(PC) Sosa v. CSATF Warden ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JORGE LUIS SOSA, No. 1:19-cv-01333-NONE-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT’S 13 v. MOTION TO DISMISS BE GRANTED AND THAT PLAINTIFF’S COMPLAINT BE 14 R. HULSE, DISMISSED 15 Defendant. (ECF No. 18) 16 17 Jorge Luis Sosa (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on Plaintiff’s 19 claims against Defendant R. Hulse (“Defendant”) and Does 1-3 for excessive force and sexual 20 assault in violation of Plaintiff’s Eighth Amendment rights and retaliation in violation of 21 Plaintiff’s First Amendment rights. (ECF Nos. 1 & 20 at 2). 22 On April 9, 2020, Defendant filed a motion to dismiss the complaint on the ground that 23 Plaintiff’s claims are time-barred by the statute of limitations. (ECF No. 18 at 1). Following a 24 court order for additional briefing concerning equitable tolling, (ECF No. 23), Defendant filed 25 supplemental briefing, (ECF No. 25). Plaintiff has not filed any opposition to the motion to 26 dismiss, although in his last request for an extension of time to respond, Plaintiff set forth certain 27 arguments and legal citations, which the Court has considered. 28 /// 1 For the reasons below, the Court recommends dismissing Plaintiff’s complaint with 2 prejudice. 3 I. SUMMARY OF PLAINTIFF’S COMPLAINT 4 Plaintiff’s complaint alleges as follows: 5 A. Factual Allegations 6 On June 6, 2014, Plaintiff was housed at the California Substance Abuse Treatment 7 Facility (SATF). A correctional officer and an inmate turned off his water. The next day, on 8 June 7, 2014, three officers took Plaintiff out of his cell to another cell where there were no 9 cameras or there were cameras but they were covered. Plaintiff was slammed against the wall 10 and one correctional officer put him in a choke hold and punched Plaintiff in the ribs. Medical 11 reports will confirm the damage he suffered. Then one of the correctional officers pulled down 12 Plaintiff’s boxers and penetrated his anus with a gloved finger. 13 Plaintiff has been repeatedly targeted by corrections officers because of him standing up 14 and speaking against them when they abused other inmates. This has been going on for years. 15 He has had many false rule violation reports written about him and property stolen. 16 Plaintiff asks for the officers to be punished. He wants to be free from further acts of 17 retaliation by corrections officers. 18 B. Attached Forms 19 Plaintiff also attached grievances and other forms to his complaint. (ECF No. 1-1). The 20 Court reviews them in chronological order, based on the earliest date on each form. 21 On December 4, 2014, Plaintiff signed a form that informed him of his rights to privacy 22 with respect to his sexual assault allegation. The form was not numbered, but it was entitled 23 “Victims of Sex Crimes; Acknowledgment of California Penal Code Section 293(a); 24 Notification/Request for Confidentiality of Information.” (Id. at 11). 25 Plaintiff signed a CDCR 22 form, for “Inmate / Parolee Request for Interview, Item or 26 Service.” It was dated as received on August 24, 2015. In it, Plaintiff sought “copies of all 27 documents, reports or chronos filed in my files that are related to or pertain to the incident on or 28 about June 07th, 2014 at ‘C.T.C[.]’ – S.A.T.F.-Corcoran at 21:00 HR (I’m referring to the report 1 of sexual assault by c/o Housse and his partners)[.]” (Id. at 10). The staff response, dated 2 September 2, 2015, stated that no documents were located. 3 On September 20, 2015,1 Plaintiff signed another request for information on a form 4 CDCR 22a, for “Inmate / Parolee Request for Interview, Item or Service.” Plaintiff’s request was 5 for information concerning his sexual assault claims. (Id. at 12) (“The sole purpose of this request 6 is to respectfully request documentation in regards to the disposition of a sexual misconduct 7 investigation against CSATF officers conducted by ISU.”).2 The response, dated October 1, 2015, 8 was that the investigation was ongoing. 9 On August 23, 2018, Plaintiff signed a form CDCR 602, Inmate / Parolee Appeal. It was 10 stamped as received on August 28, 2018. In the grievance, Plaintiff alleges he was assaulted by 11 correctional officers. The substance of the grievance is substantially similar to the allegations in 12 Plaintiff’s complaint. (Id. at 4-7). The section concerning the first level response was stamped 13 “BYPASS.” 14 There is a single sheet of paper, shown as Page 2, with a date of July 27, 2018. It states 15 that it is from the “Intake and Review Unit, Officer of the Inspector General.” It does not clearly 16 show what the letter is about; it discusses only various procedures of reviewing the decision from 17 the OIG. (Id. at 3). 