(PC) Gaines v. Sherman et al, No. 1:2015cv01533 - Document 47 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Motion for Summary Judgment 41 be GRANTED as to all Defendants except Defendant Curtiss; referred to Judge O'Neill; ORDER DENYING 40 Motion ; ORDER STRIKING 43 Third Amended Complaint,signed by Magistrate Judge Jennifer L. Thurston on 10/19/2018. ( Objections to F&R due 14-Day Deadline); (Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LESLIE JAMES GAINES, JR., 12 Plaintiff, 13 v. 14 BEASLEY, et al., No. 1:15-cv-1533 LJO JLT (PC) ORDER STRIKING THIRD AMENDED COMPLAINT AND DENYING REQUEST FOR COPIES; AND 16 FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 17 (Docs. 40, 41, 43) 18 FOURTEEN-DAY DEADLINE 15 Defendants. 19 Plaintiff proceeds in this civil rights action on a second amended complaint against 20 21 defendants Beasley, Rening, Lopez, Curtiss, and Ward on a First Amendment retaliation claim. 22 Defendants Beasley, Rening, Lopez, and Ward (the “moving Defendants”)1 now move for 23 summary judgment for failure to exhaust administrative remedies. (Doc. 41.) Plaintiff opposes the 24 motion. Because the undisputed facts demonstrate that plaintiff has not exhausted his 25 administrative remedies as to the moving Defendants, their motion for summary judgment should 26 be granted. 27 28 1 Defendants concede that plaintiff’s claim against defendant Curtiss has been properly exhausted. 1 1 Plaintiff has also lodged a third amended complaint (Doc. 43), which will be stricken for 2 failure to comply with Federal Rule of Civil Procedure 15 and Eastern District Local Rule 220. 3 I. 4 Relevant Procedural Background Plaintiff initiated this action on September 23, 2015, and is proceeding on a second 5 amended complaint filed on August 19, 2016. (Doc. 20.) On September 6, 2016, the previously- 6 assigned district judge, the Honorable Ralph R. Beistline, screened the pleading and dismissed 7 this action with prejudice for repeated failures to state a claim. (Doc. 21.) Plaintiff appealed the 8 dismissal to the Ninth Circuit Court of Appeals, which reversed only that portion of Judge 9 Besitline’s order dismissing plaintiff’s retaliation claims against defendants Curtiss, Beasley, 10 Renning, Lopez, and Ward. (Doc. 30.) The mandate issued on February 9, 2018, and service was 11 ordered on February 15, 2018. (Docs. 31, 33.) Following the defendants’ May 21, 2018, answer, 12 the Court issued the discovery and scheduling order and set the discovery deadline for November 13 4, 2018, and the dispositive motion deadline for January 3, 2019. (Doc. 39.) 14 II. 15 Third Amended Complaint On October 1, 2018, plaintiff filed a third amended complaint, which he contends resolves 16 certain factual disputes relied on by defendants in their motion for summary judgment. 17 Specifically, plaintiff claims that he has added allegations regarding the defendants’ threats of 18 harm should plaintiff pursue administrative grievances. 19 Concerning amended pleadings, the DSO set October 2, 2018, as the deadline to submit 20 them. (Doc. 39 at 3.) It also provided that “[t]his date does not allow any party to unilaterally file 21 an amended pleading. Rather, any such amended pleadings must comply with all applicable 22 Federal Rules of Civil Procedure (i.e. Rule 15) and Local Rules (i.e. Local Rule 220).” (Id. at 3 23 n.2.) 24 Pursuant to Federal Rule of Civil Procedure 15(a), “A party may amend its pleading once 25 as a matter of course within: (A) 21 days after serving it or (B) if the pleading is one to which a 26 responsive pleading is required, 21 days after service if a responsive pleading or 21 days after 27 service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). 28 Otherwise, a party must seek leave of court to amend a pleading or receive the opposing party’s 2 1 written consent. Id. 15(a)(2). The Federal Rules of Civil Procedure provide that leave to amend 2 pleadings “shall be freely given when justice so requires.” Id. Local Rule 220 incorporates these 3 requirements for amended pleadings. See E.D. Local Rule 220. 4 Plaintiff has not complied with the above requirements. Since the defendants filed their 5 answer several months ago, plaintiff was required to seek leave of court before filing his third 6 amended pleading; he did not do so. Instead, he merely filed the complaint despite the directive to 7 comply with the necessary rules and the caution against “unilaterally fil[ing] an amended 8 pleading.” Plaintiff’s third amended complaint is thus improperly before the court and will be 9 STRICKEN. 10 III. 11 Allegations In the second amended complaint, plaintiff alleges, generally, that defendants Curtiss, 12 Beasley, Renning, Lopez, and Ward threatened him in retaliation for filing or wanting to file 13 grievances and inmate appeals. Sec. Am. Compl. (“SAC”) ¶¶ 82, 101-02 (Lopez); 122-23, 179 14 (Beasley); ¶¶ 124-28, 178, 180 (Renning); ¶ 147, 185 (Ward). The conduct at issue dates from 15 approximately June 2012 through on or around September 2015 (the “relevant period”). 