(PC) Jeffrey T. Eastman v. Westbrook

• Court: District Court, E.D. California
• Decided: January 4, 2022
• Docket: 1:21-cv-00797
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JEFFREY TODD EASTMAN, ) Case No.: 1:21-cv-00797-NONE-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) RECOMMENDING DISMISSAL OF THE ACTION 14 ROBERT B. WESTBROOK, et al., ) ) (ECF No. 16) 15 Defendants. ) ) 16 )

17 Plaintiff Jeffrey Todd Eastman is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 Plaintiff filed the instant action on May 17, 2021. On July 21, 2021, the Court screened 20 Plaintiff complaint, found that no cognizable claims were stated, and granted Plaintiff thirty days to 21 file an amended complaint. (ECF No. 9.) Plaintiff failed to file an amended complaint, and on August 22 30, 2021, the Court ordered Plaintiff to show cause within fourteen days why the action should not be 23 dismissed. (ECF No. 10.) After Plaintiff failed to respond to the order to show cause, the Court 24 issued Findings and Recommendations to dismiss the action on September 27, 2021. (ECF No. 12.) 25 On October 12, 2021, Plaintiff filed a response. (ECF No. 13.) Plaintiff claimed that due to lack of 26 funds, stationary material, postage, paper, envelopes and pens he was unable to comply with court’s 27 deadlines. (Id.) Accordingly, on October 15, 2021, the Court vacated the Findings and 28 Recommendations and granted Plaintiff thirty days to file an amended complaint. (ECF No. 14.) 1 Plaintiff failed to respond to the Court’s October 15, 2021. Therefore, on November 29, 2021, the 2 Court ordered Plaintiff to show cause within fourteen days why the action should not be dismissed. 3 (ECF No. 16.) Plaintiff has failed to respond to the order to show cause and the time to do so has 4 passed. Thus, dismissal of the action is warranted. 5 I. 6 SCREENING REQUIREMENT 7 The Court is required to screen complaints brought by prisoners seeking relief against a 8 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 9 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 10 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 11 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 12 U.S.C. § 1915A(b). 13 A complaint must contain “a short and plain statement of the claim showing that the pleader is 14 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 15 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 16 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 17 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 18 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 19 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 20 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 21 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 22 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 23 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 24 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 25 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 26 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 27 /// 28 /// 1 II. 2 SUMMARY OF ALLEGATIONS 3 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of the 4 screening requirement under 28 U.S.C. § 1915. 5 On August 21, 2020, Plaintiff filed a writ of habeas corpus in the Stanislaus County Superior 6 Court. In the writ, Plaintiff provided full facts and proof that due to the outbreak of Covid-19 in the jail 7 and his acute immune disorder, he was at a higher risk of injury and death. Plaintiff submitted supporting 8 medical documents to support his fears and concerns, along with the fact that the contagion has spread 9 rapidly throughout the quarters of the housing unit to which he was assigned. Plaintiff had requested to 10 be released to a family member’s house or placed in a hotel as a more reasonable safety accommodation. 11 Plaintiff’s petition was blatantly ignored at the personal agenda of the judge as he procrastinated for six 12 months to answer the petition for order to show cause and gave several excuses why he had not. Then, 13 in the middle of a jury trial (April 2021) the contagion spread again in Plaintiff’s housing unit. Instead 14 of considering Plaintiff’s original request for release, Plaintiff was moved to the hospital unit where 15 other who tested positive were housed. The trial was postponed and Plaintiff’s habeas corpus was denied 16 on May 5, 2021, stating a defendant may not file a petition of habeas corpus in propria persona and he 17 failed to submit evidence in support of the petition. Plaintiff was not able to shower safety because 18 those who were infected used the same one. Plaintiff was left in imminent danger. 