(PC) Carroll v. CDCR ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 TREMAINE CARROLL, Case No. 1:23-cv-00005-JLT-SAB (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS 11 RECOMMENDING DISMISSAL OF THE v. ACTION 12 CDCR, et al., (ECF No. 13) 13 Defendants. 14 15 16 Plaintiff Tremaine Carroll is proceeding pro se in this civil rights action filed pursuant to 17 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 18 U.S.C. § 636(b)(1)(B) and Local Rule 302. Plaintiff’s complaint in this action was filed on 19 January 3, 2023. (ECF No. 1.) 20 On February 2, 2023, the Court screened the complaint, found no cognizable claims, and 21 granted Plaintiff thirty days to file an amended complaint. (ECF No. 10.) 22 Plaintiff failed to file an amended complaint or otherwise respond to the Court’s February 23 2, 2023 order. Therefore, on March 14, 2023, the Court issued an order for Plaintiff to show 24 cause why the action should not be dismissed. (ECF No. 13.) Plaintiff has failed to respond to 25 the order to show cause and the time to do so has now passed. Accordingly, dismissal of the 26 action is warranted. 27 /// /// 1 I. 2 SCREENING REQUIREMENT 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 5 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 6 legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or 7 that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 8 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 14 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 15 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 16 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 17 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 18 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 19 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 20 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 21 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 22 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 23 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 24 F.3d at 969. 25 II. 26 SUMMARY OF ALLEGATIONS 27 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of 1 As stated in the Court’s January 25, 2023 order, this action is proceeding as to Plaintiff, 2 Tremaine Carroll only. (ECF No. 9.) 3 On December 24, 2022, at approximately 0800 hours, Plaintiff suffered multiple injuries 4 after falling out of her wheelchair due to a hazardous crack in the pavement in front of the 5 CCWF 80s clinic. CCWF staff had inmate Brown pushing Plaintiff. Plaintiff injured her head, 6 neck, shoulder, back, arms, writs, fingers, knee and ankle. She only received an ice pack and 7 Motrin for the pain. 8 When Plaintiff arrived at CCWF on August 26, 2021, she immediately noticed them that 9 the prison was out of compliance with federal ADA guidelines that afford mobility impaired 10 inmate patients the right to a paved safe path of travel. Plaintiff filed over 20 complaints about 11 this specific issue, some of which were captured on video with associate warden Dill, but there 12 have been no results. 13 CDCR, CCWF, and the Secretary and hiring authority, knew or should have known that 14 inmates, like Plaintiff, would face and/or suffer serious physical injury as a result of their 15 unwillingness to fix the grounds, based on all the prior complaints and injuries. 16 There have been years of complaints and years of multiple inmates at CCWF being 17 injured as a result of the prison’s recklessness. The mobility impaired as well as the inmates 18 staff give direct orders to push and assist. Prison officials knew or should have known that 19 inmates would get injured if they did not fix the roads. 20 Plaintiff is African American, a transgender women, and is mobility impaired under the 21 ADA. Plaintiff is falsely imprisoned as her sentence is racially motivated because she has been 22 imprisoned on a juvenile conviction for over 20 years. 23 III. 24 DISCUSSION 25 A. Linkage Requirement 26 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 27 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1 To state a claim under section 1983, a plaintiff is required to show that (1) each defendant acted 2 under color of state law and (2) each defendant deprived him of rights secured by the 3 Constitution or federal law. Long, 442 F.3d at 1185. This requires the plaintiff to demonstrate 4 that each defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 5 677; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City 6 of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). In other words, to state a claim for relief 7 under section 1983, Plaintiff must link each named defendant with some affirmative act or 8 omission that demonstrates a violation of his federal rights. 9 B. Hazardous Conditions of Confinement 10 “It is undisputed that the treatment a prisoner receives in prison and the conditions under 11 which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” Helling v. 12 McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 13 (1994). Conditions of confinement may, consistent with the Constitution, be restrictive and 14 harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 15 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. 16 Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, 17 provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal 18 safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other 19 grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 20 731 (9th Cir. 2000); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 21 642 F.2d 1129, 1132-33 (9th Cir. 1981). 