plead that each Government-official defendant, through the official’s own 20 individual actions, has violated the Constitution.”); Abbasi, 137 S. Ct. at 1860 (“[A] Bivens 21 claim is brought against the individual official for his or her own acts, not the acts of 22 others.”). Furthermore, “it must be noted that a Bivens action is not ‘a proper vehicle for 23 altering an entity’s policy.’” Abbasi, 137 S. Ct. at 1860 (quoting Malesko, 534 U.S. at 74). 24 The function of a Bivens action is to deter individual conduct. Id. 25 An inmate’s right to protection from fellow inmates who have expressed an intent 26 to harm them is a clearly established constitutional right. See Farmer, 511 U.S. at 833; 27 Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002) (“[I]f any of the 28 officers knew that [the inmate aggressor] was acting out dangerously with cellmates or that 1 he was a threat to Ford but housed Ford with him anyway, this would violate the Eighth 2 Amendment . . . . [T]here is no question that this conduct would touch all the bases 3 established in Farmer.”); Castro v. Cnty. of L.A., 833 F.3d 1060, 1067 (9th Cir. 2016) 4 (holding correctional officers were not entitled to qualified immunity when they housed 5 plaintiff “in a cell with a combative inmate, when the cell had no audio or video 6 surveillance and only occasional monitoring” because the law was clearly established this 7 was a constitutional violation). The Farmer Court recognized that “prison officials have a 8 duty [under the Eighth Amendment] . . . to protect prisoners from violence at the hands of 9 other prisoners” especially because prison officials have “stripped [prisoners] of virtually 10 every means of self-protection and foreclosed their access to outside aid . . . .” Farmer, 511 11 U.S. at 833. A plaintiff asserting that an individual officer violated this right must allege 12 that the deprivation was “objectively, ‘sufficiently serious’” and that the officer acted with 13 “deliberate indifference.” Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). 14 The requisite deliberate indifference exists when an “official knows of and disregards an 15 excessive risk to inmate health or safety.” Id. at 837. “[T]he official must both be aware of 16 the facts from which the inference could be drawn that a substantial risk of serious harm 17 exists and he must also draw the inference.” Id. 18 ii. Qualified Immunity Analysis 19 The Court finds that Bivens Defendants Islas, Ceniceros, Goodman, Yanez, Kurtz, 20 Montano, Franco, Beans, Dunham, and Domitrovich are not entitled to qualified immunity. 21 The facts alleged, taken in the light most favorable to Plaintiffs, show that Bivens 22 Defendants’ individual conduct violated a clearly established constitutional right, namely 23 the Eighth Amendment right to protection from violence by other inmates. The Court does 24 not agree that Plaintiffs have improperly grouped Bivens Defendants’ actions. Rather, the 25 Court finds that Plaintiffs have made allegations as to the conduct of each individual Bivens 26 Defendant. 27 Specifically, Plaintiffs allege that Bivens Defendant Domitrovich, as Operations 28 Lieutenant, was aware that Smith was a sex offender and that Giovanni posed a threat to 1 Smith’s safety. (Doc. 103 at 4, 40, 45.) He reviewed the two prisoners’ paperwork and 2 approved their placement together on June 28, 2016. (Id. at 45.) According to the 3 allegations, Bivens Defendant Domitrovich continued to approve the placement over the 4 course of the week that followed despite hearing loud and frequent arguments between the 5 two men and despite being made aware of Giovanni’s ongoing threat to harm Smith. (Id. 6 at 55–56.) 