(PC) Keller v. Degough

• Court: District Court, E.D. California
• Decided: October 10, 2023
• Docket: 1:22-cv-01487
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL STEPHEN KELLER, Case No. 1:22-cv-01487-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION

14 SHIRLEY, et al., FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN 15 Defendants. CLAIMS AND DEFENDANTS

16 (ECF Nos. 1, 14, 15)

17 FOURTEEN (14) DAY DEADLINE 18 19 I. Background 20 Plaintiff Paul Stephen Keller (“Plaintiff”) is a state prisoner proceeding pro se and in 21 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 22 On September 13, 2023, the Court screened the complaint and found that Plaintiff stated a 23 cognizable claim against Defendant Degough, in his individual capacity, for deliberate 24 indifference to conditions of confinement in violation of the Eighth Amendment, but failed to 25 state any other cognizable claims for relief against any other defendants. (ECF No. 14.) The 26 Court ordered Plaintiff to either file an amended complaint or notify the Court of his willingness 27 to proceed only on the cognizable claim identified by the Court. (Id.) On October 4, 2023, 28 Plaintiff notified the Court that he does not wish to file a first amended complaint, and is willing 1 to proceed only on his claims against Defendant Degough, in his individual capacity, for 2 deliberate indifference to conditions of confinement in violation of the Eighth Amendment. (ECF 3 No. 15.) 4 II. Screening Requirement and Standard 5 The Court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 7 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 8 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 9 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A complaint must contain “a short and plain statement of the claim showing that the 11 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 14 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 15 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 16 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 17 To survive screening, Plaintiff’s claims must be facially plausible, which requires 18 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 19 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 20 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 21 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 22 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 23 A. Allegations in Complaint 24 Plaintiff is currently housed at Wasco State Prison (“WSP”) in Wasco, California, where 25 the events in the complaint are alleged to have occurred. Plaintiff names the following 26 defendants: (1) Heather Shirley, Warden; (2) James Cronjager, Health and Safety Director; and 27 (3) Scott Degough, Contractor – Plant Manager II. All defendants are employed at Wasco State 28 Prison-Reception Center and are sued in their official and individual capacities. 1 Plaintiff alleges as follows: 2 Claim I: 3 Pursuant to a posted notice at WSP-Reception Center (“WSP-RC”), since December 14, 4 2017, WSP-RC has been failing California Domestic Water Quality and Monitoring Regulations, 5 as well as violating anti-pollution laws, by having a contaminant named 1,2,3 – Trichloropropane 6 (“1,2,3-TCP”) within the institution’s water, at levels well over the legal action “red line” limit. 7 1,2,3-TCP is an organic compound, a colorless liquid that is used as a solvent and other 8 specialty applications. 1,2,3-TCP is produced, the addition of “chlorine to allyl chloride,” and is 9 produced as a byproduct, and produced in significant quantities as an “unwanted byproduct of the 10 production of other chlorinated compounds, such as “epichlorohydin and dichloropropene.” 11 Historically, 1,2,3-TCP has been used as a “paint or varnish remover,” a “cleaning and degreasing 12 agent,” and a solvent. 13 Plaintiff is being exposed, as well as forced to utilize, contaminated water at WSP. The 14 contaminant in the water has, and is, harming Plaintiff due to skin contact (washing hands, 15 showering, etc.) and ingestion (drinking, preparing food, etc.). 1,2,3-TCP is recognized in the 16 State of California as a human carcinogen that causes cancer, as well as short-term and long-term 17 conditions due to the degrees of exposure and consumption. The drinking water at WSP-RC has 18 been contaminated 5 years. The levels of 1,2,3-TCP have elevated tremendously. The California 19 State Water Resources Control Board’s Division of Drinking Water has established an 20 enforceable “maximum contaminant level of 0.005 ug/L, or equivalent to 5 ng/L (parts per 21 trillion).” Yet, the contaminant in WSP’s water has grown from 0.008 ug/L to 0.013ug/L, from 22 0.008 to 0.014 ug/L, from 0.008 ug/L to 0.019 ug/L, and from 0.008 to 0.023 ug/L. The State of 23 California considers 1,2,3-TCP to be a regulated contaminant that must be monitored, because it’s 24 a contaminant that is more dense than water, and settles at the bottom of reservoirs or any other 25 appliance that holds water, and is hard to remove. 