Vera v. Gipson

Filing 41

FINDINGS and RECOMMENDATIONS to Disregard Petitioner's 21 Motion to Amend the Findings; FINDINGS and RECOMMENDATIONS to Grant Respondent's 14 Motion to Dismiss the Petition for Writ of Habeas Corpus, Dismiss the 1 Petition for Writ of Habeas Corpus, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 8/1/2014, referred to Judge Ishii. Objections to F&R Due Thirty Deadline. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 GUILLERMO VERA,

Case No. 1:13-cv-00814-AWI-SKO-HC

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FINDINGS AND RECOMMENDATIONS TO
DISREGARD PETITIONER’S MOTION TO
AMEND THE FINDINGS (DOC. 21)

Petitioner,

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v.

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CONNIE GIPSON,
Respondent.

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OBJECTIONS DEADLINE:
THIRTY (30) DAYS AFTER SERVICE

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FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
DISMISS THE PETITION FOR WRIT OF
HABEAS CORPUS (DOC. 14), DISMISS
THE PETITION FOR WRIT OF HABEAS
CORPUS (DOC. 1), DECLINE TO ISSUE A
CERTIFICATE OF APPEALABILITY, AND
DIRECT THE CLERK TO CLOSE THE CASE

Petitioner is a state prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before the Court are Respondent’s motion to dismiss the
petition for failure to state a cognizable claim as well as a motion
filed by Petitioner that will be more fully described below.
I.

Background

On May 30, 2013, Petitioner filed a petition for writ of habeas
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1 corpus (doc. 1) in which he raised five claims.

On November 12,

2 2013, the Court adopted the Magistrate Judge’s findings and
3 recommendations issued on July 16, 2013 (doc. 7), and dismissed
4 without leave to amend the first two claims relating to conditions
5 of confinement and not bearing on the legality or duration of
6 Petitioner’s confinement, and the third and fourth claims as state
7 law claims, leaving remaining Petitioner’s claim(s) concerning a
8 parole hearing allegedly held in February 2012 without due process
9 of law.
On November 18, 2013, Petitioner filed objections to the

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11 findings and recommendations issued on July 16, 2013 (doc. 7), and
12 adopted by the District Judge on November 12, 2013.

Objections to

13 the findings and recommendations were due on October 22, 2013; thus,
14 Petitioner’s purported objections were almost one month late.

On

15 November 21, 2013, the Court deemed Petitioner’s late objections to
16 be a motion for reconsideration and denied the motion.
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II.

Motion to Amend the Findings

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On December 26, 2013, Petitioner filed a motion to amend the

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Although the allegations were unclear, Petitioner appeared to have raised the
following claims in the petition: 1) a governmental entity, which appears to be a
California court, failed to notify Petitioner that a pending case would be
dismissed for failure to prosecute based on Petitioner’s inability to gain access
to the law library; thus, the court interfered with Petitioner’s access to an
appeal (pet., doc. 1 at 4-5); 2) Petitioner suffered “mail fraud” or “censorship”
when on September 27, 2012, he gave records and an informal reply to a
correctional officer to mail, the officer refused to sign the proof of service,
and Petitioner received a notice from a state court on October 17, 2012, that the
records had not been received (id. at 4-6); 3) the CDCR refused to provide
Petitioner with the file review that Commissioner Lopez had ordered and,
therefore, was in contempt of Commissioner Lopez’s order (id. at 7, 40, 67); 4) a
preliminary injunction or temporary restraining order is appropriate because the
Kern County Superior Court failed to grant Petitioner a default judgment in his
habeas proceeding (id. at 7, 31); and 5) a parole hearing was held on or about
February 10 or 17, 2012, without notice to Petitioner, without his presence, and
without his having an opportunity to present his case (id. at 20, 67).

2

1 findings and recommendations concerning dismissal of his conditions
2 and state law claims.

In the motion, Petitioner does not address

3 the findings in any particular respect or argue that any new
4 circumstance requires any reconsideration.
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The sixty-six pages of this motion (doc. 21) consist mainly of

6 documents pertaining to Petitioner’s use of the administrative
7 appeals process in prison concerning his claim that he suffers from
8 a learning disability consisting of the inability to speak or read
9 English, requiring a qualified interpreter at various events and
10 proceedings and the accommodation of submitting administrative
11 appeals in the Spanish language to satisfy due process of law.