19 Wellpath medical lied by stating in an official letter that Plaintiff had not told them about his 20 immune disorder when he was first incarcerated at the Public Safety Center. However, Plaintiff’s 21 medical records will show that on July 26, 2018 (ten days after he was booked) he told Wellpath medical 22 staff Coletle Zelaya about his immune disorder several months before the outbreak of Covid-19 in the 23 facility. To support the informal response of county counsel and district attorney, Wellpath claimed that 24 they had the contagion under control and that Plaintiff was in no danger. However, they disregarded 25 and ignored Plaintiff’s inquiry in which he asked if they could prevent another onset of his immune 26 disorder in light of the Covid-19 virus-similar to the virus which almost killed him in 2014. Wellpath 27 medical could not and cannot help nor prevent Covid-19 from setting off his immune disorder and killing 28 1 him. Plaintiff cannot take the vaccination. Wellpath lied to the courts indicating they could take care 2 of the imminent danger. 3 Plaintiff is now in the H-unit hospital of the facility where everyone has contracted the contagion 4 Covid-19. There is no safe place for Plaintiff to be housed in the facility because the virus is everywhere. 5 Plaintiff requested to be released to the safety and security of his family or friend’s home in 6 order to continue securely in his ongoing case. While others were being specifically selected to be 7 released on their own recognizance. Plaintiff’s pre-medical immune disorder was not taken into 8 consideration. Plaintiff was ignored, his petition was disregarded and delay for an unreasonable 9 amount of time which denied his constitutional right to file the petition in propria persona. Plaintiff 10 has been left exposed to the imminent threat of the virus at the facility, and he has developed extreme 11 fear, despair, lack of confidence, mental pain, excessive worry, excessive sleeping, weariness, weight 12 gain, and extreme nervousness. 13 At one point, lieutenant Clifton interfered with Plaintiff’s direct grievance to Wellpath medical 14 (grievance dated May 15, 2020), and Plaintiff never received a reply from Wellpath because Clifton 15 obstructed Plaintiff’s right to the grievance process and medical inquiry. 16 III. 17 DISCUSSION 18 A. Judicial Immunity 19 Absolute judicial immunity is afforded to judges for acts performed by the judge that relate to 20 the judicial process. In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002), as amended (Sept. 6, 2002). 21 “This immunity reflects the long-standing ‘general principle of the highest importance to the proper 22 administration of justice that a judicial officer, in exercising the authority vested in him, shall be free 23 to act upon his own convictions, without apprehension of personal consequences to himself.’ ” Olsen 24 v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004) (quoting Bradley v. Fisher, 13 Wall. 25 335, 347 (1871)). 26 This judicial immunity insulates judges from suits brought under section 1983. Olsen, 363 F.3d 27 at 923. Absolute judicial immunity insulates the judge from actions for damages due to judicial acts 28 taken within the jurisdiction of the judge's court. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1 1986). “Judicial immunity applies ‘however erroneous the act may have been, and however injurious 2 in its consequences it may have proved to the plaintiff.’ ” Id. (quoting Cleavinger v. Saxner, 474 U.S. 3 193 (1985)). However, a judge is not immune where he acts in the clear absence of jurisdiction or for 4 acts that are not judicial in nature. Ashelman, 793 F.2d at 1075. Judicial conduct falls within “clear 5 absence of all jurisdiction,” where the judge “acted with clear lack of all subject matter jurisdiction.” 6 Stone v. Baum, 409 F.Supp.2d 1164, 1174 (D. Ariz. 2005). 7 To determine if an act is judicial in nature, the court considers whether (1) the precise act is a 8 normal judicial function; (2) the events occurred in the judge's chambers; (3) the controversy centered 9 around a case then pending before the judge; and (4) the events at issue arose directly and immediately 10 out of a confrontation with the judge in his or her official capacity. Duvall v. Cty. of Kitsap, 260 F.3d 11 1124, 1133 (9th Cir. 2001), as amended on denial of reh'g (Oct. 11, 2001) (quoting Meek v. County of 12 Riverside, 183 F.3d 962, 967 (9th Cir. 1999)). 13 Here, Plaintiff alleges that Judge Westbrook delayed ruling and wrongfully denied his petition 14 for writ of habeas corpus. A judicial decision on a petition for writ of habeas corpus filed in the 15 Stanislaus County Superior Court is clearly within the normal judicial functions of the judicial officer. 16 As the judicial officer presiding over the petition, Judge Westbrook is entitled to absolute judicial 17 immunity from damages for his findings made during the hearing. Plaintiff cannot state a claim against 18 Judge Westbrook related to the circumstances and decision in denying his petition for writ of habeas 19 corpus. 