22 Two requirements must be met to show an Eighth Amendment violation. Farmer, 511 23 U.S. at 834. “First, the deprivation alleged must be, objectively, sufficiently 24 serious.” Id. (citation and internal quotation marks omitted). Second, “a prison official must have 25 a sufficiently culpable state of mind,” which for conditions of confinement claims “is one of 26 deliberate indifference.” Id. (citations and internal quotation marks omitted). Prison officials act 27 with deliberate indifference when they know of and disregard an excessive risk to inmate health 1 determining whether the conditions complained of are grave enough to form the basis of a viable 2 Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Mere 3 negligence on the part of a prison official is not sufficient to establish liability, but rather, the 4 official's conduct must have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 5 1124, 1128 (9th Cir. 1998). 6 Plaintiff alleges that she was injured from a fall due to a crack in the pavement. 7 However, Plaintiff has failed to sufficiently allege that any Defendant knew that the crack in the 8 pavement posed an excessive risk to Plaintiff’s health and safety. Even liberally construed, the 9 complaint does not state a claim for an Eighth Amendment violation, since there are no facts 10 supporting a finding of deliberate indifference. Plaintiff alleges that numerous other inmates 11 complained about the cracks in the pavement and injuries thereby, but there are no allegations 12 sufficiently linking such knowledge to the Defendants named in complaint. Simply stating 13 “Defendants” knew or should have known is not sufficient. 14 Moreover, a simple claim of negligence is not actionable under the Eighth 15 Amendment. Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989); see also Thompson v. 16 McMahon, No. 12-cv-1020-FMO (JEM), 2013 WL 5220748 (C.D. Cal. Sept. 16, 17 2013) (explaining that negligence claim arising from prisoner’s fall at work did not give rise to a 18 federal cause of action; listing similar cases); Brown v. Brasher, No. CIV S-10-0479-MCE-EFB, 19 2012 WL 639446 (E.D. Cal. Feb. 27, 2012) (holding that a mobility-impaired inmate's claim 20 regarding slipping and falling in a puddle caused by a water leak could only support a tort claim 21 of negligence). Accordingly, Plaintiff fails to state a cognizable claim for relief. 22 C. Supervisory Liability 23 In a Section 1983 action, a supervisory official cannot be held liable under a theory of 24 respondeat superior or vicarious liability. See Iqbal, 556 U.S. at 676. A supervisor's 25 mere knowledge of the unconstitutional conduct of a subordinate does not amount to the 26 supervisor's own violation of the Constitution. Id. at 677 (rejecting this theory of supervisory 27 1 liability). “Absent vicarious liability, each Government official, his or her title notwithstanding, 2 is only liable for his or her own misconduct.” Id. 3 Under Section 1983, a supervisor may be liable if a plaintiff demonstrates either (1) the 4 supervisor's personal involvement in the constitutional deprivation, or (2) a sufficient causal 5 connection between the supervisor's wrongful conduct and the constitutional violation. Edgerly 6 v. City & County of San Francisco, 599 F.3d 946, 961 (9th Cir. 2010). The requisite causal 7 connection may be established by setting in motion a series of acts by others or by knowingly 8 refusing to terminate a series of acts by others that the supervisor knew or reasonably should 9 have known would cause others to inflict a constitutional injury. Starr v. Baca, 652 F.3d 1202, 10 1207-08 (9th Cir. 2011). “A supervisor can be liable in his individual capacity for his own 11 culpable action or inaction in the training, supervision, or control of his subordinates; for his 12 acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous 13 indifference to the rights of others.” Id. at 1208 (citation omitted). 14 Plaintiff has failed to allege sufficient facts for supervisory liability as she merely 15 presents conclusory allegations that Defendants knew or should have known of the condition of 16 the pavement. See Iqbal, 556 U.S. at 678; Krainskin v. Nev. Ex rel. Bd. Of Regents of Nev. Sys. 17 Of Higher Educ., 616 F.3d 963, 969 (9th Cir. 2010) (dismissing complaint because plaintiff 18 “merely alleged in a conclusory fashion that the officers ‘knew or should have known’ ” of the 19 violation); Sullivan v. Biter, No. 1:15-cv-00243-DAD-SAB, 2017 WL 1540256, at *1 (E.D. Cal. 20 Apr. 28, 2017) (“Conclusory allegations that various prison officials knew or should have 21 known about constitutional violations occurring against plaintiff simply because of their 22 general supervisory role are insufficient to state a claim under 42 U.S.C. § 1983.”). Accordingly, 23 Plaintiff fails to state a cognizable claim against any of the supervisory individuals named in the 24 complaint. 25 D. Equal Protection/Discrimination 26 The Equal Protection Clause of the Fourteenth Amendment requires every individual to 27 be judged individually and receive equal justice under the law. Plyler v. Doe, 457 U.S. 202, 216 1 n.14 (1982). This has not, however, been held to mean that all individuals must receive equal 2 treatment. The Supreme Court's tiered framework analyzes equal protection claims based on the 3 type of classification at issue and the requisite level of justification. If a group of individuals is 4 considered a suspect or quasi-suspect class, then the court applies either strict or intermediate 5 scrutiny. Strict scrutiny has been historically reserved for fundamental rights and classifications 6 based on race and national origin. See Loving v. Virginia, 388 U.S. 1, 18 (1967). Intermediate 7 scrutiny, on the other hand, has been applied to sex-based classifications. See United States v. 8 Virginia, 518 U.S. 515, 524 (1996). 