Polk v. Pittman et al

Filing 110

FINDINGS and RECOMMENDATIONS Denying Motion to Supplement Complaint; Dismissal of the Action With Prejudice for Failure to Comply With Rule 8 and 18 and Failure to Comply With Court Orders 98 , 108 , signed by Magistrate Judge Barbara A. McAuliffe on 8/8/17: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUSAN MAE POLK,

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Plaintiff,

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v.

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PITTMAN, et al.,

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Defendants.

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Case No.: 1:11-cv-00728-DAD-BAM PC
ORDER DENYING MOTION TO SUPPLEMENT
COMPLAINT
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF THE
ACTION WITH PREJUDICE FOR FAILURE TO
COMPLY WITH RULE 8 AND 18 AND
FAILURE TO COMPLY WITH COURT ORDERS
ECF No. 98, 108

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FOURTEEN-DAY DEADLINE
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I.
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Screening Requirement

Plaintiff Susan Mae Polk (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 6, 2011. On December 22,
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2014, the Court issued an order regarding Plaintiff’s third amended complaint. The order dismissed
Plaintiff’s third amended complaint, filed May 14, 2013, for violating Federal Rules of Civil

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Procedure 8, 18, and 20. (ECF No. 83.) Following multiple extensions of time, resolution of
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objections and various motions, Plaintiff’s fourth amended complaint, filed on June 15, 2015, and

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Plaintiff’s motion to supplement the complaint, filed October 17, 2016, are currently before the Court.

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(ECF No. 98, 108.)

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. §

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1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient

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factual detail to allow the Court to reasonably infer that each named defendant is liable for the

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misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v.

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United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant

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acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572

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F.3d at 969.

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II.

Allegations of Fourth Amended Complaint

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Plaintiff currently is incarcerated at the California Institution for Women. Plaintiff’s fourth

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amended complaint alleges claims arising at Valley State Prison for Women against more than forty

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named defendants who are sued in both their official and individual capacities. Like the dismissed

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third amended complaint, the fourth amended complaint contains allegations regarding events
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spanning the time from Plaintiff’s arrival at the Valley State Prison for Women in February 2007

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through January 2012. Plaintiff alleges a civil conspiracy between unnamed County prosecutor,

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County sheriff and other Contra Costa County officials in her underlying conviction in 2007 and the

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correctional officials named in this action for interfering with her efforts to overturn her conviction.

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Plaintiff complains about an excessive force incident, failure to protect on August 29, 2003 and

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subsequent conspiracy and false reporting. (ECF No. 98, p.12.)

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In Claims 1-3 of the fourth amended complaint, Plaintiff alleges a jumble of incidents, actors

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and harms which continued over the entire time period of 2007 to 2012. Plaintiff complains about

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numerous incidents during this time period: multiple improper housing classifications, falsified

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classifications reports, cell mate injuries to her, failing to protect against those injuries, officials using

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old erroneous probation reports against her, officials claiming she had a mental disorder, threatened to

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be put her in a mental hospital, retaliated against by writing her up and called delusional, conspiracy

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by the Jewish mafia,1 officials denying her legal mail, improper transfer to a different institution, an

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overarching conspiracy to cover up and retaliate in thwarting litigation challenging her conviction and

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for filing grievances, extorting Plaintiff to hire an official’s friend as a lawyer, falsified write ups,

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disregarding regulations, forcing her to wear a snitch jacket, improper and lack of due process

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hearings, and cover-ups of the cover-ups, among many other purported wrongs by over 40 different

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defendants. Plaintiff complains about numerous incidents of being housed with incompatible

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cellmates who tried or who did harm her during various years of her incarceration, and that various

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officers ignored her safety concerns. Classification decisions were made which ignored her safety

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concerns. Plaintiff alleges conspiracy, deliberate indifference to safety in violation of the Eighth

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Amendment, and denial of access to the Courts and retaliation under the First Amendment, among the

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potential claims. Plaintiff requests declaratory and injunctive relief, along with compensatory and

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punitive damages.

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In her motion to supplement the complaint (Doc. 108, 109), Plaintiff seeks to add a new claim
for retaliation and a new defendant for conduct which occurred after the filing of the third amended

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She was in danger because her deceased husband’s friends were Jewish mafia. (ECF No. 98, p.17.)

