(PC) Barrett v. Ciolli

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 ANTHONY BARRETT, Case No. 1:20-cv-01802-JLT-EPG (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

RECOMMENDING THAT DEFENDANTS’

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v. MOTION TO DISMISS BE GRANTED

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A. CIOLLI et al., (ECF No. 68).

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Defendants.

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Anthony Barrett (“Plaintiff”) is a federal prisoner proceeding pro se and in forma pauperis

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in this civil rights action filed pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403

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U.S. 388 (1971). This case proceeds on Plaintiff’s Fifth Amendment deprivation of property

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claims against Defendants Ciolli, Scott, Rodriguez, Cobb, and Doe Defendants 1 through 5 and

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on Plaintiff’s Eighth Amendment conditions of confinement claims against Defendant Leger and

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Doe Defendants 6 through 10.1 Plaintiff’s claims arise from a lockdown of Plaintiff’s prison unit

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in March 2020. Plaintiff generally alleges that his personal property was confiscated without due

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process, and that Plaintiff was deprived of personal hygiene supplies, exercise, and nutritional

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1 All other claims and defendants identified in Plaintiff’s third amended complaint (ECF No. 39) have

27 been dismissed. (ECF No. 35, p. 3-4 (order adopting findings and recommendations regarding Plaintiff’s

third amended complaint); ECF No. 65, p. 3 (order adopting recommendation that Defendants’ pre-answer

28 motion for summary judgment based on Plaintiff’s failure to exhaust be partially denied)).

1 food during the lockdown. All other claims and defendants identified in Plaintiff’s third amended

2 complaint have been dismissed.

3 Before the Court is Defendant’s Ciolli, Scott, Rodriguez, Cobb, and Leger’s motion to

4 dismiss Plaintiff’s remaining claims against the named defendants. (ECF No. 68). For the reasons

that follow, and in light of Egbert v. Boule, 142 S. Ct. 1793 (2022), the Court will recommend

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that Defendants’ motion to dismiss be granted because Plaintiff’s claims arise in a new context

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and there is at least one special factor indicating that the Judiciary is less equipped than Congress

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to weigh the costs and benefits of allowing a damages action to proceed. For those same reasons,

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the Court will also recommend that Plaintiff’s claims against Doe Defendants 1 through 10 be

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dismissed.

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I. RELEVANT PROCEDURAL HISTORY

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The operative complaint in this case is Plaintiff’s third amended complaint. (See ECF Nos.

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24, 35, 39). After the Court screened Plaintiff’s third amended complaint, Defendants filed a pre-

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answer motion for summary judgment, arguing that Plaintiff failed to exhaust his administrative

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remedies. (ECF No. 56). The Court recommended that Defendants’ motion be granted in part.

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(ECF No. 64). Specifically, the Court recommended that summary adjudication be denied as to

16 Plaintiff’s claims for deprivation of property without due process against Defendants Ciolli, Scott,

17 Rodriguez, Cobb, and Doe Defendants 1 through 5, as well as Plaintiff’s unconstitutional

18 conditions of confinement claims against Defendant Leger and Doe Defendants 6 through 10. (Id.

19 at p. 15-16). Further, the Court recommended that all other claims and defendants be dismissed,

20 without prejudice, for failure to exhaust. (Id.) On October 28, 2022, District Judge Jennifer L.

21 Thurston issued an order adopting the Court’s finding and recommendations. (ECF No. 65).

22 II. CLAIMS AT ISSUE

23 Plaintiff’s TAC alleges in relevant part as follows:

A. Deprivation of Property Allegations

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On March 9, 2020, Defendants Ciolli, Scott, and Rodriguez took Plaintiff’s personal

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property. Plaintiff’s personal property was seized while prison staff were conducting an inventory

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of property during a lockdown of Unit 2A. Most of the seized property was perishable food,

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personal hygiene, a solar powered radio, and other personal property. All items were purchased

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1 from the prison commissary and safely stored in the furnished locker provided by the Federal

2 Bureau of Prisons.

3 On March 8, 2020, Defendant Ciolli sent out a memo stating that all personal property

4 must be placed in a green duffle bag. This memo changed the current policies set by the Federal

Bureau of Prisons inmate program statement. According to Defendant Ciolli’s memo and changed

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policy, inmates were told not to take any personal property with them when exiting the cell,

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including any personal clothing, watches, wallets, mailing stamps, shoes, radios, mp3 players, etc.

