The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff Sandipkumar Tandel ("Plaintiff") seeks redress for several federal and state law claims alleging that the County of Sacramento ("County"), Sheriff of Sacramento County, John McGinness ("McGinness"), Chief of Sacramento County Jail Correctional Health Services, Ann Marie Boylan ("Boylan"), Medical Director of Sacramento County Jail Correctional Health Services, Asa Hambly, M.D. ("Hambly"), Chris Smith, M.D. ("Smith"), Hank Carl, R.N. ("Carl"), Sergeant Tracie Keillor ("Keillor"), and Officer Pablito Gaddis ("Gaddis") violated Plaintiff's civil rights during Plaintiff's detention at the Sacramento County Main Jail.
Plaintiff further claims that said Defendants committed certain state-law violations. In his Second Amended Complaint ("SAC"), Plaintiff seeks compensatory and punitive damages, attorneys' fees and costs, and declaratory and injunctive relief. Presently before the Court are the Motion to Dismiss of Defendants County, McGinness, Boylan, Hambly, Carl, Keillor and Gaddis (collectively "County Defendants"). (See County Defs.' Mot. to Dismiss Pl.'s Second Am. Compl. ["CDMTD"], filed July 22, 2011 [ECF No. 44].), and the Motion to Dismiss of Defendant Smith filed pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Def. Smith's Mot. to Dismiss Pl.'s Second Am. Compl. ["SMTD"], filed July 27, 2011 [ECF No. 45].) For the reasons set forth below, Defendants' motions are granted in part and denied in part.*fn1
On February 7, 2007, Plaintiff was arrested and incarcerated at the Sacramento County Main Jail ("the Jail") as a pre-trial detainee. Plaintiff alleges that, because of his dark skin color, he was housed with the African-American inmates. On April 27, 2007, Plaintiff suffered a head injury as a result of a racial altercation at the Jail.
Plaintiff was sent to the Emergency Room at the Doctor's Center in Sacramento, where Dr. Gray, M.D., treated Plaintiff's injury by cleaning and suturing the wound and vaccinating Plaintiff for tetanus. The same day, Dr. Gray sent Plaintiff back to the Jail with instructions to remove the sutures in five days, leaving the wound open to air and keeping the wound clean. Upon Plaintiff's return to the Jail, he was seen by the Jail's medical personnel who evaluated Plaintiff, noted the treatment and vaccination, and referred the matter to a doctor. Plaintiff informed Jail medical personnel that he had a headache. Plaintiff alleges that Defendant Hambly reviewed Plaintiff's chart on April 30, 2007.
After returning to the Jail, Plaintiff was placed into Administrative Segregation, where he remained for approximately two weeks. Plaintiff alleges that during his stay in the Administrative Segregation: (1) he repeatedly requested, but was denied, showers and items required for regular hygiene and for keeping his wound clean, and medical products for proper wound care; (2) he requested, but was denied, the removal of his sutures after five days; and (3) he requested, but was denied, a steady flow of clean water in the sink in his cell rather than a dripping faucet with brown water.
Plaintiff goes on to allege that the unit where he was housed was an indirect supervision unit and that, if he wanted to communicate with the staff, he had to push the call button in his cell. Plaintiff claims that many of his calls went unanswered and that when the calls were answered, he was told, "We are working on it" and to "stop using the call button," and finally to "stop complaining."
Eventually, the Jail staff stopped answering Plaintiff's calls altogether. Plaintiff alleges that, without running water in his cell and regular showers, he could not keep his wound clean as prescribed by Dr. Gray.
On or about May 12, 2007, Plaintiff was moved to a regular cell and immediately requested medical care. Defendant Carl allegedly saw Plaintiff on May 13, 2007. Plaintiff informed Carl that he had been suffering from headaches for the past four days. Carl consulted with Defendant Dr. Smith who ordered the stitches removed and gave Motrin to Plaintiff.
