JOHN SCALIA, individually and as successor-in-interest of Decedent KIMBERLY MORRISSEY-SCALIA v. COUNTY OF KERN, et al.
1:17-cv-01097-LJO-SKO
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 6, 2019
MEMORANDUM DECISION AND ORDER RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF No. 67)
I. INTRODUCTION
This case arises from the death of Kimberly Morrissey-Scalia, who died after falling from her bunk while she was a pretrial detainee at Kern County Jail. Decedent‘s husband, John Scalia (“Plaintiff“), brings claims individually and on behalf of his late wife‘s estate. Plaintiff brings this case against Kern County, Kern County Hospital Authority (“KCHA“), Kern County Sheriff Donny Youngblood, Kern County Sheriff‘s Sergeant Joel Swanson, Kern County Sheriff‘s Detention Deputies Randi Allen and Misty Miller, KCHA Staff Nurse Rowena P. Blakely, and Does 1-100, alleging deliberate indifference under
II. BACKGROUND
A. Factual Background1
Kimberley Morrison-Scalia was the wife of Plaintiff John Scalia. ECF No. 69 ¶ 1. Ms. Scalia was arrested on June 21, 2016, and was detained in the Kern County Central Receiving Facility and Lerdo Pretrial Detention Facility at all times relevant to this case. Id. Defendant Rowena Blakely had worked at the Lerdo Pretrial Detention Facility as a registered nurse since 1993. Id. ¶ 8. On June 27, 2016, at approximately 11:15 p.m., Deputy Randi Allen was notified that Ms. Scalia had fallen from a top bunk in her cell and had struck her head. Id. ¶ 12. Although Ms. Scalia was standing when Deputy Allen arrived at her
Several hours later, at approximately 2:30 a.m. on June 28, 2016, Nurse Blakely was called for medical priority regarding Ms. Scalia, and was informed by Deputy Allen that, after receiving an emergency intercom message from Ms. Scalia‘s cellmate, the deputy found Ms. Scalia on the floor, unconscious. Id. ¶¶ 25-26, 28. Deputy Allen observed Ms. Scalia was unconscious, non-responsive, mumbling, and pale, and found her on the ground near the toilet, with vomit all over the toilet and on Ms. Scalia, and her hands and feet curled in. Id. ¶¶ 27-28. Ms. Scalia was assisted up on a gurney and taken to the infirmary. Id. ¶ 29. Nurse Blakely took Ms. Scalia‘s vitals and noted a small bump to Ms. Scalia‘s left eyebrow. Id. ¶ 34. There is a genuine dispute whether Ms. Scalia fell from her bunk a second time. See, e.g., Id. ¶¶ 34-35. Based on her 2:30 a.m. assessment, Nurse Blakely filled out a referral form to send Ms. Scalia to Kern Medical Center Emergency Room. Id. ¶ 36. Nurse Blakely‘s referral did not state Ms. Scalia had hit her head, that Ms. Scalia could not walk during the initial exam, nor that Ms. Scalia was unconscious and non-responsive during the second exam. Id. ¶ 36.
The ambulance driver documented that Ms. Scalia was mentally confused and spoke in a nonsensical manner. ECF No. 73-1 ¶ 129. The ambulance arrived at the Kern County Medical Center at 3:34 a.m. on June 28, 2016. ECF No. 69 ¶ 39. Ms. Scalia was initially examined by an E.R. nurse and then an E.R. physician, who found Ms. Scalia alert, responsive, and with gross motor function and sensation intact. Id. ¶ 40. However, around 4:54 a.m. Ms. Scalia became incontinent, and the doctor ordered a CT Scan for Ms. Scalia. Id. ¶ 42. At approximately 5:52 a.m., the CT scan showed “large acute left hemispheric subdural hematoma with significant mass effect and subfalcine herniation to the right and likely early changes of transtentorial herniation with mild mass effect on the brainstem.” Id. ¶ 44. At approximately 8:20 a.m., Ms. Scalia was taken to the operating room for surgery. Id. ¶ 45. However, Ms. Scalia never recovered, was placed on comfort measures by her family on June 30, 2017, and Ms. Scalia was pronounced dead at 12:05 a.m. on July 1, 2016. Id. ¶ 46. An autopsy determined that Ms. Scalia died from blunt injury to the head. Id. ¶ 48. There is a factual dispute whether Ms. Scalia‘s cirrhosis or alcoholism complicated the head trauma. See, e.g., id. ¶ 49. There is also a factual dispute regarding whether Ms. Scalia would have survived had surgery been performed earlier. Id. ¶ 84.
