Donovan v. Mahoney et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Corey Donovan
v. 	Case No. 22-cv-215-JL
Joseph P. Mahoney, III, et al.1
REPORT AND RECOMMENDATION
Before the court is prisoner Corey Donovan’s Complaint
(Doc. No. 1) and his response (Doc. No. 5) to the October 20,
2022 Show Cause Order. 	Mr. Donovan’s pleadings (Doc. Nos. 1, 5)
are before this court for preliminary review, pursuant to 28
U.S.C. § 1915A and LR 4.3(d)(1).
Preliminary Review Standard
This court conducts a preliminary review of complaints
filed by prisoners seeking relief from government agents. 	See
LR 4.3(d)(1); see also 28 U.S.C. § 1915A. 	Claims may be
dismissed sua sponte, if the court lacks jurisdiction, a
defendant is immune from the relief sought, or the complaint
1 The defendants named in the Complaint are: Andover Police
Department Chief Joseph P. Mahoney, III; Danbury Police
Department (“DPD”) Chief David Suckling; DPD Sgt. Spencer
Marvin; (former) Hill Police Department Chief Andrew J.
Williamson; and the Towns of Andover, Danbury, and Hill, New
Hampshire.
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fails to state a claim upon which relief may be granted. 	See 28
U.S.C. § 1915A(b); LR 4.3(d)(1)(A). 	In considering whether the
complaint states a claim, the court determines whether, stripped
of legal conclusions, and with all reasonable inferences
construed in the plaintiff’s favor, the complaint contains
“sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” 	Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). 	The court
construes pro se pleadings liberally. 	See De Paula Vieira v. De
Souza, 22 F.4th 304, 311 (1st Cir. 2022).
Background
The plaintiff asserts that he was arrested without a
warrant on June 19, 2019 at a gas station in Andover, New
Hampshire, and that the arresting officers lacked probable
cause. 	The plaintiff further asserts that the arresting
officers used excessive force during the arrest, and that an
ensuing police cover-up involving fabricated testimony gave rise
to a malicious prosecution. 	The plaintiff alleges that these
incidents violated his rights under the Fourth and Fourteenth
Amendments. 	The plaintiff seeks damages under 42 U.S.C. § 1983
and state tort law, naming the arresting officers and their
municipal employers as defendants (specifically, Andover Police
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Department (“APD”) Chief Joseph P. Mahoney, III; Danbury Police
Department (“DPD”) Chief David Suckling; DPD Sgt. Spencer
Marvin; (former) Hill Police Department (“HPD”) Chief Andrew J.
Williamson; and the Towns of Andover, Danbury, and Hill, New
Hampshire).
On January 13, 2020, a jury in Merrimack County Superior
Court convicted Mr. Donovan of a single felony count of drug
possession and acquitted him of multiple charges of attempting
to take a gun from a law enforcement officer, being a felon in
possession of a dangerous weapon, and resisting arrest, arising
from the June 19, 2019 incident. 	Mr. Donovan appealed his drug
possession conviction, and the New Hampshire Supreme Court
(“NHSC”) reversed his conviction and remanded the matter, upon
finding that the arresting officers had seized Mr. Donovan in
violation of his rights under the N.H. Constitution, and that
the trial court had erred in denying Mr. Donovan’s motion to
suppress the evidence the officers acquired after they seized
him. 	See State v. Donovan, 175 N.H. 356, 287 A.3d 756 (N.H.
2022). 	The State nolle prossed the remanded drug possession
charge. 	See State v. Donovan, No. 217-2019-cr-00584 (N.H.
Super., Merrimack Cty., Dec. 16, 2022); see also Doc. No. 5-1.
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Claims
Construed liberally in light of the plaintiff’s pro se
status, the complaint and its addendum assert the following
claims under 42 U.S.C. § 1983 and state law:
1. 	On June 19, 2019, the arresting officers violated Mr.
Donovan’s Fourth Amendment right not to be subjected
to a warrantless, unreasonable search or seizure
without probable cause, rendering the arresting
officers liable under 42 U.S.C. § 1983, in that:
a. The arresting officers unreasonably and
unjustifiably prolonged their stop or seizure of Mr.
