(PC) Frazier v. Matteson

• Court: District Court, E.D. California
• Decided: December 16, 2019
• Docket: 1:19-cv-00188
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SEMAJ LEON FRAZIER, Case No. 1:19-cv-00188-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 DAREN MATTESON, et al., FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF 15 Defendants. ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM FOR RELIEF 16 (ECF No. 27) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Semaj Leon Frazier is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action pursuant to 42 U.S.C. § 1983. 21 Currently before the Court for screening is Plaintiff’s seventh amended complaint, filed on 22 October 17, 2019. (ECF No. 27.) 23 I. Introduction 24 Plaintiff commenced this action by filing his original complaint on February 11, 2019. 25 (ECF No. 1.) On July 18, 2019, before his original complaint was screened, Plaintiff filed a first 26 amended complaint. (ECF No. 10.) 27 On July 29, 2019, Plaintiff lodged a second amended complaint. (ECF No. 13.) 28 On August 1, 2019, Plaintiff filed a motion to amend his complaint and lodged a third 1 amended complaint. (ECF Nos. 13, 14.) 2 On August 29, 2019, Plaintiff filed a second motion to amend his complaint and lodged 3 another third amended complaint. (ECF No. 17, 18.) 4 On September 9, 2019, Plaintiff filed a third motion to amend his complaint. (ECF No. 5 19.) On September 20, 2019, Plaintiff filed another motion to amend and lodged a fifth amended 6 complaint. (ECF No. 20, 21.) 7 On September 24, 2019, the Court issued an order denying as moot three of Plaintiff’s 8 motions to amend his complaint, granting one of Plaintiff’s motions to amend his complaint, and 9 directing the Clerk of the Court to file the lodged third amended complaint as the Sixth 10 Amendment Complaint. (ECF No. 22.) Additionally, the Court screened Plaintiff’s sixth 11 amended complaint, determined that Plaintiff’s sixth amended complaint failed to state any 12 cognizable claims for relief, and directed Plaintiff to file either a seventh amended complaint, or a 13 notice of voluntary dismissal, within 30 days from the date of service of the order. (Id.) 14 On October 17, 2019, Plaintiff filed his seventh amended complaint. (ECF No. 27.) 15 II. Screening Requirement and Standard 16 The Court is required to screen complaints brought by prisoners seeking relief against a 17 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 18 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 19 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 20 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 21 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 22 A complaint must contain “a short and plain statement of the claim showing that the 23 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 24 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 25 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 26 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 27 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 28 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 1 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 2 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 3 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 4 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 5 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 6 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 7 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 8 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 9 at 969. 10 III. Summary of Plaintiff’s Seventh Amended Complaint 11 Plaintiff is currently housed at California Substance Abuse Treatment Facility and State 12 Prison, Corcoran. Plaintiff names the following Defendants: (1) Hanford Police Department 13 Officer Daren Matteson; (2) Hanford Police Department Officer Jean Michel Bidegaray; (3) 14 Patricia Driscol; (4) Mindy Crow; (5) Kings County Superior Court Judge Michael J. Reinhart; 15 (6) District Attorney Ty Ford; (7) John P. Dwyer; (8) Dawn Bickner; and (9) Retired Kings 16 County Superior Court Judge Harry Papadakis. 17 Plaintiff alleges as follows:

18 Matteson acted with willful negligence when he deprived Frazier the right to refuse to answer questions. After Frazier complied with the self-incrimination 19 privilege and requested to speak to a[n] attorney. Matteson lied and stated in his 20 report no more questioning was done. Frazier arrived at Kings County Jail and Matteson asked Frazier if he could take pictures of his body. Those pictures were 21 used in Fraziers speedy trial. Matteson deprived Frazier [of] the right to be left alone when he tampered with vaginal swabs and submitted them to testing with his 22 initials on them without authority of law. That resulted in unequal treatment from intentional discrimination. Officer Bidegaray acted with willful negligence when 23 he deprived Frazier of liberty, freedom of locomotion, and fundamental