(PC) Carter v. California Correctional Institution

• Court: District Court, E.D. California
• Decided: June 29, 2021
• Docket: 1:19-cv-00358
• Status: Unknown

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH REAGAN CARTER, Case No. 1:19-cv-00358-DAD-JLT (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS SECOND AMENDED 13 v. COMPLAINT WITHOUT LEAVE TO AMEND 14 CALIFORNIA CORRECTIONAL INSTITUTION, et al., (Doc. 21) 15 Defendants. 14-DAY DEADLINE 16 17 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims 18 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 19 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 20 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have 21 been paid, the court shall dismiss the case at any time if the court determines that . . . the action 22 or appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 23 1915(e)(2)(B)(ii). 24 I. PLEADING STANDARDS 25 A complaint must contain “a short and plain statement of the claim showing that the 26 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The statement must give the defendant fair 27 notice of the plaintiff's claims and the grounds supporting the claims. Swierkiewicz v. Sorema N. 28 A., 534 U.S. 506, 512 (2002). Detailed factual allegations are not required, but “[t]hreadbare 2 suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 3 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 4 claim that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 5 Factual allegations are accepted as true, but legal conclusions are not. Iqbal, 556 U.S. at 678 6 (citing Twombly, 550 U.S. at 555). 7 The Court construes pleadings of pro se prisoners liberally and affords them the benefit 8 of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). This liberal 9 pleading standard applies to a plaintiff’s factual allegations but not to his legal theories. Neitze v. 10 Williams, 490 U.S. 319, 330 n.9 (1989). Moreover, a liberal construction of the complaint may 11 not supply essential elements of a claim not pleaded by the plaintiff, Bruns v. Nat’l Credit Union 12 Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation marks and citation omitted), and 13 courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 14 F.3d 677, 681 (9th Cir. 2009) (Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 15 1064 (9th Cir. 2008)). The mere possibility of misconduct and facts merely consistent with 16 liability is insufficient to state a cognizable claim. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret 17 Serv., 572 F.3d 962, 969 (9th Cir. 2009). 18 II. PLAINTIFF’S ALLEGATIONS 19 Plaintiff’s claims arose during his incarceration at California Correctional Institution in 20 Tehachapi, California. Plaintiff is a practicing Muslim and prays daily. According to Plaintiff, 21 having a prayer rug is a central tenet of Islamic religious traditions and is practiced by inmates in 22 California Department of Corrections and Rehabilitation custody. Plaintiff alleges that in 23 September 2017, a “religious package” containing a prayer rug and other religious 24 materials arrived for Plaintiff from the American Arab Message Bookstore (“AAMBS”). 25 Plaintiff describes the prayer rug as the best tapestry not found through other sellers. According 26 to Plaintiff, Corrections Officers Reed and Wadkins refused to release the package to Plaintiff or 27 to Chaplain A. Landou, who had pre-approved the order. Plaintiff argues that Defendants failed 28 to follow CDCR’s Department Operations Manual, which sets forth policies and procedures for 2 Plaintiff’s free exercise of his religious practices. 3 In the absence of his AAMBS rug, Plaintiff states that he was forced “to use make-shift 4 items to pray on as his new found faith called on him to obtain the prayer rug from American 5 Arab Message Book Store . . .” (Doc. 21 at 6.) Plaintiff made numerous requests for the package, 6 and he contends that other inmates were able to receive their prayer rugs from the AAMBS. 7 Plaintiff further alleges that CO Reed threatened to destroy the religious package. 8 Plaintiff filed a complaint against him, but the complaint was denied. Plaintiff asserts that, during 9 the administrative appeals process, CO Reed and CO Wadkins intimidated, threatened, and 10 discriminated against Plaintiff. Before he could exhaust his administrative remedies, Plaintiff 11 was transferred to Mule Creek State Prison. Officials informed Plaintiff that during his transfer, 12 the package was lost or stolen. 13 Plaintiff is currently housed at the Sierra Conservation Center in Jamestown, California. 