(PC) Gonzales v. Negrete ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL GONZALES, No. 1:20-cv-01493-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 v. COMPLAINT BE DISMISSED WITHOUT LEAVE TO AMEND AS FRIVOLOUS 14 B. NEGRETE, et al., (ECF NO. 1) 15 Defendants. TWENTY-ONE DEADLINE 16 ORDER DIRECTING CLERK OF COURT TO 17 ASSIGN DISTRICT JUDGE 18 Plaintiff Michael Gonzales (“Plaintiff”) is proceeding pro se and in forma pauperis in this 19 action. Plaintiff filed the Complaint commencing this action on October 21, 2020. (ECF No. 1). 20 The Complaint claims that he is being involuntarily medicated through his food by multiple 21 defendants. The complaint is the same in substance to many other complaints Plaintiff has made 22 over the years against dozens of officers at difference facilities, all of which have been dismissed 23 at various stages in the proceedings. The Court finds that the Complaint is frivolous and 24 recommends dismissing the complaint without leave to amend. 25 I. SCREENING REQUIREMENT 26 As Plaintiff is proceeding in forma pauperis, the Court may screen the complaint under 28 27 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been paid, 28 1 the court shall dismiss the case at any time if the court determines that the action or appeal fails to 2 state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 3 “Congress enacted the Prison Litigation Reform Act of 1995 (PLRA) in 1996 in the wake 4 of a sharp rise in prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 5 (2006) (citation omitted). “[T]he PLRA . . . was intended to deal with what was perceived as a 6 disruptive tide of frivolous prisoner litigation,” id. at 97, and requires courts to screen lawsuits 7 filed by prisoners “before docketing, if feasible,” 28 U.S.C. § 1915A(a), and dismiss them if 8 frivolous, id. § 1915A(b)(1). 9 A complaint will be considered frivolous, and therefore subject to dismissal under § 10 1915(e)(2)(B) or 1915A(b)(1), “where it lacks an arguable basis either in law or in fact.” Nietzke 11 v. Williams, 490 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32–33 (1992). 12 A federal court cannot properly sua sponte dismiss an action commenced in forma pauperis if the 13 facts alleged in the complaint are merely “unlikely.” Denton, 504 U.S. at 33. Thus, a complaint 14 may be properly dismissed sua sponte if the allegations are found to be “fanciful,” “fantastic,” or 15 “delusional,” or if they “rise to the level of the irrational or the wholly incredible.” Id. at 32–33. If 16 a case is classified as frivolous, “there is, by definition, no merit to the underlying action and so 17 no reason to grant leave to amend.” Lopez v. Smith, 203 F.3d 1122, 1127 n. 8 (9th Cir. 2000). 18 A complaint is required to contain “a short and plain statement of the claim showing that 19 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 20 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 22 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 23 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 24 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this 25 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not 26 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 27 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal 28 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 1 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 2 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 3 pro se complaints should continue to be liberally construed after Iqbal). 4 II. ALLEGATIONS IN THE COMPLAINT 5 Plaintiff’s complaint alleges as follows: 6 Defendants “have disgraced [Plaintiff] and ridiculed him in an attempt to force submission 7 to their demands.” They do this “in retaliation for the exercise of [Plaintiff’s] civil rights and to 8 force him to relin[q]uish his properties”—namely, his artwork. They have also done so “because 9 of [Plaintiff’s] negative history with officers while he was in the security housing units.” 