(PC) Sanders v. Grimes ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TROY ALEXANDER SANDERS, Case No. 1:18-cv-01285-AWI-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CLAIMS AND DEFENDANT 13 v. AND TO ALLOW PLAINTIFF TO SEEK ONLY NOMINAL DAMAGES 14 GRIMES, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Plaintiff’s second amended complaint (Doc. 37) is before the Court for screening pursuant 18 to 28 U.S.C. § 1915A. The Court finds that Plaintiff states cognizable claims against Defendants 19 Grimes and Lucas regarding his right to send mail to the courts. Plaintiff’s remaining claims are 20 not cognizable. The Court further finds that Plaintiff may seek only nominal damages because he 21 does not show that Defendants’ alleged constitutional violations caused him actual injury. 22 Because Plaintiff has received two prior opportunities to amend (see Docs. 28, 36), and 23 his second amended complaint contains the same deficiencies as his prior complaint, the Court 24 finds that further amendment would be futile. See Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th 25 Cir. 2012). The Court, therefore, recommends that Defendant Henry and the claims in Plaintiff’s 26 operative complaint be dismissed, except for Plaintiff’s claims regarding his right to send mail to 27 the courts. The Court further recommends that Plaintiff be allowed to seek only nominal damages 1 I. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 4 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 5 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 6 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 7 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 8 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 9 II. PLEADING REQUIREMENTS 10 A. Federal Rule of Civil Procedure 8(a) 11 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 12 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must contain 13 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 14 Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 15 plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 16 quotation marks and citation omitted). 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 18 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 19 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 20 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 21 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 22 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 23 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 24 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 25 liberal pleading standard … applies only to a plaintiff’s factual allegations,” not his legal theories. 26 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil 27 rights complaint may not supply essential elements of the claim that were not initially pled,” 1 marks and citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe 2 I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 3 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient to 4 state a cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall 5 short. Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted). 6 B. Causation 7 Section 1983 provides a cause of action for the violation of constitutional or other federal 8 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 9 Section 1983, a plaintiff must show a causal connection or link between the actions of the 10 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 11 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 12 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 13 act, participates in another’s affirmative acts, or omits to perform an act which he is legally 14 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 15 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 16 To satisfy the causation requirement of section 1983, “the plaintiff must establish both 17 causation-in-fact and proximate causation.” Harper v. City of Los Angeles, 533 F.3d 1010, 1026 18 (9th Cir. 2008) (citations omitted). To establish that a defendant’s misconduct is the “cause-in- 19 fact” of an alleged injury, the plaintiff must show that the “injury would not have occurred in the 20 absence of the conduct.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). To establish that 21 the misconduct is the “proximate cause” of an injury, the plaintiff must show that “the injury is of 22 a type that a reasonable person would see as a likely result of the conduct in question.” Id. 23 (citation omitted); see also Arnold v. Int’l Bus. Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 24 1981) (causation definition in Johnson, supra, “closely resembles the standard ‘foreseeability’ 25 formulation of proximate cause”) (citations omitted). “Like in any proximate cause analysis, an 26 intervening event may break the chain of causation between the allegedly wrongful act and the 27 plaintiff’s injury.” Caldwell v. City & Cty. of San Francisco, 889 F.3d 1105, 1115 (9th Cir. 2018). 1 injury if the connection between the constitutional violation and the injury is too remote.” Cox v. 2 United States, No. 8:16-cv-1222-CJC-KES, 2019 WL 297982, at *10 (C.D. Cal. 2019) (citing 3 Martinez v. State of Cal., 444 U.S. 277, 285 (1980)). 4 III. DISCUSSION 5 A. Plaintiff’s Factual Allegations 6 Plaintiff’s allegations are interspersed with text from various statutes, regulations, and 7 court opinions, some of which are relevant to Plaintiff’s claims and some of which are not. (See 8 Doc. 37 at 6-18.) From this, the Court gleans the following factual allegations:1 9 Plaintiff’s claims stem from events at Wasco State Prison-Reception Center. (See id. at 2- 10 3, 10.) On April 16, 2018, Plaintiff submitted a Notice of Appeal of a felony criminal conviction 11 to Correctional Officers Grimes and Lucas, requesting that the notice be mailed to Riverside 12 County Superior Court. (See id. at 10.) The Notice of Appeal “has a box tha[t] can be checked to 13 Request Appointment of Counsel on Appeal.” (Id. at 6.) After four weeks, Plaintiff requested that 14 mailroom staff provide him with a copy of his legal mail log, so that he could confirm that the 15 notice was mailed to the court. (See id. at 10.) The mailroom staff failed to respond. (Id.) Plaintiff 16 then notified Grimes and Correctional Officer Henry of his attempts to obtain his mail log to 17 confirm that his Notice of Appeal was mailed. (Id.) 18 Plaintiff later mailed a letter to Appellate Defenders, Inc. (“ADI”). (See id. at 11, 14.) 19 Officer Henry failed to sign, date, and place his badge number on the letter’s envelope, as 20 required by state regulations. (Id. at 14-15.) In its response to the letter, ADI notified Plaintiff that 21 his Notice of Appeal had not been received by the Riverside County Superior Court as of May 20, 22 2018. (Id. at 11.) Plaintiff contends that Defendants’ failure to timely mail the notice caused 23 Plaintiff to miss the 60-day deadline by which criminal defendants must file a notice of appeal 24 post-conviction, pursuant to California Rules of Court. (Id. at 6-7, 11-12) It is “bail agency policy 25 … to keep the bail intact during the 60-day period.” (Id. at 7.) Plaintiff states that missing the 26 deadline prevented ADI from being appointed to represent him on appeal and caused him to 27 forfeit a $175,000 bail bond. (Id. at 11.) 1 The prison appeals coordinator notified Plaintiff that his Notice of Appeal was mailed on 2 July 31, 2018. (See id. at 13.) The Superior Court, however, never notified Plaintiff that it 3 received the notice, as required by California Rules of Court. (Id. at 12-13.) Plaintiff seeks 4 damages for the forfeiture of his bond. (Id. at 18.) 5 B. Plaintiff’s Claims for Relief 6 In its first screening order, the Court found that Plaintiff failed to state a cognizable 7 access-to-courts claim because his allegations did not show that his underlying claim, i.e., his 8 appeal of his criminal conviction, was arguable or non-frivolous. (Doc. 28.) To the extent that 9 Plaintiff attempts to reassert an access-to-courts claim in his second amended complaint, such 10 claim is not cognizable for the same reasons provided in the first screening order. (Id. at 3-5.) 11 Plaintiff also raises claims regarding his right to an attorney and his right to send mail to the 12 courts. (See Doc. 37 at 7-8, 9.) The Court addresses both below. 13 1. Right to an Attorney on Direct Appeal of a Criminal Conviction 14 When “the State elects to furnish an avenue for appeal, its procedures must comport with 15 the Due Process and Equal Protection Clauses of the Fourteenth Amendment.”2 Tamalini v. 16 Stewart, 249 F.3d 895, 902 (9th Cir. 2001). “[T]he two Clauses … require that a State’s 17 procedure[s] affor[d] adequate and effective appellate review to indigent defendants.” Smith v. 18 Robbins, 528 U.S. 259, 276 (2000) (citing Griffin v. Illinois, 351 U.S. 12, 20 (1956)) (internal 19 quotation marks omitted). To satisfy this requirement, the state “must provide an indigent 20 defendant with effective assistance of counsel through his first appeal.” Hendricks v. Zenon, 993 21 F.2d 664, 669 (9th Cir. 1993) (citing Douglas v. California, 372 U.S. 353, 83 (1963)). 