(PC) Mark A. Gibson v. Walinga ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK A GIBSON, JR., Case No. 1:21-cv-01298-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, 13 v. RECOMMENDING THAT THIS ACTION BE DISMISSED 14 A. WALINGA, et al., (ECF No. 10) 15 Defendants. 16 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 17 ORDER DIRECTING CLERK TO ASSIGN 18 DISTRICT JUDGE 19 Mark. A. Gibson, Jr. (“Plaintiff”), is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action. Plaintiff filed the complaint commencing this action on 21 August 26, 2021. (ECF No. 1). In his original complaint, brought what the Court construed as 22 an Eighth Amendment cruel and unusual punishment claim, a Fourteenth Amendment equal 23 protection clause claim, and an Americans with Disabilities Act claim based on defendant 24 Walinga insulting Plaintiff after Plaintiff was called to the gym. 25 On October 8, 2021, the Court screened Plaintiff’s complaint and found that it failed to 26 state any cognizable claims. (ECF No. 9). The Court gave Plaintiff thirty days to either: “a. 27 File a First Amended Complaint; or b. Notify the Court in writing that he wants to stand on his 28 complaint.” (Id. at 8). 1 On November 10, 2021, Plaintiff filed his First Amended Complaint. (ECF No. 13). In 2 his amended complaint, Plaintiff brings claims based on an improper cell search, an improper 3 drug test, the denial of due process at the Rules Violation Report hearing, and the improper 4 processing of an appeal. 5 The Court has reviewed Plaintiff’s First Amended Complaint, and for the reasons 6 described in this order will recommend that this action be dismissed. 7 Plaintiff has twenty-one days from the date of service of these findings and 8 recommendations to file his objections. 9 I. SCREENING REQUIREMENT 10 The Court is required to screen complaints brought by prisoners seeking relief against a 11 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 12 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 13 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 14 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 15 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 8), the Court may 16 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 17 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 18 determines that the action or appeal fails to state a claim upon which relief may be granted.” 19 28 U.S.C. § 1915(e)(2)(B)(ii). 20 A complaint is required to contain “a short and plain statement of the claim showing 21 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 22 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 25 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 26 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 27 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 28 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 1 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 2 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 3 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 4 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 5 pro se complaints should continue to be liberally construed after Iqbal). 6 II. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 7 Plaintiff brings two claims and alleges as follows in his First Amended Complaint: 8 a. Claim 1 9 In his first claim, Plaintiff alleges that his due process and equal protection rights were 10 violated, and cites to Wolff v. McDonnell, 418 U.S. 539 (1974). 11 On September 21, 2020, at approximately 0745, Plaintiff’s cell was searched by 12 defendant Walinga. This was the second search in a three-day period and was not due to any 13 suspected illegal activities. 14 Defendant Walinga failed to document this search in accordance with California 15 Department of Corrections and Rehabilitation (“CDCR”) policy and procedures. No cell 16 search receipt was provided, which was a direct violation of defendant Walinga’s 17 reporting/documentation requirements. These requirements mandate that correctional officers 18 document the search and provide a cell search receipt, which includes any contraband found. 19 Defendant Walinga was on notice that Plaintiff was requesting to be present in order to 20 view this cell search. Plaintiff’s request was denied. This violates Defendant(s)’ own 21 departmental regulations, as no threat was established nor was the search due to any suspected 22 rules violation or contraband. 23 Plaintiff expressed that his rights were being violated, and defendant Walinga then 24 stated, “This is prison I can go into your cell every day if I want, so shut the fuck up….” (ECF 25 No. 10, p. 4) (alteration in original). 26 Defendant Walinga then expressed that this search was due to Plaintiff’s running for the 27 Inmate Advisory Council (“IAC”), which is a body that addresses inmate concerns to upper 28 management. The IAC and its members are frequent targets of correctional staff and are seen 1 as adversaries. 2 Plaintiff was at all times compliant. Defendant(s) should have known, due to being 3 trained in cell search procedures and CDCR regulations that clearly outline officer’s duties 4 while searching and documenting searches, that defendant Walinga violated Plaintiff’s right to 5 receive a cell search receipt and a notice of contraband. 6 Defendant Walinga then proceeded to escort Plaintiff and his cellmate to the Facility C 7 Gym for random drug testing. 