Goolsby v. San Diego, County of

Opinion

1 2 3 4 5 6 7 10 11 THOMAS GOOLSBY, Case No.: 3:17-cv-00564-WQH-NLS

12 ORDER Plaintiff, 13 v. 14 COUNTY OF SAN DIEGO, et al., 15

16 Defendants. 17 HAYES, Judge: 18 The matter before the Court is the Motion for Re-taxation of Costs filed by Plaintiff 19 Thomas Goolsby. (ECF No. 183). 20 PROCEDURAL HISTORY 21 On March 21, 2017, Plaintiff Thomas Goolsby, a state inmate proceeding pro se, 22 commenced this action by filing a civil rights Complaint pursuant to 42 U.S.C. § 1983 23 against 11 named Defendants. (ECF No. 1). On the same day, Plaintiff filed a Motion for 24 Leave to Proceed in Forma Pauperis (“IFP”). (ECF No. 2). On June 27, 2017, the Court 25 granted Plaintiff’s Motion for Leave to Proceed IFP; dismissed some of the causes of action 26 in Plaintiff’s Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and 27 § 1915A(b); and granted Plaintiff 45 days leave to either notify the Court of his intention 28 1 to proceed with only his Eighth Amendment claims or file an amended complaint. (ECF 2 No. 4). 3 On August 11, 2017, Plaintiff filed an Amended Complaint against 46 named 4 Defendants. (ECF No. 9). On December 14, 2017, the Court dismissed some of the causes 5 of action in Plaintiff’s Amended Complaint for failure to state a claim pursuant to 28 U.S.C. 6 § 1915(e)(2) and § 1915A(b) and granted Plaintiff 45 days leave to either notify the Court 7 of his intention to proceed with only his Eighth Amendment claims against Defendant 8 County of San Diego (“County”) and Defendant William Gore in his official capacity or 9 file an amended complaint. (ECF No. 11). 10 On January 8, 2018, Plaintiff filed a Second Amended Complaint (“SAC”) against 11 45 named Defendants. (ECF No. 12). On April 10, 2018, the Court dismissed some of the 12 causes of action in Plaintiff’s SAC for failure to state a claim pursuant to 28 U.S.C. § 13 1915(e)(2) and § 1915A(b) and granted Plaintiff 45 days leave to either notify the Court of 14 his intention to proceed with only his Eighth Amendment claims against Defendant County 15 and Defendant William Gore in his official capacity and his Fourteenth Amendment claims 16 against Defendant Lawson or file an amended complaint. (ECF No. 14). 17 On April 23, 2018, Plaintiff filed a Third Amended Complaint (“TAC”) against 18 Defendants County; William Gore; Roderick Smith; Lawson; Leon; Price; Bravo; 19 Martinez; Rios; Froisted; K. Kamoss; Lovelace; Goings; Brewer; Johns; Navarro; Fowler; 20 Seely; Simms; Gardner; De La Torre; Oliver; Cole; McKenny; Cerda; Warren; Stratton; 21 Epps; Mondragon; Barrios; Camalleri; J.D. Williams; Moon; Gallegas; Bullock; Vargas; 22 Zepeda; F. Gonzales; White; Ramos; De La Cruz; Huerta; M. Ellsworth; Bass; Olsen; 23 Mendoza; Agnew, and John Doe Deputies. (ECF No. 15). Plaintiff brought the follow 24 three causes of action: (1) denial of due process in violation of the Fourteenth Amendment 25 regarding Plaintiff’s solitary confinement, (2) sleep deprivation in violation of the Eighth 26 Amendment, and (3) denial of outdoor exercise in violation of the Eighth Amendment. See 27 id. at 26-27. Plaintiff sought injunctive relief, declaratory relief, compensatory and 28 punitive damages, and “[a]ny and all other relief the [C]ourt deems just and proper.” Id. 1 at 32. On May 2, 2018, the Court directed the U.S. Marshall to effect service of the 2 summons and TAC. (ECF No. 16). 