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complaint. In her proposed supplement, Plaintiff alleges that in 2012, the Associate Warden Scott,

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Acting Sgt. Mason and Lt. Montoya escalated a campaign of harassment and retaliation for Plaintiff’s

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pursuit of grievances and litigation described in the Claims 1-3, denied her mail, refused to process

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legal mail, denied her law library access, falsified write-ups, refused to recognizing her right to Fifth

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Amendment privilege in response to write ups, failed to protect her from threats of physical harm by

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inmates, among other allegations.

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III.

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A. The Fourth Amended Complaint fails to Comply with Federal Rule of Civil

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Discussion

Procedure 8 and 18
In multiple prior screenings, Plaintiff was informed of the requirements of Rule 8. Pursuant to

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Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain statement of the claim

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showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must set forth

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“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

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Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as

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true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–557. If a plaintiff fails to

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clearly and concisely set forth allegations sufficient to provide defendants with notice of which

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defendant is being sued on which theory and what relief is being sought against them, the complaint

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fails to comply with Rule 8. See, e.g., McHenry v. Renne, 84 F.3d 1172, 1177–79 (9th Cir.1996);

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Nevijel v. Northcoast Life Ins. Co., 651 F.2d 671, 674 (9th Cir.1981). Moreover, failure to comply

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with Rule 8(a) constitutes an independent basis for dismissal of a complaint that applies even if the

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claims in a complaint are not found to be wholly without merit. See McHenry, 84 F.3d at 1179;

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Nevijel, 651 F.2d at 673.

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In addition to Rule 8 violations, as plaintiff was previously informed in multiple screenings,

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Plaintiff complaint continues to violate Rule 18. Plaintiff is raising numerous claims against different

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defendants based on different events occurring at different times. Plaintiff may not bring unrelated

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claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley,
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635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff may

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bring a claim against multiple defendants so long as (1) the claim arises out of the same transaction or

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occurrence, or series of transactions and occurrences, and (2) there are commons questions of law or

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fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert

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Empire Bank v. Insurance Co. of North America, 623 F.2d 1371, 1375 (9th Cir. 1980). Only if the

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defendants are properly joined under Rule 20(a) will the Court review the other claims to determine if

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they may be joined under Rule 18(a), which permits the joinder of multiple claims against the same

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party.

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Plaintiff’s fourth amended complaint does not include a short and plain statement of her claims

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within the requirements of joinder. It is yet again a rambling recitation of the ills she has purportedly

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suffered while incarcerated. Plaintiff’s complaint details various events taking place between 2007 and

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2012 and involves a multitude of defendants. Plaintiff has reorganized and listed “claims,” but the

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rambling, disorganized nature of the facts and failure to identify specific incidents (as opposed to

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every incident) she seeks to address. Rather, the fourth amended complaint seeks to address nearly

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every conceivable civil rights violation possible under section 1983. See Polk v. Beard, No. EDCV

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13-1211-BRO, 2014 WL 4765611, at *4 (C.D. Cal. June 20, 2014) (“Although plaintiff's SAC again

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has been rearranged and plaintiff now purports to set forth her factual allegations within each of

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separate “claims,” the scope, verbosity, disorganization, and incoherence of her factual allegations

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remain unaltered.”), report and recommendation adopted, No. EDCV 13-1211-BRO RNB, 2014 WL

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4757503 (C.D. Cal. Sept. 24, 2014), aff'd, No. 14-56884, 2017 WL 2839502 (9th Cir. July 3, 2017).

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As did the third amended complaint, Plaintiff’s fourth amended complaint fails to comply with Federal

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Rules of Civil Procedure 8 and 18.

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Plaintiff has not followed the Court’s orders in curing the pleading deficiencies. For instance,

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the fourth amended complaint continues to name defendants in both individual and official capacities.

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Plaintiff has been warned that defendants cannot be sued in their official capacity for monetary

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damages. Plaintiff’s conclusory allegations of an overarching conspiracy among the forty or so

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defendants, and with unnamed prosecutors/probation officers, etc., to deprive Plaintiff of her

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constitutional rights fail to state a plausible claim. Plaintiff does not purport to set forth any factual
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allegations from which any reasonable inference could be drawn to support the existence of such a

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wide ranging “conspiracy.” She was provided the standards for alleging a conspiracy and has been

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unable or unwilling to comply.