10 Plaintiff then proceeds to list a number of dates that he alleges various officers served 11 Plaintiff with medicated meals. (See, e.g., ECF No. 1 at 10 (“Officer B. Negrete medicated and 12 served the meal while verbally saying she did while intimidating me on 6-1-20/7-6-20/7-29- 13 20 . . . .”)). Elsewhere, Plaintiff alleges that it is “inmate porters who handle the distribution of 14 meals that are highly medicated[.]” 15 Plaintiff alleges that Defendant Nuckles strip searched Plaintiff and left him naked in a 16 holding cell for snitching on Defendant Nuckles’s staff. He told Plaintiff “no body is medicating 17 your meals.” He also stated he will not permit Plaintiff to file any more 602 appeals about 18 medicated meals. 19 Defendant Officer D. Rubio medicated Plaintiff’s meals on various days in September 20 2020. “He also said he was going to give me a little bit of every[]body[‘]s medication until I give 21 them and his porters free drawings.” Inmates have stopped any art purchases. “It[‘]s not even 22 allowed but the staff does know about this and has obviously ordered them not to buy any art. 23 They have also stolen it from inmates who have tried to send their purchases out. . . . I sell the art 24 for food.” 25 “All officers listed above et al have been medicating my meals since circa 3-1-18 and 26 these actions continue to this day.” 27 Plaintiff has tardive dyskinesia, which can lead to heart attack. 28 /// 1 III. PREVIOUS LAWSUITS 2 Plaintiff has a lengthy litigation history. 1 The Court was able to locate 27 other cases 3 Plaintiff filed in this district,2 twelve in the Northern District of California,3 and thirteen in the 4 Ninth Circuit filed by Plaintiff.4 Plaintiff has been declared a vexatious litigant in state courts.5 5 Many of Plaintiff’s past lawsuits allege, as does the present lawsuit, that prisoner officers 6 are putting medication in his food: 7 • Gonzales v. Cambra, 3:97-cv-00761-SI (PR), N.D. Cal.: Most of the records in this case have 8 not been digitized, so it is difficult to know the exact nature of this lawsuit. However, the 9 Court was able to locate the order dismissing this case. The court noted that Plaintiff “alleges 10 1 The Court takes judicial notice of the court records in this order. Fed. R. Evid. 201(b); United States v. Wilson, 631 11 F.2d 118, 119 (9th Cir.1980) (recognizing that under Federal Rule of Evidence 201, “a court may take judicial notice of its own records in other cases”); Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (Courts “may take notice 12 of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”). 13 2 The following appears to be the complete list of other prisoner civil rights cases brought by Plaintiff in this district: Gonzales v. Galaza, 1:00-cv-06028-AWI-HGB (PC); Gonzales v. Galaza, 1:00-cv-06959-OWW-SMS (PC); 14 Gonzales v. Calderon, 1:01-cv-05916-OWW-LJO (PC); Gonzales v. Tomlin, 1:03-cv-05277-AWI-TAG (PC); Gonzales v. Recek, 1:03-cv-05278-OWW-SMS (PC); Gonzales v. Recek, 1:03-cv-05279-OWW-DLB (PC); Gonzales 15 v. Tomlin, 1:03-cv-05363-LJO-DLB (PC); Gonzales v. Lampien, 1:03-cv-06165-OWW-SMS (PC); Gonzales v. Urena, 1:03-cv-06725-LJO-LJO (PC); Gonzales v. Gadsden, 1:04-cv-05491-OWW-LJO (PC); Gonzales v. Yamat, 16 1:05-cv-00550-AWI-DLB (PC); Gonzales v. Frescure, 1:06-cv-01357-OWW-WMW (PC); Gonzales v. Vikjord, 1:06-cv-01568-OWW-WMW (PC); Gonzales v. Rodriguez, 1:06-cv-01792-OWW-SMS (PC); Gonzales v. Hamilton, 17 1:06-cv-01809-LJO-GSA (PC); Gonzales v. Fresura, 1:07-cv-00565-OWW-GSA (PC); Gonzales v. Vikjord, 1:07- cv-00675-OWW-DLB (PC); Gonzales v. Price, 1:07-cv-01391-AWI-GBC (PC); Gonzales v. Vikjord, 1:08-cv- 18 01847-AWI-GSA (PC); Gonzales v. Perez, 1:09-cv-00373-OWW-GSA (PC); Gonzales v. Castro, 1:09-cv-01545- AWI-MJS (PC); Gonzales vs. Cortez, 1:10-cv-01314-LJO-SMS (PC); Gonzales v. Saunders, 1:10-cv-02154-AWI- 19 MJS (PC); Gonzales v. Cortez, 1:11-cv-00618-LJO-DLB (PC); Gonzales v. Podsakoff., 1:15-cv-00924-DAD-SKO (PC); Gonzales v. Ferrso, 1:16-cv-01813-DAD-EPG (PC); Gonzales v. Gonzales, 1:19-cv-00459-NONE-SAB (PC). 