(PC) Martin v. Chavez et al, No. 1:2011cv01461 - Document 49 (E.D. Cal. 2013)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Defendants' 24 Motion to Dismiss be Granted, signed by Magistrate Judge Dennis L. Beck on 12/17/13. Referred to Judge Ishii. Thirty-Day Deadline. (Gonzalez, R)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANDREW W. MARTIN, 11 Plaintiff, 12 13 v. F. CHAVEZ, et al., 14 Defendants. Case No. 1:11-cv-01461-AWI-DLB PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING DEFENDANTS’ MOTION TO DISMISS BE GRANTED (ECF No. 24) THIRTY-DAY DEADLINE 15 16 I. Background 17 Plaintiff Andrew W. Martin (“Plaintiff”) is a prisoner in the custody of the California 18 Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in 19 forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding on 20 Plaintiff’s First Amended Complaint, filed September 6, 2012, against Defendants A. Flores and E. 21 Borges for excessive force in violation of the Eighth Amendment, and against Defendants Smith, 22 Krpan, and Cope for deliberate indifference to a serious medical need, in violation of the Eighth 23 Amendment. ECF No. 10. Pending before the Court is Defendant Borges’ and Defendant Cope’s 24 Motion to Dismiss, filed June 17, 2013, pursuant to the unenumerated portion of Rule 12(b) of the 25 Federal Rules of Civil Procedure, for Plaintiff’s failure to exhaust administrative remedies.1 ECF 26 No. 24. Plaintiff filed an Opposition on July 19, 2013. ECF No. 33. On July 29, 2013, Defendants 27 28 Defendant’s motion to dismiss for failure to exhaust administrative remedies was served with a concurrent notice pursuant to Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), as required by the recent holding in Woods v. Carey, 684 F.3d 934, 936 (9th Cir. 2012). 1 1 1 filed a Reply. ECF No. 36. The matter is submitted pursuant to Local Rule 230(l). 2 II. 3 4 Summary of Complaint Plaintiff was incarcerated at Sierra Conservation Center (“SCC”) in Jamestown, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: Warden F. 5 Chavez; correctional sergeant M. Murphy; correctional officers A. Flores, W. Gregg, and E. Borges; 6 7 8 medical doctor S. Smith; osteopathic physician and surgeon J. Krpan; registered nurse M. Cope; and Does 1 through 25. 9 Plaintiff alleges the following. On January 4, 2011, Plaintiff was attacked by another inmate 10 and sustained serious injuries. Plaintiff is a male to female transgender inmate. 2 Defendant Chavez 11 implemented “Rolling Blackouts” at SCC during this time. Rolling Blackouts place a facility on 12 lockdown/modified program. During Rolling Blackouts, responder staff, correctional officers who 13 14 15 16 are trained to respond to emergency situations, are redirected to the other facilities. Responder staff are posted at strategic positions during inmate movement and act as a deterrent to prevent assaults. On January 4, 2011, responder staff were not present at Plaintiff’s facility. 17 At 6:40 p.m., during evening chow, Plaintiff was attacked by inmate Rodriguez. When 18 Plaintiff hit the ground, Plaintiff was semiconscious, unconscious, or in a dazed, confused state. 19 Inmate Rodriguez attacked Plaintiff repeatedly in the facial area, with strikes landing on Plaintiff’s 20 eyes and right ear area. Defendant Murphy noticed two inmates on the ground and announced the 21 22 alarm over the institutional radio system. 23 Defendant Murphy witnessed Defendant A. Flores utilizing his M. K. 9 pepper spray into the 24 facial area of Plaintiff. Defendant Flores wrote and signed a false report, stating that both inmates 25 were striking each other in the upper torso and facial areas. Plaintiff was at first misclassified for 26 administrative segregation (“ad-seg”) status. 27 28 2 The Court will use the feminine pronoun when referring to Plaintiff, as Plaintiff previously requested. ECF No. 17. 2 1 Plaintiff had sustained injury to the right ear and was unable to hear from that ear properly. 