Donovan without a reasonable articulable suspicion
of criminal activity, when they took away his
identification, blocked his vehicle, and separated
him from his passenger; and
b. The arresting officers lacked a warrant or probable
cause to arrest Mr. Donovan for possessing a
machete, which Sgt. Marvin took from Mr. Donovan’s
car after Mr. Donovan had been seized in violation
of the state constitution.
c. HPD Chief Williamson subjected Mr. Donovan to a
warrantless unreasonable search of his person, in
that, after Sgt. Marvin had already been pat-frisked
Mr. Donovan, Chief Williamson searched Mr. Donovan’s
pockets, without having any reasonable belief that
Mr. Donovan could still be armed and dangerous.
2. 	On June 19, 2019, the arresting officers violated Mr.
Donovan’s Fourth Amendment rights by using excessive
force during his arrest, rendering each arresting
officer liable under 42 U.S.C. § 1983, in that:
a. Each arresting officer used excessive force or
excessively forceful restraints upon Mr. Donovan
when he was not resisting, including the use of
excessively tight handcuffs; kicks, strikes, and
blows to Mr. Donovan’s feet and body; the
application of a vascular neck restraint; drive-
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stunning or tasing Mr. Donovan multiple times; and
using pepper spray;
b. Each arresting officers failed to prevent the use of
excessive force by the other officers, despite
having an awareness of that use of excessive force
and a realistic opportunity to intervene to stop it;
and
c. Each arresting officer was instrumental in assisting
the other officers’ use of excessive force by
placing Mr. Donovan in a vulnerable position with
respect to those other officers.
3. 	On or about June 19, 2019, the arresting officers
fabricated evidence and prepared false reports, which
were used as the basis for Mr. Donovan’s prosecution,
resulting in his detention pursuant to legal process
without probable cause, in violation of the Fourth and
Fourteenth Amendments, rendering those defendants
liable under 42 U.S.C. § 1983, in that:
a. Chief Mahoney fabricated evidence that Mr. Donovan
had tried to take Chief Mahoney’s gun;
b. Sgt. Marvin fabricated evidence that Mr. Donovan was
reaching for Sgt. Marvin’s gun;
c. Sgt. Marvin fabricated evidence that Mr. Donovan
took Sgt. Marvin’s microphone; and
d. Chief Mahoney approved the falsified statements and
reports upon which the defendants had recommended
Mr. Donovan’s prosecution, knowing that those
statements or reports were false.
4. 	On or about June 19, 2019, the arresting officers
engaged in a civil rights conspiracy, giving rise to
their liability under 42 U.S.C. § 1983, in that:
a. They took actions to cover up their false arrest of
Mr. Donovan and their use of excessive force; and
b. They caused Mr. Donovan to be detained pursuant to
legal process, in violation of Mr. Donovan’s Fourth
and Fourteenth Amendment rights, by –
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i. 	Discussing the arrest and use-of-force incident
with one another, and with witnesses, before
writing their reports and statements;
ii. 	Including fabricated statements in their police
reports, which they knew to be false; and
iii. 	Causing those false statements to be submitted
to the prosecutor so that Mr. Donovan would be
prosecuted, in the absence of probable cause,
for charges upon which he was later acquitted.
5. 	The Towns of Andover, Danbury, and Hill are liable
under 42 U.S.C. § 1983 for the arresting officers’
civil rights conspiracy, and other violations of Mr.
Donovan’s Fourth and Fourteenth Amendment rights,
under Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978), in that:
a. Each Town had a custom or practice of not requiring
the preparation of after-the-fact reports concerning
the use of force;
b. Each Town failed to discipline the arresting
officers for failing to prepare reports concerning
the use of force;
c. Each Town failed to conduct an after-the-fact
investigation of the arresting officers’ alleged use
of excessive force in arresting Mr. Donovan;
d. The Town of Hill hired HPD Chief Anderson as HPD
police chief after his name appeared on the “Laurie
List” in August 2018; and
e. The Town of Danbury and two DPD officers (not named
as defendants in this case) were defendants in a
lawsuit filed by a person who is not a party in this
case, who claimed that he had been falsely arrested
and maliciously prosecuted in violation of his
federal constitutional rights, see Giroux v. Town of
Danbury, No. 1:06-cv-250 (D.N.H.).