16 IV. 17 Undisputed Facts At all times relevant to this action, plaintiff was housed at California Substance Abuse 18 Treatment Facility (“CSATF”) in Corcoran, California, where Beasley, Rening, Lopez, and Ward 19 were employed as correctional staff. Sec. Am. Compl. ¶¶ 12-13, 23, 38; Defs.’ Answer (Doc. 37) 20 ¶¶ 5-6, 9, 11. 21 During the relevant period, plaintiff filed three non-health care appeals that were accepted 22 and adjudicated at the Third Level of Review. Decl. of Voong in Supp. of Defs.’ Mot. Summ. J. 23 (Doc. 41-4) ¶¶ 7-9. Of these three appeals, only Appeal Log No. SATF-12-05703 (“Appeal 24 5703”) included a retaliation claim. Voong Decl. ¶ 9, Ex. 3. In it, plaintiff accused defendant 25 Curtiss and two non-defendant correctional officers of retaliating against him on November 14 26 and 16, 2012, for submitting an inmate grievance; the appeal made no mention of any of the 27 moving Defendants. 28 Plaintiff also submitted four other non-health care appeals that were screened-out, 3 1 rejected, and/or cancelled at the Third Level of Review. Voong Decl. ¶ 10, Exs. 5-6. None of 2 these included any claim against any of the moving Defendants. See id. 3 During the relevant period, plaintiff submitted twenty-five non-health care appeals that 4 were accepted and adjudicated at the first and/or second level of review. Decl. of Zamora in Supp. 5 of Defs.’ Mot. Summ. J. (Doc. 41-5) ¶ 8, Ex. 1. Of these twenty-five appeals, three included 6 allegations of retaliation at CSATF: Zamora Decl. ¶¶ 9-12, Exs. 2-4. • 7 8 The first, Appeal 5703 and discussed supra, concerned only defendant Curtiss’s alleged retaliation; it did not mention the moving Defendants. • 9 The second, Appeal Log No. SATF-14-05038 (“Appeal 5038”), was filed on 10 September 8, 2014, and alleged that defendant Beasley retaliated against him for 11 using the inmate grievance process. Plaintiff withdrew this appeal at the first level 12 of review on November 1, 2014, “due to an understanding being reached.” • 13 The third, Appeal Log No. SATF-14-03091 (“Appeal 3091”), alleged that 14 defendant Beasley retaliated against plaintiff by refusing to let plaintiff cover his 15 windows during a heat wave as a cooling measure. This appeal was denied at the 16 first level of review, and then canceled at the second level of review as untimely. 17 In his responses to defendants’ discovery requests, plaintiff acknowledges that he did not 18 file a grievance as to Ward, Lopez, or Rening concerning the allegations raised in the second 19 amended complaint. Decl. of Walker in Supp. of Defs.’ Mot. Summ. J. Ex. E (Doc. 41-6 at 55 20 [Ward]); Ex. F (Id. at 63-65 [Lopez]); and Ex. G (Id. at 78-79 [Rening]). 21 As to defendant Beasley, plaintiff admits that his grievance did not proceed through all 22 levels of review, a fact he blames on efforts by others to thwart his pursuit of administrative 23 remedies. Id. Ex. H (Doc. 1-6 at 88-89). Plaintiff did not, however, file a separate grievance 24 challenging an improper denial or cancelation of his Beasley grievance. See Voong Decl. ¶ 11, 25 Ex. 1. 26 V. Legal Standards 27 A. Summary Judgment Standards 28 The court must grant a motion for summary judgment if the movant shows that there is no 4 1 genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of 2 law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). 3 Material facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A 4 dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to 5 return a verdict for the non-moving party. Id. at 248-49. 6 The party moving for summary judgment bears the initial burden of informing the court of 7 the basis for the motion, and identifying portions of the pleadings, depositions, answers to 8 interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of 9 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving 10 party must either produce evidence negating an essential element of the nonmoving party's claim 11 or defense or show that the nonmoving party does not have enough evidence of an essential 12 element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. 13 Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 14 1076 (9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving 15 party need only point out ‘that there is an absence of evidence to support the nonmoving party's 16 case.’”) (quoting Celotex, 477 U.S. at 325). 17 If the moving party meets its initial burden, the burden shifts to the non-moving party to 18 produce evidence supporting its claims or defenses. Nissan Fire & Marine Ins. Co., Ltd., 210 F.3d 19 at 1103. The non-moving party may not rest upon mere allegations or denials of the adverse 20 party's evidence, but instead must produce admissible evidence that shows there is a genuine 21 issue of material fact for trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not 22 produce evidence to show a genuine issue of material fact, the moving party is entitled to 23 summary judgment. See Celotex, 477 U.S. at 323. 