(PS) Reedy v. State of California

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JUSTIN G. REEDY, No. 2:21-cv-0223-TLN-CKD (PS)

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 STATE OF CALIFORNIA, et al., (ECF Nos. 16, 17)

15 Defendants.

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18 Plaintiff Justin G. Reedy proceeds pro se with a civil rights action under 42 U.S.C. §

19 1983. This matter was referred to the undersigned pursuant to Local Rule 302(c)(3). See 28

20 U.S.C. § 636(b). Motions to dismiss filed by the defendants are before the court. (ECF Nos. 16,

21 17.) The parties appeared via videoconference for a hearing on January 12, 2022. Plaintiff

22 appeared pro se. Attorney Julia R. Jackson appeared on behalf of defendants Oakley, Ghaly, and

23 Johnson. Attorney Matthew Gross appeared on behalf of defendants Edwards and Dye. For the

24 reasons set forth below, it is recommended that the court grant both motions to dismiss.

25 I. BACKGROUND

26 Plaintiff seeks redress for alleged injuries resulting from the denial of benefits for himself

27 and his daughter under the California Work Opportunity and Responsibility to Kids Act

28 (CalWORKs). Plaintiff alleges that existing statutes, regulations, policies and procedures for the

1 implementation of that program preclude single fathers from having equal access to public

2 benefits intended for the support and care of dependent children, and thus that the regulatory

3 framework discriminates on the basis of gender.

4 A. Statutory Framework

5 California’s CalWORKs program, the State’s version of the federal Temporary Assistance

6 for Needy Families (TANF) program, is an aid program for families with a child or children

7 deprived of parental support or care due to the unemployment or absence of one or more parents.

8 Cal. Welf. & Inst. Code §§ 11200, 11201, 11205. CalWORKs provides monthly cash and

9 ancillary benefits to parents or relative caretakers in need who are pursuing education to improve

10 employment opportunities. (Id.) In addition to meeting certain income criteria, applicants must

11 demonstrate they (1) are a related parent or caretaker of a child and (2) are responsible for the

12 child’s regular care. California Department of Social Services Manual of Policy and Procedures

13 (“MPP”1) §§ 82-804.1, 82-808.1, 82-808.3. Once approved for CalWORKs, the participating

14 parents or caretakers are required to work or attend school with certain exceptions. Cal. Welf.

15 Inst. Code § 11323.2. CalWORKs then provides certain ancillary benefits to aid parents or

16 caretakers seeking education or employment such as childcare, transportation, and school books.

17 MPP §§ 47-750.111, 47-750.112, 47-750.113. The California Department of Social Services

18 oversees administration of the CalWORKs program by the individual counties which determine

19 applicant eligibility in accordance with Department of Social Services’ rules. Cal. Welf. & Inst.

20 Code §§ 10553, 10600, 10604.

21 CalWORKs aid is provided for a limited time period; under the current law an applicant

22 parent or caretaker can generally receive CalWORKs benefits for up to 48 months. Cal. Welf. &

23 Inst. Code § 11454. However, the 48-month lifetime limit for CalWORKs benefits will soon be

24 increased to 60 months. See California Assembly Bill 135, Chapter 85, Statutes of 2021.

25 ////

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27 1 Available online at https://www.cdss.ca.gov/inforesources/letters-regulations/legislation-and-

regulations/calworks-calfresh-regulations/eligibility-and-assistance-standards, last visited

28 01/10/22.

1 In situations where two CalWORKs applicants share custody of a child and live

2 separately, the county goes through a multi-step process to determine eligibility. First, the county

3 looks to which caretaker exercises more of the routine responsibilities for the child. MPP § 82-

4 808.3. Where custody and the childcare responsibilities are shared equally by two parents, the

5 county will next look to a formal custody agreement to determine whether one parent is

6 designated as the presumptive recipient for aid. MPP § 82-808.413(a). Where no such order

7 exists, and the parents cannot agree on who may receive CalWORKs, the regulations hold the

8 parent who applies first for aid will receive it. MPP § 82-808.413(d). Pregnant applicants may be

9 eligible to receive aid during pregnancy for the month in which the birth is anticipated and for the

10 six-month period immediately prior. Cal. Welf. & Inst. Code § 11450(a)(1)(B).

