(PC) Thomas v. Newsom

• Court: District Court, E.D. California
• Decided: January 16, 2024
• Docket: 1:23-cv-00622
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PRENTICE RAY THOMAS, Case No. 1:23-cv-00622-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 NEWSOM, et al., FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, FOR 15 Defendants. FAILURE TO STATE A CLAIM, FAILURE TO OBEY COURT ORDERS, AND FAILURE 16 TO PROSECUTE 17 (ECF Nos. 7, 9, 11) 18 FOURTEEN (14) DAY DEADLINE 19 20 I. Background 21 Plaintiff Prentice Ray Thomas (“Plaintiff”) is a county jail inmate and former state 22 prisoner proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. 23 § 1983. 24 On September 13, 2023, the Court issued a screening order granting Plaintiff leave to file 25 a first amended complaint or a notice of voluntary dismissal within thirty (30) days. (ECF No. 7.) 26 The Court expressly warned Plaintiff that the failure to comply with the Court’s order would 27 result in a recommendation for dismissal of this action, with prejudice. (Id. at 10.) The Court 28 granted Plaintiff several extensions of time. (ECF Nos. 9, 11.) The extended deadline has 1 expired, and Plaintiff has failed to file an amended complaint or otherwise communicate with the 2 Court. 3 II. Failure to State a Claim 4 A. Screening Requirement 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). 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 Atlantic 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 B. Plaintiff’s Allegations 24 Plaintiff is a county jail inmate currently housed at the Lower Buckeye Jail in Phoenix, 25 Arizona. The events in the complaint are alleged to have occurred while Plaintiff was housed at 26 Wasco State Prison (“WSP”) in Wasco, California. Plaintiff names the following defendants: 27 (1) Gavin Newsom, Governor of the State of California; (2) Heather Shirley, Warden at WSP; 28 (3) State of California; and (4) Scott Degough, Plant Operator at WSP. 1 Plaintiff alleges as follows: 2 On February 6, 2023, the State of California, WSP, and Defendant Scott Degough posted 3 a notice in C-Yard about the contamination levels of Trichloropropane in Well #1 and Well #2, 4 the source of all WSP prisoners’ drinking water. The levels of Trichloropropane (“1,2,3-TCP”) is 5 equivalent to 0.005 ug/L (micrograms per liter) of water. First quarter 2023 showed 1,2,3-TCP 6 levels ranging from 0.008 ug/L, the maximum contaminant level (“MCL”), and this puts the state 7 in violation of Health and Safety Code Section 116450(g). Contamination levels are above the 8 standard for 1,2,3-TCP, in excess of the MCL will in time put a person at risk of getting cancer or 9 tapeworms. 10 The intentional violation of Health and Safety Code 116450(g) from the man-made 11 pollutant 1,2,3-TCP has been noted by WSP to be hazardous, and the likelihood of drinking this 12 chemical will have a harmful affect. These living conditions are unsanitary and in violation of 13 Plaintiff’s constitutional rights and deliberately indifferent to Plaintiff’s health. After 30 days of 14 drinking water that has been polluted with 1,2,3-TCP, prisoners start to have skin outbreaks, 15 neurological issues, and in most cases prisoners have passed out from drinking large sums of 16 water that have been polluted with 1,2,3-TCP. Subsequently, the State of California or WSP has 17 not taken any approach to the unconstitutional living condition. 1,2,3-TCP has left Plaintiff’s 18 skin pilling, itching, and discolored. 19 1,2,3-TCP is a colorless or straw-colored chemical compound which is slightly soluble in 20 water and produced by the chlorination of propylene or the addition of chlorine to certain organic 21 and inorganic compounds. TCP is a man-made pollutant that can be found at industrial and 22 hazardous waste sites. Prison officials are obligated to provide sufficient water, and it must be fit 23 to drink. Because of the unsafe drinking water, Plaintiff has a skin outbreak and has passed out 24 and hit his head because of how the pollutant has mixed with his medication. 25 WSP is also subjecting Plaintiff to black, gray, and white mold as well as leaks in the roof 26 of building C-3. The unconstitutional living conditions do not receive any attention from the 27 prison personnel. WSP has failed to act on these violations of safety code. Plaintiff has been 28 living with mold build up in the corner of his bed for over 60 days and it has affected his 1 breathing. 2 Plaintiff seeks compensatory, punitive, and exemplary damages. 3 C. Discussion 4 Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8, 18, and 20, 5 and fails to state a cognizable claim for relief. 6 1. Federal Rule of Civil Procedure 8 7 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 8 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 9 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 10 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 11 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 12 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 13 at 570). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 14 Twombly, 550 U.S. at 556–57; Moss, 572 F.3d at 969. 15 Here, Plaintiff’s complaint is short, but it is not a plain statement of his claims showing 16 that he is entitled to relief. Many of Plaintiff’s allegations, especially related to his claims about 17 mold in his bed area, are conclusory and Plaintiff does not identify when the incidents occurred or 18 who was involved. In any amended complaint, Plaintiff should state what happened, when it 19 happened, and who was involved. 20 2. Linkage 21 The Civil Rights Act under which this action was filed provides:

22 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, 23 privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for 24 redress. 25 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 26 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 27 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 28 Ninth Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional 1 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 2 affirmative acts or omits to perform an act which he is legally required to do that causes the 3 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 Plaintiff alleges only that Defendant Degough posted a notice regarding the contaminated 5 drinking water at WSP. Plaintiff does not allege that any other defendant took or failed to take 6 any other action regarding the contaminated drinking water. Plaintiff also fails to link any 7 defendant to his claims regarding mold. 8 3. Federal Rules of Civil Procedure 18 and 20 9 Plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed. 10 R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 11 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so 12 long as (1) the claim arises out of the same transaction or occurrence, or series of transactions and 13 occurrences, and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); 14 Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). The “same transaction” requirement 15 refers to similarity in the factual background of a claim. Id. at 1349. Only if the defendants are 16 properly joined under Rule 20(a) will the Court review the other claims to determine if they may 17 be joined under Rule 18(a), which permits the joinder of multiple claims against the same party. 18 Plaintiff may not raise different claims against different defendants in a single action. For 19 instance, Plaintiff may not, in a single case, assert a claim related to contaminated drinking water 20 while simultaneously asserting a claim related to a leaking roof and mold in his bed area 21 (presumably against a different set of defendants), even though both claims arose while Plaintiff 22 was housed at the same institution. Unrelated claims involving different defendants belong in 23 different suits. 24 4. Eleventh Amendment Immunity 25 Plaintiff appears to be attempting to sue defendants for monetary damages in their official 26 and individual capacities. “Suits against state officials in their official capacity . . . should be 27 treated as suits against the State.” Hafer v. Melo, 502 U.S. 21, 25 (1991); Holley v. Cal. Dep’t of 28 Corr., 599 F.3d 1108, 1111 (9th Cir. 2010) (treating prisoner’s suit against state officials in their 1 official capacities as a suit against the state of California). An official capacity suit “represent[s] 2 only another way of pleading an action against an entity of which an officer is an agent.” 3 Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citation omitted). Such a suit “is not a suit 4 against the official personally, for the real party in interest is the entity.” Id. at 166 (emphasis in 5 original). 6 “The Eleventh Amendment bars suits for money damages in federal court against a state, 7 its agencies, and state officials acting in their official capacities.” Aholelei v. Dep’t of Public 8 Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Indeed, the Eleventh Amendment prohibits federal 9 courts from hearing a Section 1983 lawsuit in which damages or injunctive relief is sought against 10 a state, its agencies (such as CDCR) or individual prisons, absent “a waiver by the state or a valid 11 congressional override. . . .” Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). “The 12 Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, ‘an 13 arm of the state,’ its instrumentalities, or its agencies.” See Fireman’s Fund Ins. Co. v. City of 14 Lodi, Cal., 302 F.3d 928, 957 n.28 (9th Cir. 2002) (internal quotation and citations omitted), cert. 15 denied, 538 U.S. 961 (2003). “The State of California has not waived its Eleventh Amendment 16 immunity with respect to claims brought under § 1983 in federal court. . . .” Dittman, 191 F.3d at 17 1025–26 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see also Brown v. 18 Cal. Dep’t. of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (finding California Department of 19 Corrections and California Board of Prison Terms entitled to Eleventh Amendment immunity). 20 Therefore, Plaintiff cannot pursue claims for damages or injunctive relief against the State 21 of California or Governor Newsom in this action. Plaintiff’s claim for monetary damages against 22 the named defendants in their official capacities also are barred by the Eleventh Amendment. 