(PC) Lugo v. Williams et al, No. 2:2009cv00505 - Document 28 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/22/2010 RECOMMENDING that dfts' unopposed 24 motion to dismiss, or in the alternative for summary judgment, be granted; and summary judgment be entered in favor of dfts and against pltf. Referred to Judge Morrison C. England, Jr.; Objections due w/in 14 days. (Yin, K)
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(PC) Lugo v. Williams et al Doc. 28 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUSTY LUGO, 12 No. CIV S-09-0505-MCE-CMK-P Plaintiff, 13 vs. 14 WILLIAMS, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 / 17 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 18 to 42 U.S.C. § 1983.1 Pending before the court is defendants’ unopposed motion to dismiss 19 (Doc. 24) based on failure to exhaust administrative remedies. In the alternative, defendants seek 20 summary judgment on the merits of plaintiff’s claims. Submitted with defendants motion and 21 before the court is defendants’ statement of undisputed facts (“UF”; Doc. 25), with 22 accompanying exhibits.2 23 /// 24 1 25 26 Plaintiff raised the same claims in a prior action – CIV-S-07-1134-MCE-JFM – which was dismissed without prejudice for failure to resolve fees. 2 By order issued on August 26, 2010, Exhibit B has been filed under seal. 1 Dockets.Justia.com 1 I. BACKGROUND 2 Plaintiff names Williams and Malvia as defendants. He claims that, in May 2007, 3 defendants were deliberately indifferent to the conditions of his confinement and used excessive 4 force. In particular, plaintiff alleges that he was left in restraints for eight hours. Defendants’ 5 undisputed evidence establishes the following: 6 1. On the morning of May 4, 2007, correctional officers discovered inmate Perry in the dayroom with a swollen and bleeding mouth; 2. Because no officers observed what had happened, an investigation was initiated; 9 3. Several inmates were interviewed as part of the investigation; 10 4. According to the inmate witnesses, plaintiff was in the dayroom and, when Perry entered, plaintiff approached him, said a few words, then struck Perry in the mouth with his fist; 5. Plaintiff was then placed in restraints and taken to the medical clinic by defendant Malvia to be reviewed both medically and psychiatrically before placement in administrative segregation; 6. Plaintiff arrived at the clinic and became disruptive, at times swearing at correctional staff; 7. The nurse specifically noted that plaintiff refused an examination, telling her to “get out of my face” and “go stick your head in a toilet”; 8. Based on plaintiff’s continued disruptive behavior while in the clinic, plaintiff was placed in a prone position by defendant Malvia whereupon leg restraints were applied; 9. Plaintiff complied with defendant Malvia’s instructions during the application of restraints and admitted during his deposition that his behavior could be seen as resistive; 10. Upon examination by the prison psychologist, the doctor noted that plaintiff had been restrained due to resistive behavior and that plaintiff was “highly agitated”; 11. The doctor cleared plaintiff for administrative segregation placement, but did not order restraints removed at that time; 12. Plaintiff was seen at the medical clinic later the same day complaining of an inability to breathe; 7 8 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 /// 2 1 13. Upon examination, the clinic nurse noted that plaintiff had a slightly “prolonged expiration but good exchange and no wheezing;” 14. Plaintiff was provided medication and returned to administrative segregation; 15. Plaintiff was later seen in his cell by prison mental health staff who noted that plaintiff was “lying comfortably in his bed with his blanket on”; 16. At that time, plaintiff did not complain of pain or request medical attention; and 17. On May 7, 2007, plaintiff complained of groin pain for the first time and was seen by a prison doctor the following day. 2 3 4 5 6 7 8 9 10 II. APPLICABLE LEGAL STANDARDS 11 A. 12 Motion to Dismiss A motion to dismiss based on a prisoner’s failure to exhaust administrative 13 remedies is properly the subject of an unenumerated motion under Federal Rule of Civil 14 Procedure 12(b). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). “In deciding a 15 motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the 16 pleadings and decide disputed issues of fact.” Id. at 1119-20. Where the court looks beyond the 17 pleadings to a factual record in deciding the motion to dismiss, which is “. . . a procedure closely 18 analogous to summary judgment,” the court must assure that the plaintiff has faire notice of his 19 opportunity to develop a record. Id. at 1120 n.14 (referencing the notice requirements outlined in 20 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 21 409 (9th Cir. 1988). Defendants bear the burden of establishing that the plaintiff failed to 22 exhaust administrative remedies prior to filing suit. See Wyatt, 315 F.3d at 1120. If the court 23 concludes that administrative remedies have not been exhausted, the unexhausted claim should 24 be dismissed without prejudice. See id. at 1120; see also Jones v. Bock, 127 S.Ct. 910 (2007). 