Hoze v. Cates et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending that this 1 Action be Dismissed for Failure to State a Claim signed by Magistrate Judge Jennifer L. Thurston on 11/3/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 11/28/2011. (Sant Agata, S)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOHNNY HOZE,
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Plaintiff,
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vs.
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M. CATES, et al.,
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Defendants.
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Case No. 1:11-cv-01802 JLT (PC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE ACTION
(Doc. 1)
ORDER DIRECTING THE COURT CLERK TO
ASSIGN A DISTRICT JUDGE TO THE
MATTER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action
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pursuant to 42 U.S.C. § 1983. On October 28, 2011, Plaintiff filed his complaint seeking damages
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against various individuals including the director of the CDCR, the warden and associate warden where
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he is housed, two commissioners from the Parole Board and the Deputy District Attorney who opposes
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his parole request. For the reasons set forth, the Court will DISMISS the complaint WITHOUT
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LEAVE TO AMEND because it is clear that it cannot be amended to state a claim.
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I.
SCREENING REQUIREMENT
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The Court is required to review a case in which a prisoner seeks redress from a governmental
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entity or officer. 28 U.S.C. § 1915A(a). The Court must review the complaint and dismiss any portion
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thereof that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
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monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). If the Court
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determines the complaint fails to state a claim, leave to amend should be granted to the extent that the
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deficiencies in the pleading can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th
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Cir. 2000) (en banc).
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The Civil Rights Act under which this action was filed provides a cause of action against any
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“person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United
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States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
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immunities secured by the Constitution and laws [of the United States.]” 42 U.S.C. § 1983. To prove
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a violation of § 1983, a plaintiff must establish that (1) the defendant deprived him of a constitutional
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or federal right, and (2) the defendant acted under color of state law. West v. Atkins, 487 U.S. 42, 48
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(1988); Collins v. Womancare, 878 F.2d 1145, 1147 (9th Cir. 1989). “A person deprives another of a
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constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in
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another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the
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deprivation of which [the plaintiff complains].” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993)
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(quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). In other words, there must be an actual
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causal connection between the actions of each defendant and the alleged deprivation. See Rizzo v.
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Goode, 423 U.S. 362, 370-71 (1976).
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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim
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showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . .
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. claim is and the grounds upon which it rests[.]’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
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(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless, a plaintiff’s obligation to
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provide the grounds of entitlement to relief under Rule 8(a)(2) requires more than “naked assertions,”
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“labels and conclusions,” or “formulaic recitation[s] of the elements of a cause of action.” Twombly,
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550 U.S. at 555-57. The complaint “must contain sufficient factual matter, accepted as true, to ‘state
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a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d
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868, 883 (2009) (quoting Twombly, 550 U.S. at 570). Vague and conclusory allegations are insufficient
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to state a claim under § 1983. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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II.
Allegations of the complaint
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In his complaint, Plaintiff alleges that the Parole Board erred when it denied his ninth request for
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parole on October 11, 2007, by finding that he posed a threat to public safety if released from prison.
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(Doc. 1 at 9). Plaintiff asserts that the Board failed to properly consider and weigh the evidence, that
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it considered dated evidence and relied improperly on the facts of his crimes and his earlier criminal
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history and its own characterization of Plaintiff’s “tumultuous relationship with others.” Id. at 18-25.
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Likewise, he asserts that the Deputy District Attorney opposing his parole request improperly inflamed
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the Parole Board by referring to him as a “predator.” Id. at 25.
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III.
DISCUSSION
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A.
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To the extent that the complaint can be construed raising claims under 42 U.S.C. § 1983 for a
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violation of due process related to the denial of parole, Plaintiff’s claims are barred. In Heck v.
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Plaintiff’s claims are barred
Humphrey, 512 U.S. 477, 486 (1994), the United States Supreme Court held,
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment,
or for other harm caused by actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not been so invalidated is
not cognizable under 1983.
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The Court expressly held that a cause of action for damages under § 1983 concerning a criminal
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conviction or sentence cannot exist unless the conviction or sentence has been invalidated, expunged
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or reversed. Id. Thus, whether predicated on a claim that his parole denial or denials were improper
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because of procedural defects or improper on the merits, his claims are Heck-barred, because he is
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unable to show that his parole denial has been reversed or invalidated. Butterfield v. Bail, 120 F.3d 1023,
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1024 (9th Cir. 1997)(“[f]ew things implicate the validity of continued confinement more directly than
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the allegedly improper denial of parole”).
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B.
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The United States Supreme Court succinctly explained in Swarthout v. Cooke, 131 S. Ct. 859,
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178 L. Ed. 2d 732 (2011), the scope of protection afforded by the Due Process Clause of the Fourteenth
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Amendment to an inmate in California in his parole eligibility determination. The Court held that under
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California’s statutory scheme, which creates a liberty interest in release on parole, federal due process
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requires “fair procedures.” Id. at 862. It does not, however, encompass a more substantive component,
The Court lacks jurisdiction to evaluate the denial of parole
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namely California’s requirement that denials of parole eligibility be supported by “some evidence” of
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current dangerousness. Id.
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In the context of parole, the procedures required by the Due Process Clause are “minimal.” Id.