8 Defendant Walinga, without the aid of any other staff, asked Plaintiff for his and his 9 cellmate’s prison identification card, which has his name on it. Defendant Walinga then stated, 10 “you don’t look like a Gibson, you look like a pisa.” (Id.). Pisa is a derogatory word used to 11 describe Mexican Americans. Defendant Walinga then looked at Plaintiff’s picture then back 12 at Plaintiff and asked, “what the fuck is wrong with your ear, looks like Mike Tyson bit it off.” 13 (Id.). Defendant Walinga then laughed aloud with his co-workers. 14 Defendant and Senior Hearing Officer, John Doe 1, denied Plaintiff his procedural due 15 process protections by failing to dismiss the Rules Violation Report (“RVR”) for violations of 16 the cell search policy and procedures associated with proper notification when contraband is 17 found by a CDCR Officer, for failure to include that Plaintiff and his cellmate were also 18 “tested” by the same officer who conducted the unlawful cell search, and for failure to properly 19 document his involvement, and for failure to document the existence of another officer. 20 b. Claim 2 21 In his second claim, Plaintiff alleges that he was subjected to retaliation in violation of 22 the First Amendment. 23 Plaintiff was served an RVR on September 22, 2021, as a result of the cell search by 24 defendant Walinga. Plaintiff was denied witnesses and questions on October 5, 2020, by 25 defendant Doe 1. Plaintiff timely requested these witnesses. 26 Defendant Doe 1 refused to document or notice that defendant Walinga failed to 27 document a cell search receipt, which was required. No contraband was noticed or 28 documented, nor was the fact that defendant Walinga escorted and “tested” both Plaintiff and 1 his cellmate in the Facility C Gym. 2 Defendant Walinga violated cell search policy, failed to document contraband 3 according to policy, and failed to include it in his report. The report was used to take away 4 good time credits and privileges from Plaintiff. 5 Defendant Walinga tested and collected urine samples from both inmates, in violation 6 of Plaintiff’s due process protections, CDCR policy, and penal code § 118.1. This required 7 dismissal of the RVR and termination of defendant Walinga for falsification of records and 8 evidence. 9 Defendant Doe 1 should have known, due to being trained in and understanding the 10 disciplinary process, that the reports were outside departmental policy and procedures and 11 should have dismissed the charge. Defendant Doe 1 then should have reported the employee 12 reporting and documentation violation(s) to management and the Investigative Service Unit. 13 This was not done. 14 Plaintiff attempted to access the appeals process on September 23, 2020, in order to 15 establish his claims. The appeal was rejected on the grounds that Plaintiff had not suffered any 16 harm, injury, or policy violations. 17 Plaintiff again filed an appeal after being found guilty of the RVR. Plaintiff established 18 the issues to the best of his ability, and the appeal was accepted. Plaintiff later received notice 19 that his appeal was considered exhausted, as the CDCR failed to respond within the time 20 constraints. 21 Defendants, the Appeals Office, and the Warden, by this decision, effectively silenced 22 Plaintiff’s ability to gain redress and be free from punitive and blatant regulation violations by 23 CDCR staff, management, and the hiring authority. Plaintiff was subjected to First 24 Amendment retaliation.1 25 \\\ 26 \\\ 27 28 1 Plaintiff asks the Court to take jurisdiction over his state law claims, but he does not bring any state law claims. 1 III. ANALYSIS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 2 A. Section 1983 3 The Civil Rights Act under which this action was filed provides: 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 5 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 6 secured by the Constitution and laws, shall be liable to the party injured in an 7 action at law, suit in equity, or other proper proceeding for redress.... 8 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 9 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 10 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 11 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 12 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 13 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 14 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 15 under color of state law, and (2) the defendant deprived him of rights secured by the 16 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 17 2006); see also Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 18 “under color of state law”). A person deprives another of a constitutional right, “within the 19 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 20 omits to perform an act which he is legally required to do that causes the deprivation of which 21 complaint is made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 22 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 23 causal connection may be established when an official sets in motion a ‘series of acts by others 24 which the actor knows or reasonably should know would cause others to inflict’ constitutional 25 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 26 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 27 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 28 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 1 A plaintiff must demonstrate that each named defendant personally participated in the 2 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 3 connection or link between the actions of the defendants and the deprivation alleged to have 4 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 5 658, 691, 695 (1978). 