Purpura v. Does Members of the Inmate Classification Committee

• Court: District Court, S.D. California
• Decided: June 7, 2023
• Docket: 3:20-cv-01688
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANK PURPURA, Case No.: 20cv1688-JAH(BGS)

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION TO DENY DEFENDANT’S MOTION TO 14 DOES MEMBERS OF THE INMATE DISMISS [ECF 29] CLASSIFICATION COMMITTEE, et al., 15 Defendants. 16 17 18 Presently before the Court is a Motion to Dismiss Fourth Amended Complaint 19 filed by Defendant R. Calvert. (ECF 29.) Plaintiff filed an opposition to the motion. (ECF 20 34.) Defendant filed a reply. (ECF 36.) 21 This Report and Recommendation is submitted to United States District Judge 22 John A. Houston pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c). For the 23 reasons discussed below, IT IS RECOMMENDED that the Motion to Dismiss be 24 DENIED. 25 26 27 28 1 I. BACKGROUND 2 A. Procedural History 3 Following the filing of the initial Complaint (ECF 1) and the Court’s pre-answer 4 screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), Plaintiff filed a First 5 Amended Complaint (“FAC”). (ECF 6, 9.) 6 Plaintiff’s First Amended Complaint (“FAC”), asserting claims for violation of 7 California Government Code § 844.6(d) and the Eighth and Fourteenth Amendments 8 against Defendant Calvert and Does Members of the Inmate Classification Committee 9 (“Doe Defendants”),1 alleged that Plaintiff, a Level 2 inmate, was stabbed by a Level 4 10 inmate with a known history of attacking inmates. (ECF 18 (FAC ¶¶ 10, 12, 14, 17).) 11 Plaintiff contended that putting Level 2 inmates and Level 4 inmates in the same yard put 12 Level 2 inmates at severe risk of harm and that Plaintiff was stabbed and cut when 13 attacked by a Level 4 inmate. (ECF 18 at 2 (summarizing allegations of FAC).) In its 14 order granting Defendant Calvert’s motion to dismiss the FAC with leave to amend, the 15 Court found the FAC “lacked sufficient allegations that Defendant Calvert knew of a 16 substantial risk of serious harm to Plaintiff’s health or safety.” (Id. at 6.) More 17 specifically, the Order indicated the FAC lacked allegations showing Defendant “was 18 aware of facts from which the inference could be drawn that a substantial risk of harm 19 existed,” i.e. deliberate indifference. (Id. at 6-7.) The district court also declined to 20 exercise supplemental jurisdiction over Plaintiff’s state law claim and dismissed it 21 without prejudice. (Id. at 7-8.) 22

23 1 In its screening order, the Court stated that while Doe pleading is generally disfavored, 24 “where the identity of an alleged party is not known prior to filing of an action, Ninth 25 Circuit authority permits Plaintiff the opportunity to pursue appropriate discovery to identify the unknown Doe, unless it is clear that discovery would not uncover their 26 identity, or his pleading requires dismissal for other reasons. (ECF 6 at 5 n.2.) The Court 27 indicated that once the Doe defendants are identified, Plaintiff must substitute their true names in an amended pleading before the United States Marshal will be able to execute 28 1 On November 29, 2021, Plaintiff filed a Second Amended Complaint (“SAC”). 2 (ECF 19.) Plaintiff then filed a Third Amended Complaint (“TAC”) on December 20, 3 2021. (ECF 20.) In the TAC, Plaintiff alleged that the Inmate Classification Committee 4 (“ICC”) has “four levels of classification” for inmates and that the “lower the number 5 assigned, the less of a risk the inmate is deemed to be.” (TAC ¶¶ 8-9.) Plaintiff asserted 6 that “Level 2 inmates are never supposed to be lodged with Level 4 inmates” and 7 “Defendants knew that housing Level 2 inmates alongside Level 4 inmates puts Level 2 8 inmates at severe risk of harm.” (Id. ¶¶ 11, 17.) Plaintiff claimed that he was a “Level 2 9 inmate housed with Levels 2 and 3” and Inmate Bevell was a Level 4 inmate “improperly 10 placed [into] Plaintiff’s yard,” and realleged his injuries, including increased anxiety and 11 post-traumatic stress