Caraccioli v. San Diego Police Dept. et al

Southern District of California, casd-3:2017-cv-00981

REPORT AND RECOMMENDATION Granting In Part and Denying In Part {{32}}, {{46}} Defendants' Motions to Dismiss. The Court RECOMMENDS that Defendants motions be GRANTED IN PART and DENIED IN PART. No later than July 5, 2019, any party to this action may file written objections with the Court and serve a copy on all parties. Any reply to the objections shall be filed with the Court and served on all parties no later than July 19, 2019. Signed by Magistrate Judge William V. Gallo on 6/5/2019.

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1 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANCO CARACCIOLI, Case No.: 17-CV-981-DMS-WVG 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION GRANTING IN PART AND DENYING IN PART 14 JAMES BURNETT, et al., DEFENDANTS' MOTIONS TO 15 Defendants. DISMISS 16 [ECF NOS. 32 AND 46] 17 18 I. INTRODUCTION 19 Before the Court are two motions to dismiss. The first is filed on behalf of defendant 20 James Burnett (the "Burnett Motion"). (Burnett Mot., ECF No. 32.) The second is on behalf 21 of defendants Samuel Cote, Edwin Garrette, Justin Featherly, Jeffrey Swett, Jon Goebel, 22 Jonathan Junker, Thomas McGrath, Rebecca Slade, John Horvath, and Joel Mendoza (the 23 "Cote Motion"). (Cote. Mot., ECF No. 46.) 24 The Court has thoroughly reviewed the pleadings and for the reasons discussed 25 below, the Court RECOMMENDS that both motions be GRANTED IN PART AND 26 DENIED IN PART. 27 /// 28 /// 1 17-CV-981-DMS-WVG 1 1 II. BACKGROUND 2 A. Relevant Procedural Background 3 Plaintiff Franco Caraccioli brings this action pursuant to 42 U.S.C. § 1983, alleging 4 in his Second Amended Complaint ("SAC") that Defendants violated his Fourth 5 Amendment rights when they arrested Plaintiff at gunpoint without a warrant. (See SAC 6 generally.) On October 5, 2018, Defendant James Burnett filed a motion to dismiss. On 7 November 7, 2018, Defendants Samuel Cote, Edwin Garrette, Justin Featherly, Jeffrey 8 Swett, Jon Goebel, Jonathan Junker, Thomas McGrath, Rebecca Slade, John Horvath, and 9 Joel Mendoza joined Burnett's motion. 10 On November 15, 2018, Plaintiff filed an opposition the Burnett Motion, (Opp'n to 11 Burnett Mot., ECF No. 48,) and on December 24, 2018 Plaintiff filed an opposition to the 12 Cote Motion, (Opp'n to Cote Mot., ECF No. 51). Burnett filed a reply on November 21, 13 2018. (Burnett Reply, ECF No. 49.) The remaining defendants filed a separate reply on 14 January 9, 2019. (Cote Reply, ECF No. 52.) 15 B. Relevant Factual Background 16 On the evening of May 29, 2016, Plaintiff was involved in a physical altercation 17 with his roommate, girlfriend, and two acquaintances at his apartment in San Diego, 18 California. (SAC at ¶ 8.) The individuals involved in the altercation, other than Plaintiff, 19 left the apartment and contacted the police. (Id. at ¶ 9.) Plaintiff then went to sleep and 20 awoke to police officers in his apartment, demanding he come out of his room. (Id. at ¶¶ 8, 21 10, 11.) Plaintiff opened the door to his room, saw the police officers were armed, and 22 asked if they had a warrant. (Id. at ¶¶ 11, 12.) The police officers replied they did not and 23 again ordered Plaintiff to come out of his room. (Id. at ¶¶ 12, 13, 14.) Plaintiff exited his 24 room and the officers placed Plaintiff under arrest. (Id. at ¶¶ 14, 15.) 