On or about May 14, 2007, Plaintiff again sought medical attention, complaining of headaches, sensitivity to light and nasal drip. Plaintiff was examined by a nurse, Jim Austin, and was returned to his cell. On or about May 17, 2007, Plaintiff collapsed while taking a shower when he lost control of his legs. Defendant Officer Gaddis responded to Plaintiff's request for help but allegedly failed to use the radio to properly alert medical and custody staff of the emergency. According to Plaintiff, Gaddis also failed to file an incident or casualty report following the incident, in violation of Jail policy. On May 17, 2007, Defendant Sergeant Keillor was the supervising officer on duty.
When Plaintiff was wheeled in a wheelchair for evaluation, he told Defendant Carl, "My legs don't work." Plaintiff alleges that Carl failed to conduct an adequate medical assessment of a patient presenting with an apparent spinal cord injury or neurological disorder. Carl ordered Plaintiff returned to his cell without arranging for any medical follow-up.
Plaintiff alleges that, upon returning to his cell, he was dumped out of the wheelchair and left on the floor of his cell.
On May 18, 2007, Plaintiff had a sudden and acute loss of vision in his left eye and started noticing that he was not able to move his lower extremities. He was also suffering from urinary retention and constipation. He repeatedly rang the emergency bell to summon help and informed the officers on duty that his legs did not work, that he could not urinate and that he was going blind, but was told to stop using the call button and that "these things would not kill him."
On May 20, 2007, at 11:44 a.m., Defendant Carl saw Plaintiff and referred him to see Defendant Dr. Smith. Dr. Smith saw Plaintiff at 12:30 p.m. but allegedly "failed to take any appropriate medical action." At 9:45 p.m., Dr. Horowitz evaluated Plaintiff and noted that Plaintiff had been on the floor of his cell for three days. Plaintiff claimed to be suffering from vision loss, an inability to control his extremities, get up to "void or defecate," and other neurological impairments. Dr. Horowitz sent Plaintiff to a local emergency room where he was found to have an expansive lesion in the spine and brain involvement.
On May 21, 2007, Plaintiff was admitted to the University of California, Davis, Medical Center ("UCD"). Upon admission, Plaintiff was found to have bilateral lower extremity paraparesis, vision loss, occasional shakes to upper extremities, and an inability to eat or drink on his own.
Because Plaintiff's medical history allegedly did not accompany him to the hospital, the UCD treating physicians were unaware of the treatment already rendered to Plaintiff, including the Tetanus vaccination. By May 24, 2007, Plaintiff could not open his eyes or speak. On May 26, 2012, Plaintiff was diagnosed with Acute Disseminated Encephalomyelitis ("ADEM"). ADEM is a neurological disorder characterized by inflammation of the brain and spinal cord caused by damage to the myelin sheath. Vaccination for tetanus is allegedly a known cause of ADEM. Plaintiff alleges that, due to the lengthy delay in diagnosis and treatment, he was rendered paralyzed and near death. While Plaintiff's condition improved with treatment, he still remains dependent for his activities in daily living and must use a catheter and diaper. Plaintiff alleges ongoing serious bouts of depression and emotional distress.
On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),*fn3 all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The Court must also assume that "general allegations embrace those specific facts that are necessary to support a claim." Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004).
Rule 8(a)(2) "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant a fair notice of what the [. . .] claim is and the grounds upon which it rests.'" Bell. Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. Id. However, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal,129 S. Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555). The Court also is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than a "statement of facts that merely creates a suspicion [of] a legally cognizable right of action.")).
Furthermore, "Rule 8(a)(2) . . . requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations and quotations omitted). "Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs . . . have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. However, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
A court granting a motion to dismiss a complaint must then decide whether to grant a leave to amend. Leave to amend should be "freely given" where there is no "undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment . . . ." Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, "the consideration of prejudice to the opposing party . . . carries the greatest weight."
