(PC) Roberson v. T.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CLARENCE LONELL ROBERSON, Case No. 1:19-cv-01724-DAD-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS’ 13 v. MOTION FOR SUMMARY JUDGMENT BE GRANTED 14 SECOND WATCH SGT., et al., (ECF No. 56) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 TWENTY-ONE DAYS 17 ORDER DENYING PLAINTIFF’S REQUEST FOR A SETTLEMENT CONFERENCE 18 (ECF No. 63) 19 20 Plaintiff Clarence Lonell Roberson (“Plaintiff”) is a state prisoner proceeding pro se and 21 in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 22 Before the Court is Defendants Gonzalez and K. Ga’s1 (“Defendants”) motion for summary judgment based on Plaintiff’s failure to exhaust administrative remedies as required by 23 the Prison Litigation Reform Act. (ECF No. 56.) The matter was referred to the undersigned 24 pursuant to 28 U.S.C. § 636 and Local Rule 302(c)(17). For the following reasons, the Court 25 recommends that Defendants’ motion for judgment be granted and that this case be dismissed 26 without prejudice as to named Defendants only, and not to the unidentified Doe defendants. 27

28 1 Plaintiff’s operative complaint names Defendant K. Ga as K.Q.A. (See ECF No. 12.) 1 I. BACKGROUND 2 A. Plaintiff’s Claims 3 Plaintiff’s operative Second Amended Complaint (“SAC”) alleges that his cellmate 4 threatened to kill him while he was housed on EOP C-Yard. (ECF No. 12.) Plaintiff told Defendants that he feared for his life based on his cellmate’s threat. (Id.) Plaintiff was placed in a 5 holding cage and interviewed by a Doe sergeant, who instructed Defendants to put Plaintiff back 6 in the same cell. (Id.) Plaintiff told staff he was suicidal and was placed on suicide watch. (Id.) 7 The next day, a Doe lieutenant told the psychologist to discharge Plaintiff and had seven 8 correctional officers escort Plaintiff to the same cell where he was previously housed. (Id.) The 9 Doe lieutenant tried to force Plaintiff into the cell, and Plaintiff reported being suicidal again. 10 (Id.) Two Doe sergeants and the Doe lieutenant told Plaintiff that they would not protect him 11 unless Plaintiff provided the names of inmates who own cell phones and sell drugs. (Id.) Plaintiff 12 told them that he did not know of any, and Plaintiff was placed back on C-Yard in the same 13 building. (Id.) 14 On one occasion, Plaintiff was sent back without an escort and two inmates ran up to 15 Plaintiff and attempted to harm him with razor blades. (ECF No. 12.) Plaintiff was cut on his left 16 wrist when he tried to block the blows. (Id.) Plaintiff showed Defendants, the Doe sergeants, and 17 the Doe lieutenant, but they forced Plaintiff to house in C-7. (Id.) Plaintiff was bleeding badly and 18 asked for medical treatment, but none was provided. (Id.) 19 The Court screened the SAC and found that it stated cognizable claims for failure to 20 protect under the Eighth Amendment against the two Doe sergeants and the Doe lieutenant and 21 for deliberate indifference to serious medical needs under the Eighth Amendment against 22 Defendant Ga, Defendant Gonzalez, the two Doe sergeants, the Doe lieutenant, and the two Doe 23 correctional officers. (ECF No. 18). B. Defendants’ Motion for Summary Judgment 24 On November 19, 2021, Defendants filed their motion for summary judgment based on 25 Plaintiff’s failure to exhaust administrative remedies.2 (ECF No. 56.) Defendants concede that 26 27 2 Defendants also filed a motion to stay this case until the Court rules on the motion for summary judgment. (ECF 28 No. 56.) The Court granted the motion to stay on January 6, 2021. (ECF No. 65.) 1 Plaintiff submitted a grievance, KVSP-19-03306, regarding his safety concerns but argue that the 2 grievance was insufficient to exhaust Plaintiff’s Eighth Amendment claims. (Id.) First, Plaintiff 3 did not pursue the grievance past the First Level of Review. (Id. at 14-18.) Second, the grievance 4 does not contain any allegations regarding Plaintiff’s medical deliberate indifference claim. (Id. at 20.) 5 On December 21, 2021, after Plaintiff failed to file a timely opposition, the Court entered 6 an order directing Plaintiff to file a response to the motion for summary judgment within thirty 7 days. (ECF No. 62.) On December 29, 2021, Plaintiff filed his opposition. (ECF No. 63.) Plaintiff 8 argues that his 602 was granted at the First Level of Review, with the exception of his monetary 9 request due to the California Department of Corrections and Rehabilitation (“CDCR”) not being 10 able to provide funds in such cases.3 (Id.) According to Plaintiff, granting the 602 on the First 11 Level of Review is a “clear admission of guilt on KVSP staff.” (Id.) Because the 602 was granted, 12 it was deemed exhausted. (Id.) Plaintiff also requests that the Court set a settlement conference. 13 (Id.) 14 On January 4, 2022, Defendants filed a reply. (ECF No. 64.) Defendants argue that, even 15 though Plaintiff’s grievance was granted at the First Level of Review, he was required to further 16 exhaust his administrative remedies. (Id. at 2.) Plaintiff abandoned his staff misconduct 17 allegations when he failed to pursue them to the Second and Third Levels of Review. (Id. at 2-3.) 18 Further, the grievance did not put officials on notice of Plaintiff’s claims. (Id.) 19 The motion was deemed submitted on the record without oral argument following 20 submission of the reply. E.D. Cal. L.R. 230(l). 21 II. LEGAL STANDARDS 22 A. Summary Judgment 23 Summary judgment in favor of a party is appropriate when there “is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 24 56(a); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is a 25 genuine dispute about material facts, summary judgment will not be granted.”). A party asserting 26 27 3 The Court notes that the form 602 Defendants submitted, which Plaintiff does not contest is a correct copy, does not 28 include a request for monetary relief. (See ECF No. 56-3 at 10-11.) 