7 Plaintiffs also allege that Bivens Defendants Kurtz, Yanez, and Franco were on duty 8 as SHU Correctional Officers on June 28, 2016, the day that Smith and Giovanni were 9 placed together, and heard Giovanni threaten to hurt any sex offender he was housed with. 10 (Id. at 11–13; 43; 60–61.) Earlier that day, Bivens Defendants Kurtz, Yanez, and Franco 11 reportedly tried to house Giovanni with a different sex offender but moved Giovanni to 12 another cell shortly after he threatened his cellmate. (Id. at 43.) Plaintiffs also allege that 13 Bivens Defendants Kurtz, Yanez, and Franco brought Smith into the SHU revealing his 14 status as a sex offender saying, “We’ve got a ‘cho mo’ coming in.” (Id. at 45.) Bivens 15 Defendant Kurtz then allegedly told Giovanni that they were going to house him with 16 Smith and said something to effect of “do what you gotta do.” (Id. at 46.) Bivens 17 Defendants Kurtz, Yanez, and Franco later brought Smith to Giovanni’s cell despite 18 hearing Giovanni’s continued threats to hurt sex offenders. (Id.) 19 Furthermore, Plaintiffs allege that Bivens Defendants Kurtz, Yanez, Franco, Islas, 20 Ceniceros, Goodman, Montano, Beans, and Dunham, all SHU Correctional Officers, failed 21 to separate Smith and Giovanni over the course of the week despite the ongoing safety risk. 22 (Id. at 47.) They allegedly heard Smith and Giovanni get into several loud arguments and 23 observed threatening messages that Giovanni wrote on the wall of their shared cell. (Id. at 24 47–52.) Plaintiffs also allege that Bivens Defendants Kurtz, Yanez, Franco, Islas, 25 Ceniceros, Goodman, Montano, Beans, and Dunham failed to remove a prohibited 26 clothesline from the shared cell, the clothesline that Giovanni ultimately used to kill Smith. 27 (Id. at 5–6.) These facts, taken as alleged, demonstrate that Bivens Defendants Islas, 28 Ceniceros, Goodman, Yanez, Kurtz, Montano, Franco, Beans, Dunham, and Domitrovich 1 personally participated in the constitutional violation. 2 This Court previously found that Plaintiffs’ Bivens claims against two wardens 3 impermissibly sought to challenge prison policy because Plaintiffs failed to allege that 4 either warden was personally involved in the constitutional violation or knew about 5 Giovanni’s threats towards Smith. (Doc. 44 at 7.) In the absence of personal knowledge or 6 involvement in the events, the wardens “would have had to initiate policy changes related 7 to sex offenders and gang drop-outs” to remedy the unconstitutional action alleged. (Id.) 8 Accordingly, the Court held that no clearly established constitutional right required prison 9 officials to implement such broad policy changes. This ruling did not hold, however, that 10 individual prison officials are entitled to qualified immunity where, as here, there are 11 specific allegations made as to their personal involvement in the events. 12 Therefore, because Plaintiffs have put forth specific allegations that Bivens 13 Defendants Islas, Ceniceros, Goodman, Yanez, Kurtz, Montano, Franco, Beans, Dunham, 14 and Domitrovich personally participated in the violation of a clearly established 15 constitutional right, the Court finds that they are not entitled to qualified immunity 16 insulating them from Plaintiffs’ Eighth Amendment claim. 17 18 For the foregoing reasons, IT IS HEREBY ORDERED: 19 1) Defendants’ Motion to Dismiss All Claims in Plaintiffs’ Fourth Amended 20 Complaint, or, In the Alternative, Summary Judgment on Statute of 21 Limitations Grounds is GRANTED IN PART and DENIED IN PART. (Doc. 22 109.) 23 2) The motion is GRANTED dismissing all claims against Bivens Defendants 24 Schied, Tinnerello, Inclan, Merrell, Nazarovich, and Davis. 25 3) The motion is DENIED as to all Eighth Amendment claims against Bivens 26 Defendants Islas, Ceniceros, Goodman, Yanez, Kurtz, Montano, Franco, 27 Beans, Dunham, and Domitrovich. 28 4) The motion is GRANTED dismissing Fifth Amendment claims against 1 Bivens Defendants Islas, Ceniceros, Goodman, Yanez, Kurtz, Montano, 2 Franco, Beans, Dunham, and Domitrovich. 3 Dated this 3rd day of March, 2021. 4 (7 - 7 Honorable Raner C. Collins 8 senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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