Green v. United States Forest Service et al, No. 3:2020cv01046 - Document 36 (S.D. Cal. 2023)
Court Description: ORDER Granting 30 Motion to Dismiss Second Amended Complaint. The Forest Service's motion to dismiss the SAC is granted. Green's Takings Clause claim is dismissed without prejudice and without leave to amend and his Due Process and Declaratory Judgment Act claims are dismissed with prejudice. Because leave to amend may be denied where, as here, amendment would be futile, the Court denies Green leave to amend. Signed by Judge Larry Alan Burns on 8/16/2023. (rmc)
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Green v. United States Forest Service et al Doc. 36 Case 3:20-cv-01046-LAB-SBC Document 36 Filed 08/16/23 PageID.401 Page 1 of 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 STEVEN R. GREEN, in his capacity as trustee of the Steven R. Green Living Trust Dated July 10, 2000, 11 12 13 Case No.: 20-cv-1046-LAB-SBC ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT [Dkt. 30] Plaintiff, 14 v. 15 UNITED STATES FOREST SERVICE, et al., 16 Defendants. 17 18 19 I. INTRODUCTION AND BACKGROUND 20 Plaintiff Steven R. Green purchased property in June 2001 at 15785 Boulder 21 Creek Road, Descanso, California 91916, located in the Cleveland National 22 Forest. (Dkt. 28, Second Amended Compl. (“SAC”) ¶ 19). Green purchased his 23 property with the understanding it was accessible via a dirt road called McCoy 24 Ranch Road (“MRR”) and that MRR was a public road as the San Diego Superior 25 Court declared in November 1991. (Id. ¶¶ 2, 6, 38, 40, 47, 51, 123–24, 138). Since 26 June 2001, Green has used and maintained MRR to access his property when he 27 visited San Diego or to allow other individuals that he contracted with to access 28 his property for cattle grazing. (Id. ¶¶ 21–23, 122, 139). 1 20-cv-1046-LAB-SBC Dockets.Justia.com Case 3:20-cv-01046-LAB-SBC Document 36 Filed 08/16/23 PageID.402 Page 2 of 11 1 Defendant United States Forest Service (the “Forest Service”) subsequently 2 purchased the land that MRR runs through. (Id. ¶ 37). The Forest Service allows 3 National Forest visitors to use MRR to access parts of the forest. (Id. ¶¶ 28, 30). 4 Due to weather, poor drainage, and public use, MRR’s conditions deteriorated 5 over several years making it unpassable by ordinary passenger vehicles. (Id. 6 ¶¶ 27, 31, 41). The Forest Service hasn’t maintained MRR since it purchased the 7 land, (id. ¶ 37), because it isn’t allowed to allocate funds to land not part of the 8 National Forest System Road, (see id. ¶ 62). 9 In January 2019, Green and his neighbor contacted the Forest Service to 10 maintain MRR as an all-weather dirt road. (Id. ¶ 52). After back-and-forth 11 discussions, on February 28, 2019, the Forest Service sent Green a road 12 maintenance agreement that outlined what maintenance would be allowed on 13 MRR. (Id. ¶¶ 53–59). On May 2, 2019, after more back-and-forth discussions, 14 Green and his neighbor agreed to an emergency permit to maintain all but the last 15 135 yards of MRR leading to Green’s property, which were excluded for 16 archaeological concerns. (Id. ¶¶ 60–89). On May 7, 2019, contractors hired by 17 Green and his neighbor completed work on MRR. (Id. ¶ 89). 18 On May 8, 2019, Green requested to meet with the Forest Service to discuss 19 maintenance of the 135 yards excluded from the emergency permit. (Id. ¶¶ 92, 20 104). Nine days later, the Forest Service met with Green and informed him there 21 were archeological resources near the final 135 yards stretch of MRR and that he 22 could maintain the road after an environmental review was conducted. (Id. ¶¶ 92, 23 107). On December 18, 2019, the Forest Service notified Green that it was in the 24 early stages of an environmental assessment that would add portions of MRR to 25 the Forest System Road, which the Forest Service would then maintain. (Id. ¶ 98). 