1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAAHDI COLEMAN, No. 2:21-cv-00625-TLN-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendants. 16
17 18 Plaintiff is a state prisoner proceeding without counsel in this action brought under 42 19 U.S.C. § 1983. On May 12, 2022, the court screened plaintiff’s amended complaint under 28 20 U.S.C. § 1915A and found that plaintiff’s complaint contained significant portions that were 21 illegible and scattershot allegations in violation of Federal Rule of Civil Procedure 8. ECF No. 22 25. The court granted plaintiff leave to file a second amended complaint, but plaintiff failed to do 23 so within the time granted by the court. Thus, on June 16, 2022, the court recommended that the 24 district judge dismiss the case. ECF No. 26. However, that same day, plaintiff filed a motion 25 seeking additional time to file the second amended complaint. ECF No. 27. Consequently, the 26 court held the recommendation of dismissal in abeyance to allow plaintiff additional time. ECF 27 No. 28. Plaintiff filed his second amended complaint on August 10, 2022, which is now before 28 the court for screening. 1 I. Screening Requirement 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 II. Screening Order 9 Plaintiff pursues claims based on the Eighth Amendment and the First Amendment to the 10 U.S. Constitution against fifteen defendants: (1) the California Department of Corrections and 11 Rehabilitation; (2) Jeff Lynch, warden at California State Prison – Sacramento (CSP-Sac) and 12 member of the institutional classification committees concerning plaintiff’s housing; (3) Dr. 13 Morgan, head of the Short-Term Restricted Housing Unit (STRH Unit) at CSP-Sac and member 14 of the institutional classification committees concerning plaintiff’s housing; (4) Thompson, STRH 15 Unit psychologist at CSP-Sac; (5) Collinsworth, correctional sergeant at CSP-Sac and member of 16 the institutional classification committees concerning plaintiff’s housing; (6) S. Manson, 17 correctional sergeant at CSP-Sac; (7) Tyler, registered nurse on the CSP-Sac STRH Unit; (8) J. 18 Stewart, member of the institutional classification committees concerning plaintiff’s housing at 19 CSP-Sac; (9) E. Jones, member of the institutional classification committees concerning 20 plaintiff’s housing at CSP-Sac; (10) B. Frericks, correctional officer on the STRH Unit; (11) B. 21 Nguyen, correctional officer on the STRH Unit; (12) Burkheart, correctional officer on the STRH 22 Unit; (13) J. Kelly, correctional officer on the STRH Unit; (14) J. Frederick, correctional 23 counselor on the STRH Unit; and (15) D. Contreras, correctional counselor on the STRH Unit 24 and member of the institutional classification committees concerning plaintiff’s housing. ECF 25 No. 30 at 1-2. Plaintiff alleges that defendants subjected him to unconstitutionally-lengthy 26 solitary confinement for 10 months in the CSP-Sac STRH Unit and in unconstitutional conditions 27 of confinement, and then retaliated against him for grieving those conditions. According to 28 plaintiff, the defendants participated in an “STRH brotherhood” that conspired to deprive him of 1 his constitutional rights and to cover up for one another. It is not always clear from the second 2 amended complaint which claims plaintiff wishes to pursue against which defendants. However, 3 after careful review, the court finds that plaintiff has stated potentially cognizable claims against 4 fourteen of the fifteen listed defendants, as follows. 5 The Eighth Amendment protects prisoners from inhumane methods of punishment and 6 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 7 2006). Extreme deprivations are required to make out a conditions-of-confinement claim, and 8 only those deprivations denying the minimal civilized measure of life’s necessities are 9 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 10 503 U.S. 1, 9 (1992). “Prison officials have a duty to ensure that prisoners are provided adequate 11 shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 12 726, 731-32 (9th Cir. 2000) (quotations and citations omitted). 13 To state a claim for retaliation in violation of the First Amendment, a prisoner must allege 14 facts showing five elements: (1) that a state actor took some adverse action against him (2) 15 because of (3) his protected conduct, (4) that such action chilled his exercise of his First 16 Amendment rights, and (5) that the action did not reasonably advance a legitimate correctional 17 goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The plaintiff need not allege 18 that his speech was actually inhibited or suppressed, but merely that the defendant’s conduct was 19 such as would chill or silence a person of ordinary firmness from future First Amendment 20 activities. Id. at 568-69. Conduct protected by the First Amendment includes communications 21 that are “part of the grievance process.” Brodheim v. Cry, 584 F.3d 1262, 1271 n.4 (9th Cir. 22 2009). 