24 Generally, when a defendant moves for summary judgment on an affirmative defense on 25 which he bears the burden of proof at trial, he must come forward with evidence which would 26 entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. 27 South, 965 F.2d 1532, 1536 (9th Cir. 1992). The failure to exhaust administrative remedies is an 28 affirmative defense that must be raised in a motion for summary judgment rather than a motion to 5 1 dismiss. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). On a motion for 2 summary judgment for nonexhaustion, the defendant has the initial burden to prove “that there 3 was an available administrative remedy, and that the prisoner did not exhaust that available 4 remedy.” Id. at 1172. If the defendant carries that burden, the “burden shifts to the prisoner to 5 come forward with evidence showing that there is something in his particular case that made the 6 existing and generally available administrative remedies effectively unavailable to him.” Id. The 7 ultimate burden of proof remains with the defendant, however. Id. If material facts are disputed, 8 summary judgment should be denied, and the “judge rather than a jury should determine the 9 facts” on the exhaustion question, id. at 1166, “in the same manner a judge rather than a jury 10 11 decides disputed factual questions relevant to jurisdiction and venue,” id. at 1170-71. In ruling on a motion for summary judgment, inferences drawn from the underlying facts 12 are viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. 13 Zenith Radio Corp., 475 U.S. 574, 587 (1986). 14 A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is 15 based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder 16 v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff's verified complaint 17 as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, 18 plaintiff stated under penalty of perjury that contents were true and correct, and allegations were 19 not based purely on his belief but on his personal knowledge). Plaintiff’s pleading is signed under 20 penalty of perjury and the facts therein are evidence for purposes of evaluating the defendants' 21 motion for summary judgment. 22 B. California’s Administrative Exhaustion Rules 23 “No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or 24 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 25 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion in 26 prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); 27 Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016) (mandatory language of § 1997e(a) forecloses 28 judicial discretion to craft exceptions to the requirement). All available remedies must be 6 1 exhausted; those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and 2 effective.’” Porter, 534 U.S. at 524. Even when the prisoner seeks relief not available in grievance 3 proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; Booth v. Churner, 4 532 U.S. 731, 741 (2001). Section 1997e(a) requires “proper exhaustion” of available 5 administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93 (2006). Proper exhaustion requires 6 using all steps of an administrative process and complying with “deadlines and other critical 7 procedural rules.” Id. at 90. 8 The State of California provides its inmates and parolees the right to appeal administratively 9 “any policy, decision, action, condition, or omission by the department or its staff that the inmate 10 or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or 11 welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available administrative remedies, 12 a prisoner must proceed through three formal levels of appeal and receive a decision from the 13 Secretary of the CDCR or his designee. Id. § 3084.1(b), § 3084.7(d)(3). 14 The amount of detail in an administrative grievance necessary to properly exhaust a claim 15 is determined by the prison's applicable grievance procedures. Jones v. Bock, 549 U.S. 199, 218 16 (2007); see also Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (“To provide adequate notice, 17 the prisoner need only provide the level of detail required by the prison's regulations”). California 18 prisoners are required to lodge their administrative complaint on a CDCR-602 form (or a CDCR- 19 602 HC form for a health-care matter). The level of specificity required in the appeal is described 20 in a regulation: 21 22 23 24 25 26 27 The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification of staff members, the inmate or parolee shall include the staff member's last name, first initial, title or position, if known, and the dates of the staff member's involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying information about the staff member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question. [¶] The inmate or parolee shall state all facts known and available to him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal form, and if needed, the Inmate/Parolee Appeal Form Attachment. 