Davall v. Cordero

• Court: District Court, S.D. California
• Decided: November 5, 2020
• Docket: 3:20-cv-01968
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DAVALL, Case No.: 3:20-cv-01968-JLS-KSC CDCR #AW-8294, 12 ORDER (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS; (2) DISMISSING 14 DEFENDANT WHITE PURSUANT

15 TO 28 U.S.C.9 § 1915(e)(2) AND A. CORDERO, Correctional Officer; § 1915A(b)(1); AND (3) DIRECTING 16 D. WHITE, Correctional Captain; U.S. MARSHAL TO EFFECT 17 WHITMAN, Associate Warden, SERVICE UPON DEFENDANTS 18 Defendant. CORDERO AND WHITMAN PURSUANT TO 28 U.S.C. § 1915(d) 19 AND Fed. R. Civ. P. 4(c)(3)

20 ECF Nos. 1, 2 21 22 23 Plaintiff Joseph Davall, an inmate currently incarcerated at Calipatria State Prison 24 (“CAL”), has filed a civil rights action pursuant to 42 U.S.C. § 1983. (“Compl.,” ECF No. 25 1.) Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 26 U.S.C. § 1915(a). (ECF No. 2.) 27 I. Motion to Proceed IFP 28 All parties instituting any civil action, suit or proceeding in a district court of the 1 United States, except an application for writ of habeas corpus, must pay a filing fee of 2 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 3 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 4 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 5 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 6 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 7 Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 8 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 9 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 10 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 11 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 12 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 13 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 14 trust account statement, the Court assesses an initial payment of 20% of (a) the average 15 monthly deposits in the account for the past six months, or (b) the average monthly balance 16 in the account for the past six months, whichever is greater, unless the prisoner has no 17 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 18 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 19 month’s income, in any month in which his account exceeds $10, and forwards those 20 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 21 136 S. Ct. at 629. 22 In support of his IFP Motion, Plaintiff has submitted a certified copy of his inmate 23 trust account statement. (ECF No. 2.) Plaintiff’s statement shows that he had no available 24 funds to his credit at the time of filing. See 28 U.S.C. § 1915(b)(4) (“In no event shall a 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 2 judgment for the reason that the prisoner has no assets and no means by which to pay the 3 initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts 4 as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure 5 to pay . . . due to the lack of funds available to him when payment is ordered”). 6 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and 7 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 8 balance of the filing fees due for this case must be collected by the California Department 9 of Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court 10 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 11 II. Sua Sponte Screening According to 28 U.S.C. § 1915(e)(2) and § 1915A 12 A. Standard of Review 13 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 14 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, 15 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which 16 is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 17 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 18 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) 19 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the 20 targets of frivolous or malicious suits need not bear the expense of responding.’” 21 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted). 22 “The standard for determining whether a plaintiff has failed to state a claim upon 23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 25 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 26 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 27 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 28 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 1 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 2 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 3 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 4 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 5 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 6 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 7 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 8 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 9 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 10 B. Plaintiff’s Factual Allegations 11 In early July 2019, Plaintiff “had a meeting with Counselor Cordero regarding 12 transfer to a Level 3 facility.” (Compl. at 3.) Plaintiff informed Cordero that he needed a 13 single cell because his cellmate was asking for “paperwork to prove that [Plaintiff] was not 14 a sex offender.” (Id.) Plaintiff claims that he is at risk of being assaulted by other inmates 15 “if they