3 On July 6, 2018, Defendants County; William Gore; Jerome Agnew; Frank Bass; 4 Carl Brewer; Matthew Ellsworth; Fermin Gonzalez; Karl Kamoss; Michael Lawson; 5 Marcus Mesa; Francis Mondragon; Jin Moon; Anthony Oliver; Christopher Simms; 6 Rodrick Smith; Curtis Stratton; and Jeffery Williams filed a Motion to Dismiss Plaintiff’s 7 TAC for failure to state a claim upon which relief can be granted pursuant to Federal Rule 8 of Civil Procedure 12(b)(6) and Motion to Strike portions of Plaintiff’s TAC pursuant to 9 Federal Rule of Civil Procedure 12(f). (ECF No. 67). On July 18, 2018, Plaintiff filed a 10 Motion for Leave to File Discovery. (ECF No. 74). On July 26, 2018, Defendants Jesse 11 Johns; Joshua Price; and Hans Warren filed a Motion for Joinder to Defendants’ Motion to 12 Dismiss Plaintiff’s TAC and Motion to Strike portions of Plaintiff’s TAC. (ECF No. 78). 13 On September 26, 2018, the magistrate judge issued a Report and Recommendation 14 granting in part and denying part Defendants’ Motion to Dismiss Plaintiff’s TAC; denying 15 Defendants’ Motion to Strike portions of Plaintiff’s TAC; and granting in part and denying 16 part Plaintiff’s Motion for Leave to File Discovery. (ECF No. 86). On October 9, 2018; 17 October 23, 2018; and October 26, 2018; Plaintiff filed Objections to the Report and 18 Recommendation. (ECF Nos. 87, 90, 92). On October 12, 2018, Defendants filed an 19 Objection to the Report and Recommendation. (ECF No. 88). On January 8, 2019, the 20 Court issued an order stating, in relevant part, 21 IT IS HEREBY ORDERED that: 1. The Motion for joinder (ECF No. 78) is granted; 22 2. Plaintiff’s objections (ECF Nos. 87, 90, 92) to the Report and 23 Recommendation are overruled; 3. Defendant’s objections (ECF No. 88) to the Report and 24 Recommendation are overruled in part and sustained in part as stated 25 herein; 4. The Report and Recommendation (ECF No. 86) is adopted in part and 26 not adopted in part as stated herein; 27 5. Defendant’s Motion to Dismiss (ECF No. 67) is granted in part and denied in part as stated herein; 28 1 6. Plaintiff’s Eighth Amendment claims regarding conditions of confinement based on sleep deprivation are dismissed as to all 2 defendants; 3 7. Plaintiff’s Fourteenth Amendment claims regarding placement in administrative segregation will proceed only against the County of San 4 Diego and are dismissed against all individual defendants; 5 8. Plaintiff’s Eighth Amendment claims regarding denial of outdoors and out of cell exercise will proceed only against the County of San Diego 6 and are dismissed against all individual defendants; 7 9. Plaintiff’s claims against John Doe defendants are dismissed without discovery and without leave to amend; 8 10. Plaintiff’s claims against Defendants Seely, Simms, Gardner, De la 9 Torre, Lt. Smith, Sgt. Froisted, Price, Leon, Bravo, Martinez, Rios, and Mesa are dismissed without leave to amend; 10 11. Service by the U.S. Marshals is no longer required with respect to any 11 unserved individual defendants.