20 B. Monell Claim 21 A municipality cannot be held liable under § 1983 for the actions of its employees under the 22 theory of respondeat superior. See Monell v. Dep't of Social Servs., 436 U.S. at 691; Velazquez v. 23 City of Long Beach, 793 F.3d 1010, 1027 (9th Cir. 2015). A municipality can only be held liable for 24 injuries caused by the execution of its policy or custom whether made “by its lawmakers or those 25 whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 694. 26 Municipal liability under Monell may be premised on: (1) conduct pursuant to a formal or expressly 27 adopted official policy; (2) a longstanding practice or custom which constitutes the “standard 28 operating procedure” of the local government entity; (3) a decision of a decision-making official who 1 was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to 2 represent official policy in the area of decision; or (4) an official with final policymaking authority 3 either delegated that authority to, or ratified the decision of, a subordinate. See Thomas v. County of 4 Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014); Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). “A 5 policy can be one of action or inaction,” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th 6 Cir. 2006), and can be formal or informal. See City of St. Louis v. Praprotnik, 485 U.S. 112, 131 7 (1988). 8 A longstanding practice or custom is one that is so “persistent and widespread” that it 9 constitutes a “permanent and well settled” governmental policy. Trevino v. Gates, 99 F.3d 911, 918 10 (9th Cir. 1996). “Liability for improper custom may not be predicated on isolated or sporadic 11 incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the 12 conduct has become a traditional method of carrying out policy.” Id. The line between “isolated or 13 sporadic incidents” and “persistent and widespread conduct” is not clearly delineated, although where 14 more than a few incidents are alleged, the determination appears to require a fully-developed factual 15 record. Compare Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989) (single incident 16 of excessive force inadequate to establish liability), Meehan v. County of Los Angeles, 856 F.2d 102, 17 107 (9th Cir. 1988) (two incidents insufficient), with Menotti v. City of Seattle, 409 F.3d 1113, 1147 18 (9th Cir. 2005) (triable issue of fact existed as to whether Seattle had an unconstitutional policy or 19 custom of suppressing certain political speech based on the testimony of several individuals that their 20 entry to a particular area was permitted by police only after they removed offending buttons and 21 stickers, coupled with the testimony of the officer in charge that the City would not permit 22 “demonstrations” in the area); see also Jarbo v. County of Orange, No. SACV 05-00202-JVS, 2010 23 WL 3584440, *9-*13 (C.D. Cal. Aug. 30, 2010) (reviewing circumstances in which Monell 24 custom/practice claims were permitted past summary judgment). 25 Thus, generally, a plaintiff must show the following: (1) he was deprived of a constitutional 26 right; (2) the defendant had a policy or custom; (3) the policy or custom amounted to deliberate 27 indifference to the plaintiff's constitutional right; and (4) the policy or custom was the moving force 28 behind the constitutional violation. See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 1 2011) (internal quotation marks and citations omitted); Mabe v. San Bernardino County, 237 F.3d 2 1101, 1110-11 (9th Cir. 2001). The standard for deliberate indifference for a governmental entity is an 3 objective one. See Castro v. County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016). 4 Here, Plaintiff has failed to allege that a specific official policy of the Stanislaus County Jail 5 amounted to deliberate indifference. Accordingly, Plaintiff’s municipality claim fails to give rise to a 6 claim for relief. 7 C. Exposure to COVID-19 8 Because Plaintiff challenges the conditions of his confinement at the Stanislaus County Jail, his 9 deliberate indifference claim “arises under the Fourteenth Amendment's Due Process Clause, rather than 10 under the Eighth Amendment's Cruel and Unusual Punishment Clause.” See Gordon v. County of 11 Orange, 888 F.3d 1118, 1124 (9th Cir. 2018). To succeed on their Fourteenth Amendment claim, 12 plaintiffs will have to prove objective deliberate indifference. Gordon, 888 F.3d at 1124–25 (holding 13 that “claims or violations of the right to adequate medical care brought by pretrial detainees against 14 individual defendants under the Fourteenth Amendment must be evaluated under an objective deliberate 15 indifference standard”). 16 To satisfy this objective deliberate indifference standard, plaintiff must prove that: 17 (i)the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering 18 serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree 19 of risk involved—making the consequences of the defendant's conduct obvious; and (iv) by not 20 taking such measures, the defendant caused the plaintiff's injuries.