Eminence Capital, 316 F.3d at 1052 (citing DCD Programs, Ltd. v. Leighton, 833 F. 2d 183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment." Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F. 3d 1048, 1056 (9th Cir. 2007) (internal citations and quotations omitted).
The Court examines Plaintiff's claims in the following order: (1) Plaintiff's § 1983 claims for failure to provide appropriate medical care against all individual Defendants (First Claim for Relief); (2) Plaintiff's § 1983 claim for violation of the Equal Protection Clause against all individual Defendants (Sixth Claim for Relief); (3) Plaintiff's § 1983 claim for violation of the First Amendment against all individual defendants (Eighth Claim for Relief); (4) Plaintiff's Monell liability claims against Sacramento County (Second, Third, Fourth, Fifth, Seventh and Ninth Claims for Relief); and (5) Plaintiff's claim under the Americans with Disabilities Act and Rehabilitation Act against Sacramento County (Tenth Claim for Relief).*fn4
I. First Claim for Relief: Claims Brought Pursuant to
42 U.S.C. § 1983 for Violations of the Fourteenth Amendment to the United States Constitution for Failure to Provide Appropriate Medical Care against Defendants McGinness, Boylan, Hambly, Smith, Carl, Keillor and Gaddis in Their Individual Capacities
Plaintiff's first claim arises under 42 U.S.C. § 1983. The SAC alleges that all individual Defendants failed to provide appropriate medical care to Plaintiff, and that Plaintiff suffered and continues to suffer personal injury and emotional distress and incurred damages as a result of such failure. (SAC ¶¶ 50-52.) Defendants argue that Plaintiff's first claim should be dismissed because Plaintiff groups all the Defendants together and fails to plead specific allegations as to how each Defendant violated Plaintiff's constitutional rights in failing to provide adequate medical care. (CDMTD at 8:1-3; SMTD at 6:12-14, 7:9-11).
To the extent that Plaintiff alleges supervisory responsibility of some Defendants, Defendants argue that Plaintiff failed to state a claim because he failed to allege: (1) personal participation by supervisory Defendants in the alleged violation of Plaintiff's rights, and/or (2) that a supervisory Defendant directed any actions which caused violations of Plaintiff's rights, and/or (3) that any supervisory Defendant was aware of widespread abuse and, with deliberate indifference, failed to act. (CDMTD at 9:8-12).
Under 42 U.S.C. § 1983, an individual may sue "[e]very person, who, under color of [law] subjects" him "to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." Individual capacity suits "seek to impose individual liability upon a government officer for actions taken under color of state law." Hafer v. Melo, 502 U.S. 21, 25 (1991). Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Iqbal, 129 S. Ct. at 1948. Rather, an individual may be liable for deprivation of constitutional rights "within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007). Thus, a plaintiff cannot demonstrate that an individual officer is liable "without a showing of individual participation in the unlawful conduct." Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002).
Plaintiff must "establish the 'integral participation' of the officers in the alleged constitutional violation," id., which requires "some fundamental involvement in the conduct that allegedly caused the violation." Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007).
Government officials acting as supervisors may be liable under § 1983 under certain circumstances. "[W]hen a supervisor is found liable based on deliberate indifference, the supervisor is being held liable for his or her own culpable action or inaction, not held vicariously liable for the culpable action or inaction of his or her subordinate." Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). A defendant may be held liable as a supervisor under § 1983 if there exists "either (1) his or her personal involvement in the constitutional deprivation; or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Starr, 652 F.3d at 1207.
A supervisor's physical presence is not required for supervisory liability. Starr, 652 F.3d at 1205. Rather, the requisite causal connection between a supervisor's wrongful conduct and the violation of the prisoner's Constitutional rights can be established in a number of ways. The plaintiff may show that the supervisor set in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury. Dubner v. City & County of S.F., 266 F.3d 959, 968 (9th Cir. 2001); Larez v. City of L.A., 946 F.2d 630, 646 (9th Cir. 1991).