9 The Supreme Court employs a four-factor test to determine whether a class qualifies as 10 suspect or quasi-suspect thus meriting heightened scrutiny. Heightened scrutiny is appropriate 11 when the class being discriminated against: (1) has been “historically subjected 12 to discrimination,” (2) has a defining characteristic bearing no “relation to ability to perform or 13 contribute to society,” (3) has “obvious, immutable, or distinguishing characteristics,” and (4) is 14 a “minority or is politically powerless.” Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 15 2012) (listing the factors). Once the Court determines heightened scrutiny should apply, the 16 plaintiff must show the defendants acted with an intent or purpose to discriminate against her 17 based on her membership in a suspect or quasi-suspect class. See Barren v. Harrington, 152 F.3d 18 1193, 1194 (9th Cir. 1998). The Ninth Circuit has recently stated that “ ‘all gender-based 19 classifications today’ warrant ‘heightened scrutiny.’ ” Harrison v. v. Kernan, 971 F.3d 1069, 20 1077 (9th Cir. 2020) (citing VMI, 518 U.S. at 555 (quoting J.E.B. v. Alabama ex rel. T.B., 511 21 U.S. 127, 136 (1994)). 22 Other than stating that Plaintiff is African American, disabled, and transgender, she has 23 failed to set forth sufficient facts to demonstrate discrimination based on her nationality, 24 disability, and/or gender status. Accordingly, Plaintiff fails to state a cognizable claim for relief. 25 E. Americans with Disabilities Act 26 The ADA provides, “no qualified individual with a disability shall, by reason of such 27 disability, be excluded from participation in or be denied the benefits of the services, programs, 1 or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 2 12132. 3 Section 504 of the Rehabilitation Act provides, “[n]o otherwise qualified individual with 4 a disability in the United States ... shall, solely by reason of her or his disability, be excluded 5 from the participation in, be denied the benefits of, or be subjected to discrimination under 6 any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). 7 Plaintiff does not state a cognizable claim under the ADA or the Rehabilitation Act. 8 Although Plaintiff submits that she is disabled and requires a wheelchair, there are no allegations 9 that prison staff subjected her to discrimination because of a disability. In addition, Plaintiff 10 does not allege that she was excluded from participation in, or denied the benefits of, prison 11 services or programs because of a disability. 12 F. False Imprisonment 13 Plaintiff claims that she is falsely imprisoned beyond her criminal sentence. 14 “[W]hen a state prisoner is challenging the very fact or duration of physical 15 imprisonment, and the relief [the prisoner] seeks is a determination that is entitled to immediate 16 release or a speedier release from that imprisonment, sole remedy is a writ of habeas 17 corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that an injunctive relief action 18 to restore the revocation of good-time credits is not cognizable under § 1983); see also Skinner v. 19 Switzer, 562 U.S. 521, 525 (2011); Simpson v. Thomas, 528 F.3d 685, 692-93 (9th Cir. 20 2008); Ramirez v. Galaza, 334 F.3d 850, 855-56 (9th Cir. 2003); Bogovich v. Sandoval, 189 21 F.3d 999, 1002-03 (9th Cir. 1999) (applying rule to ADA claim); Neal v. Shimoda, 131 F.3d 22 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per 23 curiam). 24 Accordingly, where the § 1983 action would necessarily imply the invalidity of the 25 conviction or sentence, it may not proceed. See Edwards v. Balisok, 520 U.S. 641, 646-48 26 (1997), 520 U.S. at 646-48 (concluding that § 1983 claim was not cognizable because allegation 27 of procedural defect – a biased hearing officer – would result in an automatic reversal of the 1 prison disciplinary sanction); Heck v. Humphrey, 512 U.S. 477, 483-87 (1994). (concluding 2 that § 1983 claim was not cognizable because allegations were akin to malicious prosecution 3 claim which includes as an element that the criminal proceeding was concluded in plaintiff's 4 favor); Szajer v. City of Los Angeles, 632 F.3d 607, 611-12 (9th Cir. 2011) (concluding that 5 Fourth Amendment unlawful search claim was not cognizable because a finding that there was 6 no probable cause for the search would necessarily imply the invalidity of plaintiffs’ conviction 7 for felony possession of a pistol); Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th 8 Cir. 1998) (per curiam) (concluding that claims for false arrest and false imprisonment were not 9 cognizable because a finding that there was no probable cause to arrest plaintiff for disturbing 10 the peace would necessarily imply that plaintiff's conviction for disturbing the peace was 11 invalid). 12 Plaintiff’s claim that she is falsely imprisoned beyond her criminal sentence necessarily 13 challenges Plaintiff's conviction and bars the complaint from moving forward because of the 14 “favorable termination” rule derived from Heck, regardless of the remedy sought. Cabrera, 159 15 F.3d 374, 380; Balisok, 520 U.S. 641, 646-48; Wilkinson v. Dotson, 544 U.S. 74, 81-82 16 (2005) (explaining that “a state prisoner’s § 1983 action is barred (absent prior invalidation) – no 17 matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit 18 (state conduct leading to conviction or internal prison proceedings) – if success in that action 19 would necessarily demonstrate the invalidity of confinement or its duration.”). Accordingly, 20 Plaintiff cannot state a claim for false imprisonment by way of section 1983. 