21 Id. at 1125. As to the third element, the plaintiff must “prove more than negligence but less than 22 subjective intent—something akin to reckless disregard.” Id. 23 As an initial matter, Plaintiff’s request that he be released from custody must be dismissed 24 because it cannot be pursued in this civil rights action even if he stated a plausible claim. See Nettles 25 v. Grounds, 830 F.3d 922, 927-28 (9th Cir. 2016) (“Although “the literal terms of § 1983 might seem 26 to cover” claims that a prisoner's confinement violated the Constitution, … the language of the habeas 27 statute is more specific, and the writ's history makes clear that it traditionally “has been accepted as 28 1 the specific instrument to obtain release from [unlawful] confinement.”) (quoting Preiser v. Rodriguez, 2 411 U.S. 475, 486, 489 (1973)). 3 Furthermore, Plaintiff fails to state a cognizable claim for relief. Plaintiff’s bare allegations as 4 to the existence of the global pandemic, the prevalence of coronavirus within the Stanislaus County 5 Jail, his immune disorder, and his understandable desire to avoid contracting the virus simply are not 6 enough to state a cognizable constitutional violation. Plaintiff’s general allegations are insufficient to 7 state a cognizable Fourteenth Amendment claim. To present a cognizable claim, Plaintiff must 8 identify defendant's challenged conduct, explain how that conduct is unreasonable under the 9 circumstances, and describe how defendant's conduct has harmed plaintiff. “A person ‘subjects’ 10 another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an 11 affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally 12 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 13 740, 743 (9th Cir. 1978). Plaintiff alleges no facts against a properly named defendant that suggest the 14 defendant made an intentional decision with respect to the conditions under which the Plaintiff was 15 confined, which put Plaintiff at substantial risk of suffering serious harm, that the defendant did not 16 take reasonable available measures to abate that risk and that Plaintiff was harmed. 17 Because Plaintiff is proceeding without counsel and it is not “absolutely clear that the 18 deficiencies of [his] complaint could not be cured by amendment,” the Court will grant him leave to 19 fix them, if he can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“ ‘Before dismissing a 20 pro se complaint the district court must provide the litigant with notice of the deficiencies in his 21 complaint in order to ensure that the litigant uses the opportunity to amend effectively.’ ”) (quoting 22 Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 23 D. Inmate Appeal Process 24 The Due Process Clause protects persons against deprivations of life, liberty, or property; and 25 those who seek to invoke its procedural protection must establish that one of these interests is at 26 stake.” Wilkinson v. Austin, 545 U.S. at 221. Plaintiff does not a have protected liberty interest in the 27 processing his appeals, and therefore, he cannot pursue a claim for denial of due process with respect 28 to the handling or resolution of his appeals. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 1 (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Similarly, Plaintiff may not impose 2 liability on a defendant simply because he or she played a role in processing or responding to 3 Plaintiff’s inmate appeals. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (because an 4 administrative appeal process is only a procedural right, no substantive right is conferred, no due 5 process protections arise, and the “failure to process any of Buckley’s grievances, without more, is not 6 actionable under section 1983.”). Therefore, Plaintiff cannot seek liability against any Defendant for 7 his/her involvement in reviewing and denying his inmate appeals. 8 IV. 9 FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 10 Here, the Court screened Plaintiff’s complaint, and on July 21, 2021, an order issued providing 11 Plaintiff with the legal standards that applied to his claims, advising him of the deficiencies that needed 12 to be corrected, and granting him leave to file an amended complaint within thirty days. (ECF No. 9.) 13 On October 15, 2021, the Court granted Plaintiff thirty days to file an amended complaint. (ECF No. 14 14.) Plaintiff did not file an amended complaint or otherwise respond to the Court’s October 15, 2021 15 order. Therefore, on November 29, 2021, the Court ordered Plaintiff to show cause within fourteen (14) 16 days why the action should not be dismissed. (ECF No. 15.) Plaintiff failed to respond to the November 17 29, 2021 order. 