Church v. Naftzger

Filing 55

FINDINGS and RECOMMENDATIONS to Grant Defendant's 43 Motion for Summary Judgment, Deny Plaintiff's 48 Cross-Motion for Summary Judgment, and Deny Plaintiff's 53 Motion to Strike signed by Magistrate Judge Jennifer L. Thurston on 11/5/2019. Referred to Judge Anthony W. Ishii. Objections to F&R due within Twenty-One (21) Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No.: 1:17-cv-00596-AWI-JLT (PC)

JACK CHURCH,

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FINDINGS AND RECOMMENDATIONS
TO GRANT DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, DENY
PLAINTIFF’S CROSS-MOTION FOR
SUMMARY JUDGMENT, AND DENY
PLAINTIFF’S MOTION TO STRIKE

Plaintiff,

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v.

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J. NAFTZGER,

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Defendant.

(Docs. 43, 48, 53)

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21-DAY DEADLINE

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The plaintiff claims that when he was housed at Pleasant Valley State Prison, J. Naftzger

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filed a false disciplinary chrono against him which resulted in Plaintiff losing privileges including

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property, day room activities, use of the telephone, and credits. In his motion for summary

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judgment, Officer Naftzgar demonstrates that Plaintiff has not suffered a violation of Due

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Process. For this reason, the Court recommends that Defendant’s motion for summary judgment

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be GRANTED, that Plaintiff’s cross-motion for summary judgment be DENIED, and that

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Plaintiff’s motion to strike be DENIED.

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BACKGROUND

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Jack Church was incarcerated at Pleasant Valley State Prison (PVSP) in 2014. (Doc. 43-2

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(“UMF”) ¶ 1.) In March 2014, Defendant J. Naftzger, a correctional officer, alleges that he issued

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Plaintiff a “disciplinary” or “custodial counseling chrono” because Plaintiff failed to report to

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work. (See Ex. B to UMF, at 10.) Plaintiff alleges that he was never issued this disciplinary

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chrono. (See Ex. F to UMF, at 54-55.)

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On May 1, 2014, Plaintiff was assigned to work in PVSP’s Facility A Dining. (UMF ¶ 8.)

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Plaintiff reported to Facility A, but informed Defendant that he would not perform his assigned

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tasks because he was “not going to expose [him]self to further injury.” (UMF ¶¶ 10, 11.)

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Defendant asked Plaintiff to provide him with a medical “lay-in order” for May 1; but, Plaintiff

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did not have one. (UMF ¶¶ 13, 14.) Plaintiff had previously received a lay-in order for April 16-

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30. (UMF ¶ 7.) Consequently, Defendant issued Plaintiff a rules violation report (“RVR”) for

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refusing to work. (UMF ¶ 9.) On May 18, 2014, Correctional Lieutenant N. Greene conducted a

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hearing and upheld the RVR. (UMF ¶ 16.) Plaintiff was penalized with a loss of 30 days of

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credits and 90 days of dayroom and telephone privileges. (Doc. 43-3 (“Lt. Greene Dec”) ¶ 4.)

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Thereafter, Plaintiff filed a petition for writ of habeas corpus against Warden Scott

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Frauenhiem in Fresno County Superior Court (Case No. 15CRWR682712). (UMF ¶ 18.) At the

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hearing held on October 13, 2015, Judge W. Kent Hamlin found that Naftzger fabricated

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Plaintiff’s March 2014 disciplinary chrono and that the chrono was the basis for the May 2014

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RVR; and he granted Plaintiff’s writ. (UMF ¶ 22.) Judge Hamlin ordered that Plaintiff’s 30 days

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of credits be restored, as well as an additional 5 days of lost credits. (UMF ¶ 23.) In his order

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from the bench, Judge Hamlin specifically stated that the 5 days lost were a “cognizable injury

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that followed from a denial of [Plaintiff’s] due process rights through a flawed disciplinary

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procedure that included fabricated evidence.” (Ex. F to UMF, at 116.) On October 24, 2018,

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Plaintiff’s RVR was expunged. (UMF ¶ 17; see also Ex. G to UMF, at 134.)

