1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LAMOUNT CROSSLEY, No. 1:21-cv-01758 GSA (PC) 12 Plaintiff, SCREENING ORDER (SECOND AMENDED

COMPLAINT)

13 v. (ECF No. 14) 14 SHERIFF BOUDREAUX, et al.,

ORDER AND FINDINGS AND

15 Defendants. RECOMMENDATIONS 16 ORDER FINDING THAT CLAIM ONE A

STATES CLAIMS UPON WHICH RELIEF

17 MAY BE GRANTED 18 (See ECF No. 14 at 3-4) 19 ORDER RECOMMENDING THAT CLAIM

TWO BE DISMISSED FOR FAILURE TO

20 STATE A CLAIM UPON WHICH RELIEF

MAY BE GRANTED

21 (See ECF No. 14 at 4) 22

PLAINTIFF’S OBJECTIONS TO FINDINGS

23 AND RECOMMENDATIONS DUE IN

FOURTEEN DAYS

24 25 Plaintiff, a former pretrial detainee proceeding pro se and in forma pauperis, has filed this 26 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 27 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 28 1 Before this Court is Plaintiff’s second amended complaint (“SAC”). ECF No. 14. For the 2 reasons stated below the Court finds that Plaintiff’s complaint states viable Fourteenth 3 Amendment failure to protect and excessive force claims against Defendants Scotty, Osuna, and 4 Calderon in Claim One, and they can be served. However, the SAC fails to raise a viable failure 5 to protect claim against Defendant Boudreaux. Therefore, the undersigned will recommend that 6 Claim Two that Plaintiff has raised against Defendant Boudreaux be dismissed for failure to state 7 a claim upon which relief may be granted. Plaintiff will have fourteen days to file objections to 8 this order. 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). The 12 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 13 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 14 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2). 15 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 16 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 17 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 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)); see Whitaker v. Tesla Motors, Inc., 985 23 F.3d 1173, 1176 (9th Cir. 2021) (citing Iqbal). While a plaintiff’s allegations are taken as true, 24 courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 25 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state a viable 26 claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief 27 that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. United States Secret Service, 28 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 1 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 2 plausibility standard. Id. 3 Finally, under Federal Rules of Civil Procedure 18 and 20, the claims raised against a 4 party in a complaint should be related. In addition, defendants should only be joined in an action 5 if it can be alleged that they are liable for the “same transaction, occurrence, or series of 6 transactions or occurrences” where “any question of law or fact common to all defendants will 7 arise in the action.” See Fed. R. Civ. P. 18(a) and 20(a)(2). 8 II. STANDARD OF REVIEW 9 A. Generally 10 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 11 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 12 Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source 13 of substantive rights, but merely provides a method for vindicating federal rights conferred 14 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 15 To state a claim under Section 1983, a plaintiff must allege two essential elements: (1) 16 that a right secured by the Constitution or laws of the United States was violated and (2) that the 17 alleged violation was committed by a person acting under the color of state law. See West v. 18 Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987). 19 B. Linkage Requirement 20 In addition, under Section 1983, a plaintiff bringing an individual capacity claim must 21 demonstrate that each defendant personally participated in the deprivation of his rights. See Jones 22 v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link 23 between the actions of the defendants and the deprivation alleged to have been suffered by 24 plaintiff. See Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); 25 see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 26 Government officials may not be held liable for the actions of their subordinates under a 27 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in 28 Section 1983 suits). Since a government official cannot be held liable under a theory of vicarious 1 liability in Section 1983 actions, a plaintiff must plead sufficient facts showing that the official 2 has violated the Constitution through his own individual actions by linking each named defendant 3 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. 4 Iqbal, 556 U.S. at 676. 5 III. PLAINTIFF’S COMPLAINT 6 A. Facts Alleged 7 Plaintiff, a former pretrial detainee at the time of the incident in question, was incarcerated 8 at the Tulare County Jail. See ECF No. 14 at 3. He names Deputy Sergeant Scotty; the Sheriff of 9 Tulare County, Mike Boudreaux; Deputy Caldron, and Deputy Osuna as Defendants in this 10 matter. Id. at 1-3. 