1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDLY A. ATHERLEY, II, Case No.: 19-cv-2355-LAB-DEB
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION ON: (1) PLAINTIFF’S MOTION FOR 14 SCOTT KERNAN, et al., LEAVE TO FILE AN AMENDED 15 Defendants. COMPLAINT; AND (2) THE PARTIES’ JOINT MOTION TO 16 MODIFY THE SCHEDULING 17 ORDER
18 [DKT. NOS. 51, 55] 19
20 21 The Court submits this Report and Recommendation to United States District Judge 22 Larry Alan Burns pursuant to 28 U.S.C. § 636(b). 23 I. INTRODUCTION 24 Before the Court is Plaintiff’s Motion for Leave to File an Amended Complaint to 25 Add Defendants (“Motion to Amend”). Dkt. No. 51. Defendants oppose. Dkt. No. 57. Also 26 before the Court is the parties’ Joint Motion Requesting to Modify the Scheduling Order 27 Regulating Discovery and Other Pre-Trial Proceedings (“Joint Motion to Continue”). Dkt. 28 1 Motion for Leave to File an Amended Complaint but reinstating the claims in Plaintiff’s 2 First Amended Complaint previously dismissed as Heck-barred. The Court also 3 recommends GRANTING the parties’ Joint Motion to Continue to allow discovery on the 4 reinstated claims. 5 II. FACTUAL BACKGROUND 6 Plaintiff’s operative First Amended Complaint (“FAC”) alleges Richard J. Donovan 7 Correctional Facility (“Donovan”) Correctional Officers Hultz, Jaramillo, Strong, Pamplin, 8 Crespo, and Joyner used excessive force against Plaintiff in violation of his First and Eighth 9 Amendment rights. Dkt. No. 10. According to the FAC, Hultz gestured at Plaintiff in a 10 manner intended to “provoke violence,” and “glare[d] at . . . plaintiff in a menacing 11 fashion.” Id. at 8–10. Plaintiff reported Hultz’s conduct and completed a Form 22 12 grievance. Id. at 10. Two days later, an altercation ensued after Hultz refused Plaintiff’s 13 request to sign the Form 22. Id. at 12. Jaramillo, Pamplin, and Strong intervened with 14 excessive force, “maliciously” beating Plaintiff, while Crespo and Joyner stood by ignoring 15 Plaintiff’s pleas for help. Id. at 12–14. Hultz then fabricated a Rule Violation Report 16 (“RVR”) charging Plaintiff with battery on a peace officer. Id. at 21–22. 17 Plaintiff was transferred to California State Prison, Los Angeles County (“LA 18 County”), where staff investigated and held a hearing on the RVR. Id. at 21. The FAC 19 alleges staff there: (1) falsified injury reports; (2) used coercive tactics during investigative 20 interviews; and (3) violated due process. Id. at 17–32. A Senior Hearing Officer found 21 Plaintiff guilty of battery on a peace officer and “sentenced [Plaintiff] to 6 months in 22 isolation.” Id. at 21–22. 23 Plaintiff’s proposed Second Amended Complaint (“SAC”): (1) realleges, with 24 additional factual detail, the same Constitutional violations at Donovan and LA County 25 described in Plaintiff’s FAC; and (2) alleges new Constitutional violations at Mule Creek 26 State Prison (“Mule Creek”), where Plaintiff is presently housed. Dkt. No. 51-2 at 22–23. 27 Specifically, Count II of Plaintiff’s proposed SAC alleges this Court mailed its 28 February 9, 2021 Screening Order to Plaintiff at Mule Creek and: (1) Doe Defendants 1 “intentionally opened and read [this order] outside of Plaintiff’s presence and delivered the 2 Court’s mailing through regular mail”; (2) Doe Defendants “failed to document the receipt 3 of [this] mail”; and (3) mailroom supervisor Phillips “was deliberately indifferent” when 4 Plaintiff notified him of these violations. Id. at 25–26. 