11 After the term of aid to the first parent ends or the first parent otherwise loses eligibility,

12 then the second parent may receive CalWORKs benefits. MPP §§ 82-808.413(b); 82-808.5. Thus,

13 in situations where parents share equal custody of a child, and one parent was granted aid for

14 applying first, the second eligible parent can apply for and receive CalWORKs aid when the aid

15 to the first parent ends. Id. The second parent would then receive cash aid and any ancillary

16 CalWORKs benefits relevant to that parent’s employment or educational activities. Cal. Welf. &

17 Inst. Code § 11323.2.

18 B. Factual Allegations and Plaintiff’s Claims

19 Plaintiff applied for CalWORKs cash-aid on behalf of himself and his daughter in July of

20 2019 and was denied. (ECF 9 at 9, 26.) Plaintiff and the child’s mother share 50/50 custody of the

21 child and neither party was designated as having priority in applying for public assistance. (Id. at

22 8.) At the time of his application, Sacramento County determined plaintiff was ineligible for

23 CalWORKs aid because the child and her mother were already receiving aid. (Id. at 9.) Plaintiff

24 appealed the denial but was unsuccessful. (Id. at 9, 66-67.) The California Department of Social

25 Services adopted the proposed decision on February 3, 2020. (Id. at 66.)

26 Plaintiff filed the operative second amended complaint on August 13, 2021. (ECF No. 9.)

27 Plaintiff brings the following claims: (1) Violation of Equal Protection Clause under the

28 Fourteenth Amendment; (2) Violation of Due Process Clause under the Fourteenth Amendment;

1 (3) Violation of Title IX of the Educational Amendments of 1972; (4) Violations of the California

2 Constitution, Art. I, § 7 – Equal Protection and Due Process.

3 C. Defendants’ Motions to Dismiss

4 In separately filed motions, defendants move to dismiss the second amended complaint,

5 arguing the allegations fail to state a claim upon which relief can be granted and that they are

6 entitled to Eleventh Amendment immunity and qualified immunity. (ECF No. 16, 17.) Plaintiff

7 has opposed the motions and the moving defendants have filed replies. (ECF No. 30, 32, 34, 36.)

8 II. LEGAL STANDARD FOR A MOTION TO DISMISS

9 Dismissal under Rule 12(b)(6) may be warranted for “the lack of a cognizable legal theory

10 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica

11 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In evaluating whether a complaint states a claim

12 on which relief may be granted, the court accepts as true the allegations in the complaint and

13 construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding,

14 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In addition, a

15 pro se plaintiff’s pleadings are liberally construed. See Eldridge v. Block, 832 F.2d 1132, 1137

16 (9th Cir. 1987) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam).

17 In order to state a valid claim for relief, a plaintiff must allege “enough facts to state a

18 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

19 (2007). Such a claim has sufficient factual content to allow a reasonable inference that the

20 defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

21 “[R]ecitals of the elements of a cause of action, supported by mere conclusory statements, do not

22 suffice[.]” Id. at 676.

23 III. DISCUSSION

24 A. Due Process

25 1. Procedural Due Process

26 In order to state a procedural due process claim, a plaintiff must allege: (1) a deprivation

27 of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural

28 protections. Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003); see Bd. of Regents v. Roth,

1 408 U.S. 564, 569-70 (1972). Thus, the court first considers whether plaintiff has adequately

2 alleged a protected liberty or property interest and, if so, the extent or scope of that interest. See

3 Roth, 408 U.S. at 569-70.

4 Plaintiff alleges he has a constitutionally protected property interest in CalWORKs

5 benefits and the ancillary educational benefits provided for CalWORKs recipients. (ECF No. 9 at

6 31.) Defendants counter that plaintiff has no state-law property right to CalWORKs benefits

7 because he did not qualify for those benefits. (ECF No. 16-1 at 17; ECF No. 17-1 at 10.)