25 /// 26 /// 3 1 2 B. Summary Judgment Summary judgment is appropriate when it is demonstrated that there exists “no 3 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 4 matter of law.” Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party 5 6 7 8 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). 9 10 “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 11 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 12 depositions, answers to interrogatories, and admissions on file.’” Id. Indeed, summary judgment 13 should be entered, after adequate time for discovery and upon motion, against a party who fails to 14 make a showing sufficient to establish the existence of an element essential to that party’s case, 15 and on which that party will bear the burden of proof at trial. Id. at 322. “[A] complete failure of 16 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 17 facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as 18 whatever is before the district court demonstrates that the standard for entry of summary 19 judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323. 20 If the moving party meets its initial responsibility, the burden then shifts to the 21 opposing party to establish that a genuine issue as to any material fact actually does exist. See 22 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 23 establish the existence of this factual dispute, the opposing party may not rely upon the 24 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 25 form of affidavits, and/or admissible discovery material, in support of its contention that the 26 dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party 4 1 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 2 of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 3 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and 4 that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict 5 for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 6 In the endeavor to establish the existence of a factual dispute, the opposing party 7 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 8 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 9 versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary 10 judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a 11 genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory 12 committee’s note on 1963 amendments). 13 In resolving the summary judgment motion, the court examines the pleadings, 14 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 15 any. See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See 16 Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed 17 before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. 18 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 19 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 20 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 21 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 22 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 23 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 24 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 25 /// 26 /// 5 1 III. DISCUSSION 2 Defendants argue: (1) plaintiff failed to exhaust administrative remedies prior to 3 filing suit; and alternatively (2) defendants are entitled to summary judgment on the merits of 4 plaintiff’s claims.3 5 A. Exhaustion 6 Defendants argue: 7 Plaintiff did not complete the grievance process concerning the allegations made in his complaint. The undisputed evidence establishes that Plaintiff filed a grievance on May 19, 2007, in which he alleged that he was placed him in handcuffs for eight hours, causing him to suffer a hernia. (UF 20). Plaintiff requested medical care, to file a lawsuit, and to register a staff complaint. (UF 20). The appeal was bypassed at the informal and first formal levels of review. On June 28, 2007, Plaintiff’s appeal was partially granted at the second level of review. (UF 21). The response noted that Plaintiff’s allegations of being in handcuffs for eight hours were unsubstantiated because Plaintiff was initially placed in handcuffs after the morning meal, and was re-housed in administrative segregation before noon. (UF 21). The response also noted that because Plaintiff had refused medical treatment, it was unclear how, or when, Plaintiff developed a hernia. (UF 21). The appeal