Crago 115357 v. Shinn

• Court: District Court, D. Arizona
• Decided: January 22, 2024
• Docket: 4:22-cv-00339
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Earl Felton Crago, Jr., No. CV 22-00339-TUC-JAS (MAA)

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 DISCUSSION 16 Pending before the Court is a Report and Recommendation issued by United States 17 Magistrate Judge Ambri. The Report and Recommendation recommends dismissing 18 Petitioner’s Petition for Writ of Habeas Corpus. Petitioner filed objections to the Report 19 and Recommendation.1 20 As a threshold matter, as to any new evidence, arguments, and issues that were not 21 timely and properly raised before United States Magistrate Judge Ambri, the Court 22 exercises its discretion to not consider those matters and considers them waived.2 See

23 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 24 2 As a general matter, the Court notes that it has had numerous problems with parties in many cases attempting to raise new issues that could have been raised before the United 25 States Magistrate Judge. The Court does not abide such actions, and allowing such actions undermines the Court’s ability to properly manage the hundreds of cases pending before 26 the Court. See United States v. Ramos, - F.4th -, 2023 WL 2850376, *16 n. 5 (9th Cir. April 10, 2023) (“Ramos's motion for reconsideration argued that the district court failed to 27 conduct de novo review because the order adopting the report and recommendation stated that ‘as to any new ... arguments ... not timely ... raised before [the magistrate judge], the 28 Court exercises its discretion to not consider those matters and considers them waived” even though, according to Ramos, the case raised no waiver issue. But this argument misses 1 United States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has 2 discretion, but is not required, to consider evidence presented for the first time in a party's 3 objection to a magistrate judge's recommendation . . . [I]n making a decision on whether 4 to consider newly offered evidence, the district court must . . . exercise its discretion . . . 5 [I]n providing for a de novo determination rather than de novo hearing, Congress intended 6 to permit whatever reliance a district judge, in the exercise of sound judicial discretion, 7 chose to place on a magistrate judge's proposed findings and recommendations . . . The 8 magistrate judge system was designed to alleviate the workload of district courts . . . To 9 require a district court to consider evidence not previously presented to the magistrate judge 10 would effectively nullify the magistrate judge's consideration of the matter and would not 11 help to relieve the workload of the district court. Systemic efficiencies would be frustrated 12 and the magistrate judge's role reduced to that of a mere dress rehearser if a party were 13 allowed to feint and weave at the initial hearing, and save its knockout punch for the second 14 round . . . Equally important, requiring the district court to hear evidence not previously 15 presented to the magistrate judge might encourage sandbagging. [I]t would be 16 fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait 17 to see which way the wind was blowing, and—having received an unfavorable 18 recommendation—shift gears before the district judge.”); United States v. Reyna-Tapia, 19 328 F.3d 1114, 1122 (9th Cir. 2003) (“Finally, it merits re-emphasis that the underlying 20 purpose of the Federal Magistrates Act is to improve the effective administration of 21 justice.”). 22 Assuming that there has been no waiver, the Court has conducted a de novo review 23 as to Petitioner’s objections. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after 24 being served with [the Report and Recommendation], any party may serve and file written 25 objections to such proposed findings and recommendations as provided by rules of court. 26 A judge of the court shall make a de novo determination of those portions of the report or