8 Defendants also assert neither the Supreme Court nor the Ninth Circuit have recognized a clear,

9 stand-alone property right to higher education. (Id.)

10 The court looks to state law to determine whether a plaintiff has a property interest

11 protected by procedural due process. Portman v. County of Santa Clara, 995 F.2d 898, 905 (9th

12 Cir. 1993). Recipients of public benefits have a protected property right in those benefits when a

13 statute authorizes the benefits and the “implementing regulations” “greatly restrict the discretion”

14 of the people who administer those benefits to the extent that a “legitimate claim of entitlement”

15 is created. Nozzi v. Hous. Auth. of City of Los Angeles, 806 F.3d 1178, 1190-91 (9th Cir. 2015),

16 as amended on denial of reh’g and reh’g en banc (Jan. 29, 2016) (quoting Griffeth v. Detrich, 603

17 F.2d 118, 121 (9th Cir. 1979)). If a recipient of government benefits has a strong interest in

18 maintaining benefits being received, then the benefits cannot be terminated without due process.

19 Goldberg v. Kelly, 397 U.S. 254, 264-69 (1970) (government could not terminate welfare

20 benefits without due process).

21 Here, plaintiff has never received the CalWORKs benefits at issue. This is not a situation

22 where he was receiving continuing CalWORKs benefits and the State attempted to terminate

23 them. Nor is it a situation where plaintiff has a legitimate claim of entitlement based on the

24 existing eligibility requirements. Rather, under plaintiff’s allegations, he cannot receive

25 CalWORKs benefits while the mother of his child is receiving them. On this basis, his initial

26 application was denied. No property interest is implicated under such circumstances. See Waugh

27 v. Conn. Student Loan Found., 966 F. Supp 141, 144 (D. Conn. 1997) (explaining the difference

28 between the denial of an initial application and termination of existing benefits in the procedural

1 due process context).

2 Plaintiff has no legitimate claim of entitlement to CalWORKs benefits under the

3 applicable California statutes and agency rules. Accordingly, he does not have a state-law

4 property interest protected by procedural due process.

5 2. Substantive Due Process

6 To state a substantive due process claim, a plaintiff must allege “a state actor deprived

7 [him] of a constitutionally protected life, liberty, or property interest” in such a way that ‘shocks

8 the conscience’ or ‘interferes with rights implicit in the concept of ordered liberty.’” Nunez v.

9 City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (quoting Rochin v. California, 342 U.S.

10 165, 172 (1952)). Substantive due process protects fundamental rights under the federal

11 constitution that are ‘deeply rooted in this Nation’s history and tradition.’” Franceschi v. Yee, 887

12 F.3d 927, 937 (9th Cir. 2018). These include marriage, procreation, contraception, family

13 relationships, child rearing, education and a person’s bodily integrity. Id.

14 Plaintiff alleges defendants have impaired his fundamental liberty interest to establish a

15 home and bring up his child. (ECF No. 9 at 17.) While child-rearing is a fundamental liberty

16 interest, plaintiff cannot show defendants have deprived him of this interest in a way that shocks

17 the conscience. “[A] legislature’s decision not to subsidize the exercise of a fundamental right

18 does not infringe the right.” Rust v. Sullivan, 500 U.S. 173, 193 (1991) (quoting Regan v.

19 Taxation with Representation of Washington, 461 U.S. 540, 549 (1997). “A refusal to fund

20 protected activity, without more, cannot be equated with the imposition of a ‘penalty’ on that

21 activity.” Rust, 500 U.S. at 549 (citing Harris v. McRae, 448 U.S. 297, 317 n.19 (1980).) Because

22 plaintiff fails to allege the state has deprived him of his right to exercise a fundamental liberty

23 interest, he cannot state a substantive due process claim based on the denial of CalWORKs

24 benefits.

