1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, No. 2:17-cv-2355 KJM AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 M. THOMAS, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding with counsel in this civil rights action brought 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before the court is defendant’s motion for summary judgment. ECF No. 25. Plaintiff has 21 filed an opposition (ECF No. 30), and defendant has filed a reply (ECF No. 31). For the reasons 22 stated below, the undersigned will recommend that the motion for summary judgment be denied. 23 I. FIRST AMENDED COMPLAINT 24 The First Amended Complaint presents three claims arising from events that occurred in 25 February 2017 while plaintiff was a patient at California Health Care Facility (“CHCF”): (1) 26 excessive force in violation of the Eighth Amendment; (2) negligence; and (3) battery. ECF No. 27 12 at 1-2, 6-10. Plaintiff alleges that on February 16, 2017, during a conversation he was having 28 with defendant, a correctional officer at CHCF, defendant sprayed pepper spray in his face and hit 1 him in the head twice with the spray canister, drawing blood and causing him to pass out. Id. at 2 4-5. The incident left plaintiff with head, neck, and back pain, as well as cognitive deficits. Id. at 3 5. 4 II. MOTION FOR SUMMARY JUDGMENT 5 A. Defendant’s Motion 6 Defendant seeks summary judgment on the ground that plaintiff failed to exhaust his 7 administrative remedies prior to initiating this lawsuit. ECF No. 25-1. Specifically, defendant 8 contends that of three administrative appeals that plaintiff filed at CHCF, the first was cancelled 9 as untimely; the second was cancelled at the final level of review; and the third was denied at the 10 final level of review only after the instant suit was pending. Id. at 1-2. 11 B. Plaintiff’s Opposition 12 Plaintiff contends that administrative remedies were rendered effectively unavailable to 13 him. ECF No. 30. He claims that prison officials mishandled his appeals and obstructed the 14 appeals process, preventing him from exhausting his remedies. Id. at 3, 8-10, 13. 15 C. Defendant’s Reply 16 Defendant denies that there was any obstruction or misconduct, and argues that the fact 17 plaintiff was able to move forward with the administrative appeals process at the time that he 18 filed the original complaint establishes that the appeals process was available. ECF No. 31 at 1-2. 19 Because plaintiff filed suit before completing the exhaustion process, defendant urges that 20 summary judgment be granted. Id. at 2-3, 5-6, 8-9. 21 III. GOVERNING LEGAL STANDARDS 22 A. Summary Judgment 23 In general, summary judgment is appropriate when the moving party “shows that there is 24 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 25 law.” Fed. R. Civ. P. 56(a). The moving party “initially bears the burden of proving the absence 26 of a genuine issue of material fact.” In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 27 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party 28 meets its initial responsibility, the burden then shifts to the opposing party to establish that a 1 genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. 2 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To meet this burden, the opposing party is 3 required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery 4 material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); 5 Matsushita, 475 U.S. at 586 n.11. 6 The Ninth Circuit has laid out the specific analytical approach to be taken by district 7 courts in assessing the merits of a motion for summary judgment based on the alleged failure of a 8 prisoner to exhaust his administrative remedies: 9 [T]he defendant’s burden is to prove that there was an available administrative remedy, and that the prisoner did not exhaust that 10 available remedy.... Once the defendant has carried that burden, the prisoner has the burden of production. That is, the burden shifts to 11 the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally 12 available administrative remedies effectively unavailable to him. However, ... the ultimate burden of proof remains with the defendant. 13 14 Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (citation and internal quotations omitted). 15 B. The Exhaustion Requirement 16 1. The Prison Litigation Reform Act 17 Because plaintiff is a prisoner challenging the conditions of his confinement, his claims 18 are subject to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The PLRA 19 requires prisoners to exhaust available administrative remedies before bringing an action 20 challenging prison conditions under Section 1983. 