Durden v. CDCR et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending Dismiaal of 40 Action, with Prejudice, for Failure to State a Claim upon which Relief may be Granted; Objections Due within Fifteen Days signed by Magistrate Judge Gerald B. Cohn on 1/17/2012. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 2/6/2012. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LARRY FRANCIS DURDEN,
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Plaintiff,
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v.
CDCR, et al.,
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CASE NO. 1:11-cv-01019-LJO-GBC (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF ACTION,
WITH PREJUDICE, FOR FAILURE TO
STATE A CLAIM UPON WHICH RELIEF
MAY BE GRANTED
Defendants.
/ OBJECTIONS DUE WITHIN FIFTEEN DAYS
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Screening Order
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I. Procedural History
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On June 6, 2011, Plaintiff Larry Francis Durden, a state prisoner proceeding pro se and in
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forma pauperis, filed a complaint pursuant to 42 U.S.C. § 1983, naming defendants from California
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Correctional Institution in Tehachapi, California (“CCI”).1 See Pl. Compl. Doc. 1. On July 1, 2011,
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Plaintiff filed an “Affidavit / Second Extension to First Complaint.” Doc. 8. On July 5, 2011,
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Plaintiff filed a document entitled “Plaintiff States a Claim.” Doc. 10.2 On November 18, 2011 and
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November 23, 2011, Plaintiff filed documents entitled “Affidavits.” Docs. 32, 34, & 36. Although
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these various filings violated Local Rule 220, the undersigned considered Plaintiff’s supplemental
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pleadings in the first screening, in the interest of judicial economy. On December 8, 2011, the Court
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issued a screening order, dismissing Plaintiff’s case, with leave to file an amended complaint. Doc.
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39. On December 19, 2011, Plaintiff filed his second amended complaint. Doc. 40.3
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Plaintiff is now incarcerated at R.J. Donovan Correctional Facility in San Diego, California (“R.J. Donovan”).
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The case docket labels this document as “First Amended Complaint.”
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On December 23, 2011, December 29, 2011, and December 30, 2011, Plaintiff filed four “Affidavits of
Extension of Second Amended Complaint.” Docs. 42-45. As the Court stated in its original screening order, the Court
will not consider any of these supplemental filings, as a violation of Local Rule 220.
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II. Screening Requirement
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a
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claim upon which relief may be granted.” 28 U.S.C. § 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
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is 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, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl.
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Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge unwarranted
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inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual
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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.
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Under § 1983, Plaintiff must demonstrate that each defendant personally participated in the
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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the
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presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct.
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at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of
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misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572
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F.3d at 969.
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III. Plaintiff’s Second Amended Complaint
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A. Allegations of Impeding U.S. Mail
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In Plaintiff’s second amended complaint, he states that the United States Postal Service
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stopped his mail for being a sex offender. Pl. Compl. at 2, Doc. 40. Plaintiff states that in March and
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April 2011, Defendant Staton was the last human being who had his trust fund statement and it never
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made it to the trust fund office. Id. at 4. Plaintiff further alleges that all Defendants stopped his trust
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fund statement from arriving at the trust fund office. Id. at 5.
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Prisoners have “a First Amendment right to send and receive mail.” Witherow v. Paff, 52
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F.3d 264, 265 (9th Cir. 1995). However, the right is not absolute and may be infringed upon by
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prison officials under certain circumstances. Witherow, 52 F.3d at 265 ; Barrett v. Belleque, 544 F.3d
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1060, 1062 (9th Cir. 2008) (per curiam) (outgoing mail); Prison Legal News v. Lehman, 397 F.3d
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692, 699 (9th Cir. 2005) (incoming mail). Plaintiff has not alleged any facts supporting a claim that
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the Defendants named in this action violated his rights under the First Amendment by impermissibly
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interfering with his incoming or outgoing mail. Plaintiff simply alleges that Defendant Staton was
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the last human being who had his trust fund statement. Accordingly, the undersigned recommends
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that Plaintiff fails to state a cognizable claim for relief under § 1983 based upon interference with
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his First Amendment right to send and receive mail.
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B. Allegations of Denial of Access to Courts
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Plaintiff alleges that since Defendants prevented his trust fund statement from arriving at the
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trust fund office, he was unsuccessful in his court case, Durden v. Albertazzi, 2:11-cv-00215-EFB
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(E.D. Cal.).4 Pl. Compl. at 1, 4-5, Doc. 40. Plaintiff also alleges he can only go to the law library
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twice a month and “they” will not let him have his legal law material. Id. at 5.
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Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518
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U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011). The right of
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access to the courts is merely the right to bring to court a grievance the inmate wishes to present, and
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is limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354.
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To bring a claim, a prisoner must have suffered an actual injury by being shut out of court.
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Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351; Phillips v. Hust, 588
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F.3d 652, 655 (9th Cir. 2009).
