United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF JUDGE
the Court is Defendant Rona Siegert's
(“Siegert”) Motion for Summary Judgment. Dkt. 97.
The Court will also consider Kent Richard Ellis'
(“Ellis”) Motion for Leave to File Under Seal
Plaintiff's Response to Defendant Siegert's Motion
for Summary Judgment. Dkt. 101. The Court GRANTS
Siegert's Motion for Summary Judgment (Dkt. 97) and
DENIES IN PART and GRANTS IN PART Ellis' Motion for Leave
to File Under Seal Plaintiff's Response to Defendant
Siegert's Motion for Summary Judgment (Dkt. 101).
before the Court is an Amended Motion for Summary Judgment of
Defendants Corizon, LLC, Dr. Murray Young, Nurse Practitioner
Christian Gelok, Nurse Practitioner Scott
Schaffer, and Physician's Assistant Michael
Takagi (collectively, “Corizon Defendants”). Dkt.
99. The Court will also consider Ellis' Motion for Leave
to File Plaintiff's Response to Defendant Corizon, Et.
Als' [sic] Motion for Summar [sic]
Judgment Under Seal. Dkt. 104. For the reasons set forth
below, the Court GRANTS the Corizon Defendants' Amended
Motion for Summary Judgment (Dkt. 99) and DENIES IN PART and
GRANTS IN PART Ellis' Motion for Leave to File
Plaintiff's Response to Defendant Corizon, Et. Als'
[sic] Motion for Summar [sic] Judgment
Under Seal. Dkt. 104.
section includes facts that are undisputed and material to
the resolution of the issues in this case. Pursuant to
District of Idaho Local Civil Rule 7.1(b)(1), Siegert filed a
Statement of Undisputed Material Facts (“Siegert
Statement”). Dkt. No. 97-2. The Corizon Defendants also
filed an Amended Statement of Undisputed Facts
(“Corizon Statement”). Dkt. No. 99-2. In response
to the Siegert Statement, Ellis filed a Disputed Statement of
Material Facts. Dkt. No. 102-12. And, in response to the
Corizon Statement, Ellis filed a separate Disputed Statement
of Material Facts. Dkt. No. 105-10. The Court will note the
areas where Ellis disputes facts appearing in the Siegert
Statement and the Corizon Statement. It will accept as true
Ellis' version of the disputed facts for purposes of this
Ellis' Patient History
complains that Siegert and the Corizon Defendants
consistently ignored and misdiagnosed an injury to his lower
back and right hip. Ellis was injured during a game of
pick-up basketball in late November or early December of
2006, while he was an inmate at the Bill Clayton Detention
Center in Texas. Dkt. 102-11 at ¶ 5; Dkt. 105-10 at
¶ 2. Ellis was transported to the medical unit at the
time of his injury and was prescribed crutches, which he used
for a couple of weeks. Dkt. 99-4 at 18, Deposition
Transcript of Kent Ellis (“Ellis
Depo.”), p. 66:8-17. Ellis also received an x-ray.
Dkt. 99-4 at 18, Ellis Depo., p. 66:18-67:23.
20 months later, on August 27, 2008, Ellis complained to the
medical staff in Texas about pain in his hip related to his
basketball injury. Dkt. 99-9 at 17. The medical staff member
noted that Mr. Ellis had tenderness along his right hip and
pain associated with his full range of motion. Dkt. 99-9 at
17. The staff member ordered that Ellis be referred to a
doctor for further evaluation and prescribed
Tylenol for ten days. Dkt. 99-9 at 17. Ellis was transferred
back to Idaho on September 30, 2008. Dkt. 99-8 at 35. No.
injury or issues related to Ellis' lower back or hip were
noted on his Medical Information Transfer Form. Dkt. 99-9 at
October 15, 2008, just fifteen days after arriving in Idaho
from Texas, Ellis complained to medical personnel about lower
back pain related to his basketball injury. Dkt. 99-8 at 34.
