Johnson 151089 v. Shinn

• Court: District Court, D. Arizona
• Decided: October 5, 2021
• Docket: 2:21-cv-00559
• Status: Unknown

Opinion

1 MDR 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard Johnson, No. CV 21-00559-PHX-MTL (ESW) 10 Plaintiff, 11 v. ORDER David Shinn, et al., 12 Defendants. 13

14 15 On March 31, 2021, Plaintiff Richard Johnson, who is confined in the Arizona State 16 Prison Complex (ASPC)-Eyman in Florence, Arizona, filed a pro se civil rights Complaint 17 and an Application to Proceed In Forma Pauperis. In a May 18, 2021 Order, the Court 18 granted the Application to Proceed and dismissed the Complaint because Plaintiff had 19 failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint that 20 cured the deficiencies identified in the Order. 21 On May 28, 2021, Plaintiff paid the balance of the filing fee. On June 9, 2021, 22 Plaintiff filed a First Amended Complaint (Doc. 9). The Court will order Defendants 23 Higginson, Thielman, and O’Connor to answer Counts Two and Three of the First 24 Amended Complaint and will dismiss Count One and Defendant Brass without prejudice. 25 I. Statutory Screening of Prisoner Complaints 26 The Court is required to screen complaints brought by prisoners seeking relief 27 against a governmental entity or an officer or an employee of a governmental entity. 28 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 1 has raised claims that are legally frivolous or malicious, that fail to state a claim upon which 2 relief may be granted, or that seek monetary relief from a defendant who is immune from 3 such relief. 28 U.S.C. § 1915A(b)(1)–(2). 4 A pleading must contain a “short and plain statement of the claim showing that the 5 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 6 not demand detailed factual allegations, “it demands more than an unadorned, the- 7 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 8 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice.” Id. 10 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 11 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 12 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 13 that allows the court to draw the reasonable inference that the defendant is liable for the 14 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 15 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 16 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 17 allegations may be consistent with a constitutional claim, a court must assess whether there 18 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 19 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 20 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 21 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent 22 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 23 U.S. 89, 94 (2007) (per curiam)). 24 II. First Amended Complaint 25 In his three-count First Amended Complaint, Plaintiff seeks injunctive relief, his 26 fees and costs, and “attorney[-]like” fees” from Defendants Deputy Wardens Thomas 27 Higginson and Shannon Thielman, Major Patrick O’Connor, and Special Security 28 Unit (SSU) Officer Levi Brass. 1 Plaintiff alleges that prior to May 1, 2014, he was confined in a maximum-security 2 solitary confinement unit and, at the same time, the Arizona Department of 3 Corrections (ADC) was trying to settle a class action lawsuit that involved, among other 4 things, “inhumane living conditions in maximum security units.” He claims he submitted 5 several grievances regarding “the unsanitary and inhumane cell conditions” and officers 6 sexually harassing him. On May 1, 2014, he was transferred to a less restrictive unit, where 7 he continued to pursue his previously filed grievances, despite a corrections officer telling 8 him to “let [his] grievances go.” 9 Plaintiff claims that on June 5, 2014, he was involuntarily transferred to ASPC- 10 Florence’s Kasson Unit, which is a more restrictive, maximum-security unit. He contends 11 that when he asked why he had been transferred to the Kasson Unit, he was told by the 12 Interim Division Director of Offender Operations that he had been transferred “‘pending 13 validation’” as a Security Threat Group (STG) member. Plaintiff asserts this was “mere 14 pretext” because, at that point, SSU officers had not initiated his STG validation packet 15 and had not “collected the necessary STG-specific evidence to consider Plaintiff as an STG 16 suspect.” 17 After an October 2014 hearing, Plaintiff was validated as an STG member. Plaintiff 18 claims he filed a civil rights lawsuit against several prison officials, Johnson v. 19 McWilliams, CV 15-00670-PHX-MTL (D. Ariz.). According to Plaintiff, on January 23, 20 2020, the parties agreed to a “Settlement Agreement and Release of Claims” providing, 21 among other things, that Plaintiff would receive a new validation hearing, “at which 22 Plaintiff would be permitted to use discovery materials on his behalf.” The parties also 23 agreed that the new validation hearing would use the same STG validation packet used at 24 Plaintiff’s original validation hearing. Plaintiff received his new validation hearing in 25 September 2020. 