1 that a fact cannot be disputed must support the assertion by “citing to particular parts of materials 2 in the record, including depositions, documents, electronically stored information, affidavits or 3 declarations, stipulations (including those made for purposes of the motion only), admissions, 4 interrogatory answers, or other materials, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 5 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 6 A party moving for summary judgment “bears the initial responsibility of informing the 7 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 8 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 9 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 10 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party 11 moves for summary judgment on the basis that a material fact lacks any proof, the Court must 12 determine whether a fair-minded jury could reasonably find for the non-moving party. Anderson 13 v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in 14 support of the plaintiff’s position will be insufficient; there must be evidence on which the jury 15 could reasonably find for the plaintiff.”). “[A] complete failure of proof concerning an essential 16 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 17 477 U.S. at 322. Additionally, “[a] summary judgment motion cannot be defeated by relying 18 solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 19 (9th Cir. 1989). 20 In reviewing the evidence at the summary judgment stage, the Court “must draw all 21 reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros 22 de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It need only 23 draw inferences, however, where there is “evidence in the record . . . from which a reasonable inference . . . may be drawn . . .”; the court need not entertain inferences that are unsupported by 24 fact. Celotex, 477 U.S. at 330 n.2 (citation omitted). Additionally, “[t]he evidence of the non- 25 movant is to be believed . . . .” Anderson, 477 U.S. at 255. 26 In reviewing a summary judgment motion, the Court may consider other materials in the 27 record not cited to by the parties but is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. 28 1 San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). 2 In a summary judgment motion for failure to exhaust, the defendants have the initial 3 burden to prove “that there was an available administrative remedy, and that the prisoner did not 4 exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence showing that there is something 5 in his particular case that made the existing and generally available administrative remedies 6 effectively unavailable to him.” Id. However, “the ultimate burden of proof remains with the 7 defendant.” Id. “If material facts are disputed, summary judgment should be denied, and the 8 district judge rather than a jury should determine the facts.” Id. at 1166. 9 B. Exhaustion 10 At the relevant time, “[t]he California prison grievance system ha[d] three levels of 11 review; an inmate exhausts administrative remedies by obtaining a decision at each level.” Reyes 12 v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) (repealed 13 June 1, 2020); Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010)). See also Cal. Code Regs. tit. 14 15, § 3084.7(d)(3) (“The third level review constitutes the decision of the Secretary of the 15 California Department of Corrections and Rehabilitation on an appeal, and shall be conducted by 16 a designated representative under the supervision of the third level Appeals Chief or equivalent. 17 The third level of review exhausts administrative remedies . . . .”) (repealed June 1, 2020). 18 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 19 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 20 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 21 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 22 Prisoners are required to exhaust the available administrative remedies prior to filing suit. 23 Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199–1201 (9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating to prison 24 life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of the relief 25 sought by the prisoner and regardless of the relief offered by the process, unless “the relevant 26 administrative procedure lacks authority to provide any relief or to take any action whatsoever in 27 response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); Ross v. Blake, 578 28 1 U.S. 632, 640, 642 (2016). 2 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong for 3 which redress is sought. The grievance need not include legal terminology or legal theories, 4 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation. The grievance process is only required to alert 5 prison officials to a problem, not to provide personal notice to a particular official that he may be 6 sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks 7 omitted). 8 There are no “special circumstances” exceptions to the exhaustion requirement. Ross, 578 9 U.S. 648. The one significant qualifier is that “the remedies must indeed be ‘available’ to the 10 prisoner.” Id. at 639. The Ross Court described this qualification as follows: 11 [A]n administrative procedure is unavailable when (despite what 12 regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to 13 provide any relief to aggrieved inmates. See 532 U.S., at 736, 738, 121 S.Ct. 1819. . . . 14 Next, an administrative scheme might be so opaque that it becomes, 15 practically speaking, incapable of use. . . .