20 3 The following appears to be the complete list of cases Plaintiff filed in the Northern District of California: Gonzales v. Cambra, 3:89-cv-01439-CAL; Gonzales v. Cambra, 3:97-cv-761-SI (PR) Gonzales v. Cambra, 3:96-cv-01872; 21 Gonzales v. Cambra, 3:96-cv-02044; Gonzales v. Cambra, 3:96-cv-02164; Gonzales v. Cambra, 3:96-cv-02532; Gonzales v. Winslow, 3:96-cv-02654; Gonzales v. Cambra, 3:96-cv-03343; Gonzales v. Rupert, 3:94-cv-03944; 22 Gonzales v. Gomez, 3:95-cv-01368; Gonzales v. Cambra, 3:96-cv-02798; Gonzales v. Risenhoover, 4:94-cv- 00492; Gonzales v. Williams, 3:94-cv-00953. These lawsuits have not been fully digitized so it is difficult to 23 determine the nature of the allegations for the most part. Most show the plaintiff had Plaintiff’s CDCR identification number, D-81011, and that the Michael Gonzales was at Pelican Bay State Prison. The ones that did not indicate an 24 identification number were filed against defendants Plaintiff had sued in other cases or filed by a Michael Gonzales also at Pelican Bay State Prison. Therefore, it is likely that all of these cases were filed by Plaintiff. 25 4 The following appears to be the complete list of cases Plaintiff has appealed to the Ninth Circuit: Gonzales v. Tomlin, 08-16755; Gonzales v. Tomlin, 08-17084; Gonzales v. B. Vikjord, 10-15461; Gonzales v. B. Buenafe, 14- 15127; Gonzales v. Cambra, 96-16322; Gonzales v. Cambra, 96-16616; Gonzales v. Cambra, 97-15619; Gonzales 26 v. Galaza, 01-16306; Gonzales v. Calderon, 02-15546; Gonzales v. Podsakoff, 19-16898; Gonzales v. Rowland, 92- 16238; Gonzales v. Rowland, 92-16682; Gonzales v. Gomez, 93-15508. 27 5 Gonzales v. Podsakoff, No. 1:15-CV-00924-DAD-SKO (PC), 2018 WL 1316890, at *3 (E.D. Cal. Mar. 14, 2018), report and recommendation adopted, 2018 WL 2939087 (E.D. Cal. June 12, 2018) (taking judicial notice of 28 California courts finding Plaintiff to be a vexatious litigant). 1 that his food has been tainted,” among other things. 1997 WL 168544, at *1. The Court 2 dismissed the case under 28 U.S.C. § 1915 as “abusive” and “duplicative” because “[t]hese 3 allegations are not new; they duplicate the allegations made by Gonzales in Gonzales v. 4 Cambra, No. C 96–2654 SI and Gonzales v. Cambra, No. C 96–3343 SI.” Id. Thus, it appears 5 that Plaintiff has been complaining about adulterated food since at least 1996. The docket for 6 3:96-cv-2654 indicates Plaintiff’s claims were dismissed. The docket for 3:96-cv-3343 7 indicates that Plaintiff lost at summary judgment. 8 • Gonzales v. Galaz, 1:00-cv-06028-AWI-HGB (P), E.D. Cal.: Plaintiff sued 63 individuals at 9 California State Prison-Corcoran. He alleged that “in every meal he has consumed since 1998, 10 various defendants have conspired to place poison into plaintiff’s meals.” ECF No. 26 at 2. 11 The court found Plaintiff’s allegations were “so vague and conclusory that it is unable to 12 determine whether the current action is frivolous or fails to state a claim for relief,” and 13 recommended dismissing Plaintiff’s complaint. Id. at 5-6. See also ECF No. 30 (adopting 14 findings and recommendations and dismissing complaint for failure to state a claim). 