was granted insofar as Plaintiff’s allegations had been investigated. (UF 22). Plaintiff was advised that he could appeal the decision to the Director’s Level of Review. (UF 22). Plaintiff admits that he did not appeal to the Director’s Level of Review. (UF 23). Moreover, the Inmate Appeals Branch has no record that Plaintiff filed a grievance concerning the allegations of his complaint that was accepted for review at the Director’s Level. (UF 23). Although Plaintiff filed two additional grievances, both were rejected as duplicative of the appeal filed May 19, 2007. (UF 24). The undisputed evidence establishes that Plaintiff did not complete the grievance process with regard to the allegations of the complaint before he filed suit. Accordingly, the complaint should be dismissed. 8 9 10 11 12 13 14 15 16 17 18 19 20 Prisoners seeking relief under § 1983 must exhaust all available administrative 21 remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory 22 regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling 23 Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of 24 25 3 26 In the context of their summary judgment argument, defendants also assert that they are entitled to qualified immunity. 6 1 the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies 2 while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The 3 Supreme Court recently addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 4 (2007), and held: (1) prisoners are not required to specially plead or demonstrate exhaustion in 5 the complaint because lack of exhaustion is an affirmative defense which must be pleaded and 6 proved by the defendants; (2) an individual named as a defendant does not necessarily need to be 7 named in the grievance process for exhaustion to be considered adequate because the applicable 8 procedural rules that a prisoner must follow are defined by the particular grievance process, not 9 by the PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, 10 11 but not all, claims are unexhausted. The Supreme Court also held in Woodford v. Ngo that, in order to exhaust 12 administrative remedies, the prisoner must comply with all of the prison system’s procedural 13 rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, 14 exhaustion requires compliance with “deadlines and other critical procedural rules.” Id. at 90. 15 Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance 16 which affords prison officials a full and fair opportunity to address the prisoner’s claims. See id. 17 at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the 18 quantity of prisoner suits “because some prisoners are successful in the administrative process, 19 and others are persuaded by the proceedings not to file an action in federal court.” Id. at 94. 20 A prison inmate in California satisfies the administrative exhaustion requirement 21 by following the procedures set forth in §§ 3084.1-3084.7 of Title 15 of the California Code of 22 Regulations. In California, inmates “may appeal any departmental decision, action, condition, or 23 policy which they can demonstrate as having an adverse effect upon their welfare.” Cal. Code 24 Regs. tit. 15, § 3084.1(a). These regulations require the prisoner to proceed through several 25 levels of appeal: (1) informal resolution; (2) formal appeal; (3) second level appeal to institution 26 head; (4) third level appeal to the director of the California Department of Corrections and 7 1 Rehabilitation. A decision at the third formal level, which is also referred to as the director’s 2 level, is not appealable and concludes a prisoner’s departmental administrative remedy. See Cal. 3 Code Regs. tit. 15, §§ 3084.1(a) and 3084.5(e)(2). Departmental appeals coordinators may 4 summarily reject a prisoner’s untimely administrative appeal. See Cal. Code Regs. tit. 15, §§ 5 3084.3(c)(6) and 3084.6(c). 6 In certain circumstances, the regulations make it impossible for the inmate to 7 pursue a grievance through the entire grievance process. See Brown v. Valoff, 422 F.3d 926, 939 8 n. 11 (9th Cir. 2005). Where a claim contained in an inmate’s grievance is characterized by 9 prison officials as a “staff complaint” and processed through a separate confidential process, 10 prison officials lose any authority to act on the subject of the grievance. See id. at 937 (citing 11 Booth, 532 U.S. at 736 n. 4). Thus, the claim is exhausted when it is characterized as a “staff 12 complaint.” See id. at 940. If there are separate claims in the same grievance for which further 13 administrative review could provide relief, prison regulations require that the prisoner be notified 14 that such claims must be appealed separately. See id. at 939. The court may presume that the 15 absence of such a notice indicates that the grievance did not present