fairness 24 when he lied under oath with first hand knowledge of the victims first story. Then lied and said it was detective Matteson report that he had, and a unjustified 25 detention of Frazier when he willful detained Frazier without probable cause. That resulted in unequal treatment from intentional discrimination. Driscol acted with 26 willful negligence when she deprived Frazier fundamental fairness when she lied about pictures that she did not take of the victim and submitted a incomplete 27 S.A.R.T. kit without a blood sample which was her procedure to do, that resulted 28 in unequal treatment from intentional discrimination. Ford acted with reckless 1 negligence to deprive Frazier fundamental fairness, life, and liberty, and a fair hearing when he lied to the jury that Matteson was the first officer to interview the 2 victim and said if the stories changed they would all know about it. Ford conspired with Reinhart to cover up the first story by the victim. Ford recklessly 3 used inadmissible pictures and illegal DNA evidence by the police, that resulted in 4 unequal treatment from intentional discrimination. Crow acted with willful negligence and tested illegal DNA evidence from the police and lied and she did 5 not review any reports to make sure that the DNA evidence was collected properly to [avoid] contamination. Prior to that Crow had already stated that she did go 6 threw her procedure to make sure the DNA evidence was not contaminated. That 7 resulted in the unequal treatment from intentional discrimination. 8 (ECF No. 27, at 4-6.) Plaintiff further alleges:

9 Reinhart acted with willful negligence when he deprived Frazier effective assistance of counsel, fundamental fairness, life, and liberty when he conspired 10 with Ford and Bidegaray to cover up the victim first story. Reinhart introduced 11 Bidegaray policy report that Bidegaray had with him. Reinhart asked about the detailed statements in Bidegaray report of the victim story. Bidegaray said he 12 didn’t get into a detailed interview. Reinhart said it’s written in your report. Ford objected and held a discussion at the bench. Reinhart came back and said he was 13 maybe confused and apologized to Bidegaray. Reinhart said but that’s not your report, this is who’s report. Bidegaray lied and said Detective Matteson. Reinhart 14 lied about the consensual sex theory to obviate the DNA report. Reinhart lied and 15 said he gave Frazier all the police reports with the intent to further conspire with Ford to prevent Frazier from discovering the victim changed her story. That 16 resulted in the unequal treatment from intentional discrimination. Dwyer acted with willful negligence when he deprived Frazier fundamental fairness, effective 17 assistance of counsel, life and liberty when he conspired with Reinhart after they held a discussion over the phone on June 12, 2012 about the jury selection 18 proceeding in regard to augmenting the record and about Reinhart decision not to 19 consult with or appoint a DNA expert witness. Then lied to Frazier in typed letters that Frazier suffered no prejudice from the Miranda violation because the police 20 interview was not introduced and that there was nothing wrong with the prosecutor DNA evidence and it was strong evidence Frazier had sex with the victim, and it’s 21 not a appealable issue because it’s not in the record. That resulted in the unequal treatment from intentional discrimination. Bickner acted with willful negligence 22 when she deprived Frazier of fundamental fairness by artifice when she did not 23 have Officer Bidegaray name labled in the witnesses chronological index with reckless indifference to her procedure to cover up the conspiracy by Reinhart, 24 Ford, and Bidegaray that resulted in the unequal treatment from intentional discrimination. Papadakis acted with willful negligence when he deprived Frazier 25 fundamental fairness, life, liberty and a fair hearing when he allowed improper 26 evidence to be introduced, and instructed the jury improperly with a reckless intent that resulted in the unequal treatment from intentional discrimination. 27 28 (Id. at 5, 7-8.) Plaintiff seeks compensatory damages in an amount to be determined, punitive 1 damages in the amount of $1,000,000,000.00, injunctive relief, mandamus relief, and any further 2 relief that the Court deems just and proper. (Id. at 7.) 