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LEGAL STANDARD

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Summary judgment is appropriate when the moving party “shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). In summary judgment practice, the moving party “initially bears the burden of

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proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d

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376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving
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party may accomplish this by “citing to particular parts of materials in the record, including

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depositions, documents, electronically stored information, affidavits or declarations, stipulations

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(including those made for purposes of the motion only), admissions, interrogatory answers, or

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other materials,” or by showing that such materials “do not establish the absence or presence of a

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genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

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Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, as

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Plaintiff does here, “the moving party need only prove that there is an absence of evidence to

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support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at

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325); see also Fed. R. Civ. P. 56(c)(1)(B).

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Summary judgment should be entered against a party who fails to make a showing

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sufficient to establish the existence of an element essential to that party’s case, and on which that

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party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of

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proof concerning an essential element of the nonmoving party’s case necessarily renders all other

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facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted,

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“so long as whatever is before the district court demonstrates that the standard for the entry of

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summary judgment … is satisfied.” Id. at 323.

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If the moving party meets its initial responsibility, the burden then shifts to the opposing

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party to establish that a genuine issue as to any material fact does exist. See Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

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existence of a factual dispute, the opposing party may not rely upon the allegations or denials of

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his pleadings but is required to tender evidence of specific facts in the form of affidavits or

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admissible discovery material in support of its contention. See Fed. R. Civ. P. 56(c)(1);

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Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.

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2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary

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judgment.”). The opposing party must demonstrate that the fact in contention is material, i.e., that

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it might affect the outcome of the suit under governing law, see Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,

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630 (9th Cir. 1987), and that the dispute is genuine, i.e., that the evidence is such that a
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reasonable jury could return a verdict for the non-moving party, see Anderson, 477 U.S. at 250;

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Wool v. Tandem Computs. Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

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In attempting to show a factual dispute, the opposing party need not prove a material fact

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conclusively in her favor. It is sufficient that “the claimed factual dispute be shown to require a

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jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809

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F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the

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proof in order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587

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(citations omitted).

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“In evaluating the evidence to determine whether there is a genuine issue of fact,” the

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court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v.

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Cent. Contra Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). Though, it is still the

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opposing party’s obligation to produce a factual predicate from which the inference may be

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drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985),

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aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing

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party “must do more than simply show that there is some metaphysical doubt as to the material

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facts…. Where the record taken as a whole could not lead a rational trier of fact to find for the

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non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation

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omitted).

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DISCUSSION
A. Summary Judgment
Defendant moves for summary judgment on the following grounds: (1) that the Due

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Process Clause requires prison disciplinary decisions to be supported by “some evidence,” and

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that Plaintiff’s RVR is indeed supported by some evidence, (Doc. 43-1 at 7), (2) that Plaintiff has

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not suffered a “deprivation” of liberty protected by the Due Process Clause, (id. at 7-8), and (3)

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that Defendant is entitled to qualified immunity, (id. at 8-10).

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Plaintiff moves for summary judgment and asserts that Defendant is collaterally estopped

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from relitigating the due process claim. (Doc. 48 at 6.) Plaintiff argues that because he prevailed

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in his state habeas proceeding, Defendant is precluded from relitigating the matter here; and, thus
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he should prevail in the present action as a matter of law. (Id. at 6-7.)
For the reasons below, the Court finds that collateral estoppel does not apply to this

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action, and that Defendant did not violate Plaintiff’s due process rights. Because the Court finds

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that Plaintiff’s due process rights were not violated, the Court need not reach the issue of

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qualified immunity.