11 1. Claim One: Excessive Force 12 In Claim One, Plaintiff contends that his Fifth, Eighth, and Fourteenth Amendment rights 13 were violated when Defendants assaulted him while he was shackled and cuffed in wrist, belly 14 and ankle chains. See ECF No. 14 at 3, 5. Specifically, Plaintiff states that Defendant Calderon 15 “slammed” him face first against a wall, chipping two of his teeth, and that all three deputies 16 dragged him into a holding cell, while Defendant Scotty started yelling at him and telling him to 17 stop spitting. Id. at 3. Thereafter, Plaintiff claims that Defendant Scotty grabbed him by his hair 18 and slammed his head into a wall, multiple times, pulling out his hair in the process. Id. 19 Plaintiff goes on to allege that next all three employees [pile] on him, and then Defendant 20 Osuna kneed him in his testicles about three times before other responding staff stepped in and 21 intervened. ECF No. 14 at 3-4. He states that he never posed a danger and that he never tried to 22 assault staff or spit on anyone. Id. at 5. 23 2. Claim Two: Failure to Protect 24 In Claim Two, Plaintiff again alleges that his Fifth, Eighth, and Fourteenth Amendment 25 rights were violated because he had a right to be protected, yet Defendant Boudreax failed to even 26 investigate the abuse that was being done by staff, employees, and prison officers. Plaintiff 27 contends that Defendant Boudreaux neglected his duties to protect those who were placed in his 28 jail. See ECF No. 14 at 4. 1 B. Remedy Sought 2 Plaintiff seeks compensation from Defendants in the amount of $15,000.000 and 3 acknowledgement that what took place was wrong and won’t happen to anyone else. ECF No. 14 4 at 5. 5 IV. APPLICABLE LAW 6 A. Excessive Force 7 When determining whether the force deliberately used on a pretrial detainee is excessive, 8 a court must use an objective standard. Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015). In 9 other words, to state a viable excessive force claim, a pre-trial detainee need only show that the 10 force that was purposely or knowingly used against him was objectively unreasonable. Id. at 396- 11 97. “A court must make this determination from the prospective of a reasonable officer on the 12 scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.: Id. at 13 397 (citation omitted). 14 A court must also “account for the legitimate interests that stem from the government’s 15 need to manage the facility in which the individual is detained, appropriately deferring to policies 16 and practices that in the judgment of jail officials are needed to preserve internal order and 17 discipline and to maintain institutional security.” Id. at 397 (internal quotation marks omitted) 18 (citing Bell v. Wolfish, 441 U.S. 520, 540, 547 (1979)). Furthermore, in the absence of an 19 express intent to punish, a pre-trial detainee can prevail by showing that the actions taken are not 20 rationally related to a legitimate, non-punitive governmental purpose. Kingsley, 576 U.S. at 398 21 (citation omitted). 22 B. Failure to Protect 23 A pretrial detainee is not protected by the Eighth Amendment’s Cruel and Unusual 24 Punishment Clause because he has not been convicted of a crime. Cortez v. Hart, No. 22- 25 CV- 06023 EJD (PR) 2023 WL 2652241, at *2 (N.D. Cal. Mar. 27, 2023), (citing see Bell, 441 26 U.S. at 535 & n.16). A pretrial detainee instead is protected from punishment without due 27 process under the Due Process Clause of the Fourteenth Amendment. Id. (citing United States 28 v. Salerno, 481 U.S. 739, 746-47 (1987)); see Bell, 441 U.S. at 535-36 (citations omitted). 1 Under both clauses, however, an inmate bringing a failure-to-protect claim must show that the 2 prison official acted with deliberate indifference. Id. (citing Castro v. County of Los Angeles, 833 3 F.3d 1068 (9th Cir. 2016)). 4 Although a convicted prisoner must prove an individual defendant’s subjective 5 awareness of a risk of harm in order to prevail on a failure-to-protect claim under the Eighth 6 Amendment, a pretrial detainee need not do the same in order to prevail on a failure-to-protect 7 claim under the Fourteenth Amendment. Id. (citing Castro, 833 F.3d at 1068-70 (holding 8 that objective standard of Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015) applicable to 9 excessive force claims brought by pretrial detainees, also applies to failure-to-protect claims 10 brought by pretrial detainees)). 11 Specifically, a pretrial detainee need not “prove an individual defendant’s subjective 12 intent to punish in the context of a . . . failure-to protect claim.” Castro, 833 F.3d 1060, 13 1070 (9th Cir. 2016). A pretrial detainee who asserts a due process claim for failure to protect 14 instead must prove “more than negligence but less than subjective intent -- something akin 15 to reckless disregard.” Castro, 833 F.3d at 1071. 16 The elements of a pretrial detainee’s due process failure-to-protect claim against an 17 individual officer are: 18 (1) The defendant made an intentional decision with respect to the conditions 19 under which the plaintiff was confined; 20 (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; 21 (3) The defendant did not take reasonable available measures to abate that risk, 22 even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved -- making the consequences of the defendant's 23 conduct obvious; and 24 (4) By not taking such measures, the defendant caused the plaintiff’s injuries. 25

