1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTWONE STOKES, No. 2:24-cv-2413 CSK P 12 Plaintiff, 13 v. ORDER AND 14 SGT. COSTELLO, FINDINGS & RECOMMENDATIONS 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se. This civil rights action brought under 18

proceeds on plaintiff’s claim that on August 13, 2024, defendant Sgt. Costello 19 used excessive force in violation of the Eighth Amendment. (ECF No. 10 at 1.) Defendant’s 20 fully briefed motion for summary judgment on exhaustion grounds is before the Court. 21 As set forth below, it is recommended that the motion for summary judgment be granted, 22 and this action be dismissed without prejudice. 23 I. BACKGROUND 24 On August 20, 2025, defendant Sgt. Costello filed a motion for summary judgment on the 25 grounds that plaintiff failed to exhaust his administrative remedies prior to bringing the instant 26 action. (ECF No. 25.) On September 11, 2025, plaintiff was granted a thirty day extension of 27 time to file an opposition to the motion for summary judgment within thirty days. (ECF No. 27.) 28 Plaintiff did not file an opposition by October 11, 2025. On October 20, 2025, the Court ordered 1 plaintiff to file an opposition within twenty-one days. (ECF No. 30.) However, defense counsel 2 received an opposition from plaintiff on October 20, 2025, which the Court filed on behalf of 3 plaintiff. (ECF No. 31.) On October 30, 2025, plaintiff filed an opposition with the Court. (ECF 4 No. 32.) On November 3, 2025, defendant filed a reply to both oppositions. (ECF No. 33.) 5 II. DEFENDANT’S SUMMARY JUDGMENT MOTION 6 A. Legal Standards for Summary Judgment 7 Summary judgment is appropriate when it is demonstrated that the standard set forth in 8 Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the 9 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 10 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 11 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis 12 for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, 13 together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 14 15 Celotex Corp. v. Catrett,

(1986) (quoting then-numbered Fed. R. Civ. P. 16 56(c).) “Where the nonmoving party bears the burden of proof at trial, the moving party need 17 only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing 18 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.),

, 19 387 (9th Cir. 2010) (citing Celotex Corp.,

); see also Fed. R. Civ. P. 56 advisory 20 committee notes to 2010 amendments (recognizing that “a party who does not have the trial 21 burden of production may rely on a showing that a party who does have the trial burden cannot 22 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment 23 should be entered, after adequate time for discovery and upon motion, against a party who fails to 24 make a showing sufficient to establish the existence of an element essential to that party’s case, 25 and on which that party will bear the burden of proof at trial. Celotex Corp.,

. 26 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case 27 necessarily renders all other facts immaterial.”

. 28 /// 1 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 2 the opposing party to establish that a genuine issue as to any material fact actually exists. See 3 Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986). In attempting to 4 establish the existence of such a factual dispute, the opposing party may not rely upon the 5 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 6 form of affidavits, and/or admissible discovery material in support of its contention that such a 7 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita,

n.11. The opposing party 8 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 9 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc.,

, 248 10 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n,

(9th Cir. 11 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 12 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc.,

, 1436 13 (9th Cir. 1987), overruled on other grounds as stated in Flood v. Miller,

, 703 n.3 14 (9th Cir. 2002). 15 In the endeavor to establish the existence of a factual dispute, the opposing party need not 16 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 17 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 18 trial.” T.W. Elec. Serv.,

. Thus, the “purpose of summary judgment is to ‘pierce 19 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 20 Matsushita,

(quoting Fed. R. Civ. P. 56(e) advisory committee’s notes to 1963 21 amendments). 22 In resolving a summary judgment motion, the court examines the pleadings, depositions, 23 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 24 Civ. P. 56(c). A verified complaint may be considered as evidence at the summary judgment 25 stage “if it is based on personal knowledge and if it sets forth the requisite facts with specificity.” 26 Lopez v. Smith,

, 1132 n.14 (9th Cir. 2000) (en banc). The evidence of the 27 opposing party is to be believed. See Anderson,

. All reasonable inferences that 28 may be drawn from the facts placed before the court must be drawn in favor of the opposing 1 party. See Matsushita,

. Nevertheless, inferences are not drawn out of the air, and 2 it is the opposing party’s obligation to produce a factual predicate from which the inference may 3 be drawn. See Richards v. Nielsen Freight Lines,

(E.D. Cal. 1985), 4 aff’d,

, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 5 party “must do more than simply show that there is some metaphysical doubt as to the material 6 facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 7 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita,

(citation 8 omitted). 9 By notice filed on August 20, 2025, plaintiff was advised of the requirements for opposing 10 a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 25-1 11 (citing Woods v. Carey,