25 B. Equal Protection

26 The Equal Protection Clause of the Fourteenth Amendment requires that similarly situated

27 people be treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

28 Equal protection requirements restrict state legislative action that is inconsistent with equality in

1 treatment. See Obergefell v. Hodges, 576 U.S. 644, 673-74 (2015). Unless the government targets

2 a suspect class or burdens the exercise of a fundamental right, neither of which is at issue here,

3 the challenged classification need only be rationally related to a legitimate government purpose.

4 United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174-76 (1980); Martin v. Sullivan, 976

5 F.2d 582, 584 (9th Cir. 1992).

6 Defendants’ arguments for dismissal assume that no heightened level of scrutiny applies.

7 (ECF No. 16-1 at 19-20; ECF No. 17-1 at 12-13.) Plaintiff, in contrast, argues for heightened

8 scrutiny and notes the Supreme Court has applied intermediate scrutiny to gender discrimination

9 claims. (See ECF No. 35 at 25-26.) Under intermediate scrutiny, if a legislative distinction is

10 based on a semi-suspect classification, such as gender, then a statute will be upheld if the

11 government can demonstrate the classification “substantially furthers an important government

12 interest.” Green v. City of Tucson, 340 F.3d 891, 896 (9th Cir. 2003).

13 In Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), the

14 Supreme Court established the analytical framework for assessing equal protection challenges to

15 classifications which are gender-neutral on their face but which have a disparate impact. “The

16 first question is whether the statutory classification is indeed neutral in the sense that it is not

17 gender-based. Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 548 (9th Cir. 2004) (citing Feeney,

18 442 U.S. 256, 274 (1979).) If the classification itself is not overtly or covertly based upon gender,

19 then the second question is whether the adverse effect reflects “invidious gender-based

20 discrimination.” Id. Invidious gender-based discrimination is reflected by the appearance of

21 purposeful discrimination. See Feeney, 442 U.S. at 274.

22 Here, the challenged classification is neutral in the sense that it is not gender-based. It

23 further does not reflect invidious gender-based discrimination because there is no plausible

24 suggestion of purposeful discrimination. See Feeney, 442 U.S. at 274 (noting that while impact

25 provides an “important starting point,” purposeful discrimination is “the condition that offends

26 the Constitution.”). Without proof of intentional invidious discrimination, courts will not

27 invalidate a law, neutral on its face and serving otherwise legitimate ends, that happens to have a

28 greater effect on one group than on another. See Washington v. Davis, 426 U.S. 229, 242 (1976).

1 Here, although plaintiff concludes there is purposeful discrimination, purposeful

2 discrimination is not plausibly inferred from the challenged statute. “[T]he purposes of the statute

3 provide the surest explanation for its impact.” Feeney, 442 U.S. at 275. The purpose of allowing

4 pregnant applicants to apply for aid is not to discriminate against men, but rather, to distribute

5 benefits to needy children and families. See Cal. Welf. & Inst. Code § 11450(a)(1)(B). The

6 applicable statute does not reflect invidious gender-based discrimination even if it results in

7 unequal impact on unwed mothers and fathers.

8 The CalWORKs scheme and the challenged classification itself is rationally related to a

9 legitimate government purpose. In the area of economics and social welfare, federal law gives

10 each state great latitude in dispensing available welfare funds. Martin, 976 F.2d at 585. A state

11 does not violate the Equal Protection Clause merely because the classifications made by its laws

12 are imperfect and result in inequalities. Dandridge v. Williams, 397 U.S. 471, 485 (1970). “[T]he

13 Constitution does not require identical treatment.” McQueary v. Blodgett, 924 F.2d 829, 835 (9th

14 Cir. 1991) (emphasis in original). A “mere demonstration of inequality” is not enough to state an

15 equal protection claim. Id.

16 It is true that plaintiff may not receive CalWORKs benefits while the mother of his child

17 is receiving them. However, it is enough that the state’s action be rationally based and free from

18 invidious discrimination. The CalWORKs scheme meets this test, as the allocation of public

19 funds is a legitimate state interest. See Dandridge, 397 U.S. at 487; see also McQueary, 924 F.2d

20 at 835 n.17 (noting the rational basis test “has rarely been utilized… to invalidate a state

21 provision, and normally gives great deference to the validity of the questioned provision”).