26 Defendant Shirley, the Warden of WSP-RC and Chief Executive Officer of the institution, 27 is responsible for the custody, treatment, training, and discipline of all inmates under her charge. 28 She is to establish plans and procedures as are required by the Secretary of the Department of 1 Corrections and Rehabilitation (California), for implementation of regulations. Defendant Shirley 2 has failed in her duty as the Chief Executive Officer of WSP-RC by failing and attempting to 3 implement failed processes that are extremely ineffective, and were not timely in removing the 4 contaminant 1,2,3-TCP from Plaintiff’s drinking water. Defendant Shirley has failed to fully 5 address the risks and dangers and concerns about the exposure to unsanitary drinking water which 6 the inmate population is being forced to utilize. Furthermore, because of indifference, as well as 7 her negligence, the contaminant in the drinking water continues to worsen. Defendant Shirley has 8 failed in her duty to keep the institution’s population safe. Her negligent adverse action(s) and 9 inaction(s), and the notion to do nothing adequate enough to fix the water issue, continues to let 10 cancerous infected water make it to the utilizing water spouts of the institution. Defendant 11 Shirley has allowed the placement of a faulty GAC (Granulated Activated Carbon) System to 12 continue to stay in place, which only exacerbates the toxin within the drinking water. Defendant 13 Shirley continues to run a hazardous institution, and subjects Plaintiff to harsh conditions of 14 confinement. She neglected to do a follow-up on a stats summary on the faulty GAC system for 15 the institution, to avoid an intentional shutdown of the institution, because of the severity of the 16 toxic build-up whin the institution’s water. Defendant Shirley has failed to create or establish an 17 effective policy and protocol for removing the cancerous carcinogen out of the water, and took no 18 sufficient steps that would lead to easing Plaintiff’s apprehension, or to remedy the infected water 19 problem. She has failed to train staff under her authority who may be “directly or indirectly” 20 involved in the process of discussing, implementing, researching harm, and initiating a plan, or 21 plans in a timely manner, that would take steps to fix the cancerous water issue or at least reduce 22 the risk(s) and danger(s). Defendant Shirley has failed to protect Plaintiff, as promised when 23 Plaintiff signed Body, Life, and Limb over to the custody of her institution. 24 Claim II: 25 Defendant J. Cronjager is the Health and Safety Director at WSP-RC. By his action(s) 26 and inaction(s) Plaintiff’s life and health are being endangered presently and in the future. 27 Defendant Cronjager has full knowledge of the severe risk(s) and danger(s) within the institution, 28 regarding the infected water issue and knows the protocol(s) for such risk(s) and danger(s) and 1 knows what is to be done about them. He has a duty to always second guess, investigate, and go 2 over and beyond to make sure that WSP is properly informed of/on health and safety risks, as 3 well as making sure that the institution’s water is not unsanitary or contaminated with 4 carcinogens that are a threat to Plaintiff’s life and health. However, Defendant Cronjager has 5 failed in his duties as the Director of Health and Safety. Due to utilizing the institution’s water, 6 Plaintiff has become internally ill, with illnesses that cause him great internal pain (abdominal 7 pain, chest pain, bowel movement pain, etc.). Such illnesses are called Helicobacter Pylori (“H. 8 Pylori”), Erosive Gastritis, Mild Duodenitis, Gastroesophageal Reflux Disease, Irritable Bowel 9 Syndrome, Erythema of the intestines, and internal Hemorrhoids. Plaintiff had none of the 10 mentioned illnesses until being incarcerated at WSP, nor does Plaintiff or his family have a 11 history of contracting the above-mentioned illnesses. (The first illness Plaintiff contracted was H. 12 Pylori. All other illnesses came after the contraction of H. Pylori.) The pain Plaintiff experiences 13 is so severe at times, to the point where he has to lay in a fetal position until the pain goes away. 14 Plaintiff does this on a daily basis, for longer than thirty minutes at a time. Other times, Plaintiff 15 exercises extremely hard, just to give himself a different kind of pain to try and cope with his 16 internal pain. Plaintiff had to go to the institution’s emergency health unit on more than three 17 occasions because of the severity of his symptoms. The water Plaintiff utilizes is poisoning him, 18 and he’s been consuming the infected water since 2018. 19 Plaintiff has been suffering from these illnesses, along with their symptoms, since June of 20 2019, up to 3 years now, and continues to suffer. 