15 • Gonzales v. Tomlin, 1:03-cv-05363-LJO-DLB: Plaintiff alleged that 33 correctional officers 16 medicated his meals. The court found Plaintiff failed to state a claim with respect to 17 medicated meals due to insufficient detail. ECF No. 31 at 2-3. Plaintiff proceeded to trial on 18 excessive force claims, and the jury found for the defendants. See ECF Nos. 164 (special 19 verdict); 167 (judgment). 20 • Gonzales v. Fresura, 1:07-cv-00565-OWW-GSA (PC), E.D. Cal.: Plaintiff alleged various 21 officers were medicating his food, but the court found Plaintiff failed to state a claim. See 22 ECF No. 10 (“Plaintiff’s mere allegation that the C/O’s joke about serving him medicated 23 meals, and that the meals cause a number of symptoms is insufficient to state a cognizable 24 claim. Plaintiff does not state whether he has any condition that requires medication, whether 25 he has consented to the medicating of his meals, and what, if any procedural due process he 26 has been provided regarding meal medication.”). When Plaintiff did not file an amended 27 complaint, the court dismissed for failure to state a claim and failure to prosecute. See ECF 28 Nos. 13, 14. 1 • Gonzales v. Price, 1:07-cv-01391-AWI-GBC (PC), E.D. Cal.: among other allegations, 2 Plaintiff alleged he was being involuntarily medicated. The action was dismissed as barred by 3 res judicata with respect to Gonzales v. Fresura, 1:07-cv-00565, and for violating Rule 11 by 4 failing to list all other claims Plaintiff had pursued. See ECF Nos. 82 (findings and 5 recommendations), 83 (adopting findings and recommendations). 6 • Gonzales v. Vikjord, 1:08-cv-01847-AWI-GSA: Plaintiff alleged he was being involuntarily 7 medicated by at least four officers. ECF No. 15 at 4. The Court found Plaintiff had three 8 strikes under 28 U.S.C. § 1915(g) and that he was not in imminent danger of serious physical 9 injury. ECF No. 16. Consequently, the Court revoked his in forma pauperis status. Id. The 10 Court dismissed his complaint after Plaintiff failed to pay the filing fee. ECF No. 17. 11 • Gonzales v. Cortez, 1:10-cv-00393-LJO-MJS (PC), E.D. Cal.: Plaintiff alleged defendants 12 were medicating him through his food. Plaintiff’s action proceeded against defendant Castro 13 not for medicating him but for excessive force. See ECF No. 16. The action was voluntarily 14 dismissed pursuant to a stipulation. See ECF No. 66. 15 • Gonzales v. Saunders, 1:10-cv-02154-AWI-MJS (PC), E.D. Cal.: In his first complaint, 16 Plaintiff alleged he was being forcibly medicated, among other claims. The court found that 17 Plaintiff failed to state a claim concerning forcible medications and found amendment would 18 be futile. See ECF No. 10 at 12-13 (“The Court simply cannot find that Plaintiff’s claims state 19 a plausible claim for relief. Common sense and judicial experience leads this Court to 20 conclude that these claims as presented are facially implausible.”). In his amended complaint, 21 Plaintiff alleged that various defendants medicated his meals as retaliation against him for 22 filing a grievance. See ECF No. 20 at 8-9. The court dismissed Plaintiff’s complaint for failure 23 to state a claim. See ECF No. 25. 24 • Gonzales v. Podsakoff, 1:15-cv-00924-DAD-SKO (PC), E.D. Cal.: Plaintiff alleged ten 25 employees at his prison tainted his meals with antipsychotic medications. ECF No. 27 at 2. 