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1. Collateral Estoppel
The doctrine of collateral estoppel, or issue preclusion, prevents a party from relitigating

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an issue that the party previously litigated and was decided in a prior action. See Syverson v. Int'l

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Bus. Machines Corp., 472 F.3d 1072, 1078 (9th Cir. 2007). Offensive issue preclusion, as

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opposed to defensive issue preclusion, involves “a plaintiff seek[ing] to prevent a defendant from

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relitigating an issue that the defendant previously litigated unsuccessfully against a different

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party.” State of Idaho Potato Comm'n v. G & T Terminal Packaging, Inc., 425 F.3d 708, 713 n.3

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(9th Cir. 2005) (as quoted in Syverson, 472 F.3d at 1078.) The Supreme Court has granted trial

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courts “broad discretion” to determine when offensive issue preclusion should be applied.

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Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979).

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The Ninth Circuit has held that offensive issue preclusion is appropriate only if the

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following prerequisites are met: (1) “there was a full and fair opportunity to litigate the identical

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issue in the prior action,” (2) “the issue was actually litigated in the prior action,” (3) “the issue

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was decided in a final judgment,” and (4) “the party against whom issue preclusion is asserted

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was a party or in privity with a party to the prior action.” Syverson, 472 F.3d at 1078 (citations

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omitted).

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Defendant argues that issue preclusion should not apply here because the issue decided in

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Plaintiff’s habeas action is different from the issue in the present case and because the defendants

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in the two proceedings are different. (Doc. 49 at 3.) Regarding the first argument, Defendant

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states that the issue in the habeas proceeding “concerned … whether [Plaintiff] suffered … credit

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loss as a result of a disciplinary violation,” whereas the issue in the current action is whether

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Defendant “violated Plaintiff’s procedural due process by filing a disciplinary chrono.” The Court

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is unpersuaded by this argument. Whether the issues in two actions are identical is not determined
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by whether the relief sought in both actions is identical. See Baker by Thomas v. Gen. Motors

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Corp., 522 U.S. 222, 234 (1998). Thus, it is immaterial whether Plaintiff sought restoration of

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time credits in the habeas proceeding and now seeks relief for a due process violation in the

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present. What matters is whether the due process claim was litigated and decided; and it appears it

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was. In granting Plaintiff’s writ of habeas corpus, the state Superior Court specifically concluded

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that Defendant “fabricated” the disciplinary chrono and that, as a result, Plaintiff’s due process

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rights in the RVR hearing were violated. (Ex. F to UMF, at 114-16.)

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Turning to the second argument, Defendant states that the defendants are different
because, in the habeas proceeding, the defendant was Warden Scott Frauenhiem, whereas here,

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the defendant is Correctional Officer Naftzger. (Doc. 49 at 3.) The Court agrees. Thus, the issue is

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whether Warden Frauenhiem and Officer Naftzger are in privity with each other.

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The Court acknowledges that the case law on whether a warden and correctional officers

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are in privity with each other for purposes of issue or claim preclusion is inconsistent. In

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Anderson v. Mendoza and Nelson v. Brown, for example, the courts found that the two were

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indeed in privity. No. 217CV1244-KJM-DBP, 2018 WL 6528429, at *5 (E.D. Cal. Dec. 12,

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2018); No. 11-CV-2202-GPC-WVG, 2014 WL 1096189, at *8 (S.D. Cal. Mar. 19, 2014). In

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Wiley v. Pliler, on the other hand, the court found that they were not in privity. No. CIVS041922-

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MCE-KJMP, 2007 WL 2344888, at *7 (E.D. Cal. Aug. 15, 2007), report and recommendation

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adopted, 2007 WL 2702972 (E.D. Cal. Sept. 17, 2007).

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In general, “privity may exist if there is ‘substantial identity’ between parties, that is,

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when there is sufficient commonality of interest.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l

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Planning Agency, 322 F.3d 1064, 1081 (9th Cir. 2003) (internal quotation marks and citation

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omitted). “[P]rivity is a flexible concept dependent on the particular relationship between the

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parties in each individual set of cases.” Tahoe-Sierra, 322 F.32 at 1081-82 (citation omitted).