21 Due to Defendant Cronjager’s failure to act timely and properly to save Plaintiff’s health, 22 this endangers Plaintiff’s life and health even further. Defendant Cronjager is responsible for 23 WSP’s population’s health and safety, and making sure the population’s health and safety is 24 secure and safe. He has failed in his duties. He has knowledge of the contaminated water issue at 25 WSP, but has failed to intervene in any way. 26 Claim III: 27 Defendant S. Degough, the Contractor and Plant Manager II of WSP-RC, has relayed 28 false information to the institution’s staff regarding the real risks and dangers of the contaminant 1 1,2,3-TCP, thus showing blatant disregard to Plaintiff’s life, safety, and health. If Defendant 2 Degough properly monitored the increase of 1,2,3-TCP and correctly informed the institution’s 3 administration, Plaintiff would not be utilizing contaminated water, nor would Plaintiff be 4 infected by numerous internal illnesses. There was a 3 year marker set, from December 14, 2017 5 to December 14, 2020, to have remedied the cancerous water issue at the institution. Yet, nothing 6 adequate has been done about the problem. As Defendant Degough is the Supervising Plant 7 Manager, he has failed to circumvent the egregious failures of past contractors, regulations, and 8 plans that showed to be extreme risks to human lives. In his authority over the water quality, and 9 the water operations of the institution, he is supposed to make sure that the quality of the water is 10 safe, and the operations of the water are run properly and correctly. Defendant Degough has 11 failed in his duties as the contractor and Supervising Plant Manager. Plaintiff is not safe from 12 consuming toxic, infected water due to Defendant Degough’s slight intervention. 13 Defendant Degough is the author of a memo/notice that is vague, and continues to 14 circulate throughout WSP, with minimal updates (which are supposed to be posted every quarter 15 of the year), to the real risks and dangers to Plaintiff and the institution’s population. If 16 Defendant Degough ordered a more bipartisan test of the water and correctly corresponded with 17 the Health and Safety Director (Defendant Cronjager), and the Warden (Defendant Shirley), 18 Plaintiff’s suffering and subjection would not exist, nor would it continue. Defendant Degough 19 has failed to properly inform his supervisory personnel of the institution about potential 20 remediation strategies and techniques. The GAC system has failed, and has been faulty since 21 2017, which means that the system has failed in extracting the contaminant in the institution’s 22 water. Defendant Degough is supposed to know of different remediation strategies and 23 techniques that will work and succeed. Such remediation strategies are: (1) remediation of 1,2,3- 24 TCP can occur through in situ chemical oxidation; (2) permeable reactive barriers; (3) other 25 potential strategies. Defendant Degough has failed to inform of remediation techniques, which 26 have been studied and/or applied with varying degrees of success, such as: in situ chemical 27 reduction, reduction with zerovalent metals, particularly zerovalent zinc, which may be 28 particularly effective in 1,2,3-TCP remediation. Bioremediation may also be a promising clean- 1 up technique as well, however, Defendant Degough fails/neglects to mention any of this in his 2 memos/notices. 3 In a drinking water project proposed by the United States Environmental Protection 4 Agency (“EPA”), 1,2,3-TCP is one of sixteen human carcinogens. In addition, only the State of 5 California has significant regulation of 1,2,3-TCP. Defendant Degough is exhibiting 6 incompetence that is beyond one seated in position. A single e-mail or phone call to his 7 supervisors would have reduced Plaintiff’s risk of failed health. It is Defendant Degough’s duty 8 to take the proper steps, as well as Defendant Shirley and Defendant Cronjager to circumvent 9 Occupational Safety and Health Administration (“OSHA”) violations, by identifying and 10 classifying the removal of deadly, harmful chemical contaminants pursuant to OSHA standards. 11 If this was done, Plaintiff’s life and health would not be failing, and his safety and security would 12 not be in danger. There are rules and standards that exist, that are set by OSHA, that none of the 13 Defendants has followed. Because of each Defendant’s negligent oversight, Plaintiff, as well as 14 the population at WSP, is being poisoned. If the standards of OSHA, the Federal Anti-Pollution 15 Act, and the CDCR Rules and Regulations were properly followed in maintaining a safe and 16 healthy environment, no one would be at risk or in danger of their health failing, and Plaintiff 17 would not be forced to utilize unclean, contaminated water. 