42 U.S.C. § 1997e(a). “The PLRA mandates 21 that inmates exhaust all available administrative remedies before filing ‘any suit challenging 22 prison conditions,’ including, but not limited to, suits under [Section] 1983.” Albino, 747 F.3d at 23 1171 (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). “[F]ailure to exhaust is an affirmative 24 defense under the PLRA.” Jones v. Bock, 549 U.S. 199, 216 (2007). It is the defendant’s burden 25 “to prove that there was an available administrative remedy, and that the prisoner did not exhaust 26 that available remedy.” Albino, 747 F.3d at 1172 (citing Hilao v. Estate of Marcos, 103 F.3d 767, 27 778 n.5 (9th Cir. 1996)). The burden then “shifts to the prisoner to come forward with evidence 28 //// 1 showing that there is something in his particular case that made the existing and generally 2 available administrative remedies unavailable to him.” Id. 3 Regardless of the relief sought, “[t]he obligation to exhaust ‘available’ remedies persists 4 as long as some remedy remains ‘available.’ Once that is no longer the case, then there are no 5 ‘remedies ... available,’ and the prisoner need not further pursue the grievance.” Brown v. Valoff, 6 422 F.3d 926, 935 (9th Cir. 2005) (emphasis and alteration in original) (citing Booth v. Churner, 7 532 U.S. 731 (2001)). 8 “Under § 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]’ of 9 administrative remedies: An inmate ...
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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 DARRYL DUNSMORE, No. 2:17-cv-2355 KJM AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 M. THOMAS, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding with counsel in this civil rights action brought 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before the court is defendant’s motion for summary judgment. ECF No. 25. Plaintiff has 21 filed an opposition (ECF No. 30), and defendant has filed a reply (ECF No. 31). For the reasons 22 stated below, the undersigned will recommend that the motion for summary judgment be denied. 23 I. FIRST AMENDED COMPLAINT 24 The First Amended Complaint presents three claims arising from events that occurred in 25 February 2017 while plaintiff was a patient at California Health Care Facility (“CHCF”): (1) 26 excessive force in violation of the Eighth Amendment; (2) negligence; and (3) battery. ECF No. 27 12 at 1-2, 6-10. Plaintiff alleges that on February 16, 2017, during a conversation he was having 28 with defendant, a correctional officer at CHCF, defendant sprayed pepper spray in his face and hit 1 him in the head twice with the spray canister, drawing blood and causing him to pass out. Id. at 2 4-5. The incident left plaintiff with head, neck, and back pain, as well as cognitive deficits. Id. at 3 5. 4 II. MOTION FOR SUMMARY JUDGMENT 5 A. Defendant’s Motion 6 Defendant seeks summary judgment on the ground that plaintiff failed to exhaust his 7 administrative remedies prior to initiating this lawsuit. ECF No. 25-1. Specifically, defendant 8 contends that of three administrative appeals that plaintiff filed at CHCF, the first was cancelled 9 as untimely; the second was cancelled at the final level of review; and the third was denied at the 10 final level of review only after the instant suit was pending. Id. at 1-2. 11 B. Plaintiff’s Opposition 12 Plaintiff contends that administrative remedies were rendered effectively unavailable to 13 him. ECF No. 30. He claims that prison officials mishandled his appeals and obstructed the 14 appeals process, preventing him from exhausting his remedies. Id. at 3, 8-10, 13. 15 C. Defendant’s Reply 16 Defendant denies that there was any obstruction or misconduct, and argues that the fact 17 plaintiff was able to move forward with the administrative appeals process at the time that he 18 filed the original complaint establishes that the appeals process was available. ECF No. 31 at 1-2. 19 Because plaintiff filed suit before completing the exhaustion process, defendant urges that 20 summary judgment be granted. Id. at 2-3, 5-6, 8-9. 21 III. GOVERNING LEGAL STANDARDS 22 A. Summary Judgment 23 In general, summary judgment is appropriate when the moving party “shows that there is 24 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 25 law.” Fed. R. Civ. P. 56(a). The moving party “initially bears the burden of proving the absence 26 of a genuine issue of material fact.” In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 27 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party 28 meets its initial responsibility, the burden then shifts to the opposing party to establish that a 1 genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. 2 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To meet this burden, the opposing party is 3 required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery 4 material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); 5 Matsushita, 475 U.S. at 586 n.11. 