25 On March 3, 2017, Plaintiff pled guilty to: (1) one count of false imprisonment by 26 menace (Cal. Penal Code §§ 236, 237(a)); (2) one count of battery of a current or former 27 significant other (§ 243); (3) two counts of making a criminal threat (§ 422); (4) two counts 28 of assault by means of force likely to produce great bodily injury (§ 245(a)(4)); (5) two 2 17-CV-981-DMS-WVG 1 1 counts of attempting to dissuade a witness from reporting a crime (§ 136.1(b)(1)); (6) one 2 count of battery (§ 242); (7) one count of false imprisonment (§ 236); (8) one count of 3 vandalism (§ 594(a)(b)(2)(A)); (9) one count of resisting an officer (§ 148(a)(1)); (10) two 4 counts of disobeying a court order (§ 166(a)(4)); and (11) two counts of animal cruelty (§ 5 597(a)). (ECF No. 32-5 at 2, 7.)1 Plaintiff was sentenced to one year in jail and eight years 6 of probation. Plaintiff's conviction was upheld on appeal. 7 III. LEGAL STANDARD 8 Federal Rule of Civil Procedure ("Rule") 12(b)(6) permits a party to raise a motion 9 to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. 10 R. Civ. P. 12(b)(6). A motion to dismiss can only be granted "if it appears beyond doubt 11 that the plaintiff can prove no set of facts in support of his or her claim." Jablon v. Dean 12 Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). Under Rule 8(a), a complaint must contain 13 a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. 14 R. Civ. P. 8(a). Rule 8 "does not require 'detailed factual allegations.'" Ashcroft v. Iqbal, 15 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 16 However, Rule 8 "requires more than labels and conclusions, and a formulaic recitation of 17 the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Nor does a 18 complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual 19 enhancement.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557). 20 "To survive a motion to dismiss, a complaint must contain sufficient factual matter, 21 accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting 22 23 1 Defendants request the Court take judicial notice of Plaintiff's guilty plea. (ECF No. 32- 24 3). That request is GRANTED. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 25 308, 322 (2007) (When ruling on a Rule 12 motion to dismiss, "courts must consider the complaint in its entirety, as well as. . . documents incorporated into the complaint by 26 reference, and matters of which a court may take judicial notice."); U.S. ex rel. Robinson 27 Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1991) (holding that a court may take judicial notice of another court's proceeding when it is directly related 28 to matters currently before the court). 3 17-CV-981-DMS-WVG 1 1 Twombly, 550 U.S. at 570). A court accepts the factual allegations as true "even if [the 2 allegations are] doubtful in fact." Twombly, 550 U.S. at 555. "A claim has facial plausibility 3 when the plaintiff pleads factual content that allows the court to draw the reasonable 4 inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. 5 In other words, there must be "more than a sheer possibility that a defendant has acted 6 unlawfully." Id. Additionally, courts construe all allegations of material fact in favor of the 7 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 2007). 8 Rule 15(a)(2) allows the trial court to grant leave to amend "when justice so 9 requires." Fed. R. Civ. P. 15(a)(2). Unless the complaint cannot be cured by allegations of 10 additional facts, the Court should grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 11 1127 (9th Cir. 2000). Further, leave to amend should be granted unless amendment of a 12 complaint would be futile. See United States v. Corinthian Colleges, 655 F.3d 984, 995 13 (9th Cir. 2011). 14 Where, as here, the plaintiff appears pro se in a civil rights suit, the Court must 15 construe the pleadings liberally. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Further, the 16 Court must afford the pro se "plaintiff the benefit of any doubt." Karim-Panahi v. Los 17 Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se complaint "can only be 18 dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove 19 no set of facts in support of his claim which would entitle him to relief.'" Id. at 107 (quoting 20 Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Moreover, "before dismissing a pro se civil 21 rights complaint for failure to state a claim, the district court must give the plaintiff a 22 statement of the complaint's deficiencies." Id. (italics added); see also Noll v. Carlson, 809 23 F.2d 1446, 1448-49 (9th Cir. 1987). 24 IV. DISCUSSION 25 Plaintiff brings a claim pursuant to 42 U.S.C. § 1983 arguing Defendants violated 26 his Fourth Amendment rights when Defendants "arrested Plaintiff inside of his home 27 without a warrant. . . and coerced Plaintiff's arrest at gunpoint." (SAC at ¶ 20.) Plaintiff 28 also claims Defendants "threatened, intimidated, or coerced" him in violation of the Tom 4 17-CV-981-DMS-WVG 1 1 Bane Civil Rights Act, codified in California Civil Code section 52.1 ("Bane Act"). (Id. at 2 ¶ 24.) 3 Defendants move to dismiss Plaintiff's SAC because: (1) the SAC is barred by Heck 4 v. Humphrey, 512 U.S. 477 (1994); (2) Plaintiff's Bane Act claim is insufficient because it 5 fails to properly plead threats, intimidation, or coercion independent from the constitutional 6 violation; and (3) Plaintiff fails to specifically plead a cause of action against each 7 defendant. (Burnett Mot. at 4-7; Cote Mot. at 5-8.) 8 A. Heck Bar's Plaintiff's First Cause of Action 9 i. Argument 10 Defendants argue Plaintiff's § 1983 claim is barred by Heck because a favorable 11 judgment on Plaintiff's claim would invalidate Plaintiff's previous criminal conviction. 12 (Burnett Mot. at 5:27-28; Cote Mot. at 6:17-19.) 13 Plaintiff first argues Heck does not bar his claim because his convictions do not rest 14 on evidence obtained through his arrest, relying on Lockett v. Ericson, 656 F.3d 892 (9th 15 Cir. 2011). (Opp'n to Burnett Mot. at 8:23-25, 9:12-13; Opp'n to Cote Mot. at 9:27-28.) 16 Second, Plaintiff argues the facts relevant to his conviction are "separate and apart" from 17 his unlawful arrest, relying on Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2009).2 (Pl.'s 18 Opp'n to Burnett's Mot. at 11:6; Pl.'s Opp'n to Cote et al. Mot. at 13:11.) 19 ii. Legal Standard 20 "Under Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 21 (1994), 'when a plaintiff who has been convicted of a crime under state law seeks damages 22 in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff 23 24 2 25 Plaintiff also asserts a new claim in his opposition; that Defendants used excessive force during the arrest. (Opp'n to Burnett Mot. at 13; Opp'n to Cote Mot. at 16.) However, it is 26 axiomatic that a complaint may not be amended by briefs filed in opposition to a motion 27 to dismiss. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). Accordingly, excessive force 28 will not be discussed. 5 17-CV-981-DMS-WVG 1 1 would necessarily imply the invalidity of his conviction or sentence.'" Reese v. County of 2 Sacramento, 888 F.3d 1030, 1045-46 (9th Cir. 2018) (quoting Hooper v. County of San 3 Diego, 629 F.3d 1127, 1130 (9th Cir. 2011)). "If it would, the civil action is barred." Id. 4 iii. Discussion 5 Here, Plaintiff pled guilty to, inter alia, willfully resisting an officer in violation of 6 California Penal Code section 148(a)(1) ("Section 148"). (ECF No. 32-5 at 7.) Section 148 7 provides: "[e]very person who willfully resists, delays, or obstructs any public officer. . . 8 in the discharge or attempt to discharge any duty of his or her office or employment. . . 