26 Based on the on-going assessment, the Forest Service considered MRR’s current 27 state to provide reasonable access to the inholdings and meet the standard of at 28 least a “maintenance level 2” road, which is neither suitable for passenger cars 2 20-cv-1046-LAB-SBC Case 3:20-cv-01046-LAB-SBC Document 36 Filed 08/16/23 PageID.403 Page 3 of 11 1 nor passable during periods of inclement weather. (Id. ¶¶ 98, 118, 135). The 2 Forest Service suggested Green apply for a special use permit if he wanted to 3 maintain MRR to a higher standard. (Id. ¶¶ 99, 119, 170). Green didn’t apply for a 4 permit, instead filing this action on June 8, 2020. (Dkt. 1, Compl.). 5 Green’s initial Complaint alleged the Forest Service violated the Fifth 6 Amendment’s Takings Clause and violated his Due Process rights by depriving 7 him of a constitutionally protected interest without adequate procedural 8 protections. (See id.). He also sought relief under the Declaratory Judgment Act, 9 28 U.S.C. § 2201. (Id.). On March 15, 2022, the Court: (1) dismissed Green’s 10 Takings Clause claim with leave to amend; (2) ordered Green to show cause why 11 his Due Process claim shouldn’t be dismissed for lack of subject matter 12 jurisdiction; and (3) dismissed with prejudice Green’s claim under the Declaratory 13 Judgment Act. (Dkt. 14). Green responded to the Court’s order by filing a brief. 14 (Dkt. 15). 15 On July 28, 2022, the Court dismissed Green’s Due Process claim, but 16 allowed Green to file a First Amended Complaint (“FAC”) to amend his Takings 17 Clause claim and file a motion for leave to amend his Due Process claim. 18 (Dkt. 17). Green filed his FAC and requested leave to amend his Due Process 19 claim. (Dkt. 19, 20). On February 27, 2023, the Court granted Green’s motion for 20 leave and ordered him to file a SAC no later than March 1, 2023. (Dkt. 27). 21 On February 28, 2023, Green filed his SAC alleging the same three causes 22 of action in his initial Complaint. (See SAC). On March 15, 2023, the Forest 23 Service filed a motion to dismiss the SAC (“Motion”). (Dkt. 30). Having considered 24 the parties’ submissions and the relevant law, the Court GRANTS the Forest 25 Service’s Motion. 26 II. LEGAL STANDARD 27 Federal courts are courts of limited jurisdiction, possessing only that power 28 “authorized by Article III of the United States Constitution and statutes enacted by 3 20-cv-1046-LAB-SBC Case 3:20-cv-01046-LAB-SBC Document 36 Filed 08/16/23 PageID.404 Page 4 of 11 1 Congress pursuant thereto.” See Bender v. Williamsport Area Sch. Dist., 475 U.S. 2 534, 541 (1986); see also, e.g., 28 U.S.C. § 1331; 5 U.S.C. § 702. A court must 3 dismiss any action over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 4 12(h)(3). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) calls 5 on the court to evaluate whether the plaintiff’s claims fall within that jurisdiction. 6 The plaintiff bears the burden of showing that they do. Kingman Reef Atoll Invs., 7 L.L.C. v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008). A defendant may 8 either challenge jurisdiction on the face of the complaint or provide extrinsic 9 evidence demonstrating a lack of jurisdiction over the case. White v. Lee, 227 10 F.3d 1214, 1242 (9th Cir. 2000). “A ‘facial’ attack asserts that a complaint’s 11 allegations are themselves insufficient to invoke jurisdiction.” Courthouse News 12 Serv. v. Planet, 750 F.3d 776, 780 n.3 (9th Cir. 2014) (citing Safe Air for Everyone 13 v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). District courts “resolve[] a facial 14 attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff's 15 allegations as true and drawing all reasonable inferences in the plaintiff's favor, 16 the court determines whether the allegations are sufficient as a legal matter to 17 invoke the court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 18 2014) (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)). In contrast, a 19 factual attack disputes “the truth of the allegations that, by themselves, would 20 otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. A factual 21 challenge permits the court to look beyond the complaint, without “presum[ing] the 22 truthfulness of the plaintiff’s allegations.” White, 227 F.3d at 1242 (citation 23 omitted). 