18 The second level response was dated October 2, 2018 and signed by various parties on 19 October 11 and 12, 2018. (Id. at 8-9). The response stated Plaintiff’s allegations were not 20 sustained by internal affairs. (Id. at 9). 21 The third level appeal is stamped June 7, 2019. Plaintiff’s appeal was denied. (Id. at 1-2). 22 C. Procedural Background 23 Defendant filed a motion to dismiss on April 9, 2020. Plaintiff’s response was due April 24 30, 2020. 25 Plaintiff filed a motion for an extension of time to amend his complaint on May 19, 2020. 26 (ECF No. 19). The Court denied the motion because Plaintiff was no pending deadline to file an 27 1 The first signature’s date was “9 20 15.” It is unclear whether the date is September 2015 (i.e., 9/2015) or September 20, 2015 (i.e., 9/20/15). Regardless, it makes no difference to the Court’s analysis. 28 2 An additional copy is on page 13. 1 amended complaint. (ECF No. 21). The Court cautioned Plaintiff that his opposition was late and 2 that “currently Defendants’ motion to dismiss is unopposed. If Plaintiff wishes to extend this 3 deadline, he should file a motion promptly.” (Id. at 2). 4 The Court ordered additional briefing on May 29, 2020. (ECF No. 22). Defendant filed his 5 additional briefing on July 8, 2020. (ECF No. 25). Plaintiff’s response was due July 29, 2020. 6 (See ECF No. 22 at 1) (“Plaintiff shall provide a response to such briefing within twenty-one (21) 7 days following service of Defendant’s briefing.”). 8 On July 31, 2020, Plaintiff filed a motion for an additional 60-day extension of time to file 9 an opposition to the Motion to Dismiss. (ECF No. 26). The Court granted the motion on August 10 4, 2020 and ordered Plaintiff to “file his opposition to Defendants’ motion to dismiss (ECF No. 11 18) no later than 60 days from the date of service of this order.” (ECF No. 27). Thus, Plaintiff had 12 until October 5, 2020, to file his opposition, which was nearly six months after Defendant filed 13 the motion to dismiss. 14 On October 14, 2020, Plaintiff filed a motion for extension of time to oppose the motion, 15 stating he has had no access to the law library and limited access to his legal adviser. (ECF No. 16 28). He also included several pages of legal arguments concerning exhaustion of administrative 17 remedies. 18 After receiving declarations from individuals at Plaintiff’s institution of confinement 19 regarding Plaintiff’s access to legal research and assistance, (ECF No. 30), the Court denied 20 Plaintiff’s motion for an extension of time, (ECF No. 31). However, the Court has considered the 21 legal arguments presented in Plaintiff’s motion for an extension of time in connection with the 22 present motion to dismiss. 23 II. SUMMARY OF ARGUMENTS 24 Defendant moves to dismiss on the basis that Plaintiff’s claims are barred by the statute of 25 limitations. (ECF No. 18). Defendant argues that Plaintiff’s claims accrued on June 7, 2014 26 because that is when the alleged assault occurred. (Id. at 4-5). Thus, absent tolling, the statute of 27 limitations expired on June 7, 2016. (Id. at 6). However, Plaintiff dated his complaint on August 28 8, 2019, and filed it on September 10, 2019, which exceeds the statute of limitations by 1 approximately three years. 2 Defendant further argues that no tolling applies. Because Plaintiff was sentenced to life 3 without parole, he is not entitled to tolling for his incarceration. (Id. at 5). Plaintiff also filed his 4 administrative grievance on or about August 23, 2018, which was approximately two years after 5 the statute of limitations ran. Hence, Defendant argues that the exhaustion process does not 6 sufficiently toll Plaintiff’s claims and his claims are time barred. (ECF No. 25 at 2-5). 7 In his motion for leave to amend, Plaintiff argues that prison officials may waive the 8 untimely filing of an administrative grievance. (ECF No. 28 at 3). Plaintiff also argues that he 9 “believ[ed] that his claim accrued upon completion of exhaustion as is the rule of law discussed, 10 concerning tolling[.]” (Id). 11 III. LEGAL STANDARDS 12 In considering a motion to dismiss, the Court must accept all allegations of material fact in 13 the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007); Hosp. Bldg. Co. v. Rex 14 Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the 15 light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on 16 other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813, 17 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's 18 favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings “must 19 be held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 20 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally 21 construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)). 22 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 23 complaint. See Iqbal, 556 U.S. at 679. “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a 24 short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to 25 ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell 26 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. 