22 Although defendants have a right to counsel on direct appeal, “it is equally true that this 23 right does not include the right to bring a frivolous appeal and, concomitantly, does not include 24 25 2 Plaintiff frames this right as one arising under the First Amendment. (Doc. 37 at 7-8.) Courts have recognized that the “right to hire and consult an attorney is protected by the First Amendment’s guarantee of freedom of speech, 26 association and petition.” Mothershed v. Justices of Supreme Court, 410 F.3d 602, 611 (9th Cir. 2005), as amended (July 21, 2005). However, the Court construes Plaintiff’s claim as more accurately arising under the Fourteenth 27 Amendment. Plaintiff does not allege that Defendants interfered with any communication or association with a particular attorney or attorneys in general. In fact, Plaintiff admits that he corresponded with attorneys at ADI. (Doc. 1 the right to counsel for bringing a frivolous appeal.” Smith, 528 U.S. at 278. Nevertheless, even if 2 “an indigent whose appeal is frivolous has no right to have an advocate make his case to the 3 appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for 4 the indigent’s interests, evaluate his case and attempt to discern nonfrivolous arguments.” Id. at 5 278 n.10. (citations omitted). 6 Leniently construed, Plaintiff’s allegations show that Officers Grimes and Lucas failed to 7 timely send Plaintiff’s Notice of Appeal to the Riverside County Superior Court, including a 8 request for appointment of counsel. (See Doc. 37 at 6-7, 10-11.) Plaintiff contends that, as a 9 result, he failed to submit the Notice of Appeal to the court within 60 days of his conviction, as 10 required under California Rules of Court, which prevented ADI from being appointed as his 11 counsel and causing him to forfeit a $175,000 bail bond. (See id. at 6-7, 11-12.) 12 The Court finds that Plaintiff does not state a cognizable claim because he does not 13 establish a causal connection between Defendants’ alleged misconduct and his alleged 14 deprivations, i.e., the denial of appointment of counsel and the forfeiture of bond. Under the 15 “prison-delivery rule” in California, “a prisoner’s notice of appeal is deemed timely filed if 16 delivered to prison authorities within the 60-day filing period set forth in rule 31(a) of the 17 California Rules of Court.” In re Jordan, 4 Cal. 4th 116, 118-19 (1992). Applying this rule, the 18 Superior Court could have accepted Plaintiff’s Notice of Appeal even if prison officials mailed 19 them after the 60-day period. Thus, even if Grimes and Lucas failed to timely mail the notice, 20 given the prison-delivery rule, the denial of Plaintiff’s request for counsel was not a foreseeable 21 injury. In other words, Grimes’ and Lucas’ actions, as opposed to the court’s actions, were not the 22 proximate cause of Plaintiff’s alleged injuries. See Spencer, 857 F.3d at 798; see also White v. 23 Roper, 901 F.2d 1501, 1506 (9th Cir. 1990) (defendant’s “conduct is not the proximate cause of 24 [plaintiff’s] alleged injuries if another cause intervenes and supersedes his liability for the 25 subsequent events”). 26 Relatedly, Plaintiff does not state whether he contacted the Riverside County Superior 27 Court to learn if the Notice of Appeal was received, filed, or rejected, and he does not detail 1 filing deadline. The failure to alert the court that the notice was timely submitted to prison 2 authorities also presents a significant hurdle to establishing causation. 3 In addition, in its response to Plaintiff’s letter, an attorney at ADI states: 4 I have reviewed your case to determine if ADI can assist you in asking the Court of Appeal for permission to file a late notice of appeal and provide a viable basis 5 for the appeal. To do so, I obtained the charging complaint, the plea form, the clerk’s minutes of the plea and sentencing, and the abstract of judgment…. 6 Unfortunately, I see no basis to ask permission for the court to grant a request to file a late notice of appeal; ADI cannot assist you. Given the reality that you 7 received the exact sentence which you agreed to receive as a result of the plea …, 8 there would be no issue to raise in the appeal. 9 (Doc. 1 at 10-11.) Thus, if the constitutional right at issue is the “right to have an attorney … 10 evaluate [Plaintiff’s] case and attempt to discern nonfrivolous arguments,” Smith, 528 U.S. at 278 11 n.10. (citations omitted), such right appears to have been satisfied by ADI’s evaluation of his 12 case. As noted above, Plaintiff does not have a concomitant “right to counsel for bringing a 13 frivolous appeal.” Id. 14 With respect to Plaintiff’s alleged damages, the Court is unsure how a failure to file a 15 notice of appeal would result in the forfeiture of bond. Under California law, once an individual 16 “on bail” is found guilty of an offense and taken into custody, “his or her bail is exonerated.” Cal. 17 Penal Code § 1166. The forfeiture of bond, on the other hand, generally occurs when a criminal 18 defendant fails to appear for a court hearing or “[a]ny other occasion … if the defendant’s 19 presence in court is lawfully required.” Id. § 1305. In other words, whether a criminal defendant’s 20 previously-posted bond is forfeited is a separate matter from whether the defendant is granted bail 21 pending an appeal. Plaintiff’s allegations do not show how or that the failure to file a notice of 22 appeal caused the forfeiture of bond Plaintiff posted at the beginning of his criminal proceedings. 