(9th Cir. 2012); Rand v. Rowland,

(9th 12 Cir. 1998) (en banc)).). 13 B. Facts1 14 1. During all relevant times, plaintiff was an inmate in the custody of the California 15 Department of Corrections and Rehabilitation (“CDCR”); at the time of the incident at issue, 16 plaintiff was housed at California State Prison, Sacramento (“SAC”). (ECF No. 1; Pl.’s Dep. at 17 10-11.) 18 2. Defendant Costello was a sergeant at SAC on August 13, 2024, the date of the incident 19 at issue herein. (ECF No. 1.) 20 3. Plaintiff filed his original § 1983 complaint on September 5, 2024. (ECF No. 1 at 1.) 21 The complaint was not accompanied by a proof of service, but the complaint was signed by 22 plaintiff on August 31, 2024. (Id. at 6.) 23 4. On August 14, 2024, plaintiff timely submitted Grievance Log No. SAC 610141, 24 which complained that defendant Sgt. Costello placed plaintiff in handcuffs that were too tight on 25 August 13, 2024. (ECF No. 25-3 at 9-12.) The Institutional Office of Grievances (“OOG”) 26

27 1 The Court finds these facts undisputed for purposes of summary judgment, unless otherwise noted. 28 1 mailed plaintiff a “Grievance Receipt Acknowledgment,” dated August 16, 2024, noting the 2 grievance was received and assigned for review and response, and that the review would be 3 completed no later than October 16, 2024. (ECF No. 25-3 at 3, 13.) Plaintiff admits the August 4 16, 2024 grievance receipt was received on August 26, 2024. (ECF Nos. 31 at 3; 32 at 2.) 5 5. Defendant provided a copy of the OOG’s decision denying the grievance, dated 6 October 5, 2024, within the 60 day time frame under Title 15 § 3483(g). (ECF No. 25-3 at 3, 14- 7 18.) The OOG’s response stated, “If you are dissatisfied with the decision of this claim, you may 8 appeal this decision by mailing a CDCR Form 602-2 to the Office of Appeals.” (Id. at 17.) 9 Plaintiff contends the denial was received on August 26, 2024. (ECF Nos. 31 at 3, 32 at 2.) 10 6. Between August 13, 2024 (the date of the incident) and September 1, 2024 the date the 11 complaint was filed), the Office of Appeals (“OOA”) records reflect no appeals by plaintiff 12 alleging that Sgt. Costello used excessive force against plaintiff on August 13, 2024. (ECF No. 13 25-3 at 3, 5-6.) Plaintiff claims the denied grievance, Grievance Log No. SAC 610141, was 14 mailed to the OOA on August 29, 2024, citing issues with institutional mail. (ECF Nos. 31 at 3, 15 32 at 2.) 16 C. Exhaustion Standards 17 It is well established that the Prison Litigation Reform Act (“PLRA”) requires that a 18 prisoner exhaust available administrative remedies before bringing a federal civil rights action. 19 See 42 U.S.C. § 1997e(a); Ross v. Blake,

(2016); Jones v. Bock,

(2007) (“There is no question that exhaustion is mandatory under the PLRA and that 21 unexhausted claims cannot be brought in court.”). “[T]he PLRA’s exhaustion requirement 22 applies to all inmate suits about prison life, whether they involve general circumstances or 23 particular episodes, and whether they allege excessive force or some other wrong.” Bennett v. 24 King,

(9th Cir. 2002) (internal quotation marks omitted) (citing Porter v. 25 Nussle,

(2002) (exhaustion requirement applies to all prisoner suits relating to 26 prison life)). “[A] prisoner must ‘complete the administrative review process in accordance with 27 the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal 28 court.’” Harvey v. Jordan,

(9th Cir. 2010) (quoting Marella v. Terhune, 568

(9th Cir. 2009)). Exhaustion is required regardless of the relief sought by the 2 prisoner and regardless of the relief offered by the process, unless “the relevant administrative 3 procedure lacks authority to provide any relief or to take any action whatsoever in response to a 4 complaint.” Booth v. Churner,

(2001); Ross,

. 5 An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion 6 requirement. Woodford v. Ngo,

(2006). 7 “Nonexhaustion” is an affirmative defense, and the defendant has the burden of “prov[ing] 8 that there was an available administrative remedy, and that the prisoner did not exhaust that 9 available remedy.” Albino v. Baca,

(9th Cir. 2014). A remedy is 10 “available” where it is “capable of use; at hand.” Williams v. Paramo,

