Calhoun v. Hartley
Filing
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FINDINGS and RECOMMENDATIONS recommending that Defendant's 14 Motion to Dismiss, filed on August 8, 2013, be GRANTED IN PART as to Plaintiff's Claim for Injunctive Relief. It is DENIED on all other grounds ; referred to Judge Ishii, signed by Magistrate Judge Dennis L. Beck on 11/21/13. Objections to F&R due by 12/26/2013 (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STANLEY CALHOUN,
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Plaintiff,
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vs.
J. HARTLEY,
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Defendant.
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1:12cv02007 AWI DLB PC
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANT’S MOTION
TO DISMISS
(Document 14)
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Plaintiff Stanley Calhoun (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action. Plaintiff filed this action on December 10, 2012. He filed a
First Amended Complaint on March 4, 2013.
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On May 6, 2013, the Court issued a screening order finding a cognizable Eighth
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Amendment claim against Defendant James Hartley.
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On August 8, 2013, Defendant filed this Motion to Dismiss pursuant to Federal Rule of
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Civil Procedure 12(b)(6). Plaintiff opposed the motion on September 9, 2013,1 and Defendant
filed his reply on September 16, 2013. The motion is deemed submitted pursuant to Local Rule
230(l).
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In a footnote in his reply, Defendant moves to strike Plaintiff’s opposition because it was late. The Court denies
the request, but also notes that the arguments in the opposition did not have merit.
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I.
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LEGAL STANDARD
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
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1955 (2007)) (quotation marks omitted); Conservation Force v. Salazar, 646 F.3d 1240, 1241-42
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(9th Cir. 2011); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must
accept the well-pleaded factual allegations as true and draw all reasonable inferences in favor of
the non-moving party. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010);
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Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465
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F.3d 992, 996-97 (9th Cir. 2006); Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir.
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2000). Further, although the pleading standard is now higher, the Ninth Circuit has continued to
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emphasize that prisoners proceeding pro se in civil rights actions are still entitled to have their
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pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman,
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680 F.3d 1113, 1121 (9th Cir. May 25, 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
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2012); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted).
II.
ALLEGATIONS IN PLAINTIFF’S COMPLAINT
Plaintiff is currently incarcerated at the California Institution for Men. The events
occurred while Plaintiff was incarcerated at California State Prison, Avenal (“ASP”).
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Plaintiff alleges that he was transferred to ASP in 2006. Upon his initial arrival, he was
not informed that ASP is within the high risk area for Valley Fever.
In 2007, a CDCR memorandum was issued to provide direction in the transfer process of
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inmates at high risk for Valley Fever infection. The memorandum also directed institutions
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within the area to implement environmental controls, including to “consider planting ground
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cover or grass on open dirt areas within the prison grounds.” Ex. C.
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Plaintiff alleges that Defendant knowingly and intentionally misinterpreted and
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misapplied Governor’s Executive Order S-06-08 and ceased all watering and required
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maintenance of the ground cover and grass areas.2 Ex. D. Plaintiff alleges that Defendant knew
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that ground cover was a critical aspect of fighting Valley Fever infections, and should have
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known that ceasing to water the ground cover would increase the spread of Valley Fever.
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Plaintiff contends that the Executive Order did not remove Defendant’s obligation to sensibly
manage the Valley Fever epidemic within ASP.
Plaintiff contends that the Executive Order was rescinded on March 30, 2011. However,
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Defendant did not reactive institutional ground watering for fifteen months.
Plaintiff was seen by the medical department on or about June 30, 2011, for lung
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congestion, night sweats, fever, fatigue and headaches. Plaintiff was diagnosed with Valley
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Fever on August 24, 2011, and was notified of the diagnosis on September 9, 2011.
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Plaintiff alleges that, from 2011 through the present, he has become ill and debilitated
from Valley Fever. He alleges that Defendant was deliberately indifferent to a serious medical
need when he stopped watering the ground cover, which contributed to Plaintiff contracting
Valley Fever.
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Plaintiff requests declaratory relief, injunctive relief and monetary damages.
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III.
DISCUSSION
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A.
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On May 6, 2013, this Court issued an order indicating that it had screened Plaintiff’s
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Prior Screening Order
complaint pursuant to 28 U.S.C. § 1915A and found that it stated an Eighth Amendment claim
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against Defendant Hartley. While the order finding a cognizable claim did not include a full
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analysis,3 the Court conducted the same examination as it does in all screening orders. In other
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Executive Order S-06-08 declared a statewide drought in 2008 and “strongly encouraged” local water agencies
and districts to take aggressive, immediate action to reduce water consumption.