27 the point. The fact that the order contained extraneous language does not negate the district court's multiple assertions that it conducted de novo review and the magistrate judge's 28 proper analysis in recommending denial of the motion to suppress.”). 1 specified proposed findings or recommendations to which objection is made. A judge of 2 the court may accept, reject, or modify, in whole or in part, the findings or 3 recommendations made by the magistrate judge. The judge may also receive further 4 evidence or recommit the matter to the magistrate judge with instructions.”). 5 In addition to reviewing the Report and Recommendation and any objections and 6 responsive briefing thereto, the Court’s de novo review includes review of the record and 7 authority before United States Magistrate Judge Ambri which led to the Report and 8 Recommendation in this case; for example, the Court’s de novo review included the 9 Petition for Writ of Habeas Corpus (Doc. 1 – filed on 7/29/2022), the Response (Doc. 14 10 – filed 12/6/2022), the Reply (Doc. 16 – filed 12/20/2022), and Petitioner’s Supplement to 11 Reply (Doc. 17 – filed 1/10/2023). The Court has reviewed the Report and 12 Recommendation (Doc. 19 – filed 5/23/2023), Petitioner’s Objection (Doc. 20 – filed 13 5/31/2023), and Respondent’s Response (Doc. 21 – filed 6/14/2023). 14 Upon de novo review of the record and authority herein, the Court finds Petitioner’s 15 objections to be without merit, rejects those objections, and adopts United States 16 Magistrate Judge Ambri’s Report and Recommendation. See, e.g., United States v. 17 Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo 18 review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on 19 the record compiled by the magistrate. Rodriguez treats adoption of the magistrate's report 20 as a sign that he has not received his due. Yet we see no reason to infer abdication from 21 adoption. On occasion this court affirms a judgment on the basis of the district court's 22 opinion. Affirming by adoption does not imply that we have neglected our duties; it means, 23 rather, that after independent review we came to the same conclusions as the district judge 24 for the reasons that judge gave, rendering further explanation otiose. When the district 25 judge, after reviewing the record in the light of the objections to the report, reaches the 26 magistrate's conclusions for the magistrate's reasons, it makes sense to adopt the report, 27 sparing everyone another round of paper.”); Bratcher v. Bray-Doyle Independent School 28 Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review 1 is statutorily and constitutionally required when written objections to a magistrate's report 2 are timely filed with the district court . . . The district court's duty in this regard is satisfied 3 only by considering the actual testimony [or other relevant evidence in the record], and not 4 by merely reviewing the magistrate's report and recommendations . . . On the other hand, 5 we presume the district court knew of these requirements, so the express references to de 6 novo review in its order must be taken to mean it properly considered the pertinent portions 7 of the record, absent some clear indication otherwise . . . Plaintiff contends . . . the district 8 court's [terse] order indicates the exercise of less than de novo review . . . [However,] 9 brevity does not warrant look[ing] behind a district court's express statement that it engaged 10 in a de novo review of the record.”); Murphy v. International Business Machines Corp., 23 11 F.3d 719, 722 (2nd Cir. 1994) (“We . . . reject Murphy's procedural challenges to the 12 granting of summary judgment . . . Murphy's contention that the district judge did not 13 properly consider her objections to the magistrate judge's report . . . lacks merit. The judge's 14 brief order mentioned that objections had been made and overruled. We do not construe 15 the brevity of the order as an indication that the objections were not given due 16 consideration, especially in light of the correctness of that report and the evident lack of 17 merit in Murphy's objections.”); Gonzales-Perez v. Harper, 241 F.3d 633 (8th Cir. 2001) 18 (“When a party timely objects to a magistrate judge's report and recommendation, the 19 district court is required to make a de novo review of the record related to the objections, 20 which requires more than merely reviewing the report and recommendation . . . This court 21 presumes that the district court properly performs its review and will affirm the district 22 court's approval of the magistrate's recommendation absent evidence to the contrary . . . 23 The burden is on the challenger to make a prima facie case that de novo review was not 24 had.”); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) (“Brunig also claims that the 25 district court judge did not review the magistrate's report de novo . . . There is no evidence 26 that the district court did not conduct a de novo review. Without any evidence to the 27 contrary . . . we will not assume that the district court did not conduct the proper review.”).3