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Further, while the fourth amended complaint “groups” together some defendants and alleges

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some facts as to them, these allegations fail to comply with Rule 8 and 18. It is impossible to tell what

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she alleges are her wrongs, aside from the entirety of her contacts with each defendant. For instance,

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in Claim 1, which is entitled “Defendants conspired to deprive plaintiff of her civil right including but

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not limited to her right to petition government for redress of her grievances,” Plaintiff alleges more

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than just denial of access. She alleges that defendants Scott, Radcliffe, Brown, Furbert, Henry,

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Cogan, E. Keith, B. Davis, Kunkel, Neumann, Eichenberger and Yanders conspired with Contra Costa

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County to (1) thwart litigation challenging my conviction and malicious prosecution, false

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imprisonment, policy brutality and defamation suit, (2) cover-up their misconduct and that of their

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CDCR and county colleagues and (3) retaliate against me for pursuing grievances. (ECF No. 98,

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p.15.) But the allegations within this claim are not limited to facts related to denial of access to the

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court. Included within this claim are factual allegations of failure to protect from an assault, erroneous

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classification, falsified reports, failure to protect, failure to comply with CDCR regulations, and a

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multitude of other allegations of purported wrongdoing. Indeed, it is impossible to determine which

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facts apply to which claim or which defendant because Plaintiff incorporates by reference everything

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else in the complaint. (ECF No. 98, p. 15 (“I reallege and incorporate by reference the foregoing

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sections.”)) The remainder of the complaint is similarly defective. Each claim includes unrelated and

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factually dissimilar claims such as failure to protect, retaliation, interference with court access, to

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name just a few potential claims. Buried within each “claim” are factual recitations of unrelated

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harms by defendants, rather than a short plain statement of the incident at issue. And again, to

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complicate the determination of cognizable claims, Plaintiff “incorporates by reference” each prior

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sections’ factual allegations.

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The Court has made a diligent attempt to parse the lengthy diatribe of her incarceration into

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cognizable claims. It is not, however, the Court’s responsibility to ferret out cognizable claims. “The

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Court is not obligated to endlessly sift through plaintiff's rambling, confusing, repetitive factual
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allegations in an attempt to construct cognizable claims on plaintiff's behalf. Polk v. Beard, No.

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EDCV 13-1211-BRO, 2014 WL 4765611, at *5 (C.D. Cal. June 20, 2014), report and

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recommendation adopted, No. EDCV 13-1211-BRO RNB, 2014 WL 4757503 (C.D. Cal. Sept. 24,

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2014), aff'd, No. 14-56884, 2017 WL 2839502 (9th Cir. July 3, 2017). "It is not the responsibility of

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the Court to review a rambling narrative in an attempt to determine the number and nature of a

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plaintiff's claims." Pianka v. Unknown Palmer, 2014 WL 6983337, *2 (D. Ariz. 2014). Plaintiff was

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previously notified of the applicable legal standards and the deficiencies in her pleading, and despite

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guidance from the Court, Plaintiff’s fourth amended complaint contains fundamental deficiencies.

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Based upon the allegations in Plaintiff’s original complaint, first amended complaint, second amended

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complaint, and third amended complaint, the Court is persuaded that Plaintiff is unable to allege facts

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to satisfy Rule 8 and 18.
The Court acknowledges that in pro se complaints, the complaint is to be liberally construed.

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See Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir.2013). Moreover, the Court acknowledges

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that it is particularly important in a civil rights case filed by a pro se inmate to attempt to ascertain

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plaintiff's claims to protect her access to the courts. See Blaisdell, 729 F.3d at 1241 (the rule that

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courts liberally construe filings by pro se litigants, especially in civil rights cases filed by inmates,

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“relieves pro se litigants from the strict application of procedural rules”); Pouncil v. Tilton, 704 F.3d

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568, 575–76 (9th Cir.2012) (the rule of liberal construction “protects the rights of pro se litigants to

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self-representation and meaningful access to the courts”), cert. denied, ––– U.S. ––––, 134 S.Ct. 76,

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187 L.Ed.2d 30 (2013).
Plaintiff has been repeatedly warned of the deficiencies in her complaint, with particular

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emphasis on the requirement that her complaint must comply with the applicable joinder rules.