27 Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately prevail but 28 whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 1 236 (1974). 2 The first step in testing the sufficiency of the complaint is to identify any conclusory 3 allegations. Iqbal, 556 U.S. at 679. “Threadbare recitals of the elements of a cause of action, 4 supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. 5 at 555). “[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires 6 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 7 will not do.” Twombly, 550 U.S. at 555 (citations and quotation marks omitted). 8 After assuming the veracity of all well-pleaded factual allegations, the second step is for 9 the court to determine whether the complaint pleads “a claim to relief that is plausible on its 10 face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556) (rejecting the traditional 12(b)(6) 11 standard set forth in Conley, 355 U.S. at 45-46). A claim is facially plausible when the plaintiff 12 “pleads factual content that allows the court to draw the reasonable inference that the defendant is 13 liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). The standard 14 for plausibility is not akin to a “probability requirement,” but it requires “more than a sheer 15 possibility that a defendant has acted unlawfully.” Id. 16 IV. DISCUSSION 17 A. Statute of Limitations 18 California’s two-year statute of limitations for personal injury actions applies to § 1983 19 claims brought in this state. Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th 20 Cir. 2014); Cal. Code Civ. Proc. § 335.1.3 “Although state law determines the length of the 21 limitations period, federal law determines when a civil rights claim accrues.” Morales v. City of 22 Los Angeles, 214 F.3d 1151, 1153–54 (9th Cir. 2000). “Under federal law, a claim accrues when 23 the plaintiff knows or has reason to know of the injury which is the basis of the action.” 24 25 3 There is a single statute of limitations for each state; California’s longer statute of limitations of ten years for claims of sexual assault against adults, see Cal. Code Civ. Proc. § 340.16(a), does not alter the two-year statute of limitations for § 1983 actions. Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 579 (9th Cir. 2012) (section 26 1983 plaintiff not entitled to Oregon’s longer statute of limitations for childhood sexual response because “a state’s residual personal injury statute of limitations, not a range of specialized statutes of limitations, should be applied to § 27 1983 claims to prevent unnecessary litigation and preserve the efficacy of the § 1983 remedy” (citing Wilson v. Garcia, 471 U.S. 261, 272-73 (1985), superseded by statute on other grounds as recognized by Jones v. R.R. 28 Donnelly & Sons Co., 541 U.S. 369 (2004))). 1 TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). 2 Here, Plaintiff’s claim accrued on June 7, 2014—the date of his alleged assault. Thus, 3 absent any tolling, the statute of limitations for Plaintiff’s claims expired on June 7, 2016. See 4 Butler, 766 F.3d at 1198 (two-year statute of limitations); TwoRivers, 174 F.3d at 991 (accrual 5 date). 6 The statute of limitations can be tolled for various reasons. Whether Plaintiff is entitled to 7 equitable tolling is determined by California law, except to the extent that California laws are 8 inconsistent with federal law. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). 9 Equitable tolling “operates independently of the literal wording of the Code of Civil 10 Procedure to suspend or extend a statute of limitations as necessary to ensure fundamental 11 practicality and fairness.” Jones, 393 F.3d at 928 (quoting Lantzy v. Centex Homes, 31 Cal. 4th 12 363, 370 (2003)) (internal quotation marks omitted). Under California law, there is a “three- 13 pronged test for invocation” of the equitable tolling doctrine: “(1) timely notice to the defendant 14 in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against 15 the second claim; and, (3) good faith and reasonable conduct by the plaintiff in filing the second 16 claim.” Collier v. City of Pasadena, 142 Cal. App. 3d 917, 924 (1983) (footnote omitted); 17 Addison v. State of California, 21 Cal. 3d 313, 319 (1978); Daviton v. Columbia/HCA Healthcare 18 Corp., 241 F.3d 1131, 1133 (9th Cir. 2001) (en banc). “Application of California’s equitable 19 tolling doctrine ‘requires a balancing of the injustice to the plaintiff occasioned by the bar of his 20 claim against the effect upon the important public interest or policy expressed by the … 21 limitations statute.’” Jones, 393 F.3d at 928 (quoting Lantzy, 31 Cal. 4th at 371)). 