16 And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through 17 machination, misrepresentation, or intimidation. . . . As all those courts have recognized, such interference with an inmate’s pursuit 18 of relief renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 19 20 Ross, 578 U.S. 643–44. “When prison officials improperly fail to process a prisoner’s grievance, 21 the prisoner is deemed to have exhausted available administrative remedies.” Andres v. Marshall, 22 867 F.3d 1076, 1079 (9th Cir. 2017). If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal 23 without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. at 24 223–24; Lira v. Herrera, 427 F.3d 1164, 1175–76 (9th Cir. 2005). 25 /// 26 /// 27 /// 28 1 III. DISCUSSION 2 A. Undisputed Facts 3 Plaintiff submitted no evidence in support of his opposition, did not cite to any evidence 4 in the record, and did not contest the materials Defendants cited in their motion. (See ECF No. 63.) Additionally, while the parties dispute whether Plaintiff was required to appeal his grievance 5 past the First Level of Review to sufficiently exhaust his claims, they do not dispute the existence 6 of the grievance or the factual circumstances of the appeals. Thus, the Court considers all of 7 Defendants’ properly supported facts as undisputed for purposes of this motion. Fed. R. Civ. P. 8 56(e)(2). 9 Defendants submit a declaration from C. Garcia, a Grievance Coordinator responsible for 10 receiving, logging, routing, and monitoring the disposition of inmate grievances at Kern Valley 11 State Prison (“KVSP”). (ECF No. 56-3 at 1.) Garcia describes the administrative grievance 12 process at KVSP during the relevant time period,4 including that inmate grievances were required 13 to go through three formal levels of administrative review. (Id. at 2-3.) A decision at the Third 14 Level of Review constituted a final decision of the Secretary of the CDCR, and exhausted the 15 inmate’s administrative remedies. (Id. at 3.) 16 Garcia declares that he reviewed the Inmate/Parolee Appeals Tracking System (“IATS”) 17 for grievances Plaintiff filed while he was housed at KVSP. (ECF No. 56-3 at 4.) Plaintiff’s SAC 18 identified KVSP-19-03306 as relevant to his claims, and Garcia attaches a copy of this grievance 19 to his declaration. (Id. at 3.) Plaintiff’s records indicate that he was transferred from KVSP to 20 California Health Care Facility on August 14, 2019, and submitted grievance KVSP-19-00306 on 21 August 19, 2019. (Id.) The copy of KVSP-19-00306 attached to Garcia’s declaration states that it 22 is in regards to safety concerns, and describes the issue as follows:

23 On the dates of 8/6/19-8/7/19-8/8/19-8/9/19 8/10/19 and 8/11/19 I addressed to the C-8 EOP unit officers that I have . . . safety concerns on C-yard from a inmate by 24 the name of AKA Peanut who is housed in C-7 . he lives in A section. I’m unaware of his real name. All Sergeants and lieutenants told me that they would 25 not address my safety concerns unless I provide them information to inmates who have cell phones and drugs. I also have safety concerns from inmate (R. Adams 26 AW2312) who threatened my life as well so I moved out of the cell with him. I was also approached by two inmates on the yard who pulled out homemade knives 27 4 On June 1, 2020, new regulations related to inmate grievances became effective. (See ECF No. 56-3 at 2.) The 28 parties do not dispute that Plaintiff submitted his grievance before the new regulations went in to effect. 1 on me and attempted to stave me in front of C-8. They were sent by Peanut mentioned above who is hosued in C& A-section. All coustody on C-Yard keep 2 putting back on the yard intentionally in harms way.