The

12 documentation includes chronological reports, responses to and
13 dismissals or rejections of administrative appeals seeking to
14 proceed in Spanish, warnings, and notifications regarding what the
15 prison authorities perceived as abuse of the administrative appeal
16 process due to a multiplicity of filings.

Some portions of the

17 prison documents that would otherwise be blank are filled with
18 handwritten matter in Spanish, which presumably was added by
19 Petitioner.

(See, e.g., doc. 21 at 5-6, 10-16, 18-28, 30-32, 34-35,

20 43-44, 49-57.)
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The “motion” thus shows that Petitioner has a long-standing and

22 multi-faceted dispute within the prison over the extent of
23 accommodations for his alleged inability to speak or write in the
24 English language.

However, this does not bear on the substance of

25 the findings and recommendations, namely, the propriety of the
26 dismissal of Petitioner’s conditions and state law claims, which was
27 based on the nature of the claims and not on the merits of any claim
28 of entitlement to accommodations.

Further, Petitioner’s historical
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1 attempts to obtain accommodations generally are only remotely
2 related to the remaining claim in the petition concerning procedural
3 due process in a specific parole proceeding.
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The findings and recommendations, which the Court has

5 previously reconsidered, issued in the normal course of screening
6 the petition and addressed only the scope of the pleadings.

The

7 merits of any claim concerning due process were not considered or
8 determined by the Court when it adopted the findings and
9 recommendations and dismissed Petitioner’s conditions and state law
10 claims.

Accordingly, it will be RECOMMENDED that Petitioner’s

11 motion to amend the findings be DISREGARDED.
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III.

Respondent’s Motion to Dismiss the Petition

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Respondent moves to dismiss the petition on the ground that

14 Petitioner fails to state a cognizable claim for relief.

The motion

15 was filed on January 8, 2014, and Petitioner filed an opposition on
16 June 6, 2014.

Although the fourteen-day period for filing a reply

17 has passed, no reply was filed.
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A.

Proceeding by a Motion to Dismiss

Because the petition was filed after April 24, 1996, the

20 effective date of the Antiterrorism and Effective Death Penalty Act
21 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

22 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
23 1499 (9th Cir. 1997).
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A district court must award a writ of habeas corpus or issue an

25 order to show cause why it should not be granted unless it appears
26 from the application that the applicant is not entitled thereto.
27 U.S.C. § 2243.

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Habeas Rule 4 permits the filing of “an answer,

28 motion, or other response,” and authorizes the filing of a motion in
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1 lieu of an answer in response to a petition.

Rule 4, Advisory

2 Committee Notes, 1976 Adoption and 2004 Amendments.

This provides

3 the Court with the flexibility and discretion initially to forego an
4 answer in the interest of screening out frivolous applications and
5 eliminating the burden that would be placed on a respondent by
6 ordering an unnecessary answer.
7 Adoption.

Advisory Committee Notes, 1976

Rule 4 confers upon the Court broad discretion to take

8 “other action the judge may order,” including authorizing a
9 respondent to make a motion to dismiss based upon information
10 furnished by respondent, which may show that a petitioner’s claims
11 suffer a procedural or jurisdictional infirmity, such as res
12 judicata, failure to exhaust state remedies, or absence of custody.
13 Id.
14

The Supreme Court has characterized as erroneous the view that

15 a Rule 12(b)(6) motion is appropriate in a habeas corpus proceeding.
16 See, Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257,
17 269 n. 14 (1978); but see Lonchar v. Thomas, 517 U.S. 314, 325-26
18 (1996).

However, in light of the broad language of Rule 4, this

19 circuit has held that motions to dismiss are appropriate in cases
20 that proceed pursuant to 28 U.S.C. ' 2254 and present issues of
21 failure to state a colorable claim under federal law.
22 Maas, 915 F.2d 418, 420-21 (9th Cir. 1990).

O=Bremski v.

Accordingly, the Court

23 proceeds pursuant to Rule 4 to consider and determine Respondent’s
24 motion to dismiss for failure to state a cognizable federal claim.
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B.

Alleged Violation of Due Process

Petitioner challenges the propriety of the procedures at a

27 hearing or proceeding before a representative of California’s Board
28 of Parole Hearings (BPH) in February 2012.
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(Pet., doc. 1 at 1, 20.)