14 In his second amended complaint, Plaintiff alleges violations of the Religious Land Use and 15 Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc–2000cc-5 (“RLUIPA”) (Count I); 16 the Fourth and Fourteenth Amendments (Count II); “Failure to Train, Supervise, Audit, and 17 Discipline” officers regarding religious practices (Count III); and the Due Process Clause of the 18 Fifth Amendment (Count IV). (Doc. 21.) He names as defendants the CDCR, CDCR Secretary 19 Ralph Diaz, CCI, Warden J. Sullivan, Associate Warden L. Ludy, Captain T. Gonzalez, Sergeant 20 B. Mello, CO T. Reed, and CO D. Wadkins. Plaintiff sues CO Reed and CO Wadkins in their 21 individual capacities; he sues the other individual defendants in their official capacities. Each 22 claim is asserted against the “Defendants” collectively, and Plaintiff sues for damages against all 23 defendants “jointly and severally.” Plaintiff also requests declaratory judgment, injunctive relief, 24 and fees and costs. 25 III. DISCUSSION 26 A. Linkage and Causation 27 Prisoners may bring claims under 42 U.S.C. § 1983 for violations of constitutional or 28 other federal rights by persons acting “under color of state law.” To state a claim under section 2 the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 3 373–75 (1976). The Ninth Circuit has held that a person may be liable under section 1983 for an 4 affirmative act, participation in another’s affirmative acts, or omission of an act that he is legally 5 required to do, causing the deprivation of a constitutional right. Johnson v. Duffy, 588 F.2d 740, 6 743 (9th Cir. 1978) (citation omitted). 7 Plaintiff must demonstrate that each defendant personally participated in the deprivation 8 of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation 9 of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678–79; 10 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Under § 1983, the plaintiff must 11 demonstrate that each named defendant personally participated in the deprivation of his rights. 12 Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cnty., 609 F.3d 1011, 1020-21 (9th Cir. 2010); 13 Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). Liability may not be imposed on 14 supervisory personnel under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77. 15 Supervisory personnel may only be held liable if they “participated in or directed the violations, 16 or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 17 (9th Cir. 1989) accord Starr v. Baca, 652 F.3d 1202, 1205–08 (9th Cir. 2011), cert. denied, 132 18 S. Ct. 2101 (2012). 19 Plaintiff names several defendants, including two entity defendants (CDCR and CCI), 20 and in each count, he refers to “Defendants” collectively. Plaintiff’s allegations link only CO 21 Reed and CO Wadkins to the alleged violations of Plaintiff’s rights. Plaintiff thus fails to state a 22 claim against any of the other defendants. For this reason, dismissal of CDCR, CDCR Secretary 23 Ralph Diaz, CCI, Warden J. Sullivan, Associate Warden L. Ludy, Captain T. Gonzalez, and 24 Sergeant B. Mello is appropriate on this basis. 25 B. Eleventh Amendment Immunity 26 Additionally, Plaintiff may not seek damages from the entity defendants for violations of 27 his civil rights. The Eleventh Amendment bars any suit against a state or state agency absent a 28 valid waiver or abrogation of its sovereign immunity. Seminole Tribe of Fla. v. Florida, 517 U.S. 2 whether a state or state agency is sued for damages or injunctive relief, Alabama v. Pugh, 438 3 U.S. 731, 732 (1978), and regardless of whether the plaintiff's claim arises under federal or state 4 law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). While Congress may 5 validly abrogate a state’s sovereign immunity by statute, the Supreme Court has repeatedly 6 emphasized that “[section] 1983 was not intended to abrogate a State’s Eleventh Amendment 7 immunity.” Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985); accord Quern v. Jordan, 440 8 U.S. 332, 342 (1979). 9 Both the Ninth Circuit and the United States Supreme Court have recognized that the 10 “State of California has not waived its Eleventh Amendment immunity with respect to claims 11 brought under § 1983 in federal court.” Dittman v. California, 191 F.3d 1020, 1025–26 (9th Cir. 12 1999); see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), superseded on 13 other grounds by statute, Rehabilitation Act Amendments of 1986, 42 U.S.C. § 2000d-7 14 (observing that the California Constitution does not waive the state’s Eleventh Amendment 15 immunity). 16 In the context of prisoner lawsuits against CDCR, the Ninth Circuit has expressly and 17 repeatedly held that CDCR and prisons within CDCR are immune from suit under the Eleventh 18 Amendment. See, e.g., Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (“The 19 district court correctly held that the California Department of Corrections and the California 20 Board of Prison Terms were entitled to Eleventh Amendment immunity.”); Fulcher v. Cal. Dep’t 21 of Corr., 297 F.App’x 645, 646 (9th Cir. 2008) (“[T]he California Department of Corrections . . . 