He was prescribed ibuprofen along with a muscle relaxer (Dkt.
99-8 at 34) and told to follow up in thirty days (Dkt. 99-8
at 34). Sixty-one days later, on December 2, 2008, Ellis was
seen by Nurse Practitioner David Foss for complaints about
lower back and right hip pain. Dkt. 99-8 at 33. N.P. Foss
physically examined Ellis but did not find any abnormalities
with Ellis' spine or reflexes. Dkt. 99-8 at 33.
Nevertheless, N.P. Foss ordered an x-ray of Ellis'
lumbar, spine, right hip, sacrum, and coccyx. Dkt. 99-8 at
33; Dkt. 99-9 at 12. Examining the x-ray, the radiologist
found evidence of early degenerative articular cartilage
loss, minimal disc space narrowing at ¶ 5-S1, and
marginal osteophytosis at ¶ 4-5. Dkt. 99-9 at 12. The
sacrum, pubic symphysis, and SI joints appeared normal. Dkt.
99-9 at 12.
August 2, 2009, roughly nine months after Ellis was examined
by N.P. Foss, he filled out a health service request form
asking for medication for his back pain. Dkt. 99-7 at 22.
Eleven days later, on August 13, 2009, Ellis was seen by P.A.
Michael Takagi. Dkt. 99-8 at 32. During that visit, Ellis
complained about back pain arising from a fall on the
basketball court. Dkt. 99-8 at 32. P.A. Takagi examined Ellis
and prescribed ibuprofen, after finding that Ellis had normal
reflexes and appeared to be well functioning. Dkt. 99-8 at
32; Dkt. 99-9 at 10. P.A. Takagi offered to have Ellis
relieved from work duty, but Ellis declined. Dkt. 99-8 at 32;
Dkt. 97-5 at 30, Ellis Depo., p. 95:10-16.
August 13, 2009 to October 21, 2011, the only specific
complaint made by Ellis regarding pain in his lower back or
hip came on September 21, 2010 when he reported on a facility
transfer form that he had chronic pain in his back, which he
rated as 6/10. Dkt. 99-6 at 5. During that period, he
attempted to continue to “play several sports [after]
the injury” even though his ability to do so was
“diminished in a lot of ways.” Dkt. 97-5 at 30,
Ellis Dep. 96:23-97:13. During a softball game in
June 2011, Ellis tore his rotator cuff, for which he
underwent surgery on October 3, 2012. Dkt. 99-7 at 43.
same time he was receiving treatment for his shoulder, Ellis
completed a health service request regarding pain in his
lower back and hip on October 21, 2013. Dkt. 99-7 at 15.
After being seen by a nurse practitioner on November 4, 2013,
an x-ray of Ellis' pelvis and right hip was ordered,
along with physical therapy. Dkt. 99-8 at 22. Ellis continued
to receive physical therapy, and on December 13, 2013, N.P.
Schaffer followed up with Ellis about his x-ray results,
which showed mild degenerative change in Ellis' right
hip, but little interval change compared to the x-ray
performed on Ellis in 2008. Dkt. 99-6 at 6; Dkt. 99-8 at 20.
subsequently complained on March 2, 2014 that he was
continuing to experience pain in the right side of his back
and right hip despite physical therapy and the medications he
had been prescribed. Dkt. 99-7 at 13-14. Ellis received a
steroid injection on March 21, 2014, Dkt. 99-8 at 16, and,
despite reporting some initial relief, subsequently
complained again on May 19, 2014 that he was still in pain.
Dkt. 99-6 at 46. On May 30, 2014, Ellis saw N.P. Schaffer,
who referred Ellis for an appointment with Regional Medical
Director Dr. Murray Young. Dkt. 99-8 at 14-15.
Young examined Ellis on June 11, 2014. Dkt. 99-8 at 13.
Noting that Ellis was experiencing pain in his hip area, Dr.
