(PC) Smith v. Knowlton

• Court: District Court, E.D. California
• Decided: February 2, 2024
• Docket: 1:18-cv-00851
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE CHRISTOPHER SMITH, Case No. 1:18-cv-00851-JLT-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS 13 v. (ECF No. 36)

14 KNOWLTON, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION 15 Defendant. FOR SANCTIONS, CONSTRUED AS A MOTION TO COMPEL DISCOVERY 16 (ECF No. 48) 17 18 I. Procedural History 19 Plaintiff Lawrence Christopher Smith (“Plaintiff”) is a state prisoner proceeding pro se 20 and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action 21 proceeds against Defendant Knowlton for excessive force in violation of the Eighth Amendment. 22 This case has a long procedural history, but the Court provides the following background as 23 relevant to the motions addressed by the instant order. 24 On July 12, 2019, the parties participated in a settlement conference. (ECF No. 27.) As 25 the settlement conference was not successful, the Court issued a Discovery and Scheduling Order 26 on August 5, 2019. (ECF No. 33.) 27 On August 16, 2019, Plaintiff filed a motion for sanctions. (ECF No. 36.) Defendant 28 filed an opposition, (ECF No. 38), Plaintiff filed a supplemental brief in lieu of a reply, (ECF No. 1 41), and Defendant filed an opposition to the supplemental brief, (ECF No. 42). 2 During briefing on the motion for sanctions, Defendant filed a motion for summary 3 judgment on the ground that Plaintiff failed to exhaust administrative remedies. (ECF No. 37.) 4 Following an extension of time, Plaintiff filed his opposition on October 24, 2019, (ECF No. 43), 5 and Defendant filed a reply on October 31, 2019, (ECF No. 44). That motion is pending and will 6 be addressed by separate findings and recommendations. 7 After the motion for summary judgment was fully briefed, Plaintiff filed another motion 8 for sanctions on January 16, 2020. (ECF No. 48.) Defendant opposed the motion on February 7, 9 2020, (ECF No. 51), and Plaintiff did not file a reply. 10 Plaintiff’s motions for sanctions are fully briefed and before the Court.1 Local Rule 11 230(l). The August 16, 2019 motion for sanctions is denied and the January 16, 2020 motion is 12 granted in part and denied in part, as discussed below. 13 II. Plaintiff’s August 16, 2019 Motion for Sanctions 14 Plaintiff seeks sanctions pursuant to Federal Rule of Civil Procedure 37, because 15 Defendant and defense counsel caused Plaintiff to miss the deadline to file his confidential 16 settlement statement when they did not forward Plaintiff’s legal mail to him following his transfer 17 to another institution. (ECF No. 36.) Plaintiff did not receive the Court’s order scheduling the 18 settlement conference—and setting forth the requirements for filing a confidential settlement 19 statement—until four days before the settlement conference, prejudicing Plaintiff before the 20 Court. Plaintiff also alleges that the defense was involved in the destruction of Plaintiff’s legal 21 property by correctional staff, though he does not specify further details about this incident. 22 Plaintiff seeks a monetary fine assessed jointly against Defendant and the defendants in Plaintiff’s 23 other cases and copies of the Court’s local rules and other statutes lost.2 (Id.) 24 ///

25 1 These motions were dropped inadvertently by the Court’s CM/ECF reporting/calendaring system resulting in the prolonged delay in resolution. 26

2 To the extent the motion raises other arguments going to the merits of this action, allegations regarding the actions 27 of parties or attorneys involved in Plaintiff’s other lawsuits, or Plaintiff’s belief that all of his cases should be consolidated, those arguments have been repeatedly dismissed by the Court and will not be reconsidered here. (See 28 ECF Nos. 8, 62.) 1 Defendant argues in opposition that Plaintiff’s motion for discovery sanctions is frivolous 2 because Plaintiff has not identified any discovery or disclosures that Defendant has failed to 3 produce, and such failure would be impossible because the Court’s Discovery and Scheduling 4 Order was issued less than thirty days prior to the filing of Plaintiff’s motion. (ECF No. 38.) 