28 7 1 Cal. Code Regs. tit. 15, § 3084.2(a)(3-4).2 2 Exhaustion of administrative remedies may occur if, despite the inmate's failure to comply 3 with a procedural rule, prison officials ignore the procedural problem and render a decision on the 4 merits of the grievance at each available step of the administrative process. Reyes v. Smith, 810 5 F.3d 654, 658 (9th Cir. 2016); e.g., id. at 659 (although inmate failed to identify the specific doctors, 6 his grievance plainly put prison on notice that he was complaining about the denial of pain 7 medication by the defendant doctors, and prison officials easily identified the role of pain 8 management committee's involvement in the decision-making process). 9 VI. Discussion 10 The moving Defendants seek summary judgment on plaintiff’s retaliation claims because 11 plaintiff did not exhaust his administrative remedies. In support of their motion, defendants submit 12 evidence showing that plaintiff submitted multiple inmate grievances during the relevant period, 13 but none of those submissions exhausted his administrative remedies as to his retaliation claim. 14 The Defendants have met their burden to demonstrate that there were available administrative 15 remedies for plaintiff and that plaintiff did not properly exhaust those available remedies. The 16 undisputed evidence shows that California provides an administrative-remedies system for 17 California prisoners to complain about their conditions of confinement, and that plaintiff used that 18 California inmate-appeal system to complain about other events unrelated to his complaints here. 19 20 21 22 23 24 25 26 27 2 Several Ninth Circuit cases have referred to California prisoners' grievance procedures as not specifying the level of detail necessary and instead requiring only that the grievance “describe the problem and the action requested.” See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (quoting Cal. Code Regs. tit. 15, § 3084.2); Sapp, 623 F.3d at 824 (“California regulations require only that an inmate ‘describe the problem and the action requested.’ Cal. Code Regs. tit. 15, § 3084.2(a)”); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (when prison or jail's procedures do not specify the requisite level of detail, “‘a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought’”). Those cases are distinguishable because they did not address the regulation as it existed at the time of the events complained of in Plaintiff’s pleading. Section 3084.2 was amended in 2010 (with the 2010 amendments becoming operative on January 28, 2011), and those amendments included the addition of subsection (a)(3). See Cal. Code Regs. tit. 15, § 3084.2 (history notes 11-12 providing operative date of amendment). Wilkerson and Sapp used the pre-2011 version of section 3084.2, as evidenced by their statements that the regulation required the inmate to “describe the problem and the action requested” – a phrase that does not exist in the version of the regulation in effect in and after 2011. Griffin is distinguishable because it discussed the Maricopa County Jail administrative remedies rather than the CDCR's administrative remedies. Whatever the former requirements may have been in the CDCR and whatever requirements may still exist in other facilities, since January 28, 2011, the operative regulation has required California prisoners using the CDCR's inmate appeal system to list the name(s) of the wrongdoer(s) in their administrative appeals. 28 8 1 Once the moving Defendants met their initial burden, the burden shifted to plaintiff to come 2 forward with evidence showing that something in his case made the existing administrative 3 remedies effectively unavailable to him. See Albino, 747 F.3d at 1172. Plaintiff acknowledges that 4 he did not exhaust his administrative remedies as to any of the moving Defendants, but he argues 5 that he could not have done so because he was concerned about the repeated threats to harm him 6 and/or transfer him should he file or pursue his appeals. Plaintiff argues that these threats rendered 7 administrative remedies effectively unavailable. 8 For a remedial procedure to be “available” it must exist both in law and, in actual practice, 9 be “capable of use to obtain some relief for the action complained of.” Ross, 136 S. Ct. at 1859 10 (internal quotation marks omitted). In Ross, the Supreme Court enumerated three instances where 11 a procedure, in a practical sense, is unavailable: (1) when the process operates as a “simple dead 12 end” with no actual possibility of relief to prisoners; (2) when the process is so opaque or confusing 13 that it is “essentially unknowable—so that no ordinary prisoner can make sense of what it 14 demands”; and (3) when prison officials thwart inmates from using the process through 15 machination, misrepresentation, or intimidation. Id. at 1859–60 (internal quotation marks omitted). 