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Though courts have found privity to exist between officers of the same government, see,

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e.g., Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1398 (9th Cir. 1992), they have also found

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privity to be absent between an officer sued in her official capacity and that same officer sued in

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her individual capacity. See Andrews v. Daw, 201 F.3d 521, 524-26 (4th Cir. 2000). As provided
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in the Restatement (Second) of Judgments, “[a] party appearing in an action in one capacity,

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individual or representative, is not thereby bound by or entitled to the benefits of the rules of res

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judicata in a subsequent action in which he appears in another capacity.” § 36 (1982). “While

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‘[p]ersonal capacity suits seek to impose personal liability upon a government official for actions

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he takes under color of state law,’ official-capacity suits ‘generally represent only another way of

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pleading an action against an entity of which an officer is an agent’ and in essence are ‘suit[s]

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against the entity.’” Andrews, 201 F.3d at 525 (quoting Kentucky v. Graham, 473 U.S. 159, 165–

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66 (1985)).

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Although the above Restatement (Second) of Judgments section applies to res judicata, or

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claim preclusion, the Court finds its rationale, as well as the reasoning in Andrews, applicable to

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issue preclusion here. Thus, the Court finds that there is no privity between Officer Naftzger, sued

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in his individual capacity in the present action, and Warden Frauenhiem, sued in his official

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capacity in the habeas action. Although both are employees of the California Department of

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Corrections and Rehabilitation (CDCR), the Court does not find that there is sufficient

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commonality of interests between the two to justify preclusion. In the habeas action, the warden

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sought to defend the prison’s disciplinary proceeding generally, and to uphold the proceeding’s

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outcome. Here, the individual correctional officer is defending himself against personal liability.

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The Court does not believe that the parties “represent[] precisely the same legal right in respect to

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the subject matter involved,” Jefferson Sch. of Soc. Sci. v. Subversive Activities Control Bd., 331

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F.2d 76, 83 (D.C. Cir. 1963) (citations omitted), nor do they have sufficient commonality of

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interests.

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Importantly, in the two cases cited above in which courts found privity between a warden

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and a correctional officer, the party asserting issue or claim preclusion was the defendant. See

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Anderson, 2018 WL 6528429, at *4; Nelson, 2014 WL 1096189, at *6. In both cases, the

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defendant raised this doctrine to defend against a plaintiff who was a party in the prior action. See

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Anderson, 2018 WL 6528429, at *5; Nelson, 2014 WL 1096189, at *7. Thus, in those situations,

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the party against whom preclusion was sought had received a full and fair opportunity to litigate

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the claim, which is the first prerequisite of issue preclusion provided by the Ninth Circuit in
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Syverson. 472 F.3d at 1078. The same cannot be said here. Though Plaintiff was a party to the

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habeas proceeding, Nafzger was not. Therefore, the Court finds that issue preclusion does not

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apply to the present case.

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2. Liberty Deprivation
Defendant argues that “Plaintiff has not suffered a deprivation protected by the Due

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Process Clause,” because the state court granted Plaintiff’s petition for writ of habeas corpus and

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ordered his good time credits restored. (Doc. 43-1 at 7.) For this proposition, Defendant cites

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Williams v. Lewis, 2012 U.S. Dist. LEXIS 128564, *1 (N.D. Cal. 2012). (Id.) In that case, the

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plaintiff challenged an RVR issued against him, which had resulted in a loss of 90 days of credits.

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Williams, 2012 U.S. Dist. LEXIS 128564, at *1. As in the present case, the plaintiff challenged

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the RVR on due process grounds. Id. The court dismissed the case for mootness, focusing on the

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fact that Plaintiff’s credits had been restored by the prison. Id. at *9.

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Williams is different from the present case for two crucial reasons: one, it was a federal

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habeas proceeding, not a civil rights action, and two, the prison in Williams restored the plaintiff’s

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credits on its own accord, prior to the conclusion of the habeas proceeding; it was not ordered to

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do so by a court that had already found a due process violation.