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Generally, the Court provides a fully reasoned analysis only where it must explain why the complaint does not
state at least one claim. In cases where the complaint states only cognizable claims against all named defendants,
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words, the Court’s conclusion was based upon the same legal standards as this 12(b)(6) motion.
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Insofar as Defendant argues that Plaintiff’s claim should be dismissed for failure to state a claim,
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he wholly fails to acknowledge the Court’s prior finding. 28 U.S.C. § 1915A; Watison v. Carter,
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668 F.3d 1108, 1112 (9th Cir. 2012).
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A screening order may not ignored or disregarded. Ingle v. Circuit City, 408 F.3d
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592, 594 (9th Cir. 2005). To the contrary, the existence of a screening order which utilized the
same legal standard upon which a subsequent motion to dismiss relies necessarily implicates the
law of the case doctrine. As a result, the moving party is expected to articulate the grounds for
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the 12(b)(6) motion in light of a screening order finding the complaint stated a claim. Ingle, 408
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F.3d at 594; Thomas v. Hickman, 2008 WL 2233566, *2-3 (E.D. Cal. 2008).
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In this regard, this Court recently explained:
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If the defendants in a case which has been screened believe there is a
good faith basis for revisiting a prior determination made in a screening order,
they must identify the basis for their motion, be it error, an intervening change
in the law, or some other recognized exception to the law of the case doctrine.
Ingle, 408 F.3d at 594 (“A district court abuses its discretion in applying the law
of the case doctrine only if (1) the first decision was clearly erroneous; (2) an
intervening change in the law occurred; (3) the evidence on remand was substantially
different; (4) other changed circumstances exist; or (5) a manifest injustice would
otherwise result.”). The duty of good faith and candor requires as much, and
frivolous motions which serve only to unnecessarily multiply the proceedings may
subject the moving parties to sanctions. Pacific Harbor Capital, Inc. v. Carnival Air
Lines, Inc., 210 F.3d 1112, 1119 (9th Cir. 2000). Parties are not entitled to a
gratuitous second bite at the apple at the expense of judicial resources and in
disregard of court orders. Ingle, 408 F.3d at 594 (The law of the case “doctrine has
developed to maintain consistency and avoid reconsideration of matters once decided
during the course of a single continuing lawsuit.”) (internal quotation marks and
citation omitted); Thomas, 2008 WL 2233566, at *3 (for important policy reasons,
the law of the case doctrine disallows parties from a second bite at the apple).
Chavez v. Yates, No. 1:09-cv-01080-AWI-SKO (PC) (E.D.Cal. Oct. 3, 2013) (ECF No. 41).
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the Court will issue a shorter screening order notifying plaintiff that his complaint states a claim and that he must
submit service documents.
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B.
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Analysis
Eighth Amendment Claim
Here, rather than move forward with this action based upon the Court’s findings in the
screening order, Defendant now moves to dismiss the claim based on his argument that
Plaintiff’s complaint does not demonstrate the required subjective element of a deliberate
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indifference claim.
“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,
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1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the
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facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but
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that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If
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a prison official should have been aware of the risk, but was not, then the official has not violated
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the Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of
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Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).
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Defendant argues that the allegations do not show that Defendant was subjectively aware
of an excessive risk to ASP inmate health that would require rejection of an Executive Order.
Defendant argues that in light of the dual demands of the Executive Order and the CDCR
directive, which only required that institutions consider planting ground cover, his decision to
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reduce irrigation to ASP lawns was not deliberately indifferent.
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Defendant’s argument takes the analysis beyond that applicable to the pleading stage.
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Whether Defendant’s actions were deliberately indifferent, in light of the opposing directives, is
a factual issue beyond the scope of a 12(b)(6) motion.
Plaintiff alleges that Defendant was aware of the Valley Fever risk at ASP. He also
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alleges that Defendant knew that ground cover decreased the spread of Valley Fever.4 Despite
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That the CDCR memorandum said that institutions should “consider” planting ground cover is of no consequence.
Plaintiff has alleged that Defendant knew that ground cover would decrease the risk of Valley Fever, regardless of
whether planting groundcover was a suggestion or requirement.
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this knowledge, Plaintiff alleges that Defendant chose to cease watering at ASP, and did not
begin watering again until fifteen months after the Executive Order was lifted. Plaintiff alleges
that this contributed to his Valley Fever infection.