3 IV. Discussion 4 A. “Person” Within the Meaning of § 1983 5 “Under Section 1983, a ‘person’ acting under color of law may be sued for violations of 6 the U.S. Constitution or federal laws. The term ‘persons’ under section 1983 encompasses state 7 and local officials sued in their individual capacities, private individuals and entities which acted 8 under color of state law, and local governmental entities.” Garcia v. City of Merced, 637 F. Supp. 9 2d 731, 760 (E.D. Cal. 2008) (internal citation omitted). However, it is well established that 10 attorneys for criminal defendants, whether public defenders, court-appointed, or retained, do not 11 act under color of state law based solely upon their job or position. Polk Cnty. v. Dodson, 454 12 U.S. 312, 318 (1981) (“[A] lawyer representing a client is not, by virtue of being an officer of the 13 court, a state actor ‘under color of state law’ within the meaning of § 1983.”); Szijarto v. 14 Legeman, 466 F.2d 864, 864 (9th Cir. 1972) (holding that a claim of ineffective assistance of a 15 retained trial attorney was not a cognizable claim under § 1983 because “an attorney, whether 16 retained or appointed, does not act ‘under color of’ state law.”). However, an attorney for a 17 criminal defendant may be liable as a private actor under § 1983 if the attorney “conspired or 18 entered joint action with a state actor.” Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir. 19 2010). 20 In this case, Plaintiff’s allegations against Defendant Reinhart, his trial counsel, and 21 Defendant Dwyer, his appellate counsel, generally relate to their representation of Plaintiff and 22 their performing of traditional lawyer functions. Therefore, Defendants Reinhart and Dwyer did 23 not act under color of state law when they represented Defendant at trial or on appeal. Polk 24 Cnty., 464 U.S. at 325 (a court-appointed attorney does not act under color of state law when 25 performing the traditional functions of a lawyer); see also Miranda v. Clark Cnty., 319 F.3d 465, 26 469 (9th Cir. 2003). While Plaintiff also alleges that Defendant Reinhart conspired with state 27 actors, Defendants Ford and Bidegaray, to cover up the victim’s first story, Plaintiff’s allegations 28 regarding the conspiracy between Defendants Reinhart, Bidegaray, and Ford are conclusory and 1 insufficient to state a cognizable conspiracy claim. Simmons v. Sacramento Cnty. Superior 2 Court, 318 F.3d 1156, 1161 (9th Cir. 2003). Therefore, since Plaintiff has failed to allege facts 3 demonstrating that Defendants Reinhart and Dwyer were acting “under color of state law” for § 4 1983 purposes, Plaintiff has not stated any cognizable § 1983 claim against Defendants Reinhart 5 and Dwyer. Despite being previously advised of this deficiency and given leave to amend, 6 Plaintiff has been unable to cure this deficiency. 7 B. Judicial Immunity 8 “Judges and those performing judge-like functions are absolutely immune from damage 9 liability for acts performed in their official capacities.” Ashelman v. Pope, 793 F.2d 1072, 1075 10 (9th Cir. 1986). Additionally, judicial immunity extends to preclude prospective injunctive relief 11 against a state court judge for acts or omissions made in that judge’s official capacity. 42 U.S.C. 12 § 1983 (“[I]n any action brought against a judicial officer for an act or omission taken in such 13 officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was 14 violated or declaratory relief was unavailable.”) Therefore, “judicial immunity is an immunity 15 from suit, not just from ultimate assessment of damages. Accordingly, judicial immunity is not 16 overcome by allegations of bad faith or malice[.]” Mireles v. Waco, 502 U.S. 9, 11 (1991) 17 (internal citation omitted). Instead, the law is clear that judicial immunity is overcome in only 18 two circumstances: (1) “a judge is not immune from liability for nonjudicial actions, i.e., actions 19 not taken in the judge’s judicial capacity[;]” and (2) “a judge is not immune for actions, though 20 judicial in nature, taken in the complete absence of all jurisdiction.” Id. at 12. 21 Here, Plaintiff’s seventh amended complaint asserts that Defendant Papadakis, the 22 Superior Court judge who presided over Plaintiff’s criminal trial, allowed improper evidence to 23 be introduced and improperly instructed the jury. However, the allegations against Defendant 24 Papadakis are for actions taken in his judicial capacity. See Stump v. Sparkman, 435 U.S. 349, 25 362 (discussing factors a court must consider in deciding if an act by a judge is a “judicial” act). 26 Further, Plaintiff has failed to allege any facts demonstrating that Defendant Papadakis’ actions 27 were taken in the complete absence of all jurisdiction. Therefore, Defendant Papadakis is 28 /// 1 absolutely immune from Plaintiff’s § 1983 action. Despite being previously advised of this 2 deficiency and given leave to amend, Plaintiff has been unable to cure this deficiency. 3 C. Prosecutorial Immunity 4 “Prosecutorial immunity applies to § 1983 claims. State prosecutors are absolutely 5 immune from § 1983 actions when performing functions ‘intimately associated with the judicial 6 phase of the criminal process,’ or, phrased differently, ‘when performing the traditional functions 7 of an advocate.’” Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 842 (citations omitted). This 8 immunity extends to actions during both the pre-trial and post-trial phases of a case. See Demery 9 v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984). “Prosecutorial immunity only protects … 10 defendants from section 1983 damage claims; it does not protect [prosecutors] from suits for 11 injunctive relief.” Gobel v. Maricopa Cnty., 867 F.2d 1201, 1203 n.6 (9th Cir. 1989). 