23 5. Supervisory Liability 24 Insofar as Plaintiff is attempting to sue the Governor, Warden, or any other defendant, 25 based solely upon his or her supervisory role, he may not do so. Liability may not be imposed on 26 supervisory personnel for the actions or omissions of their subordinates under the theory of 27 respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 28 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. 1 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 2 Supervisors may be held liable only if they “participated in or directed the violations, or 3 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 4 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. 5 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established 6 when an official sets in motion a ‘series of acts by others which the actor knows or reasonably 7 should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at 8 570. Supervisory liability may also exist without any personal participation if the official 9 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 10 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 11 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other 12 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). When a defendant holds a supervisory 13 position, the causal link between such defendant and the claimed constitutional violation must be 14 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 15 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement 16 of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 17 673 F.2d 266, 268 (9th Cir. 1982). 18 As pled, Plaintiff fails to state a claim against any defendant based on their supervisory 19 roles. While Plaintiff alleges that Defendant Scott Degough (together with the State of California 20 and WSP) posted a notice regarding the contamination levels of 1,2,3-TCP in the drinking water 21 for WSP prisoners, Plaintiff does not allege whether any defendant took any action, or failed to 22 take any action, to correct the drinking water after the notice was posted. Plaintiff also does not 23 allege that any defendant was aware of the water contamination prior to the notice being posted. 24 6. Eighth Amendment – Conditions of Confinement 25 The Eighth Amendment protects prisoners from inhumane methods of punishment and 26 from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. 27 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison 28 officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 1 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2 2000) (quotation marks and citations omitted). To establish a violation of the Eighth 3 Amendment, the prisoner must “show that the officials acted with deliberate indifference . . .” 4 Labatad v. Corrs. Corp. of Amer., 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. Cty. of 5 Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)). 6 The deliberate indifference standard involves both an objective and a subjective prong. 7 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer, 511 8 U.S. at 834. Second, subjectively, the prison official must “know of and disregard an excessive 9 risk to inmate health or safety.” Id. at 837; Anderson v. Cty. of Kern, 45 F.3d 1310, 1313 (9th 10 Cir. 1995). 11 Objectively, extreme deprivations are required to make out a conditions-of-confinement 12 claim and only those deprivations denying the minimal civilized measure of life’s necessities are 13 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 14 503 U.S. 1, 9 (1992). Although the Constitution “‘does not mandate comfortable prisons,’” 15 Wilson v. Seiter, 501 U.S. 294, 298 (1991), “inmates are entitled to reasonably adequate 16 sanitation, personal hygiene, and laundry privileges, particularly over a lengthy course of time,” 17 Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989). 18 Courts have long recognized that exposure to environmental conditions which pose a 19 health risk, either present or future, can support a claim under the Eighth Amendment. Helling v. 20 McKinney, 509 U.S. 25, 3335 (1993) (environmental tobacco smoke); Wallis v. Baldwin, 70 F.3d 21 1074, 1076 (9th Cir. 1995) (asbestos); Carter v. Smith, No. C–13–4373 EMC (pr), 2015 WL 22 4322317, at *7–11 (N.D. Cal. 2015) (lead paint and asbestos); Yellen v. Olivarez, No. CIV S–94– 23 1298 GEB DAD P, 2012 WL 3757373, at *8 (E.D. Cal. 2012) (contaminated water), adopted in 24 full, 2012 WL 4210030 (E.D. Cal. 2012); Rouse v. Caruso, No. 06–CV–10961–DT, 2011 WL 25 918327, at *24–25 (E.D. Mich. 2011) (contaminated water), adopted in full, 2011 WL 893216 26 (E.D. Mich. 2011). 27 /// 28 /// 1 Contaminated Drinking Water 2 Plaintiff may be able to state a claim related to the contaminated drinking water. 3 However, based on the allegations in the complaint, Plaintiff has not alleged that any defendant 4 was aware of the problem before the February 6, 2023 notice was posted, or whether any 5 defendant then took action (or failed to take action) either before or after the notice was posted. 