2 Defendant Gregg was assigned to the facility medical unit that night. Per Defendant Murphy’s 3 orders, Defendant Gregg was to decontaminate Plaintiff from the effects of the pepper spray. 4 Defendant Gregg ordered Plaintiff to remove her clothing. Plaintiff had difficulty hearing Defendant 5 6 Gregg’s verbal orders because of the injury to Plaintiff’s right ear area. Defendant Gregg ordered 7 Plaintiff to wash the blood from her wounds prior to being seen by licensed vocational nurse 8 Maldando. However, Plaintiff was unaware that she was supposed to decontaminate in the bathroom 9 sink. Plaintiff’s injuries were active bleeding, bruised/discolored area, cut/laceration/slash, and 10 11 swollen areas. Plaintiff had observed prior inmates decontaminated by garden hose to wash an inmate’s hair, arms, and legs. Plaintiff was not told to attempt to wash the pepper spray from her 12 13 14 15 hair. Plaintiff suffered from the effects of the pepper spray through the night, and had transferred the pepper spray to her eyes and genitalia. Plaintiff was never properly decontaminated by Defendant Gregg. 16 Nurse Maldando referred Plaintiff to the SCC Main Medical Facility for further treatment. 17 Defendant Borges took command of the transport, and immediately disliked Plaintiff. Defendant 18 Borges manhandled Plaintiff “like a rag-doll.” 19 Defendant Borges used derogatory remarks concerning Plaintiff’s sexual orientation while simultaneously yanking and pulling Plaintiff in an 20 21 unprofessional manner. Plaintiff repeatedly told Defendant Borges that she was having trouble 22 hearing Defendant Borges’s verbal commands. Plaintiff was at all times in handcuffs and other 23 mechanical restraints as Defendant Borges dragged and yanked him, and verbally abused him. 24 After receiving dental x-rays, Defendant Borges escorted Plaintiff to the ad-seg area of the prison 25 infirmary. Plaintiff experienced severe burning of the eyes and genitalia because Plaintiff had 26 transferred pepper spray by her hands and had not been properly decontaminated. On January 5, 27 2011, Plaintiff was finally allowed to wash off the effects of the pepper spray in the infirmary 28 shower with soap and water, and provided clean clothing. 3 1 On January 7, 2011, Plaintiff was seen by the oral surgeon, who reviewed the x-rays and 2 concluded that Plaintiff had a cracked cheek bone. Plaintiff was also seen by Defendant Smith, who 3 treated Plaintiff with eye drops. Plaintiff had complained of lower back pain the tailbone area, loss 4 of balance, and blurred, diminished vision in the right eye. Plaintiff was released from the infirmary 5 6 and returned to ad-seg. 7 On January 10, 2011, the captain reviewed the lockup order for Plaintiff and released 8 Plaintiff back to general population. Plaintiff remained in ad-seg until January 16, 2011. On 9 January 12, 2011, Plaintiff was seen by Defendant Krpan in the ad-seg medical unit. Plaintiff again 10 11 complained of lower back pain the tailbone area, loss of balance, and blurred, diminished vision in the right eye. Defendant Krpan wrote a false report that the dizziness and visual difficulties had 12 13 14 resolved. On January 7, 2011, when Plaintiff entered ad-seg, all of Plaintiff’s Keep On Person 15 (“KOP”) medication were taken, pursuant to a policy implemented by Defendant Chavez. On 16 January 16, 2011, upon release from ad-seg, Plaintiff contacted Defendant nurse M. Cope regarding 17 the confiscated KOP medication. Defendant Cope assured that Plaintiff’s KOP medication would be 18 returned. On January 20, 2011, after not receiving her medication, Plaintiff submitted a sick call 19 slip, and was again seen by Defendant Cope. Plaintiff informed Defendant Cope that she had still 20 21 not received the KOP medication. Plaintiff had medication for heartburn, migraine headaches, 22 psoriasis, pain, eye drops, and a thyroid condition. Without the thyroid medication, Plaintiff suffers 23 from shakes or quivers, lack of sleep, odd, funny feelings, uncontrolled hunger pangs, and chipping 24 of fingernails. Plaintiff informed Defendant Cope of her injuries. Defendant Cope assured Plaintiff 25 that she would order the medication right away. 26 On January 25, 2011, Plaintiff had not received her medication. Plaintiff was examined by 27 nurse Heather, who scheduled Plaintiff to see her primary care physician the next day. Nurse 28 Heather also ordered Plaintiff’s thyroid medication, which she received on January 27, 2011. 