6 The Ninth Circuit has laid out the specific analytical approach to be taken by district 7 courts in assessing the merits of a motion for summary judgment based on the alleged failure of a 8 prisoner to exhaust his administrative remedies: 9 [T]he defendant’s burden is to prove that there was an available administrative remedy, and that the prisoner did not exhaust that 10 available remedy.... Once the defendant has carried that burden, the prisoner has the burden of production. That is, the burden shifts to 11 the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally 12 available administrative remedies effectively unavailable to him. However, ... the ultimate burden of proof remains with the defendant. 13 14 Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (citation and internal quotations omitted). 15 B. The Exhaustion Requirement 16 1. The Prison Litigation Reform Act 17 Because plaintiff is a prisoner challenging the conditions of his confinement, his claims 18 are subject to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The PLRA 19 requires prisoners to exhaust available administrative remedies before bringing an action 20 challenging prison conditions under Section 1983. 42 U.S.C. § 1997e(a). “The PLRA mandates 21 that inmates exhaust all available administrative remedies before filing ‘any suit challenging 22 prison conditions,’ including, but not limited to, suits under [Section] 1983.” Albino, 747 F.3d at 23 1171 (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). “[F]ailure to exhaust is an affirmative 24 defense under the PLRA.” Jones v. Bock, 549 U.S. 199, 216 (2007). It is the defendant’s burden 25 “to prove that there was an available administrative remedy, and that the prisoner did not exhaust 26 that available remedy.” Albino, 747 F.3d at 1172 (citing Hilao v. Estate of Marcos, 103 F.3d 767, 27 778 n.5 (9th Cir. 1996)). The burden then “shifts to the prisoner to come forward with evidence 28 //// 1 showing that there is something in his particular case that made the existing and generally 2 available administrative remedies unavailable to him.” Id. 3 Regardless of the relief sought, “[t]he obligation to exhaust ‘available’ remedies persists 4 as long as some remedy remains ‘available.’ Once that is no longer the case, then there are no 5 ‘remedies ... available,’ and the prisoner need not further pursue the grievance.” Brown v. Valoff, 6 422 F.3d 926, 935 (9th Cir. 2005) (emphasis and alteration in original) (citing Booth v. Churner, 7 532 U.S. 731 (2001)). 8 “Under § 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]’ of 9 administrative remedies: An inmate ... must exhaust available remedies, but need not exhaust 10 unavailable ones.” Ross v. Blake, 578 U.S. 632, 642 (2016) (brackets in original). In Ross, the 11 Supreme Court identified three circumstances in which administrative remedies may be 12 considered effectively unavailable: (1) where an administrative remedy “operates as a simple 13 dead end” in which officers are “unable or consistently unwilling to provide any relief to 14 aggrieved inmates;” (2) where an administrative scheme is “incapable of use” because “no 15 ordinary prisoner can discern or navigate it;” and (3) where “prison administrators thwart inmates 16 from taking advantage of a grievance process through machination, misrepresentation, or 17 intimidation.” Ross, 578 U.S. at 643-44. “[A]side from [the unavailability] exception, the 18 PLRA’s text suggests no limits on an inmate’s obligation to exhaust – irrespective of any ‘special 19 circumstances.’” Id. at 639. “[M]andatory exhaustion statutes like the PLRA establish 20 mandatory exhaustion regimes, foreclosing judicial discretion.” Id. at 639. 21 2. California Regulations Governing Exhaustion of Administrative Remedies 22 “The California prison system's requirements ‘define the boundaries of proper 23 exhaustion.’ ” Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (quoting Jones, 549 U.S. 24 at 218). In order to exhaust, the prisoner is required to complete the administrative review 25 process in accordance with all applicable procedural rules. Woodford, 548 U.S. at 90. At the 26 time plaintiff filed the relevant grievances, the appeal process was initiated by an inmate’ filing a 27 “Form 602” the “Inmate/Parolee Appeal Form,” “to describe the specific issue under appeal and 28 //// 1 the relief requested.” Id., § 3084.2(a).1 “The California prison grievance system has three levels 2 of review: an inmate exhausts administrative remedies by obtaining a decision at each level.” 3 Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) 4 (2011); Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010)). 5 IV. UNDISPUTED MATERIAL FACTS 6 For the purposes of summary judgment, the following material facts are either undisputed 7 as stated by the parties, or they are undisputed as determined by the court. In light of the Ninth 8 Circuit’s decision in Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022), which is discussed below, 9 the universe of material facts has significantly narrowed since the parties’ submissions of the 10 factual statements and supporting evidence. Only those facts material under Saddozai need be set 11 forth here. 12 The California Health Care Facility (CHCF) had an administrative appeals process in 13 place on February 16, 2017, the date of the incident in question, and thereafter. 