(PC) Drumwright v. Huckleberry

Opinion

1 2 3 4 5 6

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 MARQUISE DRUMWRIGHT, Case No. 1:20-cv-00939-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 RECOMMENDING THAT THIS ACTION v. 13 PROCEED ON PLAINTIFF’S EIGHTH SGT. C. HUCKLEBERRY, et al., AMENDMENT CLAIMS AGAINST 14 DEFENDANT GOMEZ FOR FAILURE TO Defendants. PROTECT AND EXCESSIVE FORCE AND 15 THAT ALL OTHER CLAIMS AND 16 DEFENDANTS BE DISMISSED

17 (ECF No. 14)

18 OBJECTIONS, IF ANY, DUE WITHIN 19 TWENTY-ONE (21) DAYS

20 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 21 22 Marquise Drumwright (“Plaintiff”) is a state prisoner proceeding pro se and in forma 23 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 24 Plaintiff’s Second Amended Complaint is now before this Court for screening. For the 25 reasons that follow, the Court will recommend that this action proceed on Plaintiff’s Eighth 26 Amendment claims against defendant Gomez for failure to protect and excessive force. The 27 Court will also recommend that all other claims and defendants be dismissed for failure to state 28 a claim upon which relief may be granted. 1 Plaintiff has twenty-one days from the date of service of these findings and 2 recommendations to file his objections. 3 I. SCREENING REQUIREMENT 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 6 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 8 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 9 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 7), the Court may 10 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 11 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 12 determines that the action or appeal fails to state a claim upon which relief may be granted.” 13 28 U.S.C. § 1915(e)(2)(B)(ii). 14 A complaint is required to contain “a short and plain statement of the claim showing 15 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 16 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 17 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 19 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 20 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 21 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 22 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 23 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 24 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 25 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 26 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 27 pro se complaints should continue to be liberally construed after Iqbal). 28 \\\ 1 II. BACKGROUND 2 Plaintiff filed the complaint commencing this action on July 7, 2020. (ECF No. 1). On 3 September 10, 2020, the Court screened the complaint, and found that Plaintiff’s Eighth 4 Amendment failure to protect claim against defendant Gomez should proceed past screening. 5 (ECF No. 9). The Court also found that all of the other asserted claims in Plaintiff’s complaint 6 failed to state a claim upon which relief may be granted under the applicable legal standards 7 and gave leave to amend the complaint. (Id.). 8 On October 5, 2020, Plaintiff filed a First Amended Complaint. (ECF No. 10). On 9 October 21, 2020, the Court screened Plaintiff’s First Amended Complaint. (ECF No. 11). In 10 the First Amended Complaint, while Plaintiff alleged that he and an inmate told something to 11 defendant Gomez, Plaintiff did not include allegations regarding what defendant Gomez was 12 told, and the Court found that the First Amended Complaint failed to state any cognizable 13 claims. (Id.). Because the Court was concerned that Plaintiff did not include sufficient 14 allegations related to the failure to protect claim against defendant Gomez, the Court gave 15 Plaintiff thirty days to state whether he wished to proceed on the original or amended 16 complaint. (Id. at 14). 17 On December 9, 2020, Plaintiff filed a “Denial and Exception to the Return of the 18 Screening Order to Show Cause for Relief in Support Thereof.” (ECF No. 12). It was not clear 19 what Plaintiff was seeking in this filing. However, Plaintiff did include additional relevant 20 factual allegations that were not included in either complaint. Given this, the Court granted 21 Plaintiff one final opportunity to amend his complaint. (ECF No. 13). Plaintiff filed his 22 Second Amended Complaint on January 11, 2021. (ECF No. 14). 23 Plaintiff’s Second Amended Complaint is now before this Court for screening. 24 III. SUMMARY OF PLAINTIFF’S SECOND AMENDED COMPLAINT 25 At times, Plaintiff’s complaint is difficult to understand. What follows is the Court’s 26 best understanding of Plaintiff’s factual allegations.1 27