22 As previously noted, CalWORKs aid is limited, and is generally available to a caregiver

23 for a limited period of time, which is currently 48 months. Cal. Welf. & Inst. Code § 11454.

24 Plaintiff alleges the child’s mother began receiving CalWORKs benefits in 2018 when the child

25 was born, and has been receiving the benefits since that time. (ECF No. 9 at 5.) Because

26 CalWORKs benefits terminate at the expiration of the term of eligibility or if a recipient no

27 longer meets eligibility criteria, plaintiff will have the opportunity to receive CalWORKs benefits

28 when the child’s mother is no longer receiving them if he remains financially eligible. See MPP

1 §§ 82-808.413(b), 82-808.5.

2 The court does not determine that the CalWORKs scheme fulfills the relevant social and

3 economic objectives in the best way possible, or that a more just system toward unwed fathers

4 could not be devised. But the intractable economic, social, and even philosophical problems

5 presented by public welfare assistance programs are not the business of the courts. See

6 Dandridge, 397 U.S. at 487. Under the circumstances, there is no “invidiousness or illegitimacy in

7 the statutory scheme.” McQueary, 924 F.2d at 835. The indirect effect of allowing pregnant

8 women to apply for CalWORKs on a man’s ability to apply for that same aid does not violate

9 equal protection.

10 C. Title IX

11 Title IX prohibits discrimination on the basis of sex by educational institutions receiving

12 federal financial assistance. Other than specified exceptions, “[n]o person in the United States

13 shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be

14 subjected to discrimination under any education program or activity receiving Federal financial

15 assistance[.]” 20 U.S.C. § 1681(a) (2000). The definition of a “program or activity” under Title

16 IX is broad and encompasses all the operations of a “department, agency, special purpose district,

17 or other instrumentality of a State or of a local government[.]” 20 U.S.C. § 1687; see also 34

18 C.F.R. § 106.2(h). Title IX expressly confers an administrative means of enforcement, see id. §

19 1682, and impliedly confers a private right of action. See Cannon v. Univ. of Chicago, 441 U.S.

20 677, 717 (1979).

21 Because Title IX encompasses diverse forms of intentional sex discrimination with

22 differing pleading standards, see Jackson v. Birmingham Bd. of Education, 544 U.S. 167, 183

23 (2005), the question arises which standard to apply. Here, the alleged discrimination is not in the

24 context of a disciplinary proceeding, see Schwake v. Arizona Board of Regents, 967 F.3d 940,

25 946-47 (9th Cir. 2020), or retaliation, see Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183

26 (2005). The implementing regulations applicable to athletics likewise do not apply. See 34 C.F.R.

27 § 106.41.

28 ////

1 In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), cited and argued in

2 both of the defendants’ motions to dismiss (ECF No. 16-1 at 20-22; ECF No. 17-1 at 12-13), the

3 Supreme Court reiterated its holding in Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274

4 (1998) that a recipient of federal funds may be liable for damages under Title IX only if it itself

5 causes the constitutional violation at issue. Davis, 526 U.S. at 643. Addressing student on student

6 harassment claims, the Court concluded that if a funding recipient does not engage directly in the

7 harassment, then it may be held liable only if it “acts with deliberate indifference to known acts of

8 harassment in its programs or activities.” Id. at 633. At least one court has determined the

9 holdings of Gebser and Davis would apply to non-harassment Title IX claims. See Phillips v.

10 Anderson Cty. Bd. of Educ., No. 3:06-cv-35, 2006 WL 3759893, at *12 (E.D. Tenn. Dec. 19,

11 2006), aff’d, 259 F. App’x 842 (6th Cir. 2008).