28 3 See also Pinkston v. Madry, 440 F.3d 879, 893-894 (7th Cir. 2006) (“the district court's assurance, in a written order, that the court has complied with the de novo review 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 (1) United States Magistrate Judge Ambri’s Report and Recommendation (Doc. 19) is 4 accepted and adopted in its entirety. 5 (2) Petitioner’s objections are rejected. 6 (3) The Petition for Writ of Habeas Corpus (Doc. 1) is dismissed. 7 (4) Petitioner’s Motion for Ruling on Objection to R&R (Doc. 23) is dismissed as moot. 8 9 Lastly, as a general matter, the Court emphasizes that its de novo review, Orders and 10 case management practice of adopting Report and Recommendations in the manner 11 reflected herein (whether in the past, present, or future) conscientiously adheres to 12 published Ninth Circuit authority. See, e.g., United States v. Ramos, - F.4th -, 2023 WL 13 2850376, *4-8 (9th Cir. April 10, 2023) (“Under this statutory scheme [of the Federal 14 Magistrates Act], the district court did what § 636(b) requires: it indicated that it reviewed 15 the record de novo, found no merit to Ramos's objections, and summarily adopted the 16 magistrate judge's analysis in his report and recommendation. We have presumed that

17 requirements of the statute in reviewing the magistrate judge's proposed findings and recommendation is sufficient, in all but the most extraordinary of cases, to resist assault on 18 appeal”; emphasizing that “[i]t is clear that Pinkston's argument in this regard is nothing more than a collateral attack on the magistrate's reasoning, masquerading as an assault on 19 the district court's entirely acceptable decision to adopt the magistrate's opinion . . .”); Garcia v. City of Albuquerque, 232 F.3d 760 (10th Cir. 2000) (“The district court's order 20 is terse . . . However, neither 28 U.S.C. § 636(b)(1) nor Fed.R.Civ.P. 72(b) requires the district court to make any specific findings; the district court must merely conduct a de 21 novo review of the record . . . It is common practice among district judges . . . to [issue a terse order stating that it conducted a de novo review as to objections] . . . and adopt the 22 magistrate judges' recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could add little of value to that 23 analysis. We cannot interpret the district court's [terse] statement as establishing that it failed to perform the required de novo review . . . We hold that although the district court's 24 decision is terse, this is insufficient to demonstrate that the court failed to review the magistrate's recommendation de novo.”); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 25 1995) (“The district court is required to conduct a de novo determination of those portions of the magistrate judge's report and recommendations to which objections have been filed. 26 But this de novo determination is not the same as a de novo hearing . . . [I]f following a review of the record the district court is satisfied with the magistrate judge's findings and 27 recommendations it may in its discretion treat those findings and recommendations as its own.”). 28 1 district courts conduct proper de novo review where they state they have done so, even if 2 the order fails to specifically address a party's objections.”); Wang v. Masaitis, 416 F.3d 3 992, 1000 (9th Cir. 2005) (same); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004) 4 (same); N. Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1450 (9th Cir. 5 1986) (same).4

6 4 As a purely hypothetical exercise, suppose that a United States District Judge in the District of Arizona in the Tucson Division (or any other District Court throughout the entire 7 country) has approximately 300 cases at any point in time. Suppose that the Hypothetical District Judge (“HDJ”) adopts a Hypothetical United States Magistrate Judge’s (“HMJ”) 8 Report and Recommendation (“R & R”) in 10% of the 300 constantly revolving cases each year while on the bench as a HDJ from the age of 60 to 90. Suppose that the HDJ reviewed 9 all applicable published authority, and in full compliance with that published authority issued a Hypothetical Order (“HO”) (string citing and quoting 20 published cases directly 10 on point - for the hypothetical, it matters not whether the HO is 1 paragraph, 1 page, 10 pages, or 100 pages) adopting an R & R where the HO indicates that it reviewed the record 11 de novo, found no merit to a parties’ objections, and summarily adopted the HMJ's analysis in the R &R (and the HO does not specifically address a party's objections as it is a non- 12 existent legal requirement according to a plethora of published authority). In light of these assumptions for the HDJ, the numbers would be as follows: (1) After 1 year, there would 13 be 30 HO’s from this one HDJ that look largely identical as they primarily cover the same law and case management