Daniel Bess v. J. Peffley

• Court: District Court, N.D. California
• Decided: November 13, 2025
• Docket: 3:22-cv-00341
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 DANIEL BESS, Case No. 3:22-cv-00341-JSC

7 Plaintiff, ORDER RE: DEFENDANT’S SECOND 8 v. MOTION FOR SUMMARY JUDGMENT 9 J. PEFFLEY, Re: Dkt. No. 129 Defendant. 10

11 12 Daniel Bess brings Section 1983 claims against correctional officer J. Peffley alleging 13 Peffley violated his First and Eighth Amendment rights when he (1) threatened to label Bess as a 14 snitch and falsely validate him as a gang member unless he provided information on the Mexican 15 Mafia, and (2) falsified confidential memoranda in Bess’s file after Bess threatened to file an 16 administrative grievance. The Court previously granted in part and denied in part Defendant’s 17 motion for summary judgment. (Dkt. No. 30.1) The Court allowed Defendant to bring a second 18 motion for summary judgment because Plaintiff did not oppose Defendant’s request. (Dkt. No. 19 120.) That motion is now fully briefed and came before the Court for hearing on October 2, 2025. 20 Having considered the briefing and the parties’ arguments, the Court DENIES in part and 21 GRANTS in part Defendant’s second motion for summary judgment. The First Amendment 22 retaliation claim may proceed to trial, but qualified immunity bars the Eighth Amendment claim. 23 SUMMARY JUDGMENT EVIDENCE 24 The Court incorporates its prior summary of the evidence in support of summary judgment 25 by reference as the factual record has not changed since the Court’s prior Order. (Dkt. No. 30 at 26 1-4.) 27 1 EVIDENTIARY OBJECTIONS 2 Plaintiff objects to Defendant’s reliance on nine exhibits which he contends were untimely 3 produced in July 2025—over 10 months after the close of fact discovery. These include: 4 1. Barron Declaration, Ex. B (ECF No. 129-14); 5 2. Barron Declaration, Ex. C (ECF No. 129-15); 6 3. Mora Declaration, Ex. A (ECF No. 129-17); 7 4. Mora Declaration, Ex. B (ECF No. 129-18): 8 5. Mora Declaration, Ex. C (ECF No. 129-19); 9 6. Mora Declaration, Ex. D (ECF No. 129-20); 10 7. Mora Declaration, Ex. E (ECF No. 129-21); 11 8. Orozco Declaration, Ex. A (ECF No. 129-24); and 12 9. Orozco Declaration, Ex. B (ECF No. 129-25). 13 Plaintiff insists these documents are responsive to his December 26, 2023 discovery 14 requests as they are allegedly drafts of the February 2021 confidential memoranda at the heart of 15 his claims. (Dkt. No. 149-14 at 9 (RFP No. 2: “All DOCUMENTS, COMMUNICATIONS, and 16 THINGS constituting and/or relating to the February 8, 2021 CONFIDENTIAL 17 MEMORANDUM, as referred to in Docket No. 22-5”; RFP No. 3: “All DOCUMENTS, 18 COMMUNICATIONS, and THINGS constituting and/or relating to the February 10, 2021 19 CONFIDENTIAL MEMORANDUM, as referred to in Docket No. 22-5.”).) 20 Defendant concedes, as he must, that these late-produced documents were responsive to 21 Plaintiff’s Request for Production Nos. 1 and 3, but argues Plaintiff cannot complain the 22 information was not produced earlier because he did not move to compel further responses upon 23 receipt of Defendant’s objections. (Dkt. No. 161 at 6 (“At no point in the over year-and-a-half 24 since Peffley objected to these overbroad requests did Bess ever move to compel further 25 responses. Thus, Bess cannot complain about Peffley’s failure to produce the draft memoranda 26 and associated e-mails in response to these RFPs.”.) Defendant’s argument is not well-taken. 27 First, there were not any documents for Plaintiff to move to compel because Defendant’s 1 34(b)(2)(C) (“An objection must state whether any responsive materials are being withheld on the 2 basis of that objection”). Rather than disclose he was withholding documents, Defendant’s 3 document response states:

4 Without waiving and subject to the foregoing objections, Defendant responds as follows: Defendant shall produce a duly redacted copy of 5 the February 8, 2021 Confidential Memorandum subject to the “Attorney’s Eyes Only” designation of the protective order filed and 6 approved in this matter. 7 (Dkt. No. 161-2 at 4-5.) And rather than testify he was withholding documents, Defendant 8 testified any drafts would most likely have been shredded:

9 Q. What did you do with copies of drafts that you received from your officers? 10 A. Give them right back as soon as I was done. That was my -- I -- I 11 did not like proofing on Word doc with the highlights and the red lines and all that. That wasn't my thing. I'm old school. I liked a red pen 12 and the actual document, and then when I was done, handed it back to them. 13 Q. And do you know what happened with that document that you 14 handed back to them?