26 Castro, 833 F.3d at 1071 (footnote omitted). With respect to the third element, the defendant’s 27 conduct must be objectively unreasonable, a test that will necessarily turn on the facts and 28 1 circumstances of each particular case. Id. (citing Castro, 833 F.3d at 1071 (citing Kingsley, 2 576 U.S. at 396-97)); see, e.g., Castro, 833 F.3d at 1071-73 (substantial evidence supported jury’s 3 verdict for plaintiff on failure-to-protect claim where defendants understood that placing 4 intoxicated plaintiff in a cell with an enraged and combative inmate, when the cell had no audio or 5 video surveillance and only occasional monitoring, could lead to serious violence against 6 plaintiff). 7 C. Supervisorial Liability (Respondeat Superior) 8 Government officials may not be held liable for the actions of their subordinates under a 9 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in 10 Section 1983 suits); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (stating liability under 11 Section 1983 only arises upon showing of personal participation by defendant). Generally 12 speaking, a supervisor is liable for his own individual acts or omissions. Iqbal, 556 U.S. at 677. 13 “A supervisor is only liable for constitutional violations of his subordinates if he participated in or 14 directed the violations, or knew of the violations and failed to act to prevent them.” Taylor, 880 15 F.2d at 1045 (brackets added). For example, a supervisor could be liable under Section 1983 if he 16 set in motion a series of act by others . . . which he knew or reasonably should have known, 17 would cause others to inflict the constitutional injury.” Larez v. City of Los Angeles, 946 F.2d 18 630, 646 (9th Cir. 1991); McRorie v. Shimoda, 795 F.2d 780, 783 (1986). 19 Importantly, "Conclusory allegations that various prison officials knew or should have 20 known about constitutional violations occurring against plaintiff simply because of their general 21 supervisory role are insufficient to state a claim under 42 U.S.C. § 1983." Sullivan v. Biter, No. 22 15-cv-00243, 2017 U.S. Dist. LEXIS 65165, 2017 WL 1540256, at *1 (E.D. Cal. Apr. 28, 2017) 23 (first citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 24 (1978); and then citing Starr, 652 F.3d at 1207)Miles v. Cty. of Alameda, No. 3:22-cv-06707- 25 WHO, 2023 U.S. Dist. LEXIS 228061, at *42 (N.D. Cal. Dec. 21, 2023) 26 To assert an individual-capacity claim against a supervisory official based on a failure-to- 27 train theory, the plaintiff must show that the official was deliberately indifferent to the need to 28 train subordinates, and the lack of training actually caused the constitutional harm. Flores v. 1 County of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014). The plaintiff must 2 allege [*20] facts showing that the supervisory official "disregarded the known or obvious 3 consequence that a particular omission in [the] training program" would cause police officers to 4 violate the constitutional rights of individuals. Id. (quoting Connick v. Thompson, 563 U.S. 51, 5 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011)).Loftis v. Salcedo, No. 2:18-cv-03263 JFW (GJS), 6 2019 U.S. Dist. LEXIS 175843, at *19-20 (C.D. Cal. Sep. 11, 2019) 7 In Corales v. Bennett, 567 F.3d 554 (9th Cir. 2009), the Ninth Circuit clearly 8 affirmed this position when twenty years after its decision in Taylor, it stated: 9