23 Plaintiff alleges that an institutional classification committee consisting of defendants 24 Lynch, Stewart, Jones, Morgan, Frederick, Contreras, and Collinsworth transferred him to CSP- 25 Sac’s STRH Unit on May 1, 2020. These defendants allegedly elected to keep plaintiff confined 26 there at five successive committee meetings for a total period of 10 months, even though a 27 standing court order required his transfer out of the unit within 72 hours of May 6, 2020. 28 //// 1 According to plaintiff, staff on the STRH Unit “operated like an organized gang or 2 brotherhood” and retaliated against inmates who tried to report staff misconduct. Members of 3 this “brotherhood” wore a “distinctive neck covering and wristband.” Plaintiff “witnessed 4 defendants Jeff Lynch, Dr. Morgan, J. Frederick, D. Contreras, J. Stewart, G. Jones, Sergeant 5 Collinsworth and Sergeant S. Manson giving out handshakes, arm punches, or back slaps after 6 [plaintiff] had just been attacked by defendant Tyler, or B. Freriks, or B. Nguyen or Burkheart.” 7 Plaintiff alleges that he was denied clean clothes, underwear, warm showers, light, 8 warmth, necessary COVID-19 protective gear, and proper ventilation in the STRH Unit. He 9 claims that the unit showers were filthy and that, despite the COVID-19 pandemic, defendants 10 Freriks, Nguyen, and Burkheart refused to disinfect recreational yard cages, telephones, or 11 showers. Unspecified defendants “denied all sanitation and hygiene protocols” to plaintiff.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAAHDI COLEMAN, No. 2:21-cv-00625-TLN-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendants. 16
17 18 Plaintiff is a state prisoner proceeding without counsel in this action brought under 42 19 U.S.C. § 1983. On May 12, 2022, the court screened plaintiff’s amended complaint under 28 20 U.S.C. § 1915A and found that plaintiff’s complaint contained significant portions that were 21 illegible and scattershot allegations in violation of Federal Rule of Civil Procedure 8. ECF No. 22 25. The court granted plaintiff leave to file a second amended complaint, but plaintiff failed to do 23 so within the time granted by the court. Thus, on June 16, 2022, the court recommended that the 24 district judge dismiss the case. ECF No. 26. However, that same day, plaintiff filed a motion 25 seeking additional time to file the second amended complaint. ECF No. 27. Consequently, the 26 court held the recommendation of dismissal in abeyance to allow plaintiff additional time. ECF 27 No. 28. Plaintiff filed his second amended complaint on August 10, 2022, which is now before 28 the court for screening. 1 I. Screening Requirement 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 II. Screening Order 9 Plaintiff pursues claims based on the Eighth Amendment and the First Amendment to the 10 U.S. Constitution against fifteen defendants: (1) the California Department of Corrections and 11 Rehabilitation; (2) Jeff Lynch, warden at California State Prison – Sacramento (CSP-Sac) and 12 member of the institutional classification committees concerning plaintiff’s housing; (3) Dr. 13 Morgan, head of the Short-Term Restricted Housing Unit (STRH Unit) at CSP-Sac and member 14 of the institutional classification committees concerning plaintiff’s housing; (4) Thompson, STRH 15 Unit psychologist at CSP-Sac; (5) Collinsworth, correctional sergeant at CSP-Sac and member of 16 the institutional classification committees concerning plaintiff’s housing; (6) S. Manson, 17 correctional sergeant at CSP-Sac; (7) Tyler, registered nurse on the CSP-Sac STRH Unit; (8) J. 18 Stewart, member of the institutional classification committees concerning plaintiff’s housing at 19 CSP-Sac; (9) E. Jones, member of the institutional classification committees concerning 20 plaintiff’s housing at CSP-Sac; (10) B. Frericks, correctional officer on the STRH Unit; (11) B. 21 Nguyen, correctional officer on the STRH Unit; (12) Burkheart, correctional officer on the STRH 22 Unit; (13) J. Kelly, correctional officer on the STRH Unit; (14) J. Frederick, correctional 23 counselor on the STRH Unit; and (15) D. Contreras, correctional counselor on the STRH Unit 24 and member of the institutional classification committees concerning plaintiff’s housing. ECF 25 No. 30 at 1-2. Plaintiff alleges that defendants subjected him to unconstitutionally-lengthy 26 solitary confinement for 10 months in the CSP-Sac STRH Unit and in unconstitutional conditions 27 of confinement, and then retaliated against him for grieving those conditions. According to 28 plaintiff, the defendants participated in an “STRH brotherhood” that conspired to deprive him of 1 his constitutional rights and to cover up for one another. It is not always clear from the second 2 amended complaint which claims plaintiff wishes to pursue against which defendants. However, 3 after careful review, the court finds that plaintiff has stated potentially cognizable claims against 4 fourteen of the fifteen listed defendants, as follows. 