any claims which could be 16 appealed separate from the confidential “staff complaint” process. See id. 17 As reflected in defendants’ Exhibit D, which consists of excerpts from plaintiff’s 18 deposition taken on December 17, 2009, plaintiff admitted that he did not seek a Director’s Level 19 review. However, defendants’ exhibits, specifically Exhibit A, reflects that plaintiff’s grievance 20 was characterized as a confidential staff complaint. For this reason, the court cannot conclude 21 that plaintiff failed to exhaust administrative remedies. While the grievance response also 22 indicates that plaintiff can appeal further, it does not appear that issues unrelated to the staff 23 complaint issue were raised in the grievance which could be appealed separately. 24 /// 25 /// 26 /// 8 1 2 B. Merits In his complaint, plaintiff alleges liability arising from the following: (1) his 3 lengthy placement in restraints; and (2) excessive force while being restrained. The treatment a 4 prisoner receives in prison and the conditions under which the prisoner is confined are subject to 5 scrutiny under the Eighth Amendment, which prohibits cruel and unusual punishment. See 6 Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S. 825, 832 (1994). 7 The Eighth Amendment “. . . embodies broad and idealistic concepts of dignity, civilized 8 standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of 9 confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 10 (1981). Nonetheless, prison officials must provide prisoners with “food, clothing, shelter, 11 sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th 12 Cir. 1986). A prison official violates the Eighth Amendment only when two requirements are 13 met: (1) objectively, the official’s act or omission must be so serious such that it results in the 14 denial of the minimal civilized measure of life’s necessities; and (2) subjectively, the prison 15 official must have acted unnecessarily and wantonly for the purpose of inflicting harm. See 16 Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison official must have a 17 “sufficiently culpable mind.” See id. 18 When prison officials stand accused of using excessive force, the core judicial 19 inquiry is “. . . whether force was applied in a good-faith effort to maintain or restore discipline, 20 or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); 21 Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The “malicious and sadistic” standard, as 22 opposed to the “deliberate indifference” standard applicable to most Eighth Amendment claims, 23 is applied to excessive force claims because prison officials generally do not have time to reflect 24 on their actions in the face of risk of injury to inmates or prison employees. See Whitley, 475 25 U.S. at 320-21. In determining whether force was excessive, the court considers the following 26 factors: (1) the need for application of force; (2) the extent of injuries; (3) the relationship 9 1 between the need for force and the amount of force used; (4) the nature of the threat reasonably 2 perceived by prison officers; and (5) efforts made to temper the severity of a forceful response. 3 See Hudson, 503 U.S. at 7. The absence of an emergency situation is probative of whether force 4 was applied maliciously or sadistically. See Jordan v. Gardner, 986 F.2d 1521, 1528 (9th Cir. 5 1993) (en banc). The lack of injuries is also probative. See Hudson, 503 U.S. at 7-9. Finally, 6 because the use of force relates to the prison’s legitimate penological interest in maintaining 7 security and order, the court must be deferential to the conduct of prison officials. See Whitley, 8 475 U.S. at 321-22. 9 1. Time in Restraints 10 As defendants correctly note, there is no bright-line rule for determining when a 11 continuous placement in restraints constituted a constitutional violation. In Key v. McKinney, 12 the Eighth Circuit concluded that there was no constitutional violation where the prisoner had 13 been in restraints for 24 hours. See 176 F.3d 1083, 1086 (8th Cir. 1999). In Williams v. Burton, 14 the Eleventh Circuit concluded that the Eighth Amendment had not been violated where an 15 inmate had been held in four-point restraints for over 28 hours. See 943 F.2d 1572, 1576 (11th 16 Cir. 1991). And in LeMaire v. Maass, the Ninth Circuit upheld the use of four-point restraints 17 for an extended period of time for an inmate with serious disciplinary problems. See 12 F.3d 18 1444, 1459-60 (9th Cir. 1993). However, in Hope v. Pelzer, the Supreme Court concluded that 19 an inmate’s Eighth Amendment rights had been violated where prison officials subdued the 20 prisoner, placed him leg irons, ordered him to remove his shirt, and then handcuffed him to a 21 hitching post where he remained for seven hours. See 536 U.S. 730, 737 (2002). The Supreme 22 Court held that “cuffing an inmate to a hitching post for a period of time extending past that 23 required to address an immediate danger or threat is a violation of the Eighth Amendment.” Id. 24 at 747. 