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Despite the warning and the opportunity to pursue certain cognizable claims, Plaintiff opted to file a

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deficient fourth amended complaint. At this juncture, the Court will not expend its already taxed and

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scarce judicial resources parsing through Plaintiff’s fourth amended complaint to determine which

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causes of action should proceed against which defendants.

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B. Futility of Amendment

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In dismissing a Complaint for failure to obey a court order, or for gross pleading deficiencies,

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which is what Rules 8 encompasses, the Ninth Circuit has generally held that “a district court should

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grant leave to amend even if no request to amend was made, unless it determines that the pleading

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could not possibly be cured by the allegation of other facts. Doe v. U.S., 58 F.3d 494, 497 (9th Cir.

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1995) quoting Cook, Perkiss & Liehe v. N. Cal. Collection Service, 911 F.2d 242, 247 (9th Cir. 1990).

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However, the policy of freely allowing a motion to amend is overcome by situations in which there

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has been undue delay, bad faith, prejudice, and futility. Harris v. Secretary of Housing and Urban

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Development, 2014 WL 6060171 *11 (E.D. Cal. Nov. 12, 2014); see Cal. Architectural Bldg. Prod.,

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Inc. v. Francisan Ceramics, Inc., 818 F.2d 1466, 1472 (9th Cir. 1988). In any event, the court does not

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have to allow futile amendments. In fact, the Ninth Circuit held in Klamath-Lake Pharmaceutical

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Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) cert. denied 464 U.S. 822

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(1983), that “futile amendments should not be permitted.” (Emphasis added.). A district court may

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dismiss without leave where a plaintiff's proposed amendments would fail to cure the pleading

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deficiencies and amendment would be futile. See Cervantes v. Countrywide Home Loans, Inc., 656

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F.3d 1034, 1041 (9th Cir. 2011).
Here, the Court finds that allowing Plaintiff to amend, yet again, would be a futile act. Plaintiff

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has repeatedly failed to state a claim in the manner required by Federal Rule of Civil Procedure (8)(a)

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or Rule 18 despite specific and repeated guidance by the Court. The Court instructed Plaintiff that she

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may not bring unrelated claims and must allege a short plain statement of her claims. District courts

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have particularly broad discretion to dismiss without leave to amend based on futility where a plaintiff

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has amended once already. Here, the Court offered Plaintiff repeated guidance and provided Plaintiff

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with legal standards, yet Plaintiff either refused to or otherwise is unable to comply with the Court’s

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orders. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009), as amended

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(Feb. 10, 2009). Plaintiff is either unwilling or unable to follow the Court’s instructions despite having

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had three efforts to plead in compliance.

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C. Factors to Determine Whether to Dismiss

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Fed.R.Civ.P. 41(b) accords a district court the discretion to dismiss a plaintiff's action because

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of his or her failure to prosecute, to comply with any order of the court, or to comply with the Federal

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Rules of Civil Procedure. See, e.g., Hearns v. San Bernardino Police Dep't., 530 F.3d 1124, 1129 (9th

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Cir. 2008). In determining whether to dismiss an action for failure to comply with a court order or

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Rule 8, a court “must weigh five factors including: ‘(1) the public's interest in expeditious resolution

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of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4)

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the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives.’” See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (quoting Thompson v.

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Housing Auth., 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60

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(1986)).

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The Court finds that the first two factors—the public's interest in expeditious resolution of

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litigation and the Court's need to manage its docket—weigh strongly in favor of dismissal. Plaintiff, in

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three amended pleadings, has been unable to comply with requisite pleading standards. The Court

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provided Plaintiff with a detailed explanation of the deficiencies of her claims and apprised of the

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legal standards for stating a claim on which relief may be granted. Each time the Court screened a

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complaint, Plaintiff filed extensive objections or other motions (See e.g. ECF No. 25, 26, 28, 29, and

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ECF No. 85, 86-89, 93). After the panoply of Plaintiff’s objections and motions were considered and

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determined and Plaintiff filed the next-in-line amended complaint, that amended complaint entirely

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failed to remedy the deficiencies of her earlier pleading as required by court order, resulting in another

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round of Court screening and a battery of Plaintiff’s objections and accompanying motions. The Court

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does not find that an additional opportunity to amend the complaint would remedy any of the

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deficiencies of the complaint. Many other litigants compete for the Court's attention in order to reach

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“the just, speedy and inexpensive determination of every action and proceeding” as Federal Rule of

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Civil Procedure 1 mandates. Continued maintenance of this action diverts needed resources from other

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cases in need of equal attention.