26 In Count One, Plaintiff alleges Defendants subjected him to retaliation, in violation 27 of his First Amendment rights. Plaintiff asserts that the STG process was “used as a means 28 of retaliating against [him] because he exercised his First Amendment rights” and, as a 1 result of Defendants Brass, Higginson, Thielman, and O’Connor’s actions, he has been 2 confined in a maximum custody solitary confinement unit for the last seven years and has 3 been exposed to “extremely onerous and isolating conditions which in the aggregate have 4 negatively affected his mental health.” 5 Plaintiff contends Defendant Brass, who was the SSU officer who initiated 6 Plaintiff’s validation packet “before he was even a suspect and after Plaintiff submitted 7 several grievances,” 8 (1) “purportedly found paperwork in Plaintiff’s property that he deemed [to be] STG documents,” although Plaintiff denies 9 knowing about or possessing these documents and prison 10 officials have admitted that their records show “no evidence of any paperwork being ‘seized’”; 11 (2) “used a list of names that he portrayed as [being in] Plaintiff’s 12 handwriting as evidence of gang activity,” although Plaintiff 13 denies knowing about or possessing the list and, during discovery, “it was established the list was not in Plaintiff’s 14 handwriting and did not have his name or ADC number in it”; 15 (3) transferred Plaintiff to the Kasson Unit “before the requisite 16 documented assignment of the minimum points,” although Defendant Brass stated at the validation hearing that “Plaintiff 17 had over half of the required points for validation” before he was transferred to the Kasson Unit on June 5, 2014. 18 19 Plaintiff contends that Defendant Brass’s conduct was retaliatory and that a 20 reasonable person could conclude Defendant Brass’s actions were “highly questionable” 21 regarding “the timing of the evidence gathering,” the validity of the evidence, and the 22 “nonexistence of documented gang activity prior to Plaintiff’s ‘pending validation’ 23 transfer.” 24 Plaintiff contends Defendants Higginson, Thielman, and O’Connor:1 25 (1) deemed Defendant Brass’s statements “credible” despite Plaintiff providing documentary evidence that the statements 26 were untrue; 27

28 1 Plaintiff identifies these Defendants as “Committee Members.” Presumably, they are the members of the committee that conducted the September 2020 validation hearing. (2) “deemed documents met STG criteria in accordance [with 1 Defendant] Brass” and found Defendant Brass’s assessment 2 “credible,” despite Plaintiff stating “verbatim[] what the criteria[] and definitions were and how disproportionately 3 documents didn’t fit into their categories”; 4 (3) “maintained a finding of valid STG material” from a document 5 that was “deemed a[] ‘self-admission,’” but was actually a PowerPoint presentation Plaintiff had previously prepared and 6 presented to a prior validation committee that paraphrased and 7 refuted the charges against him; and 8 (4) concluded Defendant Brass and “other prison officials who could contradict or seriously question the validity of the 9 evidence” were “irrelevant to Plaintiff’s STG hearing” and did 10 not interview, “or even acknowledge[],” the officials. 11 He claims Defendants Higginson, Thielman, and O’Connor’s actions “are a 12 continuation of retaliatory intent that brought forth the Settlement, the conditions of the 13 Settlement, and the September 2020 STG hearing[, n]one of [which] would have 14 happene[]d absent a finding of ‘retaliatory motive’ and ‘retaliatory intent’ by prison 15 officials in the first place.”2 16 In Count Two, Plaintiff alleges Defendants Higginson, Thielman, and O’Connor 17 violated his First Amendment rights of “freedom to express and exercise-speech” because 18 they “sustained a previous finding of Plaintiff’s Native American language as STG 19 activity.” Specifically, Plaintiff alleges he used the word “dog” in his Native American 20 language “as a derivative to friend, partner, companion [or] homie,” to describe the 21 relationship between two inmates. He claims that a prior “STG hearing committee said 22 dog used in a Native American language meant an inmate wanting to become a prison gang 23 member.” Plaintiff asserts Defendants Higginson, Thielman, and O’Connor “maintained 24 the previous finding[] as ‘credible’” and their decision was “complet[e]ly in opposition to 25 the First Amendment” and ignored Congress’s finding that “the traditional languages of