28 1 Much of Plaintiff’s complaint consists of Plaintiff repeatedly using words from legal standards. 1 On July 8, 2018, Plaintiff stated to defendant Gomez that he felt unsafe on Facility D- 2 Yard. While Plaintiff spoke to defendant Gomez about this information, he was approached by 3 an inmate who intervened in speaking to defendant Gomez. This inmate affirmed the factual 4 claims, saying to defendant Gomez “what will happen to Plaintiff if Plaintiff stayed on the yard 5 any longer due to problems that could result to violent behavior against Plaintiff.” 6 Plaintiff was able to explain the situation and had mentioned the risks and repercussions 7 to defendant Gomez. “G. Gomez doing was to say something about what had been told to him 8 by one other inmate an Plaintiff, as in retaliation.” 9 Both Plaintiff and the inmate were cuffed by escorting officers, and defendant Gomez 10 stated something to the effect of “They won’t take it home.” 11 On the following day, during morning pill call, Plaintiff was attacked by three inmates, 12 one of whom was the inmate that had spoken to defendant Gomez the day before. Plaintiff 13 alleges that defendant Gomez caused the attack in retaliation for Plaintiff telling him how to 14 alleviate the threat to Plaintiff’s safety. 15 When escorting Plaintiff to the Facility D medical holding cells after the attack by 16 inmates, defendant Gomez slammed Plaintiff on his face, causing the left side of Plaintiff’s face 17 to begin to bleed. Plaintiff was handcuffed when this occurred. Plaintiff never posed a threat, 18 and there was no justification for this action. Plaintiff was left on the ground “beyond any 19 standard of decency….” 20 Defendant Gomez had not been able to complete the escorting process. At this time 21 defendant Gomez’s superior, defendant sergeant Huckleberry, “exonerated Defendant Gomez 22 of his custody control of Plaintiff, an the scene.” 23 Plaintiff received eight stiches to his left eyebrow, along with scarring to the injured 24 area. 25 Plaintiff alleges that defendant Gomez’s use of force was retaliatory. 26 Defendant Huckleberry was the lead “Incident Commander.” As lead Incident 27 Commander, defendant Huckleberry was responsible for the supervision of subordinate 28 personnel. Defendant Huckleberry instructed his personnel to handcuff the inmates involved 1 (including Plaintiff) and to escort them to holding cells. Defendant Huckleberry also observed 2 defendant Gomez use force against Plaintiff. 3 As a related matter, defendant Huckleberry saw defendant Soto arrive to the location of 4 the scene and instructed defendant Soto to complete the escort of Plaintiff to the Facility D 5 medical holding cell. 6 IV. ANALYSIS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 7 A. Section 1983 8 The Civil Rights Act under which this action was filed provides: 9 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 10 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 11 secured by the Constitution and laws, shall be liable to the party injured in an 12 action at law, suit in equity, or other proper proceeding for redress.... 13 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 14 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 15 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 16 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 17 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 18 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 19 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 20 under color of state law, and (2) the defendant deprived him of rights secured by the 21 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 22 2006); see also Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 23 “under color of state law”). A person deprives another of a constitutional right, “within the 24 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 25 omits to perform an act which he is legally required to do that causes the deprivation of which 26 complaint is made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 27 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 28 causal connection may be established when an official sets in motion a ‘series of acts by others 1 which the actor knows or reasonably should know would cause others to inflict’ constitutional 2 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 3 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 4 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 5 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 6 A plaintiff must demonstrate that each named defendant personally participated in the 7 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 8 connection or link between the actions of the defendants and the deprivation alleged to have 9 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 10 658, 691, 695 (1978). 11 Supervisory personnel are not liable under section 1983 for the actions of their 12 employees under a theory of respondeat superior and, therefore, when a named defendant 13 holds a supervisory position, the causal link between the supervisory defendant and the claimed 14 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. 15 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 16 1978). To state a claim for relief under section 1983 based on a theory of supervisory liability, 17 a plaintiff must allege some facts that would support a claim that the supervisory defendants 18 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v. 19 Black, 885 F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 20 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] 21 a policy so deficient that the policy itself is a repudiation of constitutional rights and is the 22 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 23 quotation marks omitted). 