5 Defendant seeks sanctions in the form of reasonable costs for opposing Plaintiff’s frivolous 6 motion and to deter Plaintiff from engaging in such litigation tactics in the future. (Id.) 7 In his supplemental brief filed in lieu of a reply, Plaintiff again argues that defense 8 counsel censored Plaintiff’s legal mail, preventing him from receiving the Court’s order 9 scheduling the settlement conference in this action, and destroyed Plaintiff’s legal records relating 10 to this action and Plaintiff’s other litigation. (ECF No. 41.) As relief, Plaintiff seeks monetary 11 sanctions “for the theft and/or destruction of [his] legal manuals” and that defense counsel bear 12 the costs of the Court providing Plaintiff with copies of various federal and state statutes, case 13 files for his other pending lawsuits, and the Court’s local rules. (Id.) 14 Defendant opposed Plaintiff’s supplemental brief, arguing that defense counsel have not, 15 and could not, engage in the alleged conduct, and to the extent the Court considers the 16 supplemental brief as an additional motion for sanctions, the Court should also award Defendant 17 reasonable costs for opposing Plaintiff’s second frivolous motion. (ECF No. 42.) 18 A. Legal Standards 19 Broad sanctions may be imposed against a person or party for failure to obey a prior court 20 order compelling discovery. Rule 37(b)(2) of the Federal Rules of Civil Procedure provides that 21 if a party fails to obey an order to provide or permit discovery, the Court may issue further just 22 orders, which may include prohibiting the disobedient party from supporting or opposing 23 designated claims or defenses, or from introducing designated matters in evidence. Fed. R. Civ. 24 P. 37(b)(2)(A). The Court also may dismiss the action or proceeding in whole or in part. Id. 25 Dismissal and default are such drastic remedies, they may be ordered only in extreme 26 circumstances—i.e., willful disobedience or bad faith. In re Exxon Valdez, 102 F.3d 429, 432 27 (9th Cir. 1996). Even a single willful violation may suffice depending on the circumstances. 28 Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1056 (9th Cir. 1998) (dishonest 1 concealment of critical evidence justified dismissal). 2 Courts also have the “inherent power to levy sanctions, including attorneys’ fees, for 3 ‘willful disobedience of a court order . . . or when the losing party has acted in bad faith, 4 vexatiously, wantonly, or for oppressive reasons.’” Fink v. Gomez, 239 F.2d 989, 991 (9th Cir. 5 2001) (quoting Roadway Express, Inc. v. Pipe, 447 U.S. 752, 766 (1980)). Under the court’s 6 inherent power, sanctions are only available “if the court specifically finds bad faith or conduct 7 tantamount to bad faith.” Id. at 994. Conduct that is tantamount to bad faith includes 8 “recklessness when combined with an additional factor such as frivolousness, harassment, or an 9 improper purpose.” Id. 10 B. Discussion 11 The Court finds that sanctions pursuant to Rule 37 are inappropriate where, as here, 12 Plaintiff has not identified any failure by Defendant or defense counsel to comply with any 13 discovery order, much less an order compelling discovery. 14 Plaintiff has also presented no evidence of bad faith on the part of Defendant or defense 15 counsel that would support the imposition of sanctions pursuant to the Court’s inherent authority. 16 Plaintiff presents nothing more than his own conclusory allegations regarding Defendant or 17 defense counsel’s involvement in the processing of Plaintiff’s legal mail or legal records, while 18 defense counsel have submitted declarations signed under penalty of perjury asserting that they 19 did not and could not have had any involvement in the processing or control of Plaintiff’s mail or 20 records. (ECF Nos. 42-1, 42-2, 42-3.) Plaintiff’s unsupported assertions to the contrary are not 21 sufficient to demonstrate the required bad faith necessary to warrant the imposition of sanctions. 22 With respect to Defendant’s request for sanctions, the Court finds that while Plaintiff’s 23 motion is not supported by existing law, it is not clear that it was brought for an improper 24 purpose, and therefore does not rise to the level of bad faith conduct. However, Plaintiff is 25 warned against filing future motions, unsupported by law or fact and raising issues that were 26 already previously decided, that would unnecessarily expend the Court’s scarce judicial 27 resources. Such motions may be subject to sanctions, up to and including terminating sanctions. 