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Inmates had to exit their cells dressed in a white t-shirt, khaki pants, one pair of boxers, and

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shower shoes. Defendants Ciolli, Scott, and Rodriguez failed to document the inmates’ personal

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property correctly and they did not document what was taken, which is a violation according to

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their policies. Defendant Rodriguez forced Plaintiff to sign incomplete property forms under

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threat and duress.

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Plaintiff asked for the return of his personal property from Defendant Cobb, the lieutenant

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over property. Plaintiff never received a response from Defendant Cobb. Plaintiff also sent

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various claims to the Federal Bureau of Prisons Regional and Central Offices and those claims

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were denied. As a prisoner, Plaintiff has a protected right and interest in his personal property and

16 Plaintiff’s property was taken deliberately to punish him for the acts of others. This was clearly an

17 unfair practice by the Federal Bureau of Prisons staff and officials. Plaintiff has sent to the courts

18 the policy for search and seizure according to the Federal Bureau of Prisons program statement.

19 Based on the Federal Bureau of Prisons program statement, it is clear that Defendant Ciolli

20 changed the policy to fit his agenda.

21 The green duffle bag measurement was 16” in depth and 42” in length and totaled

22 approximately 6.2 feet in square measurement. This green duffle bag was only used to take

23 Plaintiff’s personal property. Defendants Ciolli, Scott, Rodriguez, and prison staff knew that the

green duffle bag was smaller than the inmates’ assigned lockers. The assigned lockers were in

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each inmate’s cell and were the same size in each cell, measuring approximately 24” in width,

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18” in depth, and 40” in height, equaling approximately 10.8 feet in square measurement. Each

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officer and prison official participated in an unlawful confiscation of Plaintiff’s personal property

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and violated Plaintiff’s constitutional rights and Plaintiff is holding them each accountable

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1 personally. They had no reason whatsoever to confiscate Plaintiff’s personal property.

2 Inmates store their personal property in the assigned lockers and not in a green duffle bag.

3 The green duffle bag was only used for this particular occasion in order to take inmates’ personal

4 property. Plaintiff did not have any choice but to comply with the orders given to him and he was

not provided an opportunity to store his personal property or send it home on his behalf.

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Defendants Ciolli, Scott, and Rodriguez deprived Plaintiff of his personal property and liberty

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without due process. Defendant Ciolli had Plaintiff living in unconstitutional conditions of

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confinement.

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Upon returning to his unit, Plaintiff witnessed some of his personal property in the

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officers’ station. Plaintiff asked one of the officers working the unit to return his personal

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property and the officer stated that the property was a perk of the job. On the day of this search,

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there were many different officers and prison officials, and it was almost impossible to get names.

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Defendant Rodriguez, the Superintendent of Education, had Plaintiff sign an incomplete property

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form and was also part of the search team that took personal property.

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The search was only conducted to take inmates’ personal property and was not done

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according to policy. Plaintiff’s personal property was taken by Defendants Ciolli, Scott, and

16 Rodriguez under the guise of a search. Prison staff and officials should not be allowed to abuse

17 their authority and by doing so they take away the rights of the people they serve. Plaintiff’s

18 family provides him with financial support to purchase things he needs. For prison staff and

19 officials to take Plaintiff’s personal property because they are in a position of authority is unfair

20 to Plaintiff and his family. The United States and its staff have abused their authority and

21 deprived Plaintiff of his constitutional rights and Plaintiff has a right to be compensated for his

22 property loss. The only way Plaintiff can get justice for the deprivation is through the court. The

23 United States Federal Bureau of Prisons and its staff change the rules at their convenience to

benefit the prison staff and officials because they can and they make the rules. Plaintiff has

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provided the court with exhibits in support of his deprivation of property claim and proof that

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Defendants Ciolli implemented an unconstitutional policy that resulted in constitutional injury.