(9th 11 Cir. 2015) (quoting Albino,

). Grievance procedures that do not allow for all 12 types of relief sought are still “available” as long as the procedures may afford “some relief.” 13 Booth, 532 U.S. at 738. If a defendant meets the initial burden, a plaintiff then must “come 14 forward with evidence showing that there is something in his particular case that made the 15 existing and generally available administrative remedies effectively unavailable to him.” Albino, 16

. The Supreme Court identified three circumstances where administrative 17 remedies are effectively unavailable: 18 (1) when (despite what regulations or guidance materials may promise) it operates as a simple dead end -- with officers unable or 19 consistently unwilling to provide any relief to aggrieved inmates; (2) if it is “so opaque that it becomes, practically speaking, incapable 20 of use; and (3) when prison administrators thwart inmates from taking advantage of a grievance process through machination, 21 misrepresentation, or intimidation. 22 Fordley v. Lizarraga,

(9th Cir. 2021) (internal quotation marks omitted) (citing 23 Ross,

). “[T]he ultimate burden of proof,” remains with the defendants. 24 Albino,

. Only “[i]f the undisputed evidence viewed in the light most 25 favorable to the prisoner shows a failure to exhaust, [is] a defendant is entitled to summary 26 judgment under Rule 56.”

. 27 D. California’s Inmate Appeal Process 28 “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper 1 exhaustion.” Reyes v. Smith,

(9th Cir. 2016) (quoting Jones,

). 2 In order to exhaust, the prisoner is required to complete the administrative review process in 3 accordance with the prison’s procedures. Woodford,

. In California, inmate 4 grievances are subject to two levels of review. See

(a).2 At the 5 first level, the inmate submits his claim on a CDCR Form 602-1 to the Institutional Office of 6 Grievances at the prison where the inmate is housed.