24 A Rule 12(b)(6) motion to dismiss, on the other hand, tests the sufficiency 25 of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive 26 a motion to dismiss, a complaint must contain sufficient factual matter, accepted 27 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 28 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 4 20-cv-1046-LAB-SBC Case 3:20-cv-01046-LAB-SBC Document 36 Filed 08/16/23 PageID.405 Page 5 of 11 1 (2007)). A claim is plausible if the factual allegations supporting it permit “the court 2 to draw the reasonable inference that the defendant is liable for the misconduct 3 alleged.” Id. Ultimately, a court must determine whether the plaintiff’s alleged 4 facts, if proven, permit the court to grant the requested relief. See id. at 666; Fed. 5 R. Civ. P. 8(a)(2). The court needn’t accept legal conclusions couched as factual 6 allegations. See Twombly, 550 U.S. at 555. 7 III. ANALYSIS 8 The SAC brings three claims for relief. First, Green seeks injunctive relief 9 and compensatory damages for the Forest Service’s alleged unlawful taking of his 10 property. (SAC ¶¶ 161–62). Second, he alleges the Forest Service violated his 11 property rights without procedural due process by (1) implementing a permit 12 process when a permit wasn’t required when he originally purchased the property 13 in 2001 and (2) classifying MRR as a “maintenance level 2” road meaning it isn’t 14 suitable for passenger cars. (Id. ¶¶ 127, 166–170). Third, he seeks relief under 15 the Declaratory Judgment Act, 28 U.S.C. § 2201. (Id. ¶¶ 173–75). The Court 16 addresses each in turn. 17 A. 18 Green first seeks injunctive relief and compensatory relief under the Fifth 19 Amendment’s Takings Clause. (Id. ¶¶ 161–62). The Takings Clause “proscribes 20 taking [private property] without just compensation.” Williamson Cnty. Reg’l Plan. 21 Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985), overruled 22 on other grounds by Knick v. Twp. of Scott, 139 S. Ct. 2162, 2179 (2019); see 23 also Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 608–09 (2013) 24 (“[T]he Fifth Amendment mandates a particular remedy—just compensation— 25 only for takings.”). The Takings Clause protects only the right to compensation for 26 a taking of private property for public use, “[e]quitable relief is not available to 27 enjoin [such a] taking.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984); 28 see also Knick, 139 S. Ct. at 2176 (“Today, because the federal and nearly all Violation of the Takings Clause 5 20-cv-1046-LAB-SBC Case 3:20-cv-01046-LAB-SBC Document 36 Filed 08/16/23 PageID.406 Page 6 of 11 1 state governments provide just compensation remedies to property owners who 2 have suffered a taking, equitable relief is generally unavailable. As long as an 3 adequate provision for obtaining just compensation exists, there is no basis to 4 enjoin the government’s action effecting a taking.”); Bay View, Inc. v. Ahtna, Inc., 5 105 F.3d 1281, 1286 n.6 (9th Cir. 1997) (“[N]either injunctive nor declaratory relief 6 is available for a takings claim against the United States.”). 7 When a plaintiff seeks compensatory damages for an alleged unlawful 8 taking, district courts have concurrent jurisdiction with the Court of Federal Claims 9 over any claim “not exceeding $10,000 in amount.” 28 U.S.C. § 1346(a)(2); see 10 United States v. Park Place Assocs., Ltd., 563 F.3d 907, 927 (9th Cir. 2009). 