15 A. I don't. I would assume they would make the corrections on the Word doc and then shred it, but I don't. 16 (Dkt. No. 149-5, Peffley Depo. At 207:15-208:2; see also Dkt. No. 149-9, Barron Depo. at 17 119:16-25 (“it was printed out, and then there was handwritten notes as far as draft...then it would 18 be shredded, and we’d start over.”). So, any argument Plaintiff should have moved to compel 19 documents that Defendant did not disclose existed, and that Defendant apparently did not know 20 existed, is specious. 21 Second, Defendant’s argument he immediately produced the documents pursuant to his 22 continuing obligation once they came under his “possession, custody, and control” is inadequate. 23 (Dkt. No. 161 at 7.) “[C]ounsel is responsible for coordinating her client’s discovery efforts.” 24 Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 435 (S.D.N.Y. 2004). “[I]t is not enough for 25 counsel to simply give instructions to his clients and count on them to fulfill their discovery 26 obligations. The Federal Rules of Civil Procedure place an affirmative obligation on an attorney to 27 ensure that a client search for responsive documents and information is complete.” Logtale, Ltd. v. 1 IKOR, Inc., No. C-11-05452 CW (DMR), 2013 WL 3967750, at *2 (N.D. Cal. July 31, 2013) 2 (citing Fed. R. Civ. P. 26(g) (requiring a signing attorney to certify that a reasonable inquiry has 3 been made with respect to the factual and legal bases for any discovery response). Counsel had an 4 obligation to ensure Defendant searched for responsive documents at the time the discovery 5 requests were made. That Defendant has since obtained new counsel who conducted a proper 6 search does not demonstrate the failure to produce this information earlier was substantially 7 justified. See Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information… the party is not 8 allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a 9 trial, unless the failure was substantially justified or is harmless.”); see also Fast v. GoDaddy.com 10 LLC, 340 F.R.D. 326, 335 (D. Ariz. 2022) (collecting cases awarding varying sanctions under 11 Rule 37(c)(1) for failure to supplement or correct incomplete, misleading, or false discovery 12 responses in violation of Rule 26(e)). And Defendant’s failure to comply with his discovery 13 obligations is not harmless as his late disclosure was made over 10 months after the close of fact 14 discovery and on the eve of summary judgment and trial. 15 Accordingly, Plaintiff’s objections are sustained. 16 DISCUSSION 17 Under Federal Rule of Civil Procedure 56, “[a] party may move for summary judgment, 18 identifying each claim or defense—or the part of each claim or defense—on which summary 19 judgment is sought.” Summary judgment is proper “if the movant shows that there is no genuine 20 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 21 Civ. P. 56(a). The moving party bears the initial burden of demonstrating the lack of a genuine 22 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]he burden then 23 moves to the opposing party, who must present significant probative evidence tending to support 24 its claim.” Intel Corp. v. Hartford Acc. & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) 25 (cleaned up). In ruling on a motion for summary judgment, the Court must “view the evidence 26 presented through the prism of the substantive evidentiary burden.” Anderson v. Liberty Lobby, 27 Inc., 477 U.S. 242, 254 (1986). The evidence of the non-movant is to be believed, and all A. First Amendment Retaliation Claim 1 1. First Amendment Claim not Entirely Heck Barred 2 Defendant insists Plaintiff’s First Amendment retaliation claim is barred by the favorable 3 termination doctrine under Heck v. Humphrey, 512 U.S. 477 (1994). Heck holds a state prisoner’s 4 claim for damages is not cognizable under 42 U.S.C. § 1983 if “a judgment in favor of the plaintiff 5 would necessarily imply the invalidity of his conviction or sentence,” unless the prisoner can 6 demonstrate the conviction or sentence has previously been invalidated. Id. at 486-87. The Court 7 is unpersuaded Heck bars the entirety of Plaintiff’s First Amendment retaliation claim. 