Defendant also points to Plaintiff’s statement that Defendant “should have known” that
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ceasing watering the grounds would significantly increase the risk of Valley Fever infection.
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Defendant is correct that Plaintiff alleges that he “should have known” the risk, and if he only
alleged that Defendant should have known¸ this argument would be more persuasive. Instead,
however, Plaintiff also alleges that Defendant (1) knowingly and intentionally misapplied the
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Executive Order; (2) knew that the ground cover was a critical aspect of fighting the spread of
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Valley Fever; (3) “knowingly and intentionally” chose to disregard a substantial risk to
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Plaintiff’s health; and (4) knowingly and intentionally let the ground cover die. The Court
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cannot conclude that Defendant should have known, but did not, in light of Plaintiff’s
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allegations.
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At this stage, Defendant has not shown that the screening order was clearly erroneous so
as to avoid application of the law of the case doctrine. Based on the allegations above, Plaintiff
has set forth a plausible claim for relief under the applicable screening standards. Ashcroft v.
Iqbal, 556 U.S. 662 (2009); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Hebbe v.
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Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (prisoners proceeding pro se in civil rights actions are
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entitled to have their pleadings liberally construed and to have any doubt resolved in their favor).
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Qualified Immunity
Defendant next argues that he is entitled to qualified immunity because Plaintiff’s
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complaint does not demonstrate that he was deliberately indifferent. Based on the discussion
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above, Defendant’s argument is without merit.
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3.
Injunctive Relief
Finally, Defendant argues that Plaintiff’s claim for injunctive relief is now moot because
(1) Defendant is no longer the warden at ASP; and (2) Plaintiff is no longer incarcerated at ASP.
Under Article III of the Constitution, the jurisdiction of federal courts is limited to
justiciable cases or controversies, and for a plaintiff’s claim to be justiciable, the plaintiff must
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have standing and the claim must not be moot. Jacobs v. Clark County School District, 526 F.3d
419, 425 (9th 2008) (quotation marks and citations omitted); see also Summers v. Earth Island
Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 1149 (2009); Davis v. Fed. Election Com’n, 554 U.S.
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724, 733-34, 128 S.Ct. 2759, 2768-69 (2008); Oregon Advocacy Ctr., 322 F.3d 1101, 1108 (9th
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Cir. 2003); Bernhardt v. County of Los Angeles, 279 F.3d 862, 868-69 (9th Cir. 2002).
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Constitutional standing requires, as an irreducible minimum, that there be (1) an injury in
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fact, (2) a causal relationship between the injury and the challenged conduct, and (3) a likelihood
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that the injury will be redressed by a favorable decision. Oregon Advocacy Ctr., 322 F.3d at
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1108 (quotation marks and citations omitted); see also Summers, 555 U.S. at 493; Davis, 554
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U.S. at 733; Jacobs, 526 F.3d at 425; Bernhardt, 279 F.3d at 868-69. While standing is
determined based on the facts as they existed at the time the complaint was filed, an actual
controversy must exist at all stages of review, and a claim becomes moot and non-justiciable if
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the requisite personal interest captured by the standing doctrine ceases to exist at any point
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during the litigation. Jacobs, 526 F.3d at 425 (quotation marks and citations omitted); Oregon
Advocacy Ctr., 322 F.3d at 1116 (quotation marks and citations omitted).
At the time Plaintiff filed his complaint, he was incarcerated at ASP. However, during
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the pendency of the action, Plaintiff was transferred to a different institution. This moots his
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claim for injunctive relief. In his opposition, Plaintiff argues that he continues to be at risk at the
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California Institution for Men. Plaintiff’s argument is without merit, however, as the injunctive
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relief was directed at ASP and Plaintiff cannot now change the allegations and/or requests for
relief in his complaint.
IV.
FINDINGS AND RECOMMENDATIONS
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Based on the above, the Court HEREBY RECOMMENDS that Defendant’s Motion to
Dismiss, filed on August 8, 2013, be GRANTED IN PART as to Plaintiff’s claim for injunctive
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relief. It is DENIED on all other grounds.
These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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thirty (30) days after being served with these Findings and Recommendations, the parties may
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file written objections with the Court. The document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendations.” A party may file a reply to the objections
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within fourteen (14) days of service of the objections. The parties are advised that failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
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/s/ Dennis
November 21, 2013
L. Beck
UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:
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