24 For instance, a supervisor may be liable for his or her “own culpable action or inaction 25 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 26 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 27 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 28 630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 1 B. Failure to Protect in Violation of the Eighth Amendment 2 To establish a failure to protect claim, a prisoner must establish that prison officials 3 were deliberately indifferent to a sufficiently serious threat to the prisoner’s safety. Farmer v. 4 Brennan, 511 U.S. 825, 837 (1994). “‘Deliberate indifference’ has both subjective and 5 objective components.” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013). 6 A prisoner must show that “the official [knew] of and disregard[ed] an excessive risk to inmate 7 ... safety; the official must both be aware of facts from which the inference could be drawn that 8 a substantial risk of serious harm exists, and [the official] must also draw the inference.” 9 Farmer, 511 U.S. at 837. “Liability may follow only if a prison official ‘knows that inmates 10 face a substantial risk of serious harm and disregards that risk by failing to take reasonable 11 measures to abate it.’” Labatad, 714 F.3d at 1160 (quoting Farmer, 511 U.S. at 847). 12 Plaintiff alleges that on July 8, 2018, Plaintiff stated to defendant Gomez that he felt 13 unsafe on Facility D-Yard. While Plaintiff spoke to defendant Gomez about this information, 14 he was approached by an inmate who intervened in speaking to defendant Gomez. This inmate 15 affirmed the factual claims, saying to defendant Gomez “what will happen to Plaintiff if 16 Plaintiff stayed on the yard any longer due to problems that could result to violent behavior 17 against Plaintiff.” Defendant Gomez did not act to protect Plaintiff, and the next day Plaintiff 18 was attacked by the inmate who approached him, as well as two others. 19 Liberally construing the allegations in Plaintiff’s complaint, the Court finds that 20 Plaintiff’s failure to protect claim against defendant Gomez should proceed past screening. 21 The Court also finds that Plaintiff has failed to state a failure to protect claim against 22 any other defendant. As to defendant Huckleberry, there are no factual allegations suggesting 23 that he personally participated in the alleged deprivation(s), that he instituted a policy that 24 caused the deprivation(s), that he knew of the alleged deprivation(s) but failed to prevent them, 25 or that his failure to train or supervise his subordinates led to the alleged deprivation(s). 26 Plaintiff does allege that defendant Huckleberry ordered defendant Gomez to escort 27 Plaintiff to a medical holding cell and witnessed defendant Gomez use force against him. 28 However, there are no allegations suggesting that defendant Huckleberry knew there was a risk 1 that defendant Gomez would assault Plaintiff or that defendant Huckleberry had an opportunity 2 to protect Plaintiff from the alleged assault. 3 Accordingly, Plaintiff has failed to state a failure to protect claim against defendant 4 Huckleberry. 5 As to defendant Soto, his involvement in the failure to protect incident(s) is unclear. 6 There are no allegations suggesting that defendant Soto knew Plaintiff was at risk of being 7 attacked by inmates or by defendant Gomez, that defendant Soto was responsible for training or 8 supervising defendant Gomez, or that defendant Soto was responsible for implementing a 9 policy that led to the constitutional violation. Accordingly, Plaintiff has failed to state a failure 10 to protect claim against defendant Soto. 11 C. Excessive Force in Violation of the Eighth Amendment 12 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 13 restraints on prison officials, who may not … use excessive physical force against prisoners.” 14 Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused of 15 using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry 16 is … whether force was applied in a good-faith effort to maintain or restore discipline, or 17 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 18 When determining whether the force was excessive, the Court looks to the “extent of 19 injury suffered by an inmate…, the need for application of force, the relationship between that 20 need and the amount of force used, the threat ‘reasonably perceived by the responsible 21 officials,’ and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 22 U.S. at 7 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). While de minimis uses of 23 physical force generally do not implicate the Eighth Amendment, significant injury need not be 24 evident in the context of an excessive force claim, because “[w]hen prison officials maliciously 25 and sadistically use force to cause harm, contemporary standards of decency always are 26 violated.” Hudson, 503 U.S. at 9. 27 In his Second Amended Complaint, Plaintiff only appears to be bringing an excessive 28 force claim based on the force defendant Gomez allegedly used when escorting Plaintiff to a 1 medical holding cell. According to Plaintiff, when defendant Gomez was escorting him, 2 defendant Gomez slammed him on his face, causing the left side of his face to begin to bleed. 3 Plaintiff was handcuffed when this occurred. Plaintiff never posed a threat, and there was no 4 justification for this action. Plaintiff was left on the ground “beyond any standard of 5 decency….” 6 Liberally construing the allegations in Plaintiff’s complaint, the Court finds that 7 Plaintiff’s excessive force claim against defendant Gomez should proceed past screening. 