25 /// 26 /// 10 1 The undisputed evidence reveals that plaintiff was initially placed in handcuffs by 2 defendant Malvia at about 7:30 a.m. on May 4, 2007. At about 9:30 a.m. plaintiff was seen at 3 the medical clinic, still in restraints. At 10:13 a.m. plaintiff was examined by the prison 4 psychologist, who noted that plaintiff was highly agitated and still restrained. The doctor did not 5 direct that the restraints be removed at that time, but cleared plaintiff for placement in 6 administrative segregation. At 11: 05 plaintiff was again seen at the medical clinic, this time not 7 in restraints. It is unclear when the restraints were removed, but it is apparent that they had been 8 removed by 11:05 a.m. Assuming that restraints had not been removed until the 11:05 a.m. 9 clinic visit, the plaintiff had been in restraints for at most 3 1/2 hours. 10 The court concludes that the time plaintiff spent in restraints did not exceed the 11 time necessary to address the danger plaintiff posed at the time. Plaintiff was initially placed in 12 handcuffs following his assault on inmate Perry. He was maintained in restraints while being 13 examined at the medical clinic where he was observed to be disruptive to both correction officers 14 and the clinic nurse, telling the latter to “go stick your head in a toilet.” Fearing further 15 disruption and/or possible escalation, plaintiff was ordered placed in leg restraints and then 16 strapped to a gurney and taken to administrative segregation. The evidence reflects that plaintiff 17 complied with this process. About an hour later at 10:13 a.m. plaintiff, who was still restrained, 18 was examined by a prison psychologist who noted that plaintiff was extremely agitated and 19 angry. Restraints were not removed at this time but were removed by 11:05 a.m. 20 Here, plaintiff posed a threat to institutional security and safety by assaulting 21 inmate Perry. This justified his initial placement in restraints. By the time he arrived at the 22 medical clinic a short time later, plaintiff was disruptive and abusive to staff. This justified the 23 continued use of restraints. While plaintiff complied with the addition of leg shackles, when he 24 was examined by the prison psychologist a short time later plaintiff was noted to be agitated and 25 angry. This justified the continued time in restraints. By 11:05 a.m. restraints had been 26 removed. Plaintiff was in mechanical restraints for, at most, 3 1/2 hours, during which time he 11 1 was noted to be agitated, angry, and/or abusive to staff. By the 11:05 a.m. clinic visit, plaintiff 2 had calmed down to the point where restraints had been removed. This case is clearly 3 distinguishable from Hope where the inmate was made to stand cuffed to a hitching post far 4 beyond the time the inmate represented an immediate danger. Here, by the time the threat of 5 immediate danger plaintiff represented had diminished (i.e., 11:05 a.m.), restraints were 6 removed. 7 2. Use of Force 8 Plaintiff contends that defendant Malvia applied excessive force when leg 9 restraints were applied. The court agrees with defendants, however, that “the undisputed 10 evidence shows that Plaintiff was belligerent and resisting staff, cursing and insulting both the 11 officers and the nurse.” Further, as defendants note, plaintiff admitted at his deposition that his 12 conduct in the medical clinic preceding the application of leg restraints could have been seen as 13 resisting. Finally, the evidence indicates that the amount of force used to subdue plaintiff was 14 minimal given that plaintiff cooperated and did not complain of any pain or injuries that day. 15 Given these facts, the court finds that the use of force was reasonable. There is absolutely no 16 evidence that force was applied maliciously or sadistically for the sole purpose of inflicting pain. 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 12 1 IV. CONCLUSION 2 Based on the foregoing, the undersigned recommends that: 3 1. 4 Defendants’ unopposed motion to dismiss, or in the alternative for summary judgment, (Doc. 24) be granted; and 5 2. Summary judgment be entered in favor of defendants and against plaintiff. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court. Responses to objections shall be filed within 14 days after service of 10 objections. Failure to file objections within the specified time may waive the right to appeal. 11 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 14 15 DATED: November 22, 2010 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 13