4 1 Doctor Thomatos, Plaintiff’s primary care physician, examined Plaintiff, prescribed a medical donut, 2 and lower bunk, lower tier chrono, and ordered a x-ray for Plaintiff’s coccyx (tailbone). Doctor 3 Thomatos also referred Plaintiff to see an outside eye clinic. The eye doctor could not determine 4 whether Plaintiff had suffered permanent injury to her right eye. The eye doctor prescribed 5 6 corrective lenses. 7 In early February of 2011, Plaintiff submitted another sick call slip, complaining that while 8 housed in the prison infirmary, or the ad-seg unit, she had developed a pain rash and small sores all 9 over her arms and legs. Defendant Cope denied Plaintiff access to see the physician, stating that 10 Plaintiff always had something wrong with her skin. Defendant Cope did not look at Plaintiff’s 11 small sores. 12 On March 1, 2011, the sores and rash became worse, and Plaintiff submitted another sick call 13 14 slip. Plaintiff was again seen by Defendant Cope, who looked at the rash and sores and exclaimed 15 that Plaintiff had staphylococcus. Plaintiff was finally seen by Dr. Thomatos on March 7, 2011, who 16 started Plaintiff on a strong antibiotic treatment. 17 18 Plaintiff alleges a violation of the First, Fourth, Eighth, and Fourteenth Amendments. Plaintiff requests as relief declaratory judgment, and monetary damages.3 19 20 III. Exhaustion of Administrative Remedies 21 A. 22 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 23 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 24 confined in any jail, prison, or other correctional facility until such administrative remedies as are 25 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 26 administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. 27 Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required regardless of 28 Legal Standard 3 Plaintiff also requested injunctive relief. Plaintiff is now incarcerated at Valley State Prison in Chowchilla, California, and has not demonstrated the likelihood of return to SCC. Accordingly, this request was dismissed as moot. Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007). 5 1 the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 2 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to 3 prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002). 4 The PLRA does not require that Plaintiff include legal theories or every fact necessary to 5 prove each element of an eventual legal claim. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 6 2009). But an inmate appeal must provide enough information to allow prison officials to take 7 appropriate responsive measures. Id. at 1121. This ensures a grievance serves its primary 8 purpose of notifying the prison of a problem. See Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 9 2004). 10 Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative 11 defense under which defendants have the burden of raising and proving the absence of exhaustion. 12 Jones, 549 U.S. at 216; Wyatt, 315 F.3d at 1119. The failure to exhaust nonjudicial administrative 13 remedies that are not jurisdictional is subject to an unenumerated Rule 12(b) motion, rather than a 14 summary judgment motion. 