28 /// 1 III. Plaintiff’s January 16, 2020 Motion for Sanctions 2 In this motion for sanctions, Plaintiff again asserts that the failure of defense counsel or 3 CDCR officials to forward the Court’s order regarding the July 12, 2019 settlement conference 4 resulted in a violation of his right to access the courts. (ECF No. 48.) Plaintiff also argues that 5 defense counsel did not adequately respond to Plaintiff’s August 28, 2019 discovery requests, 6 specifically Requests for Production Nos. 1, 5, 7, 9–12, and 15. (Id.) 7 In opposition, Defendant contends that the motion for sanctions is premature, if not 8 improper, because Plaintiff has yet to file a motion to compel and therefore Defendant has not yet 9 failed to comply with any order compelling discovery. (ECF No. 51.) Further, even if the Court 10 construes Plaintiff’s motion for sanctions as a motion to compel further responses, Defendant’s 11 objections and responses to the requests for production at issue are proper. (Id.) 12 The Court finds it appropriate to construe Plaintiff’s motion for sanctions as a motion to 13 compel discovery. The motion to compel is denied, as discussed below. 14 A. Legal Standards 15 Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery may 16 move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 17 37(a)(3)(B). The court may order a party to provide further responses to an “evasive or 18 incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have 19 ‘broad discretion to manage discovery and to control the course of litigation under Federal Rule 20 of Civil Procedure 16.’” Hunt v. Cty. of Orange, 672 F.3d 606, 616 (9th Cir. 2012) (quoting 21 Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)). 22 The moving party bears the burden of informing the Court: (1) which discovery requests 23 are the subject of the motion to compel; (2) which of the responses are disputed; (3) why the 24 response is deficient; (4) why any objections are not justified; and (5) why the information sought 25 through discovery is relevant to the prosecution or defense of this action. McCoy v. Ramirez, 26 2016 WL 3196738 at *1 (E.D. Cal. 2016); Ellis v. Cambra, 2008 WL 860523, at *4 (E.D. Cal. 27 2008) (“Plaintiff must inform the court which discovery requests are the subject of his motion to 28 compel, and, for each disputed response, inform the court why the information sought is relevant 1 and why defendant’s objections are not justified.”). 2 In responding to requests for production, a party must produce documents or other 3 tangible things which are in their “possession, custody or control.” Fed. R. Civ. P. 34(a). 4 Responses must either state that inspection and related activities will be permitted as requested or 5 state an objection to the request, including the reasons. Fed. R. Civ. P. 34(b)(2)(B). A reasonable 6 inquiry must be made, and if no responsive documents or tangible things exist, Fed. R. Civ. P. 7 26(g)(1), the responding party should so state with sufficient specificity to allow the Court to 8 determine whether the party made a reasonable inquiry and exercised due diligence, Uribe v. 9 McKesson, No. 08cv1285 DMS (NLS), 2010 WL 892093, at *2–3 (E.D. Cal. Mar. 9, 2010). 10 Actual possession, custody or control is not required. “A party may be ordered to produce 11 a document in the possession of a non-party entity if that party has a legal right to obtain the 12 document or has control over the entity [that] is in possession of the document.” Soto v. City of 13 Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995); see also Allen v. Woodford, 2007 WL 309945, at 14 *2 (E.D. Cal. Jan. 30, 2007) (“Property is deemed within a party’s possession, custody, or control 15 if the party has actual possession, custody, or control thereof or the legal right to obtain the 16 property on demand.”). 17 B. Requests for Production of Documents (“POD”) Nos. 1, 5, 7, 9–12, 15 18 POD No. 1: 19 Copies of all correspondences submitted by me to the warden of CCI at Tehachapi K. 20 Holland from the period of August 19th, 2013 until September 25, 2015 (To include staff 21 complaints etc;) 22 Response to POD No. 1: 23 Defendant objects to this request because it is vague, ambiguous, compound, overbroad, 24 and unduly burdensome as to time, scope, and content. Defendant further objects that this request 25 seeks information that Defendant has already produced to Plaintiff with his motion for summary 26 judgment and information that is contained within his central file and, therefore, equally available 27 to him. Without waiving the objections, Defendant produces copies of the correspondence 28 between Plaintiff and the Warden’s Office between August 19, 2013, and September 19, 2015, 1 and the Inmate/Parolee Appeals Tracking System (IATS) report for Plaintiff’s inmate appeals 2 submitted at CCI during the relevant period. 