10 Supervisory liability is imposed against a supervisory official in his individual capacity for his own culpable action or inaction in the training, supervision, or 11 control of his subordinates, for his acquiescence in the constitutional deprivations of which the complaint is made, or for conduct that showed a reckless or callous 12 indifference to the rights of others. 13 D. Failure to Train 14 In order to assert an individual-capacity claim against a supervisory official 15 based on a failure-to-train theory, the plaintiff must show that the official was 16 deliberately indifferent to the need to train subordinates, and the lack of training actually 17 caused the constitutional harm. Flores v. County of Los Angeles, 758 F.3d 1154, 1159 18 (9th Cir. 2014). The plaintiff must allege [*20] facts showing that the supervisory 19 official "disregarded the known or obvious consequence that a particular omission in 20 [the] training program" would cause police officers to violate the constitutional rights of individuals. Id. (quoting Connick v. Thompson, 563 U.S. 51, 131 S. Ct. 1350, 179 L. Ed. 21 2d 417 (2011)).Loftis v. Salcedo, No. 2:18-cv-03263 JFW (GJS), 2019 U.S. Dist. LEXIS 22 175843, at *19-20 (C.D. Cal. Sep. 11, 2019) 23

V. DISCUSSION

24 A. Allegations Which State a Claim 25 1. Claim One: Excessive Force 26 Plaintiff has raised viable Fourteenth Amendment1 excessive force claims against 27

28 1 In Claims One and Two, Plaintiff alleges that his Fifth, Eighth and Fourteenth Amendment 1 Defendants Calderon, Scotty, and Osuna. Defendant Calderon pinning Plaintiff against the wall, 2 then slamming him face first into it with such force that two of Plaintiff’s teeth were chipped; 3 Defendants Scotty, Osuna, and Calderon then dragging Plaintiff into a holding cell, where 4 Defendant Scotty then slammed Plaintiff’s head into the wall multiple times; Defendants then 5 piling on top of Plaintiff while Defendant Osuna kicked Plaintiff in his genitals multiple times – 6 all while Plaintiff was handcuffed and shackled in wrist, belly, and ankle chains (see ECF No. 14 7 at 3) – clearly demonstrates that the force used against Plaintiff was purposeful and objectively 8 unreasonable. See Kingsley, 576 U.S. at 396. Therefore, Defendants will be ordered to file a 9 response to this claim. 10 2. Claim One: Failure to Protect 11 Construing the complaint liberally,2 the above-stated actions of Defendants Calderon, 12 Scotty, and Osuna also violated Plaintiff’s right to be protected while he was being detained. The 13 facts as alleged show that each of the three Defendants made an intentional decision with respect 14 to the conditions under which Plaintiff was confined – here, having Plaintiff shackled in wrist, 15 belly, and ankle chains. In that state – i.e., completely defenseless – Plaintiff was put at 16 substantial risk of suffering serious harm. In addition, Defendants did not take reasonable 17 measures to abate Plaintiff’s risk despite the fact that a reasonable officer in those circumstances 18 would have appreciated the high risk of injury to Plaintiff as they beat him while he was fully 19 restrained. Finally, as a result of Defendants not taking reasonable measures to abate Plaintiff’s 20 risk of harm, they caused Plaintiff’s injuries. See generally Castro, 833 F.3d at 1071. For these 21 reasons, Defendants will be ordered to file a response to this claim as well. 22 B. Claim Two: Does Not State a Claim 23