6 Supervisory personnel are not liable under section 1983 for the actions of their 7 employees under a theory of respondeat superior and, therefore, when a named defendant 8 holds a supervisory position, the causal link between the supervisory defendant and the claimed 9 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. 10 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 11 1978). To state a claim for relief under section 1983 based on a theory of supervisory liability, 12 a plaintiff must allege some facts that would support a claim that the supervisory defendants 13 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v. 14 Black, 885 F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 15 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] 16 a policy so deficient that the policy itself is a repudiation of constitutional rights and is the 17 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 18 quotation marks omitted). 19 For instance, a supervisor may be liable for his or her “own culpable action or inaction 20 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 21 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 22 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 23 630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 24 A. Fourteenth Amendment Equal Protection Clause 25 The equal protection clause requires that persons who are similarly situated be treated 26 alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann 27 v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. 28 Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 1 2008). To state a claim, Plaintiff must show that Defendants intentionally discriminated 2 against him based on his membership in a protected class, Hartmann, 707 F.3d at 1123 3 Furnace, 705 F.3d at 1030, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Thornton 4 v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005), Lee v. City of Los Angeles, 250 5 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were intentionally treated 6 differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon 7 Department of Agr., 553 U.S. 591, 601-02 (2008), Village of Willowbrook v. Olech, 528 U.S. 8 562, 564 (2000), Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008), North 9 Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 10 “[T]he disabled do not constitute a suspect class” for equal protection purposes. Does 11 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996). 12 It is not clear, but it appears that Plaintiff is bringing an equal protection clause claim 13 based on the allegation that defendant Walinga used a derogatory word to refer to how he looks 14 and then insulted his ear. 15 However, as with his prior complaint, Plaintiff does not sufficiently allege that he was 16 treated differently than similarly situated individuals. Although he claims that defendant 17 Walinga used a derogatory name for him related to his race and insulted his ear, he does not 18 allege that he was denied access to any service or program, or otherwise discriminated against. 19 Plaintiff only complains of verbal harassment that occurred on one occasion, and as a general 20 rule, “[v]erbal harassment or abuse ... is not sufficient to state a constitutional deprivation under 21 42 U.S.C. § 1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (alterations in 22 original) (citation and internal quotation marks omitted), overruled in part on other grounds by 23 Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008)). See also Weaver v. Williams, 2018 24 WL 446721, at *7 (E.D. Cal. Jan. 17, 2018), report and recommendation adopted sub nom. 25 Weaver v. Williams, 2018 WL 2230037 (E.D. Cal. Feb. 26, 2018) (claims of verbal 26 harassment, including the use of racial slurs, “fail to state viable claims for relief” under section 27 1983). 28 There are also no allegations suggesting that the comments allegedly made by defendant 1 Walinga were unusually gross even for a prison setting, that they were calculated to cause 2 psychological damage to Plaintiff, or that they did cause psychological damage to Plaintiff. 3 Accordingly, Plaintiff fails to state an equal protection claim against defendant 4 Walinga.2 5 B. Processing of Appeals 6 “[A prison] grievance procedure is a procedural right only, it does not confer any 7 substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) 8 (alteration in original) (quoting Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see 9 also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of 10 appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 11 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on 12 prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give rise to a 13 protected liberty interest requiring the procedural protections envisioned by the Fourteenth 14 Amendment.” Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 15 1986). 16 As Plaintiff does not have a liberty interest in the processing of his appeals, the Court 17 finds that Plaintiff failed to state a claim based on his allegations that his appeals were not 18 appropriately processed. To the extent prison officials failed to process Plaintiff’s appeals, that 19 may allow Plaintiff to proceed in court without fully exhausting administrative remedies. But 20 poor processing of appeals is not an independent constitutional violation. 