Kevin Lewis Hayes v. Oliveros, et al.

• Court: District Court, N.D. California
• Decided: April 9, 2026
• Docket: 5:25-cv-00203
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 KEVIN LEWIS HAYES, Case No. 25-cv-00203-EKL

9 Plaintiff, ORDER SCREENING AND 10 v. PARTIALLY DISMISSING AMENDED COMPLAINT, ORDERING SERVICE 11 OLIVEROS, et al.,

Defendants. 12

13 14 Plaintiff Kevin Lewis Hayes filed the instant pro se civil rights lawsuit challenging 15 incidents that occurred at Correctional Training Facility in Soledad. ECF No. 1. The Court 16 previously screened his complaint and granted Plaintiff leave to amend. ECF No. 13. The 17 amended complaint is now before the Court for screening pursuant to 28 U.S.C. § 1915A(a). ECF 18 No. 15. For the reasons set forth below, the Court partially DISMISSES the amended complaint 19 and ORDERS SERVICE of Defendants Oliveros, Macklin, and the California Department of 20 Corrections and Rehabilitation (“CDCR”). 21 I. LEGAL STANDARDS 22 A. Standard of Review 23 Federal courts engage in a preliminary screening of cases in which prisoners seek redress 24 from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 25 § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims, 26 which are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek 27 monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1)-(2). Pro se 1 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 2 Cir. 1990). 3 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 4 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 5 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 6 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 7 cause of action will not do . . . . Factual allegations must be enough to raise a right to relief above 8 the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). 9 A complaint must proffer “enough facts to state a claim to relief that is plausible on its face.” Id. 10 at 570. “While legal conclusions can provide the framework of a complaint, they must be 11 supported by factual allegations. When there are well-pleaded factual allegations, a court should 12 assume their veracity and then determine whether they plausibly give rise to an entitlement to 13 relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 14 B. Section 1983 15 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by 16 the Constitution or laws of the United States was violated, and (2) the alleged deprivation was 17 committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 18 Liability may be imposed on an individual defendant under Section 1983 if the plaintiff can show 19 that the defendant’s actions actually and proximately caused the deprivation of a federally 20 protected right. Lemire v. Cal. Dep’t of Corrections & Rehabilitation, 726 F.3d 1062, 1074 (9th 21 Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives another of a 22 constitutional right within the meaning of Section 1983 if he does an affirmative act, participates 23 in another’s affirmative act, or fails to perform an act that he is legally required to do, causing the 24 deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. 25 II. PLAINTIFF’S ALLEGATIONS 26 Plaintiff alleges violations of his First, Eighth, and Fourteenth Amendment rights by the 27 following defendants: Licensed Vocational Nurse B. Oliveros, Correctional Officers Macklin, 1 Per the amended complaint, Macklin and Oliveros carried out a “premed[i]tated ruse” 2 against Plaintiff on June 12, 2024, because he wrote complaints about each of them. ECF No. 15 3 at 5. Plaintiff was allegedly moved from his cell into a cage near the Investigative Services Unit 4 (“ISU”) by Macklin while prisoners in the unit were eating breakfast. Id. at 3. Several ISU 5 officers and Toscano were present as Plaintiff was placed inside the cage and told to strip so 6 officers could check him for weapons. Id. at 6. Plaintiff removed his clothes as directed and put 7 them back on shortly thereafter. Id. at 6-8. The ISU officers explained that they were 8 investigating a “kite”1 that reportedly stated that Plaintiff’s life was in danger because he had 9 instigated conflict among groups of prisoners. Id. at 6-7. 