B. Procedural Background
Plaintiff filed this lawsuit on June 17, 2016, in Fresno County Superior Court. ECF No. 1, Exs. A & B. Defendants timely removed to this Court on August 19, 2017. ECF No. 1. Defendants moved for summary judgment on July 2, 2019. ECF No. 67. Plaintiff filed his opposition on July 30, 2019. ECF Nos. 69-72.2 Defendants filed their reply on August 6, 2019. ECF No. 73. Pursuant to Local Rule 230(g), the Court determined that this matter was suitable for decision on the papers and took it under submission on August 7, 2019. ECF No. 74.
III. LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
The moving party bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact for trial. Celotex, 477 U.S. at 323. If the moving party
IV. DISCUSSION
Defendants argue that: (1) Plaintiff‘s First and Second Causes of Action against Nurse Blakely and KCHA pursuant to § 1983 fail because Defendants are entitled to qualified immunity; (2) Plaintiff‘s Second Cause of Action against KCHA fails because there is no evidence of a custom, practice, or policy of KCHA that caused Ms. Scalia‘s injuries; (3) Plaintiff‘s Bane Act claim fails because Nurse Blakely did not act with the requisite intent; (4) Plaintiff‘s Fourth Cause of Action against KCHA pursuant to
A. Qualified Immunity on § 1983 Deliberate Indifference Claim
The Civil Rights Act, codified at
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
To determine whether officers are entitled to qualified immunity, a court conducts a two-step inquiry. “The threshold inquiry in a qualified immunity analysis is whether the plaintiff‘s allegations, if true, establish a constitutional violation.” Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003) (citations omitted).
Consequently, at summary judgment, an officer may be denied qualified immunity in a § 1983 action “only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show that the officer‘s conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood [his] conduct to be unlawful in that situation.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). In making this determination, the Court still must view the evidence in the light most favorable to the nonmoving party. Tolan v. Cotton, 572 U.S. 650 (2014). The issue of qualified immunity is “a pure question of law.” Elder v. Holloway, 510 U.S. 510, 514 (1994). But, “[w]here disputed facts exist, [a court] determines if the denial of qualified immunity was proper by assuming that the version of events offered by the non-moving party is correct.” Wilkins, 350 F.3d at 951.
As described below, taking all the evidence in the light most favorable to Plaintiff, a reasonable jury could find Defendants were deliberately indifferent to Ms. Scalia‘s constitutional right to adequate medical care. Moreover, this right was clearly established at the time of the incident such that a reasonable person would understand the failure to provide medical assistance to Ms. Scalia was unlawful. A § 1983 action premised on a violation of the Fourteenth Amendment for inadequate medical care requires allegations that each defendant acted with deliberate indifference to the decedent‘s serious medical needs. See Castro v. County of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (en banc). Inmates bringing deliberate indifference claims against prison officials “may do so under the Eighth Amendment‘s Cruel and Unusual Punishment Clause or, if not yet convicted, under the Fourteenth Amendment‘s Due Process Clause.” Id. at 1067-68; see also Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1246 n.5 (9th Cir. 2016) (“Eighth Amendment protections apply only once a prisoner has been convicted of a crime, while pretrial detainees are entitled to the potentially more expansive protections of the Due Process Clause of the Fourteenth Amendment.“). Under either clause, a plaintiff
The Court noted in its ruling on Defendants’ motion to dismiss that following the Supreme Court‘s decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), and the Ninth Circuit‘s decision in Castro, 833 F.3d 1060, the applicable standard for a pretrial detainee‘s claim of deliberate indifference to a serious medical need was less clear, but that an objective standard likely applied. See ECF No. 28 at 5. The Ninth Circuit has since confirmed in Gordon v. County of Orange that a pretrial detainee‘s claim for medical deliberate indifference is subject to a solely objective standard. 888 F.3d 1118, 1124-25. The Ninth Circuit held that deliberate indifference to a pretrial detainee‘s untreated medical conditions requires a plaintiff to demonstrate:
(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;
(ii) those conditions put the plaintiff at substantial risk of suffering serious harm;
(iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant‘s conduct obvious; and
(iv) by not taking such measures, the defendant caused the plaintiff‘s injuries.