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6. 	On June 19, 2019, the arresting officers subjected Mr.
Donovan to excessive force during his arrest,
resulting in Mr. Donovan’s severe emotional distress
and physical injuries:
a. Rendering each of the arresting officers liable
under state law for the torts of (i) assault, (ii)
battery, (iii) negligent infliction of emotional
distress, and (iv) intentional infliction of
emotional distress; and
b. Rendering their municipal employers -- the Towns of
Andover, Danbury, and Hill, liable under state law
for the arresting officers’ tortious conduct on a
theory of respondeat superior.
Discussion
I. 	Federal Claims
A. 	Fourth Amendment – Search and False Arrest (Claim 1)
1. 	Stop and Seizure (Claim 1(a))
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons . . . against unreasonable searches
and seizures.” 	U.S. Const. amend. IV. 	“[A]n officer may,
consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v.
Ohio, 392 U.S. 1, 30 (1968)). 	But such a “Terry stop” must be
both justified and commensurately limited. 	Hiibel v. Sixth Jud.
Dist. Ct., 542 U.S. 177, 185 (2004).
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A Terry stop is a brief detention that permits a
police officer to, “in appropriate circumstances and
in an appropriate manner[,] approach a person for
purposes of investigating possibly criminal behavior
even though there is no probable cause to make an
arrest.”
For a Terry stop to comply with the Fourth Amendment,
the officer must have “reasonable suspicion that the
person is or has been engaged in criminal activity.”
This assessment is based on the “totality of the
circumstances,” which requires that the detaining
officer have a “‘particularized and objective basis’
for suspecting legal wrongdoing.” . . . [T]his
objective standard asks courts to “focus not on what
the officer himself believed but, rather, on what a
reasonable officer in his position would have
thought.” . . . “[T]his process allows officers to
draw on their own experience and specialized training
to make inferences from and deductions about the
cumulative information available to them that ‘might
well elude an untrained person.’”
United States v. Harrington, 56 F.4th 195, 201 (1st Cir. 2022)
(internal citations omitted).
In Mr. Donovan’s direct appeal, the NHSC concluded that
under the New Hampshire Constitution, the officers lacked the
requisite reasonable suspicion to validate their seizure of Mr.
Donovan, when they blocked his car, took away his license, and
separated him from his passenger. 	Although that NHSC ruling did
not address whether the same conduct violated Mr. Donovan’s
Fourth Amendment rights, this court cannot conclude that Mr.
Donovan’s Terry stop claim (Claim 1(a)) fails to state a claim
upon which relief can be granted under § 1983. 	Accordingly, in
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the Order issued this date the court has directed service of
Claim 1(a) upon the arresting officers.
2. 	Machete (Claim 1(b))
In Claim 1(b), as identified by this court, Mr. Donovan has
asserted that he was subjected to a warrantless arrest, without
probable cause, in violation of the Fourth Amendment, in that he
was arrested for being a felon in possession of a dangerous
weapon, N.H. Rev. Stat. Ann. (“RSA”) 159:3, for having what the
NHSC characterized as “a large, sheathed machete between the
driver’s seat and the door.” 	Donovan, 175 N.H. at 358, 287 A.3d
at 759. 	Mr. Donovan asserts that the machete was a tool, not a
weapon. 	The jury acquitted him of the RSA 159:3 charge. 	Doc.
No. 1, at 9-10.
“Probable cause is an absolute bar to a claim of false
arrest asserted under the Fourth Amendment and section 1983.”
Dollard v. Whisenand, 946 F.3d 342, 353 (7th Cir. 2019); see
also Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir.
2009).
A police officer has probable cause when, at the time
of the arrest, the “facts and circumstances within the
officer’s knowledge . . . are sufficient to warrant a
prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to
commit an offense.”
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Holder, 585 F.3d at 504.