12 (ECF No. 97 at 9-10). 13 On January 22, 2019, Defendant County filed an Answer to Plaintiff’s TAC. (ECF 14 No. 98). 15 On August 26, 2019, Defendant County filed a Motion for Summary Judgment or, 16 in the alternative, Partial Summary Judgment. (ECF No. 137). On February 18, 2020, the 17 magistrate issued a Report and Recommendation granting in part and denying part 18 Defendant County’s Motion for Summary Judgment. (ECF No. 154). On March 12, 2020 19 and March 24, 2020, Plaintiff filed Objections to the Report and Recommendation. (ECF 20 Nos. 157, 162). On March 17, 2020, Defendant County filed an Objection to the Report 21 and Recommendation. (ECF No. 158). On April 6, 2020, the Court issued an order stating, 22 in relevant part, 23 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 24 154) is ADOPTED in part and NOT ADOPTED in part. Plaintiff’s Objections (ECF Nos. 157, 162) are OVERRULED. Defendant’s Objection (ECF No. 25 158) is SUSTAINED. The Motion for Summary Judgment filed by Defendant 26 County of San Diego (ECF No. 137) is GRANTED. . . . The Clerk of the Court shall enter judgment in favor of Defendant County of San Diego and 27 against Plaintiff Thomas Goolsby. The Clerk of the Court shall close this 28 case. 1 (ECF No. 166 at 14). On April 7, 2020, the Clerk of the Court entered judgment “in favor 2 of Defendant County of San Diego and against Plaintiff Thomas Goolsby.” (ECF No. 167 3 at 1). 4 On April 20, 2020, Plaintiff filed a Notice of Appeal. (ECF No. 170). 5 On April 21, 2020, Defendant County filed a Bill of Costs. (ECF No. 168). On July 6 9, 2020, Plaintiff filed an Objection the Defendant County’s Bill of Costs. (ECF No. 178). 7 On July 22, 2020, Plaintiff filed a Motion to Re-Tax Costs. (ECF No. 179). On August 8 13, 2020, the Court denied Plaintiff’s Motion to Re-Tax Costs as prematurely filed. (ECF 9 No. 181). On August 14, 2020, the Clerk of the Court taxed costs in the amount of 10 $1,465.94 against Plaintiff. (ECF No. 182). On August 26, 2020, Plaintiff filed a Motion 11 for Re-taxation of Costs. (ECF No. 183). On August 31, 2020, Defendant County filed a 12 Response in opposition. (ECF No. 184). 14 Plaintiff contends that this Court should deny the bill of costs on the grounds that his 15 lawsuit against Defendant County was of substantial public importance. Plaintiff contends 16 that the issues raised in the lawsuit were close and difficult to decide. Plaintiff contends 17 that granting the bill of costs would have a chilling effect on future similar actions. Plaintiff 18 contends that he has limited financial resources and that the economic disparity between 19 him and Defendant County is great. Plaintiff objects to the awarding of costs for 20 subpoenaing Plaintiff’s records from the California Department of Corrections and 21 Rehabilitation (“CDCR”) because the case had nothing to do with the CDCR and was 22 solely about Plaintiff’s conditions of confinement in San Diego County Jail. Plaintiff 23 objects to the awarding of costs for audio transcription of Plaintiff’s deposition of Frankie 24 Leon and Ernie Mendoza because the costs were unreasonable and unnecessary for 25 litigation. 26 Defendant County contends that the grounds raised by Plaintiff are insufficient to 27 relieve him of his presumptive obligation to pay costs to Defendant County as the 28 prevailing party. Defendant County contends that Plaintiff has failed to allege sufficient 1 facts to demonstrate that this was a close case. Defendant County contends that no chilling 2 effect will result from awarding recoverable costs to Defendant County. Defendant County 3 contends that Plaintiff’s indigence does not excuse him from being assessed relatively 4 minor costs. Defendant County contends that the costs to subpoena Plaintiff’s records from 5 the CDCR and the costs of the audio recordings were properly taxed. Defendant County 6 contends that it is entitled to recover both costs as the prevailing party. 8 “Unless a federal statute, these rules, or a court order provides otherwise, costs-- 9 other than attorney’s fees--should be allowed to the prevailing party.” Fed. R. Civ. P. 10 54(d)(1). “Rule 54(d)[(1)] creates a presumption for awarding costs to prevailing parties; 11 the losing party must show why costs should not be awarded.” Save Our Valley v. Sound 12 Transit, 335 F.3d 932, 944-45 (9th Cir. 2003). In other words, “[b]y its terms, the rule 13 creates a presumption in favor of awarding costs to a prevailing party, but vests in the 14 district court discretion to refuse to award costs.” Ass’n of Mexican-Am. Educators v. State 15 of California, 231 F.3d 572, 591 (9th Cir. 2000). “Appropriate reasons for denying costs 16 include: (1) the substantial public importance of the case, (2) the closeness and difficulty 17 of the issues in the case, (3) the chilling effect on future similar actions, (4) the plaintiff’s 18 limited financial resources, and (5) the economic disparity between the parties.” Escriba 19 v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1247-48 (9th Cir. 2014). “This is not an 20 exhaustive list of good reasons for declining to award costs, but rather a starting point for 21 analysis . . . .” Id. at 1248 (citation omitted). 