26 2 Plaintiff cites to a December 19, 2018 Ninth Circuit Court of Appeals 27 Memorandum in CV 15-00670 that concluded that a reasonably jury could find statements allegedly made by three prison officials, who were defendants in that action and validated 28 Plaintiff as a gang member, “showed that defendants acted with retaliatory motive.” See Doc. 159-1 in CV 15-00670. 1 Native Americans are an integral part of their cultures and identities.” Plaintiff contends 2 Defendants are not enrolled in his tribal community and do not speak or understand his 3 Native language. 4 In Count Three, Plaintiff claims Defendants Higginson, Thielman, and O’Connor 5 violated his Fourteenth Amendment right to due process. Plaintiff alleges the “conditions 6 of his confinement and the duration of the deprivations he has endured since June 2014, 7 with no end in sight, are extreme and sufficient in time and extent to trigger a protected 8 liberty interest and all accompanying due process protections.” 9 Plaintiff contends he is confined in a windowless, 10’ by 8’ cell with a sink, toilet, 10 desk, and “a metal grate 2 1/2 feet off the ground for the mattress.” He claims he is not 11 eligible for temporary release or the restoration of earned release credits; is served his meals 12 in his cell; must be strip searched, handcuffed with his hands behind his back, and escorted 13 by two officers whenever he leaves his cell; and must remain in his cell for 24 hours per 14 day, except for the three times a week he is allowed out for recreation and showers. He 15 alleges inmates recreate alone in either a 10’ by 10’ metal grate cage or an empty, 12’ by 16 20’ “chute recreation area” that has a drain, 25-foot-high concrete walls, and a mesh-grate 17 ceiling. Plaintiff alleges these restrictions are designed to minimize and eliminate human 18 contact and impact every aspect of his day-to-day existence. He claims they are negatively 19 impacting his ability to function in prison and will negatively impact his ability to function 20 when he is released. Plaintiff alleges that these harms “will continue for a lengthy and 21 indefinite period of time” due to “ADC’s pre-determined reviews” and Plaintiff’s “pre- 22 determined STG validation and resulting classifications.” 23 Plaintiff claims Defendants Higginson, Thielman, and O’Connor did not find he had 24 committed any harmful or dangerous acts or had violated any rules or regulations. He 25 contends they found his validation packet “credible” despite Plaintiff providing a 26 PowerPoint presentation and discovery material that “seriously questions the evidence as 27 reliable STG material.” He alleges Defendants Higginson, Thielman, and O’Connor: 28 (1) did not consider “the points raised or . . . exculpatory 1 documentation[] that significantly contradicted the alleged 2 evidence in Plaintiff’s validation packet”; 3 (2) “discounted” Defendant Brass’s prior statements that “a number of STG documents were well documented” before 4 Plaintiff was transferred to the Kasson Unit pending validation 5 and that Plaintiff had “acquired over half of his 16 STG points” before he was transferred, despite Plaintiff providing 6 Defendant Brass’s “previously made statements and Plaintiff’s 7 validation packet showing otherwise”; 8 (3) discounted the Division Director of Offender Operations discovery responses that there was no evidence of any 9 paperwork being seized from Plaintiff’s property, although 10 Defendant Brass had claimed STG documents were discovered in Plaintiff’s property; and 11 (4) discounted “what the criteria and definitions are for materials 12 to be considered as STG materials,” even after Plaintiff “stated 13 verbatim[] what they were and how the alleged evidence didn’t fit those definitions or meet those criteria[].” 14 15 Plaintiff alleges “[t]his arbitrary process” prevented him from receiving an 16 “impartial hearing,” he was validated based on documents that “lacked a sufficient indic[i]a 17 of reliability,” and he was denied “the opportunity to be heard at a meaningful time and in 18 a meaningful manner.” He also asserts that the “arbitrary decision” leaves him with “no 19 basis to object and appeal his validation in a meaningful way.” 20 III. Discussion 21 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 22 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 23 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 24 civil rights complaint may not supply essential elements of the claim that were not initially 25 pled. Id. 26 A. Count One 27 A viable claim of First Amendment retaliation contains five basic elements: (1) an 28 assertion that a state actor took some adverse action against an inmate (2) because of 1 (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise 2 of his First Amendment rights (or that the inmate suffered more than minimal harm) and 3 (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 4 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 5 1997) (retaliation claim requires an inmate to show (1) that the prison official acted in 6 retaliation for the exercise of a constitutionally protected right, and (2) that the action 7 “advanced no legitimate penological interest”). The plaintiff has the burden of 8 demonstrating that his exercise of his First Amendment rights was a substantial or 9 motivating factor behind the defendants’ conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. 