18 Defendant Degough, in creating and posting vague information, has failed in his duty to 19 remedy the contaminated water issue. As his notice indicates, the continual consumption of 20 WSP’s contaminated water, infected by 1,2,3-TCP, will cause cancer over time, or will heighten 21 the risk of contracting cancer. He has held back valuable, insightful information as to the solution 22 to the infected water problem, and has not fully explained what 1,2,3-TCP is, where it comes 23 from, and what damage it causes to humans’ health. His low degree of care, as well as 24 Defendants Shirley and Cronjager, has stopped any other staff member from taking the water 25 issue seriously and as a threat, which stops them from creating a life saving process, protocol, and 26 policy for Plaintiff to utilize. Plaintiff personally reached out to Defendant Degough, as his 27 notice suggests, but to no avail. Without the proper information, Plaintiff could not prepare 28 himself for the outcome of utilizing contaminated water. Additionally, the inactions and actions 1 of all named Defendants in this complaint has forced Plaintiff to continue to utilize the cancerous 2 water, with no reasonable accommodations or alternatives. Plaintiff needs water. Clean water. 3 Without water, Plaintiff will suffer a substantial amount more due to dehydration. 4 Defendants Shirley, Cronjager, and Degough have first-hand knowledge of the 5 contaminated water issue at WSP. All named Defendants are responsible for the Health and 6 Safety of inmates, at least as it relates to the water issue. Each named defendant works, and is 7 employed in Kern County, which gives them knowledge of the contaminated water issue that is 8 occurring throughout Kern County, which has been publicized through the news media. 9 Request for Relief: 10 Plaintiff seeks compensatory damages. 11 B. Discussion 12 1. Supervisory Liability 13 Insofar as Plaintiff is attempting to sue the Warden or any other defendant, based solely 14 upon his or her supervisory role, he may not do so. Liability may not be imposed on supervisory 15 personnel for the actions or omissions of their subordinates under the theory of respondeat 16 superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th 17 Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 18 297 F.3d 930, 934 (9th Cir. 2002). 19 Supervisors may be held liable only if they “participated in or directed the violations, or 20 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 21 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. 22 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established 23 when an official sets in motion a ‘series of acts by others which the actor knows or reasonably 24 should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at 25 570. Supervisory liability may also exist without any personal participation if the official 26 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 27 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 28 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other 1 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). When a defendant holds a supervisory 2 position, the causal link between such defendant and the claimed constitutional violation must be 3 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 4 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement 5 of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 6 673 F.2d 266, 268 (9th Cir. 1982). 7 As pled, Plaintiff fails to state a claim against either Defendant Shirley or Defendant 8 Cronjager based on their supervisory roles. While Plaintiff alleges that Defendants Shirley and 9 Cronjager failed to take any necessary or effective measures to correct the contaminated water at 10 WSP, Plaintiff also alleges that Defendant Degough relayed false, incorrect, or no information to 11 Defendants Defendants Cronjager and Shirley about the water quality. Aside from Plaintiff’s 12 conclusory allegation that each defendant is employed in Kern County and would therefore have 13 knowledge of the contaminated issue throughout the county because it has been publicized 14 through the news media, there is no other indication that Defendant Cronjager or Shirley was 15 aware of the water quality issue at WSP. As there is also no indication that Defendant Cronjager 16 or Shirley directly participated in the water contamination, or were aware of some deficiency in 17 their training or supervision of Defendant Degough, Plaintiff fails to allege the requisite causal 18 connection between these defendants in their supervisory roles and the contaminated water at 19 WSP. 20 2. Official Capacity 21 Plaintiff may not pursue his claims for monetary damages against the named defendants in 22 their official capacities. “The Eleventh Amendment bars suits for money damages in federal 23 court against a state, its agencies, and state officials in their official capacities.” Aholelei v. Dep’t. 24 of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh 25 Amendment does not bar suits seeking damages against state officials in their personal capacities, 26 Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003), or 27 suits for injunctive relief brought against state officials in their official capacities, Austin v. State 28 Indus. Ins. Sys., 939 F.2d 676, 680 n.2 (9th Cir. 1991). Thus, Plaintiff may only proceed in this 1 action for monetary damages against defendants in their individual capacities. 