22 Defendant argues that Plaintiff is not entitled to California’s general equitable tolling 23 because he has not shown that he timely filed a claim. (ECF No. 25 at 4-5). “The timely notice 24 requirement essentially means that the first claim must have been filed within the statutory 25 period.” McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 102 n.2 (2008). 26 Plaintiff’s attachments dated through June 7, 2016 do not show Plaintiff filed a first claim 27 that equitably tolls the statute of limitations. The attachments indicate Plaintiff began some type 28 of report with the officer of internal affairs. However, they do not indicate he was a party to any 1 suit or administrative remedy. At most, they indicate he sought information about the ongoing 2 investigation. Such an inquiry does not toll the statute of limitations. 3 As Defendant noted, (ECF No. 25 at 2-3), Plaintiff attached to his complaint a form 602 4 grievance that was dated August 2018. Therefore, to the extent that counts as Plaintiff’s first 5 claim, it was not filed within the statutory period. As such, it does not equitably toll the statute of 6 limitations. 7 Therefore, the Court finds that Plaintiff is not entitled to equitable tolling under 8 California’s general rule. 9 In conjunction with Plaintiff’s motion for extension of time to oppose Defendant’s motion 10 to dismiss, Plaintiff appears to argue that he is entitled to tolling based on exhaustion of 11 administrative remedies. “Where exhaustion of an administrative remedy is mandatory prior to 12 filing suit, equitable tolling is automatic: ‘It has long been settled in this and other jurisdictions 13 that whenever the exhaustion of administrative remedies is a prerequisite to the initiation of a 14 civil action, the running of the limitations period is tolled during the time consumed by the 15 administrative proceeding.’” McDonald, 45 Cal. 4th at 101 (quoting Elkins v. Derby, 12 Cal. 3d 16 410, 414 (1974)). See also Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“[T]he applicable 17 statute of limitations must be tolled while a prisoner completes the mandatory exhaustion 18 process.”). 19 However, as discussed above, the statute of limitations had already run when Plaintiff 20 filed the relevant administrative grievance. The Ninth Circuit addressed such an issue in Soto v. 21 Sweetman, 882 F.3d 865 (9th Cir. 2018), where it affirmed a grant of summary judgment to 22 Arizona prison guards. There, Soto was an inmate who alleged he was sexually assaulted by 23 prison guards in May 2010. Id. at 866. He filed a grievance one month later. Id. at 868. However, 24 the summary judgment evidence showed that he abandoned the grievance and restarted in 2014. 25 Id. at 875.4 This exceeded the two-year statute of limitations because he was not entitled to tolling 26 after abandoning his administrative remedies because he had not been actively exhausting his 27 4 Soto argued that he was told he could not pursue his grievance during a criminal investigation, but he did not state 28 that under oath. As such, his claims could not support his position at summary judgment. Id. at 873-74. 1 administrative remedies during that time. Id. (“[T]olling is applicable during the time period in 2 which an inmate is actively exhausting his administrative remedies.” (quoting Gonzalez v. Hasty, 3 651 F.3d 318, 322 (2d Cir. 2011))). 4 Here, the evidence before the Court shows that Plaintiff began exhausting his 5 administrative remedies in August 2018, which is over two years after the statute of limitations 6 ended. He was not entitled to tolling before then because, as in Soto, he was not “actively 7 exhausting his administrative remedies” before filing his grievance. 882 F.3d at 875. 8 Accordingly, the Court finds that Plaintiff is not entitled to tolling during the time he was 9 exhausting his administrative remedies. 10 In his motion for leave to amend, Plaintiff argues that he “believ[ed] that his claim 11 accrued upon completion of exhaustion as is the rule of law discussed, concerning tolling[.]” 12 (Id.). The Ninth Circuit rejected that argument in Soto: When, as here, the inmate knows of the acts when they occurred and knows that 13 he was injured, the claim accrues. The exhaustion requirement justifies tolling the 14 statute of limitations, but it does not justify creating a new accrual rule. The potential unfairness of limitations running during exhaustion is better addressed 15 by equitable tolling. 16 882 F.3d at 871. Thus, “Soto’s claims accrued when the alleged assault occurred in 2010 because 17 he knew of his injuries at that time.” Id. Likewise, Plaintiff’s claims accrued when the alleged 18 assault occurred in 2014 because he knew of his injuries at that time. 19 Defendant also argues that Plaintiff is not entitled to tolling due to his imprisonment 20 because he was sentenced to life without parole. (See ECF No. 18 at 5-6). Prisoners are generally 21 entitled to tolling for up to two years during their imprisonment. Cal. Civ. Code § 352.1. 