Id. at 1125; see also Ninth Circuit Model Civil Jury Instructions No. 9.30 (2019) (providing same test as above but replacing “conditions under which the plaintiff was confined” with the phrase “the denial of needed medical care“). “With respect to the third element, the defendant‘s conduct must be objectively unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each particular case.‘” Gordon, 888 F.3d at 1124-25 (quoting Castro, 833 F.3d at 1071) (internal quotation marks and citations omitted). “The ‘mere lack of due care by a state official’ does not deprive an individual of life, liberty, or property under the Fourteenth Amendment.” Id. (quoting Castro, 833 F.3d at 1071) (internal quotation marks and citations omitted). As before, “[a]n inadvertent failure to provide adequate medical care does not, by itself, state a deliberate indifference claim for § 1983 purposes.” Wilhelm, 680 F.3d at 1122 (emphasis in original) (quotation marks omitted). Thus, the plaintiff must “prove more than negligence but less than subjective intent—something akin to reckless disregard.” Gordon, 888 F. 3d. at 1125 (quoting Castro, 833 F.3d at 1071).
Here, viewing the evidence in the light most favorable to Plaintiff, there are genuine disputes of material fact and a reasonable jury could find Defendants were deliberately indifferent to Ms. Scalia‘s medical needs.
First, it is undisputed that Nurse Blakely made numerous intentional decisions with respect to the denial of Ms. Scalia‘s medical care, most critically the decision to return Ms. Scalia to a cell after the first examination, despite knowing that Ms. Scalia had fallen from the top bunk and suffered a head injury from hitting the concrete floor. See ECF No. 69 ¶ 23; ECF No. 73-1 ¶¶ 111, 131. There are also factual disputes regarding Nurse Blakely‘s intentional decisions to not act during both of her examinations, such as deciding to not call a physician nor perform a formal neurological assessment. See ECF No. 69 ¶¶ 17, 20; ECF No. 73-1 ¶¶ 113, 126-128, 130, 132-39, 147-53.
Third, at a minimum, there are genuine material factual disputes regarding whether Nurse Blakely did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of her conduct obvious. Ms. Scalia fell from about five feet onto bare concrete, hitting her head against the concrete. See ECF No. 69 ¶ 12. Ms. Scalia was transported to the infirmary by wheelchair because she was unable to walk on her own, which Nurse Blakely observed. See id. ¶¶ 13, 15. But Nurse Blakely‘s first examination lasted several minutes at most, and Nurse Blakely did not perform a formal neurological assessment, did not ask Ms. Scalia why she was in a wheelchair, did not ask Ms. Scalia whether she had been unconscious, did not ask Ms. Scalia to attempt to walk without assistance, did not keep Ms. Scalia in the infirmary for observation, and did not call a physician at any time. See ECF No. 69 ¶¶ 17, 20; ECF No. 73-1 ¶¶ 113, 130-31, 133-34, 139. Even after the second examination when Ms. Scalia‘s symptoms were far more severe, Nurse Blakely did not call a physician, and her referral to the hospital did not state Ms. Scalia had hit her head, that Ms. Scalia could not walk during the initial exam, nor that Ms. Scalia was unconscious and non-responsive during the second exam. See ECF No. 69 ¶ 36; ECF No. 73-1 ¶¶ 127-28, 130, 135-39. It is undisputed that Nurse Blakely failed to take these reasonable, available measures to abate the risk of serious harm, and there is a genuine dispute of material fact whether a reasonable nurse would have appreciated the high degree of risk involved, making the consequences of such conduct obvious. See also ECF No. 73-1 ¶¶ 147-53. There is enough evidence for the jury to decide that a reasonable nurse would have responded with more urgency and more careful testing of Ms. Scalia‘s condition given the obviously high risk of severe consequences from a possible traumatic head injury, and that Nurse Blakely‘s actions were objectively unreasonable and reckless.
Finally, as mentioned, there is a genuine dispute as to whether earlier detection and treatment would have saved Ms. Scalia‘s life, and thus a genuine dispute as to whether Nurse Blakely‘s failure to take additional measures caused Ms. Scalia‘s injuries. See ECF No. 69 ¶¶ 44, 84; ECF No. 73-1 ¶¶ 113, 130-39, 147-53.
Thus, viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that Nurse Blakely was deliberately indifferent to Ms. Scalia‘s serious medical need. Moreover, this right was clearly established at the time of the incident such that a reasonable nurse would have understood her conduct to be unlawful in that situation. See, e.g., Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (“Because the nurses and Dr. Reid knew of Ortiz‘s head injury but disregarded evidence of complications to which they had been specifically alerted and, without an examination, prescribed sedatives that were contraindicated, we cannot say as a matter of law they were not deliberately indifferent to Ortiz‘s medical needs.“); Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002) (“[I]t is “clearly established that the officers [may] not intentionally deny or delay access to medical care” to pretrial detainees.“); McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). Defendants are not entitled to qualified immunity at this time.