24 rights have been violated. See ECF No. 14 at 3-4. However, because neither the Fifth, nor the Eighth Amendments are applicable in this case, and Plaintiff makes no specific arguments with 25 respect to the two Amendments, the Court does not address this incredibly vague assertion of Plaintiff’s in this screening. 26 2 This court is obligated to liberally construe the pleadings of pro se litigants. See Estelle v. 27 Gamble, 429 U.S. 97, 106 (1976) (stating pro se documents are to be liberally construed); Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating pro se pleadings are held to less stringent standard 28 than those drafted by lawyers). 1 Claim Two fails to state a viable Fourteenth Amendment failure to protect claim against 2 Tulare County Sheriff, Defendant Boudreaux. As with Plaintiff’s first amended complaint, he 3 names Defendant Boudreaux as a party to this case. Compare ECF No. 12 at 1 (Plaintiff’s FAC), 4 with ECF No. 14 at 2 (Plaintiff’s SAC). However, in Claim Two, when Plaintiff is asked to 5 provide supporting facts for his claim that Defendant Boudreaux has violated his right to be 6 protected, all Plaintiff writes is the following: “I have a right to be protected by the sheriff who 7 neglected to even look into the abuse being done by his staff and employees and fellow officers 8 he neglected his duties to protect those within his care placed in his institution.” ECF No. 14 at 4 9 (errors in original). If by this statement Plaintiff is asserting that Defendant Boudreaux failed to 10 properly train/supervise his staff, this naked assertion is not enough. See, Loftis v Salcedo, 2019 11 US Dist Lexis 175843. 12 Nor is there anything in Claim Two that asserts that Defendant Boudreaux actively 13 participated in the beating that Defendants Scotty, Osuna, and Calderon gave Plaintiff. See 14 generally ECF No. 14 at 4. In addition, nothing in Claim Two alleges that Defendant Boudreaux 15 instructed or directed Defendants Calderon, Scotty, and Osuna to beat Plaintiff, or that he even 16 knew that the beating was happening. See generally id.; see also Taylor, 880 F.2d at 1045. 17 Therefore, Defendant Boudreaux cannot be held liable for the harm that Defendants 18 Calderon, Scotty, and Osuna caused to Plaintiff. The fact that Defendant Boudreaux happened to 19 manage the jail does not make him automatically liable under a theory of supervisorial liability. 20 See Iqbal, 556 U.S. at 676. 21 For these reasons, Plaintiff has failed to state a cognizable claim against Defendant 22 Boudreaux for failure to train/supervise his employees, or to protect Plaintiff from being beaten 23 by Defendants Calderon, Scotty, and Osuna. Therefore, the claim cannot be served on Defendant 24 Boudreaux. On the contrary, given that Plaintiff has been given two opportunities to raise a valid 25 failure to protect claim against Defendant Boudreaux, and he has failed to do so, this leads the 26 Court to find that providing Plaintiff with yet another opportunity to amend the complaint would 27 be futile. See Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059 (9th Cir. 2018) (stating grant 28 of leave to amend is properly denied if amending complaint would be futile); Carrico v. City & 1 Cty. of San Francisco., 656 F.3d 1002, 1008 (9th Cir. 2011) (stating dismissal of complaint 2 without leave to amend is permissible if amendment would be futile). Therefore, the undersigned 3 will recommend that Claim Two that has been raised against Defendant Boudreaux be dismissed 4 from this case. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The Clerk of Court shall randomly ASSIGN a District Judge to this matter; 7 2. In accordance with 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c), the Court has 8 screened the second amended complaint (ECF No. 14) and found the service of it appropriate 9 with respect to certain Defendants; 10 3. Plaintiff’s second amended complaint raises cognizable Fourteenth Amendment 11 excessive force and failure to protect claims (Claim One) against the following Defendants, all of 12 whom were employed at the Tulare County Jail at the time of the incidents in question: 13 • Scotty, a sergeant deputy; 14 • Osuna, a deputy; 15 • Calderon, a deputy; 16 4. As such, these Defendants may be served. If a Defendant either waives service or is 17 personally served, he is required to reply to the complaint. 42 U.S.C. § 1997e(g)(2), and 18 5. Plaintiff’s second amended complaint fails to raise a cognizable claim (Claim Two) 19 against Defendant Boudreaux, the Sheriff of Tulare County Jail. 20 IT IS THEREFORE RECOMMENDED that Plaintiff’s claim against Defendant 21 Boudreaux, Claim Two of the second amended complaint, be DISMISSED for failure to state a 22 claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1). 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, Plaintiff may file written objections 26 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 27 and Recommendations,” and it shall not exceed fifteen pages. 28 The Court will not consider exhibits attached to the objections. To the extent that Plaintiff 1 wishes to refer to any exhibit, when possible, Plaintiff must reference the exhibit in the record by 2 its CM/ECF document and page number or reference the exhibit with specificity. Any pages filed 3 in excess of the fifteen-page limit may be disregarded by the District Judge when conducting the 4 28 U.S.C. § 636(b)(l)(C) review of the findings and recommendations. Plaintiff’s failure to file 5 objections within the specified time may result in the waiver of certain rights on appeal. See 6 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Martinez v. Ylst, 951 F.2d 1153 (9th 7 Cir. 1991). 8 9

IT IS SO ORDERED.

10

11 Dated: September 24, 2025 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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