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Defendant seems to be conflating two issues: mootness and sufficiency of the alleged

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deprivation. In Sandin v. Conner, the Supreme Court held that the plaintiff-prisoner had not

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suffered the “type of atypical, significant deprivation in which a State might conceivably create a

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liberty interest.” 515 U.S. 472, 486 (1995). As a result of a disciplinary proceeding, the plaintiff

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in Sandin had been ordered to segregated confinement. Id. at 475-46. The Court held that such

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confinement did not infringe on a recognized liberty interest, and therefore, it did not implicate

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the Due Process Clause or its protections. Id. at 486.

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The discipline imposed on Plaintiff did implicate a protected liberty interest. Courts have

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recognized that where the state has created a right to credits for good behavior, the credits are

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liberty interests protected by the Due Process Clause. Wolff v. McDonnell, 418 U.S. 539, 557

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(1974); see also Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454

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(1985). Thus, it seems that Defendant is not arguing that the loss of good-time credits is not a
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deprivation invoking the Due Process Clause, but, rather, that the restoration of Plaintiff’s credits

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after the habeas proceeding renders his current claim moot.

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As stated in the Court’s screening order, even if a plaintiff cannot show actual injury, she

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is still entitled to nominal damages for procedural due process violations. (Doc. 10 at 7).

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“Because the right to procedural due process is ‘absolute’ in the sense that it does not depend

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upon the merits of a claimant’s substantive assertions, and because of the importance to organized

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society that procedural due process be observed, … the denial of procedural due process … [is]

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actionable for nominal damages without proof of actual injury.” Carey v. Piphus, 435 U.S. 247,

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266 (1978) (citations omitted); see also Farrar v. Hobby, 506 U.S. 103, 112 (1992). Thus, even if

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Plaintiff can no longer show actual injury because his credits were restored, if he can prove that a

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due process violation indeed occurred, he can still pursue nominal damages for the violation. (See

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Doc. 21 at 2-3.) The case may be different if, for example, the prison had restored Plaintiff’s

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credits on its own accord during the RVR hearing, since such a hearing is part of the process

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provided to Plaintiff, and thus could counter a procedural defect that may have occurred

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beforehand.

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3. Due Process
Generally, “the requirements of due process are satisfied if some evidence supports the

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decision by [a prison] … to revoke good time credits.” Superintendent, Massachusetts Corr. Inst.,

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Walpole v. Hill, 472 U.S. 445, 455 (1985). “Ascertaining whether this standard is satisfied does

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not require examination of the entire record, independent assessment of the credibility of

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witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any

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evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at

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455–56. However, this deferential “some evidence” standard is not applicable to “a prison guard’s

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initial accusation of a rule violation where the guard’s accusation itself is allegedly false and

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retaliatory.” Hines v. Gomez, 108 F.3d 265, 268 (9th Cir. 1997). In other words, “where a

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prisoner alleges a correctional officer has falsely accused him of violating a prison rule in

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retaliation for the prisoner’s exercise of his constitutional rights, the correctional officer’s

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accusation is not entitled to the ‘some evidence’ standard of review … afford[ed] disciplinary
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administrative decisions.” Id. at 269.
The Court finds that Hines is not applicable here, and that the “some evidence” standard

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articulated in Hill, 472 U.S. 445, applies. In Hines, the Ninth Circuit held specifically that the

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“some evidence” standard does not apply to a guard’s accusation of a rule violation if allegedly

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“false and retaliatory.” 108 F.3d at 268 (emphasis added). Although not stated explicitly, the

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Ninth Circuit’s phrasing strongly suggests that, to avoid the deferential “some evidence”

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standard, a plaintiff must allege that a prison guard has made an accusation that is not only false,

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but also retaliatory. In follow-up cases, the Ninth Circuit and district courts have continued to

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suggest this. See, e.g., Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (“In Hines, … we held

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that ‘some evidence’ standard of Hill did not apply to retaliation claims.”); McQuillion v.