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Defendant Cobb is the “property personal” and he conspired with Defendants Ciolli, Scott, and

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Rodriguez to withhold Plaintiff’s property from him.

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1 B. Conditions of Confinement Allegations

2 Prison staff and officials failed to provide inmates with basic necessities, such as

3 toothpaste, toothbrush, toilet paper, and soap for a full week. The United States is not a third

4 world country. This treatment Plaintiff received caused tension between Plaintiff and his

cellmate. The United States Federal Bureau of Prisons and its officials had two men existing in a

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confined space and living in inhumane conditions for one week. Prison staff knew that they were

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abusing their authority, but it’s punishment and they are prisoners, so who cares what happens to

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them. The lack of sanitation was severe and prolonged.

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Plaintiff received no nutritionally adequate food for one full week and he received the

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same meal for breakfast, lunch, and dinner. The food was totally unhealthy for Plaintiff due to the

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fact that Plaintiff suffers from hypertension, diabetes, chronic kidney disease, anxiety, and PTSD.

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The lack of exercise caused Plaintiff great stress and he was treated inhumanely. Plaintiff believes

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this treatment caused his hypertension and diabetes.

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Defendant Leger denied Plaintiff adequate nutritional food. This food was totally

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unhealthy for Plaintiff due to the fact that he suffers from hypertension, diabetes, chronic kidney

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disease, anxiety, and PTSD. Defendant Leger did not follow the national menu for the entire

16 week, and he implemented his own policies and menu.

17 As relief, Plaintiff seeks injunctive relief and 1.5 million dollars in compensatory

18 damages.

19 III. MOTION TO DISMISS

20 On November 11, 2022, Defendants filed a motion to dismiss Plaintiff’s remaining claims

21 on two grounds: 1) the Court should decline to recognize Plaintiff’s Bivens claims in light of the

22 standards set forth by Egbert v. Boule; and 2) the Defendants are entitled to qualified immunity.2

23 (ECF No. 68-1, p. 9). Defendants primarily contend that the Court should decline to recognize

Plaintiff’s claims under Bivens because Plaintiff’s due process and conditions of confinement

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claims present new contexts that are different from the three Bivens cases previously recognized

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2 Defendants also argue that “because [Plaintiff] has adequate post-deprivation remedies, he cannot state a

27 Fifth Amendment claim for lack of due process.” However, because the Court recommends that

Defendants’ motion to dismiss be granted pursuant to Egbert v. Boule, the Court will not address

28 Defendants’ other arguments.

1 by the Supreme Court. (Id. at p. 15). Further, numerous special factors—including that Congress

2 has provided numerous alternatives to Bivens litigation that allow a remedy for Plaintiff’s claim,

3 has not created a stand-alone damages remedy for federal prisoners, and has exclusively

4 delegated the administration of federal prisons to the Bureau of Prisons—counsel against creating

an individual damages remedy for Plaintiff’s claims. (Id. at p. 16-21).

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Plaintiff filed his opposition on February 6, 2023. (ECF No. 71). Plaintiff argues that

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Defendants seek dismissal by “stating case law that does not pertain to [Plaintiff’s] claims.” (Id.

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at p. 1). However, Plaintiff’s opposition does not identify any reasons why the cases cited by

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Defendants are not applicable to Plaintiff’s claim nor does Plaintiff provide any argument

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regarding the viability of his Bivens claims post-Egbert.

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Defendants’ reply notes that Plaintiff’s opposition “merely asserts that [Plaintiff’s]

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constitutional rights were violated.” (ECF No. 73, p. 1).

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IV. MOTION TO DISMISS LEGAL STANDARDS

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In considering a motion to dismiss, the Court must accept all allegations of material fact in

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the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Hosp. Bldg. Co. v. Rex

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Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts in the

16 light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on

17 other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni, 31 F.3d 813,

18 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff’s

19 favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro se pleadings “must be

20 held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627

21 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally

22 construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

23 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the

complaint. See Iqbal, 556 U.S. at 679. “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a

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short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to

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‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.’” Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately prevail but

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1 whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 416 U.S. at 236

2 (1974).