11 However, the Court of Federal Claims possesses exclusive jurisdiction over 12 takings claims in excess of $10,000. See 28 U.S.C. § 1491(a)(1); see also Park 13 Place, 563 F.3d at 927. A plaintiff “may waive [his] right to receive more than 14 $10,000 in order to . . . obtain jurisdiction in [a] district court,” but absent such a 15 waiver, the Court of Federal Claims retains exclusive jurisdiction. See Park Place, 16 563 F.3d at 927–28. 17 Here, Green seeks both injunctive relief and compensatory damages. (SAC 18 ¶¶ 161–62). The SAC doesn’t allege the lack of “an adequate provision for 19 obtaining just compensation” for the alleged taking. Knick, 139 S. Ct. at 2176. 20 Therefore, “there is no basis to enjoin the government’s action effecting a taking.” 21 Id.; see also Bay View, 105 F.3d at 1286 n.6. A takings claim seeking injunctive 22 relief can be dismissed for failure to state a claim under Rule 12(b)(6). See Knick, 23 139 S. Ct. at 2179 (“As long as just compensation remedies are available—as 24 they have been for nearly 150 years—injunctive relief will be foreclosed.”). Insofar 25 as Green is still seeking injunctive relief, the Court previously dismissed that claim 26 without prejudice, (see Dkt. 14 at 4), but it’s now DISMISSED WITH PREJUDICE. 27 Green also seeks just compensation for the Forest Service’s alleged taking. 28 (SAC ¶ 162). Green claims the Forest Service’s taking has “caused the loss of all 6 20-cv-1046-LAB-SBC Case 3:20-cv-01046-LAB-SBC Document 36 Filed 08/16/23 PageID.407 Page 7 of 11 1 economically beneficial/productive uses of [his] land,” (id. ¶ 159), and asserts “[the 2 Forest Service] must pay the market value of the seized property,” (id. ¶ 156), 3 because he “lost the use and enjoyment of his property,” (id. ¶ 160). The Forest 4 Service argues the amount owed would be in excess of $10,000 if a taking 5 occurred of Green’s property, so the Court of Federal Claims has exclusive 6 jurisdiction under 28 U.S.C. § 1491(a)(1). (Dkt. 30 at 4). Green argues the Court 7 may retain jurisdiction until the now-uncertain amount in controversy is proven at 8 trial. (Dkt. 31 at 5–6 (citing Zumerling v. Devine, 769 F.2d 745, 749 (Fed. Cir. 9 1985)). But the Court isn’t required to accept jurisdiction over uncertain claims 10 when the request for damages isn’t limited to $10,000 or less. See Park Place, 11 563 F.3d at 927–28; see also Matsuo v. United States, 416 F. Supp. 2d 982, 12 994–95 (D. Haw. 2006) (dismissing claims for damages when plaintiffs didn’t limit 13 their request for damages to $10,000 or less). Even if the amount in controversy 14 is uncertain now, it’s more likely to be in excess of $10,000 should a court find a 15 taking occurred because Green wants the Forest Service to “pay the market value 16 of the seized [163 acres] property” that he is no longer able to use for agricultural 17 operations and as a personal residence. (SAC ¶ 156). The Court lacks subject 18 matter jurisdiction over the Takings Clause claim because exclusive jurisdiction 19 lies with the Court of Federal Claims. The Motion is GRANTED as to the Takings 20 Clause claim, and it’s DISMISSED WITHOUT PREJUDICE AND WITHOUT 21 LEAVE TO AMEND. Green can file this claim with the Court of Federal Claims. 22 B. 23 Green’s second claim for relief is for violation of his procedural due process 24 rights. (Id. ¶¶ 163–171). Other than updated paragraph numbers, the procedural 25 due process claim and supporting factual allegations in the SAC are largely 26 identical to the allegations brought in the FAC and original Complaint. The SAC 27 newly alleges the Forest Service violated his due process rights when the Forest 28 Service: (1) “newly created” a permit requirement in order to maintain MRR, when Violation of the Due Process Clause 7 20-cv-1046-LAB-SBC Case 3:20-cv-01046-LAB-SBC Document 36 Filed 08/16/23 PageID.408 Page 8 of 11 1 this requirement didn’t exist at the time that Green purchased the property in 2001; 2 and (2) classified a “key portion” of the road as a “maintenance level 2” road, 3 resulting in that portion being unsuitable for passenger cars. (Id. ¶ 127). The Court 4 has addressed