3 Ruling on POD No. 1: 4 Plaintiff’s request is overly broad, unduly burdensome as to time, scope, and content, and 5 not proportional to the needs of this case. This case proceeds only on Plaintiff’s claim that 6 Defendant Knowlton used excessive force against Plaintiff on September 9, 2013. (ECF No. 2.) 7 In spite of Defendant’s proper objections, Defendant provided responsive documents covering the 8 relevant time period, and Plaintiff has not described how those responses are insufficient. 9 Defendant’s objection to POD No. 1 is sustained. 10 POD No. 5: 11 A copy of the complaint Smith v. Becerra 2:19-cv-00287 KJM-DB-D to include the 12 documents filed in support of motion for a TRO/Prelim Injunction i.e., all exhibits and motions. 13 Response to POD No. 5: 14 Defendant objects to this request because it is vague, ambiguous, overbroad, unduly 15 burdensome, irrelevant to any claims or defenses in this action and not proportional to the needs 16 in this case. Defendant further objects that this request seeks information that is equally available 17 to Plaintiff. 18 Ruling on POD No. 5: 19 Plaintiff’s request is overly broad, irrelevant to any claims or defenses in this action, and 20 not proportional to the needs of this case. This case proceeds only on Plaintiff’s claim that 21 Defendant Knowlton used excessive force against Plaintiff on September 9, 2013. (ECF No. 2.) 22 Despite Plaintiff’s repeated assertions to the contrary, filings from Plaintiff’s other cases are not 23 relevant to this action. (See ECF Nos. 8, 62.) Furthermore, these documents are not within 24 Defendant’s custody or control, and are equally available to Plaintiff. Defendant’s objection to 25 POD No. 5 is sustained. 26 POD No. 7: 27 Copy of DOM (Dept Operations Manual) (for 2013) subsections governing use of 28 pepperspray/prohibited use of pepperspray, regulation concerning inmate holding food port/cuff 1 port hostage, 2 Response to POD No. 7: 3 Defendant objects to this request because it is vague, ambiguous, overbroad, unduly 4 burdensome, and seeks information that is equally available to Plaintiff in the law library. 5 Without waiving the objections, Defendant produces non-confidential portions of the DOM 6 including sections 51020.15 through 51020.15.2, in effect on September 9, 2013. (See 7 Defendants’ privilege log for a list of documents not produced.) 8 Ruling on POD No. 7: 9 Defendant produced responsive documents to POD No. 7, including the non-confidential 10 portions of the DOM in effect at the relevant time. Plaintiff’s only argument is that the 11 regulations are not confidential and are readily available to him or any inmate within the custody 12 of the department upon request. (ECF No. 48, p. 7.) Accordingly, any relevant portions of the 13 DOM that Plaintiff believes are responsive to this request are equally available to Plaintiff. 14 Defendant’s objection to POD No. 7 is sustained. 15 POD No. 9: 16 Copy of the Civil Docket for Case No. 1:10-cv-01814 DAD-JLT i.e., Smith v Allison 17 Response to POD No. 9: 18 Defendant objects to this request because it is overbroad, unduly burdensome, irrelevant 19 to any claims or defenses and not proportional to the needs in this case. Defendant further objects 20 that this request seeks information that is equally available to Plaintiff. 21 Ruling on POD No. 9: 22 Plaintiff’s request is overly broad, irrelevant to any claims or defenses in this action, and 23 not proportional to the needs of this case. This case proceeds only on Plaintiff’s claim that 24 Defendant Knowlton used excessive force against Plaintiff on September 9, 2013. (ECF No. 2.) 25 Despite Plaintiff’s repeated assertions to the contrary, filings from Plaintiff’s other cases are not 26 relevant to this action. (See ECF Nos. 8, 62.) Furthermore, these documents are not within 27 Defendant’s custody or control, and are equally available to Plaintiff. Defendant’s objection to 28 POD No. 9 is sustained. 