22 is a state agency that is immune from liability under the Eleventh Amendment.”); cf. Holley v. 23 Cal. Dep’t of Corr., 599 F.3d 1108, 1111–12 (9th Cir. 2010) (affirming dismissal of complaint 24 against CDCR because California had not constructively waived its sovereign immunity by 25 accepting federal funds). Therefore, CDCR and CCI should be dismissed from this action based 26 on Eleventh Amendment immunity as well. 27 /// 28 2 In Count I of Plaintiff’s second amended complaint, Plaintiff alleges that COs Wadkins 3 and Reed, in contravention of state regulations and the department operations manual, “refus[ed] 4 to release the plaintiff’s Religious Package” containing a prayer rug from American Arab 5 Message Book Store, thereby depriving him of his prayer rug and causing him to “violate his 6 core relief belief on a daily basis.” (Doc. 21 at 4.) According to Plaintiff, “[h]aving a prayer rug 7 is a central tenet of Islamic religious traditions enjoyed by Muslim prisoners incarcerated at 8 [CDCR] facilities.” (Id. at 1.) More specifically, Plaintiff asserts that “his religious beliefs 9 compel him to make salat (prayer) utilizing the prayer rug that had been sent by American Arab 10 Message Book Store.” (Id. at 6.) While other inmates received prayer rugs from AAMBS, 11 Plaintiff has been forced “to use make-shift items to pray on as his new found faith called on him 12 to obtain the prayer rug from American Arab Message Book Store, which is of the best tapistry 13 (sic) not found in any other place but theirs.” Id. Despite the approval of the package by 14 Chaplain A. Landou, Plaintiff did not receive his package, which was lost or stolen when 15 Plaintiff was transferred to another facility. 16 The Free Exercise clause of the First Amendment provides: “Congress shall make no law 17 respecting the establishment of religion, or prohibiting the free exercise thereof . . .” U.S. Const., 18 amend. I. The First Amendment is applicable to the States by the Fourteenth Amendment. U.S. 19 Const., amend. XIV. The Free Exercise Clause requires government respect for, and 20 noninterference with, the religious beliefs and practices of its citizens. See Cutter v. Wilkinson, 21 544 U.S. 709, 719 (2005). 22 “The right to exercise religious practices and beliefs does not terminate at the prison 23 door.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. Shabazz, 482 24 U.S. 342 (1987); Bell v. Wolfish, 441 U.S. 520, 545 (1979). However, an inmate’s right to free 25 exercise religion is limited by the state’s institutional objectives and the fact of his incarceration. 26 Jones v. Williams, 791 F.3d 1023, 1031–32 (9th Cir. 2015); Hartmann v. Cal. Dep’t of Corr. &

27 1 In the caption for Count I of Plaintiff’s second amended complaint, Plaintiff alleges that 28 Defendants’ deprivation of the religious package was a violation of the RLUIPA. Although this caption excludes the First Amendment, it is referenced in other places within the pleading, and the subject matter 2 allege facts plausibly showing that the government denied them ‘a reasonable opportunity of 3 pursuing [their] faith comparable to the opportunity afforded fellow prisoners who adhere to 4 conventional religious precepts.’” Hartmann, 707 F.3d at 1122 (alteration in original) (quoting 5 Cruz v. Beto, 405 U.S. 319, 322 (1972)). 6 To implicate the Free Exercise clause, a prisoner’s claim must meet two criteria:

7 First, the claimant's proffered belief must be sincerely held; the First Amendment does not extend to so-called religions which . . . are obviously shams and absurdities 8 and whose members are patently devoid of religious sincerity. Second, the claim must be rooted in religious belief, not in purely secular philosophical concerns. 9

10 Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (alteration in original) (citations and 11 internal quotation marks omitted), supplemented, 65 F.3d 148 (9th Cir. 1995). 12 If the inmate makes his initial showing of a sincerely held religious belief, he must 13 establish that prison officials substantially burdened the practice of his religion by preventing 14 him from engaging in conduct that he sincerely believes is consistent with his faith. Shakur, 514 15 F.3d at 884–85. Government action substantially burdens the exercise of religion when the action 16 is “oppressive to a significantly great extent.” Int’l Church of Foursquare Gospel v. City of San 17 Leandro, 673 F.3d 1059, 1067 (9th Cir. 2011) (citation and internal quotation marks omitted). 18 “A substantial burden places more than an inconvenience on religious exercise; it must have a 19 tendency to coerce individuals into acting contrary to their religious beliefs or exert substantial 20 pressure on an adherent to modify his behavior and to violate his beliefs.” Jones v. Williams, 791 21 F.3d 1023, 1031–32 (9th Cir. 2015). 22 Plaintiff also alleges in Count I that Defendants violated the RLUIPA, which holds prison 23 officials to a stricter standard than under the First Amendment. Green v. Solano Cty. Jail, 513 24 F.3d 992, 986, 989 (9th Cir. 2008). This act provides:

25 No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . , even if the burden results 26 from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person– 27 (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government 28 interest. 42 U.S.C. § 2000cc-1(a). The RLUIPA protects “any exercise of religion, whether or not 2 compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). The Court 3 must construe this provision “in favor of a broad protection of religious exercise, to the extent 4 permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g). “A 5 prisoner’s request for an accommodation must be sincerely based on a religious belief and not 6 some other motivation.” Holt v. Hobbs, 574 U.S. 352, 360–61 (2015) (citing Burwell v. Hobby 7 Lobby Stores, Inc., 573 U.S. 682, 717, n.28 (2014)). 8 After the court has identified the “religious exercise” allegedly impinged upon, the court 9 must determine whether the prison regulation or action at issue “substantially burdens” that 10 religious exercise. Greene, 513 F.3d at 987. Plaintiff must allege facts demonstrating that 11 defendant substantially burdened the exercise of his religious beliefs. Warsoldier v. Woodford, 12 418 F.3d 989, 994–95 (9th Cir. 2005). While the statute does not define “substantial burden,” the 13 Ninth Circuit has held that “a substantial burden on religious exercise must impose a 14 significantly great restriction or onus upon such exercise.” Hartmann, 707 F.3d at 1124–25 15 (citing San Jose Christian Coll., 360 F.3d at 1034). A substantial burden occurs when the state’s 16 denial of accommodation places “substantial pressure on an adherent to modify his behavior and 17 to violate his beliefs.” Hartmann, 707 F.3d at 1124–25 (citing Warsoldier, 418 F.3d at 995). If 18 the plaintiff demonstrates a substantial burden on his free exercise, the burden shifts to the 19 defendants to show that the burden imposed is (1) in furtherance of a compelling governmental 20 interest, and (2) is the least restrictive means of furthering that interest. 21 Applying these legal standards, the Court finds that Plaintiff has not sufficiently alleged a 22 claim for impermissible burden of religious exercise under the First Amendment or the RLUIPA. 23 Plaintiff’s pleading indicates that daily prayer is a religious exercise of his Islamic faith. In this 24 respect, the Court finds that Plaintiff failed to demonstrate a substantial burden, given his ability 25 to use substitute items and engage in his daily prayers. Plaintiff describes the items as “make- 26 shift,” which suggests a lower quality substitute; however, he has not explained what these items 27 are, why they are inadequate substitutes for the AAMBS prayer rug, or the duration of any 28 deprivation. According to Plaintiff, he was able to exercise his Islamic faith through prayer 2 inconvenience on religious exercise.” Jones, 791 F.3d at 1031–32. A plaintiff must demonstrate 3 that he was under substantial pressure to act in a manner contrary to his religious beliefs or to 4 modify his behavior and violate his beliefs. See Jones, 791 F.3d at 791 F.3d at 1031–32; Shakur 5 v. Schriro, 514 F.3d 878, 888 (9th Cir. 2008) (quoting Warsoldier, 418 F.3d at 995). Plaintiff has 6 not made a showing that he was pressured to act or modify his behavior in contravention of his 7 religious beliefs and practices. 8 To the extent that Plaintiff appears to contend the “religious exercise” in this case is 9 utilizing the specific prayer rug sent to him by the AAMBS, his request for an accommodation 10 must be “sincerely based on a religious belief and not some other motivation.” See Holt v. Hobbs, 11 574 U.S. 352, 360–61 (2015) (citing Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 717, 12 n.28 (2014)). Plaintiff states that the AAMBS prayer rug was made “of the best tapestry not found 13 in any other place but theirs,” (Doc. 21 at 6), but he was able to use other items to practice faith 14 and engage in prayers. Thus, it appears that Plaintiff is motivated by and has a preference for the 15 AAMBS rug based on its quality, rather than a sincerely held religious belief that ownership of an 16 AAMBS rug is mandated by his Islamic faith. 