the shortcomings of Green’s due process allegations twice, 5 ultimately dismissing the claim with leave to amend. (See Dkt. 14, 17). There is 6 no reason to reconsider those decisions now, so the Court addresses only the 7 new allegations in the SAC. 8 Neither a permit requirement nor the decision to eventually categorize MRR 9 as a “maintenance level 2” road amount to a deprivation of property under the 10 Fifth Amendment. “The Due Process Clause of the Fifth Amendment forbids the 11 federal government from depriving persons of ‘life, liberty, or property, without due 12 process of law.’” Clouser v. Espy, 42 F.3d 1522, 1540 (9th Cir. 1994). Here, the 13 Forest Service needn’t provide notice nor an opportunity to be heard because it 14 didn’t deprive Green of access to his property. 15 The Court disagrees that the permit requirement to maintain MRR deprived 16 Green of his due process rights. “A requirement that a person obtain a permit 17 before engaging in a certain use of his or her property does not itself ‘take’ the 18 property in any sense: after all, the very existence of a permit system implies that 19 permission may be granted, leaving the landowner free to use the property as 20 desired. . . . Only when a permit is denied and the effect of the denial is to prevent 21 ‘economically viable’ use of the land in question can it be said that a taking has 22 occurred.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127 23 (1985). Even if Green has a right to access his property, the Forest Service can 24 still regulate his access pursuant to the Federal Land Policy Management Act and 25 the Alaska National Interest Lands Conservation Act. See, e.g., Adams v. United 26 States, 3 F.3d 1254, 1259 (9th Cir. 1993); see also 16 U.S.C. § 3170(b) (rights 27 are subject to reasonable regulations to protect the natural and other values of 28 such lands). 8 20-cv-1046-LAB-SBC Case 3:20-cv-01046-LAB-SBC Document 36 Filed 08/16/23 PageID.409 Page 9 of 11 1 Here, Green recognizes the Forest Service has federal regulatory power 2 over National Forest land, which includes the land under MRR. (Dkt. 31 at 7). The 3 Forest Service notified Green and his neighbor that there was an area of MRR 4 that “cannot be bladed due to archeological concerns” on March 4, 2019. (SAC 5 ¶ 62). The day after Green and his neighbor completed maintenance on MRR, 6 excluding the final 135 yards, (id. ¶ 89), on May 8, 2019, Green contacted the 7 Forest Service to discuss maintenance of the final 135 yards, (id. ¶ 92). The 8 Forest Service advised Green that there were archeological resources near the 9 final 135 yards and that it was working on conducting an environmental review of 10 the surrounding area. (Id. ¶¶ 92–93). The Forest Service also informed Green that 11 it was in the “early stages” of adding a portion of MRR to the Forest Road System, 12 (id. ¶ 98), and that Green could seek a special use permit to maintain the road to 13 a higher standard, (id. ¶ 99). Instead, Green deliberately refused to engage in the 14 permit process because it “would be futile” to do so. (Id. ¶ 170). Whether the 15 permitting requirement is new isn’t relevant. The Forest Service didn’t deprive 16 Green of his property rights, so it wasn’t required to provide due process 17 protections. See Clouser, 42 F.3d at 1540. Green also has an opportunity to apply 18 for a special use permit if he wants to maintain the final 135 yards of MRR while 19 the Forest Service conducts its environmental assessment, which is an 20 opportunity to be heard on his concerns. See Riverside Bayview Homes, 474 U.S. 21 at 127. 