Similarly, a supervisor's own culpable action or inaction in the training, supervision, or control of his subordinates may establish supervisory liability. Starr, 652 F.3d at 1208; Larez, 946 F.2d at 646. Finally, a supervisor's acquiescence in the alleged constitutional deprivation, or conduct showing deliberate indifference toward the possibility that deficient performance of the task may violate the rights of others, may establish the requisite causal connection. Starr, 652 F.3d at 1208; Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005).
As opposed to prisoner claims under the Eighth Amendment, a pretrial detainee is entitled to be free of cruel and unusual punishment under the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 537 n. 16 (1979); Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). The Due Process Clause requires that "persons in custody have the established right to not have officials remain deliberately indifferent to their serious medical needs." Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002) (quoting Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)). A pretrial detainee's due process right in this regard is violated when a jailer fails to promptly and reasonably procure competent medical aid when the pretrial detainee suffers a serious illness or injury while confined. Estelle v. Gamble, 429 U.S. 97, 104-105 (1976). 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." Id.
In order to establish a plausible claim for failure to provide medical treatment, Plaintiff must plead sufficient facts to permit the Court to infer that (1) Plaintiff had a "serious medical need," and that (2) individual Defendants were "deliberately indifferent" to that need. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Cf. Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994).
Plaintiff can satisfy the "serious medical need" prong by demonstrating that "failure to treat [his] condition could result in further significant injury or the unnecessary and wonton infliction of pain." Jett, 439 F.3d at 1096 (internal citations and quotations omitted); Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002). Examples of such serious medical needs include "[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." Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). The Court finds that Plaintiff has alleged sufficient facts to make a plausible showing that his medical need was serious. Plaintiff suffered a head injury which required sutures, was suffering from persistent headaches, sensitivity to light, loss of vision, inability to move his lower extremities, and urinary retention and constipation. (See SAC ¶¶ 23, 24, 27, 28, 31, 32.) The Court recognizes that such symptoms not only affected Plaintiff's daily activities but, also, that a reasonable doctor would find such symptoms noteworthy.
The next issue for the Court is whether individual Defendants were deliberately indifferent to Plaintiff's serious medical need. The Supreme Court, in Farmer, explained in detail the contours of the "deliberate indifference" standard. Specifically, individual Defendants are not liable under the Fourteenth Amendment for their part in allegedly denying necessary medical care unless they knew "of and disregard[ed] an excessive risk to [Plaintiff's] health and safety." Farmer, 511 U.S. at 837; Gibson, 290 F.3d at 1187-88. Deliberate indifference contains both an objective and subjective component: "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer, 511 U.S. at 837. "If a person should have been aware of the risk, but was not," then the standard of deliberate indifference is not satisfied "no matter how severe the risk." Gibson, 290 F.3d at 1188 (citing Jeffers v. Gomez, 267 F.3d 895, 914 (9th Cir. 2001)). Plaintiff "need not show that a prison official acted or failed to act believing that harm actually would befall on inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer, 511 U.S. at 842.
Important for purposes of the motions at issue, "[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 fact finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious."
Id. (emphasis added) (internal citations omitted); see also Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003) ("Much like recklessness in criminal law, deliberate 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.").
"The indifference to medical needs must be substantial; a constitutional violation is not established by negligence or 'an inadvertent failure to provide adequate medical care.'" Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995) (quoting Estelle, 429 U.S. at 105-06). Generally, defendants are "deliberately indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally interfere with medical treatment." Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lolli, 351 F.3d at 419. However, "[i]solated incidents of neglect do not constitute deliberate indifference." Bowell v. Cal. Substance Abuse Treatment Facility at Concord, No. 1:10-cv-02336, 2011 WL 2224817, at *3 (E.D. Cal. June 7, 2011) (citing Jett, 439 F.3d at 1096). Further, a mere delay in receiving medical treatment, without more, does not constitute "deliberate indifference," unless the plaintiff can show that the delay caused serious harm to the plaintiff. Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990).