§ 3482(a)(1), (c). Inmates must submit 7 a claim within 60 calendar days of discovering the claim. 15 Cal. Code Regs. § 3482(b). In the 8 Form 602-1, the inmate is required to “describe all information known and available to the 9 [inmate] regarding the claim, including key dates and times, names and titles of all involved staff 10 members (or a description of those staff members), and names and titles of all witnesses, to the 11 best of the [inmate’s] knowledge.” Id. § 3482(c)(2). “In response, [the inmate] shall receive a 12 written decision” from the Institutional Office of Grievances “clearly explaining the reasoning for 13 the decision in each claim.” Id. § 3481(a). This written decision, referred to as a first level 14 decision, generally does not exhaust administrative remedies. Id. § 3483(l). 15 If an inmate is dissatisfied with the first level decision, the inmate may appeal the decision 16 to the second level by submitting a CDCR Form 602-2 to the CDCR’s Office of Appeals in 17 Sacramento within 60 days of receiving the first level decision. Id. §§ 3481(a), 3484(a), (c). 18 Adding new claims during the appeals process that were not presented in the original grievance 19 does not serve to exhaust administrative remedies as to any new claims. Id. §§ 3484(d), 3485(e). 20 The OOA shall ensure that a written decision is completed no later than 60 calendar days after 21 receipt of the grievance. Id. § 3485(g). The written decision shall clearly explain the reasoning 22 for the decision in each claim. Id. § 3481(a). A written decision containing one of the following 23 decisions: “denied,” “granted,” “no jurisdiction,” “identified as staff misconduct,” “pending legal 24 matter,” or “time expired,” constitutes exhaustion of the administrative remedy process. Id. 25 § 3485(l). If the inmate receives a written decision of “denied” by the OOA, as described in 26 § 3485(g), the inmate has exhausted the administrative remedy because the OOA is the final level 27 2 Beginning January 1, 2022, inmates are required to follow the procedures set forth in Title 15, 28 §§ 3480-3485. 1 of review. Id. § 3485(l). 2 When the OOA receives an appeal, it is assigned a tracking log number and entered into a 3 computer system. (ECF No. 25-3 at 2.) An “Appeal History Report” is available in the computer 4 system for each prisoner. (Id.) Each “Appeal History Report” contains the prisoner’s first and 5 last name, CDCR number, the appeal log number, the appeal issue, the date the appeal was 6 received, the underlying grievance log number (if any), the date the appeal was closed, and the 7 final disposition of the appeal.3 (Id.) The “Appeal History Report” includes appeals that are 8 accepted as well as those that are rejected or screened out. (Id.) 9 E. Discussion 10 1. Administrative Remedies Were Available 11 In the complaint, plaintiff agreed that there were administrative remedies available at the 12 institution. (ECF No. 1 at 3.) In deposition, plaintiff confirmed that plaintiff is aware of the 13 administrative grievance process, knows plaintiff has to exhaust administrative remedies, and 14 admitted plaintiff used the process often. (Pl.’s Dep. at 13-15; ECF No. 25-4 at 20-22.) It is 15 undisputed that administrative remedies were available to plaintiff. 16 2. Plaintiff Timely Submitted First Level Grievance 17 Plaintiff also declared in the complaint that plaintiff submitted a request for administrative 18 relief, and appended a copy of the first two pages of Grievance Log No. SAC 610141, signed 19 August 14, 2024. (ECF No. 1 at 3, 7-8.) The parties agree that Grievance Log No. SAC 610141 20 is the sole grievance complaining of Sgt. Costello’s treatment of plaintiff on August 13, 2024.4 21 Three days later, the OOG wrote plaintiff a letter confirming receipt of Grievance Log No. SAC 22 610141, and informing plaintiff that the OOG would complete its review no later than October 23 16, 2024. (ECF No. 25-3 at 13.) Plaintiff’s Appeal History Report confirms the OOG response: 24 3 Although the Appeal History Report might list the OOG grievance log number, this report does 25 not appear to list the date of the OOA denial. (See, e.g., ECF. No. 25-3 at 5-7.) Defendant provided a copy of the appeal denial issued in Grievance Log No. SAC 610141, which bears the 26 date October 5, 2024. (ECF No. 25-3 at 14.) 27 4 A copy of the entire Grievance Log No. SAC 610141 can be found at ECF No. 25-3 at 9-12, 28 and the OOG responses are at ECF No. 25-3 at 13-17. 1 “denied.” (ECF No. 25-3 at 5 (fifth line from the bottom of first page of report).) 2 3. Appeal Through the Second Level of Review 3 The issue here is whether plaintiff appealed Grievance Log No. SAC 610141 through the 4 second level of review before plaintiff filed the instant complaint on September 5, 2025. The 5 Court finds that plaintiff did not. 6 In the complaint, plaintiff declared that plaintiff appealed the request for administrative 7 relief to the highest level. (ECF No. 1 at 3.) The copy of the grievance provided by plaintiff only 8 included the first two pages, bears no request for second level review, and does not contain a 9 decision by the OOG or the OOA. (Id. at 7-8.) Plaintiff now argues the response denying 10 Grievance Log No. SAC 610141 was received on August 26, 2024. (ECF Nos. 31 at 3, 32 at 2.) 11 In the first opposition, plaintiff declares that on August 29, 2024, plaintiff mailed “the denied 12 grievance involving Mr. Costello and placing [plaintiff] in too tight handcuffs and denying 13 [plaintiff] water to the Office of Appeals, P.O. Box 942883, Sacramento, CA 95811.” (ECF No. 14 31 at 3.) Plaintiff claims that by doing so, plaintiff exhausted all available remedies. (Id. at 4.) 15 Plaintiff argues that the PLRA states that once plaintiff uses all available remedies despite the 16 outcome, plaintiff’s remedies were exhausted on August 29, 2024, once plaintiff put the 17 grievance in the mail addressed to the OOA. (Id. at 8.) In the second opposition, plaintiff again 18 denies the failure to exhaust defense, and reiterates that plaintiff mailed the appeal on August 29, 19 2024, and appears to suggest the appeal was lost in the mail based on issues with institutional 20 mail. (ECF No. 32 at 2.) Plaintiff again declares that plaintiff exhausted all available remedies 21 by mailing the denied Grievance Log. No. SAC 610141 “to the OOA as required when 22 exhausting all remedies.” (ECF No. 32 at 4.) 23 On the other hand, defendant provided a copy of the response to Grievance Log No. SAC 24 610141, which did not issue until October 5, 2024. (ECF No. 25-3 at 14.) Defendant provided a 25 copy of plaintiff’s Appeal History Report that reflects the OOA did not receive an appeal of 26 Grievance Log No. SAC 610141 or any other appeal referencing defendant Sgt. Costello’s use of 27 force on August 13, 2024. (ECF No. 25-3 at 3, 5.) Indeed, plaintiff’s Appeal History Report 28 shows no appeal received from plaintiff after August 29, 2024, until plaintiff’s unrelated appeal in 1 Grievance Log No. NKSP 0587044 was received on October 11, 2024. (ECF No. 25-3 at 5.) 2 Defendant argues it would be impossible for plaintiff to appeal a decision before that decision 3 issued, that plaintiff’s self-serving allegations should be disregarded, and contends no jury could 4 believe plaintiff’s account. (ECF No. 33 at 4, 5.) 5 Aside from plaintiff’s declaration, plaintiff fails to rebut with documentary evidence 6 defendant’s documentary evidence that the OOA response to Grievance Log No. SAC 610141 did 7 not issue until October 5, 2024. (ECF No. 25-3 at 14.) For example, plaintiff did not provide a 8 copy of the form 602-2 setting forth why plaintiff was dissatisfied with the response to Grievance 9 Log No. SAC 610141 and requesting review at the second level. Plaintiff also did not provide a 10 copy of the prison’s mail log reflecting the alleged mailing of the denied grievance on August 29, 11 2024 to the OOA. 12 The Court agrees with defendant that it is not possible to appeal a decision that has not yet 13 issued. But even assuming plaintiff mailed a denial to the OOA on August 29, 2024, the act of 14 mailing a denial does not exhaust administrative remedies, contrary to plaintiff’s contention in his 15 oppositions. Rather, the OOA must be permitted time to review and issue a written response to 16 the appeal. “Courts have repeatedly held that, where the government still has time to respond to a 17 grievance, an as-yet-unanswered grievance is unexhausted.” Lucien v. Gonzalez-Gamez, 2024