disorder resulting from an attack by Bevell. (Id. ¶¶ 10, 12-13, 22, 12 24.) The TAC, like the dismissed FAC, also alleged “housing Level 2 inmates alongside 13 Level 4 inmates puts Level 2 inmates at severe risk of harm” and that Inmate Bevell had 14 a “history of attacking inmates.” (Id. ¶¶ 14, 17.) Specifically, the TAC newly alleged that 15 Inmate Bevell “had received citations, or Rules Violations Reports, for violence against 16 inmates or weapons as recent as a year before he was placed in Plaintiff’s yard.” (Id. ¶ 17 15.) And, as to Defendants’ knowledge, Plaintiff asserted that Defendants were aware of 18 Inmate Bevell’s citations, knew Inmate Bevell’s history included attacking “cellmates[] 19 and weapons violations,” “knew [Inmate Bevell] was a threat to Plaintiff and other 20 inmates similarly situated,” knew he was a Level 4 inmate, and “disregarded the threat 21 Inmate Bevell posed to Plaintiff and other inmates.” (Id. ¶¶ 12, 14-16, 18.) Defendant 22 Calvert filed a Motion to Dismiss the TAC. (ECF 21.) 23 In a Report and Recommendation filed on July 22, 2022, this Court recommended 24 that the district judge issue an order granting Defendant’s motion to dismiss with leave to 25 amend. (ECF 25.) The Court found the TAC was “lacking in non-conclusory factual 26 allegations plausibly alleging Defendant was aware Inmate Bevell posed a substantial 27 risk of serious harm to Plaintiff or anyone else.” (ECF 25 at 8.) The Court determined 28 that the allegations that Level 4 inmates are more of a risk than Level 2 inmates and that 1 levels are based on violence potential and behavior history were “generalized allegations 2 that do not indicate a substantial risk of serious harm that was disregarded by Defendant.” 3 (Id. at 9.) As to the new allegations about what Defendant knew about Inmate Bevell, the 4 Court explained that the TAC contained only vague allegations that Bevell “had received 5 citations, or Rules Violations Reports, for violence against inmate or weapons as recent 6 as under a year before he was placed in Plaintiff’s yard.” (Id. at 10 (emphasis added).) 7 The Court stated, “Without more factual detail, the citations do not sufficiently support 8 the allegation that Defendant was aware of a substantial risk of harm to other inmates 9 based on them.” (Id. at 11.) The Court concluded, “[T]he TAC lacks sufficient factual 10 allegations that would allow the Court to draw the reasonable inference that Defendant 11 was deliberately indifferent to Plaintiff’s safety.” (Id.) District Judge Houston issued an 12 order adopting the Report and Recommendation on August 16, 2022. (ECF 26.) 13 B. Fourth Amended Complaint 14 On October 5, 2022, Plaintiff filed a Fourth Amended Complaint (“4AC”) against 15 Defendant Calvert and Doe Defendants. (ECF 27.) Most of the allegations in the 4AC are 16 the same or similar to Plaintiff’s prior complaints, including that the ICC has four levels 17 of classification, Levels 1-4, and the lower the number assigned, the less of a risk the 18 inmate is deemed to be based on factors such as violence potential and behavior history; 19 Plaintiff was a Level 2 inmate; the yard he was on was intended only for inmates 20 classified as Level 2 and 3; Inmate Bevell was a Level 4 inmate and Defendants knew 21 this; Defendants improperly placed Inmate Bevell in Plaintiff’s yard, and Defendants 22 knew of Bevell’s history of attacking inmates and weapons violations. (4AC ¶¶ 10-13, 23 15-16.) Plaintiff adds a new allegation not contained in the prior complaints: “Inmate 24 Bevell had just completed time in the Segregated Housing Unit (“SHU”) for stabbing 25 another inmate, which R. Calvert and [Doe Defendants] were aware of.” (Id. ¶ 14.) The 26 4AC also supplements Plaintiff’s allegation that Inmate Bevell had received other 27 citations for violence against inmates or weapons “as recent as under a year before he 28 was placed in Plaintiff’s yard” by adding that those other citations were “apart from the 1 one he had just completed time in the SHU for,” and reasserts that Defendants were 2 aware of his citations. (Id. ¶¶ 17-18.) Plaintiff contends again that Defendants disregarded 3 the threat posed by Inmate Bevell to him and other inmates; no penological interest 4 existed for placing Bevell in Plaintiff’s yard; and Defendant Calvert, as the chairperson of 5 the ICC, “makes the final decision about where an inmate is placed.” (Id. ¶¶ 20-22.) 