5 The Eighth Amendment protects prisoners from inhumane methods of punishment and 6 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 7 2006). Extreme deprivations are required to make out a conditions-of-confinement claim, and 8 only those deprivations denying the minimal civilized measure of life’s necessities are 9 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 10 503 U.S. 1, 9 (1992). “Prison officials have a duty to ensure that prisoners are provided adequate 11 shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 12 726, 731-32 (9th Cir. 2000) (quotations and citations omitted). 13 To state a claim for retaliation in violation of the First Amendment, a prisoner must allege 14 facts showing five elements: (1) that a state actor took some adverse action against him (2) 15 because of (3) his protected conduct, (4) that such action chilled his exercise of his First 16 Amendment rights, and (5) that the action did not reasonably advance a legitimate correctional 17 goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The plaintiff need not allege 18 that his speech was actually inhibited or suppressed, but merely that the defendant’s conduct was 19 such as would chill or silence a person of ordinary firmness from future First Amendment 20 activities. Id. at 568-69. Conduct protected by the First Amendment includes communications 21 that are “part of the grievance process.” Brodheim v. Cry, 584 F.3d 1262, 1271 n.4 (9th Cir. 22 2009). 23 Plaintiff alleges that an institutional classification committee consisting of defendants 24 Lynch, Stewart, Jones, Morgan, Frederick, Contreras, and Collinsworth transferred him to CSP- 25 Sac’s STRH Unit on May 1, 2020. These defendants allegedly elected to keep plaintiff confined 26 there at five successive committee meetings for a total period of 10 months, even though a 27 standing court order required his transfer out of the unit within 72 hours of May 6, 2020. 28 //// 1 According to plaintiff, staff on the STRH Unit “operated like an organized gang or 2 brotherhood” and retaliated against inmates who tried to report staff misconduct. Members of 3 this “brotherhood” wore a “distinctive neck covering and wristband.” Plaintiff “witnessed 4 defendants Jeff Lynch, Dr. Morgan, J. Frederick, D. Contreras, J. Stewart, G. Jones, Sergeant 5 Collinsworth and Sergeant S. Manson giving out handshakes, arm punches, or back slaps after 6 [plaintiff] had just been attacked by defendant Tyler, or B. Freriks, or B. Nguyen or Burkheart.” 7 Plaintiff alleges that he was denied clean clothes, underwear, warm showers, light, 8 warmth, necessary COVID-19 protective gear, and proper ventilation in the STRH Unit. He 9 claims that the unit showers were filthy and that, despite the COVID-19 pandemic, defendants 10 Freriks, Nguyen, and Burkheart refused to disinfect recreational yard cages, telephones, or 11 showers. Unspecified defendants “denied all sanitation and hygiene protocols” to plaintiff. 12 On June 10, 2020, plaintiff informed the defendants on the classification committee that 13 he was being denied clean clothes and bedding and that staff members were disregarding 14 COVID-19 safety protocols. After the committee meeting, defendant Collinsworth pressed his 15 elbow into plaintiff’s throat and said, “You’re not in gen-pop anymore. We don’t tolerate whistle 16 blowers back here. We deal with everything in house. If you want to make it out of here in one 17 piece, I suggest you learn how to play by our rules, you are a guest in our house.” After this 18 confrontation, Collinsworth began housing inmates with severe mental illness on the same tier as 19 plaintiff “because he knew they would scream and bang on the doors all night so that I couldn’t 20 sleep.” Other staff who wore the distinctive neck covering and wrist band of the brotherhood 21 began to make degrading comments to plaintiff during strip searches and depriving him of phone 22 calls, showers, and yard time. When plaintiff asked Collinsworth to stop the ongoing harassment, 23 Collinsworth said, “This is just a small taste of the pain I can inflict on you in my house.” 