3 V. DISCUSSION

4 In Egbert v. Boule, 142 S. Ct. 1793, the United States Supreme Court explained the

following steps for evaluating a constitutional claim for damages against a federal official:

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To inform a court’s analysis of a proposed Bivens claim, [The Supreme Court’s]

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cases have framed the inquiry as proceeding in two steps. First, we ask whether the

7 case presents a new Bivens context—i.e., is it meaningful[ly] different from the

three cases in which the [Supreme] Court has implied a damages action. Second, if

8 a claim arises in a new context, a Bivens remedy is unavailable if there are special

factors indicating that the Judiciary is at least arguably less equipped than

9 Congress to weigh the costs and benefits of allowing a damages action to proceed.

If there is even a single reason to pause before applying Bivens in a new context, a

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court may not recognize a Bivens remedy.

11 Egbert, 142 S. Ct. at 1803 (alteration in original) (citations and internal quotation marks omitted).

12 These steps “often resolve to a single question: whether there is any reason to think that Congress

13 might be better equipped to create a damages remedy.” (Id.) (internal quotation marks omitted).

14 Here, Plaintiff’s claims are all federal constitutional claims against federal officials.

15 Although Plaintiff seeks prospective relief in addition to damages, Plaintiff’s claims do not allege

16 continuing violations that would make such injunctive relief appropriate. Thus, the issue before

17 the Court is thus whether Plaintiff’s claims involve a new context, and if so, whether there are

18 special factors indicating that the Judiciary is at least arguably less equipped than Congress to

weigh the costs and benefits of allowing a damages action to proceed. For the reasons that follow,

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the Court finds that Plaintiff’s claims involve a new context and that there is at least one special

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factor indicating that the Judiciary is at least arguably less equipped than Congress to weigh the

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costs and benefits of allowing damages actions to proceed.

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Accordingly, the Court will recommend that Defendants’ motion to dismiss be granted.

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a. New Context

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i. Legal Standards

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A case presents a new context if it “is different in a meaningful way from previous Bivens

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cases decided by [the Supreme] Court.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1859 (2017). The

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Supreme Court has declined “to create an exhaustive list of differences that are meaningful

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1 enough to make a given context a new one,” id. at 1859-60, but provided the following instructive

2 examples:

3 A case might differ in a meaningful way because of the rank of the officers

involved; the constitutional right at issue; the generality or specificity of the

4 official action; the extent of judicial guidance as to how an officer should respond

to the problem or emergency to be confronted; the statutory or other legal mandate

5 under which the officer was operating; the risk of disruptive intrusion by the

Judiciary into the functioning of other branches; or the presence of potential

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special factors that previous Bivens cases did not consider.

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Abbasi, 137 S. Ct. at 1860.

8 As to the three cases that the Supreme Court has allowed to proceed under Bivens, the

9 Supreme Court has summarized those three cases:

10 In Bivens v. Six Unknown Fed. Narcotics Agents, the Court broke new ground by

holding that a person claiming to be the victim of an unlawful arrest and search

11 could bring a Fourth Amendment claim for damages against the responsible agents

even though no federal statute authorized such a claim. The Court subsequently

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extended Bivens to cover two additional constitutional claims: in Davis v.

13 Passman, a former congressional staffer’s Fifth Amendment claim of dismissal

based on sex, and in Carlson v. Green, a federal prisoner’s Eighth Amendment

14 claim for failure to provide adequate medical treatment.

15 Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020) (citations shortened).

16 ii. Analysis

17 This case is proceeding on Plaintiff’s Fifth Amendment deprivation of property claim

against prison officials and on Plaintiff’s Eighth Amendment conditions of confinement claim

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against prison officials. Plaintiff’s claims are based on allegations that prison officials wrongfully

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confiscated his person property and deprived Plaintiff of personal hygiene items, exercise, and

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adequately nutritious food during a one-week lockdown of Plaintiff’s prison unit.

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As discussed below, there are meaningful differences between the claims at issue and

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previously recognized Bivens claims, and because of those differences, Plaintiff’s claims arise in

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a new context.