15 Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1998) (per curiam)). In deciding a motion to 16 dismiss for failure to exhaust administrative remedies, the Court may look beyond the pleadings and 17 decide disputed issues of fact. Id. at 1119-20. If the Court concludes that the prisoner has failed to 18 exhaust administrative remedies, the proper remedy is dismissal without prejudice. Id. Wyatt, 315 F.3d at 1119 (citing Ritza v. Int’l Longshoremen’s & 19 B. Analysis 20 The CDCR has an administrative grievance system for prisoner complaints. Cal. Code Regs. 21 tit. 15, § 3084.1 (2010). At the time of the events in question, the process was initiated by 22 submitting a CDC Form 602. Id. § 3084.2(a). Four levels of appeal were involved, including the 23 informal level, first formal level, second formal level, and third formal level, also known as the 24 “Director’s Level.” Id. § 3084.5. Appeals must be submitted within fifteen working days of the 25 event being appealed, and the process is initiated by submission of the appeal to the informal level, 26 or in some circumstances, the first formal level. Id. §§ 3084.5, 3084.6(c). In order to satisfy § 27 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to 28 filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. 6 1 Exhaustion does not always require pursuit of an appeal through the Director’s Level of Review. 2 What is required to satisfy exhaustion is a fact specific inquiry, and may be dependent upon prison 3 officials’ response to the appeal. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (improper 4 reasons for screening inmate’s appeal is equitable exception to exhaustion); Nunez v. Duncan, 591 5 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of exceptions to exhaustion requirement from 6 other circuits); Brown v. Valoff, 422 F.3d 926, 935-36 (9th Cir. 2005) (“[E]ntirely pointless 7 exhaustion” not required). 8 Defendants contend that Plaintiff has failed to exhaust administrative remedies against 9 Defendants Borges and Cope in this action. Defendants contend that although Plaintiff submitted 10 various appeals that were exhausted, the appeals did not concern Defendant Borges’ or Defendant 11 Cope’s alleged misconduct. 12 Baldwin, Appeals Coordinator for CDCR at SCC, J. Lozano, Chief of the Office of Appeals for 13 CDCR in Sacramento, California, S. Stewart, Healthcare Appeals Coordinator at SCC, and L. 14 Zamora, Chief Inmate Correspondence and Appeals Branch in Elk Grove, California. Baldwin’s 15 declaration indicates that Plaintiff did not file any appeal as to Plaintiff’s claim that Defendant 16 Borges physically manhandled Plaintiff during medical transport on or around January 4, 2011. 17 Baldwin Decl. ¶ 10. Lozano’s declaration indicates that Plaintiff did not file any inmate appeal for 18 review at the third level concerning Plaintiff’s allegations against Defendant Borges or anyone 19 “manhandling” Plaintiff “like a ragdoll.” Lozano Decl. ¶ 8. Stewart’s and Zamora’s declarations 20 indicate that Plaintiff never filed an appeal regarding Plaintiff’s allegations against Defendant Cope. 21 Plaintiff did file appeal No. SCC-20-11-10103, concerning Plaintiff’s medical issues from January 4, 22 2011 to January 27, 2011. However, Plaintiff never submitted any appeals regarding a complaint for 23 Defendant Cope’s failure to treat a rash in February 2011. Steward Decl. ¶ ¶ 5-6; Zamora Decl. ¶ ¶ 24 7-8. There is no record of an inmate grievance properly filed regarding Defendants Borges and 25 Cope’s alleged acts while Plaintiff was incarcerated at SCC. Defendants have met their initial 26 burden of persuasion. Thus, the burden thus shifts to Plaintiff to demonstrate exhaustion of all 27 available administrative remedies. 28 /// Defendant submits, as exhibits in support, declarations from M. 7 1 1. Defendant Borges 2 Plaintiff contends that her exhausted appeals did include the same allegations against 3 Defendant Borges as her current complaint before the Court. Although Plaintiff was unable to 4 specifically identify Defendant Borges by name at the time of the initial appeal, Plaintiff described 5 him to the best of her ability. Pl’s Opp. at 2; ECF No. 33. Plaintiff submits appeal No. SCC-11- 6 10103, which states: “On 1/4/11, appellant [Plaintiff] received dental x-rays. He was escorted by 7 custody staff Eason (male black) and big white guy with a name beginning ‘B’. 