9 shall be punished" by a fine or imprisonment. Cal. Penal Code § 148. Thus, "[f]or a 10 conviction under § 148(a)(1) to be valid, the [criminal] defendant must have resisted, 11 delayed, or obstructed a police officer in the lawful exercise of his or her duties." Hooper, 12 629 F.3d at 1130. "The lawfulness of the officer's conduct is an essential element of the 13 offense under § 148(a)(1)." Id. 14 Plaintiff pled guilty to willfully resisting, delaying, or obstructing the lawful conduct 15 of an officer. Plaintiff now claims that very arrest was unlawful, in his First Cause of Action 16 of the SAC. (SAC at ¶ 21.) If Plaintiff were successful in this action, it would necessarily 17 imply the invalidity of his state court conviction and is thus barred by Heck. Reese, 888 18 F.3d at 1045-46.3 19 20 3 In Heck, the Supreme Court provided the following example that is particularly 21 noteworthy here: 22 A state defendant is convicted of and sentenced for the crime of 23 resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. (This is a common 24 definition of that offense. See People v. Peacock, 68 N.Y.2d 675, 25 505 N.Y.S.2d 594, 496 N.E.2d 683 (1986); 4 C. Torcia, Wharton's Criminal Law § 593, p. 307 (14th ed. 1981).) He then 26 brings a § 1983 action against the arresting officer, seeking 27 damages for violation of his Fourth Amendment right to be free from unreasonable seizures. In order to prevail in this § 1983 28 action, he would have to negate an element of the offense of 6 17-CV-981-DMS-WVG 1 1 Plaintiff's reliance on Lockett v. Ericson, and to Lockett's progeny, is misplaced. In 2 Lockett, the plaintiff was arrested for driving under the influence pursuant to California 3 Vehicle Code § 23103.5(a). Lockett, 656 F.3d at 895. Prior to his arrest, law enforcement 4 entered and searched the plaintiff's home. Id. at 894. The plaintiff later pled guilty in the 5 state court criminal proceeding and subsequently filed suit pursuant to 42 U.S.C. § 1983 6 alleging that law enforcement engaged in an improper warrantless search. Id. at 895. 7 Reversing the district court, the Ninth Circuit found the plaintiff's claims were not barred 8 by Heck because his conviction was not based in any way on the allegedly improperly 9 obtained evidence but rather his guilty plea for driving under the influence. Id. at 896-97. 10 Here, Plaintiff does not challenge improperly obtained evidence, or anything other 11 than his arrest, for that matter. Thus, Lockett and its progeny are of no assistance to 12 Plaintiff. 13 Plaintiff's reliance on Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2009) for the 14 proposition that his convictions are "separate and apart" from the unlawful arrest is 15 similarly unhelpful. In Smith, the plaintiff pled guilty to violating Section 148. Smith, 394 16 F.3d at 694. The plaintiff later filed suit in federal court pursuant to 42 U.S.C. § 1983, 17 alleging the arresting officers used excessive force. Id. The Ninth Circuit ruled that the 18 plaintiff's excessive force claims were not barred by Heck because such force could be 19 asserted before or after the plaintiff violated Section 148 and thus did not necessarily imply 20 the invalidity of the conviction. Id. at 695-99. 21 Here, Plaintiff did not allege excessive force in the SAC. Again, he challenges the 22 actual arrest. Thus, Smith is inapplicable. 23 Since Plaintiff is seeking to challenge the very arrest for which he pled guilty, 24 his claim is barred by Heck. Accordingly, the Court RECOMMENDS that 25 26 which he has been convicted. Regardless of the state law 27 concerning res judicata, [citation omitted], the § 1983 action will not lie. 28 Heck, 512 U.S. at 486 n.6 (emphasis in original). 7 17-CV-981-DMS-WVG 1 1 DEFENDANTS' motions be GRANTED and Plaintiff's First Cause of Action in the SAC 2 be DISMISSED WITH PREJUDICE. 