Young referred Ellis to Dr. Roman Schwartsman, an offsite
orthopedic surgeon. Dkt. 99-8 at 13. Dr. Schwartsman examined
Ellis on June 30, 2014. Dkt. 99-7 at 38. After noting that
the x-rays in Ellis' right hip and pelvis showed moderate
degenerative changes, Dr. Schwartsman recommended an MRI.
Dkt. 99-7 at 38. The MRI was subsequently requested by N.P.
Gelok after a follow-up appointment with Ellis on July 11,
2014. Dkt. 99-7 at 36-37. Initially, Dr. Young denied the
request for an MRI on July 24, 2014. Dkt. 99-7 at 36. But,
the MRI was approved less than a month later (Dkt. 99-2 at
¶ 30) and was completed on September 18, 2014. According
to Dr. Dallas Peck, the first radiologist to review the MRI,
the MRI revealed “moderate right hip joint degenerative
change” but no evidence of a ligament tear. Dkt. 99-7
subsequently met with N.P. Gelok on October 1 and December 4,
2014. Dkt. 99-8 at 9, 11. On February 5, 2015, Dr.
Schwartsman wrote a note indicating that he disagreed with
Dr. Peck's assessment of the damage in Ellis' hip as
“moderate.” Dkt. 99-7 at 26. In Dr.
Schwartsman's opinion, the degenerative change was
severe, and a labral tear was present. Dkt. 99-7 at 26. Dr.
Schwartsman subsequently spoke with a different radiologist,
Dr. Shane McGonegle, who agreed with Dr. Schwartsman's
diagnosis. Dkt. 99-7 at 28-29. On February 5, 2015, Dr.
McGonegle prepared an addendum to the original MRI report
stating that the MRI showed severe degeneration in the right
hip and a significantly torn labrum. Dkt. 99-7 at 28-29. On
April 30, 2015, N.P. Gelok met with Ellis to inform him about
the addendum and ordered a total right hip arthroplasty,
which Dr. Schwartsman performed on June 8, 2015. Dkt. 99-6 at
34; Dkt. 99-8 at 7.
Siegert's Job Responsibilities And Oversight Of The
Corizon Defendants' Treatment Of Mr. Ellis
is a registered nurse with over 40 years of experience. Dkt.
97-6 at ¶ 2. For the last ten years Siegert has been
employed as the Health Services Director by the Idaho
Department of Corrections (“IDOC”). Dkt. 97-6 at
¶ 2, 3. As Health Services Director for IDOC, Siegert
does not provide direct medical care to inmates (Dkt. 97-6 at
¶ 4, 9), except in the event of “fire, riot, or
similar disturbances” in which case she is responsible
for “direct[ing] and coordinat[ing]” emergency
medical services. Dkt. 102-2. Instead, Siegert oversees and
assesses the effectiveness of IDOC's delivery of
healthcare services to inmates. Dkt. 102-12 at ¶ 3; Dkt.
102-2. The majority of medical care provided to inmates by
IDOC is delivered through Corizon. Dkt. 97-6 at ¶ 3.
of her supervision of the health care delivered by Corizon on
IDOC's behalf, Siegert serves as the Level 3 appellate
authority for grievances filed by inmates. Dkt. 97-6 at
¶ 3. As Level 3 appellate authority, Siegert researches
concerns raised by inmates. Dkt. 97-6 at ¶ 4. This
investigation includes a review of the aggrieved inmate's
medical records. Dkt. 97-6 at ¶ 4. After reviewing an
inmate's medical records, Siegert may follow up with
Corizon's administrative and medical staff. Dkt. 97-6 at
first meeting with Ellis occurred around June 14,
2014. Dkt. 97-5 at 50, Ellis Depo., p.
177:13-16. Siegert and Ellis met regarding the MRI that Dr.