5 Count II of the proposed SAC also alleges Constitutional violations at Mule Creek 6 unrelated to anything in the FAC: (1) officials at Mule Creek directed Plaintiff’s 7 psychiatrist to “falsely represent[ ] facts about Plaintiff’s criminal conviction in a mental 8 health assessment”; and (2) for unspecified reasons, Mule Creek officials “ordered 9 [Plaintiff] to . . . be transported to another facility,” but, because Plaintiff had tested positive 10 for COVID-19 and Mule Creek was “under a state-mandated quarantine . . . Plaintiff 11 medically refused to be transported” and only agreed to “br[eak] quarantine” after an 12 unidentified correctional sergeant “threatened Plaintiff with a ‘physical cell extraction.’” 13 Dkt. No. 51-2 at 24–25. 14 III. PROCEDURAL BACKGROUND 15 Plaintiff’s FAC alleges First, Eighth, and Fourteenth Amendment violations against 16 18 correctional and appeals officials at Donovan and LA County and the former Secretary 17 of the California Department of Corrections and Rehabilitation. Dkt. No. 10 at 1–6, 24–26. 18 The Court screened Plaintiff’s FAC and dismissed all claims for relief “with respect 19 to any Defendant except Hultz, Strong, Jaramillo, Pamplin, Crespo, and Joyner.” Dkt. 20 No. 12 at 13, 24. The Court denied further leave to amend. Id. 21 Defendants then filed a Motion to Dismiss the FAC. Dkt. No. 24. The Court granted 22 the Motion, in part, and dismissed Plaintiff’s excessive force and retaliation claims against 23 Hultz, Jaramillo, Joyner, and Crespo as barred by Heck v. Humphrey, 512 U.S. 447 (1994). 24 Dkt. Nos. 29, 30. 25 Following the ruling on Defendants’ Motion to Dismiss, the Court issued a 26 Scheduling Order setting: (1) a June 3, 2022 deadline to amend the pleadings; (2) a 27 July 8, 2022 fact discovery cutoff; (3) an August 26, 2022 expert discovery cutoff and 28 motion filing deadline; and (4) a December 12, 2022 Pretrial Conference. Dkt. Nos. 36, 46. 1 Plaintiff timely brought his Motion to Amend. Dkt. No. 51. The parties also filed a Joint 2 Motion to Continue the Scheduling Order dates. Dkt. No. 55. 3 IV. LEGAL STANDARDS 4 In determining whether to grant leave to amend, a court considers “the presence of 5 any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.” 6 Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). Absent these 7 factors, the Court should freely grant leave to amend. AmerisourceBergen Corp. v. 8 Dialysist West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006). However, a “district court’s 9 discretion to deny leave to amend is particularly broad where plaintiff has previously 10 amended the complaint.” See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 11 F.3d 1047, 1058 (9th Cir. 2011). 12 A motion to reopen or continue discovery deadlines requires a showing of good 13 cause. See, e.g., Sheridan v. Reinke, 611 F. App’x 381, 384 (9th Cir. 2015) (applying “good 14 cause” requirement to motions to reopen discovery); see also Dkt. No. 36 at 5 (stating the 15 dates set forth in the Scheduling Order Regulating Discovery and Other Pretrial 16 Proceedings “will not be modified except for good cause shown”). The “‘good cause’ 17 standard primarily considers the diligence of the party seeking the amendment.” Johnson 18 v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Whether to reopen 19 discovery is within the “sound discretion” of the trial court. See Cornwell v. Electra Cent. 20 Credit Union, 439 F.3d 1018, 1027 (9th Cir. 2006). 21 V. DISCUSSION 22 Plaintiff seeks to amend his Complaint to add parties and claims “not previously 23 related to his [FAC]” and “cure deficiencies” previously “identified by the Court.” Dkt. 24 No. 51 at 8. Defendants oppose the Motion, asserting the proposed amendment is futile, 25 untimely, and improperly joins unrelated parties. Dkt. No. 57 at 5–9.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDLY A. ATHERLEY, II, Case No.: 19-cv-2355-LAB-DEB
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION ON: (1) PLAINTIFF’S MOTION FOR 14 SCOTT KERNAN, et al., LEAVE TO FILE AN AMENDED 15 Defendants. COMPLAINT; AND (2) THE PARTIES’ JOINT MOTION TO 16 MODIFY THE SCHEDULING 17 ORDER