3 B. The Bane Act Claim 4 i. Argument 5 Defendants argue Plaintiff's Bane Act claim fails to sufficiently plead a cause of 6 action because "Plaintiff failed to allege 'threats, intimidation or coercion' separate and 7 independent from the alleged wrongful conduct constituting the constitutional rights 8 violation," citing Shoyoye v. County of Los Angeles, 137 Cal.Rptr.3d 839 (Cal. Ct. App. 9 2012) and Sandoval v. County of Sonoma, No. 11-CV-05817-TEH, 2016 WL 612905 (N.D. 10 Cal. 2016). (Burnett Mot. at 6; Cote Mot. at 7.) 11 Plaintiff argues he sufficiently pleaded a Bane Act claim because he alleged threats, 12 intimidation, or coercion. (Opp'n to Burnett Mot. at 15:13-19; Opp'n to Cote Mot. at 19:22- 13 20:2.) 14 ii. Legal Standard 15 "The Bane Act civilly protects individuals from conduct aimed at interfering with 16 rights that are secured by federal or state law, where the interference is carried out by 17 threats, intimidation or coercion." Reese v. County of Sacramento, 888 F.3d 1030, 1040 18 (9th Cir. 2018) (internal quotation omitted). "Section 52.1 provides a cause of action for 19 violations of a plaintiff's state or federal civil rights committed by threats, intimidation, or 20 coercion." Id. "Claims under section 52.1 may be brought against public officials who are 21 alleged to interfere with protected rights, and qualified immunity is not available for those 22 claims." Id. "[T]he Bane Act does not require the threat, intimidation or coercion element 23 of the claim to be transactionally independent from the constitutional violation alleged." 24 Id. at 1043 (internal quotation omitted). 25 iii. Discussion 26 Defendants' reliance on Shoyoye and Sandoval to demonstrate a pleading 27 requirement of a threat, intimidation, or coercion independent of the constitutional 28 violation fails. Since the decisions cited by Defendants, both California courts and the 8 17-CV-981-DMS-WVG 1 1 Ninth Circuit have reexamined the issue, acknowledging that the "Bane Act's requirement 2 that interference with rights must be accomplished by threats, intimidation or coercion has 3 been the source of much debate and confusion." Reese, 888 F.3d at 1043 (internal quotation 4 omitted). The Ninth Circuit has recognized "that Shoyoye was limited to cases involving 5 mere negligence" and that "nothing in the text of the statute requires that the offending 6 'threat, intimidation or coercion' be 'independent' from the constitutional violation 7 alleged." Id. (quoting Cornell v. City and County of San Francisco, 225 Cal.Rptr.3d 356, 8 383 (Cal. Ct. App. 2017)). Thus, since this case does not involve negligence, Plaintiff was 9 not required to plead threats, intimidation, or coercion independent of the underlying 10 constitutional violation as Defendants argue. 11 For this reason, the Court RECOMMENDS that Defendants' motions regarding 12 Plaintiff's Second Cause of Action for Bane Act violations be DENIED. 13 C. Failure to State a Claim Generally 14 i. Argument 15 Defendant Burnett claims Plaintiff failed to plead a cause of action against him 16 because, although he is named in the caption, he was not listed as a Defendant in the SAC 17 and no specific allegations were made against him. (Burnett Mot. at 8:10-12.) 18 Defendants Cote, Garrette, Featherly, Swett, Goebel, Junker, McGrath, Slade, 19 Horvath, and Mendoza argue Plaintiff failed to state a claim under § 1983 against each 20 Defendant because the SAC lacks "allegations pled specifically about each defendant." 21 (Cote et al. Mot. at 8:6-7.) Plaintiff argues he sufficiently states a cause of action against 22 each defendant because the SAC alleges each Defendant "personally participated in the 23 unlawful arrest" and "each of them, were inside [his] apartment telling him to come out of 24 his bedroom, while pointing their guns" at Plaintiff. (Opp'n to Cote Mot. at 22:9-13.) 