Schwartzman had requested but that, as of that time, had not
been completed. Dkt. 97-4 at 10, Deposition Transcript of
Rona Siegert (hereinafter, “Siegert
Depo.”), p. 32:10-33:13. After their discussion,
Siegert met with either Dr. Young or Corizon Regional
Director of Nursing Connie Smock regarding Ellis. Dkt. 97-4
at 11-12, Siegert Depo., p. 40:1-42:13. The exact
contents of that discussion are unknown, but Ellis' MRI
was subsequently performed on September 18, 2014. Dkt. 99-7
to Ellis' testimony, Siegert first learned that his hip
injury had been misdiagnosed between February 9, 2015 (the
date Dr. McGonegle signed the addendum to the MRI report) and
April 30, 2015 (the date Ellis' surgery was initially
scheduled). Dkt. 97-5 at 51, Ellis Depo., p.
178:25-180-16. After learning about Ellis' misdiagnosis,
Siegert's next interaction with Ellis occurred on May 28,
2015, when Siegert received, in her capacity as the Level 3
appellate authority for medical grievances, a grievance from
Ellis regarding the scheduling of his hip surgery. Dkt. 97-7
at 2-3. Siegert reviewed Ellis' medical record and,
despite the fact that her response was not due until June 13,
2015, informed Ellis in her June 2, 2015 response that
surgery had been scheduled for June of 2015; Siegert noted
that there had been “some issues in you receiving a
timely work up for hip pain.” Dkt. 97-7 at 3. Dr.
Schwartsman performed Ellis' hip surgery on June 8, 2015.
Dkt. 99-6 at 34.
“Motion To Strike” Inadmissible Evidence At
Summary Judgment Phase
Reply Memorandum in Support of Defendant Rona Siegert's
Motion for Summary Judgment, Siegert asks this Court to
“strike all inadmissible evidence offered by”
Ellis in his opposition to Siegert's Motion for Summary
Judgment. Dkt. 106 at 2-4. Similarly, Ellis has lodged
objections to evidence put forth by the Corizon Defendants in
support of their Amended Motion for Summary Judgment. Dkt.
105 at 2-3.
Rule 56(c) governs the procedures that the parties must
comply with to support or dispute a motion for summary
judgment. See Fed. R. Civ. P. 56(c). Under Rule
56(c)(2), a party “may object that the material cited
to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.” Id. An
affidavit is an acceptable form in which to present evidence
in the summary judgment context. However, “[a]n
affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4). Affidavits submitted by
the non-moving party cannot be disregarded solely due to
self-interest, S.E.C. v. Phan, 500 F.3d 895, 909-10
(9th Cir. 2007), but a “conclusory, self-serving
affidavit, lacking detailed facts and any supporting
evidence, is insufficient to create a genuine issue of
material fact.” F.T.C. v. Publ'g Clearing
House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997), as
amended (Apr. 11, 1997).
makes clear then that only admissible evidence may be
considered in ruling on a motion for summary judgment.
Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.
2002); see also Fed. R. Civ. P. 56(c). However, in
determining admissibility for summary judgment purposes, it
is the contents of the evidence rather than its form that
must be considered. Fraser v. Goodale, 342 F.3d
1032, 1036-37 (9th Cir. 2003). If the contents of the
evidence could be presented in an admissible form at trial,
those contents may be considered on summary judgment.
the parties filing motions to strike as a means of objecting
to the evidence submitted in support of or against a pending
motion for summary judgment, the Advisory Committee Notes to
the most recent amendments to Rule 56 provide that a Rule
56(c)(2) objection “functions much as an objection at
trial, adjusted for the pretrial setting. The burden is on
the proponent to show that the material is admissible as
presented or to explain the admissible form that is
anticipated. There is no need to make a separate motion to
strike.” Fed.R.Civ.P. 56 advisory committee's note
(2010 Amendments). Motions to strike are limited to
pleadings, which are defined by Federal Rule 7(a); affidavits
and exhibits filed in support of, or in opposition to, a
motion for summary judgment are not pleadings. See
Albertson v. Fremont County, Idaho, 834 F.Supp.2d 1117,
1123 n.3 (D. Idaho 2011). Thus, the motions to strike filed
in this case will be construed as objections to the materials
filed by the opposing party.