18 [DKT. NOS. 51, 55] 19
20 21 The Court submits this Report and Recommendation to United States District Judge 22 Larry Alan Burns pursuant to 28 U.S.C. § 636(b). 23 I. INTRODUCTION 24 Before the Court is Plaintiff’s Motion for Leave to File an Amended Complaint to 25 Add Defendants (“Motion to Amend”). Dkt. No. 51. Defendants oppose. Dkt. No. 57. Also 26 before the Court is the parties’ Joint Motion Requesting to Modify the Scheduling Order 27 Regulating Discovery and Other Pre-Trial Proceedings (“Joint Motion to Continue”). Dkt. 28 1 Motion for Leave to File an Amended Complaint but reinstating the claims in Plaintiff’s 2 First Amended Complaint previously dismissed as Heck-barred. The Court also 3 recommends GRANTING the parties’ Joint Motion to Continue to allow discovery on the 4 reinstated claims. 5 II. FACTUAL BACKGROUND 6 Plaintiff’s operative First Amended Complaint (“FAC”) alleges Richard J. Donovan 7 Correctional Facility (“Donovan”) Correctional Officers Hultz, Jaramillo, Strong, Pamplin, 8 Crespo, and Joyner used excessive force against Plaintiff in violation of his First and Eighth 9 Amendment rights. Dkt. No. 10. According to the FAC, Hultz gestured at Plaintiff in a 10 manner intended to “provoke violence,” and “glare[d] at . . . plaintiff in a menacing 11 fashion.” Id. at 8–10. Plaintiff reported Hultz’s conduct and completed a Form 22 12 grievance. Id. at 10. Two days later, an altercation ensued after Hultz refused Plaintiff’s 13 request to sign the Form 22. Id. at 12. Jaramillo, Pamplin, and Strong intervened with 14 excessive force, “maliciously” beating Plaintiff, while Crespo and Joyner stood by ignoring 15 Plaintiff’s pleas for help. Id. at 12–14. Hultz then fabricated a Rule Violation Report 16 (“RVR”) charging Plaintiff with battery on a peace officer. Id. at 21–22. 17 Plaintiff was transferred to California State Prison, Los Angeles County (“LA 18 County”), where staff investigated and held a hearing on the RVR. Id. at 21. The FAC 19 alleges staff there: (1) falsified injury reports; (2) used coercive tactics during investigative 20 interviews; and (3) violated due process. Id. at 17–32. A Senior Hearing Officer found 21 Plaintiff guilty of battery on a peace officer and “sentenced [Plaintiff] to 6 months in 22 isolation.” Id. at 21–22. 23 Plaintiff’s proposed Second Amended Complaint (“SAC”): (1) realleges, with 24 additional factual detail, the same Constitutional violations at Donovan and LA County 25 described in Plaintiff’s FAC; and (2) alleges new Constitutional violations at Mule Creek 26 State Prison (“Mule Creek”), where Plaintiff is presently housed. Dkt. No. 51-2 at 22–23. 27 Specifically, Count II of Plaintiff’s proposed SAC alleges this Court mailed its 28 February 9, 2021 Screening Order to Plaintiff at Mule Creek and: (1) Doe Defendants 1 “intentionally opened and read [this order] outside of Plaintiff’s presence and delivered the 2 Court’s mailing through regular mail”; (2) Doe Defendants “failed to document the receipt 3 of [this] mail”; and (3) mailroom supervisor Phillips “was deliberately indifferent” when 4 Plaintiff notified him of these violations. Id. at 25–26. 5 Count II of the proposed SAC also alleges Constitutional violations at Mule Creek 6 unrelated to anything in the FAC: (1) officials at Mule Creek directed Plaintiff’s 7 psychiatrist to “falsely represent[ ] facts about Plaintiff’s criminal conviction in a mental 8 health assessment”; and (2) for unspecified reasons, Mule Creek officials “ordered 9 [Plaintiff] to . . . be transported to another facility,” but, because Plaintiff had tested positive 10 for COVID-19 and Mule Creek was “under a state-mandated quarantine . . . Plaintiff 11 medically refused to be transported” and only agreed to “br[eak] quarantine” after an 12 unidentified correctional sergeant “threatened Plaintiff with a ‘physical cell extraction.’” 