12 Plaintiff’s seventh amended complaint asserts that Defendant Ford, the prosecutor in 13 Plaintiff’s criminal trial, lied to the jury, presented inadmissible pictures and illegal DNA 14 evidence at trial, and conspired with Defendant Reinhart to cover up the victim’s first story. 15 However, “a prosecutor enjoys absolute immunity from a suit alleging that he maliciously 16 initiated a prosecution, used perjured testimony at trial, or suppressed material evidence at trial.” 17 Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005). In this case, since Plaintiff seeks to 18 hold Defendant Ford liable for performing functions “‘intimately associated with the judicial 19 phase of the criminal process[,]’” Defendant Ford is absolutely immune from Plaintiff’s § 1983 20 damage claims. Despite being previously advised of this deficiency and given leave to amend, 21 Plaintiff has been unable to cure this deficiency. 22 D. Habeas Action 23 To the extent that Plaintiff is attempting to challenge the validity of his conviction and his 24 incarceration, the exclusive method for asserting that challenging is by filing a petition for writ of 25 habeas corpus. It has long been established that state prisoners cannot challenge the fact or 26 duration of their confinement in a § 1983 action, and that their sole remedy lies in habeas corpus 27 relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (“[A] prison in state custody cannot use a § 28 1983 action to challenge the fact or duration of his confinement. He must seek federal habeas 1 corpus relief (or appropriate state relief) instead.”). In this case, since the Court cannot determine 2 that Plaintiff is seeking habeas corpus relief, the Court declines to convert Plaintiff’s § 1983 3 action into a habeas petition. Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) 4 (“When the intent to bring a habeas petition is not clear, … the district court should not convert a 5 defective section 1983 claim into a habeas petition.”). 6 E. Favorable Termination Rule 7 As a general matter, prisoners may not challenge the fact or duration of their confinement 8 in a § 1983 action. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Often referred to as the 9 favorable termination rule or Heck bar, this exception to § 1983’s otherwise broad scope applies 10 whenever state prisoners “seek to invalidate the duration of their confinement – either directly 11 through an injunction compelling speedier release or indirectly through a judicial determination 12 that necessarily implies the unlawfulness of the State’s custody.” Id. at 81 (italics in original); see 13 Heck v. Humphrey, 512 U.S. 477, 481-82, 487 (1994). Thus, “a state prisoner’s § 1983 action is 14 barred (absent prior invalidation) – no matter the relief sought (damages or equitable relief), no 15 matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison 16 proceedings) – if success in that action would necessarily demonstrate the invalidity of 17 confinement or its duration.” Id. at 81-82. Further, “[t]he California Supreme Court has not 18 distinguished between the application of Heck to § 1983 claims and the application of analogous 19 California law to state-law claims.” Hooper v. County of San Diego, 629 F.3d 1127, 1134 (9th 20 Cir. 2011) (citing Yount v. City of Sacramento, 43 Cal.4th 885, 902 (2008)). Therefore, 21 Plaintiff’s conviction and sentence will bar his § 1983 and state law claims if prevailing on those 22 civil claims “would necessarily imply or demonstrate the invalidity of the earlier conviction or 23 sentence[.]” Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (internal 24 punctuation omitted). 25 Here, Plaintiff states that he is “challenging the constitutionality of the procedure(s) used 26 in reaching [his] conviction.” (ECF No. 27, at 2.) As such, Plaintiff brings the following claims 27 in his seventh amended complaint: (1) that Defendant Matteson deprived Plaintiff of the right to 28 refuse to answer questions, improperly took pictures of Plaintiff’s body, and tampered with the 1 vaginal swabs before submitting the swabs for testing; (2) that Defendant Bidegaray committed 2 perjury at Plaintiff’s trial and willfully detained Plaintiff without probable cause; (3) that 3 Defendant Driscol lied regarding pictures of the victim that she did not take and submitted an 4 incomplete S.A.R.T. kit; (4) that Defendant Ford lied to the jury, conspired with Defendant 5 Reinhart to cover up the victim’s first story, and introduced inadmissible pictures and illegal 6 DNA evidence; (5) that Defendant Crow tested illegal DNA evidence from the police, gave 7 perjured testimony, and failed to review any reports to make sure that the DNA evidence was 8 properly collected; (6) that Defendant Reinhart provided Plaintiff with ineffective assistance of 9 counsel at trial, conspired with