(PC) Kirk v. Heinrich et al, No. 2:2011cv00323 - Document 42 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/17/12 recommending that defendant's 08/23/12 motion for summary judgment 37 be granted as to defendant Salinas and denied as to defendant Heinrich. MOTION for SUMMARY JUDGMENT 37 referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)
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(PC) Kirk v. Heinrich et al Doc. 42 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LARRY W. KIRK, Plaintiff, 11 12 vs. 13 No. 2:11-cv-0323 WBS EFB P HEINRICH, et al., Defendants. 14 FINDINGS AND RECOMMENDATIONS / 15 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 16 17 U.S.C. § 1983. Defendants Heinrich and Salinas move for summary judgment. Dckt. No. 37. 18 For the reasons that follow, the undersigned recommends that the motion be granted in part. 19 I. Background This action proceeds on plaintiff’s Eighth Amendment failure to protect claim against 20 21 defendant Heinrich, and plaintiff’s injunctive relief claim against defendant Salinas, Warden of 22 Deuel Vocational Institute (DVI). Dckt. No. 7 (Apr. 20, 2011 Screening Order). Plaintiff’s 23 verified complaint concerns events that allegedly occurred at DVI. Dckt. No. 1 (“Compl.”). 24 //// 25 //// 26 //// 1 Dockets.Justia.com 1 2 Plaintiff alleges the following: On 8-22-10 I was victimized by another inmate. I suffered several major injuries in which I have to have operations to correct . . . . 3 4 On 8-16-10 and 8-20-10 I personally gave C/O Henrich notes to please move I/M Lockett out of the cell because he was making threats of bodily harm. Trying to pressure me and others . . . in this cell. 5 7 The C/O did nothing to move him out and as a result of this negligence on 8-2210 I was battered by I/M Lockett to the point I ha[d] to be sent out of the institution via ambulance and kept [and] was admitted for my injuries from 8-2210 until 8-31-10. 8 *** 9 Please note I am disabled and confined in a wheelchair. 6 10 Id. § IV. As relief, plaintiff requests compensatory damages and an injunction requiring that the 11 prison policy be changed to require a finding of compatibility before assigning an inmate 12 assistant to a disabled inmate. Id. § V. 13 The following facts are undisputed: Plaintiff is a wheelchair bound inmate who was 14 assigned an inmate assistant. Defs.’ Stmt. of Undisp. Facts ISO Mot. for Summ. J. (“DUF”) 7, 15 14-15; Compl. § IV; Pl.’s Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”)1 at 3.2 Defendant 16 Heinrich was a correctional officer who worked with disabled inmates. DUF 2, 11. Plaintiff 17 shared a four-man cell with inmate assistants Lockett and Wheeler. DUF 10, 15, 18; Pl.’s Opp’n 18 at 3. Lockett was assigned as plaintiff’s inmate assistant/wheelchair attendant. Decl. of 19 Heinrich ISO Defs.’ Mot. for Summ. J. (“Heinrich Decl.”), ¶ 7; Pl.’s Opp’n at 2, 4. On Sunday, 20 August 22, 2010, Lockett battered plaintiff, using both his fists and a part of plaintiff’s 21 wheelchair, causing plaintiff severe injuries. DUF 24; Pl.’s Opp’n at 2. On March 23, 2011, 22 plaintiff was transferred to Salinas Valley State Prison. DUF 28; Dckt. No. 5 (Pl.’s Notice of 23 24 25 1 Plaintiff’s opposition is signed under penalty of perjury and reproduces section IV, the “Statement of Claim,” from his complaint. 2 26 Page numbers cited herein refer to those assigned by the court’s electronic docketing system and not those assigned by plaintiff. 2 1 Change of Address). 2 There is no dispute that during the week of August 16, 2010, plaintiff informed Heinrich 3 that he was having problems with Lockett and Wheeler, and that he wanted them moved out of 4 his cell. DUF 17. Nor is there a dispute that in response, Heinrich removed only Wheeler from 5 plaintiff’s cell. DUF 18; Pl.’s Opp’n at 3, 7. 6 Heinrich maintains that plaintiff never told him he felt threatened by Lockett. DUF 22. 7 Plaintiff, however, claims that he specifically informed Heinrich that Lockett was threatening 8 him, stealing from him, and trying to force him to have sex. Pl.’s Opp’n at 2-3. Plaintiff also 9 claims that he informed Heinrich that he feared for his safety and requested that Lockett be 10 moved. Id. Plaintiff claims that for the next several days, he updated Heinrich on “what Lockett 11 was continuing to do,” and renewed his request to have Lockett removed from his cell. Id. at 3. 12 Heinrich admits that on Friday, August 20th, plaintiff again requested that Lockett be 13 moved out of his cell. DUF 19. According to Heinrich, he advised plaintiff that there was no 14 place to move Lockett at that time, and asked if plaintiff could wait to make the move later. 