16 In McBride v. Lopez, 807 F.3d 982, 986 (9th Cir. 2015), the Ninth Circuit explicitly 17 recognized that a threat of retaliation may be sufficient to render an administrative remedy 18 “effectively unavailable.” There, the inmate allegedly had an altercation with guards where he 19 threw some sort of burning liquid into the eyes of a guard, and subsequently guards punched and 20 kicked him, claiming they needed to use the force to subdue McBride. Id. at 985. McBride was 21 placed in administrative segregation and claimed that two of the defendant guards involved came 22 by and told him he was “lucky” and his injuries “could have been much worse.” Id. He took this 23 as a threat and claimed he did not immediately file his grievance concerning excessive force out 24 of fear of retaliation. Id. When he eventually filed the grievance, it was two months late. Id. When 25 he filed his section 1983 action, he attached his grievances, including his explanation of 26 untimeliness that he feared retaliation. Id. The defendants moved to dismiss for failure to properly 27 exhaust. Id. at 986. 28 The Ninth Circuit adopted the test applied by the Tenth and Eleventh Circuits to 9 1 determine when administrative remedies are unavailable as a result of threat of retaliation: “(1) 2 the threat [of retaliation] actually did deter the plaintiff inmate from lodging a grievance or 3 pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable 4 inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the 5 grievance process that the inmate failed to exhaust.” McBride, 807 F.3d at 987 (citation omitted). 6 Plaintiff has asserted throughout this litigation and in his opposition that there is a “CODE 7 OF SILENCE” and a conspiracy amongst CSATF correctional staff to harm or kill inmates who 8 “Rat[] on staff” by filing grievances, and it is these threats that prevented him from pursuing an 9 inmate grievance. See, e.g., Pl.’s Opp’n at 3. He claims that defendant Ward told plaintiff, “ ‘If I 10 were you, I’d lay low’, directly on issues of defendant or appealing matters related to Plaintiff.” 11 Walker Decl. Ex. E (Doc. 41-6 at 47-48). Defendant Lopez, an alleged “main enforcer, and 12 implementor [sic] of the efforts to prevent [plaintiff] from filing grievances,” instilled such fear in 13 plaintiff by appearing at plaintiff’s cell with other officers to take plaintiff to the medical 14 department that plaintiff declined to file an inmate appeal. Id. Ex. F (Doc. 41-6 at 63-64). In 15 addition, plaintiff declined to pursue an appeal against defendant Rening because plaintiff “felt 16 the force of the threat” of Rening’s conduct underlying this action (threatening to plant a knife in 17 plaintiff’s personal property if he filed an appeal concerning a missing television set). See Sec. 18 Am. Compl. ¶ 126; Walker Decl. Ex. G (Doc. 1-6 at 78). The Court assumes for purposes of this 19 motion that these threats were sufficient to meet the subjective test of McBride. 20 Nonetheless, the undersigned concludes that the second, objective test has not been met. If 21 plaintiff was indeed afraid of the threats and an alleged conspiracy amongst correctional staff to 22 harm inmates who “rat” on other staff members, then one would assume that plaintiff would not 23 file any staff complaints, let alone those concerning retaliation, for fear of harm. The undisputed 24 facts, however, reveal that plaintiff filed Appeal 5703 accusing Curtiss of retaliation and Appeal 25 5038 accusing Beasley of retaliation. Plaintiff also acknowledges in his response to defendants’ 26 discovery requests that, while he was afraid of harm at the hands of defendant Lopez should he 27 file a staff complaint, he “filed different inmate appeal on the action of Defendant LOPEZ” whom 28 he accused of improperly confiscating a medical device. See Walker Decl. Ex. F (Doc. 41-6 at 10 1 65). The fact that plaintiff filed several appeals during the relevant period alleging retaliation or 2 staff misconduct despite threats convinces the undersigned that the objective test has not been 3 met. Thus, plaintiff has not shown that administrative remedies were effectively unavailable to 4 him, and the undersigned will recommend that the moving Defendants’ motion for summary 5 judgment be granted. 6 V. Conclusion 7 Based on the foregoing, the Court ORDERS that: 8 1. Plaintiff’s third amended complaint (Doc. 43) is STRICKEN; 9 2. Plaintiff’s request for copies (Doc. 40) is DENIED; and 10 11 It is RECOMMENDED that motion for summary judgment (Doc. 41) be GRANTED as to all defendants except defendant Curtiss. 12 The findings and recommendation will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 14 days after 14 being served with the findings and recommendation, the parties may file written objections with 15 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 16 Recommendation.” A party may respond to another party’s objections by filing a response within 17 14 days after being served with a copy of that party’s objections. The parties are advised that failure 18 to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson 19 v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 20 Cir. 1991)). 21 22 23 IT IS SO ORDERED. Dated: October 19, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 11
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