6 Plaintiff then reiterates his prior allegations that Inmate Bevell attacked him, he sustained 7 seven cuts and two stab wounds, received seven stitches, re-tore his right rotator cuff for 8 which he had undergone surgery four months prior to the attack, and experienced anxiety 9 and post-traumatic stress disorder. (Id. ¶¶ 24-26.) 10 Plaintiff’s 4AC asserts a claim for negligence/wrongful act and omission under 11 California Government Code § 844.6(d) (claim one) and a 42 U.S.C. § 1983 claim for 12 failure to protect under the Eighth and Fourteenth Amendments (claim two). (Id. at 6-7.) 13 II. LEGAL STANDARDS 14 A. Motion to Dismiss 15 Defendant Calvert moves to dismiss Plaintiff’s 4AC pursuant to Federal Rule of 16 Civil Procedure 12(b)(6). (ECF 29.) A motion to dismiss under Rule 12(b)(6) may be 17 based on either a “lack of a cognizable legal theory” or “the absence of sufficient facts 18 alleged under a cognizable legal theory.” Johnson v. Riverside Healthcare Sys., LP, 534 19 F.3d 1116, 1121 (9th Cir. 2008) (citing Fed. R. Civ. P. 8(a)(2)). “To survive a motion to 20 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 21 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 22 (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable 24 for the misconduct alleged.” Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 25 (9th Cir. 2009) (citation omitted) (“[F]or a complaint to survive a motion to dismiss, the 26 non-conclusory ‘factual content,’ and reasonable inferences from that content, must be 27 plausibly suggestive of a claim entitling the plaintiff to relief.”). 28 1 When considering a Rule 12(b)(6) motion to dismiss, the Court must “accept all 2 allegations of material fact in the complaint as true and construe them in the light most 3 favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of 4 Postmasters, 497 F.3d 972, 975 (9th Cir. 2007). “The court need not, however, accept as 5 true allegations that are merely conclusory, unwarranted deductions of fact, or 6 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 7 2001); see also Iqbal, 556 U.S. at 679 (“[A] court considering a motion to dismiss can 8 choose to begin by identifying pleadings that, because they are no more than conclusions, 9 are not entitled to the assumption of truth.”). “Threadbare recitals of the elements of a 10 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 11 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the 12 speculative level.” Bell Atl. Corp. v. Twombley, 550 U.S. 544, 555 (2007) (citations 13 omitted). 14 B. 42 U.S.C. § 1983 Standard 15 Plaintiff’s failure to protect claim is brought under 42 U.S.C. § 1983. (ECF 27 at 6- 16 7.) “Section 1983 provides a federal cause of action against any person who, acting under 17 color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526 U.S. 286, 18 290 (1999). The statute “offers no substantive legal rights, but rather provides procedural 19 protections for federal rights granted elsewhere.” Roberts v. Klein, 770 F. Supp. 2d 1102, 20 1111 (D. Nev. 2011) (citing Albright v. Oliver, 510 U.S. 266, 271 (1994)). “Section 1983 21 is a ‘vehicle by which plaintiffs can bring federal constitutional and statutory challenges 22 to actions by state and local officials.’” Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 23 2015) (quoting Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006)). “To state a 24 claim under § 1983, a plaintiff [1] must allege the violation of a right secured by the 25 Constitution and laws of the United States, and [2] must show that the alleged deprivation 26 was committed by a person acting under color of state law.” Id. at 1035-36 (quoting West 27 v. Atkins, 487 U.S. 42, 48 (1988)). 