24 On June 22, 2020, plaintiff and other STRH unit inmates filed a group appeal against 25 Collinsworth and Manson regarding staff harassment and/or an incident in which defendant Tyler 26 (a nurse on the unit) coughed on plaintiff’s cell door after stating that he thought he had been 27 exposed to COVID-19. After submitting the appeal, the cells of the inmates were searched and 28 their property was destroyed while they were on the recreational yard. Manson told the inmates, 1 “I know everything that goes on in my unit. If you and your pals want to tell on me and my 2 officers, I will make your stay back here a living hell.” According to plaintiff, Manson wore a 3 distinctive neck covering and wristband of what plaintiff characterizes as the STRH brotherhood. 4 Plaintiff filed another grievance on August 20, 2020, concerning his belief that STRH 5 staff operated like a gang to harass and intimidate inmates. According to plaintiff, defendant 6 Freriks then came to plaintiff’s cell door wearing his STRH neck covering and told plaintiff that 7 he had “fucked up this time and was a snitch bitch.” Freriks began to slam a metal rod on 8 plaintiff’s door during welfare checks to deprive plaintiff of rest and to make comments about 9 plaintiff’s genitals during strip searches that were audible to everyone on the tier. Freriks also 10 made loud comments about plaintiff’s need for mental health care, which caused other inmates to 11 taunt plaintiff as “weak” and “soft.” Allegedly, this conduct kept plaintiff from being open about 12 his mental health needs for fear that staff and inmates would hear something to use against him. 13 Defendants Tyler, Burkheart, and Nguyen “all started to rile the inmate[s]” to taunt plaintiff when 14 they came on the tier. On September 21, 2020, plaintiff returned to his cell to find that it had 15 been trashed, with pieces of the grievance littered on the floor. 16 Plaintiff reported to his mental health clinicians, defendants Thompson and Morgan, that 17 Freriks had sexually harassed him by making comments about his genitals during a strip search. 18 He also reported it to defendants Lynch, Stewart, Jones, Frederick, Contreras, Collinsworth, and 19 Manson. Plaintiff filed a complaint with appeals coordinator defendant Kelly about the 20 harassment. But none of these defendants responded. Rather, Kelly mis-used his position, 21 providing unfiled inmate grievances to members of the STRH brotherhood so that they could 22 retaliate. 23 On September 23, 2020, plaintiff submitted another grievance concerning the STRH 24 brotherhood. Thereafter, defendant Burkheart, who was sweating and coughing, refused to wear 25 a face mask while escorting plaintiff to the recreation yard. Burkheart referred to plaintiff as a 26 snitch and told him to “worry about whose door is going to accidentally open while you’re on the 27 tier, instead of about that fake news.” Thereafter, plaintiff became sick with a headache, night 28 chills, and loss of his sense of taste. When plaintiff told Burkheart he was unwell, Burkheart told 1 plaintiff that “COVID-19 was ‘fake news’ and that he didn’t have to wear a mask because he’s an 2 American.” Burkheart began to skip plaintiff for COVID testing and temperature checks, and 3 soon defendant Freriks and other STRH Unit staff followed suit. Plaintiff experienced two bouts 4 with COVID-like symptoms but was denied treatment. 5 Plaintiff continued to file grievances in October, November, and December 2020, 6 including appeals to the Chief Inmate Appeals Office. In these appeals, plaintiff complained of 7 the ongoing harassment, poor conditions, and retaliation in the STRH Unit. Plaintiff identified 8 defendants Nguyen, Freriks, Burkheart, Collinsworth, Manson, and Tyler as “key members of an 9 STRH organized gang.” On January 31, 2021, Nguyen came to escort plaintiff to the shower. 10 When plaintiff requested that Nguyen – who appeared to be ill – wear a mask, Nguyen yanked 11 plaintiff out of the shower and took him to a shower with no hot water. Later, Nguyen provided 12 plaintiff with a “fake official looking CDCR document” labeled “Hurt feelings report.” The 13 document identified plaintiff as a snitch. Nguyen told the inmates on the tier that “that’s what 14 happens when you and your buddies file snitch-02s, deal with it.” 15 Nguyen distributed the report among the inmates, who targeted plaintiff with human waste 16 on his way to the recreational yard due to his having been labeled a snitch. The negative effects 17 of the report continue to plague plaintiff and place his safety at risk. 18 For the limited purposes of screening under § 1915A and construed liberally, the second 19 amended complaint states potentially cognizable Eighth Amendment claims against defendants 20 Lynch, Morgan, Collinsworth, Manson, Tyler, Stewart, Jones, Frericks, Nguyen, Burkheart, 21 Kelly, Frederick, and Contreras. The second amended complaint also states potentially 22 cognizable First Amendment retaliation claims against defendants Collinsworth, Manson, Tyler, 23 Frericks, Nguyen, Burkheart, Kelly, and Frederick. 