8 Plaintiff alleges that in retaliation for Plaintiff’s expressed intent to file a grievance, 9 Defendant falsified memoranda placed in his file. He also alleges Defendant did so to “adversely 10 effect [sic] him at his upcoming parole suitability hearing.” (Dkt. No. 1 at 8.) This claim itself 11 does not necessarily imply the invalidity of his confinement. “Under California law, the parole 12 board must consider ‘[a]ll relevant, reliable information” in determining suitability for parole.’” 13 Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (quoting Cal. Code Regs. tit. 15, § 2281(b)). 14 “Because the parole board has the authority to deny parole ‘on the basis of any of the grounds 15 presently available to it,’ the presence of a disciplinary infraction does not compel the denial of 16 parole, nor does an absence of an infraction compel the grant of parole.” Id. (quoting Ramirez v. 17 Galaza, 334 F.3d 850, 859 (9th Cir. 2003)). So, a reasonable trier of fact could find Defendant 18 placed the false memoranda in Plaintiff’s file to chill his First Amendment right to file grievances 19 without having to also find Plaintiff would have been granted parole absent the memoranda.2 See 20 id. at 934-35 (holding a habeas claim seeking expungement of a disciplinary violation should be 21 brought as a section 1983 claim because “[s]uccess on the merits of [the inmate’s] claim would not 22 necessarily lead to immediate or speedier release because the expungement of the challenged 23 disciplinary violation would not necessarily lead to a grant of parole). 24 25

26 2 In light of this conclusion, the Court need not address Plaintiff’s contention the Heck bar does not apply since he has been granted parole. As Defendant notes, Plaintiff’s parole is not final and 27 will not be final until December 25, 2025 (120 days from his August 27, 2025 grant of parole). 1 But, as noted at oral argument, Heck bars Plaintiff from recovering any damages stemming 2 from the prior denial of parole. To award such damages would necessarily imply the unlawfulness 3 of his confinement after that decision. See Butterfield v. Bail, 120 F.3d 1023, 1024–25 (9th Cir. 4 1997) (“Few things implicate the validity of continued confinement more directly than the 5 allegedly improper denial of parole.”); Howard v. Selling, 399 F. App’x 205, 206 (9th Cir. 2010) 6 (holding the district court properly dismissed the action because the plaintiff’s claim that he was 7 denied institutional parole is Heck-barred); McQuillion v. Schwarzenegger, 369 F.3d 1091, 1098 8 (9th Cir. 2004) (holding a challenge to parole denial based upon parole board deceit and bias is 9 barred by Heck because it implies the invalidity of the inmates’ confinement); see also Wilson v. 10 Stowers, No. CV-21-06306 DOC (DFM), 2022 WL 21769113, at *1 (C.D. Cal. Dec. 14, 2022) 11 (holding the plaintiff’s claim “that various prison officials violated his constitutional rights when 12 they relied on the false RVRs to find him unsuitable for parole” Heck-barred). As Plaintiff could 13 still recover at least nominal damages, see Estate of Macias v. Ihde, 219 F.3d 1018, 1028 (9th Cir. 14 2000), the unavailability of damages resulting from the denial of parole does not defeat Plaintiff’s 15 First Amendment claim in its entirety. 16 2. Genuine Disputes of Fact as to the Retaliation Claim 17 In the prison context, a First Amendment retaliation claim requires: “(1) [a]n assertion that 18 a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s 19 protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 20 rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. 21 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 22 Defendant does not appear to dispute Plaintiff has offered sufficient evidence of an adverse 23 action. Nor could he. As the Court found in the prior summary judgment Order:

24 Plaintiff’s declaration supports a finding Defendant threatened to spread information that Plaintiff was a snitch among the prison 25 population, validate him as an STG member, and put false confidential memoranda in Plaintiff’s central file that Plaintiff was 26 involved in STG activity to prevent Plaintiff from being granted parole. (ECF No. 25-3 at 148.) These threats, each on their own, 27 support a finding of an adverse action under Shephard [v. Quillen, 1 (Dkt. No. 30 at 9.) 2 Instead, Defendant insists Plaintiff has not offered sufficient evidence of causation. To 3 establish causation, Plaintiff must show the prison official intended to, and did take, the adverse 4 action out of “retaliatory animus” to “silence and to punish” the inmate, as opposed to for some 5 other reason. See Shephard, 840 F.3d at 689-91 (finding genuine issue of material fact as to 6 whether defendant sent inmate to ad seg to (1) follow a prison regulation regarding inmate safety 7 or (2) retaliate for inmate’s complaint about staff misconduct). “Evidence probative of retaliatory 8 animus includes proximity in time between the protected speech and the alleged adverse action, 9 prison official’s expressed opposition to the speech, and prison official’s proffered reason for the 10 adverse action was false or pretextual.” Oliver v. Perez-Pantoja, No. 5:19-CV-07957 EJD, 2023 11 WL 12033407, at *5 (N.D. Cal. Mar. 24, 2023) (citing Shephard, 840 F.3d at 690). Disputes of 12 fact, including whether Defendant threatened to put information in Plaintiff’s file validating him as 13 a SGT member in response to Plaintiff’s threat to file an administrative grievance and whether 14 Defendant was involved in putting the memoranda in Plaintiff’s file—especially given the 15 temporal proximity between the threats and the memoranda appearing in Plaintiff’s file—preclude 16 summary judgment on the question of causation.3 17 Finally, whether Defendant’s conduct had a chilling effect on Plaintiff’s speech is a 18 question for the jury. “[A] chilling effect on a prisoner’s First Amendment right to file prison 19 grievances is sufficient to raise a retaliation claim.” Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 20 2003). A reasonable factfinder could conclude Plaintiff’s willingness to file to a grievance was 21 chilled by Defendant’s threat. (Dkt. No. 149-6, Bess Depo. at 114:16-115:21 (testifying he “was 22 3 It is well-established “proximity in time may support an inference of retaliation sufficient to 23 survive summary judgment.” Anthoine v. N. Cent. Ctys. Consortium, 605 F.3d 740, 751 (9th Cir. 2010). Defendant’s arguments to the contrary and the cases on which he relies are inapposite. 24 (Dkt. Not. 129 at 26-27 (citing Taylor v. Ingram, No. 2:21-01042 TLN SCR P, 2025 WL 1411550, at *10 (E.D. Cal. May 15, 2025), report and recommendation adopted, No. 2:21-CV-01042-TLN- 25 SCR, 2025 WL 1865964 (E.D. Cal. July 7, 2025) (“without evidence linking defendant to the subsequent transfer, its temporal proximity to plaintiff’s protected conduct alone is not sufficient 26 to create a triable issue of fact.”); Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (finding no nexus where the adverse action took place six or seven months after the statements at 27 issue). Here, the confidential memoranda appeared in Plaintiff’s file within four and six days, 1 reluctant to write a 602” because of Defendant’s threat).) 2 3. No Qualified Immunity 3 “The doctrine of qualified immunity shields officials from civil liability so long as their 4 conduct ‘does not violate clearly established statutory or constitutional rights of which a 5 reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam). 6 Because Defendant has not shown as a matter of law that he did not violate Plaintiff’s First 7 Amendment right, the dispositive question is whether Plaintiff’s First Amendment right was 8 clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001). 