find out that [Plaintiff] is a sex offender.” (Id.) Cordero told him, however, that 16 he could not have a single cell. (See id.) Cordero purportedly told Plaintiff that he would 17 “have to do something really bad to get a single cell.” (Id.) 18 In mid-July 2019, Plaintiff “again approached Counselor Cordero and informed him 19 that [his cellmate] was becoming more aggressive and demanding paperwork.” (Id.) 20 Plaintiff again requested a single cell, but Cordero denied that request. (See id.) On July 21 28, 2019, Plaintiff alleges he was attacked by his cellmate which resulted in two broken 22 fingers and Plaintiff received a “write up causing credit loss.” (Id.) 23 On September 17, 2019, Plaintiff was placed in “disciplinary segregation” by 24 Captain White for 180 days. (Id. at 4.) Plaintiff was found guilty following his disciplinary 25 hearing based on two Rules Violation Reports (“RVR”). (See id.) Plaintiff was also 26 deemed a “program failure.” (Id.) However, Plaintiff claims White disregarded evidence 27 that Plaintiff was “defending himself” against the attack by his cellmate. (Id.) 28 /// 1 Plaintiff filed an administrative grievance on February 14, 2020, seeking single cell 2 status, but his request was denied by Associate Warden Whitman. (See id. at 5.) Plaintiff 3 “requested a single cell . . . because the other inmates here are violent and they prey on sex 4 offenders.” (Id.) Plaintiff claims he “should not have to wait to be assaulted again to get 5 a single cell.” (Id.) 6 Plaintiff seeks injunctive relief in the form of a court order permanently granting 7 Plaintiff single cell status, $500,000 in compensatory damages, $500,000 in punitive 8 damages, and “restoration of 180 days lost credits.” (Id. at 7.) 9 C. Fourteenth Amendment Due Process Claims 10 Plaintiff alleges Captain White violated his due process rights when he placed him 11 in “disciplinary segregation for 180 days.” (Compl. at 4.) Plaintiff was found guilty of the 12 disciplinary infractions and was deemed a “program failure.” (Id.) 13 The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person of 14 life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 15 requirements of procedural due process apply only to the deprivation of interests 16 encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of 17 Regents v. Roth, 408 U.S. 564, 569 (1972). “To state a procedural due process claim, [a 18 plaintiff] must allege ‘(1) a liberty or property interest protected by the Constitution; (2) a 19 deprivation of the interest by the government; [and] (3) lack of process.’” Wright v. 20 Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. Cnty. of Santa Clara, 995 21 F.2d 898, 904 (9th Cir. 1993)). 22 A prisoner is entitled to certain due process protections when he is charged with a 23 disciplinary violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing 24 Wolff v. McDonnell, 418 U.S. 539, 564–571 (1974)). “Such protections include the rights 25 to call witnesses, to present documentary evidence and to have a written statement by the 26 fact-finder as to the evidence relied upon and the reasons for the disciplinary action taken.” 27 Id. These procedural protections, however, “adhere only when the disciplinary action 28 implicates a protected liberty interest in some ‘unexpected matter’ or imposes an ‘atypical 1 and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” 2 Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)); Ramirez v. Galaza, 334 F.3d 3 850, 860 (9th Cir. 2003). 4 Although the level of the hardship must be determined on a case-by-case basis, and 5 “[i]n Sandin’s wake the Courts of Appeals have not reached consistent conclusions for 6 identifying the baseline from which to measure what is atypical and significant in any 7 particular prison system,” Wilkinson v. Austin, 545 U.S. 209, 223 (2005), courts in the 8 Ninth Circuit look to: 9 1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,’ and thus 10 comported with the prison’s discretionary authority; 2) the duration of the 11 condition, and the degree of restraint imposed; and 3) whether the state’s action will invariably affect the duration of the prisoner’s sentence. 12 13 Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486–87); see also Chappell v. 14 Mandeville, 706 F.3d 1052, 1064–65 (9th Cir. 2013). Only if the prisoner alleges facts 15 sufficient to show a protected liberty interest must courts next consider “whether the 16 procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334 F.3d at 860. 17 Here, Plaintiff’s due process claims require sua sponte dismissal pursuant to 28 18 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) because he fails to allege facts 19 sufficient to show that the deprivations he suffered as a result of his disciplinary conviction, 20 i.e., “C” status detention, lost custody credits, and the loss of 180 days of television, phone, 21 and dayroom privileges, see Compl. at 4, imposed the type of “atypical and significant 22 hardships” required by Sandin to invoke any liberty interest entitled to Wolff’s procedural 23 protections. 