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McKenzie, 35 F. App'x 547, 549, 551 (9th Cir. 2002) (denying summary judgment under Hines

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where plaintiff alleged false and retaliatory chronos); McClenton v. Hubbard, No. CV1-06-1593-

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SRB, 2009 WL 2488144, at *6 (E.D. Cal. Aug. 13, 2009) (Hines not applicable because plaintiff

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did not allege defendant acted in retaliation); Jones v. Lopez, No. 3:00CV0509-ECR-VPC, 2007

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WL 951658, at *14 (D. Nev. Mar. 26, 2007) (“some evidence” standard not applicable because

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no due process violation alleged, only retaliation claim). Because Plaintiff has not alleged that

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Defendant falsified his March 2014 disciplinary chrono in retaliation for engaging in protected

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activity, (see Docs. 1, 19, 21), Plaintiff’s due process claim is subject to the “some evidence”

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standard.

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Even if the “some evidence” standard did not apply, Defendant’s issuance of an RVR for

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Plaintiff’s failure to work is supported by significant, uncontested evidence. In his deposition,

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Plaintiff admits that he was assigned to work on May 1, 2014 and that he told Defendant that he

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was unwilling to perform his assigned duties on that date. (UMF ¶¶ 8, 11; Ex. A to Doc. 43-4

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(“Church Dep.”), at 7-9.) Plaintiff also admits that he did not have a medical lay-in order

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excusing him from work on that date. (Church Dep. at 9.) According to the California Code of

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Regulations, a “serious rules violation” includes refusing to work as ordered or assigned. Cal.

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Code Regs. tit. 15, § 3315(a)(3)(J). Thus, although the May RVR refers to the March chrono, (Ex.

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E to UMF), this was not necessary to issue and uphold the RVR. (See UMF ¶ 16; see also Doc.
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43-3 (“Dec. of N. Greene”) ¶ 3, and Cal. Code Regs. tit. 15, § 3314(f).) For this reason, the Court

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finds that Plaintiff’s due process rights were not violated, because he was provided with adequate

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process related to the issuance of the RVR.

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B. Motion to Strike
In support of his reply to Plaintiff’s motion for summary judgment opposition, Defendant

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filed an amended version of Lt. Greene’s declaration. (Doc. 51.) In this declaration, Lt. Greene

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states that, in his original declaration, (Doc. 43-3), he mistakenly wrote that the RVR hearing for

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Plaintiff was held on May 8, 2014, when it was actually held on May 18, 2014. (Doc. 51 ¶¶ 2-3.)

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Lt. Greene states that, besides this typographical error, everything in his prior declaration is

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accurate. (Id. ¶ 5.)

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Plaintiff has moved to strike Defendant’s reply. (Doc. 53.) Plaintiff argues that, in the

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reply, Defendant “raise[s] issues which were not made as a defense in the form of a motion to

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dismiss.” (Id. at 1.) Plaintiff also argues that Defendant “attempts to now re-declare a different

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stance initially taken with Lieutenant Greene’s declaration.” (Id. at 2.)

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Defendant’s reply is not a pleading, see Fed. R. Civ. P. 7(a), and it is proper under Local

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Rule 230(l). Parties generally cannot raise issues for the first time in a reply brief without waiving

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those issues. See Bazuaye v. I.N.S., 79 F.3d 118, 120 (9th Cir. 1996). However, in Defendant’s

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reply, including Lt. Greene’s supporting declaration, Defendant only addresses issues that were

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previously raised in his motion for summary judgment and Plaintiff’s opposition. Thus, the

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motion to strike is denied.

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CONCLUSION AND RECOMMENDATIONS

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Based on the foregoing, the Court RECOMMENDS that:

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1. Defendant’s motion for summary judgment, (Doc. 43), be GRANTED;

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2. Plaintiff’s cross-motion for summary judgment, (Doc. 48), be DENIED; and,

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3. Plaintiff’s motion to strike, (Doc. 53), be DENIED.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days

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of the date of service of these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time

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may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

November 5, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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