26 Summary judgment was granted to defendants on September 6, 2019. In granting summary 27 judgment, the court noted: 28 1 The undisputed facts before the court on summary judgment show that (1) the medications allegedly used to adulterate plaintiff’s food do not exist or are not 2 available in the form he alleges, (2) the burning sensation plaintiff feels in his throat can be attributed to his long-established history of gastroesophageal 3 reflux disease, (3) the correctional staff do not dispense medicine and the 4 prison medical staff does not prepare food, respectively, and (4) many of the named defendants were not working on the days plaintiff alleges he was 5 involuntarily medicated. The pending findings and recommendations conclude that there was no evidence on summary judgment showing that “any 6 of the Defendants surreptitiously placed antipsychotic medications in 7 [plaintiff’s] food in violation of the Eighth Amendment or without a Keyhea order in violation of the Fourteenth Amendment” and, thus, defendants were 8 “entitled to summary judgment.” (Doc. No. 111). The undersigned agrees with that conclusion based upon the evidence presented on summary 9 judgment. See Fed. R. Civ. P. 56(a) (summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled 10 to judgment as a matter of law”). 11 ECF No. 120 at 3. 12 • Gonzales v. Garcia, 1:16-cv-01813-DAD-EPG (PC), E.D. Cal.: Plaintiff alleged eight 13 defendants placed antipsychotics in his meals and a ninth ordered them to do so. ECF No. 14 14 at 2-3. Summary judgment to defendants was granted on January 31, 2020. See ECF No. 65. 15 • Gonzales v. Godinez, 1:19-cv-0459-NONE-SAB (PC), E.D. Cal.: In this open case, Plaintiff 16 alleges eleven individuals have put antipsychotics in Plaintiff’s meals. ECF No. 8 at 3. 17 Defendant Perez is also a defendant in this case. Many of Plaintiff’s claims were dismissed as 18 unexhausted. See ECF Nos. 50, 51. 19 In addition, the Court also notes that Plaintiff was sentenced to prison for spitting on 20 guards because he “believ[ed] that the prison guards were surreptitiously putting antipsychotic 21 drugs in his food, and that spitting on a guard would allow him to escape this treatment by 22 causing him to be moved to the prison hospital or possibly to another facility.” People v. 23 Gonzales, No. F042129, 2004 WL 1950455, at *2 (Cal. Ct. App. Sept. 3, 2004) (unpublished).6 24 /// 25 /// 26 6 In light of this litigious history, when granting leave to proceed in forma pauperis, the Court found that 27 Plaintiff had at least six strikes but that he met the exception to the Prison Litigation Reform Act’s three-strikes rule by alleging imminent danger of serious physical injury. (ECF No. 3 at 2-3). 28 1 IV. FRIVOLITY 2 The Court recommends dismissing Plaintiff’s complaint as frivolous because the 3 allegations are wholly incredible and delusional rather than merely unlikely. It alleges that 4 Plaintiff is being involuntarily medicated with food by various officers at Plaintiff’s prison. He 5 alleges his food is being medicated in retaliation for not giving Defendants and their inmate 6 porters free drawings. And despite that professed motive, Plaintiff also alleges Defendants steal 7 his artwork from other inmates. 8 There are several rational problems with such allegations. None of the Defendants are 9 medical providers. There are no facts that would explain how Defendants have access to 10 medication and able to put that medication in Plaintiff’s food. Indeed, Plaintiff alleges that at 11 least one Defendant told him that he was going to put a little bit of everybody’s medication in 12 Plaintiff’s food. It is implausible that any officer has access to everybody’s medication. 13 Nor does Plaintiff allege that any Defendant is involved in food preparation. There is no 14 plausible explanation for how any Defendant could put medication in Plaintiff’s food, even if they 15 had access to such medication. 16 Plaintiff does not allege that he has ever found medication in his food. Plaintiff does not 17 allege that he has ever seen changes in the food demonstrating medication. 18 Plaintiff’s complaint also contains inconsistent allegations. On the one hand, Plaintiff 19 claims that inmate porters deliver meals. But he also states that Defendants serve his meals. These 20 are inconsistent allegations that further demonstrate the implausibility of Plaintiff’s claims. 