15 Heinrich Decl. ¶ 11. Heinrich states that plaintiff agreed that the move could wait. Id. Heinrich, 16 who did not work on weekends, claims he left on Friday believing that the two inmates could get 17 along until a cell move could be completed. Id. ¶¶ 1, 10, 12, 15. According to Heinrich, plaintiff 18 never told him that he feared for his safety if Lockett remained in the cell over the weekend. Id. 19 ¶ 10. 20 Plaintiff has an entirely different account of his interaction with Heinrich on August 20th. 21 Plaintiff claims he informed Heinrich that the situation with Lockett had worsened, that Lockett 22 was trying to force him to have sex, and that he did not feel safe. Pl.’s Opp’n at 3, 6-7. 23 According to plaintiff, Heinrich told him that he “would take care of it.” Id. 24 It is undisputed that two days later, on Sunday, August 22nd, inmate Lockett battered 25 plaintiff. DUF 24; Pl.’s Opp’n at 2. According to defendants, plaintiff “taunted” inmate Lockett 26 prior to the attack. See DUF 23 (citing to a page in plaintiff’s deposition transcript, where 3 1 plaintiff recalls that before Lockett assaulted him, plaintiff might have said “Tomorrow is going 2 to be a good day because I’m getting rid of my wheelchair pusher.”). On that same page of the 3 deposition transcript, plaintiff testifies that after Lockett continued to demand sex, and right 4 before Lockett’s attack, plaintiff told Lockett to leave him alone and that he “hope[d] and 5 pray[ed]” that Lockett would be moved from his cell the following day. See Defs.’ Mot. for 6 Summ. J. (“Defs.’ MSJ”), Ex. E at 45. 7 II. Summary Judgment Standards Summary judgment is appropriate when there is “no genuine dispute as to any material 8 9 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 10 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 11 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 12 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 13 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v. 14 U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment 15 motion asks whether the evidence presents a sufficient disagreement to require submission to a 16 jury. 17 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 18 or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to 19 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 20 trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 21 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, 22 under summary judgment practice, the moving party bears the initial responsibility of presenting 23 the basis for its motion and identifying those portions of the record, together with affidavits, if 24 any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 25 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving 26 party meets its burden with a properly supported motion, the burden then shifts to the opposing 4 1 party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); 2 Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995). 3 A clear focus on where the burden of proof lies as to the factual issue in question is 4 crucial to summary judgment procedures. Depending on which party bears that burden, the party 5 seeking summary judgment does not necessarily need to submit any evidence of its own. When 6 the opposing party would have the burden of proof on a dispositive issue at trial, the moving 7 party need not produce evidence which negates the opponent’s claim. See e.g., Lujan v. National 8 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters 9 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323- 10 24 (1986). (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive 11 issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings, 12 depositions, answers to interrogatories, and admissions on file.’”). Summary judgment should 13 be entered, after adequate time for discovery and upon motion, against a party who fails to make 14 a showing sufficient to establish the existence of an element essential to that party’s case, and on 15 which that party will bear the burden of proof at trial. See id. at 322. In such a circumstance, 16 summary judgment must be granted, “so long as whatever is before the district court 17 demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is 18 satisfied.” Id. at 323. 19 To defeat summary judgment the opposing party must establish a genuine dispute as to a 20 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) 21 that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. 