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Plaintiff states he can only go to the law library twice a month and “they” will not let him
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have his legal law material. However, Plaintiff does not allege any actual injury as a result of his
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alleged inadequate access to the prison law library and legal research materials. Lewis, 518 U.S. at
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In Plaintiff’s complaint, he cites civil action number 2:11-cv-01512-DAD, which is Durden v. CDCR.
However, Plaintiff refers to Durden v. Albertazzi, which is civil action number 2:11-cv-00215-EFB.
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351. Plaintiff contends that Defendants prevented him from prevailing in Durden v. Albertazzi,
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2:11-cv-00215-EFB. In Durden v. Albertazzi, the Court ordered Plaintiff to submit a trust fund
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statement. Doc. 7. On March 7, 2011, Plaintiff responded to the court but failed to provide a trust
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fund statement. Doc. 9. On March 30, 2011, Plaintiff sent the court a notice that he has problems
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receiving his mail but still failed to submit a trust fund statement. Doc. 10. On April 25, 2011,
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Plaintiff submitted a change of address and affidavit but still failed to submit a trust fund statement.
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Doc. 12. On May 19, 2011, the court dismissed Plaintiff’s case, without prejudice, for failing to
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provide a trust fund statement. Doc. 13. Thus, Plaintiff sent the court three items of correspondence
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before the court dismissed his case for failing to provide a trust fund statement. Moreover, the court
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dismissed his case without prejudice. Therefore, Defendants could not have denied him access to the
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courts when he was able to submit three items of correspondence to the court after the court ordered
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him to submit a trust fund statement. In addition, the case was dismissed without prejudice.
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Accordingly, the undersigned recommends that Plaintiff fails to state a cognizable claim for relief
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under § 1983 based upon denial of access to courts.
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C. Allegations of Supervisory Liability
In Plaintiff’s second amended complaint, he names Associate Warden Byant but does not
make any allegations against the associate warden.
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With respect to supervisory, managerial, or executive-level personnel, Plaintiff must still
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demonstrate that each named defendant personally participated in the deprivation of his rights.
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Iqbal, 129 S. Ct. at 1948-49; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir.
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2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.
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Supervisors may only be held liable if they “participated in or directed the violations, or knew of the
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violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989);
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accord Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570
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(9th Cir. 2009); Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th
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Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Liability may not be imposed
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on supervisory personnel under the theory of respondeat superior. Iqbal, 129 S. Ct. at 1948-49;
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Ewing, 588 F.3d at 1235.
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Plaintiff may not hold the associate warden liable based on his position of authority as
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Plaintiff has not alleged any facts linking him to acts or omissions which suggest he participated or
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directed the violations, or knew of the violations and failed to prevent them. Iqbal, 129 S. Ct. at
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1948-49; Ewing, 588 F.3d at 1235. Accordingly, the undersigned recommends that Plaintiff fails to
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state a cognizable claim for relief under § 1983 based upon supervisory liability.
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D. Eleventh Amendment Immunity
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In Plaintiff’s second amended complaint, he names the CDCR and CCI. As a state agency,
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the CDCR and CCI are entitled to Eleventh Amendment immunity from suit. Aholelei v. Dept. of
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Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Therefore, the CDCR and CCI are improper
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Defendants in this action and entitled to dismissal. Id. Accordingly, the undersigned recommends
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that Plaintiff fails to state a cognizable claim for relief under § 1983 against the CDCR and CCI.
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E. Improper Venue
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In Plaintiff’s second amended complaint, he names R.J. Donovan. Venue for Plaintiff’s
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claims against R.J. Donovan is not proper in the Eastern District of California and may not be
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pursued in this action. See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986) (court may raise
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defective venue sua sponte); see also Davis v. Mason County, 927 F.2d 1473, 1479 (9th Cir. 1991)
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(courts have broad discretion regarding severance). If Plaintiff wishes to pursue a claim against R.J.
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Donovan, he may file a new action in the correct district. Accordingly, the undersigned recommends
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that Plaintiff fails to state a cognizable claim for relief under § 1983 against R.J. Donovan.
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IV. Conclusion and Recommendation
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Plaintiff’s complaint fails to state any claims upon which relief may be granted. Plaintiff was
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previously notified of the deficiencies in his claims and granted leave to amend, but he was unable
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to cure the deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809
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F.2d 1446, 1448-49 (9th Cir. 1987). Based on the record in this case, the undersigned recommends
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that further leave to amend is not warranted.
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Accordingly, pursuant to 28 U.S.C. §§ 1915A and 1915(e), the undersigned HEREBY
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RECOMMENDS that this action be DISMISSED, with prejudice, based on Plaintiff’s failure to state
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any claims upon which relief may be granted under § 1983.
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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 provisions of 28 U.S.C. § 636(b)(l). Within fifteen (15) days
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after being served with these Findings and Recommendations, Plaintiff may file written objections
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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may
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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
0jh02o
January 17, 2012
UNITED STATES MAGISTRATE JUDGE
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