8 complained she couldn’t hear, head was ringing.” Pl’s Exh. A; ECF No. 33 at 11. Additionally, 9 Plaintiff submits appeal No. SCC-11-00109, which states: “Due to the Ad-Seg placement appellant 10 [Plaintiff] was treated by custody staff like a common thug, being handcuffed behind his [her] back, 11 during medical treatments such as X-rays, dental treatment, and the like.” Pl’s Exh. B; ECF No. 33 12 at 16. Plaintiff contends that both these appeals describe the alleged actions of Defendant Borges in 13 this action, and thus satisfies the exhaustion requirement. Appellant 14 Here, the issue is whether Plaintiff provided enough information in her appeals to allow 15 prison officials to take appropriate responsive measures against Defendant Borges. See Griffin, 557 16 F.3d at 1121. Plaintiff was not required in her appeal to identify responsible parties or otherwise 17 signal who may ultimately be sued. Sapp, 623 F.3d at 824. The relevant prison regulation only 18 required Plaintiff to describe the problem, which, with respect to her excessive force claim, was that 19 Defendant Borges manhandled Plaintiff during a medical transport. See Sapp, 623 F.3d at 824 20 (citing Griffin, 557 F.3d at 1120) (quotation marks omitted); Akhtar, 698 F.3d at 1211; cf. McCollum 21 v. Cal. Dept of Corr. & Rehab., 647 F.3d 870, 876 (9th Cir. 2011) (while inmates grievances 22 provided notice the failure to provide for certain general Wiccan religious needs and free exercise, 23 they were not sufficient to place prison on notice that the chaplaincy-hiring program itself was the 24 problem); Morton, 599 F.3d at 946 (appeal grieving prisons decision to deny visitation with minors 25 did not place prison on notice of the plaintiffs claim that staff conduct contributed to a prior assault 26 on him by inmates). 27 Plaintiff’s complaint alleges that while being transported to the Main Medical Facility, 28 Defendant Borges met the transportation vehicle at the Main Facility side-door. ECF No. 10 at 17. 8 1 Plaintiff alleges that Defendant Borges instantly took a disliking to Plaintiff, used derogatory 2 remarks concerning Plaintiff’s sexual orientation while yanking and pulling Plaintiff around in an 3 unprofessional manner. ECF No. 10, at 4, 17. Plaintiff alleges that Plaintiff was in mechanical 4 restraints including handcuffs and possibly still had waist-chains on. ECF No. 10, at 4. Plaintiff 5 alleges that Defendant Borges physically manhandled Plaintiff like a ragdoll while Plaintiff was 6 shackled in handcuffs. ECF No. 10 at 4. 7 The Court finds that Plaintiff’s appeals did not provide sufficient information to notify the 8 prison of the alleged complaints against Defendants Borges. The Court’s findings focus on the lack 9 of factual similarities between Plaintiff’s appeals and the allegations against Defendant Borges in the 10 current action.4 In regards to Plaintiff’s appeal No. SCC-20-11-10103, Plaintiff identified Defendant 11 Borges by her description “big white guy with a name beginning with B” and by reference to “the 12 medical officer at the prison infirmary on the night of alleged incident,” but Plaintiff does not tie this 13 individual to or in any way raise similar facts surrounding her allegation that Defendant Borges 14 manhandled Plaintiff. Thus, appeal SCC-20-11-10103 could not have put prison officials on notice 15 of the issue Plaintiff now alleges against Defendant Borges in her complaint. Next, in regards to 16 Plaintiff’s appeal No. SCC-X-11-001019, the language “appellant was treated by custody staff like a 17 common thug, being handcuffed behind his [her] back during medical treatments such as x-rays, 18 dental treatment…” does not describe the allegations in Plaintiff’s complaint. Accordingly, the 19 Court finds that Plaintiff did not exhaust her administrative appeals against Defendant Borges and 20 will recommend that he be dismissed from this action. 21 2. 