10 Later that day, Wilson, Oliveros, and Toscano stopped by the cage and informed Plaintiff 11 that he needed a medical evaluation to check for potential injuries. ECF No. 15 at 7-8. Plaintiff 12 was again asked to strip. Id. at 8. Plaintiff explained that he had already stripped for the other 13 officers and that he did not have any injuries except a bruise from surgery on his left ankle. Id. 14 Oliveros allegedly stated, “Oh yeah, I remember that, and I also remember that you wrote me up 15 over your meds.” Id. at 8. Wilson told Plaintiff that Oliveros would not leave – and Plaintiff 16 would not be allowed out of the cage – unless he removed his clothing to allow Oliveros to 17 conduct the medical evaluation. Id. at 8-9. Plaintiff removed his sock from his left foot, rolled up 18 his pant leg, and showed Oliveros the bruise from his surgery. Id. at 9. After Wilson left the area, 19 Toscano allegedly told Plaintiff that he could return to his cell if he removed his clothes and 20 allowed Oliveros to conduct the medical evaluation. Id. at 9. Oliveros asked to see Hayes’ right 21 ankle, and Hayes acquiesced and took off his right shoe. Id. at 9-10. Oliveros asked Plaintiff to 22 undress. Plaintiff, who was wearing only a shirt, boxers, and shorts, did so, pulling down his 23 boxers and shorts in one motion, and then turning around as the ISU officers had instructed him to 24 do earlier that day. Id. at 10. Plaintiff did not intend to remove his boxers, but they were pulled 25 down with his shorts. Id. As Plaintiff got dressed, Toscano stated, “you just made it wors[e] for 26 yourself,” and Oliveros told him that it was her turn “to write [him] up, for writing [Oliveros] up.” 27 1 Id. at 10-11. 2 After being in the cage for over three hours, Plaintiff was asked to sign a form and escorted 3 back to his cell. He was then instructed to gather his belongings because he was being moved to a 4 different wing, E-Wing. ECF No. 15 at 12. Rendon allegedly told Plaintiff that his new cell 5 would have “I.E.X.” – which stands for indecent exposure – posted on his door for the next 90 6 days. Id. at 13. Plaintiff did not receive notice of a rules violation until after he complained that 7 he was placed in the marked cell without a hearing on the alleged indecent exposure. He was 8 found guilty of the violation but assessed no punishment as a result. Id. 9 Near the end of the 90-day period, Lopez asked Plaintiff where he would like to be housed. 10 Because he was disabled, Plaintiff stated that he would like a wing that has “lower tier showers for 11 the Blacks,” specifying “C-Wing, G-Wing, D-Wing, and E-Wing.” Id. at 14. Instead, Plaintiff 12 was assigned to B-Wing by Lopez and Rendon, allegedly because they knew that wing did not 13 “honor (ADA) showers for the Blacks,” and that showers for Black prisoners on the B-Wing were 14 on the third floor. Id. at 15. When Plaintiff confronted Lopez about his placement, Lopez 15 allegedly told him that he was “being difficult” and that Lopez was “showing [Plaintiff that he] 16 moves where [officers] say, not where [Plaintiff] want[s] to.” Id. Plaintiff asked Rendon for 17 permission to use the accessible showers in an adjacent wing, but Rendon declined, stating that he 18 did not have the authority to do so. Id. at 16. Plaintiff filed a grievance, which was granted ten 19 days later, and was allowed to use the accessible showers in the adjacent wing. Id. at 16. 20 Plaintiff contends that Defendants’ actions were retaliatory due to his filing of grievances 21 against Macklin and Oliveros. He also alleges that Defendants discriminated against him because 22 of his disability. ECF No. 15 at 16-17. Plaintiff disputes the existence of the “kite” and alleges 23 that other prisoners kicked his cell door and called him names, such as pervert, pedophile, freak, 24 weirdo, and a rapist, as a result of the I.E.X. sign on his cell door. Id. at 17. Hayes seeks 25 monetary damages. Id. at 3. 26 III. ANALYSIS 27 Plaintiff raises claims pursuant to Section 1983 alleging First Amendment retaliation, 1 indifference under the Eighth Amendment, and a violation of the Americans with Disabilities Act 2 (“ADA”). 3 A. Retaliation 4 Plaintiff alleges that Oliveros and Macklin intentionally set up a “ruse” to harass him after he 5 filed grievances against them, and that their actions amounted to retaliation. ECF No. 15 at 5. 6 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 7 elements: (1) An assertion that a state actor took some adverse action against a prisoner (2) because of 8 (3) that prisoner’s protected conduct, and that such action (4) chilled the prisoner’s exercise of his First 9 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 10 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); accord Pratt v. 11 Rowland, 65 F.3d 802, 806 (9th Cir. 1995). Filing grievances, including those related to healthcare, is 12 considered a protected First Amendment activity. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). 