1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SLY VAN BATTEN, No. 1:21-cv-00693-NONE-EPG (PS) 12 Plaintiff, SCREENING ORDER 13 v. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 14 FRESNO SUPERIOR COURT, et al., COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM, WITHOUT 15 Defendants. LEAVE TO AMEND 16 (ECF NO. 1) 17 TWENTY-ONE-DAY DEADLINE 18 19 Plaintiff Sly Van Batten (“Plaintiff”) is a state inmate proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 21 commencing this action on April 26, 2021. (ECF No. 1). The complaint brings claims for money 22 damages in relation to his sentence. The Court finds that the complaint fails to state any 23 cognizable claims. The Court further finds that Plaintiff’s complaint cannot be cured by 24 amendment and therefore recommends dismissing the complaint without leave to amend. 25 Plaintiff has twenty-one (21) days from the date of entry of these findings and 26 recommendations to file any objections. 27 /// 28 /// 1 I. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by inmates seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 Court must dismiss a complaint or portion thereof if the inmate has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 7 As Plaintiff is proceeding in forma pauperis, the Court may also screen the complaint under 28 8 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been paid, 9 the court shall dismiss the case at any time if the court determines that the action or appeal fails to 10 state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 11 A complaint is required to contain “a short and plain statement of the claim showing that 12 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 13 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 14 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 15 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 16 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 17 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this 18 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not 19 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 20 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal 21 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 22 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 23 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 24 pro se complaints should continue to be liberally construed after Iqbal). 25 II. ALLEGATIONS IN THE COMPLAINT 26 Plaintiff’s complaint alleges as follows: 27 /// 28 /// 1 A. First Claim 2 On November 2, 1993, Plaintiff was convicted and sentenced to juvenile detention for 3 four months. Plaintiff was then given a strike on August 18, 1995 for a 459/460 (A) felony violent 4 strike. Plaintiff was sentenced for diagnostic observation. Plaintiff has been scarred and injured 5 mentally and emotionally for 28 years. Plaintiff brings this claim against an unnamed Fresno 6 County Superior Court judge. 7 B. Second Claim 8 On August 18, 1995, the district attorney in case number 53532-5 violated Plaintiff’s 9 rights by giving him a strike on a 1993 PC 211 court case # 71248-9. He was only seventeen 10 years old. Plaintiff should not have been given a strike. 11 C. Third Claim 12 Plaintiff’s attorney violated his rights by letting the Fresno Superior Court give him a 13 strike on a prior conviction on November 2, 1993. On August 18, 1995, Plaintiff’s attorney talked 14 him into pleading no contest for a 459/460(A) so at the time of that year, Plaintiff did not know 15 what was going on. 16 Thus, the crux of Plaintiff’s three claims is that he was convicted as a juvenile on 17 November 2, 1993. Plaintiff pleaded no contest to a subsequent charge and was sentenced on 18 August 18, 1995. At that sentencing, Plaintiff’s 1993 conviction counted as a strike. Plaintiff 19 believes doing so violated Plaintiff’s rights and brings claims against an unnamed Fresno County 20 Superior Court judge, an unnamed district attorney, and an unnamed attorney. 21 III. SECTION 1983 22 The Civil Rights Act under which this action was filed provides: 23 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 24 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 25 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action 26 at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 27 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 28 1 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 2 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 3 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 4 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 5 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 6 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 7 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh 8 v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state 9 law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he 10 does an affirmative act, participates in another’s affirmative act, or omits to perform an act which 11 he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler 12 II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 13 588 F.2d 740, 743 (9th Cir. 1978)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SLY VAN BATTEN, No. 1:21-cv-00693-NONE-EPG (PS) 12 Plaintiff, SCREENING ORDER 13 v. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 14 FRESNO SUPERIOR COURT, et al., COMPLAINT BE DISMISSED FOR FAILURE TO STATE A CLAIM, WITHOUT 15 Defendants. LEAVE TO AMEND 16 (ECF NO. 1) 17 TWENTY-ONE-DAY DEADLINE 18 19 Plaintiff Sly Van Batten (“Plaintiff”) is a state inmate proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 21 commencing this action on April 26, 2021. (ECF No. 1). The complaint brings claims for money 22 damages in relation to his sentence. The Court finds that the complaint fails to state any 23 cognizable claims. The Court further finds that Plaintiff’s complaint cannot be cured by 24 amendment and therefore recommends dismissing the complaint without leave to amend. 25 Plaintiff has twenty-one (21) days from the date of entry of these findings and 26 recommendations to file any objections. 27 /// 28 /// 1 I. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by inmates seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 Court must dismiss a complaint or portion thereof if the inmate has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 7 As Plaintiff is proceeding in forma pauperis, the Court may also screen the complaint under 28 8 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been paid, 9 the court shall dismiss the case at any time if the court determines that the action or appeal fails to 10 state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 11 A complaint is required to contain “a short and plain statement of the claim showing that 12 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 13 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 14 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 15 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 16 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 17 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this 18 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not 19 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 20 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal 21 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 22 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 23 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 24 pro se complaints should continue to be liberally construed after Iqbal). 25 II. ALLEGATIONS IN THE COMPLAINT 26 Plaintiff’s complaint alleges as follows: 27 /// 28 /// 1 A. First Claim 2 On November 2, 1993, Plaintiff was convicted and sentenced to juvenile detention for 3 four months. Plaintiff was then given a strike on August 18, 1995 for a 459/460 (A) felony violent 4 strike. Plaintiff was sentenced for diagnostic observation. Plaintiff has been scarred and injured 5 mentally and emotionally for 28 years. Plaintiff brings this claim against an unnamed Fresno 6 County Superior Court judge. 7 B. Second Claim 8 On August 18, 1995, the district attorney in case number 53532-5 violated Plaintiff’s 9 rights by giving him a strike on a 1993 PC 211 court case # 71248-9. He was only seventeen 10 years old. Plaintiff should not have been given a strike. 11 C. Third Claim 12 Plaintiff’s attorney violated his rights by letting the Fresno Superior Court give him a 13 strike on a prior conviction on November 2, 1993. On August 18, 1995, Plaintiff’s attorney talked 14 him into pleading no contest for a 459/460(A) so at the time of that year, Plaintiff did not know 15 what was going on. 16 Thus, the crux of Plaintiff’s three claims is that he was convicted as a juvenile on 17 November 2, 1993. Plaintiff pleaded no contest to a subsequent charge and was sentenced on 18 August 18, 1995. At that sentencing, Plaintiff’s 1993 conviction counted as a strike. Plaintiff 19 believes doing so violated Plaintiff’s rights and brings claims against an unnamed Fresno County 20 Superior Court judge, an unnamed district attorney, and an unnamed attorney. 21 III. SECTION 1983 22 The Civil Rights Act under which this action was filed provides: 23 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 24 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 25 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action 26 at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 27 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 28 1 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 2 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 3 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 4 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 5 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 6 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 7 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh 8 v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state 9 law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he 10 does an affirmative act, participates in another’s affirmative act, or omits to perform an act which 11 he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler 12 II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 13 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an 14 official sets in motion a ‘series of acts by others which the actor knows or reasonably should 15 know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183 16 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard 17 ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 18 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 19 2008). 