6 Mold from Leaking Roof 7 Plaintiff may also be able to state a claim related to mold in his bed area due to a leaking 8 roof. However, Plaintiff has not linked this claim to any of the named defendants, and it is not 9 clear whether he notified anyone about the mold in his cell. In addition, this claim does not 10 appear to be properly joined. 11 7. Exhaustion of Administrative Remedies 12 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 13 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 14 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 15 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are 16 required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 17 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 18 Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief 19 offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion 20 requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 21 (2002). 22 Here, Plaintiff states with respect to his claim about mold that while there are 23 administrative remedies available at his institution and he submitted a request for administrative 24 relief for this claim, he did not appeal his request for relief to the highest level. (ECF No. 1, p. 6.) 25 Plaintiff does not explain why he did not appeal to the highest level. 26 /// 27 /// 28 /// 1 III. Failure to Prosecute and Failure to Obey a Court Order 2 A. Legal Standard 3 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 4 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 5 within the inherent power of the Court.” District courts have the inherent power to control their 6 dockets and “[i]n the exercise of that power they may impose sanctions including, where 7 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 8 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 9 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 10 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 11 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 12 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 13 (dismissal for failure to comply with court order). 14 In determining whether to dismiss an action, the Court must consider several factors: 15 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 16 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 17 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 18 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 19 B. Discussion 20 Here, Plaintiff’s first amended complaint is overdue, and he has failed to comply with the 21 Court’s order. The Court cannot effectively manage its docket if Plaintiff ceases litigating his 22 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 23 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 24 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 25 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 26 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 27 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 28 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 1 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 2 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 3 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 4 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 5 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s September 13, 2023 6 screening order and October 17, 2023 and November 28, 2023 orders granting Plaintiff’s motions 7 for extension of time expressly warned Plaintiff that his failure to file an amended complaint 8 would result in a recommendation of dismissal of this action, with prejudice, for failure to obey a 9 court order and for failure to state a claim. (ECF No. 7, p. 10; ECF No. 9, p. 2; ECF No. 11, p. 2.) 10 Thus, Plaintiff had adequate warning that dismissal could result from his noncompliance. 11 Additionally, at this stage in the proceedings there is little available to the Court that 12 would constitute a satisfactory lesser sanction while protecting the Court from further 13 unnecessary expenditure of its scarce resources. As Plaintiff is proceeding in forma pauperis in 14 this action, it appears that monetary sanctions will be of little use and the preclusion of evidence 15 or witnesses is likely to have no effect given that Plaintiff has ceased litigating his case. 16 IV. Conclusion and Recommendation 17 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 18 district judge to this action. 19 Furthermore, the Court finds that dismissal is the appropriate sanction and HEREBY 20 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim 21 pursuant to 28 U.S.C. § 1915A, for failure to obey court orders, and for Plaintiff’s failure to 22 prosecute this action. 23 These Findings and Recommendation will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 25 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 26 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 27 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 28 specified time may result in the waiver of the “right to challenge the magistrate’s factual 1 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 2 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4

5 Dated: January 16, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28