22 at 248 (“Only disputes over facts that might affect the outcome of the suit under the governing 23 law will properly preclude the entry of summary judgment.”). Whether a factual dispute is 24 material is determined by the substantive law applicable for the claim in question. Id. If the 25 opposing party is unable to produce evidence sufficient to establish a required element of its 26 claim that party fails in opposing summary judgment. “[A] complete failure of proof concerning 5 1 an essential element of the nonmoving party’s case necessarily renders all other facts 2 immaterial.” Celotex, 477 U.S. at 322. 3 Second, the dispute must be genuine. In determining whether a factual dispute is genuine 4 the court must again focus on which party bears the burden of proof on the factual issue in 5 question. Where the party opposing summary judgment would bear the burden of proof at trial 6 on the factual issue in dispute, that party must produce evidence sufficient to support its factual 7 claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. 8 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit 9 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue 10 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to 11 demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such 12 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 13 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial. 14 The court does not determine witness credibility. It believes the opposing party’s 15 evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; 16 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the 17 proponent must adduce evidence of a factual predicate from which to draw inferences. American 18 Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J., 19 dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on whether the 20 non-moving parties evidence is sufficient to rule in its’ favor over the material facts in dispute, 21 summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 22 1995). On the other hand,“[w]here the record taken as a whole could not lead a rational trier of 23 fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. 24 at 587 (citation omitted). In that case, the court must grant summary judgment. 25 26 Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 6 1 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 2 ‘genuine issue for trial.’” Id. If the evidence presented and any reasonable inferences that might 3 be drawn from it could not support a judgment in favor of the opposing party, there is no genuine 4 issue. Celotex., 477 U.S. at 323. Thus, Rule 56 serves to screen cases lacking any genuine 5 dispute over an issue that is determinative of the outcome of the case. Defendants’ motion for summary judgment included a notice to plaintiff informing him 6 7 of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil 8 Procedure. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 9 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry, 849 10 F.2d 409 (9th Cir. 1988). 11 III. 12 Discussion This action proceeds on plaintiff’s Eighth Amendment failure to protect claim against 13 defendant Heinrich and his injunctive relief claim against defendant Salinas. Defendants argue 14 they are entitled to summary judgment because: (1) defendant Heinrich did not know that 15 plaintiff faced a substantial risk of injury if he continued to share a cell with inmate Lockett; (2) 16 defendant Heinrich is entitled to qualified immunity because he violated no constitutional right 17 and his conduct was objectively reasonable; and (3) plaintiff’s claim for injunctive relief against 18 defendant Salinas is moot because plaintiff was transferred to another institution. See generally 19 Defs.’ Mem. of. P. & A. ISO MSJ (“Defs.’ P. & A.”). 20 A. Failure to Protect Claim 21 Under the Eighth Amendment, “prison officials have a duty to protect prisoners from 22 violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal 23 quotation marks, ellipsis, and citation omitted). However, “not . . . every injury suffered by one 24 prisoner at the hands of another . . . translates into constitutional liability for prison officials 25 responsible for the victim’s safety.” Id. at 834. A prison official may be held liable for an 26 assault suffered by one inmate at the hands of another only where the assaulted inmate can show 7 1 that the injury is sufficiently serious, id. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 2 (1991)), and that the prison official was deliberately indifferent to the risk of harm, id. at 837. 3 Thus, the relevant inquiry is whether prison officials, “acting with deliberate indifference, 4 exposed a prisoner to a sufficiently substantial risk of serious damage to his future health.” Id. at 5 834 (internal quotation omitted). 