28 1 C. Failure to Protect 2 “[P]rison officials have a duty . . . to protect prisoners from violence at the hands 3 of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations omitted); see 4 also Labatad v. Corrs. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013) (“The Eighth 5 Amendment requires prison officials to take reasonable measures to guarantee the safety 6 of inmates, which has been interpreted to include a duty to protect prisoners.”) (citing 7 Farmer, 511 U.S. at 832-33 and Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005)). 8 “It is not, however every injury suffered by one prisoner at the hands of another that 9 translates into constitutional liability for prison officials responsible for the victim’s 10 safety.” Farmer, 511 U.S. at 834. “The failure of prison officials to protect inmates from 11 attacks by other inmates may rise to the level of an Eighth Amendment violation when: 12 (1) the deprivation alleged is ‘objectively, sufficiently serious’ and (2) the prison officials 13 had a ‘sufficiently culpable state of mind,’ acting with deliberate indifference.” Hearns, 14 413 F.3d at 1040 (quoting Farmer, 511 U.S. at 834). 15 1. Deliberate Indifference 16 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 17 1051, 1060 (9th Cir. 2004). An official must “know[] of and disregard an excessive risk 18 to inmate health or safety; the official must both be aware of the facts from which the 19 inference could be drawn that a substantial risk of serious harm exists, and he must also 20 draw the inference.” Farmer, 511 U.S. at 837;2 Labatad, 714 F.3d at 1160. “‘Deliberate 21 indifference entails something more than mere negligence but is satisfied by something 22 less than acts or omissions for the very purpose of causing harm or with knowledge that 23 harm will result.’” Hearns, 413 F.3d at 1040 (quoting Farmer, 511 U.S. at 835) (internal 24

25 2 In defining deliberate indifference, Farmer explains that the standard arises “from the 26 principle that only the unnecessary and wanton infliction of pain implicates the Eighth 27 Amendment.” Farmer, 511 U.S. at 834. “The Eighth Amendment does not outlaw cruel and unusual ‘conditions;’ it outlaws cruel and unusual ‘punishments.’” Id. 28 1 alterations omitted). “[A]n official’s failure to alleviate a significant risk that he should 2 have perceived but did not, while no cause for commendation, cannot under [the Supreme 3 Court’s] cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838. 4 III. DISCUSSION 5 A. Eighth Amendment 6 Defendant Calvert moves to dismiss the 4AC on the grounds that it is nearly 7 identical to the previously dismissed TAC and contends that because Plaintiff has failed 8 to allege a cognizable federal claim despite having five opportunities to do so, his motion 9 should be granted without leave to amend. (ECF 29 at 1-2.) He argues that the 4AC 10 “simply adds a few more conclusory statements that are not supported by factual 11 allegations, and do not address the court’s reasoning to dismiss his prior complaints.” 12 (ECF 29-1 at 1.) He acknowledges the new allegations in the 4AC, see 4AC ¶ 14 13 (“Inmate Bevell had just completed time in the [SHU] for stabbing another inmate, which 14 R. Calvert and Does were aware of.”) and id. ¶ 17 (“Inmate Bevell had received other 15 citations, or Rules Violations Reports, for violence against inmates or weapons as recent 16 as under a year before he was placed in Plaintiff’s yard apart from the one he had just 17 completed time in the SHU for.”), but contends these statements insufficiently allege that 18 Defendant Calvert knew Inmate Bevell would harm Plaintiff if they were both housed on 19 the same yard. (ECF 29-1 at 6.) Defendant points to the lack of any allegations that 20 Calvert knew Inmate Bevell would harm Plaintiff or anyone else on the yard, that he 21 knew of any issues between Bevell and Plaintiff, that he suspected Bevell would attack 22 Plaintiff, or that Plaintiff