3 (Id. at 10-11.) Under “Action requested” Plaintiff wrote “to have my safety concerns addressed 4 and to be sent to any ad-seg that is a hub pending a transfer to another prison that has a E.O.P.” 5 (Id. at 10.) 6 Garcia further declares that, on September 5, 2019, Plaintiff was interviewed by telephone 7 in connection with the allegations contained in KVSP-19-03306 and Plaintiff had no additional 8 information to add. (ECF No. 56-3 at 3.) KVSP issued its First Level of Review decision on 9 September 5, 2019. (Id.) According to the First Level Review decision, Plaintiff’s appeal was 10 granted, his safety concerns were addressed and documented in his inmate central file, and his 11 request to be transferred to another institution was granted as Plaintiff was housed at another 12 facility. (Id. at 3, 8) Garcia was unable to locate any other grievances submitted on or after 13 August 6, 2019, alleging Defendants were deliberately indifferent to Plaintiff’s medical needs. (Id. at 3.) 14 Defendants also a declaration from Howard E. Moseley, Associate Director of the Office 15 of Appeals (“OOA”), who is responsible for administering the CDCR’s grievance and appeal 16 process for inmates and parolees. (ECF No. 56-4 at 1.) The OOA receives, reviews, and maintains 17 all appeals for non-health care issues. (Id. at 2.) A search of OOA’s records was conducted to 18 determine whether OOA received any appeals from Plaintiff on or after August 6, 2019, alleging 19 that Defendants were deliberately indifferent to Plaintiff’s medical needs at KVSP. (Id. at 3.) The 20 OOA’s computer system does not show any appeals by Plaintiff received on or after August 6, 21 2019, which include allegations that Defendants violated Plaintiff’s Eighth Amendment rights in 22 August of 2019 at KVSP. (Id.) On December 23, 2020, the OOA received an appeal of Grievance 23 Log No. 70307, which alleged that Plaintiff’s proposed transfer from Salinas Valley State Prison 24 to KVSP was improper and referenced “safety concerns against the C-yard KVSP EOP 25 Corectionall Staff c/o KQA, c/o Gonzalez, GSTs, L.T.s, as well with a pending lawsuit against 26 them all.” (Id. at 14.) 27 /// 28 /// 1 B. Analysis 2 As an initial matter, the Court notes that only Plaintiff’s Eighth Amendment medical 3 deliberate indifference claim proceeds against Defendants. (See ECF Nos. 13, 18.) Plaintiff’s 4 Eighth Amendment failure to protect claim solely proceeds against Doe defendants.5 (Id.) The Doe defendants have not been identified or served.6 Defense counsel does not represent the Doe 5 defendants and the motion for summary judgment was not brought on their behalf. Additionally, 6 the evidence Defendants submitted focuses on grievances concerning Defendants and does not 7 address whether the declarants located any grievances concerning the Doe defendants. (See ECF 8 Nos. 56-3, 56-4.) Thus, the Court will not recommend granting summary judgment as to any 9 claims against the Doe defendants. 10 Here, as to the named Defendants, it is undisputed that the CDCR has a process in place 11 for administrative grievances, and that an inmate must process his grievance through the Third 12 Level of Review in order to exhaust administrative remedies. It is also undisputed that Plaintiff 13 submitted grievance KVSP-19-00306, the First Level of Review granted Plaintiff’s request for a 14 transfer and documented Plaintiff’s safety concerns in his inmate central file, and Plaintiff did not 15 appeal the First Level of Review decision. It is undisputed that Plaintiff did not exhaust KVSP- 16 19-00306 through the Third Level of Review. 17 As Defendants have carried their burden to show that there was an available 18 administrative remedy and that Plaintiff did not exhaust that available remedy prior to 19 commencement of the instant lawsuit, “the burden shifts to the prisoner to come forward with 20 evidence showing that there is something in his particular case that made the existing and 21 generally available administrative remedies effectively unavailable to him.” Albino II, 747 F.3d at 22 1172. However, “the ultimate burden of proof remains with the defendant.” Id. 23 /// 24

25 5 Plaintiff’s Eighth Amendment medical deliberate indifference claim proceeds against both Doe defendants and the named Defendants.