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The Court will first address Plaintiff’s Fifth Amendment claim. The Supreme Court has

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recognized a Bivens remedy for gender-based employment discrimination under Fifth

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Amendment due process. See Davis v. Passman, 99 S. Ct. 2264 (1979). Here, Plaintiff’s Fifth

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Amendment claim for deprivation of property alleges that prison officials confiscated Plaintiff’s

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1 personal property without providing due process. Accordingly, Plaintiff’s Fifth Amendment claim

2 presents a new context from the prior Bivens cases. See Hernandez v. Mesa, 140 S. Ct. 735, 743

3 (2020) (“A claim may arise in a new context even if it is based on the same constitutional

4 provision as a claim in a case in which a damages remedy was previously recognized.”); Schwarz

v. Meinberg, 761 Fed.Appx. 732, 734-75 (9th Cir. Feb. 13, 2019) (“[W]hile Davis recognized a

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Fifth Amendment due process claim for gender discrimination, [plaintiff’s] due process claim is a

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new context because it alleges national origin discrimination.”); see also Jackson v. McNeil, 2023

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WL 3092302, at *1 (9th Cir. Apr. 26, 2023) (“[Plaintiff] claims that he was deprived of property

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without adequate pre-deprivation notice, an argument he concedes presents a new Bivens

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context.”).

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Plaintiff’s Eighth Amendment claim also involves a new context. The Supreme Court has

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allowed Eighth Amendment claims brought by federal prisoners to proceed under Bivens. See

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Carlson v. Green, 100 S. Ct. 1468 (1980). However, Carlson involved a survivorship claim based

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on prison official’s failure to provide adequate medical attention, resulting in the decedent’s

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death. Id. Here, Plaintiff’s Eighth Amendment conditions of confinement claim is based on prison

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official’s failure to provide Plaintiff personal hygiene items, exercise, and adequately nutritious

16 food during a one-week lockdown.3 Although Plaintiff’s Eighth Amendment claims have some

17 parallels to a claim in Bivens, they arise in a new context. Abbasi, 137 S. Ct. at 1865 (“The

18 differences between this claim and the one in Carlson are perhaps small, at least in practical

19 terms. Given [the Supreme] Court’s expressed caution about extending the Bivens remedy,

20 however, the new-context inquiry is easily satisfied.”); See Schwarz, 761 F. App’x at 734

21 (“[Plaintiff’s] Eighth Amendment claim regarding unsanitary cell conditions presents a new

22 Bivens context because [plaintiff] does not allege a failure to treat a serious medical condition,

23 which was the issue in Carlson.”) (internal citations omitted).

Therefore, based on the foregoing, the Court finds that Plaintiff’s claims arise in a new

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context.

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3 To the extent that Plaintiff’s TAC alleges that a failure to provide these necessities constituted a failure to

27 provide adequate medical attention, Plaintiff’s Eighth Amendment deliberate indifference to a serious

medical need claims have been dismissed, without prejudice, based on Plaintiff’s failure to exhaust his

28 administrative remedies. (See ECF No. 65).

1 b. Special Factors Analysis

2 i. Legal Standards

3 Once the Court finds that claims arise in a new context, the Court must apply a “special

4 factors” analysis to determine whether “special factors counsel hesitation” in expanding Bivens to

the action. Abbasi, 137 S. Ct. at 1857, 1875. In this analysis, the Court looks to “whether there is

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any rational reason (even one) to think that Congress is better suited to weigh the costs and

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benefits of allowing a damages action to proceed.” Egbert, 142 S. Ct. at 1805 (citation and

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internal quotation marks omitted).4 “[I]n most every case” the Court should defer to Congress and

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find that “no Bivens action may lie.” Id. at 1803.

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“If there are alternative remedial structures in place, that alone, like any special factor, is

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reason enough to limit the power of the Judiciary to infer a new Bivens cause of action.” Id. at

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1804 (citations and internal quotation marks omitted).

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ii. Analysis

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The Court finds that there is at least one special factor indicating that the Judiciary is at

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least arguably less equipped than Congress to weigh the costs and benefits of allowing damages

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actions to proceed.