raised any concerns to Defendant or any prison employee. (Id.) 23 Defendant Calvert also asserts that he was “merely the chairperson of the [ICC] that 24 assessed Bevell’s placement.” (Id. at 2.) He contends that he would have had to have had 25 actual notice that Bevell would attack Plaintiff to have been deliberately indifferent to 26 Plaintiff’s safety. (Id.) 27 Plaintiff, relying on Ninth Circuit Manual of Model Civil Jury Instruction 9.28 28 (Particular Rights–Eighth Amendment–Convicted Prisoner’s Claim of Failure to Protect), 1 argues that he has made factual allegations for each element of a failure to protect claim. 2 (ECF 34 at 4.)3 In particular, he states that Defendant Calvert acted with deliberate 3 indifference when he placed Inmate Bevell into Plaintiff’s yard “despite his classification 4 as a higher risk, his recent SHU term for stabbing another inmate, and his recent history 5 of violence against inmates and weapons violations.” (Id. at 5.) He argues that Calvert, in 6 his role as chairperson of the ICC, would have known about Bevell’s classification status 7 and history of violence and thus knew the danger of putting Bevell in Plaintiff’s yard. 8 (Id.) Additionally, he asserts that Defendant Calvert’s knowledge of Inmate Bevell’s 9 tendency to attack inmates and have weapons, his SHU term for stabbing another inmate, 10 11 12 13 3 This instruction provides:

14 In order to prove the defendant deprived the plaintiff of [the Eighth 15 Amendment right to be free from “cruel and unusual punishments,” the plaintiff must prove the following elements by a preponderance of the 16 evidence: 17 1. the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 18 2. those conditions put the plaintiff at substantial risk of suffering 19 serious harm; 3. the defendant did not take reasonable available measures to abate 20 that risk, even though a reasonable officer in the circumstances would 21 have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and 22 4. by not taking such measures, the defendant caused the plaintiff’s 23 injuries. With respect to the third element, the defendant’s conduct must be both 24 objectively unreasonable and done with a subjective awareness of the risk of 25 harm. In other words, the defendant must have known facts from which an inference could be drawn that there was a substantial risk of serious harm, 26 and the defendant must have actually drawn that inference. 27 See Ninth Circuit Model Civil Jury Instruction No. 9.28 (2017). 28 1 and the dangers of placing Level 4 inmates with Level 2 inmates, would have meant that 2 Calvert had more than a “mere suspicion” that an attack would occur. (Id. at 6-7.) 3 As discussed above, the Court found that the TAC and prior complaints lacked 4 non-conclusory factual allegations plausibly alleging that Defendant was aware Inmate 5 Bevell posed a substantial risk of serious harm to Plaintiff or anyone else. (ECF 25 at 8.) 6 Unlike the allegations in the TAC, which were vague and conclusory, the new allegation 7 in the 4AC that Inmate Bevell had just completed time in the SHU for stabbing another 8 inmate at the time he was placed in Plaintiff’s yard is a non-conclusory and specific 9 factual allegation that raises an inference that Defendants knew of facts from which the 10 inference could be drawn that a substantial risk of harm existed, and that Defendants 11 drew that inference. See Farmer, 511 U.S. at 826 (“[A] factfinder may conclude that the 12 official knew of a substantial risk from the very fact that it was obvious.”); see also Berg 13 v. Kincheloe, 794 457, 459 (9th Cir. 1986) (“The [deliberate indifference] standard does 14 not require that the guard or official believe to a moral certainty that one inmate intends 15 to attack another at a given place at a time certain before that officer is obligated to take 16 steps to prevent such an assault.”) With the inclusion of the new factual allegations, 17 Plaintiff’s 4AC adequately pleads that Defendants knew placing Inmate Bevell in the 18 same yard as