1 POD No. 10: 2 Copies of any citizens complaints and/or staff complaints submitted against Officer D. 3 Knowlton 4 Response to POD No. 10: 5 Defendant objects to this request because it is vague, ambiguous, overbroad as to time and 6 subject matter, and unduly burdensome. Defendant also objects on the ground that this request 7 seeks irrelevant information not proportional to the needs in this case; seeks inadmissible 8 character evidence; and potentially calls for documents protected by the official information 9 privilege, California Government Code section 6254, and California Evidence Code sections 10 1040, 1041, and 1043. Defendant further objects that this request also seeks documents that may 11 contain confidential and private information about other inmates’ medical conditions, custody 12 classifications, and other sensitive information, the disclosure of which would create a hazard to 13 the safety and security of the institution and violates the inmates’ rights to privacy and 14 confidentiality. Without waiving the objections, Defendant produces the Inmate/Parolee Appeals 15 Tracking System (IATS) report for Staff Complaints filed against Defendant with third party 16 inmate information redacted. (See Defendants’ privilege log for a list of documents not 17 produced.) 18 Ruling on POD No. 10: 19 Plaintiff’s request is overly broad, geared towards obtaining inadmissible character 20 evidence, and not proportional to the needs of his case. Generally, evidence of a person’s 21 character is not admissible to prove they acted in conformity with that character on a particular 22 occasion. Fed. R. Evid. 404(a). It is well established that blanket requests for all grievances 23 against defendants in order to establish a pattern of misconduct may be considered overbroad and 24 burdensome. Valenzuela v. Smith, Case No. CIV S-04-0900 FCD DAD P, 2006 WL 403842, at 25 *2 (E.D. Cal. Feb. 15, 2006). In light of the breadth of Plaintiff’s request and Defendant’s 26 production of responsive documents, with appropriate redactions, the Court finds it unnecessary 27 to address Defendant’s assertion of the official information privilege. Defendant’s objection to 28 POD No. 10 is sustained. 1 POD No. 11: 2 All secondary reports generated in concern to Officer Knowlton’s use of force against me 3 i.e., CDCR forms 3010, 3011, 3012, 3034 and 3036 4 Response to POD No. 11: 5 Defendant objects to this request because the phrase “secondary reports generated in 6 concern to Officer Knowlton’s use of force against me” is vague, ambiguous and overbroad in 7 time and subject matter. Defendant also objects to this request on the ground that it seeks 8 irrelevant information not proportional to the needs in this case. Without waiving the objections, 9 Defendant produces copies of the CCI Rules Violation Report, log number CCI-FB-13-09-0002, 10 and the Incident Report, log number CCI-FB-13-09-0220. 11 Ruling on POD No. 11: 12 Although POD No. 11 is not specific as to time, the Court finds that in light of 13 Defendant’s production of the Rules Violation Report and Incident Report relevant to the use of 14 force incident on September 9, 2013, the request is not vague and does not seek information that 15 is irrelevant or disproportional to the needs in this case. Defendant does not address Plaintiff’s 16 request for secondary reports, which he specifies as CDCR forms 3010, 3011, 3012, 3034, and 17 3036, in either the objections to POD No. 11 or the opposition to the motion to compel. Nor does 18 Defendant assert whether he engaged in a reasonable and diligent search for any other responsive 19 information aside from the Rules Violation Report and Incident Report produced, whether the 20 specified forms exist with respect to the September 9, 2013 use of force, and if they exist, 21 whether they are subject to any form of privilege. As such, Plaintiff’s motion to compel with 22 respect to POD No. 11 is granted. 23 However, the Court finds it appropriate to stay any supplemental response to POD No. 11 24 pending resolution of Defendant’s motion for summary judgment on the issue of exhaustion of 25 administrative remedies. The Court granted Defendant’s motion for a protective order relieving 26 him of the obligation to respond to Plaintiff’s November 20, 2019 discovery requests until the 27 pending motion for summary judgment is resolved, as those requests are related to the merits of 28 this action rather than the issue of exhaustion. (ECF No. 54.) The Court finds that POD No. 11 is 1 similarly related to the merits of this action, rather than exhaustion. Accordingly, Defendant is 2 relieved of the obligation to serve a supplemental response to POD No. 11 until after resolution of 3 the summary judgment motion. 