25 ii. Legal Standard 26 "To state a claim under § 1983, a plaintiff must allege the violation of a right secured 27 by the Constitution and laws of the United States, and must show that the alleged 28 deprivation was committed by a person acting under color of state law." Ove v. Gwinn, 264 9 17-CV-981-DMS-WVG 1 1 F.3d 817, 824 (9th Cir. 2001) (internal quotations omitted) (quoting West v. Atkins, 487 2 U.S. 42, 48 (1988)). "[T]o survive the motion to dismiss, [a plaintiff] is required to allege 3 overt acts with some degree of particularity such that his claim is set forth clearly enough 4 to give defendants fair notice of the type of claim being pursued." Ortez v. Washington 5 County, 88 F.3d 804, 810 (9th Cir. 1996). A plaintiff "need only allege that the individual 6 defendants deprived him of rights secured by the Constitution or federal statutes." Id. A 7 person deprives another "of a constitutional right, within the meaning of section 1983, if 8 he does an affirmative act, participates in another's affirmative acts, or omits to perform 9 an act which he is legally required to do." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 10 1993). A person could also deprive another of his or her constitutional right "by setting in 11 motion a series of acts by others which the actor knows or reasonably should know would 12 cause others to inflict the constitutional injury." Id. at 743-44; see also Estate of Lopez v. 13 Mills, 105 F. Supp. 3d 1148, 1157 (S.D. Cal. 2015). 14 i. Defendant Burnett 15 Plaintiff recognizes that he "only mentioned [Burnett] in the caption" and not 16 elsewhere in the SAC. (Opp'n to Burnett Mot. at 17:12-14.) As a result, Plaintiff requests 17 leave to amend the SAC "to clarify this inadvertent omission[.]" (Id. at 17:20-21.) 18 Given this, the Court RECOMMENDS Burnett's motion to dismiss be GRANTED 19 and Defendant Burnett be DISMISSED WITHOUT PREJUDICE. 20 ii. The Remaining Defendants 21 Plaintiff alleges that each Defendant, other than Burnett, violated Plaintiff's civil 22 rights while acting under the color of law as law enforcement officers. (SAC ¶ 5.) Plaintiff 23 then alleges that each Defendant was in Plaintiff's living room with weapons drawn on 24 Plaintiff, coercing him out of his room. (Id. at ¶ 11.) Plaintiff goes on to allege that each 25 Defendant failed to produce a warrant in the absence of exigent circumstances. (Id. at ¶ 26 13.) Plaintiff then alleges that each Defendant took part in the arrest of Plaintiff, all of 27 which was in violation of Plaintiff's civil rights. (Id. at ¶¶ 20, 24.) Thus, taken as true, 28 Plaintiff has sufficiently pleaded allegations of civil rights violations against the remaining 10 17-CV-981-DMS-WVG 1 1 Defendants and has provided fair notice of the claim being pursued. Ortez, 88 F.3d at 810. 2 Therefore, the Court RECOMMENDS motion to dismiss Defendants Cote, Garrette, 3 Featherly, Swett, Goebel, Junker, McGrath, Slade, Horvath, and Mendoza for failure to 4 state a claim generally be DENIED. 5 V. CONCLUSION 6 Based on the foregoing, the Court RECOMMENDS that Defendants' motions be 7 GRANTED IN PART and DENIED IN PART. This Report and Recommendation will 8 be submitted to the United States District Judge assigned to this case, pursuant to the 9 provisions of 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). IT IS 10 ORDERED that no later than July 5, 2019, any party to this action may file written 11 objections with the Court and serve a copy on all parties. The document shall be captioned 12 "Objection to Report and Recommendation." IT IS FURTHER ORDERED that any 13 reply to the objections shall be filed with the Court and served on all parties no later than 14 July 19, 2019. The parties are advised that failure to file objections within the specified 15 time may waive the right to raise those objections on appeal. Martinez v. Ylst, 951 F.2d 16 1153 (9th Cir. 1991). 17 IT IS SO ORDERED. 18 Dated: June 5, 2019 19 20 21 22 23 24 25 26 27 28 11 17-CV-981-DMS-WVG