2 3. Eighth Amendment – Conditions of Confinement 3 The Eighth Amendment protects prisoners from inhumane methods of punishment and 4 from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. 5 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison 6 officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 7 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 8 2000) (quotation marks and citations omitted). To establish a violation of the Eighth 9 Amendment, the prisoner must “show that the officials acted with deliberate indifference . . .” 10 Labatad v. Corrs. Corp. of Amer., 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. Cty. of 11 Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)). 12 The deliberate indifference standard involves both an objective and a subjective prong. 13 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer, 511 14 U.S. at 834. Second, subjectively, the prison official must “know of and disregard an excessive 15 risk to inmate health or safety.” Id. at 837; Anderson v. Cty. of Kern, 45 F.3d 1310, 1313 (9th 16 Cir. 1995). 17 Objectively, extreme deprivations are required to make out a conditions-of-confinement 18 claim and only those deprivations denying the minimal civilized measure of life’s necessities are 19 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 20 503 U.S. 1, 9 (1992). Although the Constitution “‘does not mandate comfortable prisons,’” 21 Wilson v. Seiter, 501 U.S. 294, 298 (1991), “inmates are entitled to reasonably adequate 22 sanitation, personal hygiene, and laundry privileges, particularly over a lengthy course of time,” 23 Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989). 24 Courts have long recognized that exposure to environmental conditions which pose a 25 health risk, either present or future, can support a claim under the Eighth Amendment. Helling v. 26 McKinney, 509 U.S. 25, 3335 (1993) (environmental tobacco smoke); Wallis v. Baldwin, 70 F.3d 27 1074, 1076 (9th Cir. 1995) (asbestos); Carter v. Smith, No. C–13–4373 EMC (pr), 2015 WL 28 4322317, at *7–11 (N.D. Cal. 2015) (lead paint and asbestos); Yellen v. Olivarez, No. CIV S–94– 1 1298 GEB DAD P, 2012 WL 3757373, at *8 (E.D. Cal. 2012) (contaminated water), adopted in 2 full, 2012 WL 4210030 (E.D. Cal. 2012); Rouse v. Caruso, No. 06–CV–10961–DT, 2011 WL 3 918327, at *24–25 (E.D. Mich. 2011) (contaminated water), adopted in full, 2011 WL 893216 4 (E.D. Mich. 2011). 5 At the pleading stage, Plaintiff states a cognizable claim against Defendant Degough, in 6 his individual capacity, for deliberate indifference to conditions of confinement. Plaintiff alleges 7 that Defendant Degough is the Supervising Plant Manager with authority over the water quality 8 and water operations of the institution, and he failed to correct the failures of past contractors, 9 regulations, and plans to make sure the water quality is safe and relayed false information 10 regarding WSP’s contaminated water to his supervisors. 11 However, Plaintiff fails to state a cognizable Eighth Amendment claim against Defendant 12 Shirley or Cronjager in their individual or official capacities. As noted above, Plaintiff has 13 provided only conclusory allegations that either Defendant was aware of the water quality issue. 14 Instead, Plaintiff alleges that Defendant Degough relayed false, incorrect, or no information to 15 Defendants Shirley and Cronjager about the institution’s water quality. 16 III. Conclusion and Recommendation 17 Based on the above, the Court finds that Plaintiff’s complaint states a cognizable claim 18 against Defendant Degough, in his individual capacity, for deliberate indifference to conditions of 19 confinement in violation of the Eighth Amendment. However, Plaintiff’s complaint fails to state 20 any other cognizable claims for relief against any other defendants. 21 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a 22 District Judge to this action. 23 Furthermore, it is HEREBY RECOMMENDED that: 24 1. This action proceed on Plaintiff’s complaint, filed November 16, 2022, (ECF No. 1), 25 against Defendant Degough, in his individual capacity, for deliberate indifference to 26 conditions of confinement in violation of the Eighth Amendment; and 27 2. All other claims and defendants be dismissed based on Plaintiff’s failure to state claims 28 upon which relief may be granted. 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 3 being served with these Findings and Recommendations, Plaintiff may file written objections 4 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 5 and Recommendations.” Plaintiff is advised that the failure to file objections within the specified 6 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 7 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 8 F.2d 1391, 1394 (9th Cir. 1991)). 9 IT IS SO ORDERED. 10

11 Dated: October 10, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12

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