13 Liberally construed, Plaintiff states cognizable claims of retaliation against Oliveros and 14 Macklin for allegedly setting up a “ruse” to harass him, causing him to be held in a cage for 15 several hours, and unfairly writing him up. Although Plaintiff alleges that Wilson and Toscano 16 spoke to him during the incident, Plaintiff does not allege any facts suggesting that he had filed 17 grievances against them, or that they were aware of Plaintiff’s grievances against Oliveros and 18 Macklin or their “ruse.” Accordingly, while the retaliation claims against Oliveros and Macklin 19 will proceed, the retaliation claims against Wilson and Toscano are DISMISSED for failure to 20 state a claim. Because the Court previously screened this claim and granted Hayes leave to amend 21 on a prior occasion, the Court concludes that any further leave to amend as to Wilson and Toscano 22 would be futile. See Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th Cir. 2018) (“Leave 23 to amend may be denied if the proposed amendment is futile or would be subject to dismissal.”). 24 B. Procedural Due Process 25 Plaintiff alleges that his due process rights were violated when he was required to place 26 I.E.X. on his cell door prior to receiving a rules violation report or hearing regarding his alleged 27 indecent exposure. ECF No. 15 at 11. 1 While due process may be implicated by prison disciplinary proceedings, placement in an 2 I.E.X or other segregated unit pending the investigation of disciplinary charges generally does not 3 implicate the Fourteenth Amendment. See Resnick v. Hayes, 213 F.3d 443, 448-49 (9th Cir. 2000) 4 (plaintiff did not have protected liberty interest in being free from confinement in segregated 5 housing unit pending his disciplinary hearing); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) 6 (same). Due process rights may be implicated when the change in conditions imposes an “atypical 7 and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 8 515 U.S. 472, 484 (1995); cf. Shotwell v. Brandt, Case No. 10-cv-05232-CW, 2012 WL 6569402, 9 *2 (N.D. Cal. Dec. 17, 2022) (“The hardship associated with placement in administrative 10 segregation, such as a loss of recreational and rehabilitative programs or confinement to one’s cell 11 for a lengthy period of time, is not so severe as to violate the Due Process Clause itself.”). Here, 12 the placement of an I.E.X. sign on Plaintiff’s cell door alone is not considered a condition of 13 confinement that imposes “atypical and significant hardship.” Sandin, 515 U.S. at 484; Williams 14 v. Allison, No. 19-cv-00731-BAM, 2021 WL 3502359, *10 (E.D. Cal. Jul. 21, 2021) (“Insofar as 15 Plaintiff alleges that his right to due process was violated because he was held in the I.E.X. unit 16 pending investigation and hearings on the charges against him, he fails to state a cognizable 17 claim.”). 18 Moreover, although he alleges that his rules violation report for indecent exposure was 19 false, Plaintiff does not dispute that he had an opportunity to challenge the alleged violation 20 through the prison’s disciplinary procedures. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974) 21 (describing process due during prison disciplinary proceedings where a prisoner may lose credits 22 or be placed in solitary confinement). Due process requires nothing more. See Patkins v. 23 Ferguson, No. 18-cv-05139-EMC, 2018 WL 6671513, *2 (N.D. Cal. 2018) (“Even if [a] false 24 charge . . . result[s] in discipline that amounts to the deprivation of a protected liberty interest 25 under Sandin, a § 1983 claim is not stated if the inmate is afforded the procedural protections 26 required by federal law at the disciplinary hearing.”) (citing Smith v. Mensinger, 293 F.3d 641, 27 653-54 (3d Cir. 2002); see also Garrott v. Glebe, 600 F. App’x 540, 542 (9th Cir. 2015) (noting 1 Because Hayes has not stated a cognizable due process claim, the claim is DISMISSED. 2 Further, because the Court has already screened a prior complaint and granted Hayes leave to 3 amend, the Court determines that further leave to amend would be futile. See Wheeler, 894 F.3d 4 at 1059. 5 C. Eighth Amendment Deliberate Indifference 6 Hayes alleges that requiring him to place the I.E.X. sign on his cell door violated his rights 7 because he suffered verbal harassment from other prisoners as a result. ECF No. 15 at 17. It is 8 unclear whether the claim is directed at Rendon, who notified Hayes that he would be required to 9 have the I.E.X. sign on his door. 10 It is well established that under the Eighth Amendment, prison officials have a duty to take 11 reasonable steps to protect prisoners from physical harm. See Farmer v. Brennan, 511 U.S. 825, 12 832-33 (1994). This includes an affirmative duty to protect prisoners from violence at the hands 13 of other prisoners. See id at 833. The failure of prison officials to protect prisoners from attacks 14 by other prisoners or dangerous conditions at the prison violates the Eighth Amendment when 15 (1) the deprivation alleged is, “objectively, sufficiently serious,” and (2) the official is, 16 subjectively, deliberately indifferent to the prisoner’s safety. Id. at 835. “[D]eliberate indifference 17 entails something more than mere negligence . . . [but] is satisfied by something less than acts or 18 omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. 