procedures; (2) After 5 years, there would be 150 HO’s from 14 this one HDJ that look largely identical as they primarily cover the same law and case management procedures; (3) After 10 years, there would be 300 HO’s from this one HDJ 15 that look largely identical as they primarily cover the same law and case management procedures; (4) After 20 years, there would be 600 HO’s from this one HDJ that look 16 largely identical as they primarily cover the same law and case management procedures; and (5) After 30 years on the bench (at age 90, achy and ready to retire, the HDJ is 17 hereinafter referred to as Super Old Hypothetical District Judge – “SOHDJ”), there would be 900 HO’s from this one SOHDJ that look largely identical as they primarily cover the 18 same law and case management procedures. While some may disapprove of the 900 HO’s from this one SOHDJ that look largely identical as they primarily cover the same law and 19 case management procedures, the 900 HO’s from this one SOHDJ nonetheless would fully comply with published legal authority. The SOHDJ certainly could have: (1) string cited 20 20 different cases for the same legal standard in all 900 HO’s (i.e., 900 HO’s, times 20 new string cites, equals 18,000 different cases cited for the same legal standard over the course 21 of a 30 year career); and (2) discussed the same legal standards and case management practice in 900 different ways. The SOHDJ ruminates that maybe if he did this, all would 22 give credence to his certification in his 900 HO’s that he conducted the required de novo review as repeatedly stated in his HO’s over the last 30 years. Perhaps, the SOHDJ thinks, 23 maybe he should draft a wholly unique Order covering all the same issues that were already correctly addressed in the R & R to further lend credence to his certification that he 24 conducted a de novo review. However, the SOHDJ also thinks that maybe some will nonetheless think: that he simply scanned the entire case record into ChatGPT (which 25 scored in the 90th percentile on the bar exam) and advanced artificial intelligence wrote the Order; or maybe he only read the objections and R & R (not the underlying briefing and 26 hearing transcript); or maybe he was not fully concentrating while reading the underlying record as he was preoccupied with what the early bird special was at IHOP. Perhaps, the 27 SOHDJ thought, even though his de novo review certifications (in full compliance with published authority) came without the proverbial ribbons, tags, packages, boxes or bags, 28 maybe perhaps, his SOHDJ de novo review certifications mean a little bit more. Alas, while the beleaguered SOHDJ could have disingenuously cited 18,000 different cases for the 1 The Court’s case management practices are also consistent with numerous unpublished 2 Ninth Circuit cases. See, e.g., United States v. Drapel, 418 F. App'x 630, 630-31 (9th Cir. 3 2011); Brook v. McCormley, 837 F. App'x 433, 435-36 (9th Cir. 2020); Payne v. 4 Marsteiner, No. 21-55296, 2022 WL 256357, at *1 (9th Cir. 2022). 5 In addition to being compliant with Ninth Circuit authority and the relevant statutory 6 scheme, the Court’s case management practices are similarly consistent with authority 7 from numerous other circuits, including the First Circuit, Second Circuit, Fifth Circuit, 8 Eighth Circuit, and Tenth Circuit. See, e.g., Elmendorf Grafica, Inc. v. D.S. Am. (E.), Inc., 9 48 F.3d 46, 49-50 (1st Cir. 1995); Murphy v. Int'l Bus. Machs. Corp., 23 F.3d 719, 722 (2d 10 Cir. 1994); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009); United States v. Jones, 22 11 F.4th 667, 679 (7th Cir. 2022); Gonzales-Perez v. Harper, 241 F.3d 633, 636-37 (8th Cir. 12 2001); Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000). 13 As to each and every individual case before the Court (past, present, and future), the 14 Court consciously conducts the de novo review required of the Court. Oftentimes, as the 15 United States Magistrate Judge is a neutral arbiter of the law and facts (similar to the Court, 16 and unlike parties who represent opposing factual and legal assertions), the Court (after 17 conducting the required de novo review) agrees with a Report and Recommendation’s 18 analysis as it correctly resolves the pertinent issues; in these circumstances, the Court issues 19 an Order akin to this Order (i.e., an Order that discusses the pertinent legal standards and 20 states that the Court conducted the required de novo review pursuant to those legal 21 standards). Thus, if the applicable law has not changed and the Court’s case management 22 practices have not changed, the Court does not unnecessarily venture anew (in each 23 individual case – numbering in the hundreds) to newly string cite dozens of different cases 24 that state the same standards, nor does the Court attempt to re-word or re-phrase the many 25 quotes from those cases (which state the controlling legal standards); nor does the Court 26 attempt to re-word or re-phrase the Court’s consistent case management practice which 27 same controlling legal standards and stated the same legal standards and case management 28 practice in 900 different ways, the SOHDJ stood firm in his conviction this was not sound and effective case management practice for this particular SOHDJ. 