12 Under the framework of Gebser and Davis, plaintiff’s Title IX claim fails because there is

13 no plausible inference of deliberate indifference. Plaintiff alleges CalWORKs provides education

14 programs through California’s community colleges, which offer targeted programs for students

15 receiving CalWORKs benefits. Plaintiff alleges the discriminatory eligibility requirements of the

16 CalWORKs program results in single mothers receiving more educational resources than single

17 fathers. To illustrate disparity between male and female parents participating in CalWORKs

18 community college programs, plaintiff provides the CalWORKs Status Summary Report for the

19 2020 academic year. Plaintiff further alleges the challenged educational policies discriminate by

20 allowing an unmarried parent receiving CalWORKs benefits to include the child in the Free

21 Application for Federal Student Aid (“FAFSA”) application every year, while an unmarried

22 parent with equal and joint custody who is not receiving CalWORKs benefits can only include the

23 same child for the year(s) with a qualifying child base on IRS regulations.

24 Assuming defendants are aware of these facts, no deliberate indifference is shown. The

25 deliberate indifference standard has considerable bite: it demands that a funding recipient be

26 shown to have had actual knowledge of the alleged discrimination. See Davis, 526 U.S. at 642.

27 Although plaintiff here alleges purposeful discrimination, this is an unwarranted conclusion not

28 established by the facts. See Twombly, 550 U.S. at 555 (labels and conclusions do not suffice to

1 state a claim). As noted earlier, the purpose of allowing pregnant applicants to apply for aid is not

2 to discriminate against men, but rather, to distribute benefits to needy children and families. See

3 Cal. Welf. & Inst. Code § 11450(a)(1)(B). Under the circumstances, there is no plausible

4 inference of any defendant’s deliberate indifference to known discrimination.

5 Moreover, the allegations do not plausibly allege unequal treatment “on the basis of sex.”

6 20 U.S.C. § 1681(a). Plaintiff is not denied participation in the CalWORKs community college

7 programs on the basis of his sex; rather, he is denied participation at this time because he does not

8 meet the eligibility requirements which, as set forth above, are gender-neutral. Though plaintiff

9 alleges a disparity in the numbers of male and female parents participating in CalWORKs

10 community college programs, this does not show a disparity in treatment. There is no allegation

11 that male participants in CalWORKs community college programs are treated differently than

12 female participants. Under these circumstances, plaintiff fails to state a cognizable Title IX claim.

13 D. State-Law Claims

14 If it is determined that plaintiff sufficiently alleged a federal claim, then the court will

15 consider exercising supplemental jurisdiction over plaintiff’s state law due process and equal

16 protection claims. However, because it is being recommended that all federal claims be

17 dismissed, the undersigned will recommend the court decline to exercise supplemental

18 jurisdiction over the state-law claims.

19 E. Leave to Amend

20 The undersigned has carefully considered whether leave to amend should be granted.

21 While leave to amend should be “freely given when justice so requires,” Fed. R. Civ. P. 15(a),

22 here the deficiencies in the claims cannot be cured by the allegation of additional facts.

23 Accordingly, leave to amend would be futile. See Lucas v. Dep’t of Corrs., 66 F.3d 245, 248 (9th

24 Cir. 1995).

25 IV. CONCLUSION

26 In accordance with the above, IT IS RECOMMENDED:

27 1. The motion to dismiss by defendants Oakley, Ghaly and Johnson (ECF No. 16) be

28 granted;

] 2. The motion to dismiss by defendants Edwards and Dye (ECF No. 17) be granted;

2 3. Plaintiff's second amended complaint be dismissed without leave to amend; and

3 4. The Clerk of the Court be directed to close this case.

4 These findings and recommendations are submitted to the United States District Judge

5 || assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after

6 || being served with these findings and recommendations, any party may file written objections with

7 || the court and serve a copy on all parties. Such a document should be captioned “Objections to

8 | Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served

9 || onall parties and filed with the court within 14 days after service of the objections. Failure to file

10 || objections within the specified time may waive the right to appeal the district court’s order.

11 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57

12 | (9th Cir. 1991).

13 | Dated: January 14, 2022 / ae □□ / a Ly a

4 CAROLYN K DELANEY

15 UNITED STATES MAGISTRATE JUDGE

16 |] 8.Reedy.21cv223.mtd

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