19 Liability may follow only if a prison official “knows that [the prisoner] face[s] a substantial risk of 20 serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 21 847. 22 Here, even liberally construing the claim, Plaintiff does not state a cognizable Eighth 23 Amendment deliberate indifference claim because Plaintiff fails to show that Rendon or any other 24 defendant was aware that placement of the I.E.X. sign put Plaintiff at “substantial risk of serious 25 harm.” Farmer, 511 U.S. at 847. Plaintiff alleges that he was subjected to verbal harassment by 26 other prisoners; however, “verbal harassment or abuse . . . is not sufficient to state a constitutional 27 deprivation under 42 U.S.C. § 1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) 1 v. Ibarra, No. 18-cv-02135-CAB-RBM, 2019 WL 2249982, *3 (S.D. Cal. May 24, 2019) 2 (complaint failed to state deliberate indifference claim where the plaintiff “d[id] not allege that he 3 was actually harmed by other prisoners as a result of [the correctional officer’s conduct] nor d[id] 4 he allege that he was ever threatened with harm by other prisoners as a result of [the correctional 5 officer’s] actions.”). 6 The Eighth Amendment claim, presumably alleged against Rendon, is DISMISSED. 7 Moreover, because Plaintiff has been granted leave to amend on a prior occasion, the Court 8 concludes that any amendment to this claim would be futile. The dismissal is without leave to 9 amend. See Wheeler, 894 F.3d at 1059. 10 D. ADA 11 Plaintiff alleges that Lopez and Rendon assigned him to B-Wing because B-Wing did not 12 have ADA-accessible showers for Black prisoners despite his explicit request for accessible first 13 floor showers due to his use of a cane. ECF No. 15 at 15. 14 Title II of the ADA “prohibits public entities from discriminating against or excluding the 15 disabled from participating in or benefitting from a public program, activity, or service ‘solely by 16 reason of disability.’” Lee v. City of Los Angeles, 250 F.3d 668, 690-91 (9th Cir. 2001), 17 abrogated on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125-26 (9th 18 Cir.2002). “Discrimination includes a failure to reasonably accommodate a person’s disability.” 19 Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014), rev’d in part on 20 other grounds, 575 U.S. 600, 602-17 (2015). “To recover monetary damages under Title II of the 21 ADA, a plaintiff must prove intentional discrimination on the part of the defendant.” Duvall v. 22 Cnty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). 23 Liberally construed, Plaintiff’s allegation that his placement in B-Wing after he notified 24 Lopez and Rendon that B-Wing did not have accessible first floor showers to accommodate his 25 disability states a cognizable claim for damages under Title II. However, as ADA claims 26 implicate the entity rather than the individual employees who engaged in alleged discrimination, 27 and Plaintiff also names the employees in their official capacity, the Court construes this claim as 1 2003) (suit against state officials in official capacity is a suit against the public entity); see also 2 Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (holding that the “ADA applies only to 3 public entities”). The ADA claims against Lopez and Rendon are therefore DISMISSED, but the 4 ADA claim against CDCR will proceed. 5 IV. CONCLUSION 6 The Court orders as follows: 7 1. Plaintiff states cognizable claims of First Amendment retaliation against 8 Defendants Olivares and Macklin. 9 2. Plaintiff states a cognizable claim against CDCR for damages under Title II of the 10 ADA for his placement in B-Wing. 11 3. All other claims and defendants are DISMISSED without leave to amend. 12 4. Defendants Olivares, Macklin, and CDCR shall be served. 13 a. Service shall proceed under CDCR’s e-service pilot program for civil rights 14 cases from prisoners in CDCR custody. In accordance with the program, 15 the Clerk of the Court is directed to serve on CDCR via email the following 16 documents: the operative complaint (ECF No. 15), this order, a CDCR 17 Report of E-Service Waiver form, and a summons. 18 b. No later than 45 days after service of this order via email on CDCR, CDCR 19 shall provide the Court a completed CDCR Report of E-Service Waiver 20 advising the Court whether defendants will be waiving service of process 21 without the need for service by the United States Marshal Service 22 (“USMS”) or whether any defendant declined to waive service. CDCR also 23 shall provide a copy of the CDCR Report of E-Service Waiver to the 24 California Attorney General’s Office, which, within 21 days of service, 25 shall file with the Court a waiver of service of process for the defendants 26 waiving service. 