In the SAC, Plaintiff makes a general allegation that all individual defendants violated Plaintiff's constitutionally protected rights by: (1) failing to provide Plaintiff with necessary medical treatment; (2) failing to monitor Plaintiff once he reported signs of a serious neurological disorder; (3) failing to transport Plaintiff to a hospital or appropriate diagnostic facility upon learning that he has suffered from a serious medical condition; (4) failing to maintain appropriate medical records and history; (5) failing to supply the outside care provider with Plaintiff's accurate medical history upon transport. (SAC ¶ 51.) While these general allegations create a context for Plaintiff's allegations against individual Defendants, they are not sufficient to state a claim as to each Defendant without specific allegations demonstrating each Defendant's participation in the alleged constitutional deprivation. See Jones, 297 F.3d at 935.
The only facts in the SAC alleged specifically against McGinness are as follows: (1) McGinness "was, at all relevant times, employed by the County as the Sacramento County Sheriff," and (2) McGinness "was, at all relevant times, acting within the scope of his employment and/or agency with the County." (SAC ¶ 8.)
As was discussed earlier, to sustain a § 1983 claim for individual liability, Plaintiff must establish the "personal involvement" of each defendant, including supervisors, in a constitutional deprivation or a "causal connection" between each defendant's wrongful conduct and the deprivation. Hansen, 885 F.2d at 646. Plaintiff's allegations that McGinness was employed as the County Sheriff and that he was acting within the scope of his employment are insufficient to demonstrate either his "personal involvement" in the alleged constitutional deprivation or the "causal connection" between McGinness' actions or omissions and the deprivation.
In his opposition to Defendants' motions to dismiss, Plaintiff relies on Redman v. County of San Diego, 942 F.2d 1435 (9th Cir. 1990), and Starr, 652 F.3d 1202, in asserting that, under California law, the Sheriff is required by statute to take charge of and keep the county jail and the prisoners in it, and is answerable for the prisoner's safekeeping. (Pl.'s Opp. at 14:14-15:21.) Inactions of the person "answerable for the prison's safekeeping," Plaintiff argues, is sufficient to state a claim for supervisory liability for deliberate indifference. (Id.) County Defendants contend that, in both Redman and Starr, plaintiffs alleged specific facts as to how the Sheriff was liable as a supervisor and how the Sheriff's actions or inactions caused the plaintiff's constitutional deprivation. (County Defs.' Reply to Pl.'s Opp., filed August 30, 2011 [ECF No. 60], at 5:13-19).
Defendants further contend that Plaintiff here, unlike plaintiffs in Redman and Starr, failed to make any specific allegations to demonstrate McGinness' supervisory liability. (Id. at 5:8-19.) The Court agrees with County Defendants.
In Redman, a plaintiff specifically alleged that the Sheriff was ultimately in charge of the facility's operations, that the Sheriff knew that the facility was not a proper place to detain the plaintiff and posed a risk of harm to the plaintiff but placed the plaintiff there anyway. Redman, 942 F.2d at 1446-47. In Starr, the plaintiff similarly alleged that the Sheriff knew of the unconstitutional activities in the jail, including that his subordinates were engaging in some culpable actions. Starr, 652 F.3d at 1208. In fact, the plaintiff's complaint in Starr contained numerous specific factual allegations demonstrating the Sheriff's knowledge of unconstitutional acts at the jail and the Sheriff's failure to terminate those acts, including that the U.S. Department of Justice gave the Sheriff clear written notice of a pattern of constitutional violations at the jail, that the Sheriff received "weekly reports from his subordinates responsible for reporting deaths and injuries in the jails," that the Sheriff personally signed a Memorandum of Understanding that required him to address and correct the violations at the Jail, and that the Sheriff was personally made aware of numerous ...