26 6 The Court’s November 22, 2021 order permitted Plaintiff to request documents from Defendants in order to identify the Doe defendants in this case, and further set a deadline for Plaintiff to file a motion to substitute named defendants 27 in place of the Doe defendants. (ECF No. 58.) However, all discovery, including discovery regarding the Doe defendants, was stayed by the Court’s order granting Defendants’ motion to stay, with the deadline to substitute the 28 Doe defendants to be reset as necessary after resolution of Defendants’ motion for summary judgment. (ECF No. 65.) 1 Defendants argue that grievance KVSP-19-00306 was not sufficient to put prison officials 2 on notice of Plaintiff’s deliberate indifference to medical needs claim because it does not mention 3 that he was injured, that Defendants were notified of any injury, or that Defendants refused to 4 summon medical assistance for Plaintiff. (ECF No. 56 at 19.) Plaintiff’s opposition does not 5 address or respond in any way to his argument, and Plaintiff solely argues that he was not 6 required to further appeal his grievance past the First Level of Review. (ECF No. 63.) 7 The undersigned finds that KVSP-19-00306 “grievance failed to ‘alert[ ] the prison to the 8 nature of the wrong for which redress is sought’ and provide sufficient information ‘to allow 9 prison officials to take appropriate responsive measures’” with respect to Plaintiff’s medical 10 deliberate indifference claim. Reyes, 810 F.3d at 658 (alteration in original) (quoting Griffin v. 11 Arpaio, 557 F.3d 1117, 1120, 1121 (9th Cir. 2009)). The submitted CDCR form 602 complained 12 of Plaintiff’s safety concerns regarding inmates Peanut and Adams, as well as the two unnamed 13 inmates who attempted to stab Plaintiff. However, the grievance does not mention any injuries or 14 need for medical assistance, and does not include any allegations that Defendants knew Plaintiff 15 had been cut during an attack by inmates or refused to provide any medical treatment.7 16 Accordingly, the Court finds that Defendants have established that there is no genuine 17 dispute that Plaintiff failed to exhaust his Eighth Amendment medical deliberate indifference 18 claim against Defendants. Therefore, the undersigned will recommend that Defendants’ motion 19 for summary judgment be granted and that Plaintiff’s Eighth Amendment medical deliberate 20 indifference claim against Defendants be dismissed without prejudice for failure to exhaust.8 21 In light of this recommendation, the Court will deny Plaintiff’s request for a settlement 22 conference at this time. 23

24 7 Having found that summary judgment is appropriate on this basis, and because only Plaintiff’s Eighth Amendment medical deliberate indifference claim proceeds against Defendants, the Court declines to address Defendants’ 25 alternative argument that Plaintiff was required to appeal his grievance to the Third Level of Review even though his requested relief was granted at the First Level of Review. See Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010) (holding that a prisoner “has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in 26 order to exhaust his administrative remedies”). (See also ECF No. 56-3 at 8 (granting Plaintiff’s request for safety concerns to be addressed and for transfer at the First Level of Review).) 27

8 The Court will address lifting the stay and setting a deadline for Plaintiff to substitute Doe defendants following 28 issuance of an order regarding these findings and recommendations. 1 I. CONCLUSION AND RECOMMENDATION 2 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 3 1. Defendants’ motion for summary judgment (ECF No. 47) be GRANTED as to 4 Defendants Gonzalez and K.Q.A., aka K. Ga, only; and 5 2. Plaintiffs claim for deliberate indifference to serious medical needs in violation of the 6 Eighth Amendment against Defendants Gonzalez and K.Q.A., aka K. Ga, be dismissed 7 without prejudice because Plaintiff failed to exhaust his available administrative 8 remedies before filing this action. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 11 | (21) days after being served with these findings and recommendations, any party may file written 12 || objections with the Court. Such a document should be captioned “Objections to Magistrate 13 | Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 14 | within fourteen (14) days after service of the objections. The parties are advised that failure to file 15 | objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 16 | Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 17 | (9th Cir. 1991)). 18 Additionally, and in light of this recommendation, IT IS HEREBY ORDERED that 19 | Plaintiffs request for a settlement conference (ECF No. 63) is DENIED. 20 IT IS SO ORDERED. 21 22 | Dated: _ March 7, 2022 [Jee ey □□ 53 UNITED STATES MAGISTRATE JUDGE

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