In general, arresting officers do not have a duty to
investigate to determine if there could be a viable defense to
prosecution under state law, once it appears that there is
probable cause for an arrest, see Acosta v. Ames Dep’t Stores,
Inc., 386 F.3d 5, 11 (1st Cir. 2004). 	Probable cause “does not
require officers to establish the elements of the offense with a
level of certainty as though trial-level proof must exist at the
side of the road.” 	United States v. Brooks, 982 F.3d 1177, 1180
(8th Cir. 2020).
Here, Mr. Donovan concedes that the officers knew he was a
federal probationer who had a felony record when they approached
his car. 	See Doc. No. 1, at 6-7. 	A prudent police officer of
reasonable caution, finding a large machete near the driver’s
seat of a car driven and owned by a person known to be a felon,
under the circumstances, could believe that the driver had
committed the offense of being a felon in possession of a
dangerous weapon. 	And the jury’s verdict to the contrary does
not vitiate the probable cause that existed at the time of the
arrest. 	See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)
(“the mere fact that [a defendant] is later acquitted of the
offense for which he is arrested is irrelevant to the validity
of the arrest”). 	Accordingly, the district judge should dismiss
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Mr. Donovan’s Fourth Amendment claim arising from his possession
of the machete (Claim 1(b)).
3. 	Chief Williamson’s Search (Claim 1(c))
Mr. Donovan has alleged that after he had been frisked for
weapons by DPD Sgt. Marvin, HPD Chief Williamson searched his
pockets, which Mr. Donovan asserts was not justified by any
reasonable concern for safety. 	At the point at which HPD Chief
Williamson searched Mr. Donovan’s pockets, however, the
arresting officers had probable cause to arrest him for being a
felon in possession of a dangerous weapon. 	Therefore, “they
could lawfully search his person incident to an arrest.” 	United
States v. Mulkern, 49 F.4th 623, 632 (1st Cir. 2022). 	As the
search of Mr. Donovan’s pockets was a search incident to an
arrest based on probable cause, Chief Williamson’s search of Mr.
Donovan did not violate the Fourth Amendment. 	Accordingly, the
district judge should dismiss Claim 1(c).
B. 	Fourth Amendment – Excessive Force (Claim 2)
To state a Fourth Amendment claim for the use of excessive
force incident to an arrest, Mr. Donovan must show that the
arresting officers’ actions were objectively unreasonable, in
light of the facts and circumstances known to them at the time
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of the use of force. 	See Jennings v. Jones, 499 F.3d 2, 11 (1st
Cir. 2007); see also Graham v. Connor, 490 U.S. 386, 397
(1989). 	Factors relevant to the objective reasonableness of the
force used include the “‘severity of the crime at issue, whether
the suspect pose[d] an immediate threat to the safety of the
officers or others, and whether he [was] actively resisting
arrest or attempting to evade arrest by flight.’” 	Jennings, 499
F.3d at 11 (citation omitted). 	Additionally, liability may
arise in circumstances where nonparticipating, onlooking
officers were aware of the use of excessive force by another
officer, had a reasonable opportunity to prevent the use of
excessive force, but failed to do so, and in circumstances where
the onlooking officer is instrumental in assisting the attacking
officer to place the victim in a vulnerable position. 	See
Torres-Rivera v. O’Neill-Cancel, 406 F.3d 43, 51-52 (1st Cir.
2005); Sheffield v. Pieroway, 361 F. Supp. 3d 160, 169 (D. Mass.
2019).
The allegations summarized above in Claims 2(a)-(c) state
Fourth Amendment excessive force claims against the arresting
officers upon which relief can be granted under 42 U.S.C.
§ 1983. 	Accordingly, in the Order issued this date, this court
has directed service of those claims against each arresting
officer.
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C. 	Malicious Prosecution – Fabricated Evidence (Claim 3)
“[T]he mere filing of [] false police reports, by
themselves and without more, d[oes] not create a right of action
in damages.” 	Landrigan v. City of Warwick, 628 F.2d 736, 745
(1st Cir. 1980). 	The court’s analysis of a claim of malicious
prosecution founded upon allegations of false police reports
must focus on the consequences of the false statements. 	Id.