, at *3 (N.D. Cal. Mar. 7, 2024) (citations omitted). Here, plaintiff did not allow for 19 the 60 day response time by the OOA. Instead, plaintiff mailed the complaint to this Court on or 20 about August 31, 2024, the date plaintiff signed the complaint, and only a few days after plaintiff 21 received the alleged denial of Grievance Log No. SAC 610141 on August 26, 2024. (ECF No. 1 22 at 6.) 23 Thus, the Court is not required to hold a hearing under Albino,

, so that the 24 court could resolve when plaintiff received the denial of Grievance Log No. SAC 610141 or 25 submitted the appeal. Taking plaintiff’s statements as true—that plaintiff received the appeal 26 response on August 26, 2024, and mailed the OOG denial to the OOA on August 29, 2024, and 27 liberally construing such mailing as a remedy request to which the OOA did not respond—the 28 record shows plaintiff signed the instant complaint on August 31, 2024. This August 31, 2024 1 date demonstrates that plaintiff did not allow the OOA 60 days to respond before plaintiff mailed 2 the complaint to this Court. Because plaintiff did not wait the 60 day period to receive the OOA’s 3 decision before filing the instant complaint, the Court need not address issues with institutional 4 mail. 5 Taking plaintiff’s allegations as true, the record demonstrates that plaintiff filed the instant 6 complaint before the OOA could respond. Therefore, plaintiff failed to exhaust administrative 7 remedies prior to filing this action. See Lucien,

, at *3. 8 4. Exhaustion Should Not Be Excused 9 As noted above, it is undisputed that administrative remedies were available to plaintiff. 10 In addition, in deposition, plaintiff admitted familiarity with, and use of, the administrative 11 grievance process. (Pl.’s Dep. at 13-15 (ECF No. 25-4 at 20-22).) Defendant submitted 12 plaintiff’s Appeal History Report which confirms that from August 13, 2024, the date of the 13 incident, to September 5, 2024, the date plaintiff filed the complaint, plaintiff submitted eight 14 grievances. (ECF No. 25-3 at 5-6.) The records show plaintiff only appealed one of those 15 grievances, Log No. SAC 0617253, but that appeal was received on October 16, 2024, outside the 16 relevant time frame. (Id. at 5.) The Court finds plaintiff’s failure to exhaust should not be 17 excused. 18 5. Plaintiff Failed to Exhaust Available Administrative Remedies 19 For the above reasons, the undersigned finds that plaintiff failed to exhaust administrative 20 remedies through the second level of review prior to filing the instant action, and plaintiff does 21 not contend, for any reason, that administrative remedies were not available. Thus, the motion for 22 summary judgment should be granted, and this action should be dismissed based on plaintiff’s 23 failure to exhaust administrative remedies. 24 III. CONCLUSION 25 The Court recommends that defendant’s motion for summary judgment be granted, and 26 this action be dismissed without prejudice. 27 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is 28 directed to assign a district judge to this case. 1 Further, IT IS RECOMMENDED that: 2 1. Defendant’s motion for summary judgment (ECF No. 25) be granted. 3 2. This action be dismissed without prejudice. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of

(b)(1). Within fourteen days 6 || after being served with these findings and recommendations, any party may file written 7 || objections with the court and serve a copy on all parties. Such a document should be captioned 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 9 || objections shall be filed and served within fourteen days after service of the objections. The 10 || parties are advised that failure to file objections within the specified time may waive the right to 11 || appeal the District Court’s order. Martinez v. YIst,

(9th Cir. 1991). 12 3 Dated: November 21, 2025 7 2 Chan Spo 14 CHI SOO KIM 15 | risrokoataansicte UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 12