24 In addition, the Fourteenth Amendment provides a right that protects prisoners from some 25 disclosure of sensitive personal information. Robinson v. Purcell, No. 2:14-cv-0790 MCE AC P, 26 2019 U.S. Dist. LEXIS 49641, at *12 (E.D. Cal. Mar. 25, 2019); see Norman-Bloodsaw v. 27 Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998). Plaintiff alleges that his STRH 28 Unit Clinician, defendant Thompson, conducted psychiatric appointments with him at his cell 1 door, which allowed staff and other inmates to hear sensitive personal information. Plaintiff has 2 stated a potentially cognizable 14th Amendment claim against defendant Thompson. 3 The second amended complaint fails to state a viable claim against the California 4 Department of Corrections and Rehabilitation, because state agencies are immune from § 1983 5 liability under the 11th Amendment. Brown v. Cal. Dep't of Corr., 554 F.3d 747, 752 (9th Cir. 6 2009); Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988) (“Under the eleventh 7 amendment, agencies of the state are immune from private damage actions or suits for injunctive 8 relief brought in federal court.”).1 9 Plaintiff may choose to proceed only with the claims identified as cognizable by this 10 order. Alternatively, the court will provide plaintiff with one final opportunity to amend his 11 complaint again to remedy his defective claim against CDCR or further clarify which claims he 12 wishes to pursue against which defendants. He is cautioned that any amended complaint must 13 identify as a defendant only persons who personally participated in a substantial way in depriving 14 him of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person 15 subjects another to the deprivation of a constitutional right if he does an act, participates in 16 another’s act or omits to perform an act he is legally required to do that causes the alleged 17 deprivation). Plaintiff may also include any allegations based on state law that are so closely to 18 his federal allegations that “the form the same case or controversy.” See 28 U.S.C. § 1367(a). 19 The third amended complaint must also contain a caption including the names of all 20 defendants. Fed. R. Civ. P. 10(a). 21 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 22 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring multiple, unrelated claims 23 against more than one defendant. Id. 24 1 A limited exception to the rule barring suit against states exists for suits against state 25 officials, sued in their official capacity, for prospective injunctive relief. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n.10, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). Thus, 26 plaintiff may conceivably salvage his claim against CDCR by instead suing the head of CDCR in 27 her official capacity for prospective injunctive relief only. Coleman v. Cal. Dep't of Corr. & Rehab., No. CV 06-2606-JFW (PJW), 2009 U.S. Dist. LEXIS 131038, at *8-9 (C.D. Cal. Feb. 2, 28 2009). 1 | I. Conclusion 2 For the foregoing reasons, it is HEREBY ORDERED that: 3 1. The findings and recommendations issued on June 16, 2022 (ECF No. 26) are hereby 4 VACATED; 5 2. Plaintiff's second amended complaint (ECF No. 30) states, for screening purposes, 6 potentially cognizable claims as identified in this order against defendants Lynch, 7 Morgan, Thompson, Collinsworth, Manson, Tyler, Stewart, Jones, Freriks, Nguyen, 8 Burkheart, Kelly, Frederick, and Contreras. 9 3. Plaintiff's claim against CDCR 1s dismissed with leave to amend within 30 days of service 10 of this order. Plaintiff is not obligated to amend his complaint. 11 4. Within thirty days, plaintiff shall return the notice below advising the court whether he 12 elects to proceed with the cognizable claims or file a third amended complaint. If the 13 former option is selected and returned, the court will enter an order directing service on 14 defendants at that time; 15 5. Failure to comply with any part of this this order may result in dismissal of this action. 16 17 | DATED: December 21, 2022. Yr b, / A A Wy 5 18 EDMUND F. BRENNAN 19 UNITED STATES MAGISTRATE JUDGE
20 21 22 23 24 25 26 27 28
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA SAAHDI COLEMAN, 8 No. 2:21-cv-00625-TLN-EFB (PC) Plaintiff, 9 v. 10 NOTICE OF ELECTION CALIFORNIA DEPARTMENT OF 11 CORRECTIONS, et al., 12 Defendants. 13 In accordance with the court’s Screening Order, plaintiff hereby elects to: 14 15 (1) ______ proceed only with the First Amendment, Eighth Amendment, and 16 Fourteenth Amendment claims identified in the court’s second screening order against 17 defendants Lynch, Morgan, Thompson, Collinsworth, Manson, Tyler, Stewart, Jones, 18 Freriks, Nguyen, Burkheart, Kelly, Frederick, and Contreras; 19 20 OR 21 (2) ______ delay serving any defendant and file a third amended complaint. 22 23 _________________________________ 24 Plaintiff 25 Dated: 26 27 28