23 In addition, Plaintiff does not show that the Riverside County Superior Court would have 24 granted him bail if the Notice of Appeal were timely submitted. The granting of bail pending an 25 appeal of a felony conviction is within the state court’s discretion. See id. § 1272(c). Thus, 26 whether a judge would have granted Plaintiff bail had he filed a notice of appeal is too speculative 27 to establish proximate causation. See State Dep’t of State Hosps. v. Superior Court, 61 Cal. 4th 339, 353 (2015) (“proximate cause … not established when a governmental defendant’s failure to 1 act allegedly caused injury, but the chain of causation included discretionary determinations for 2 which no liability could be imposed”); see also Stevenson v. Koskey, 877 F.2d 1435, 1438 (9th 3 Cir. 1989) (“Federal courts turn to the causation factors … in the common law of torts to supply 4 the necessary causation factor in the civil rights field.”). 5 Lastly, Plaintiff does not link Defendant Henry to the alleged constitutional deprivation. 6 See Rizzo, 423 U.S. at 373-75. Unlike with Grimes and Lucas, Plaintiff does not allege that Henry 7 failed to timely mail his Notice of Appeal. Rather, he only alleges that Officer Henry failed to 8 sign, date, and place his badge number on the envelope of Plaintiff’s letter to ADI. (Doc. 37 at 9 14-15.) This allegation does not establish a constitutional violation. 10 2. Right to Send Mail to the Courts 11 Prisoners “enjoy[] a First Amendment right to send and receive mail.” Witherow v. Paff, 12 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). 13 “However, a prison may adopt regulations which impinge on an inmate’s constitutional rights if 14 those regulations are ‘reasonably related to legitimate penological interests.’” Id. (citing Turner v. 15 Safley, 482 U.S. 78, 89 (1987)). “Legitimate penological interests that justify regulation of … 16 mail include the prevention of criminal activity and the maintenance of prison security.” 17 Nordstrom v. Ryan, 856 F.3d 1265, 1272 (9th Cir. 2017) (internal quotation marks and citation 18 omitted). “When a prison regulation affects outgoing mail as opposed to incoming mail, there 19 must be a ‘closer fit between the regulation and the purpose it serves.’” Witherow, 52 F.3d at 265 20 (citing Thornburgh, 490 U.S. at 412). Similarly, regulations affecting “mail sent between 21 attorneys and prisoners … and … from prisoners to the courts,” Cathy v. Kuzmicz, No. 19-cv- 22 05932-PJH, 2020 WL 587280, at *2 (N.D. Cal. 2020), are subject to greater restrictions than 23 other types of mail, see, e.g., Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1209-11 (9th Cir. 2017). 24 Courts look to four factors when determining whether a regulation is reasonable: “(1) 25 whether there is a ‘valid, rational connection between the prison regulation and the legitimate 26 governmental interest put forward to justify it’; (2) ‘whether there are alternative means of 27 exercising the right that remain open to prison inmates’; (3) ‘the impact accommodation of the 1 resources generally’; and (4) whether there exists an obvious, easy alternative to the regulation 2 ‘that fully accommodates the prisoner's rights at de minimis cost to valid penological interests.’” 3 O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996) (quoting Turner, 482 U.S. at 89-91). 4 The Court finds that Plaintiff states cognizable claims against Officers Grimes and Lucas 5 for interference with his First Amendment right to send mail to the courts. Leniently construed, 6 Plaintiff’s allegations show that the defendants interfered with the mailing of his Notice of 7 Appeal to the Riverside County Superior Court. (See Doc. 37 at 9-11, 13.) The Court 8 acknowledges that, at the screening stage, it is unable to properly consider the Turner factors 9 referenced above. See Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008) (district court “not 10 in a position to decide, on the pleadings,” whether a prison’s rules “‘further an important or 11 substantial government interest,’ or impose limitations ‘no greater than is necessary’”) (citing 12 Procunier v. Martinez, 416 U.S. 396, 413 (1974), overruled on other grounds by Thornburgh, 13 490 U.S. at 413-14). Plaintiff must only show that his claim is plausible on its face. See Iqbal, 14 556 U.S. at 678; see also Barrett, 544 F.3d at 1062. 