23 I. The Substantial Public Importance of the Case 24 Plaintiff contends that he “was an inmate in the custody of the San Diego Sheriff’s 25 Department and subjected to harsh and debilitating conditions of confinement, including 26 but not limited to solitary confinement, denial of outside and out-of-cell exercise and sleep 27 deprivation.” (ECF No. 183 at 1-2). Plaintiff contends that “the challenge to alleged unjust 28 and horrific police mistreatment is of upmost public importance.” Id. at 2. 1 The Court of Appeals has found that “[i]ndividual Eighth Amendment cases are 2 important for safeguarding the rights and safety of prisoners.” Draper v. Rosario, 836 F.3d 3 1072, 1088 (9th Cir. 2016). The Court concludes that this civil rights case involves matters 4 of substantial public importance, which weighs against awarding costs to Defendant 5 County. See e.g., Aguilar v. City of Los Angeles, No. CV 17-4382-CBM-(MRWx), 2020 6 WL 2573468, at *2 (C.D. Cal. Mar. 4, 2020) (“Plaintiffs alleged the defendant officers 7 used excessive force and failed to protect the decedent while he was in custody. Plaintiffs 8 also asserted a supervisory claim pursuant to § 1983 against Defendant Hudlett, and a 9 Monell claim against the City of Los Angeles. Therefore, this civil rights case involves 10 matters of substantial public importance, which weighs against awarding costs to 11 Defendants.”). 12 II. The Closeness and Difficulty of the Issues in the Case 13 Plaintiff asserts that “when the defendants moved to dismiss plaintiff’s claims for 14 sleep deprivation the magistrate sided with plaintiff and hel[d] in her report and 15 recommendation that plaintiff's sleep deprivation claim should NOT be dismissed.” (ECF 16 No. 183 at 2). Plaintiff asserts that “[t]his was unfortunately overruled by the District judge 17 William Q. Hayes.” Id. Plaintiff asserts that “when defendant[]s moved for summary 18 judgement on plaintiff’s due process and exercise claims the magistrate judge found 19 defendant[]s failed to even meet their initial burden of proving they were entitled to 20 judgement as a matter of law.” Id. Plaintiff asserts that “the District Judge, who cited no 21 reason or rationale for disagreeing with the magistrate judge overruled her again and 22 granted defendant’s motion for summary judgement.” Id. Plaintiff contends that “[t]his 23 was a close case and could easily have gone either way . . . .” Id. Defendant County 24 contends that the fact that the District Court disagreed with the Magistrate Judge’s analysis 25 does not prove that this was a close case. 26 The duties of the district court in connection with a report and recommendation of a 27 magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 28 636(b). “The district judge must determine de novo any part of the magistrate judge’s 1 disposition that has been properly objected to” and “may accept, reject, or modify the 2 recommended disposition; receive further evidence; or return the matter to the magistrate 3 judge with instructions.” Fed. R. Civ. P. 72(b)(3). The district judge must “make a de 4 novo determination of those portions of the report . . . to which objection is made” and 5 “may accept, reject, or modify, in whole or in part, the findings or recommendations made 6 by the magistrate judge.” 28 U.S.C. § 636(b). 7 On September 26, 2018, the magistrate judge recommended that “Plaintiff’s Eight 8 Amendment claims regarding sleep deprivation be permitted to proceed against the County 9 of San Diego; Sheriff Gore, Lieutenants K. Kamoss, Lovelace, Goings; Sergeants Brewer, 10 Johns, Navarro and Fowler; and Deputies Oliver, Cole, McKenny, Cerda, Warren, 11 Stratham, Epps, Mondragon, Barrios, Camalleri, JD Williams, Moon, Gallegas, Bullock, 12 Vargas, Zepeda, F. Gonzalez, White, Ramos, De la Cruz, Huerta, M. Ellsworth, Bass, 13 Olsen, Mendoza and Agnew”; that “Plaintiff’s Fourteenth Amendment Claims regarding 14 placement in administrative segregation be permitted to proceed against the County of San 15 Diego and