24 These lost privileges do not constitute “atypical and significant” hardships. See 25 Sandin, 515 U.S. at 484; Cal. Code Regs., tit. 15 § 3044(f)(2) (describing “Privilege Group 26 C” “privileges and non-privileges”); see also Sanchez v. Miller, 2016 WL 536890, at *5 27 (S.D. Cal. 2016) (“C-status deprivations were limited in duration and type, and these 28 limited deprivations do not constitute a hardship that is atypical and significant ‘in relation 1 to the ordinary incidents of prison life.’”), report and recommendation adopted, 2016 WL 2 524438 (S.D. Cal. 2016); Randle v. Melendrez, 2017 WL 1197864, at *4 (C.D. Cal. 2017) 3 (finding “four months in administrative segregation as a result of the false RVR,” during 4 which plaintiff was deprived of contact visits, “packages, canteen, unrestricted yard, phone 5 calls and personal property” insufficient to implicate a protected liberty interest under 6 Sandin), report and recommendation adopted, 2017 WL 1199719 (C.D. Cal. 2017); 7 Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (“[A] prisoner has no 8 constitutional right to a particular classification status.”); Wyatt v. Swearingen, 2010 WL 9 135322, at *8-9 (N.D. Cal. 2010) (no liberty interest in prisoner’s year-long C-status 10 placement); Washington v. Cal. Dep’t of Corrs. & Rehab., 2010 WL 729935, at *1 (E.D. 11 Cal. 2010) (no liberty interest in delayed release from C-status); see also Steffey v. Orman, 12 461 F.3d 1218 (10th Cir. 2006) (restriction on inmates’ ability to receive money from 13 outside sources was not an “atypical or significant hardship” under Sandin). 14 For these reasons, the Court finds Plaintiff has failed to state a plausible due process 15 claim as to Defendant White. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Watison, 16 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 17 1. Heck Bar 18 Even if Plaintiff could allege facts sufficient to plausibly show Defendant White 19 violated his due process rights with respect to his RVR and disciplinary conviction, 20 Plaintiff’s claims as currently alleged present a procedural bar. 21 “Federal law opens two main avenues to relief on complaints related to 22 imprisonment: a petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint 23 under . . . 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). 24 “Challenges to the validity of any confinement or to particulars affecting its duration are 25 the province of habeas corpus; requests for relief turning on circumstances of confinement 26 may be presented in a § 1983 action.” Id. (internal citation omitted). A prisoner’s claims 27 are within the core of habeas corpus if they challenge the fact or duration of his conviction 28 or sentence. Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016) (en banc), cert. denied, 1 137 S. Ct. 645 (2017); Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003). 2 In Heck v. Humphrey, the United States Supreme Court held that a § 1983 claim 3 cannot proceed when “a judgment in favor of the plaintiff would necessarily imply the 4 invalidity of his conviction or sentence.” Heck, 512 U.S. at 486–87. Accordingly, “a state 5 prisoner’s [section] 1983 action is barred (absent prior invalidation)—no matter the relief 6 sought (damages or equitable relief), no matter the target of the prisoner’s suit (state 7 conduct leading to conviction or internal prison proceedings)—if success in that action 8 would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. 9 Dotson, 544 U.S. 74, 81–82 (2005). Heck requires the plaintiff in a § 1983 action “first 10 . . . to prove that his conviction had been invalidated in some way.” McDonough v. Smith, 11 139 S. Ct. 2149, 2157 (2019) (citing Heck, 512 U.S. at 486). “This favorable-termination 12 requirement, the Court explained, applies whenever ‘a judgment in favor of the plaintiff 13 would necessarily imply’ that his prior conviction or sentence was invalid.” Id. (quoting 14 Heck, 512 U.S. at 487). 15 Heck’s bar applies in the prison disciplinary context if the “defect complained of by 16 [Plaintiff] would, if established, necessarily imply the invalidity of the deprivation of [his] 17 good-time credits[,]” Edwards v. Balisok, 520 U.S. 641, 646 (1997); Nonnette v. Small, 18 316 F.3d 872, 875 (9th Cir. 2002), and if the restoration of those credits “necessarily” 19 would “affect the duration of time to be served.” Muhammed, 540 U.S. at 754; see also 20 Nettles, 830 F.3d at 929 n.4 (“Heck applies only to administrative determinations that 21 ‘necessarily’ have an effect on ‘the duration of time to be served.’ ” (citations omitted)); 22 Ramirez, 334 F.3d at 856 (“[T]he applicability of [Heck’s] favorable termination rule turns 23 solely on whether a successful § 1983 action would necessarily render invalid a conviction, 24 sentence, or administrative sanction that affected the length of the prisoner’s 25 confinement.”). 26 Here, a judgment in Plaintiff’s favor would necessarily imply the invalidity of his 27 disciplinary conviction and his subsequent credit loss. See Edwards, 520 U.S. at 648 28 (finding prisoner’s claims for declaratory relief and money damages “based on allegations 1 of deceit and bias on the part of the decisionmaker . . . necessarily imply the invalidity of 2 the punishment imposed, [and are] not cognizable under § 1983.”). 