20 Additionally, a plaintiff must demonstrate that each named defendant personally 21 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must 22 be an actual connection or link between the actions of the defendants and the deprivation alleged 23 to have been suffered by Plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 24 658, 691, 695 (1978). 25 IV. ANALYSIS OF PLAINTIFF’S CLAIMS 26 A. Claims One and Two: Judicial Immunity 27 Plaintiff brings claims against an unnamed judge and district attorney as defendants in his 28 complaint. Judges and prosecutors are immune from liability under § 1983 when they are 1 functioning in their official capacities under proper jurisdiction. See Imbler v. Pactman, 424 U.S. 2 409, 427 (1976); see also Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004) 3 (“Absolute immunity is generally accorded to judges and prosecutors functioning in their official 4 capacities.”); Ashelman v. Pope, 793 F.2d 1072, 1075-77 (9th Cir. 1986) (noting that judges are 5 generally immune from § 1983 claims except when acting in “clear absence of all jurisdiction...or 6 performs an act that is not ‘judicial’ in nature,” and prosecutors are generally immune unless 7 acting without “authority”) (internal citations omitted); Walters v. Mason, No. 2:15-CV-0822- 8 KJM-CMK, 2017 WL 6344319, at *2 (E.D. Cal. Dec. 12, 2017) (same); Forte v. Merced Cty., 9 No. 1:15-CV-0147 KJM-BAM, 2016 WL 159217, at *12–13 (E.D. Cal. Jan. 13, 2016) 10 (“prosecutorial immunity protects eligible government officials when they are acting pursuant to 11 their official role as advocate for the state”), report and recommendation adopted, No. 1:15-CV- 12 0147-KJM-BAM, 2016 WL 739798 (E.D. Cal. Feb. 25, 2016). Where a prosecutor acts within his 13 authority “ ‘in initiating a prosecution and in presenting the state’s case,’ absolute immunity 14 applies.” Ashelman, 793 F.2d at 1076 (quoting Imbler, 424 U.S. at 431). This immunity extends 15 to actions during both the pre-trial and posttrial phases of a case. See Demery v. Kupperman, 735 16 F.2d 1139, 1144 (9th Cir. 1984). 17 In Plaintiff’s first and second claims, Plaintiff seeks money damages from the judge and 18 district attorney based on the allegation that they improperly used an earlier conviction in 19 calculating his sentence in 1995. These allegations are consistent with the judge and district 20 attorney defendants functioning in their official capacities. Thus, these two claims both fail to 21 state a cognizable claim for damages under section 1983. 22 B. Claim Three: Liability for Public Defenders and Private Attorneys 23 Plaintiff has asserted claims against various public defenders and a private attorney. 24 Section 1983 claims against public defenders and the private attorney are not cognizable because 25 they are private individuals for purposes of section 1983, and therefore do not act under color of 26 state law. Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that public defenders 27 performing traditional functions of representation do not act under color of state law for purposes 28 of civil rights actions); Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003) 1 (“We therefore affirm the district court’s dismissal of the complaint against the Assistant Public 2 Defender, Rigsby, on the ground that, as a matter of law, he was not a state actor.”). Accordingly, 3 Plaintiff’s claims against his attorney fails. 4 C. Heck Bar 5 Plaintiff’s claims appear to challenge the validity of his sentence. 6 In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the United States Supreme Court held 7 that to recover damages for “harm caused by actions whose unlawfulness would render a 8 conviction or sentence invalid,” a § 1983 plaintiff must prove that the conviction or sentence was 9 reversed, expunged, or otherwise invalidated. This “favorable-termination rule” laid out in Heck 10 preserves the rule that claims which, if successful, would necessarily imply the invalidity of a 11 conviction or sentence, must be brought by way of a petition for writ of habeas corpus, after 12 exhausting appropriate avenues for relief. Muhammad v. Close, 540 U.S. 749, 750-751 (2004). 13 Some Ninth Circuit cases, however, suggest that Heck is inapplicable when the challenged 14 conviction or sentence was due to a plea agreement. See Lockett v. Ericson, 656 F.3d 892, 896–97 15 (9th Cir. 2011). 16 Plaintiff appears to allege that a 1993 conviction improperly counted as a strike at his 17 1995 sentencing. It thus appears that Plaintiff’s claims may be barred by Heck.1 18 D. Statute of Limitations 19 California’s two-year statute of limitations for personal injury actions applies to § 1983 20 claims brought in this state. Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th 21 Cir. 2014); Cal. Code Civ. Proc. § 335.1. The court also must give effect to a state's tolling 22 provisions. See Hardin v. Straub, 490 U.S. 536, 543–44 (1989); Marks v. Parra, 785 F.2d 1419, 23 1419–20 (9th Cir.1986). California Civil Procedure Code section 352.1(a) tolls the statute of 24 limitation when a person is “imprisoned on a criminal charge, or in execution under the sentence 25 of a criminal court for a term of less than for life.” The tolling is not indefinite, however; section 26 352.1(a) delays the accrual for a maximum of two years. See id. Thus, if Plaintiff is an inmate