10 v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 11 (9th Cir. 1989). 12 1. Defendant Brass 13 Failure to state a claim includes circumstances where a defense is “complete and 14 obvious from the face of the pleadings.” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th 15 Cir. 1984), abrogated on other grounds by Neitzke v. Williams, 490 U.S. 319 (1989). In 16 the absence of waiver, the Court may raise the defense of statute of limitations sua sponte. 17 See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687 (9th Cir. 1993); see also Hughes 18 v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (upholding sua sponte dismissal under 28 19 U.S.C. § 1915(e)(2)(B)(i) of prisoner’s time-barred complaint). 20 The applicable statute of limitations in an action under 42 U.S.C. § 1983 is the forum 21 state’s statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 22 276 (1985). The Arizona statute of limitations for personal injury actions is two years. See 23 Ariz. Rev. Stat. § 12-542(1). 24 Accrual of § 1983 claims is governed by federal law. Wallace v. Kato, 549 U.S. 25 384, 388 (2007). Under federal law, a claim accrues when the plaintiff “knows or has 26 reason to know of the injury that is the basis of the action.” Pouncil v. Tilton, 704 F.3d 27 568, 574 (9th Cir. 2012); Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th Cir. 28 1998). Thus, to be timely, Plaintiff’s claims must have accrued no more than two years 1 before his Complaint was filed on March 31, 2021. Based on Plaintiff’s allegations, 2 Defendant Brass’s actions took place in 2014. Thus, the Court will dismiss as untimely 3 Plaintiff’s claim against Defendant Brass. 4 2. Defendants Higginson, Thielman, and O’Connor 5 Plaintiff contends Defendants Higginson, Thielman, and O’Connor’s actions “are a 6 continuation of retaliatory intent that brought forth the Settlement, the conditions of the 7 Settlement, and the September 2020 STG hearing,” and that these would not have occurred 8 “absent a finding of ‘retaliatory motive’ and ‘retaliatory intent’ by prison officials in the 9 first place.” But this focusses on the retaliatory intent of others, not Defendants Higginson, 10 Thielman, and O’Connor. Indeed, Plaintiff alleges nothing to suggest that Defendants 11 Higginson, Thielman, and O’Connor were aware he had filed grievances in 2014 or that 12 they validated him as a STG member because he filed those grievances.3 Plaintiff’s 13 allegations are simply too vague and conclusory to suggest that the grievances he filed in 14 2014 were a substantial or motivating factor behind Defendants Higginson, Thielman, and 15 O’Connor’s decision to validate him in September 2020. Thus, the Court will dismiss 16 without prejudice Plaintiff’s retaliation claim against Defendants Higginson, Thielman, 17 and O’Connor. 18 B. Count Two 19 Plaintiff’s allegations in Count Two do not plausibly state a First Amendment claim. 20 However, liberally construed, Plaintiff has stated a Fourteenth Amendment due process 21 claim against Defendants Higginson, Thielman, and O’Connor. See Bruce v. Ylst, 351 F.3d 22 1283, 1287-88 (9th Cir. 2003) (prison officials must provide an inmate facing gang

23 3 In the December 19, 2018 Memorandum, the Ninth Circuit Court of Appeals 24 concluded that “a reasonable jury could find that the alleged statements [at the original validation hearing] showed that defendants [in CV 15-00670] acted with retaliatory 25 motive.” The Ninth Circuit referred to Plaintiff’s allegations that (1) when he stated at the hearing that he was being validated in retaliation for filing grievances, the defendants 26 stated, “you shouldn’t have done that in the first place” and “if you hadn’t grieved any officers you wouldn’t be here”; and (2) when he attempted to challenge the evidence 27 against him, the defendants said, “the decision to validate you has come from Central Office” before the hearing had concluded. Plaintiff makes no similar allegations against 28 Defendants Higginson, Thielman, and O’Connor regarding the September 2020 validation hearing. 1 validation with notice of the charges and an opportunity to present his views, and the 2 decision must be supported by “some evidence” that has “sufficient indicia of reliability”). 3 Thus, the Court will order Defendants Higginson, Thielman, and O’Connor to answer 4 Court Two as a due process claim. 5 C. Count Three 6 Liberally construed, Plaintiff has stated a due process claim in Count Three. The 7 Court will require Defendants Higginson, Thielman, and O’Connor to answer Count Three. 8 IV. Warnings 9 A. Address Changes 10 Plaintiff must file and serve a notice of a change of address in accordance with Rule 11 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 12 relief with a notice of change of address. Failure to comply may result in dismissal of this 13 action. 