1 Petitioner appears to allege that he was not taken to a hearing
2 before the BPH scheduled for February 2012, but he also appears to
3 allege that on either February 10 or 17, 2012, Petitioner was
4 transported to a hearing without being notified of the reasons for
5 the hearing.

(Id. at 20.)

At the beginning of the hearing,

6 Petitioner requested a postponement, but the translating officer did
7 not or could not communicate that to the hearing officer, who then
8 ordered that Petitioner be removed momentarily from the proceeding.
9 The hearing proceeded in Petitioner’s absence, and he did not have
10 an opportunity to present his case.

A correctional officer gave

11 Petitioner some papers but did not read them to Petitioner.
1.

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(Id.)

Background

Documentation of the parole process reflects that Petitioner

14 had a life prisoner documentation hearing on February 17, 2012.
15 (Mot. to dismiss, exh. 5, doc. 24-5, 2.)

The hearing was held

16 pursuant to Cal. Code Regs., tit. 15, § 2269.1, which provides for
17 documentation hearings for life prisoners where a commissioner or
18 deputy commissioner of the BPH reviews the prisoner's activities and
19 conduct considering criteria established by state law, documents
20 activities and conduct pertinent to granting or withholding post21 conviction credit, and makes recommendations (doc. 24-5, 2).
22 Code Regs., tit. 15, § 2269.1.

Cal.

The information is considered once

23 the BPH establishes a parole date, and thereafter periodic progress
24 hearings are held.
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Id.

The record further reflects that Petitioner is serving a

26 sentence that includes a determinate term for aggravated assault and
27 an indeterminate term of thirty years to life for second degree
28 murder.

His minimum eligible parole date is October 2, 2036, and
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1 his initial parole hearing is scheduled for September 2, 2035.
2 (Doc. 24-4, 2-7; doc. 24-5, 2.)
2.

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Conditions of Confinement

A federal court may only grant a state prisoner’s petition for

5 writ of habeas corpus if the petitioner can show that "he is in
6 custody in violation of the Constitution or laws or treaties of the
7 United States."

28 U.S.C. § 2254(a).

A habeas corpus petition is

8 the correct method for a prisoner to challenge the legality or
9 duration of his confinement.

Badea v. Cox, 931 F.2d 573, 574 (9th

10 Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973));
11 Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.

In

12 contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the
13 proper method for challenging the conditions of that confinement.
14 McCarthy v. Bronson, 500 U.S. 136, 141 42 (1991); Preiser, 411 U.S.
15 at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Habeas
16 Rule 1, 1976 Adoption.
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Challenges to prison disciplinary adjudications that have

18 resulted in a loss of time credits must be raised in a federal
19 habeas corpus action and not in a § 1983 action because such a
20 challenge is to the very fact or duration of physical imprisonment,
21 and the relief sought is a determination of entitlement of immediate
22 or speedier release.

Preiser v. Rodriguez, 411 U.S. 475, 500.

23 Thus, such claims are within the core of habeas corpus jurisdiction.
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This circuit has recognized a possibility of habeas

25 jurisdiction in suits that do not fall within the core of habeas
26 corpus.

Bostic v. Carlson, 884 F.3d 1267 (9th Cir. 1989)

27 (expungement of disciplinary finding likely to accelerate
28 eligibility for parole); Docken v. Chase, 393 F.3d 1024 (9th Cir.
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1 2004) (claim challenging the constitutionality of the frequency of
2 parole reviews, where prisoner was seeking only equitable relief,
3 was held sufficiently related to the duration of confinement).
4 However, relief pursuant to § 1983 remains an appropriate remedy for
5 claims concerning administrative decisions made in prison where
6 success would not necessarily imply the invalidity of continuing
7 confinement.

Docken v. Chase, 393 F.3d at 1030 (characterizing Neal

8 v. Shimoda, 131 F.3d 818 (9th Cir. 1997) as holding that a § 1983
9 suit is an appropriate remedy for challenges to conditions [there,
10 administrative placement in a sex offender program affecting
11 eligibility for parole] which do not necessarily imply the
12 invalidity of continuing confinement); Ramirez v. Galaza, 334 F.3d
13 850, 852, 858 (9th Cir. 2003).
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Here, Petitioner’s due process claim or claims do not relate to

15 or affect the duration of his confinement; they concern only the
16 conditions of his confinement.