21 IV. 22 FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 23 Here, the Court screened Plaintiff’s complaint, and on February 2, 2023, an order issued 24 providing Plaintiff with the legal standards that applied to her claims, advising her of the 25 deficiencies that needed to be corrected, and granting her leave to file an amended complaint 26 within thirty days. (ECF No. 10.) Plaintiff did not file an amended complaint or otherwise 27 respond to the Court’s February 2, 2023 order. Therefore, on March 14, 2023, the Court ordered 1 Plaintiff to show cause within fourteen (14) days why the action should not be dismissed. (ECF 2 No. 13.) Plaintiff failed to respond to the March 14, 2023 order. 3 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 4 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 5 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 6 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 7 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 8 2000). 9 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 10 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 11 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 12 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 13 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 14 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 15 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 16 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 17 of prosecution and failure to comply with local rules). 18 “In determining whether to dismiss an action for lack of prosecution, the district court is 19 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of 20 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 21 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 22 drastic sanctions.’ ” Carey, 856 F.2d at 1440 (quoting Henderson, 779 F.2d at 1423). These 23 factors guide a court in deciding what to do, and are not conditions that must be met in order for 24 a court to take action. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 25 1217, 1226 (9th Cir. 2006) (citation omitted). 26 In this instance, the public’s interest in expeditious resolution of the litigation and the 27 Court’s need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine 1 complaint within thirty days of February 2, 2023 and has not done so. Accordingly, the 2 operative pleading is the January 3, 2023 complaint which has been found not to state a 3 cognizable claim. Plaintiff’s failure to comply with the order of the Court by filing an amended 4 complaint hinders the Court’s ability to move this action towards disposition. This action can 5 proceed no further without Plaintiff’s compliance with the order and his failure to comply 6 indicates that Plaintiff does not intend to diligently litigate this action. 7 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 8 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 9 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of 10 dismissal. 11 The public policy in favor of deciding cases on their merits is greatly outweighed by the 12 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. In order 13 for this action to proceed, Plaintiff is required to file an amended complaint curing the 14 deficiencies in the operative pleading. Despite being ordered to do so, Plaintiff did not file an 15 amended complaint or respond to the order to show cause and this action cannot simply remain 16 idle on the Court’s docket, unprosecuted. In this instance, the fourth factor does not outweigh 17 Plaintiff’s failure to comply with the Court’s orders. 18 Finally, a court’s warning to a party that their failure to obey the court’s order will result 19 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 20 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s February 2, 2023 order 21 requiring Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an 22 amended complaint in compliance with this order, the Court will recommend to a district judge 23 that this action be dismissed consistent with the reasons stated in this order.” (ECF No. 10.) In 24 addition, the Court’s March 14, 2023, order to show cause specifically stated: “Plaintiff’s failure 25 to comply with this order will result in a recommendation to dismiss the action for the reasons 26 stated above.” (ECF No. 13.) Thus, Plaintiff had adequate warning that dismissal would result 27 from her noncompliance with the Court’s order. 1 V. 2 ORDER AND RECOMMENDATION 3 The Court has screened Plaintiff's complaint and found that it fails to state a cognizable claim. Plaintiff has failed to comply with the Court’s order to file an amended complaint or 5 | respond to the Court’s order to show why the action should not be dismissed. In considering the 6 | factors to determine if this action should be dismissed, the Court finds that this action should be 7 | dismissed for Plaintiffs failure to state a cognizable claim, failure to obey the February 2, 2023 8 | and March 14, 2023 orders, and failure to prosecute this action. 9 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for 10 | Plaintiff's failure to state a claim, failure to comply with a court order, and failure to prosecute. 11 This Findings and Recommendation is submitted to the district judge assigned to this 12 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 13 | (14) days of service of this Recommendation, Plaintiff may file written objections to this 14 | findings and recommendation with the Court. Such a document should be captioned “Objections 15 | to Magistrate Judge’s Findings and Recommendation.” The district judge will review the 16 | magistrate judge’s Findings and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The 17 | parties are advised that failure to file objections within the specified time may result in the 18 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 19 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. DAM Le 22 | Dated: _ April 7, 2023 _ ef 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28