15 Plaintiff, however, does not show that he suffered actual harm as a result of Defendants’ 16 alleged interference with his mail. For the same reasons provided in section III.B.1, supra, 17 Plaintiff’s allegations do not establish a causal connection between the alleged misconduct, i.e., 18 Defendants’ failure to timely mail his Notice of Appeal, and Plaintiff’s alleged injuries, i.e., the 19 denial of appointment of counsel and the forfeiture of bond. Additionally, Plaintiff does not link 20 Officer Henry to his claim; he does not allege that Henry interfered with his right to send mail to 21 the court, only that Henry failed to sign, date, and put his badge number on mail to ADI. (Doc. 37 22 at 14.) As stated in the previous section, this allegation is insufficient to state a cognizable 23 constitutional claim. 24 Because Plaintiff does not show that Defendants’ alleged misconduct caused him harm, 25 Plaintiff may not seek compensatory damages in this action. Compensatory damages are only 26 available when a constitutional violation causes actual harm. Cf. Hazle v. Crofoot, 727 F.3d 983, 27 991-93 (9th Cir. 2013). As explained above, Plaintiff does not show that the alleged interference 1 Plaintiff may seek “nominal damages,” though, which “are awarded regardless of whether 2 the constitutional violation causes any actual [harm].” Schneider v. Cty. of San Diego, 285 F.3d 3 784, 795 (9th Cir. 2002) (internal quotation marks and citation omitted). If a plaintiff suffers a 4 constitutional violation but no actual harm, he is “legally entitled to … a mandatory nominal 5 damages award of $1.00 as a symbolic vindication of [his] constitutional right.” Floyd v. Laws, 6 929 F.2d 1390, 1403 (9th Cir. 1991); George v. City of Long Beach, 973 F.2d 706, 708 (9th Cir. 7 1992) (“In this Circuit, nominal damages must be awarded if a plaintiff proves a violation of his 8 constitutional rights.”); see also Kincaid v. Rusk, 670 F.2d 737, 745-46 (7th Cir. 1982) (upholding 9 award of nominal damages for First Amendment violation). 10 3. Title 15 of California Code of Regulations 11 In his complaint, Plaintiff references sections 3131, 3132, and 3142 of Title 15 of the 12 California Code of Regulations. (Doc. 37 at 8-9, 9-10, 15.) To the extent that Plaintiff attempts to 13 raise a claim under these sections, the Court notes that the section do not create a private right of 14 action. See Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW, 2009 WL 1211372, at *9 15 (E.D. Cal. 2009) (“Court has found no authority to support a finding that there is an implied 16 private right of action under Title 15”); Roberts v. Beard, No. 15-cv-1044-WQH-RBM, 2019 WL 17 332704, at *12 (S.D. Cal. 2019) (same). “Under California law, [i]t is well settled that there is a 18 private right of action to enforce a statute only if the statutory language or legislative history 19 affirmatively indicates such an intent…. Particularly when regulatory statutes provide a 20 comprehensive scheme for enforcement by an administrative agency, the courts ordinarily 21 conclude that the Legislature intended the administrative remedy to be exclusive unless the 22 statutory language or legislative history clearly indicates an intent to create a private right of 23 action.” Id. (internal quotation marks and citations omitted). The regulations cited by Plaintiff do 24 not indicate an intent to create a private right of action. Therefore, Plaintiff may not raise a 25 standalone claim under these regulations. 26 IV. CONCLUSION AND RECOMMENDATIONS 27 Given Plaintiff’s two opportunities to amend, the Court finds that further amendment 1 the Court RECOMMENDS that: 2 1. Defendant Henry be DISMISSED; 3 2. All the claims in Plaintiff’s complaint (Doc. 37) be DISMISSED, except for Plaintiff’s 4 claim that Defendants Grimes and Lucas interfered with his First Amendment right to 5 send mail to the courts, pursuant to 42 U.S.C. § 1983; and, 6 3. Plaintiff be allowed to seek only nominal damages in this action. 7 These Findings and Recommendations will be submitted to the United States District 8 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days 9 of the date of service of these Findings and Recommendations, Plaintiff may file written 10 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 11 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 12 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 13 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15 16 Dated: July 1, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27