[I]n most cases, the neutral magistrate’s
determination that probable cause exists for the
individual’s arrest is an intervening act that could
disrupt any argument that the defendant officer had
caused the continued unlawful seizure. . . . But if a
plaintiff can overcome this causation problem and
demonstrate that law enforcement officers were
responsible for his continued, unreasonable pretrial
detention, the plaintiff has stated a constitutional
injury that may be vindicated through a § 1983 action.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 100 (1st Cir. 2013);
see also Manuel v. City of Joliet, 580 U.S. 357, 368 (2017).
To prevail on a claim of malicious prosecution
under federal law, the plaintiff must “‘establish
that: the defendant (1) caused (2) a seizure of the
plaintiff pursuant to legal process unsupported by
probable cause, and (3) criminal proceedings
terminated in plaintiff’s favor.’” 	Pagán-González v.
Moreno, 919 F.3d 582, 601 (1st Cir. 2019) (quoting
Hernandez-Cuevas, 723 F.3d at 101)). . . . 	Police
officers may be deemed to have caused the seizure, and
remain liable to a wrongfully indicted defendant, when
they have “(1) ‘lied to or misled the prosecutors’;
(2) ‘failed to disclose exculpatory evidence’; or (3)
‘unduly pressured the prosecutor to seek the
indictment.’”
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Arias v. City of Everett, No. 19-10537-JGD, 2019 U.S. Dist.
LEXIS 209532, at *31-32, 2019 WL 6528894, at *12 (D. Mass. Dec.
4, 2019) (citation and footnote omitted).
The facts alleged in the complaint, construed liberally,
state a Fourth Amendment malicious prosecution claim upon which
relief can be granted, arising from the officers’ knowing and
intentional preparation, submission, and/or approval of
allegedly falsified police reports, and the alleged impact of
those reports on the plaintiff’s prosecution, as to each charge
upon which he was acquitted. 	Accordingly, in the Order issued
this date, the court has directed the defendants named in Claim
3 to file an answer to the Fourth and Fourteenth Amendment
malicious prosecution claims.
D. 	Civil Rights Conspiracy (Claim 4)
1. 	Cover Up (Claim 4(a))
[O]fficers involved solely in the cover up of
another officer’s assault and battery of a suspect,
without any evidence of a conspiratorial agreement
prior to the incident, cannot be held liable for the
original tort through a civil rights conspiracy.
Sanchez v. Foley, 972 F.3d 1, 12 (1st Cir. 2020) (citing Aubin
v. Fudala, 782 F.2d 280, 286 (1st Cir. 1983) (officers’ after-
the-fact acts to conceal a fatal shooting did not sufficiently
demonstrate conspiratorial agreement to deprive shooting victim
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of his constitutional rights)); see also Landrigan, 628 F.2d at
742 (officers who helped cover up another officer’s assault and
battery were not liable for assault and battery, because “the
conspiracy in which all were allegedly involved did not commence
until after plaintiff’s leg was broken”); cf. Santiago v.
Fenton, 891 F.2d 373, 389 (1st Cir. 1989) (jury could reasonably
infer that officers conspired to arrest the plaintiff, in
violation of his Fourth Amendment rights, based on evidence of
“discussions between the officers” before the arrest and jury’s
possible inference that officers had fabricated reason for
arrest).
Stripped of conclusory statements and speculation about the
conspiracy and cover-up, the allegations in the complaint fail
to state facts suggesting any conspiratorial agreement before
the allegedly unconstitutional seizure of Mr. Donovan and the
alleged use of excessive force incident to his arrest.
Therefore, the plaintiff has failed to state a civil rights
conspiracy claim upon which relief can be granted under § 1983
as to the use of excessive force and the Terry stop.
Accordingly, the district judge should dismiss Claim 4(a).
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2. 	Malicious Prosecution Conspiracy (Claim 4(b))
The facts alleged in the Complaint, as summarized in Claim
3(b), state a claim upon which relief can be granted as to the
existence of a civil rights conspiracy among the arresting
officers, which resulted in the malicious prosecution of Mr.