21 To the extent that Plaintiff is attempting to bring a retaliation claim against the Appeals 22 Officer Reviewer or Warden because they failed to properly process Plaintiff’s appeals in 23 24 2 Plaintiff does not appear to be bringing a retaliation claim based on these allegations, but to the extent that he is, his claim fails. There are five basic elements to a First Amendment retaliation claim: “(1) An assertion 25 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 26 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). While Plaintiff alleges that the search was conducted because Plaintiff is running for the IAC, 27 there are no allegations suggesting that is why defendant Walinga insulted Plaintiff. Moreover, even if it was, there are no allegations suggesting that the insults chilled the exercise of Plaintiff’s First Amendment rights. 28 1 retaliation, there are no factual allegations to suggest that either of these defendants failed to 2 properly process Plaintiff’s appeal because Plaintiff engaged in protected conduct. 3 Accordingly, Plaintiff’s claims based on the alleged improper processing of his appeals 4 fail. 5 C. Challenge to Plaintiff’s RVR 6 Plaintiff also raises several challenges to his Rules Violation Report and associated 7 guilty finding and punishments. 8 “[A] prisoner in state custody cannot use a § 1983 action to challenge the fact or 9 duration of his confinement. He must seek federal habeas corpus relief (or appropriate state 10 relief) instead.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (citations and internal quotation 11 marks omitted). 12 In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the United States Supreme Court 13 held that to recover damages for “harm caused by actions whose unlawfulness would render a 14 conviction or sentence invalid,” a § 1983 plaintiff must prove that the conviction or sentence 15 was reversed, expunged, or otherwise invalidated. This “favorable termination rule” preserves 16 the rule that federal challenges, which, if successful, would necessarily imply the invalidity of 17 confinement or its duration, must be brought by way of petition for writ of habeas corpus, after 18 exhausting appropriate avenues of relief. Muhammad v. Close, 540 U.S. 749, 750-751 (2004). 19 Accordingly, “a state prisoner’s § 1983 action is barred (absent prior invalidation)—no matter 20 the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state 21 conduct leading to conviction or internal prison proceedings)—if success in that action would 22 necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 23 81-82. 24 The Supreme Court extended the favorable termination rule to prison disciplinary 25 proceedings. Preiser v. Rodriguez, 411 U.S. 475, 487 (1973); Nettles v. Grounds, 830 F.3d 26 922, 927-29 (9th Cir. 2016). 27 As to the remainder of Plaintiff’s claims, it appears that they cannot proceed because 28 they challenge a finding that extended the duration of his confinement. Plaintiff alleges that 1 defendant Walinga subjected him to a search and a drug test in a manner that violated CDCR 2 policies and procedures, which led to an RVR. Plaintiff further alleges that Defendant Doe 1 3 should have dismissed the RVR because defendant Walinga violated CDCR policies and 4 procedures. Additionally, defendant Doe 1 denied Plaintiff witnesses and questions at the RVR 5 hearing. As a result, Plaintiff lost privileges and good time credits. (ECF No. 10, p. 6) 6 (Plaintiff alleges that a “[r]eport [written by defendant Walinga was] utilized to forfeit ‘good 7 time credits,’ privledges,” and that he was found guilty of the RVR) (errors in original). 8 Thus, in both his retaliation claim and due process claim, Plaintiff is challenging the 9 validity of the RVR, and alleges that the RVR should have been dismissed. As Plaintiff is 10 challenging the validity of an RVR in which he lost good time credits, success in this action 11 would necessarily imply the invalidity of the duration of Plaintiff’s confinement. Accordingly, 12 these claims are Heck barred. If Plaintiff wishes to bring these claims, “[h]e must seek federal 13 habeas corpus relief (or appropriate state relief)….” Dotson, 544 U.S. at 78. If Plaintiff’s 14 habeas challenge is successful, he may then bring his claims pursuant to section 1983. 15 D. RECOMMENDATIONS AND ORDER 16 The Court recommends that this action be dismissed without granting Plaintiff further 17 leave to amend. In the Court’s prior screening order, the Court identified the deficiencies in 18 Plaintiff’s complaint, provided Plaintiff with relevant legal standards, and provided Plaintiff 19 with an opportunity to amend his complaint. Plaintiff filed his First Amended Complaint with 20 the benefit of the Court’s screening order, but failed to cure the deficiencies identified by the 21 Court. It does not appear that he can cure the deficiencies in an amended complaint. Thus, it 22 appears that further leave to amend would be futile.3 23 Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that: 24 1. This action be dismissed; and 25 2. The Clerk of Court be directed to close this case. 26 27 3 If Plaintiff believes the punishment for the RVR did not affect the duration of his sentence, including if 28 he is serving an indeterminate sentence, he may file objections to these findings and recommendations explaining that position. 1 These findings and recommendations will be submitted to the United States district 2 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 3 || twenty-one (21) days after being served with these findings and recommendations, Plaintiff 4 || may file written objections with the Court. The document should be captioned “Objections to 5 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 6 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 7 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 8 || (9th Cir. 1991)). 9 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 10 || judge to this case. 11 IT IS SO ORDERED. 13 Dated: _ December 27, 2021 [sf heey 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12