Summary Judgment Standard
judgment is appropriate where a party can show that, as to
any claim or defense, “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). One of the
principal purposes of the summary judgment rule “is to
isolate and dispose of factually unsupported claims or
defenses.” Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). It is not “a disfavored procedural
shortcut, ” but is instead the “principal tool[ ]
by which factually insufficient claims or defenses [can] be
isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private
resources.” Id. at 327.
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment....” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis omitted). Rather, there must be no genuine dispute
as to any material fact in order for a case to survive
summary judgment. Material facts are those “that might
affect the outcome of the suit.” Id. at 248.
“Disputes over irrelevant or unnecessary facts will not
preclude a grant of summary judgment.” T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809
F.2d 626, 630 (9th Cir. 1987).
moving party is entitled to summary judgment if that party
shows that each material fact cannot be disputed. To show
that the material facts are not in dispute, a party may cite
to particular parts of materials in the record or show that
the adverse party is unable to produce admissible evidence to
support the fact. Fed.R.Civ.P. 56(c)(1)(A) & (B). The
Court must consider “the cited materials, ” but
it may also consider “other materials in the
record.” Fed.R.Civ.P. 56(c)(3). The Court is “not
required to comb [through] the record to find some reason to
deny a motion for summary judgment.” Carmen v. San
Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th
Cir. 2001) (internal quotation marks omitted). Instead, the
“party opposing summary judgment must direct [the
Court's] attention to specific, triable facts.”
So. Ca. Gas Co. v. City of Santa Ana, 336 F.3d 885,
889 (9th Cir. 2003).
moving party meets its initial responsibility, then the
burden shifts to the opposing party to establish that a
genuine dispute as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The existence of a scintilla of
evidence in support of the non-moving party's position is
insufficient. British Airways Bd. v. Boeing Co., 585
F.2d 946, 952 (9th Cir. 1978). Rather, “there must be
evidence on which [a] jury could reasonably find for the
[non-moving party].” Anderson, 477 U.S. at
party “fails to properly support an assertion of fact
or fails to properly address another party's assertion of
fact, ” the Court may consider that fact to be
undisputed. Fed.R.Civ.P. 56(e)(2). The Court may grant
summary judgment for the moving party “if the motion
and supporting materials-including the facts considered
undisputed-show that the movant is entitled to it.”
Court does not determine the credibility of affiants or weigh
the evidence set forth by the non-moving party. Although all
reasonable inferences which can be drawn from the evidence
must be drawn in a light most favorable to the non-moving
party, T.W. Elec. Serv., Inc., 809 F.2d at 630-31,
the Court is not required to adopt unreasonable inferences
from circumstantial evidence, McLaughlin v. Liu, 849
F.2d 1205, 1208 (9th Cir. 1988).
Deliberate Indifference Standard
Eighth Amendment to the United States Constitution protects
prisoners against cruel and unusual punishment. To state a
claim under the Eighth Amendment, a prisoner must show that
he is “incarcerated under conditions posing a
substantial risk of serious harm, ” or that he has been
deprived of “the minimal civilized measure of
life's necessities” because of a defendants'
actions. Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(internal quotation marks omitted). An Eighth Amendment claim
requires a plaintiff to satisfy “both an objective
standard-that the deprivation was serious enough to
constitute cruel and unusual punishment-and a subjective
standard-deliberate indifference.” Snow v.
McDaniel, 681 F.3d 978, 985 (9th Cir. 2012),
overruled in part on other grounds by Peralta v.
Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). The
Eighth Amendment includes the right to adequate medical care
in prison, and prison officials or prison medical providers
can be held liable if their “acts or omissions [were]
sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Estelle v. Gamble, 429
U.S. 97, 106 (1976).
the objective standard for prisoners' medical care
claims, the Supreme Court of the United States has explained
that “[b]ecause society does not expect that prisoners
will have unqualified access to health care, deliberate
indifference to medical needs amounts to an Eighth Amendment
violation only if those needs are ‘serious.'”