4 To the extent Plaintiff believes sanctions are appropriate with respect to Defendant’s 5 original response to POD No. 11, any such request is denied. Defendant has not failed to obey an 6 order to provide or permit discovery, Fed. R. Civ. P. 37(b)(2)(A), and the Court does not find 7 evidence of bad faith, Fink, 239 F.2d at 991. 8 POD No. 12: 9 Copies of any reprimands demotions or adverse actions initiated against Officer Knowlton 10 by CDCR based on improper conduct 11 Response to POD No. 12: 12 Defendant objects to this request because it is vague, ambiguous and overbroad as to time 13 and subject matter. Defendant also objects to this request on the ground that it seeks irrelevant 14 information not proportional to the needs in this case; seeks inadmissible character evidence; and 15 potentially calls for documents protected by the official information privilege, California 16 Government Code section 6254, and California Evidence Code sections 1040, 1041, and 1043. 17 Defendant further objects that this request also seeks documents that may contain confidential and 18 private information about other inmates’ medical conditions, custody classifications, and other 19 sensitive information, the disclosure of which would create a hazard to the safety and security of 20 the institution and violates the inmates’ rights to privacy and confidentiality. Without waiving the 21 objections, Defendant responds: there are no documents in Defendant’s custody and control 22 responsive to this request. 23 Ruling on POD No. 12: 24 Plaintiff’s request is overly broad, geared towards obtaining inadmissible character 25 evidence, and not proportional to the needs of his case. Generally, evidence of a person’s 26 character is not admissible to prove they acted in conformity with that character on a particular 27 occasion. Fed. R. Evid. 404(a). It is well established that blanket requests for all grievances 28 against defendants in order to establish a pattern of misconduct may be considered overbroad and 1 burdensome. Valenzuela v. Smith, Case No. CIV S-04-0900 FCD DAD P, 2006 WL 403842, at 2 *2 (E.D. Cal. Feb. 15, 2006). In light of the breadth of Plaintiff’s request and Defendant’s 3 assertion that despite engaging in a diligent and reasonable search for any responsive information, 4 no responsive documents were located, the Court finds it unnecessary to address Defendant’s 5 assertion of the official information privilege. Defendant’s objection to POD No. 12 is sustained. 6 POD No. 15: 7 Copies of all CDCR 1083 forms generated in my name and signed by me from the period 8 of January 1st, 2018 until present date 9 Response to POD No. 15: 10 Defendant objects to this request because it is irrelevant to any claims or defenses and not 11 proportional to the needs in this case because the time period between January 1, 2018, and the 12 current date are not at-issue in this case. Defendant further objects that this request is vague, 13 ambiguous, overbroad, compound, and unduly burdensome. 14 Ruling on POD No. 15: 15 Plaintiff’s request is overly broad, irrelevant to any claims or defenses in this action, and 16 not proportional to the needs of this case. Plaintiff’s argument that the documents are relevant to 17 supporting his August 16, 2019 motion for sanctions is unpersuasive in light of the Court’s denial 18 of the motion by the instant order. Defendant’s objection to POD No. 15 is sustained. 19 IV. Order 20 Based on the foregoing, IT IS HEREBY ORDERED as follows: 21 1. Plaintiff’s motion for sanctions, (ECF No. 36), is DENIED; 22 2. Plaintiff’s motion for sanctions, construed as a motion to compel discovery, (ECF No. 48), 23 is GRANTED IN PART and DENIED IN PART, as follows: 24 a. Plaintiff’s motion to compel with respect to POD No. 11 is GRANTED; and 25 b. Plaintiff’s motion to compel with respect to POD Nos. 1, 5, 7, 9–10, 12, and 15 is 26 DENIED; and 27 /// 28 /// 1 3. Defendant is relieved of the obligation to serve a supplemental response to POD No. 11 2 pending resolution of the motion for summary judgment on the issue of exhaustion of 3 administrative remedies. 4 IT IS SO ORDERED. 5

6 Dated: February 2, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7

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