8 The Court also finds that Plaintiff has failed to state an excessive force claim against 9 any other defendant. Defendant Huckleberry’s only involvement appears to be ordering 10 defendant Gomez to escort Plaintiff, witnessing the alleged attack, and ordering defendant Soto 11 to complete the escort. Defendant Soto’s only involvement appears to be taking over the escort 12 after defendant Gomez allegedly attacked Plaintiff. There are no factual allegations suggesting 13 that either defendant Huckleberry or defendant Soto personally participated in the alleged 14 attack, instituted a policy that led to the attack occurring, or knew that the attack was going to 15 occur but failed to prevent it. There are also no factual allegations suggesting that their failure 16 to train or supervise their subordinates led to the alleged attack. 17 D. Retaliation in Violation of the First Amendment 18 There are five basic elements to a First Amendment retaliation claim: “(1) An assertion 19 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s 20 protected conduct, and that such action (4) chilled the inmate’s exercise of his First 21 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 22 goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 23 Plaintiff appears to allege that defendant Gomez caused/allowed Plaintiff to be attacked 24 by inmates and attacked Plaintiff in retaliation for Plaintiff telling defendant Gomez that he did 25 not feel safe. However, these are conclusory allegations. Save for the closeness in time, there 26 are no factual allegations suggesting that defendant Gomez allowed Plaintiff to be attacked or 27 attacked Plaintiff because Plaintiff told defendant Gomez that he did not feel safe. Thus, 28 Plaintiff has failed to state a retaliation claim against defendant Gomez. 1 There are also no allegations suggesting that any other defendant took an adverse action 2 against Plaintiff because Plaintiff engaged in protected conduct. Accordingly, Plaintiff has 3 failed to state a retaliation claim against any defendant. 4 E. Deliberate Indifference to Serious Medical Needs in Violation of the 5 Eighth Amendment 6 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 7 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 8 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires 9 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 10 prisoner’s condition could result in further significant injury or the unnecessary and wanton 11 infliction of pain,’” and (2) that “the defendant’s response to the need was deliberately 12 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)) 13 (citation and internal quotations marks omitted), overruled on other grounds by WMX 14 Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 15 Deliberate indifference is established only where the defendant subjectively “knows of 16 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 17 1051, 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 18 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 19 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” 20 Jett, 439 F.3d at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an 21 unjustifiably high risk of harm that is either known or so obvious that it should be known”) is 22 insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 23 836-37 & n.5 (1994) (citations omitted). 24 A difference of opinion between an inmate and prison medical personnel—or between 25 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 26 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 27 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 28 physician has been negligent in diagnosing or treating a medical condition does not state a valid 1 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 2 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 3 106. To establish a difference of opinion rising to the level of deliberate indifference, a 4 “plaintiff must show that the course of treatment the doctors chose was medically unacceptable 5 under the circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 6 It is not clear if Plaintiff is attempting to assert a claim for deliberate indifference to his 7 serious medical needs. To the extent that he is, Plaintiff has failed to state a claim because he 8 has not sufficiently alleged that any defendant knew that he had a serious medical need and 9 disregarded that need. 10 V. CONCLUSION, RECOMMENDATIONS, AND ORDER 11 The Court has screened Plaintiff’s Second Amended Complaint and finds that 12 Plaintiff’s Eighth Amendment claims against defendant Gomez for failure to protect and 13 excessive force should proceed past screening. The Court also finds that all other claims and 14 defendants should be dismissed. 15 The Court previously explained to Plaintiff the deficiencies in his complaint, provided 16 Plaintiff with relevant legal standards, and provided Plaintiff two opportunities to amend his 17 complaint. As Plaintiff filed his Second Amended Complaint with the benefit of the 18 information provided by the Court, it appears that further leave to amend would be futile. 19 Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that: 20 1. This case proceed on Plaintiff’s Eighth Amendment claims against defendant 21 Gomez for failure to protect and excessive force; and 22 2. All other claims and defendants be dismissed for failure to state a claim upon which 23 relief may be granted. 24 These findings and recommendations will be submitted to the United States district 25 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 26 twenty-one (21) days after being served with these findings and recommendations, Plaintiff 27 may file written objections with the Court. The document should be captioned “Objections to 28 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 1 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 2 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 3 || (9th Cir. 1991)). 4 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 5 || judge to this case. 6 7 IT IS SO ORDERED. 5 || Dated: _ January 19, 2021 [spe ey —— 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12