1 complies with all applicable legal standards.5 Often, the Court agrees with a Report and 2 Recommendation and issues an Order akin to the current Order (as has happened on 3 numerous occasions in the past and will occur in the future); sometimes, the Court 4 disagrees with a Report and Recommendation and issues an Order completely unique to 5 that individual case as the Court needs to further explain the reasoning for its disagreement. 6 See 4:18-cr-01695 (Doc. 2130 [ruling in favor of the Plaintiff/Government], Doc. 7 2361[ruling in favor of Defendants]) (U.S. v. Williams, et al. – a case involving 19 8 defendants alleging a wide-ranging conspiracy involving murder, assaults, and drug 9 distribution) (compare Doc. 2130 - 10/7/22 Order Rejecting Report and Recommendation 10 [U.S. v. Moore, - F. Supp. 3d -, 2022 WL 5434268 (D. Ariz. Oct. 7, 2022)] with Doc. 2361 11 – 3/24/23 Order Adopting Report and Recommendation [U.S. v. Rakestraw, 2023 WL 12 2624461 (D. Ariz. Mar. 24, 2023)]). 13 The Court also notes that it is in the Tucson Division of the United States District Court 14 for the District of Arizona (i.e., in a border town on the U.S.-Mexico border); consequently, 15 there is a very high criminal case load6 (on top of many civil cases as well). In any given 16 week, for example, the Court may be in the midst of a criminal (or civil) jury trial, while 17 also preparing for the next string of scheduled jury trials coming in the subsequent weeks, 18 and reviewing a voluminous record and drafting a time-sensitive civil Order in an 19 5 In adopting a Report and Recommendation, none of the applicable authority prohibits the 20 Court from issuing Orders that incorporate: the Court’s previous, exhaustive, and correct discussion of the applicable legal standards (including numerous cases and quotes directly 21 supporting the Court’s practices), what exactly is required of the Court to comply with those applicable legal standards, and how the Court consistently proceeds to follow those 22 applicable legal standards; rather, it is consistent with the purposes of the Federal Magistrate Act to proceed in such a manner as it decreases the time spent on issues that 23 have previously and correctly been discussed by the Court, and increases the time that can be spent on substantive and novel issues in the many cases before the Court – this ultimately 24 improves the effective administration of justice. See United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003) (“Finally, it merits re-emphasis that the underlying purpose 25 of the Federal Magistrates Act is to improve the effective administration of justice.”). 6 Pursuant to the Speedy Trial Act which applies to criminal cases, these cases typically 26 move at a rapid pace compared to civil cases (the Speedy Trial Act is inapplicable to civil cases). See 18 U.S.C. § 3161(c)(1) (“[T]he trial of a defendant charged in an information 27 or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the 28 defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.”). 1 emergency environmental dispute involving the Rosemont copper mine (see Ctr. For Bio. 2 Diversity v. U.S. Fish and Wildlife Serv., 409 F.Supp.3d 738 (D. Ariz. 2019)), and also 3 preparing for and holding numerous sentencing hearings. By proceeding in the case 4 management manner discussed herein, this Court is able to invest less time in assiduously 5 discussing why it agrees (after the required de novo review) with the already correct 6 analysis in a Report and Recommendation, and can invest more time in presiding over jury 7 trials, preparing for upcoming trials, preparing for and presiding over sentencing hearings, 8 preparing for and presiding over oral arguments and evidentiary hearings, and preparing 9 for and drafting unique Orders (in non-referred matters) in criminal and civil cases. 