14 Plaintiff, with the assistance of counsel, attempted to avail himself of the 15 administrative appeals process at CHCF after the incident with defendant. 16 Appeal CHCF-C-17-01519 (“Appeal 1519”) presented the claim that defendant had 17 used excessive force against plaintiff on February 16, 2017.2 18 On July 14, 2017, Appeal 1519 was cancelled on the grounds that “the issue under 19 appeal had been resolved at a previous level.”3 20 1 Cal. Code Regs. tit. 15, § 3084.2 et seq. have been repealed. In January 2022, regulations that 21 generally parallel those found in the relevant repealed regulations were codified. See generally Cal. Code Regs. tit. 15, § 3480(a) (stating implementation date, definitions of similar regulations). 22 However, because the repealed regulations were applicable at the time plaintiff filed the 23 complaint and defendant filed the motion to dismiss, the court cites herein to the repealed regulations that are referenced by the parties in their pleadings. 24 2 See ECF No. 25-3 (Moseley declaration identifying Appeal 1519 as one that “contained allegations about matters pertaining to the use of excessive force by Defendant Thomas on 25 February 16, 2017”); ECF No. 25-4 at 3 (DeJesus declaration stating Appeal 1519 requested an 26 investigation into use of force, which was granted); see also ECF No. 30-2 at 3 (plaintiff’s declaration stating appeal eventually logged as Appeal 1519 was a staff complaint that had been 27 submitted on a 602 form); ECF No. 30-4 at 81 (plaintiff’s request to have investigation into use of deadly force stemming from the February 16, 2017 incident). 28 3 ECF No. 25-2 at 3-4 (DUF at 17); ECF No. 30-4 at 76 (OOA letter provided by plaintiff). 1 Appeal 1519 was resubmitted and reached the third level of review by the Office of 2 the Appeals (“OOA”) on or before October 20, 2017.4 3 Appeal 1519 was cancelled on December 11, 2017, for exceeding time constraints to 4 submit the appeal.5 5 Plaintiff contested the cancellation of Appeal 1519 to the OOA on or around 6 December 27, 2017.6 7 The December 2017 appeal was denominated as Appeal OOA 17-06745 and 8 1716176.7 9 On March 8, 2018, on third level review in Case No. 1716176 / OOA 17-06745, the 10 OOA denied plaintiff’s appeal of the cancellation of Appeal 1519.8 11 The Third Level Appeal Decision dated March 8, 2018, stated: “This decision 12 exhausts the administrative remedy available to appellant within CDCR.”9 13 V. DISCUSSION 14 The parties dispute whether the institution’s handling of plaintiff’s grievances between 15 February 17, 2017 and November 9, 2017, when the initial complaint was filed, rendered the 16 administrative process effectively unavailable to plaintiff during that period. That issue need not 17 be reached. For the reasons that follow, the court finds that defendant has not satisfied his initial 18 burden of demonstrating non-exhaustion. See Albino, F.3d at 1172. Pursuant to Saddozai v. 19 Davis, supra, the court finds that because plaintiff’s claim was exhausted at the time the operative 20 4 See ECF No. 25-2 at 4 (DUF 18); ECF No. 25-3 at 68-69 (March 8, 2018, third level appeal 21 decision provided by defendant); ECF No. 30-4 at 101-102 (same decision provided by plaintiff). 5 See ECF No. 25-3 at 3 (Moseley declaration); 41 (OOA cancellation letter dated December 11, 22 2017, provided by defendant); ECF No. 30-4 at 105 (same letter provided by plaintiff). 23 6 See ECF No. 25-3 at 3 (Moseley declaration); 70 (plaintiff’s 602 appeal stamped December 27, 2017). 24 7 See id. 8 See ECF No. 25-3 at 3 (Moseley declaration); 68-69 (March 8, 2018, third level appeal decision 25 provided by defendant); see also ECF No. 30-4 at 101-102 (March 8, 2018, third level appeal 26 decision provided by plaintiff). Defendant asserts, and plaintiff does not dispute, that that the third level of review, Appeal 1519, was named and identified as Appeal 17-06745 / 1716176. See 27 generally ECF No. 25-2 at 3-4 (DUF 17-19); ECF No. 30-1 at 9 (plaintiff’s response to DUF 17- 19). 28 9 ECF No. 30-4 at 102. 1 first amended complaint was filed, the non-exhaustion defense necessarily fails. 2 A. Plaintiff Exhausted His Administrative Remedies by Appealing the Cancellation 3 of Appeal 1519, and Pursuing the Appeal of Cancellation to the Third Level 4 To exhaust, an inmate must “use all the steps the prison holds out, enabling the prison to 5 reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009); see also 6 Brown, 422 F.3d at 935 (the obligation to exhaust available remedies persists as long as some 7 remedy remains available). Because exhaustion requires compliance with procedural 8 requirements, Woodford, 548 U.S. at 90, the initial rejection of an appeal on procedural grounds 9 must itself be appealed to the highest level in order to exhaust. Accordingly, the exhaustion of an 10 appeal of cancellation (or of other procedural rejection of a grievance) serves