6 To be deliberately indifferent, the “official must both be aware of facts from which the 7 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 8 inference.” Id. “Whether a prison official had the requisite knowledge of a substantial risk is a 9 question of fact subject to demonstration in the usual ways, including inference from 10 circumstantial evidence . . . and a factfinder may conclude that a prison official knew of a 11 substantial risk from the very fact that the risk was obvious.” Id. at 842. The “obviousness of a 12 risk,” however, is not conclusive, and “a prison official may demonstrate that the obvious 13 escaped him . . .” Id. at 843, n.8. 14 Here, the court must determine whether there is a triable issue as to whether defendant 15 Heinrich violated plaintiff’s Eighth Amendment rights by allowing plaintiff and inmate Lockett 16 to remain in the same cell together. Defendants argue that Heinrich was not deliberately 17 indifferent because he did not know that plaintiff faced a substantial risk of injury if he continued 18 to share a cell with Lockett. To support this position, defendants contend that plaintiff requested 19 Lockett as his wheelchair attendant and that they “seemed to get along” for months. Defs.’ P. & 20 A. (citing DUF 14, 16). Plaintiff, however, denies requesting Lockett as his wheelchair 21 assistant, Pl.’s Opp’n at 2. Moreover, even if it is assumed that plaintiff’s denial of this is not 22 credible, an assumption that cannot be made on summary judgment, whether plaintiff did or did 23 not request Lockett as his wheelchair attendant does not negate the claim of deliberate 24 indifference. Neither does it necessarily establish whether the two inmates were getting along 25 during the week of August 16, 2010 (when plaintiff alleges that he reported that he felt 26 threatened by Lockett,), a predicate assumption to defendant’s argument. 8 1 It is undisputed that plaintiff alerted Heinrich on August 16th that he and Lockett were 2 not compatible, regardless of whether plaintiff had initially requested Lockett as his wheelchair 3 attendant or if they were previously compatible. The issue before the court is whether Heinrich 4 was deliberately indifferent to plaintiff’s safety after that alleged complaint by allowing the two 5 inmates to remain celled together. Defendants also point to the fact that Heinrich moved Wheeler out of plaintiff’s cell. See 6 7 Defs.’ P. & A. at 6 (citing DUF 17-18). Moving Wheeler and not moving Lockett in no way 8 negates the claim that Lockett’s presence posed a danger to plaintiff and that plaintiff had 9 complained about feeling threatened by Lockett. Rather, the issue will turn on the credibility of 10 the testimony of plaintiff and Heinrich over what plaintiff did or did not report to Heinrich about 11 feeling threatened by Lockett. That simply cannot be determined on summary judgment. To support his argument that he was not deliberately indifferent to a serious risk of harm 12 13 to plaintiff, Heinrich declares that plaintiff never asked to “lock up” in an attempt to be moved 14 away from Lockett. Defs.’ P. & A. at 7 (citing DUF 20). However, it is undisputed that on at 15 least two occasions in the days preceding Lockett’s assault on plaintiff, plaintiff asked Heinrich 16 to move Lockett out of the cell. DUF 17, 19. Whether plaintiff proposed alternative means to be 17 moved away from Lockett is not dispositive of the question of whether Heinrich was deliberately 18 indifferent to the allegedly threatening condition by failing to take some action to separate them. 19 Again, plaintiff’s version, if credited, shows that during the week of August 16, 2010, he made 20 Heinrich aware on multiple occasions that Lockett was threatening him with bodily harm and 21 that he did not feel safe. Pl.’s Opp’n at 2-3, 9. The essence of Heinrich’s argument here reduces 22 to the contention that plaintiff’s version is simply not believable. But it is the province of the 23 fact finder at trial to determine the credibility of plaintiff’s testimony. A reasonable jury could 24 credit his testimony and reasonably conclude that Heinrich was aware that Lockett, the inmate 25 assigned to assist plaintiff, was instead a danger to plaintiff. 26 //// 9 1 Defendants also stress their factual assertion that plaintiff agreed to postpone a cell move. 2 Defs.’ P. & A. at 7 (citing DUF 27). Plaintiff, however, disputes this, claiming instead that 3 Heinrich promised to “take care of” moving Lockett from the cell. Pl.’s Opp’n at 3. Apart from 4 the principle that the conflict is inappropriate for resolution on summary judgment, defendants’ 5 evidence shows that plaintiff only agreed to postponing a cell move after Heinrich had told him 6 that “there was no place to move Lockett . . . .” DUF 20. Any decision by plaintiff not to 7 challenge Heinrich, an authority figure, on this point, is not dispositive as to whether Heinrich 8 disregarded a serious risk of harm to plaintiff. This is particularly true if Heinrich knew, as 9 plaintiff’s evidence suggests, that plaintiff did not feel safe because Lockett was making 10 unwanted sexual advances and threatening him with bodily harm. Thus, even if plaintiff had 11 agreed to wait for a cell move, his assent would not absolve Heinrich of liability. See Robinson 12 v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001) (quoting Farmer, 511 U.S. at 833) (“Deliberate 13 indifference to the risk that an inmate will be harmed by other prisoners constitutes a violation of 14 the Eighth Amendment”); Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (Deliberate 15 indifference “does not require that the guard or official believe to a moral certainty that one 16 inmate intends to attack another at a given place at a time certain before that officer is obligated 17 to take steps to prevent such an assault. But, on the other hand, he must have more than a mere 18 suspicion that an attack will occur.”) (quotations and citations omitted)). 19 Defendants also suggest that plaintiff’s “disrespect” of Lockett in front of others caused 20 Lockett’s attack. Defs.’ P. & A. at 7. They cite to evidence that before the attack, plaintiff said 21 to Lockett, “Tomorrow is going to be a good day because I’m getting rid of my wheelchair 22 pusher.” DUF 23. Whether plaintiff made that statement has little bearing on whether Heinrich 23 deliberately delayed addressing a known threatening condition posed by the two inmates being 24 housed together. Furthermore, plaintiff testified at his deposition that any remarks he made to 25 Lockett prior to the attack were in response to Lockett’s relentless sexual advances. Defs.’ Mot. 26 for Summ. J., Ex. E at 45:1-25. Thus, to the extent defendants contend that plaintiff was the 10 1 initial aggressor, there is a genuine dispute over the context of whatever statements were made. 2 As noted, the parties’ version of what plaintiff did or did not report to Heinrich regarding feeling 3 threatened prior to the attack by Lockett stands in stark contrast and is obviously disputed. If a 4 jury credits plaintiff’s testimony it could reasonably conclude that Heinrich was aware that 5 Lockett was a danger to plaintiff and that the two should have been separated. 6 Lastly, defendants argues that Heinrich is entitled to qualified immunity because he did 7 not violate plaintiff’s clearly established constitutional right to be free from violence at the hands 8 of another prisoner. Defs.’ P. & A. at 8; see Saucier v. Katz, 533 U.S. 194 (2001). The 9 argument for qualified immunity is predicated on defendants’ version of the facts (i.e, that 10 plaintiff never told Heinrich that he feared Lockett would assault him and that plaintiff’s 11 taunting of Lockett led to the assault), which plaintiff disputes. As set forth above, the evidence 12 viewed in the light most favorable to plaintiff may establish a constitutional violation. Thus, the 13 issue of qualified immunity is intertwined with the disputed issues of material fact regarding the 14 alleged constitutional violation. Accordingly, Heinrich is not entitled to summary judgment 15 based on qualified immunity. 16 B. Injunctive Relief Claim 17 Defendants contend that plaintiff’s claim for injunctive relief against defendant Salinas is 18 moot because plaintiff was transferred from DVI to another institution. Plaintiff does not 19 respond to this argument in his opposition brief and the court deems that failure as a waiver of 20 any opposition to the motion as to this issue. See E.D. Cal. L. R. 230(l). 21 Furthermore, it appears that the request is moot. Plaintiff was transferred out of DVI on 22 March 23, 2011. DUF 28; Dckt. No. 5 (Pl.’s Notice of Change of Address). His request that 23 defendant Salinas change a DVI prison policy is therefore moot because he is no longer confined 24 to that institution. See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (an inmate’s transfer 25 from a prison while his claims are pending will generally moot any claims for injunctive relief 26 relating to that prison’s policies). Accordingly, summary judgment on this claim must be 11 1 granted. 2 IV. Recommendation 3 Accordingly, IT IS HEREBY RECOMMENDED that defendant’s August 23, 2012 4 motion for summary judgment (Dckt. No. 37) be granted as to defendant Salinas and denied as to 5 defendant Heinrich. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 11 within the specified time may waive the right to appeal the District Court’s order. Turner v. 12 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 Dated: October 17, 2012. 14 15 16 17 18 19 20 21 22 23 24 25 26 12
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