10 Simply put, the Court must divide its time between simultaneous, competing demands; 11 the Court must exercise its case management discretion in a way that the Court deems most 12 effective and appropriate in light of the many cases before the Court. If the Court finds 13 (after the required de novo review) that a Report and Recommendation properly resolved 14 the pertinent issues, the Court issues an Order akin to this Order; in such circumstances, 15 for example, it would be an ineffective use of this particular Court’s limited time (in each 16 and every of the hundreds of individual cases before the Court) to rehash what the Report 17 and Recommendation already properly discussed such as: what’s alleged in the Indictment 18 or Complaint, the procedural history of the case, what the parties argued in a motion to 19 suppress or motion for summary judgment (and the corresponding responses and replies), 20 who said what at an evidentiary hearing (and why certain evidence was or was not 21 credible), and an in-depth discussion of the controlling law (and the parties’ competing 22 interpretations of the law). Furthermore, this Court exercises its discretion and does not 23 consider issues that could have and should have been raised before the United States 24 Magistrate Judge; as such, any procedurally proper objections (and corresponding 25 responses thereto) are simply repackaging arguments (as objections) that were already 26 properly considered and rejected in the Report and Recommendation. This Court could 27 certainly rehash the underlying procedural history, facts, and law and individually analyze 28 every single objection in great detail in a unique Order leading to its de novo determination 1 that the Report and Recommendation is ultimately correct; however, as already explained, 2 the Court considers this to be an unwise use of this Court’s limited time and resources. 3 Rather, this Court exercises its case management discretion to adopt Reports and 4 Recommendations in Orders akin to this Order (which has occurred on numerous occasions 5 in the past and will occur in the future) which is in full compliance with authority from the 6 Ninth Circuit, the applicable statutory scheme, and numerous other federal circuit courts. 7 See, e.g., United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003) (“Finally, it 8 merits re-emphasis that the underlying purpose of the Federal Magistrates Act is to improve 9 the effective administration of justice.”); United States v. Ramos, 65 F.4th 427, 433-35 (9th 10 Cir. 2023) (“Under this statutory schedule [of the Federal Magistrates Act], the district 11 court did what § 636(b) requires: it indicated that it reviewed the record de novo, found no 12 merit to Ramos's objections, and summarily adopted the magistrate judge's analysis in his 13 report and recommendation. We have presumed that district courts conduct proper de novo 14 review where they state they have done so, even if the order fails to specifically address a 15 party's objections.”); Garcia v. City of Albuquerque, 232 F.3d 760 (10th Cir. 2000) (“The 16 district court's order is terse . . . However, neither 28 U.S.C. § 636(b)(1) nor Fed.R.Civ.P. 17 72(b) requires the district court to make any specific findings; the district court must merely 18 conduct a de novo review of the record . . . It is common practice among district judges . . 19 . to [issue a terse order stating that it conducted a de novo review as to objections] . . . and 20 adopt the magistrate judges' recommended dispositions when they find that magistrate 21 judges have dealt with the issues fully and accurately and that they could add little of value 22 to that analysis. We cannot interpret the district court's [terse] statement as establishing that 23 it failed to perform the required de novo review . . . We hold that although the district 24 court's decision is terse, this is insufficient to demonstrate that the court failed to review 25 the magistrate's recommendation de novo.”); Wang v. Masaitis, 416 F.3d 992, 1000 (9th 26 Cir. 2005); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004); N. Am. Watch Corp. v. 27 Princess Ermine Jewels, 786 F.2d 1447, 1450 (9th Cir. 1986); United States v. Drapel, 418 28 F. App'x 630, 630-31 (9th Cir. 2011); Brook v. McCormley, 837 F. App'x 433, 435-36 (9th 1] Cir. 2020); Payne v. Marsteiner, No. 21-55296, 2022 WL 256357, at *1 (9th Cir. 2022); 2|| Elmendorf Grafica, Inc. v. D.S. Am. (E.), Inc., 48 F.3d 46, 49-50 (1st Cir. 1995); Murphy v. Int'l Bus. Machs. Corp., 23 F.3d 719, 722 (2d Cir. 1994); Brunig v. Clark, 560 F.3d 292, 295 (5" Cir. 2009); United States v. Jones, 22 F.4th 667, 679 (7th Cir. 2022); Gonzales- 5|| Perez v. Harper, 241 F.3d 633, 636-37 (8th Cir. 2001). 6 Dated this 22nd day of January, 2024. 7 8 9 A ark, — Honorable James A. Soto 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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