22 Plaintiff contends that her exhausted appeals included the same allegations against Defendant 23 Cope as in the current complaint before the Court.. Plaintiff did not specifically name Defendant 24 Cope in her appeals because in January of 2011, Defendant Cope had the last name Miles. Plaintiff 25 contends that M. Miles was listed in appeal No. SCC-20-11-10103 five different times. Pl’s Opp. at 26 4; ECF No. 33. Plaintiff submits appeal No. SCC-11-10103, which shows that Plaintiff complained 27 28 Defendant Cope 4 The fact that Plaintiff was not able to identify Defendant Borges specifically by name in the appeals is not determinative in this case. Plaintiff’s descriptions of a big white guy with a name stating “B” would have been sufficient had Plaintiff raised similar facts surrounding his allegations in the current complaint. 9 1 of “numerous abrasions, scratches, bruises, discolored areas, cuts, lacerations” that eventually led to 2 her staph infection. Pl’s Exh. A; ECF No. 33 at 9. Plaintiff argues that these injuries eventually led 3 to her rash and staph infection, which Defendant Cope failed to treat her for. Pl’s Opp. at 4-5. 4 Plaintiff’s appeal also shows that she complained of M. Miles’ failure to provide Plaintiff with is 5 KOP medication on January 20, 2011. 6 Plaintiff’s deliberate indifference claim against Defendant Cope is proceeding only for 7 Defendant Cope’s failure to treat Plaintiff’s skin rash.5 ECF No. 13 at 11. Plaintiff’s complaint 8 alleges that Plaintiff alleges that she informed Defendant Cope of a painful rash in early February 9 2011. ECF No. 10 at 61. Defendant Cope denied access to see a primary care physician, stating 10 that there was always something wrong with Plaintiff’s skin. Id. On March 1, 2011, when the rash 11 worsened, Plaintiff again was examined by Defendant Cope, who exclaimed that Plaintiff had 12 staphylococcus. Id. 13 The Court finds that Plaintiff did not exhaust her appeals regarding the allegations of 14 Defendant Cope’s failure to treat Plaintiff’s skin rash. Plaintiff correctly notes that Defendant Cope 15 (formerly M. Miles) was mentioned various times in appeal No. SCC-20-11-10103, however, at no 16 point did Plaintiff’s appeal complain of Defendant Cope’s failure to treat a skin rash. Plaintiff’s 17 appeal complains of Defendant Cope’s failure to provide Plaintiff with her KOP medication from 18 about January 16, 2011 to January 25, 2011. However, Plaintiff’s complaint alleges failure to treat 19 Plaintiff’s rash in early February of 2011. Accordingly, the Court finds that Plaintiff did not exhaust 20 her administrative appeals against Defendant Cope and will recommend that she be dismissed from 21 this action. 22 IV. 23 Conclusion and Recommendation Defendants have demonstrated that Plaintiff has failed to exhaust available administrative 24 remedies against Defendants Borges and Cope as required by the PLRA. Accordingly, the 25 undersigned recommends dismissal of Defendants Borges and Cope form this action, without 26 prejudice. Wyatt, 315 F.3d at 1120. 27 /// 28 5 The Court previously dismissed Plaintiff’s claims against Defendant Cope for failure to provide Plaintiff with her KOP medication. ECF No. 13 at 11. 10 1 Based on the foregoing, it is HEREBY RECOMMENDED that: 2 1. Defendants’ Motion to Dismiss, filed June 17, 2013, pursuant to the unenumerated 3 portion of Rule 12(b) of the Federal Rules of Civil Procedure, should be granted; and 4 2. Defendants Borges and Cope be dismissed from this action, without prejudice, for 5 Plaintiff’s failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). 6 These Findings and Recommendations will be submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days 8 after being served with these Findings and Recommendations, the parties may file written objections 9 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendations.” The parties are advised that failure to file objections within the specified time 11 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th 12 Cir. 1991). 13 14 15 16 17 IT IS SO ORDERED. Dated: /s/ Dennis December 17, 2013 L. Beck UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 3b142a 18 19 20 21 22 23 24 25 26 27 28 11