14 B. Copies 15 Because Plaintiff is currently confined in an Arizona Department of Corrections unit 16 subject to General Order 14-17, Plaintiff is not required to serve Defendants with a copy 17 of every document he files or to submit an additional copy of every filing for use by the 18 Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and Local Rule 19 of Civil Procedure 5.4. Plaintiff may comply with Federal Rule of Civil Procedure 5(d) by 20 including, with every document he files, a certificate of service stating that this case is 21 subject to General Order 14-17 and indicating the date the document was delivered to 22 prison officials for filing with the Court. 23 If Plaintiff is transferred to a unit other than one subject to General Order 14-17, he 24 will be required to: (a) serve Defendants, or counsel if an appearance has been entered, a 25 copy of every document that he files, and include a certificate stating that a copy of the 26 filing was served; and (b) submit an additional copy of every filing for use by the Court. 27 See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may result in the filing 28 being stricken without further notice to Plaintiff. 1 C. Possible Dismissal 2 If Plaintiff fails to timely comply with every provision of this Order, including these 3 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 4 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 5 to comply with any order of the Court). 6 IT IS ORDERED: 7 (1) Count One is dismissed without prejudice. 8 (2) Defendant Brass is dismissed without prejudice. 9 (3) Defendants Higginson, Thielman, and O’Connor must answer Counts Two 10 (as a due process claim, not a free speech claim) and must answer Count Three. 11 (4) The Clerk of Court must send Plaintiff this Order, and a copy of the 12 Marshal’s Process Receipt & Return form (USM-285) and Notice of Lawsuit & Request 13 for Waiver of Service of Summons form for Defendants Higginson, Thielman, and 14 O’Connor. 15 (5) Plaintiff must complete and return the service packet to the Clerk of Court 16 within 21 days of the date of filing of this Order. The United States Marshal will not 17 provide service of process if Plaintiff fails to comply with this Order. 18 (6) If Plaintiff does not either obtain a waiver of service of the summons or 19 complete service of the Summons and First Amended Complaint on a Defendant within 90 20 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever 21 is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); 22 LRCiv 16.2(b)(2)(B)(ii). 23 (7) The United States Marshal must retain the Summons, a copy of the First 24 Amended Complaint, and a copy of this Order for future use. 25 (8) The United States Marshal must notify Defendants of the commencement of 26 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 27 Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this 28 Order. 1 (9) A Defendant who agrees to waive service of the Summons and First 2 Amended Complaint must return the signed waiver forms to the United States Marshal, not 3 the Plaintiff, within 30 days of the date of the notice and request for waiver of service 4 pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of 5 personal service. 6 (10) The Marshal must immediately file signed waivers of service of the 7 summons. If a waiver of service of summons is returned as undeliverable or is not returned 8 by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, 9 the Marshal must: 10 (a) personally serve copies of the Summons, First Amended Complaint, 11 and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil 12 Procedure; and 13 (b) within 10 days after personal service is effected, file the return of 14 service for Defendant, along with evidence of the attempt to secure a waiver of 15 service of the summons and of the costs subsequently incurred in effecting service 16 upon Defendant. The costs of service must be enumerated on the return of service 17 form (USM-285) and must include the costs incurred by the Marshal for 18 photocopying additional copies of the Summons, First Amended Complaint, or this 19 Order and for preparing new process receipt and return forms (USM-285), if 20 required. Costs of service will be taxed against the personally served Defendant 21 pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise 22 ordered by the Court. 23 (11) Defendants Higginson, Thielman, and O’Connor must answer relevant 24 portions of the First Amended Complaint or otherwise respond by appropriate motion 25 within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of 26 Civil Procedure. 27 . . . . 28 . . . . 1 | (12) Any answer or response must state the specific Defendant by name on whose 2 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 3 | does not identify the specific Defendant by name on whose behalf it is filed. 4 | (13) This matter is referred to Magistrate Judge Eileen S. Willett pursuant to Rules 5 | 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 6 | authorized under 28 U.S.C. § 636(b)(1). 7 | Dated this 4th day of October, 2021. s| | Mk Lo. ‘chal T. Gibuake Michael T. Liburdi 11 | United States District Judge 12 | 3 14 | 15 | 16 | 17| 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 |