Plaintiff presented a substantial risk that he would stab Plaintiff, given their 19 knowledge of Bevell’s recent history of being placed in the SHU for stabbing another 20 inmate, and of his other citations for violence against other inmates or possessing 21 weapons, and they acted with deliberate indifference to Plaintiff’s safety by placing 22 Bevell in his yard irrespective of that risk. See Farmer, 511 U.S. at 837 (holding that 23 deliberate indifference exists when “the official knows of and disregards an excessive 24 risk to inmate health or safety”). Accordingly, the Court finds that Plaintiff’s allegations 25 in the 4AC are sufficient to state a failure to protect claim under the Eighth Amendment. 26 The Court therefore RECOMMENDS that Defendant Calvert’s motion to dismiss the 27 Eighth Amendment claim be DENIED. 28 / / / 1 B. State Law Claim 2 In his first claim for relief in the 4AC, Plaintiff asserts a claim for negligence/ 3 wrongful act and omission under California Government Code section 844.6(d). (4AC at 4 6.) Although a public entity may not be held liable for an injury to a prisoner under 5 section 844.6, a public employee is not exonerated from “liability for injury proximately 6 caused by his negligent or wrongful act or omission.” Cal. Gov’t Code § 844.6(a)(2), (d). 7 Here, Defendant seeks dismissal of this state law claim if Plaintiff’s federal claim is 8 dismissed. (ECF 29-1 at 7.) Because the Court does not recommend that Plaintiff’s 9 federal § 1983 claim be dismissed, the Court RECOMMENDS that Defendant’s motion 10 to dismiss Plaintiff’s state law claim be DENIED. 11 C. Fourteenth Amendment 12 In his second claim for relief in the 4AC, Plaintiff asserts a 42 U.S.C. § 1983 claim 13 for failure to protect under the Fourteenth Amendment, in addition to the Eighth 14 Amendment. When a specific constitutional Amendment “provides an explicit textual 15 source of constitutional protection against a particular set of government behavior, that 16 Amendment, not the more generalized notion of ‘substantive due process,’ must be the 17 guide for analyzing these claims.” Albright, 510 U.S. at 273 (quotation marks omitted). 18 Thus, “[a]ny “protection that ‘substantive due process’ affords convicted prisoners 19 against excessive force is . . . at best redundant of that provided by the Eighth 20 Amendment.” Graham v. Connor, 490 U.S. 386, 395 n.10 (1986). Here, Plaintiff’s failure 21 to protect claim falls squarely under the protections of the Eighth Amendment. See 22 Farmer, 511 U.S. at 832-33. As a result, his due process claim is preempted by the 23 Eighth Amendment and should not be analyzed as a substantive due process claim under 24 the Fourteenth Amendment. See Easter v. CDC, 694 F. Supp. 2d 1177, 1187 (S.D. Cal. 25 2010). Accordingly, the Court RECOMMENDS that Plaintiff’s claim under the 26 Fourteenth Amendment be DISMISSED without leave to amend and that his § 1983 27 claim for failure to protect proceed under the Eighth Amendment only. 28 1 CONCLUSION 2 For the reasons outlined above, IT IS RECOMMENDED that the District Court 3 |}issue an Order: (1) Approving and Adopting this Report and Recommendation; 4 ||(2) DENYING Defendants’ Motion to Dismiss the Eighth Amendment claim and state law 5 ||claim; and (3) DISMISSING Plaintiff's Fourteenth Amendment claim without leave to 6 || amend. 7 IT IS HEREBY ORDERED that any written objections to this Report must be filed 8 || with the Court and served on all parties no later than June 21, 2023. The document should 9 || be captioned “Objections to Report and Recommendation.” 10 IT IS FURTHER ORDERED that a reply to the objections shall be filed with the 11 Court and served on all parties no later than July 5, 2023. The parties are advised that the 12 || failure to file objections within the specified time may waive the right to raise those 13 || objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 14 Cir. 1998). 15 Dated: June 7, 2023 2 p / 16 on. Bernard G. Skomal 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28