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The third factor—prejudice to defendants—also weighs in favor of dismissal. Although no
defendants have yet appeared in this action, the Ninth Circuit has recognized that “[p]rolix, confusing
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complaints ... impose unfair burdens on litigants and judges.” See McHenry, 84 F.3d at 1179; see also,

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e.g., Cafasso v. General Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (finding denial

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of leave to amend a complaint that was extraordinarily prolix was within the district court's discretion

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and that the lengthy pleading would prejudice the opposing party because it would “burden her

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adversary with the onerous task of combing through a 733–page pleading just to prepare an answer

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that admits or denies such allegations, and to determine what claims and allegations must be defended

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or otherwise litigated”). Here, Plaintiff has been granted multiple opportunities to amend, given legal

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standards, yet continues to name over 40 different defendants for discrete and unrelated acts in

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pleadings which are convoluted and disjoined. The Court finds that permitting Plaintiff to proceed

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with her claims would place an unfair burden on defendants in discerning which of Plaintiff's claims

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they must respond to and which defendant is responsible for which wrongful act.

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The third factor -- public policy of disposition of cases on their merits - runs against the

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dismissal. But, standing alone, it is insufficient to overcome the benefits to the action proposed. See,

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e.g., See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (even if two factors weigh

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against dismissal, “they would not outweigh the other three factors that strongly support dismissal”)

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(citing Malone v. United States, 833 F.2d 128, 133 n. 2 (9th Cir.1987) (noting that, although the fourth

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factor weighed against dismissal, “it is not sufficient to outweigh the other four factors, which in this

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case support dismissal”)).

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The fifth factor - the availability of less drastic alternatives - weighs strongly in favor of

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dismissal. The only other alternative to dismissal is to dismiss the complaint without prejudice and

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allow plaintiff to amend one more time. The Court has given Plaintiff the legal standards for the

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purported claims and addressed each of her many objections, motions, and clarifications. The Court

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has granted nearly all of Plaintiff’s requests for extensions of time to amend her pleading. Given the

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history of this case, and the pleading choices of the Plaintiff to date, it is clear that Plaintiff has failed

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to amend her pleading in any substantive manner to comply with the Court’s orders and to advance the

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case beyond the mere complaint level. Rather, Plaintiff has advanced pleadings in a manner

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guaranteed to invite additional delay and motion practice, with the attendant resource-zapping use of

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judicial resources, favors the Court's recommendation to dismiss the case with prejudice. Thus,
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granting plaintiff yet another opportunity to amend her pleading would be futile. See Desoto v. Yellow

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Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Taylor v. Wells Fargo Bank, N.A., 2015 WL

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925741 (E.D. Cal. Feb. 27, 2016).

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As noted by one court, in referring to this particular Plaintiff: “plaintiff's history of litigation in

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other cases supports the dismissal of this action with prejudice. Plaintiff has filed a number of other

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federal civil rights actions raising claims against state and local officials in which, as she has herein,

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she has engaged in a pattern of disputing judicial orders, filing meritless motions, and failing to

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comply with court orders and the Federal Rules of Civil Procedure.” Polk v. Beard, No. EDCV 13-

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1211-BRO, 2014 WL 4765611, at *9 (C.D. Cal. June 20, 2014) (compiling cases), report and

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recommendation adopted, No. EDCV 13-1211-BRO RNB, 2014 WL 4757503 (C.D. Cal. Sept. 24,

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2014), aff'd, 2017 WL 2839502 (9th Cir. July 3, 2017). Thus, four of the five factors weigh strongly in

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favor of dismissal. These factors, coupled with Plaintiff’s litigation history in this warrants dismissal

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of this action with prejudice.

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IV.

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Accordingly, it is HEREBY RECOMMENDED that:

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Plaintiff’s motion to supplement the complaint be denied as moot; and

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This action be DISMISSED with PREJUDICE pursuant to Rule 41(b) for failure to

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Conclusion and Order

comply with Rule 8 and 18 and for failure to follow Court orders.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provision of Title 28 U.S.C. §636 (b)(1)(B). Within fourteen

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(14) days after being served with these Finding and Recommendations, the parties may file written

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objections with the Court. The document should be captioned “Objections to Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 834, 838-39 (9th

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Cir. 2014)(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

August 8, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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