B. Monell Claim
Defendant argues that the Monell claim against KCHA should be dismissed because there is no evidence of a KCHA custom, practice, or policy, that caused Ms. Scalia‘s injuries. A municipality cannot be held liable under § 1983 for the actions of its employees under the theory of respondeat superior. See Monell v. Dep‘t of Social Servs., 436 U.S. 658, 691 (1978); Velazquez v. City of Long Beach, 793 F.3d 1010, 1027 (9th Cir. 2015). A municipality can only be held liable for injuries caused by the execution of its policy or custom whether made “by its lawmakers or those whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 694. Municipal liability under Monell may be premised on: (1) conduct pursuant to a formal or expressly adopted official policy; (2) a longstanding practice or custom which constitutes the “standard operating procedure” of the local government entity; (3) a decision of a decision-making official who was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or (4) an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. See Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014); Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). “A policy can be one of action or inaction,” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006), and can be formal or informal. See City of St. Louis v. Praprotnik, 485 U.S. 112, 131 (1988).
A longstanding practice or custom is one that is so “persistent and widespread” that it constitutes a “permanent and well settled” governmental policy. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Id. The line between “isolated or sporadic incidents” and “persistent and widespread conduct” is not clearly delineated, although where more than a few incidents are alleged, the determination appears to require a fully-developed factual record. Compare Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989) (single incident of excessive force inadequate to establish liability), Meehan v. County of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (two incidents insufficient), with Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (triable issue of fact existed as to whether Seattle had an unconstitutional policy or custom of suppressing certain political speech based on the testimony of several individuals that their entry to a particular area was permitted by police only after they removed offending buttons and stickers, coupled with the testimony of the officer in charge that the City would not permit “demonstrations” in the area); see also Jarbo v. County of Orange, 2010 WL 3584440, *9-*13 (C.D. Cal. Aug. 30, 2010) (reviewing circumstances in which Monell custom/practice claims were permitted past summary judgment).
Thus, generally, a plaintiff must show the following: (1) the plaintiff
It is undisputed that, during the events leading to Ms. Scalia‘s death, the County of Kern employed the infirmary nursing staff. ECF No. 69 ¶¶ 2-3, 9. Ms. Scalia died at 12:05 a.m. on July 1, 2016. ECF No. 69 ¶ 46. KCHA did not take over the infirmary and become the employer of the nursing staff until July 1, 2016. ECF No. 69 ¶ 9. Simply put, a custom, policy, or practice of KCHA could not have been the “moving force” behind Plaintiff‘s injury when KCHA was not the employer or supervisor of Nurse Blakely on June 27-28, 2016, the dates when the relevant acts and omissions culminated in Ms. Scalia‘s death. Plaintiff argues that KCHA‘s failure to follow its required procedures to investigate Ms. Scalia‘s death is sufficient to bring this claim to trial, or that at the very least the failure demonstrates implicit ratification of Nurse Blakely‘s actions. However, Plaintiff does not show how these failures to follow policy caused or contributed to Ms. Scalia‘s constitutional deprivation, and it remains unclear how KCHA could “ratify” Nurse Blakely‘s actions prior to KCHA becoming her employer. The only policies, practices, or customs that appear relevant to Ms. Scalia‘s death are those of the County of Kern. Plaintiff does not tie the KCHA policies to the those of the County of Kern. Plaintiff‘s cases cited for the proposition that post-event evidence is relevant to whether a policy or ratification existed at the time of injury are distinguishable because in those cases the post-event evidence related to defendants who were responsible at the time of the injury. See McRorie v. Shimoda, 795 F.2d 780, 782, 784 (9th Cir. 1986) (prison officials who failed to reprimand guards post-event were responsible for supervision at time of injury); Henry v. County of Shasta, 132 F.3d 512, 518-21 (9th Cir. 1997), opinion amended on denial of reh‘g, 137 F.3d 1372 (9th Cir. 1998) (post-event evidence related to municipal defendant who was responsible at time of injury).
Therefore, Plaintiff fails to raise a genuine dispute of material fact as to how KCHA‘s policies or ratification were a moving force behind Ms. Scalia‘s injury and summary judgment as to Plaintiff‘s Second Cause of Action for Monell § 1983 liability will be GRANTED as to KCHA.