Sgt. Lawson;” and that “Plaintiff’s Eighth Amendment claims regarding denial 16 of outdoors and out of cell exercise be permitted to proceed against the County of San 17 Diego . . . .” (ECF No. 86 at 31). In the Court’s January 8, 2019 Order, the Court 18 considered objections filed by Plaintiff and Defendants in order to conclude that 19 “Plaintiff’s Eighth Amendment claims regarding conditions of confinement based on sleep 20 deprivation are dismissed as to all defendants;” that “Plaintiff’s Fourteenth Amendment 21 claims regarding placement in administrative segregation will proceed only against the 22 County of San Diego and are dismissed against all individual defendants;” and that 23 “Plaintiff’s Eighth Amendment claims regarding denial of outdoors and out of cell exercise 24 will proceed only against the County of San Diego and are dismissed against all individual 25 defendants . . . .” (ECF No. 97 at 10). 26 On February 18, 2020, the magistrate judge recommended that “Summary Judgment 27 on Plaintiff’s Due Process Claim related to his placement in administrative segregation be 28 DENIED”; that “Summary Judgment on whether Plaintiff exhausted his outdoor exercise 1 claim while at George Bailey Detention Facility be GRANTED;” “Summary Judgment on 2 whether Plaintiff exhausted his outdoor exercise claim while at San Diego Central Jail be 3 DENIED;” that “Summary Judgment on Plaintiff’s Eighth Amendment Claim related to 4 denial of outdoor exercise be DENIED; and” that “Summary Judgment on municipal 5 liability be DENIED.” (ECF No. 154 at 33). In the Court’s April 6, 2020 Order, the Court 6 considered objections filed by Plaintiff and Defendant County in order to grant summary 7 judgment in favor of Defendant County and against Plaintiff on Plaintiff’s due process 8 claim regarding administrative segregation, Plaintiff’s recreation yard claims at George 9 Bailey Detention Facility, Plaintiff’s recreation yard claims at San Diego Central Jail, and 10 Plaintiff’s cruel and unusual punishment claim regarding outdoor exercise. (ECF No. 166). 11 The Court concludes that the case was sufficiently close and that the issues were 12 sufficiently difficult to weigh against awarding costs to Defendant County because the 13 magistrate judge recommended granting in part and denying part Defendant County’s 14 Motion for Summary Judgment while the Court ordered that summary judgment be granted 15 in favor of Defendant County and against Plaintiff. 16 III. The Chilling Effect on Future Similar Actions 17 Plaintiff contends that “if a bill of costs in the hundreds to thousands of dollars is 18 granted against plaintiff, then that would without a doubt represent and cause a chilling 19 effect on other inmates who believe they are being mistreated by the county of san diego.” 20 (ECF No. 183 at 2). Plaintiff asserts that “[w]hile the amount of money sought might not 21 seem that high to the average citizen, to an inmate who lives of almost no money and the 22 richest inmates in State Prison are those who can afford $200 a month[,] [t]he amount 23 would definitely caus[e] a severe chilling effect.” Id. Defendant County contends that 24 courts have awarded similar and larger costs without concern for a risk of chilling effect. 25 In Draper, the Court of Appeals concluded that the district “court’s award of 26 $3,018.35 in costs [to the plaintiff in a prisoner civil rights action] was an abuse of 27 discretion.” Draper, 836 F.3d at 1086. The Court of Appeals found that 28 1 such a large cost award could chill similar lawsuits challenging Eighth Amendment violations in jails and prisons. Many would-be litigants in Eighth 2 Amendment excessive force cases, like Draper, have virtually no resources. 3 Even those with meritorious cases may choose not to risk an unsuccessful lawsuit that could add to the fees and costs associated with conviction and 4 imprisonment. 5 Id. at 1088. The Court of Appeals “note[d] that district courts have routinely declined to 6 award costs against prisoners proceeding in forma pauperis under similar circumstances, 7 citing potential chilling effects.” Id. at 1088-89 (collecting cases); see e.g., Aguilar, 2020 8 WL 2573468, at *2 (citation omitted) (“Having found this case involves matters of 9 substantial public importance, and because Plaintiffs have limited financial resources . . . , 10 an award of costs against Plaintiffs would have a chilling effect on future civil rights 11 actions.”); Baltimore v. Haggins, No. 1:10–cv–00931–LJO–JLT (PC), 2014 WL 804463, 12 at *2 (E.D. Cal. Feb. 27, 2014) (denying $1,462.61 in costs because “while this Court is 