16 Here, the Bureau of Prisons’ administrative remedy program provides an alternative

17 remedial structure to address Plaintiff’s claims regarding his confiscated property and lockdown

18 conditions. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74, (2001) (“Inmates in respondent’s

19 position also have full access to remedial mechanisms established by the BOP, including …

20 grievances filed through the BOP’s Administrative Remedy Program (ARP). See 28 CFR §

21 542.10 (2001) (explaining ARP as providing ‘a process through which inmates may seek formal

22 review of an issue which relates to any aspect of their confinement’)”); Egbert, 142 S. Ct. at 1806

23 (“In Malesko, we explained that Bivens relief was unavailable because federal prisoners could,

among other options, file grievances through an Administrative Remedy Program.”) (internal

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quotation marks omitted); Hoffman v. Preston, 2022 WL 6685254, at *1 (9th Cir. Oct. 11, 2022)

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(“Hoffman’s complaint alleges that a prison correctional officer intentionally created the risk that

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27 4 The Court notes that Egbert changed the relevant inquiry. Mejia v. Miller, 53 F.4th 501, 505 (9th Cir.

2022) (“The question is no longer whether the Judiciary is well suited, but whether Congress is better

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1 another prisoner would assault Hoffman by publicly labeling him as a snitch and offering

2 prisoners rewards. The Supreme Court’s decision in Egbert v. Boule precludes recognizing a

3 Bivens remedy for these allegations. Congress has not authorized a damages remedy in this

4 context, and there are ‘rational reason[s],’ Egbert, 142 S. Ct. at 1803, why it might not, for

example, the existence of the Bureau of Prisons’ formal review process for inmate complaints.”)

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(alteration in original).

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Even if the Bureau of Prisons’ administrative remedy program did not provide Plaintiff

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with complete relief, the question before the Court is not whether existing remedies provide

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complete relief. Egbert, 142 S. Ct. 1793, 1804. “Rather, the court must ask only whether it, rather

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than the political branches, is better equipped to decide whether existing remedies should be

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augmented by the creation of a new judicial remedy.” Id. (citations and internal quotation marks

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omitted). And, as discussed above, the existence of these alternative remedial structures is a

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rational reason why Congress has not authorized a damages remedy for Plaintiff’s claims.

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Accordingly, there is at least one special factor indicating that the Judiciary is at least

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arguably less equipped than Congress to weigh the costs and benefits of allowing damages

15 actions to proceed.

16 As Plaintiff’s claims arise in a new context and there is at least one special factor

17 indicating that the Judiciary is at least arguably less equipped than Congress to weigh the costs

18 and benefits of allowing Bivens damages actions to proceed, the Court will recommend that

19 Defendants’ motion to dismiss be granted and that this case be dismissed.5

20 c. Leave to Amend

21 The Court will not recommend that further leave to amend be granted. Plaintiff has

22 already been granted leave to amend several times. Moreover, there is no indication that any

23 amendment could cure the legal issue identified in this order, and so granting Plaintiff leave to

amend would be futile.

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VI. RECOMMENDATIONS

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Based on the foregoing, IT IS HEREBY RECOMMENDED that:

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5 Accordingly, and for the same reasons, the Court will also recommend that Plaintiff’s claims against Doe

28 Defendants 1 through 10 be dismissed.

1 1. Defendants’ motion to dismiss (ECF No. 68) be GRANTED because Plaintiff's

2 claims arise in a new context and there is at least one special factor indicating that

3 the Judiciary is at least arguably less equipped than Congress to weigh the costs

4 and benefits of allowing Bivens damages actions to proceed; and

5 2. Plaintiffs Fifth Amendment deprivations of property claims against Doe

6 Defendants 1-5 be dismissed and Plaintiff's Eighth Amendment conditions of

7 confinement claims against Doe Defendants 6-10 be dismissed;

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

9 These findings and recommendations are submitted to the United States district judge

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one

8 (21) days after being served with these findings and recommendations, any party may file written

objections with the court. Such a document should be captioned “Objections to Magistrate

2 Judge’s Findings and Recommendations.” Any response to the objections shall be served and

13 filed within fourteen (14) days after service of the objections. The parties are advised that failure

to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson

IS | y, Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

16 | (oth Cir. 1991)).

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1g | IIS SO ORDERED.

19 | Dated: _May 19, 2023 [sf hey

20 UNITED STATES MAGISTRATE JUDGE

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