Donovan, giving rise to the officers’ potential liability under
42 U.S.C. § 1983. 	Accordingly, the Order this date directs
those individual defendants to answer Claim 4(b).
E. 	Monell Claims of Municipal Liability (Claim 5)
Claim 5 summarizes the allegations upon which Mr. Donovan
bases his claims of the defendant Towns’ liability under § 1983
for the conduct of each defendant police officer. 	Under § 1983,
a city or municipality cannot be held liable under 42 U.S.C.
§ 1983 on a theory of respondeat superior or vicarious
liability; the municipality itself must proximately cause the
constitutional injury, through the promulgation (or tacit
approval) of a municipal policy or custom, which must be the
moving force behind the constitutional violation. 	See Bd. of
Cty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997); Monell, 436
U.S. at 690-91. 	In other words, the plaintiff must establish
“that the municipal action was taken with the requisite degree
of culpability and must demonstrate a direct causal link between
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the municipal action and the deprivation of federal
rights.” 	Brown, 520 U.S. at 404.
Liability will attach to the municipal employer where
its failure to properly train its officers “amounts to
deliberate indifference to the rights of persons with
whom the police come into contact,” and where a
specific deficiency in training is the “moving force”
behind a constitutional injury.
Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir. 2002)
(citations omitted).
The allegations in Mr. Donovan’s pleadings include the Town
of Hill’s hiring of its Chief of Police after he had placed on
the Laurie list,2 and the Towns’ policies as to after-the-fact
investigations and reports. 	Such factual allegations, taken as
true, might give rise to a claim of negligence, but fail to
demonstrate deliberate indifference. 	The Complaint further
alleges that a third party more than ten years before had sued
the Town of Danbury and several of its officers who are not
parties here, in a case where no defendant was found to be
liable, see Apr. 9, 2008 Jt., Giroux, No. 1:06-cv-250-PB (D.N.H.
Apr. 9, 2008) (ECF No. 68). 	None of the allegations in the
2 The New Hampshire Attorney General’s Office “currently
maintains a list of police officers who have engaged in
misconduct reflecting negatively on their credibility or
trustworthiness. 	The list, formerly known as the ‘Laurie List,’
is now called the Exculpatory Evidence Schedule (EES).” 	Doe v.
Att’y Gen., 175 N.H. 349, 351 n.1, 287 A.3d 713, 715 n.1 (N.H.
2022) (citation omitted).
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pleadings state an actionable § 1983 claim against the
municipalities upon which relief can be granted. 	See, e.g.,
Landrigan, 628 F.2d at 747 (employment of tortfeasor, without
more, is “an insufficient predicate for section 1983
liability”); see also Kingsley v. Hendrickson, 576 U.S. 389, 396
(2015) (“‘liability for negligently inflicted harm is
categorically beneath the threshold of constitutional due
process’” (emphasis in original, citation omitted)).
II. 	State Law Tort Claims (Claim 6)
Claim 6 summarizes the allegations underlying Mr. Donovan’s
assertion of tort claims, arising under state law, upon which
relief can be granted. 	Those claims are within this court’s
jurisdiction under 28 U.S.C. § 1367. 	Accordingly, in the Order
issued this date, the court has directed service of Claims 6(a)
and 6(b) as to each arresting officer, as well as against the
officers’ municipal employers, under a theory of respondent
superior.
Conclusion
For the foregoing reasons, the district judge should:
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1. 	Dismiss Claims 1(b), 1(c), and 4(a), as to the
individual police officers named as defendants, for failure to
state a claim upon which relief can be granted; and
2. 	Dismiss the claims asserting municipal liability under
42 U.S.C. § 1983, as to the Towns of Hill, Andover, and Danbury
(Claim 5), for failure to state a claim upon which relief can be
granted.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	The
objection period may be extended upon motion. 	Failure to file
any objection within the specified time waives the right to
appeal the district court’s Order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016). 	Only those issues
raised in the written objections “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” 	Id. (citations omitted).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 13, 2023
cc: 	Corey Donovan, pro se
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