to exhaust the 11 underlying claim. See Payne v. Baser, No. 2:20-cv-0553 TLN KJN P, 2021 WL 1238313 at *8, 12 2021 U.S./ Dist. LEXIS 65166 at *21 (E.D. Cal. Apr. 2, 2021) (“[I]n order to exhaust 13 administrative remedies, plaintiff was required to appeal the cancellation decision regarding 14 grievance.”); Foster v. Baker, No. 1:18-cv-1511 DAD SAB P, 2020 WL 5658238 at *5 (E.D. Cal. 15 Sept. 23, 2020) (“Because CDCR allows the inmate to appeal the rejection and/or cancellation 16 decisions, in order to exhaust, Plaintiff would have to establish that he appealed the 17 cancellation.”); see also, Wilson v. Zubiate, 718 F. App’x 479, 482 (9th Cir. 2017) (because 18 appeal of cancellation left open possibility of some relief, procedure did not operate as “dead 19 end”); Cortinas v. Portillo, 754 F. App’x 525, 527 (9th Cir. 2018). 20 Plaintiff’s appeal of the cancellation of his excessive force grievance was decided at the 21 Third Level of review on March 8, 2018, exhausting his administrative remedies. 22 B. The Claim Was Exhausted Prior to Filing of the Operative Amended Complaint 23 This lawsuit was commenced with the filing of the initial complaint on November 9, 24 2017, ECF No. 1, before plaintiff’s administrative remedies were exhausted. The operative 25 complaint is the First Amended Complaint, which was filed on April 22, 2020. ECF No. 12. 26 It is elementary that “an amended complaint supersedes the original, the latter being 27 treated thereafter as non-existent.” Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 28 (9th Cir. 2015) (citations omitted). Where an amended pleading has been filed in a prisoner case, 1 the Ninth Circuit accordingly has treated its filing date as the relevant date for purposes of PLRA 2 exhaustion analysis. First, in Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010), the Court of 3 Appeals held that newly-exhausted claims could be added by amendment in a pending case. 4 Next, in Jackson v. Fong, 870 F.3d 928 (9th Cir. 2017), the court held that an amended complaint 5 filed after plaintiff’s release from custody was no longer subject to the exhaustion requirement at 6 all, because at the time of filing plaintiff was no longer a prisoner. Id. at 934. Most recently, in 7 Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022), on facts closely analogous to those presented 8 here, the court held that initial non-exhaustion could be cured by amendment following 9 exhaustion. 10 In Saddozai, as in this case, the plaintiff had submitted grievances regarding a use of force 11 incident that were rejected for procedural reasons. While continuing his attempt to navigate the 12 procedural hurdles of the administrative appeals process, but before completing that process, he 13 filed a lawsuit. The administrative process was eventually completed approximately four and a 14 half months after the initial complaint was filed. Plaintiff subsequently amended his complaint 15 twice, with leave of court. Defendants moved to dismiss the third amended complaint on grounds 16 including failure to exhaust the excessive force claim prior to commencing suit, and the district 17 court granted the motion. The Ninth Circuit reversed. Calling it “a simple case,” 35 F.4th at 708, 18 the court held squarely that the PLRA’s exhaustion requirements apply based on the filing date of 19 the operative complaint. The court expressly recognized that the filing of an amended pleading 20 can cure initial non-exhaustion of a claim. Id. at 709. Saddozai rejected the theory, forwarded by 21 defendant here, that the date of the initial complaint is controlling as to claims that had been 22 presented in the initial complaint. After Saddozai it is clear that inmate plaintiffs may not only 23 seek to add newly-exhausted claims by amendment as permitted under Rhodes, they may also by 24 post-exhaustion amendment defeat the assertion of the “non-jurisdictional affirmative defense” of 25 non-exhaustion. Id. 26 Because plaintiff’s excessive force claim was exhausted on March 8, 2018, prior to the 27 filing of the amended complaint on April 22, 2020, defendant’s non-exhaustion defense cannot 28 support summary judgment. 1 CONCLUSION 2 For the reasons explained above, IT IS HEREBY RECOMMENDED that defendant’s 3 || motion for summary judgment (ECF No. 25) be DENIED. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 6 || after being served with these findings and recommendations, any party may file written 7 || objections with the court and serve a copy on all parties. Such a document should be captioned 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 9 || objections shall be served and filed within fourteen days after service of the objections. The 10 || parties are advised that failure to file objections within the specified time may waive the right to 11 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 12 | DATED: August 10, 2023 . . 13 Bettie Clare 14 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28