3 Therefore, there Court must dismiss Plaintiff’s due process claims because he failed 4 to allege that his disciplinary conviction has already been “reversed on direct appeal, 5 expunged by executive order, declared invalid by a state tribunal authorized to make such 6 determination, or called into question by a federal court’s issuance of a writ of habeas 7 corpus.” Heck, 512 U.S. at 487. 8 For all the above reasons, the Court DISMISSES Plaintiff’s Fourteenth Amendment 9 due process claims against Defendant White for failing to state a claim upon which relief 10 may be granted. 11 D. Remaining Defendants 12 As for Defendants Cordero and Whitman, the Court finds Plaintiff’s Complaint 13 contains “sufficient factual matter, accepted as true,” to state Eighth Amendment claim for 14 relief that is “plausible on its face,” Iqbal, 556 U.S. at 678, and therefore, sufficient to 15 survive the “low threshold” set for sua sponte screening pursuant to 28 U.S.C. 16 §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S. at 678; 17 Farmer v. Brennan, 511 U.S. 825, 837 (1994) (failure to protect claims under the Eighth 18 Amendment require a showing that “the official [knew] of and disregard[ed] an excessive 19 risk to inmate health or safety.”) Therefore, the Court will direct the U.S. Marshal to effect 20 service of summons Plaintiff’s Complaint on his behalf.2 See 28 U.S.C. § 1915(d) (“The 21 officers of the court shall issue and serve all process, and perform all duties in [IFP] 22 cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United 23 States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma 24 pauperis under 28 U.S.C. § 1915.”). 25 26 27 2 Plaintiff is cautioned that “the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring.” Teahan v. 28 1 III. Conclusion and Order 2 For the reasons explained, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 4 (ECF No. 2). 5 2. ORDERS the Secretary of the CDCR, or her designee, to collect from 6 Plaintiff’s trust account the full $350 filing fee owed in monthly payments in an amount 7 equal to twenty percent (20%) of the preceding month’s income to the Clerk of the Court 8 each time the amount in Plaintiff’s account exceeds $10 pursuant to 28 U.S.C. 9 § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME 10 AND NUMBER ASSIGNED TO THIS ACTION. 11 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen 12 Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 13 4. DISMISSES Plaintiff’s claims against Defendant White sua sponte based on 14 his failure to state a claim against him pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), 15 and DIRECTS the Clerk of the Court to terminate Defendant White as a party to this 16 matter. 17 5. DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF No. 18 1) upon Defendants Cordero and Whitman and forward it to Plaintiff along with a blank 19 U.S. Marshal Form 285 for these Defendants. In addition, the Clerk will provide Plaintiff 20 with a certified copy of this Order, a certified copy of his Complaint (ECF No. 1), and the 21 summons so that he may serve them upon Defendants Cordero and Whitman. Upon receipt 22 of this “IFP Package,” Plaintiff must complete the Form 285 as completely and accurately 23 as possible, include an address where Defendants Cordero and Whitman may be served, 24 see S.D. Cal. CivLR 4.1.c, and return it to the U.S. Marshal according to the instructions 25 the Clerk provides in the letter accompanying his IFP package. 26 6. ORDERS the U.S. Marshal to serve a copy of Plaintiff’s Complaint and 27 summons upon Defendants Cordero and Whitman as directed by Plaintiff on the U.S. 28 Marshal Form 285 provided to him. All costs of that service will be advanced by the United 1 States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 2 7. ORDERS Defendants Cordero and Whitman, once served, to reply to 3 || Plaintiff's Complaint within the time provided by the applicable provisions of Fed. R. Civ. 4 ||P. 12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted 5 || to “waive the right to reply to any action brought by a prisoner confined in any jail, prison, 6 other correctional facility under section 1983,” once the Court has conducted its sua 7 ||Sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made 8 ||a preliminary determination based on the face on the pleading alone that Plaintiff has a 9 || “reasonable opportunity to prevail on the merits,” defendant is required to respond). 10 8. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 11 ||}serve upon Defendants Cordero and Whitman, or, if appearance has been entered by 12 ||counsel, upon Defendants’ counsel, a copy of every further pleading, motion, or other 13 || document submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff 14 || must include with every original document he seeks to file with the Clerk of the Court, a 15 || certificate stating the manner in which a true and correct copy of that document has been 16 || was served on Defendants or their counsel, and the date of that service. See S.D. Cal. 17 ||CivLR 5.2. Any document received by the Court which has not been properly filed with 18 || the Clerk, or which fails to include a Certificate of Service upon the Defendants, may be 19 || disregarded. 20 IT IS SO ORDERED. 21 ||Dated: November 5, 2020 tt 22 jen Janis L. Sammartino 3 United States District Judge 24 25 26 27 28 Il