17 Moreover, a prisoner “does not have a constitutional right to a vendor of his choice.” 18 Davis v. Powell, 901 F. Supp. 2d 1196, 1215 (S.D. Cal. 2012) (finding that policy favoring prayer 19 oil orders from Union Supply over plaintiff’s preferred vendor does not impose a substantial 20 burden); see also Thomas v. Little, No. 07–1117–BRE/egb, 2009 WL 1938973, at *5 (W.D. Tenn. 21 July 6, 2009) (dismissing First Amendment and RLUIPA claims arising out of policy limiting 22 prayer oil purchases to approved vendor Union Supply); Bey v. Tenn. Dep’t of Corr., No. 2:15- 23 CV-174-TWP-MCLC, 2018 WL 1542383, at *3 (E.D. Tenn. Mar. 29, 2018) (no substantial 24 burden in prison’s requirement that prayer oil be purchased from an approved vendor, Union 25 Supply, instead of a Muslim vendor); Tate v. Dickinson, No. 2:13–cv–2393–WBS–EFB PC, 2014 26 WL 2877317 (E.D. Cal. June 24, 2014) (“plaintiff’s mere preference for a larger variety of oils 27 . . . is not sufficient to state a cognizable claim”). Although Plaintiff demonstrates a preference for 28 a rug from AAMBS, his deprivation of it does not amount to a denial of a “reasonable opportunity” to freely exercise his faith and “adher[e] to conventional religious precepts.” See 2 Hartmann, 707 F.3d at 1123. 3 D. Fourth, Fourteenth, and Fifth Amendments 4 In Count II, Plaintiff alleges generally that Defendants deprived him of “religious 5 practices without legal justification, probable cause as required under the Fourth Amendment . . . 6 incorporated by the Fourteenth Amendment.” To the extent that Plaintiff claims the rug was 7 unlawfully seized, the Fourth Amendment does not protect an inmate from seizure, conversion, 8 or destruction of property. Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir. 1989) (citing Hudson v. 9 Palmer, 468 U.S. 517, 524, 537–40 (1984)). 10 Insofar as Plaintiff asserts a due process violation under the Fourteenth Amendment, 11 prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 728, 730 12 (9th Cir. 1974). However, a plaintiff has no due process claim based on defendants’ unauthorized 13 deprivation of his personal property—whether intentional or negligent—if a meaningful state 14 post-deprivation remedy for his loss is available. See Hudson v. Palmer, 468 U.S. 517, 533 15 (1984). California’s tort claim process provides that adequate post-deprivation remedy. Barnett 16 v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810–895) (“[A] 17 negligent or intentional deprivation of a prisoner’s property fails to state a claim under section 18 1983 if the state has an adequate post deprivation remedy.”); see also Teahan v. Wilhelm, 481 F. 19 Supp. 2d 1115, 1120 (S.D. Cal. 2007). Therefore, Plaintiff fails to state a claim for Defendants’ 20 refusal to release the package containing the prayer rug. 21 In Count IV, Plaintiff asserts a due process violation under the Fifth Amendment, as well. 22 However, the Fifth Amendment prohibits the denial of due process by federal actors and is 23 therefore inapplicable in this case. See U.S. Const. amend XIV, § 1; Castillo v. McFadden, 399 24 F.3d 993, 1002 n.5 (9th Cir. 2005) (“The Fifth Amendment prohibits the federal government 25 from depriving persons of due process, while the Fourteenth Amendment explicitly prohibits 26 deprivations without due process by the several States”). 27 Accordingly, Counts II and IV fail to state a cognizable constitutional claim for the 28 deprivation of his property. 2 In Count III, Plaintiff alleges that Defendants failed to train, supervise, audit, and 3 discipline individual defendants regarding Plaintiff’s First Amendment rights to exercise his 4 religious practices. Plaintiff’s allegations are too vague and conclusory to state a cognizable 5 claim. 6 III. CONCLUSION 7 The Court finds that Plaintiff is unable to allege any facts that would state cognizable civil 8 rights claim and further amendment would be futile. For the foregoing reasons, the Court 9 RECOMMENDS that this action be DISMISSED for failure to state a claim. 10 These Findings and Recommendations will be submitted to the United States District 11 Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 12 service of these Findings and Recommendations, Plaintiff may file written objections with the 13 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 14 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 15 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 16 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 IT IS SO ORDERED. 18

19 Dated: June 29, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 20

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