13 what some may call ‘inundated’ with similar cases filed under section 1983 by indigent 14 inmates, the potential chilling effect of being taxed with costs upon defeat cannot be 15 ignored in cases such as these.”); Meeks v. Parsons, No. 1:03–cv–6700 OWW, 2010 WL 16 2867847, at *2 (E.D. Cal. July 21, 2010) (denying $7,448.04 in costs because “[b]ased on 17 the totality of the circumstances, an award of the costs sought against Plaintiff would be 18 inequitable, because he is without resources and an award has the potential to chill 19 meritorious civil rights actions, to remedy denial of appropriate medical treatment for 20 prisoners with known serious medical needs.”). The Court concludes that the amount of 21 costs in this case of $1,465 has a potential chilling effect on future similar actions. 22 IV. The Plaintiff’s Limited Financial Resources 23 Plaintiff asserts that he “has very limited resources.” (ECF No. 183 at 2). Plaintiff 24 asserts that he “has been released from custody for two and a half months now and has yet 25 to be able to find employment.” Id. Plaintiff asserts that “[h]e has zero income and lives 26 of his wife’s income which is low.” Id. Plaintiff asserts that he “would not be able to 27 28 1 afford the bare necessities of life and pay the bill of costs.” Id. Defendant County contends 2 that Plaintiff’s financial status does not excuse him from paying relatively minor fees. 3 “Costs are properly denied when a plaintiff would be rendered indigent should she 4 be forced to pay the amount assessed.” Escriba, 743 F.3d at 1248. In Escriba, the Court 5 of Appeals affirmed the district court’s denial of costs because the plaintiff’s “limited 6 financial resources weighed against taxing her with [the defendant]’s costs.” Id. at 1248. 7 The Court of Appeals noted that “Escriba earned an average of $11,622 per year while 8 working for Foster Farms, meaning that the costs being sought by the company exceed her 9 average annual earnings. Moreover, the record reflects that Escriba’s efforts to secure 10 steady employment post-termination have been unsuccessful.” Id. In Draper, the Court 11 of Appeals reached a similar conclusion after finding that “Draper has virtually no 12 resources.” Draper, 836 F.3d at 1089. Defendant County has failed to present evidence 13 demonstrating that Plaintiff’s assertions regarding his financial resources are inaccurate or 14 false. See Aguilar, 2020 WL 2573468, at *2 (“Defendants provide no evidence 15 demonstrating Plaintiff Aguilar and Plaintiff P.A.’s guardian ad litem’s declarations 16 regarding their financial resources are inaccurate or false. Accordingly, the fourth Escriba 17 factor regarding the limited financial resources of Plaintiffs weighs against awarding costs 18 to Defendants.”). The Court concludes that Plaintiff’s limited financial resources weigh 19 against awarding costs to Defendant County. 20 V. The Economic Disparity Between the Parties 21 Plaintiff contends that “the economic disparity between the two parties is enormous” 22 because “Plaintiff who has no income or assets compared to the hundreds of millions if not 23 a billion or two the county of san diego has in their war chest” “is almost the greatest 24 economic disparity you can find.” (ECF No. 183 at 2). 25 The Court of Appeals has found that public entities, such as counties, have 26 significantly more resources than individual plaintiffs. See Draper, 836 F.3d at 1089. 27 Thus, Defendant County, as a public entity, has significantly more resources than Plaintiff. 28 See e.g., Aguilar, 2020 WL 2573468, at *3 (citations omitted) (“Courts have held public 1 |/entities, such as cities, have significantly more resources than individual plaintiffs... . 2 || Thus, the City of Los Angeles, as a public entity, has significantly more resources than 3 || Plaintiffs.”). The Court concludes that the economic disparity between Plaintiff and 4 || Defendant weighs against awarding costs to Defendant County. The Court concludes that 5 || Plaintiff has sufficiently rebutted the presumption in favor of awarding costs to Defendant 6 ||County because all five of the Escriba factors weigh against awarding costs to Defendant 7 County. 9 IT IS HEREBY ORDERED that the Motion for Re-taxation of Costs filed by 10 || Plaintiff Thomas Goolsby (ECF No. 183) is GRANTED. The Court declines to award 11 to Defendant County of San Diego in this action. The Order of the Clerk of the Court 12 || Taxing Costs (ECF No. 182) is VACATED. 13 || Dated: October 29, 2020 Nitta Z. A a 14 Hon, William Q. Hayes 15 United States District Court 16 17 18 19 20 21 22 23 24 25 26 27 28