C. Bane Act Violation
Plaintiff‘s Third Cause of Action arises under
As discussed in the Court‘s Order on the motion to dismiss, “[t]he Bane Act‘s requirement that interference with rights must be accomplished by threats, intimidation or coercion has been the source of much debate and confusion.” Cornell v. City & County of San Francisco, 17 Cal. App. 5th 766, 801 (2017), as modified (Nov. 17, 2017), review denied (Feb. 28, 2018) (alterations and quotation marks omitted). The Cornell court ultimately concluded that “the egregiousness required by Section 52.1 is tested by whether the circumstances indicate the arresting officer had a specific intent to violate the arrestee‘s right to freedom from unreasonable seizure, not by whether the evidence shows something beyond the coercion ‘inherent’ in the wrongful detention.” Id. at 801-02. Cornell explained that the test essentially sets forth two requirements for a finding of “specific intent” . . . . The first is a purely legal determination. Is the . . . right at issue clearly delineated and plainly applicable under the circumstances of the case? If the trial judge concludes that it is, then the jury must make the second, factual, determination. Did the defendant commit the act in question with the particular purpose of depriving the citizen victim of his enjoyment of the interests protected by that . . . right? If both requirements are met, even if the defendant did not in fact recognize the [unlawfulness] of his act, he will be adjudged as a matter of law to have acted [with the requisite specific intent]—i.e., “in reckless disregard of constitutional [or statutory] prohibitions or guarantees.” Id. at 803 (internal citations and quotation marks omitted); see also Reese v. County of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (adopting Cornell‘s specific intent standard).
Applying the intent test laid out in Cornell, the Court finds that summary judgment is not appropriate as to Plaintiff‘s Bane Act Claim. First, the right at issue, a pretrial detainee‘s right to be free from deliberate indifference to serious medical needs, is “clearly delineated and plainly applicable” to the circumstances. Cornell, 17 Cal. App. 5th at 803. Second, as found above, there is at least a genuine dispute of material fact as to whether Nurse Blakely acted with deliberate indifference to Ms. Scalia‘s medical needs. Thus, similarly, there is a genuine dispute of material fact as to whether Nurse Blakely acted with reckless disregard for Ms. Scalia‘s rights which is all that is necessary to demonstrate specific intent under the Bane Act. Therefore,
D. Punitive Damages
Defendants seek summary judgment of Plaintiff‘s prayer for relief for punitive damages. It is “well-established that that a ‘jury may award punitive damages under section 1983 either when a defendant‘s conduct was driven by evil motive or intent, or when it involved a reckless or callous indifference to the constitutional rights of others.‘” Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005) (quoting Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993)). “The standard for punitive damages under § 1983 mirrors the standard for punitive damages under common law tort cases,” and “malicious, wanton, or oppressive acts or omissions are within the boundaries of traditional tort standards for assessing punitive damages.” Id. (citing Smith v. Wade, 461 U.S. 30, 34 (1983)).
Here, as discussed above, viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that Defendants were deliberately indifferent to Plaintiff‘s constitutional rights, which requires a showing of “something akin to reckless disregard,” Castro, 833 F.3d at 1071, and the standard for the availability of punitive damages in a § 1983 action includes “when the defendant‘s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others,” Dang, 422 F.3d at 807 (emphasis added). Therefore, summary judgment is DENIED as to Plaintiff‘s punitive damages claim.
E. Unopposed Arguments
Finally, Defendants make a number of arguments for summary judgment which Plaintiff explicitly states he does not oppose, or which Plaintiff fails to substantively oppose in his brief.
First, Defendants argue the Court dismissed the Fourth Cause of Action pursuant to
Second, Defendants argue that KCHA is entitled to
Third, Defendants argue that John Scalia cannot bring the First through Fifth Causes of Action in his individual capacity
Therefore, summary judgment is GRANTED for KCHA as to the Third and Fifth Causes of Action. Summary judgment is GRANTED for all Defendants as to the First, Second, Third, Fourth, and Fifth Causes of Action brought by Mr. Scalia in his individual capacity only.
V. CONCLUSION AND ORDER
For the reasons stated above, Defendants’ summary judgment is GRANTED in part and OTHERWISE DENIED.
IT IS SO ORDERED.
Dated: September 6, 2019 /s/ Lawrence J. O‘Neill _____
UNITED STATES CHIEF DISTRICT JUDGE