13 Dkt. No. 51-2 at 24–25. 14 III. PROCEDURAL BACKGROUND 15 Plaintiff’s FAC alleges First, Eighth, and Fourteenth Amendment violations against 16 18 correctional and appeals officials at Donovan and LA County and the former Secretary 17 of the California Department of Corrections and Rehabilitation. Dkt. No. 10 at 1–6, 24–26. 18 The Court screened Plaintiff’s FAC and dismissed all claims for relief “with respect 19 to any Defendant except Hultz, Strong, Jaramillo, Pamplin, Crespo, and Joyner.” Dkt. 20 No. 12 at 13, 24. The Court denied further leave to amend. Id. 21 Defendants then filed a Motion to Dismiss the FAC. Dkt. No. 24. The Court granted 22 the Motion, in part, and dismissed Plaintiff’s excessive force and retaliation claims against 23 Hultz, Jaramillo, Joyner, and Crespo as barred by Heck v. Humphrey, 512 U.S. 447 (1994). 24 Dkt. Nos. 29, 30. 25 Following the ruling on Defendants’ Motion to Dismiss, the Court issued a 26 Scheduling Order setting: (1) a June 3, 2022 deadline to amend the pleadings; (2) a 27 July 8, 2022 fact discovery cutoff; (3) an August 26, 2022 expert discovery cutoff and 28 motion filing deadline; and (4) a December 12, 2022 Pretrial Conference. Dkt. Nos. 36, 46. 1 Plaintiff timely brought his Motion to Amend. Dkt. No. 51. The parties also filed a Joint 2 Motion to Continue the Scheduling Order dates. Dkt. No. 55. 3 IV. LEGAL STANDARDS 4 In determining whether to grant leave to amend, a court considers “the presence of 5 any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.” 6 Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). Absent these 7 factors, the Court should freely grant leave to amend. AmerisourceBergen Corp. v. 8 Dialysist West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006). However, a “district court’s 9 discretion to deny leave to amend is particularly broad where plaintiff has previously 10 amended the complaint.” See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 11 F.3d 1047, 1058 (9th Cir. 2011). 12 A motion to reopen or continue discovery deadlines requires a showing of good 13 cause. See, e.g., Sheridan v. Reinke, 611 F. App’x 381, 384 (9th Cir. 2015) (applying “good 14 cause” requirement to motions to reopen discovery); see also Dkt. No. 36 at 5 (stating the 15 dates set forth in the Scheduling Order Regulating Discovery and Other Pretrial 16 Proceedings “will not be modified except for good cause shown”). The “‘good cause’ 17 standard primarily considers the diligence of the party seeking the amendment.” Johnson 18 v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Whether to reopen 19 discovery is within the “sound discretion” of the trial court. See Cornwell v. Electra Cent. 20 Credit Union, 439 F.3d 1018, 1027 (9th Cir. 2006). 21 V. DISCUSSION 22 Plaintiff seeks to amend his Complaint to add parties and claims “not previously 23 related to his [FAC]” and “cure deficiencies” previously “identified by the Court.” Dkt. 24 No. 51 at 8. Defendants oppose the Motion, asserting the proposed amendment is futile, 25 untimely, and improperly joins unrelated parties. Dkt. No. 57 at 5–9. Both parties, however, 26 agree the Court should modify the Scheduling Order. Dkt. No. 55. 27 The Court first addresses Plaintiff’s Motion to file the proposed SAC and 28 recommends denying Plaintiff’s Motion to Amend but reinstating the claims in the FAC 1 previously dismissed as Heck-barred. The Court then addresses the parties’ Joint Motion 2 to Continue certain deadlines in the Scheduling Order and recommends granting that 3 Motion so the parties may take discovery on the reinstated claims. Dkt. No. 55 at 5. 