27 c. Upon receipt of the CDCR Report of E-Service Waiver, the Clerk shall 1 CDCR Report of E-Service Waiver a USM-285 Form. The Clerk shall 2 provide to the USMS the completed USM-285 form and copies of this 3 order, summons, and operative complaint for service upon each defendant 4 who has not waived service. The Clerk also shall provide to the USMS a 5 copy of the CDCR Report of E-Service Waiver. 6 d. Additionally, the Clerk shall mail a copy of this order to Plaintiff. 7 5. In order to expedite the resolution of this case, the Court orders the following 8 briefing schedule: 9 a. No later than 90 days from the date of service, Defendants will file a 10 motion for summary judgment or other dispositive motion. The motion will 11 be supported by adequate factual documentation, shall conform in all 12 respects to Federal Rule of Civil Procedure 56, and will include as exhibits 13 all records and incident reports stemming from the events at issue. If 14 Defendants are of the opinion that this case cannot be resolved by summary 15 judgment or other dispositive motion, they will inform the Court prior to the 16 date the dispositive motion is due. All papers filed with the Court will be 17 promptly served on Plaintiff. 18 b. At the time the dispositive motion is served, Defendants will also serve, on 19 a separate paper, the appropriate notice or notices required by Rand v. 20 Rowland, 154 F.3d 952, 953-54 (9th Cir. 1998) (en banc), and Wyatt v. 21 Terhune, 315 F.3d 1108, 1120 n.4 (9th Cir. 2003). See Woods v. Carey, 22 684 F.3d 934, 940-41 (9th Cir. 2012) (Rand and Wyatt notices must be 23 given at the time motion for summary judgment or motion to dismiss for 24 non-exhaustion is filed, not earlier); Rand, 154 F.3d at 960 (separate paper 25 requirement). 26 c. Plaintiff’s opposition to the dispositive motion, if any, will be filed with the 27 Court and served upon Defendants no later than 28 days from the date the 1 “NOTICE -- WARNING,” which is provided to him pursuant to Rand, 154 2 F.3d at 953-54, and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 3 1988). If Defendants file a dispositive motion claiming that Plaintiff failed 4 to exhaust his available administrative remedies as required by 42 U.S.C. 5 § 1997e(a), he should take note of the attached page headed “NOTICE -- 6 WARNING (EXHAUSTION),” which must be provided to him as required 7 by Wyatt, 315 F.3d at 1120 1.4. 8 d. If Defendants wish to file a reply brief, they shall do so no later than 9 14 days after the opposition is served upon them. 10 e. The motion shall be deemed submitted as of the date the reply brief is due. 11 Absent a further order of the Court, no hearing will be held on the motion. 12 6. All communications by Plaintiff with the Court must be served on Defendants, or 13 Defendants’ counsel once counsel has been designated, by mailing a true copy of 14 the document to Defendants or Defendants’ counsel. 3 15 7. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. a 16 No further Court order is required before the parties may conduct discovery. 2 17 8. Itis Plaintiffs responsibility to prosecute this case. Plaintiff must keep the Court Z 18 informed of any change of address by filing a separate paper with the Clerk headed 19 “Notice of Change of Address.” Plaintiff must comply with the Court’s orders in a 20 timely fashion. Failure to do so may result in the dismissal of this action for failure 21 to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 22 IT IS SO ORDERED. 23 Dated: April 9, 2026 24 Ge mi K. Lee 26 United States District Judge 27 28

1 NOTICE -- WARNING (SUMMARY JUDGMENT) 2 If defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in the defendant’s declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 17 NOTICE -- WARNING (EXHAUSTION) 18 If defendants file a motion for summary judgment for failure to exhaust, they are seeking 19 to have your case dismissed. If the motion is granted it will end your case. 20 You have the right to present any evidence you may have which tends to show that you did 21 exhaust your administrative remedies. Such evidence may be in the form of declarations 22 (statements signed under penalty of perjury) or authenticated documents, that is, documents 23 accompanied by a declaration showing where they came from and why they are authentic, or other 24 sworn papers, such as answers to interrogatories or depositions. 25 If defendants file a motion for summary judgment for failure to exhaust and it is granted, 26 your case will be dismissed and there will be no trial.