27 1 To the extent Plaintiff’s challenged sentence is due to a no-contest plea, Heck may be inapplicable. See Lockett, 656 F.2d at 896-97 (discussing inapplicability of Heck bar to convictions or sentences resulting from guilty or no-contest 28 pleas. 1 entitled to tolling under section 352.1(a) (which the Court assumes without deciding) has four 2 years to bring a § 1983 claim in California, i.e., the regular two-year period plus two years during 3 which accrual was postponed due to the disability of imprisonment. 4 Federal law determines when Plaintiff’s section 1983 claim accrued. See Elliott v. City of 5 Union City, 25 F.3d 800, 801-02 (9th Cir. 1994). The Ninth Circuit has determined that a claim 6 accrues when the plaintiff knows, or should know, of the injury that is the basis of the cause of 7 action. See Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). Under this “discovery rule,” the 8 statute begins to run once a plaintiff knows of his injury and its cause. Gibson v. United States, 9 781 F.2d 1334, 1344 (9th Cir. 1986). A claim accrues upon awareness of an actual injury, “and 10 not when the plaintiff suspects a legal wrong.” Lukovsky v. City and County of San Francisco, 11 535 F.3d 1044, 1049 (9th Cir. 2008). 12 “A claim can be dismissed for failure to state a valid claim when a violation of the 13 limitations period is evident from the face of the complaint.” E.E.O.C. v. ABM Indus. Inc., 249 14 F.R.D. 588, 591 (E.D. Cal. 2008) (citing Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th 15 Cir. 1980)); accord Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). 16 Here, Plaintiff knew of his actual injury—namely, his sentence—at his sentencing on 17 August 18, 1995. His deadline to file a claim was, accordingly, August 18, 1999. Thus, Plaintiff’s 18 April 26, 2021 complaint was filed over twenty-one years after the statute of limitations expired. 19 As such, his claims are time-barred by the statute of limitations. See Reviere v. Fleming, 2013 20 WL 1758918, at *2 (N.D. Cal. April 24, 2013) (finding inmate’s section 1983 action concerning 21 alleged wrong-doing in connection with a 1999 criminal appeal and 2000 federal habeas petition 22 were time barred); Rodgers v. Superior Ct. of San Diego, 2017 WL 890469, at *3 (S.D. Cal. Mar. 23 1, 2017) (complaint was barred by statute of limitations because “Plaintiff claims he was denied 24 his constitutional rights when he was sentenced in 2002. Therefore, he had ‘reason to know’ the 25 basis of his cause of action in 2002 but did not file this case until November 21, 2016— more 26 than a decade after the limitations period elapsed.” (citation omitted)). 27 \\\ 28 \\\ 1} V. LEAVE TO AMEND 2 Under Federal Rule of Civil Procedure 15(a)(2), “the court should freely give leave [to 3 | amend] when justice so requires.” However, “[i]f a complaint is dismissed for failure to state a 4 | claim, leave to amend should be granted unless the court determines that the allegation of other 5 | facts consistent with the challenged pleading could not possibly cure the deficiency. A district 6 | court does not err in denying leave to amend where the amendment would be futile.” DeSoto v. 7 Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quotation marks omitted). 8 Here, Plaintiff brings claims against Defendants who are immune from liability, and it is 9 | clear from the face of the complaint that Plaintiff's claims are barred by the statute of limitations. 10 | No additional facts consistent with this pleading would cure the deficiencies the Court has noted. 11 | Further, it is also possible that Plaintiff's claims are barred by the Heck doctrine. Thus, the Court 12 | recommends denying leave to amend because an amendment would be futile. 13 | VI. CONCLUSION AND RECOMMENDATIONS 14 For the foregoing reasons, it is HEREBY RECOMMENDED that Plaintiff's complaint be 15 || dismissed for failure to state a claim, without leave to amend. 16 These findings and recommendations will be submitted to the United States district judge 17 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 18 | (21) days after being served with these findings and recommendations, the parties may file 19 || written objections with the Court. The document should be captioned “Objections to Magistrate 20 | Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 21 | within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 22 | F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
24 Dated: _ May 3, 2021 [Jee hy — 5 UNITED STATES MAGISTRATE JUDGE 26 27 28