4 A. Count I of the Proposed SAC (Seeking to Cure Deficiencies in the FAC) 5 Through the proposed SAC, Plaintiff seeks to “cure deficiencies” in the FAC 6 because, “for example . . . paragraphs are numbered and limited, as a far as practicable, to 7 a single set of circumstances” and “causes of action are more succinctly articulated, etc.” 8 Dkt. No. 51 at 8. The Court, however, has already ruled the surviving claims in the FAC 9 are sufficiently pled. Dkt. Nos. 29, 30. Amendment to renumber and “more succinctly 10 articulate[]” the claims, therefore, is unnecessary. See, e.g., Littlefield v. Nevada, ex rel. 11 Dep’t of Pub. Safety, Nevada Highway Patrol, No. 13-cv-01021-RFB, 2015 WL 1470549, 12 at *2 (D. Nev. Mar. 31, 2015) (“Insofar as the additional facts may simply bolster 13 [Plaintiff’s] original claims, they are unnecessary as the current Amended Complaint has 14 been answered and is not subject to a motion to dismiss.”) (internal citation omitted). 15 In its February 8, 2021 Screening Order, the Court dismissed all claims unrelated to 16 the July 12 and 14, 2017 incidents without leave to amend, including Plaintiff’s allegations 17 of due process violations in connection with the hearing at LA County. Dkt. No. 12 at 24– 18 25. Plaintiff’s proposed SAC seeks to reinstate these dismissed claims. Dkt. No. 51 at 8. 19 Plaintiff, however, has made no showing the dismissal was erroneous. The Court, therefore, 20 recommends denying leave to reintroduce these claims through the proposed SAC. 21 Plaintiff also seeks to replead claims previously dismissed from the FAC as Heck- 22 barred. Dkt. No. 51-2 at 8–21. Defendants’ Opposition concedes “Plaintiff is serving an 23 indeterminate sentence of fifteen (15) years to life,” which “may call into question” the 24 Court’s dismissal of Plaintiff’s claims against Hultz, Jaramillo, Joyner, and Crespo. Dkt. 25 No. 57 at 6 n.3. Thus, “Defendants do not oppose amendment with respect to Plaintiff’s 26 27 28 1 Eighth Amendment claims against the [Donovan] Defendants.” Id. Rather than permitting 2 amendment, however, the Court recommends reinstating those claims in Plaintiff’s FAC. 3 Dkt. No. 10.2 4 B. Count II (Seeking to Add New Claims Against Staff at Mule Creek) 5 Count II of Plaintiff’s proposed SAC seeks to add claims against staff at Mule Creek 6 regarding court access, emotional distress, and an attempted transfer during a COVID 7 quarantine. Dkt. No. 51-2 at 5–7, 24–25. These new claims against new defendants, 8 however, are unrelated to the transactions, occurrences, and claims in Plaintiff’s FAC. 9 “Unrelated claims against different defendants belong in different suits, not only to 10 prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s] but also 11 to ensure that prisoners pay the required filing fees. . . .” George v. Smith, 507 F.3d 605, 12 607 (7th Cir. 2007) (citing 28 U.S.C. § 1915(g)). Moreover, a plaintiff may bring claims 13 against multiple defendants only if: (1) the claim arises out of the same transaction or 14 15 16 1 Defendants limit their non-opposition to excessive force claims against Donovan officials 17 only. However, the Court applied the same standards to dismiss Plaintiff’s retaliation claims against these Defendants. Accordingly, the Court treats them as the same and 18 reinstates them as well. 19 2 The Court dismissed these claims based on the application of Heck’s favorable 20 termination rule, which “turns solely on whether a successful § 1983 action would 21 necessarily render invalid a conviction, sentence, or administrative sanction that affected the length of the prisoner’s confinement.” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 22 2003). Where behavioral credits do not necessarily impact the prisoner’s sentence 23 (because, for example, he is serving an indeterminate life sentence), the prisoner may challenge a forfeiture of credits in a § 1983 action. See Nettles v. Grounds, 830 F.3d 922, 24 935 (9th Cir. 2016) (holding a claim that “would not necessarily lead to immediate or 25 earlier release from confinement . . . does not fall within ‘the core of habeas corpus’” and must be brought under § 1983) (internal citation omitted); see also Roman v. Knowles, No. 26 07-cv-1343-JLS-POR, 2011 WL 3741012, *11–12 (S.D. Cal. June 20, 2011) (explaining 27 Heck does not bar a challenge to a disciplinary finding with credits forfeiture brought by a state prisoner serving an indeterminate life sentence). 28 1 occurrence, or series of transactions and occurrences; and (2) there are common questions 2 of law or fact. Fed. R. Civ. P. 20(a)(2). 3 Plaintiff argues the Mule Creek claims are part of a larger conspiracy of misconduct 4 between Donovan and Mule Creek officials. Dkt. No. 51 at 5–6. But, aside from bare 5 allegations, Plaintiff’s proposed SAC does not plausibly allege a conspiracy between staff 6 at Donovan, LA County, and Mule Creek to deprive Plaintiff of his Constitutional rights. 7 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the 8 plaintiff pleads factual content that allows the court to draw the reasonable inference that 9 the defendant is liable for the misconduct alleged.”). In addition, at this point, more than 10 two years into this lawsuit, allowing new claims against new defendants would undermine 11 judicial efficiency. See Womack v. Windsor, No. 15-cv-0533-MCE-KJN-P, 2016 WL 12 4702827, at *3 (E.D. Cal. Sept. 7, 2016) (denying leave to amend: “The goal of Rule 15(d) 13 is judicial efficiency. Judicial efficiency will not be served here if plaintiff is permitted to 14 add multiple, and some presently unknown, individuals as defendants. Moreover, 15 plaintiff’s proposed new claims are unrelated to the allegations raised herein.”) (internal 16 citations omitted). 17 In sum, the Court recommends denying Plaintiff leave to file his proposed SAC but 18 reinstating the FAC claims previously dismissed pursuant to Heck. 19 C. Motion to Continue Discovery 20 The parties also seek to extend the discovery and motion filing deadlines by three 21 months due, in part, to Plaintiff’s pending Motion to Amend. Dkt. No. 55 at 5. The 22 reinstatement of Plaintiff’s claims against Hultz, Jaramillo, Joyner, and Crespo establishes 23 good cause for the parties to complete their discovery on these claims. If this Report and 24 Recommendation is adopted, the Court recommends ordering the parties to contact the 25 undersigned’s chambers to reset dates. 26 VI. CONCLUSION 27 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue 28 an Order: (1) approving and adopting this Report and Recommendation; (2) DENYING 1 Plaintiff leave to file the proposed SAC; (3) reinstating the FAC claims previously 2 ||dismissed as Heck-barred; and (4) directing the parties to contact the undersigned’s 3 chambers to reset the scheduling order dates and deadlines. 4 IT IS ORDERED that on or before September 27, 2022, any party to this action 5 ||may file written objections with the Court and serve a copy on all parties. The document 6 should be captioned “Objections to Report and Recommendation.” 7 IT IS FURTHER ORDERED that any opposition to the objections must be filed 8 || with the Court and served on all parties within seven (7) days of the filing of the 9 || objections. 10 The parties are advised that failure to file objections within the specified time may 11 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan, 12 || 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991). 13 IT IS SO ORDERED. 14 15 Dated: September 12, 2022 Nanded 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28