9 As a thresholder matter, Defendant misconstrues Plaintiff’s claim. Defendant suggests the 10 question is whether there was clearly established law that “would have put Peffley on notice that 11 his failure to correct the memoranda would violate Bess’s First Amendment rights.” (Dkt. No. 12 129 at 30.) But that is not Plaintiff’s claim—the claim is that Defendant violated Plaintiff’s First 13 Amendment rights when in retaliation for Plaintiff’s stated intention to file an administrative 14 grievance Defendant threatened to validate Plaintiff as a gang member and caused the false 15 memoranda to be placed in Plaintiff’s file. “[T]he law clearly establishe[s] that defendants cannot 16 [take adverse action to] punish the prisoner for exercising his First Amendment right to pursue 17 civil rights litigation in the courts.” Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995); 18 Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017) (“threats to sue fall within the purview of 19 the constitutionally protected right to file grievances.”). Accordingly, Defendant has not 20 established he is entitled to qualified immunity on Plaintiff’s First Amendment claim. 21 *** 22 In sum, Defendant’s motion for summary judgment of Plaintiff’s First Amendment 23 retaliation claim is GRANTED to the extent he seeks damages based on a theory the placement of 24 the false memoranda caused the denial of parole, but is otherwise DENIED. 25 B. Eighth Amendment Claim 26 The Court previously concluded Defendant was not entitled to qualified immunity on 27 Plaintiff’s Eighth Amendment claim. (Dkt. No. 30 at 12-16.) Defendant’s second motion for 1 Court erred in relying on Gonzales v. California Dep’t of Corr., 739 F.3d 1226 (9th Cir. 2014). 2 Essentially, Defendant improperly seeks reconsideration of the Court’s prior Order. See Civ. L.R. 3 7-9 (stating the “moving party must specifically show reasonable diligence in bringing the 4 motion” and either there is now “a material difference in fact or law exists from that which was 5 presented to the Court,” or the “emergence of new material facts or a change of law occurring after 6 the time of such order” or “[a] manifest failure by the Court to consider material facts or 7 dispositive legal arguments which were presented to the Court before such interlocutory order.”) 8 (emphasis added). Defendant inexplicably waited two years to argue the Court’s order should be 9 reconsidered and thus has not shown reasonable diligence. And, he has also not shown any 10 changed circumstances that would warrant reconsideration. 11 But, “the law of the case doctrine” “is a guide to the exercise of the [the Court’s] 12 discretion.” Arizona v. California, 46 U.S. 605, 618 (1983); see also Ingle v. Cir. City, 408 F.3d 13 592, 594 (9th Cir. 2005) (noting the law of case doctrine is discretionary). Despite having denied 14 Defendant summary judgment of qualified immunity, after the evidence is presented at trial the 15 Court would have to grant Defendant judgment on the Eighth Amendment claim if qualified 16 immunity bars the claim. So, the Court in its discretion finds it makes sense to review now 17 whether drawing all reasonable inferences from the facts in Plaintiff’s favor qualified immunity 18 applies. 19 Plaintiff’s Eighth Amendment claim is that “Defendant tried to force Plaintiff into the 20 dangerous position of being a snitch by threatening Plaintiff if he refused.” (Dkt. No. 30 at 13.) 21 His theory is that agreeing to snitch would place him at risk of violence from other inmates. “The 22 failure of prison officials to protect inmates from attacks by other inmates may rise to the level of 23 an Eighth Amendment violation when: (1) the deprivation alleged is ‘objectively, sufficiently 24 serious” and (2) the prison officials had a ‘sufficiently culpable state of mind,’ acting with 25 deliberate indifference.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (quoting 26 Farmer v. Brennan, 511 U.S. 825, 834 (1994)). But here, Plaintiff did not agree to snitch and was 27 not attacked by other inmates; so, to defeat qualified immunity he must show the law was clearly 1 Amendment violation. 2 The Court previously relied on Gonzalez v. CDCR, 739 F.3d 1226, 1235 (9th Cir. 2014), to 3 conclude the law was clearly established that the threat itself violates the Eighth Amendment. The 4 Court reasoned:

5 In Gonzalez, the Ninth Circuit concluded the alleged risk from snitching sufficiently materialized under the Eighth Amendment 6 when prison officials applied pressure upon the prisoner-plaintiff to become a snitch via California’s prisoner debriefing procedures. The 7 plaintiff claimed the debriefing procedures in which a prisoner could either inform on gang members or remain in indeterminate 8 segregation violated the Eighth Amendment. The court concluded the plaintiff had standing to bring an Eighth Amendment claim, which 9 requires showing injury-in-fact. Although the plaintiff had not snitched, officials had not labeled him a snitch, and other inmates had 10 not threatened him for snitching, the court concluded his circumstances, in which prison procedures pressured him to become 11 a snitch, sufficiently materialized a risk of harm to him that he had an injury-in-fact sufficient to have standing to make and Eighth 12 Amendment claim. 13 (Dkt. No. 30 at 13-14.) The Court concluded: “Gonzalez clearly established five years before 14 Defendant’s alleged conduct in this case that applying such pressure constitutes deliberate 15 indifference to a substantial risk of serious harm to a prisoner within the meaning of the Eighth 16 Amendment.” (Id. at 14.) But as Defendant emphasizes, Gonzalez did not hold such conduct 17 violated the Eighth Amendment; instead, Gonzalez only addressed injury-in-fact for purposes of 18 Article III standing—a different and lesser standard. It therefore did not give officers “fair 19 warning” such conduct is unconstitutional under the Eighth Amendment. See Ellins v. City of 20 Sierra Madre, 710 F.3d 1049, 1064 (9th Cir. 2013) (“A right is clearly established if the state of 21 the law at the time of the adverse action gave the officers fair warning that their conduct was 22 unconstitutional”). Gonzalez is not clearly established law supporting an Eighth Amendment 23 violation here. 24 Plaintiff’s reliance on Valandingham v. Bojorquez, 866 F.2d 1137 (9th Cir. 1989), is 25 unavailing. Valandingham involved an allegation prison officials labelled the plaintiff a snitch in 26 retaliation for the plaintiff having filed grievances. Id. at 1138. It did not even include an Eighth 27 Amendment claim and so does not clearly establish that threatening an inmate to become a snitch 1 As Plaintiff has not met his burden of demonstrating the law clearly establishes an officer 2 || violates the Eighth Amendment by threatening an inmate to become a snitch, summary judgment 3 must be granted in Defendant’s favor. See Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1118 4 ||} (9th Cir. 2017) (“the plaintiff []bears the burden of showing that the rights allegedly violated were 5 clearly established.”) (cleaned up). 6 CONCLUSION 7 For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART 8 || Defendant’s motion for summary judgment. Summary judgment is GRANTED on Plaintiff’s First 9 || Amendment retaliation claim to the extent Plaintiff seeks damages stemming from the prior parole 10 denial, but is otherwise DENIED, and is GRANTED as to his Eighth Amendment claim on 11 qualified immunity grounds. 12 Defendant’s administrative motion to seal at Docket No. 130 is GRANTED. Plaintiff's 13 administrative motion to seal at Docket No. 148 is DENIED as Defendant, the designating party, 14 || did not submit a declaration in support of sealing. See Civ. L.R. 79-5(f)(3). 3 15 The Courts set a status conference for January 14, 2026 at 2:00 p.m. by a Zoom a 16 || videoconference. The parties shall provide a joint status update by January 8, 2026 regarding the 3 17 status of Plaintiff's parole as well as whether, in light of this Order, damages need not be S 18 || bifurcated. 19 This Order disposes of Docket Nos. 129, 130, and 148. 20 IT IS SO ORDERED. 21 Dated: November 13, 2025 ' td 22 JACQUELINE SCOTT CORL 23 United States District Judge 24 25 26 27 28