Defendants Ford and Bidegaray to cover up the victim’s first 10 story, introduced perjured evidence, and lied to Plaintiff in order to prevent Plaintiff from 11 discovering that the victim changed her story; (7) that Defendant Dwyer provided Plaintiff with 12 ineffective assistance of counsel on appeal, conspired with Defendant Reinhart to cover up valid 13 legal claims that should have been raised on appeal, and then lied to Plaintiff about the 14 availability of claims that should have been raised in Plaintiff’s appeal; (8) that Defendant 15 Bickner failed to list Defendant Bidegaray’s name in the witnesses’ chronological index in the 16 trial transcript in order to cover up the conspiracy between Defendants Reinhart, Ford, and 17 Bidegaray; and (9) that Defendant Papadakis permitted improper evidence to be introduced at 18 trial and improperly instructed the jury. 19 However, these claims amount to a collateral challenge to Plaintiff’s underlying criminal 20 conviction and, if these claims were resolved in Plaintiff’s favor, the resolution “would 21 necessarily imply or demonstrate the invalidity of the earlier conviction or sentence[.]” Beets, 22 669 F.3d at 1042 (internal punctuation omitted). The Court notes that some, or all, of these 23 claims are more appropriately brought in a habeas corpus petition.1 24 Therefore, Plaintiff’s claims are not cognizable in the instant action unless Plaintiff 25 demonstrates that his conviction “has been reversed on direct appeal, expunged by executive 26 order, declared invalid by a state tribunal authorized to make such determination, or called into 27

28 1 The Court expresses no opinion on the timeliness of any habeas corpus petition. 1 question by a federal court’s issuance of a writ of habeas corpus[.]” Heck, 512 U.S. at 486-87. 2 Here, Plaintiff has failed to allege any facts showing that his underlying criminal conviction has 3 been reversed on appeal, expunged, or called into question by a state or federal court’s issuance 4 of a writ of habeas corpus. Consequently, the Court determines that Plaintiff’s claims are barred 5 by the favorable termination rule announced in Heck. Despite being previously advised of this 6 deficiency and given leave to amend, Plaintiff has been unable to cure this deficiency. 7 F. State Law Claims 8 To the extent that Plaintiff is attempting to plead a state law claim for negligence or any 9 other state law claim, California’s Government Claims Act requires that a tort claim against a 10 public entity or its employees be presented to the Department of General Services’ Government 11 Claims Program no more than six months after the cause of action accrues. Cal. Gov’t Code §§ 12 905.2, 910, 911.2, 945.4, 950-950.2. Presentation of a timely written claim and action on, or 13 rejection of, the claim are conditions precedent to suit. DiCampli-Mintz v. County of Santa 14 Clara, 55 Cal.4th 983, 989-90 (2012); see also Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 15 1470, 1477 (9th Cir. 1995). Therefore, in order to state a tort claim against a public entity and/or 16 one or more of its employees, a plaintiff must allege compliance with California’s Government 17 Tort Claim Act. DiCampli-Mintz, 55 Cal.4th at 990; see also Mangold, 67 F.3d at 1477. 18 Here, Plaintiff has failed to allege that he complied with the claim presentation 19 requirements of California’s Government Claims Act prior to bringing this action. Therefore, 20 Plaintiff has failed to state any cognizable state law claim against any named Defendant. Despite 21 being previously advised of this deficiency and given leave to amend, Plaintiff has been unable to 22 cure this deficiency. 23 V. Conclusion and Recommendation 24 For the reasons discussed herein, Plaintiff’s seventh amended complaint fails to state a 25 cognizable claim for relief. Despite being provided with the relevant pleading and legal standards 26 in the Court’s prior order screening Plaintiff’s sixth amended complaint, Plaintiff has been unable 27 to cure the identified deficiencies and further leave to amend is not warranted. Lopez v. Smith, 28 203 F.3d 1122, 1130 (9th Cir. 2000). 1 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 2 Fresno District Judge to this action. 3 Furthermore, it is HEREBY RECOMMENDED that this action be dismissed, with 4 prejudice, for failure to state a cognizable claim upon which relief may be granted. 5 These Findings and Recommendation will be submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 7 days after being served with these Findings and Recommendation, Plaintiff may file written 8 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 10 specified time may result in the waiver of the “right to challenge the magistrate’s factual 11 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 12 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 IT IS SO ORDERED. 14

15 Dated: December 13, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16

18 19 20 21 22 23 24 25 26 27 28