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A prisoner in California receives “adequate process when he is allowed an opportunity to be heard and
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was provided a statement of the reasons why parole was denied.” Id. (citing Greenholtz v. Inmates of
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Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979)). See Roberts v. Hartley, __ F.3d __,
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2011WL 1365811, at *3 (9th Cir. Apr. 12, 2011) (federal due process satisfied when the Parole Board
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permitted the inmate to speak on his own behalf, permitted the inmate to contest the evidence against
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him, and provided the inmate an explanation of its decision). “The Constitution . . . does not require
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more.” Swarthout, 131 S. Ct. at 862.
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Applying Swarthout to the allegations in this case, the Court finds that Plaintiff fails to state a
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cognizable due process claim. Plaintiff appeared at the hearing with counsel and participated in the
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hearing by asking and answering questions and making comments. (Doc. 1 at 17-19) To the extent that
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Plaintiff alleges that his parole eligibility hearing was deficient for other reasons, such reasons do not
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give rise to a cognizable federal due process claim. Most notably, the Due Process Clause does not
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permit this Court to evaluate the merits of the Board’s decision to deny Plaintiff parole. See Swarthout,
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131 S. Ct. at 862; Miller v. Oregon Bd. of Parole and Post-Prison Supervision, __ F.3d __, 2011 WL
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1533512, at *5 (9th Cir. Apr. 25, 2011) (“The Supreme Court held in [Swarthout v.] Cooke that in the
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context of parole eligibility decisions the due process right is procedural[.]”) (emphasis in original).
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C.
The Parole Board Commissioners and the Deputy District Attorney are entitled to
absolute immunity
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Despite Plaintiff’s claims of liability as to Defendants Eng and McBean, Parole Board officers
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in quasi-judicial proceedings are entitled to absolute immunity for any conduct related to the
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adjudication of a claim such as Plaintiff’s. See Swift v. California, 384 F.3d 1184, 1189 (9th Cir. 2004)
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(parole board officials are entitled to absolute quasi-judicial immunity for decisions to grant, deny or
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revoke parole because these tasks are functionally comparable to tasks performed by judges); Stafford
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v. Powers, 2010 U.S. Dist. LEXIS 35477, at *8-9 (D. Or. Mar. 4, 2010) (“Decisions and actions integral
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to decisions to grant, deny, or revoke parole . . . and the execution of parole revocation procedures are
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also covered by absolute quasi-judicial immunity, but conduct arising from the duty to supervise parolees
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is covered by qualified immunity[.]”); Byers v. Anderson, Inc., 508 U.S. 429, 435-36 (1993) (“the
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‘touchstone’ for the doctrine’s applicability has been ‘performance of the function of resolving disputes
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between parties, or of authoritatively adjudicating private rights”); Guttman v. Khalsa, 446 F.3d 1027,
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1033 (10th Cir. 2006) (“The Supreme Court has long recognized that officials in administrative hearings
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can claim the absolute immunity that flows to judicial officers if they are acting in a quasi-judicial
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fashion.”)
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All of acts about which Plaintiff complains relate to these Defendants’ adjudicatory roles and
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within their quasi-judicial functions as hearing officers. Because entitlement to absolute immunity is
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determined based on the nature of the function performed, not the identity of the actor who performed
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it,’” Tennison v. City of San Francisco, 570 F.3d 1078, 1092 (9th Cir. 2009) (quoting Kalina v. Fletcher,
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522 U.S. 118, 127 (1997)), defendants Eng and McBean are entitled to absolute immunity in this action.
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Likewise, Defendant Stern, the Deputy District Attorney opposing Plaintiff’s request for parole,
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is entitled to absolute prosecutorial immunity. Imbler v. Pachtman, 424 U.S. 409, 430-431 (1976).
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Determining whether a prosecutor’s actions are immunized requires a functional analysis. The
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classification of the challenged acts, not the motivation underlying them, determines whether absolute
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immunity applies. Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986)(en banc). In advocating
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against the grant of parole, Defendant Stern’s actions are absolutely immune. Thus, even claims of
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malicious prosecution, falsification of evidence, coercion of perjured testimony and concealment of
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exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin,
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608 F.Supp. 710, 728 (N.D. Cal. 1984).
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Because Plaintiff bases all of his claims against Defendant Stern upon Stern’s actions and
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arguments made at the 2007 parole hearing, Defendant Stern is entitled to absolute prosecutorial
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immunity.
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IV.
Conclusion
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The Court declines to provide Plaintiff leave to amend. Plaintiff’s claims have been foreclosed,
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as a matter of law, by the Supreme Court’s decision in Swarthout, are Heck-barred and raise claims
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against Defendants who are entitled to absolute immunity. Thus, any attempt to amend the pleadings
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to include new facts would be futile in stating a cognizable due process claim. See Lopez, 203 F.3d at
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1127 (“[A] district court should grant leave to amend . . ., unless it determines that the pleading could
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not possibly be cured by the allegation of other facts.”). Accordingly, the Court will recommend that
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this action be dismissed. Because Plaintiff has not and cannot state a claim, the matter is recommended
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to be DISMISSED.
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V.
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ORDER
The Clerk of the Court is DIRECTED to assign a District Judge to this matter.
VI.
Findings and recommendation
In accordance with the above, it is HEREBY RECOMMENDED that:
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This action be DISMISSED for failure to state a claim; and
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This case be closed.
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These findings and recommendations are submitted to the United States District Judge assigned
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to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). Within twenty-one days after being
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served with these findings and recommendations, Plaintiff may file written objections with the Court.
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If Plaintiff elects to file written objections, he should caption the document as “Objections to Magistrate
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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. See Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated: November 3, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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