22 However, the section does not apply to those with life sentences without the possibility of parole. 23 See id. § 352.1(a) (granting tolling only to those imprisoned “for a term less than for life”); 24 accord Gonzalez v. Gardemal, 599 F. App’x 292 (9th Cir. 2015) (unreported) (“Contrary to 25 Gonzalez's contention, he is not entitled to statutory tolling because he is incarcerated for a life 26 term without the possibility of parole.”); Lal v. Ogan, No. 1:18-CV-00286-LJO-SAB (PC), 2019 27 WL 427294, at *3 (E.D. Cal. Feb. 4, 2019) (“Section 352.1 of the California Code of Civil 28 procedure allows for the tolling of the statute of limitations during a period of “disability” while 1 the plaintiff is in state prison, and the tolling may not exceed two years. Incarceration can toll the 2 statute of limitations for a maximum of two years, unless the inmate-plaintiff is serving a life 3 sentence without the possibility of parole.”). 4 Plaintiff was sentenced to life without parole, so he is not entitled to two years under 5 California Civil Code § 352.1. See (ECF No. 1-1 at 4) (judgment filed in People of the State of 6 California v. Sosa, Jorge Luis, Superior Court of California, County of Los Angeles, Case No. 7 VA 026484, dated Jan. 10, 1995, sentencing Plaintiff to “life without the possibility of parole” for 8 murder).5 9 Plaintiff filed this action after the statute of limitations expired, and based on the face of 10 the complaint, Plaintiff is not entitled to any relevant tolling. Therefore, the Court finds that 11 Plaintiff’s complaint is time-barred by the statute of limitations. 12 B. Doe Defendants 13 Under 28 U.S.C. § 1915(e)(2), a “court shall dismiss [an in forma pauperis] case at any 14 time if the court determines that . . . the action . . . fails to state a claim on which relief may be 15 granted[.]” (emphasis added). Here, Plaintiff is proceeding in forma pauperis. (ECF No. 8). The 16 claims against Does 1-3 suffer from the same complaint as those against Defendant Hulse. 17 Therefore, the Court finds that Plaintiff fails to state a claim against the Doe Defendants and 18 corresponding recommends dismissal as to them, too. 19 V. CONCLUSION AND RECOMMENDATIONS 20 The statute of limitations for Plaintiff’s claims expired on July 7, 2016. Plaintiff filed this 21 action on September 10, 2019, which is over three years after the statute of limitations expired. 22 Therefore, the Court will recommend that Defendant’s motion to dismiss be granted. Because the 23 same rationale applies to the unserved Doe Defendants, the Court also recommends dismissing 24 5 Under Federal Rule of Evidence 201(b)(2), a court may take judicial notice of court records. U.S. ex rel. 25 Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (“[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”); United States v. S. California Edison Co., 300 F. Supp. 2d 964, 973 (E.D. Cal. 2004) 26 (same). Therefore, the Court grants Defendant’s request for judicial notice of the judgment from the Superior Court 27 of California, County of Los Angeles, filed by Defendant. See King v. Contra Costa Cty., No. C 20-00462 SBA, 2020 WL 978632, at *3 (N.D. Cal. Feb. 28, 2020) (taking judicial notice of judgments against plaintiff that were filed 28 by defendant in connection with motion to dismiss section 1983 action). 1 | the complaint as to them. 2 Additionally, the Court recommends dismissal with prejudice. Plaintiff was given seven 3 | months to respond to the motion to dismiss and failed to provide any substantive opposition or 4 | indication that amendment would cure the deficiency identified in the motion to dismiss. The 5 | Court recommends finding that leave to amend would be futile. 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. Defendant’s motion for summary judgment (ECF No. 18) be GRANTED; 8 2. Plaintiff's complaint be dismissed against all defendants, with prejudice, as time- 9 barred by the statute of limitations; and 10 3. The Clerk of Court be directed to close this case. 11 These findings and recommendations are submitted to the United States district judge 12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one (21) 13 || days after being served with these findings and recommendations, any party may file written 14 | objections with the court. Such a document should be captioned “Objections to Magistrate 15 | Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 16 | within seven (7) days after service of the objections. The parties are advised that failure to file 17 | objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 18 | Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 19 | (9th Cir. 1991)). 20 IT IS SO ORDERED. 22 | Dated: _ November 10, 2020 [Je hey 3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 1]