22 As to the SAC’s second new allegation: the Court disagrees that the Forest 23 Service’s decision to deem a portion of MRR as a “maintenance level 2” road, 24 resulting in that portion being unsuitable for passenger cars, deprived Green of 25 due process. “Ripeness is more than a mere procedural question; it is 26 determinative of jurisdiction. If a claim is unripe, federal courts lack subject matter 27 jurisdiction and the complaint must be dismissed.” W. Linn Corp. Park L.L.C. v. 28 City of W. Linn, 534 F.3d 1091, 1099 (9th Cir. 2008) (quoting S. Pac. Transp. Co. 9 20-cv-1046-LAB-SBC Case 3:20-cv-01046-LAB-SBC Document 36 Filed 08/16/23 PageID.410 Page 10 of 11 1 v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990)). Here, Green’s claim is 2 unripe because the Forest Service hasn’t classified MRR as a “maintenance level 3 2” road yet. (See SAC ¶¶ 62 (“Unfortunately, this is not a National Forest System 4 Road it is under a Special Use Permit.”), 98 (“The Forest Service has an 5 Environmental Assessment in the early stages to add the portion of [MRR] on 6 [National Forest] land to the Forest Road System . . . If added, the USFS would 7 maintain the road . . . [but i]n its current state, the Forest [Service] considers the 8 road to provide reasonable access to the inholdings and is at least at what we 9 refer to as ‘maintenance level 2.’”) (second alteration in original)). Even assuming 10 the Forest Service already deemed MRR a “maintenance level 2” road, Green 11 wasn’t deprived of a property right because he can apply for a special use permit 12 even if he believes doing so is futile. (Id. ¶ 99). Until the permit is denied and the 13 denial prevents the economically viable use of Green’s land, a taking hasn’t 14 occurred. See Riverside Bayview Homes, 474 U.S. at 127. The Motion is 15 GRANTED as to Green’s procedural due process claim, 1 and that claim is 16 DISMISSED WITH PREJUDICE because Green still has an opportunity to apply 17 for a special use permit to maintain MRR and voice his concerns in the permitting 18 process. 19 C. 20 As the Court noted in its March 15, 2022 Order, the Declaratory Judgment 21 Act doesn’t support a standalone claim, but may provide a remedy for other 22 claims. (Dkt. 14 at 6). The Court dismissed with prejudice this standalone claim, 23 and Green hasn’t challenged the Court’s decision. Notwithstanding its prior 24 dismissal, Green again included a claim under the Declaratory Judgment Act in Declaratory Judgment Act 25 26 27 28 1 Although the Court’s February 27, 2023 Order determined Green had alleged new and sufficient facts to warrant leave to amend, (Dkt. 27 at 6–7), which the Forest Service opposed, that Order didn’t decide whether the allegations would survive a motion to dismiss. 10 20-cv-1046-LAB-SBC Case 3:20-cv-01046-LAB-SBC Document 36 Filed 08/16/23 PageID.411 Page 11 of 11 1 his SAC, arguing the claim is proper because he may seek remedies provided by 2 the statute in connection with other claims. (Dkt. 31 at 8). Even if true, the Court 3 has dismissed the SAC’s other claims, leaving only the claim under the 4 Declaratory Judgment Act. There is no relief available for this standalone claim, 5 so the Motion is GRANTED as to the Declaratory Judgment Act claim, which is 6 again DISMISSED WITH PREJUDICE. 7 IV. CONCLUSION 8 The Forest Service’s motion to dismiss the SAC is GRANTED. Green’s 9 Takings Clause claim is DISMISSED WITHOUT PREJUDICE AND WITHOUT 10 LEAVE TO AMEND and his Due Process and Declaratory Judgment Act claims 11 are DISMISSED WITH PREJUDICE. Because leave to amend may be denied 12 where, as here, amendment would be futile, the Court DENIES Green leave to 13 amend. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 14 (9th Cir. 2011); DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 15 1992); see also Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) 16 (district court’s discretion to deny leave to amend is “particularly broad” when it 17 has previously granted leave to amend). The Clerk of the Court is directed to 18 terminate this case. 19 IT IS SO ORDERED. 20 21 22 23 Dated: August 16, 2023 Honorable Larry Alan Burns United States District Judge 24 25 26 27 28 11 20-cv-1046-LAB-SBC
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