21 Plaintiff claims that the antipsychotics cause tardive dyskinesia, which can cause heart 22 attacks. This is a conclusory allegation with no factual basis. Plaintiff does not allege what 23 medications are being put in his food. 24 The allegations in Plaintiff’s complaint that multiple officers separately put medication in 25 Plaintiff’s food are thus delusional, implausible, and frivolous on their face and subject to 26 dismissal. 27 In addition, Plaintiff’s litigation history further supports that Plaintiff’s allegations are 28 delusional. Before this case, Plaintiff has alleged at least 129 officers have tainted his meals. 1 Plaintiff makes allegations against seven others here. Plaintiff has made these allegations against 2 officers from at least three California prisons: Pelican Bay State Prison, see Gonzales v. Cambra, 3 No. 3:97-cv-761, 1997 WL 168544, at *1 (N.D. Cal.), Kern Valley State Prison, see Gonzales v. 4 Saunders, No. 1:10-cv-2154 (E.D. Cal.), and Corcoran State Prison, see Gonzales v. Podsakoff, 5 1:15-cv-00924 (E.D. Cal.). These complaints go back to at least 1996. See Gonzales v. Cambra, 6 1997 WL 168544.7 7 The Court therefore recommending finding that Plaintiff’s complaint is frivolous and 8 subject to dismissal with prejudice. See Waldrop v. Dep’t of Corr., No. 2:06-cv-1260-DFL-EFB, 9 2006 WL 2926754, at *1–2 (E.D. Cal. Oct. 11, 2006) (dismissing as frivolous claims that prison 10 placed radio transmitters in plaintiff’s ears and used satellite transmissions to monitor him as an 11 experiment for a web site because they “describ[ed] fantastic or delusional scenarios.”); Williams 12 v. St. Vincent Hosp., 258 F. App’x 293, 294 (11th Cir. 2007) (unpublished) (affirming dismissal 13 as frivolous of “complaint [that] presents a far-fetched scenario based on assertions of a massive 14 conspiracy to monitor Williams [as] clearly baseless”); Monaghan v. Trebex, 35 F. App’x 651 15 (9th Cir. 2002) (unpublished) (affirming dismissal as frivolous where plaintiff alleged that he was 16 “the object of a nationwide conspiracy”). “No matter how sincerely believed by Plaintiff, these 17 allegations are simply too fantastic to warrant the expenditure of further judicial and private 18 resources.” Athans v. Starbucks Coffee Co., No. CV-06-1841-PHX-DGC, 2007 WL 1673883, at 19 *2 (D. Ariz. June 11, 2007). 20 Because a frivolous complaint cannot be cured, the Court recommends denying leave to 21 amend. See Lopez, 203 F.3d at 1127 n. 8. 22 V. RECOMMENDATION AND ORDER 23 The Court has screened Plaintiff’s first amended complaint and finds that it is frivolous. 24 Based on the foregoing, it is HEREBY RECOMMENDED that: 25 1. Plaintiff’s complaint be dismissed with prejudice without leave to amend; and 26 2. The Clerk of Court be directed to close this case. 27 /// 28 7 None of those claims have been resolved favorably to him. 1 These findings and recommendations will be submitted to the United States district judge 2 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within twenty-one 3 | (21) days after being served with these findings and recommendations, Plaintiff may file written 4 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 5 | Findings and Recommendations.” 6 Plaintiff is advised that failure to file objections within the specified time may result in the 7 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 8 || Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 In addition, the Clerk of Court is respectfully directed to appoint a district judge to this 10 || case. 11 b IT IS SO ORDERED. 13 Dated: _ November 6, 2020 [sf ey 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ww