18 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or 19 with any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 20 within the inherent power of the Court.” The Court has the inherent power to control its docket and 21 may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the 22 action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 23 A court may dismiss an action based on a party’s failure to prosecute an action, failure to obey 24 a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th 25 Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 26 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended complaint); Carey v. 27 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 28 pro se plaintiffs to keep court apprised of address); Malone v. United States Postal Serv., 833 F.2d 128, 1 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 2 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 3 “In determining whether to dismiss an action for lack of prosecution, the district court is required 4 to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 5 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 6 disposition of cases on their merits; and (5) the availability of less drastic sanctions.’ ” Carey, 856 F.2d 7 at 1440 (quoting Henderson, 779 F.2d at 1423). These factors guide a court in deciding what to do, and 8 are not conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) 9 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 10 In this instance, the public’s interest in expeditious resolution of the litigation and the Court’s 11 need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine (PPA) Products 12 Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to file an amended complaint within thirty 13 days of October 15, 2021 and has not done so. Accordingly, the operative pleading is the July 21, 2021 14 complaint which has been found not to state a cognizable claim. Plaintiff’s failure to comply with the 15 order of the Court by filing an amended complaint hinders the Court’s ability to move this action towards 16 disposition. This action can proceed no further without Plaintiff’s compliance with the order and his 17 failure to comply indicates that Plaintiff does not intend to diligently litigate this action. 18 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 19 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 1452-53 20 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of dismissal. 21 The public policy in favor of deciding cases on their merits is greatly outweighed by the factors 22 in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. In order for this action 23 to proceed, Plaintiff is required to file an amended complaint curing the deficiencies in the operative 24 pleading. Despite being ordered to do so, Plaintiff did not file an amended complaint or respond to the 25 order to show cause and this action cannot simply remain idle on the Court’s docket, unprosecuted. In 26 this instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 27 Finally, a court’s warning to a party that their failure to obey the court’s order will result in dismissal 28 satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d 1 at 132-33; Henderson, 779 F.2d at 1424. The Court’s November 29, 2021, order to show cause 2 || expressly stated: “Failure to comply with this order will result in a recommendation for dismissal of 3 || the action for failure to state a cognizable claim for relief, failure to comply with a court order and 4 || failure to prosecute.” (ECF No. 16.) Thus, Plaintiff had adequate warning that dismissal would resul 5 || from his noncompliance with the Court’s order. 6 V. 7 RECOMMENDATION 8 The Court has screened Plaintiff's complaint and found that it fails to state a cognizable clair 9 || Plaintiff has failed to comply with the Court’s order to file a first amended complaint or respond to tl 10 || Court’s order to show why the action should not be dismissed. In considering the factors to determit 11 this action should be dismissed, the Court finds that this action should be dismissed for Plaintiff 12 || failure to state a cognizable claim, failure to obey the October 15, 2021 and November 29, 2021 order 13 || and failure to prosecute this action. M4 Accordingly, IT IS HEREBY RECOMMENDED that this action be DISMISSED for Plaintiff 1S failure to state a claim, failure to comply with a court order, and failure to prosecute.This Findings ar 16 Recommendation is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. 7 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) days of service of th '8 Recommendation, Plaintiff may file written objections to this findings and recommendation with tl Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings ar Recommendation.” The district judge will review the magistrate judge’s Findings ar Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheels 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

TT IS SO ORDERED. OF 0, Dated: _ January 4, 2022 27 UNITED STATES MAGISTRATE JUDGE 28 11