Hudson v. McMillian, 503 U.S. 1, 9 (1992). The Ninth
Circuit has defined a “serious medical need” in
the following ways:
failure to treat a prisoner's condition [that] could
result in further significant injury or the unnecessary and
wanton infliction of pain [;] ... [t]he existence of an
injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence of
a medical condition that significantly affects an
individual's daily activities; or the existence of
chronic and substantial pain ....
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.
1992) (internal citations omitted), overruled on other
grounds, WMX Techs., Inc. v. Miller, 104 F.3d
1133 (9th Cir. 1997) (en banc).
the subjective standard, “deliberate indifference
entails something more than mere negligence, [but] is
satisfied by something less than acts or omissions for the
very purpose of causing harm or with knowledge that harm will
result.” Farmer, 511 U.S. at 835. A prison
official or prison medical provider acts with
“deliberate indifference ... only if the [prison
official] knows of and disregards an excessive risk to inmate
health and safety.” Gibson v. Cnty. of Washoe,
Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002) (citation
and internal quotation marks omitted). “Under this
standard, the prison official must not only ‘be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists,' but that person
‘must also draw the inference.'” Toguchi
v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting
Farmer, 511 U.S. at 837).
a [prison official] should have been aware of the risk, but
was not, then the [official] has not violated the Eighth
Amendment, no matter how severe the risk.”
Gibson, 290 F.3d at 1188. However, “[w]hether
a prison official had the requisite knowledge of a
substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from
circumstantial evidence, ... and a factfinder may conclude
that a prison official knew of a substantial risk from the
very fact that the risk was obvious.” Farmer,
511 U.S. at 842; see also Lolli v. County of Orange,
351 F.3d 410, 421 (9th Cir. 2003) (“[D]eliberate
indifference to medical needs may be shown by circumstantial
evidence when the facts are sufficient to demonstrate that a
defendant actually knew of a risk of harm.”).
medical context, a conclusion that a defendant acted with
deliberate indifference requires that the plaintiff show
“a purposeful act or failure to respond to a
prisoner's pain or possible medical need and ... harm
caused by the indifference.” Jett v. Penner,
439 F.3d 1091, 1096 (9th Cir. 2006). Deliberate indifference
can be “manifested by prison doctors in their response
to the prisoner's needs or by prison guards in
intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once
prescribed.” Estelle, 429 U.S. at 104-05
in judgment between an inmate and prison medical providers
regarding appropriate medical diagnosis and treatment are not
enough to establish a deliberate indifference claim.
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
“[T]o prevail on a claim involving choices between
alternative courses of treatment, a prisoner must show that
the chosen course of treatment ‘was medically
unacceptable under the circumstances,' and was chosen
‘in conscious disregard of an excessive risk' to
the prisoner's health.” Toguchi, 391 F.3d
at 1058 (alteration omitted) (quoting Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)); see
also Collignon v. Milwaukee County, 163 F.3d 982, 989
(7th Cir. 1998) (“A plaintiff can show that the
[medical] professional disregarded the need only if the
professional's subjective response was so inadequate that
it demonstrated an absence of professional judgment, that is,
that no minimally competent professional would have so
responded under those circumstances.”).
indifference, medical malpractice, or negligence will not
support a cause of action under the Eighth Amendment.
Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th
Cir. 1980) (per curiam). A delay in treatment does not
violate the Eighth Amendment unless the delay causes further
harm. McGuckin, 974 F.2d at 1059. If medical
personnel have been “consistently responsive to [the
inmate's] medical needs, ” and there has been no
showing that the medical personnel had “subjective
knowledge and conscious disregard of a substantial risk of
serious injury, ” there has been no Eighth Amendment
violation. Toguchi, 391 F.3d at 1061.