Petitioner’s suitability for parole

17 has not yet even been considered.

The documentation hearing

18 challenged by Petitioner could not have any effect on the legality
19 or duration of Petitioner’s confinement; any consideration of the
20 matter at this point would be purely speculative.
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It appears that complete documentation of the challenged

22 procedure is before the Court, but neither Petitioner’s express
23 allegations nor the documentary submissions contain specific facts
24 that demonstrate or even suggest that as a result of the challenged
25 procedures, the legality or duration of Petitioner’s confinement, as
26 distinct from the conditions of his confinement, was affected.
27 Thus, Petitioner has failed to state a cognizable claim pursuant to
28 § 2254 because the Court’s review depends on a challenge to the
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1 legality or duration of confinement.
3.

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Due Process Claim

Insofar as Petitioner claims that he suffered a violation of

4 due process of law at his documentation hearing, Respondent argues
5 that Petitioner has failed to allege facts showing he is entitled to
6 habeas corpus relief.
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Rule 2(c) of the Rules Governing ' 2254 Cases in the United

8 States District Courts (Habeas Rules) requires that a petition 1)
9 specify all grounds of relief available to the Petitioner; 2) state
10 the facts supporting each ground; and 3) state the relief requested.
11 Notice pleading is not sufficient; the petition must state facts
12 that point to a real possibility of constitutional error.

Rule 4,

13 Advisory Committee Notes, 1976 Adoption; Mayle v. Felix, 545 U.S.
14 644, 669 (2005); O=Bremski v. Maass, 915 F.2d at 420 (quoting
15 Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).

Allegations in

16 a petition that are vague, conclusory, patently frivolous or false,
17 or palpably incredible are subject to summary dismissal.

Hendricks

18 v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
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Petitioner alleges he suffered a violation of his right to due

20 process of law at the documentation proceeding because of problems
21 with notice and communication, deprivation of an opportunity to
22 present his case, and delay or obstruction of his presence at the
23 review.

Procedural due process requires that where the state has

24 made good time subject to forfeiture only for serious misbehavior,
25 prisoners subject to a loss of good-time credits must be given
26 advance written notice of the claimed violation, a right to call
27 witnesses and present documentary evidence where it would not be
28 unduly hazardous to institutional safety or correctional goals, and
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1 a written statement of the finder of fact as to the evidence relied
2 upon and the reasons for disciplinary action taken.
3 McDonnell, 418 U.S. 539, 563-64 (1974).

Wolff v.

Further, if the inmate is

4 illiterate, or the issue so complex that it is unlikely the inmate
5 will be able to collect and present the evidence necessary for an
6 adequate comprehension of the case, the inmate should have access to
7 help from staff or a sufficiently competent inmate designated by the
8 staff.

However, confrontation, cross-examination, and counsel are

9 not required.
10

Wolff, 418 U.S. at 568-70.

Here, the hearing was for review and recommendations; there was

11 no loss or identifiable risk of loss of either time credit or
12 liberty involved in the documentation hearing.

Even where a hearing

13 results in a discretionary determination of actual parole
14 suitability, procedural due process mandates only the minimal
15 requirements set forth in Greenholtz v. Inmates of Neb. Penal and
16 Correctional Complex, 442 U.S. 1, 12, 15-16 (1979), which include
17 permitting the inmate to have an opportunity to be heard and to be
18 given a statement of reasons for the decision made.

Swarthout v.

19 Cooke, –– U.S. ––, 131 S.Ct. 859, 862 (2011) (prisoner subject to
20 California's parole statute receives adequate process in proceedings
21 where the parole authority makes a discretionary determination of
22 parole suitability if prisoner is allowed an opportunity to be heard
23 and is provided with a statement of reasons why parole was denied).
24

There is no United States Supreme Court case requiring the

25 procedural protections set forth in Wolff or even Greenholtz at a
26 documentation hearing far in advance of a parole suitability
27 hearing.

See, Williams v. Moeller, no. 2:11–cv–0055 KJM AC P, 2013

28 WL 147800, *4-*5 (E.D.Cal. Jan 14, 2013) (unpublished) (there is no
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1 independent cause of action under 42 U.S.C. § 1983 for failing to
2 provide advance notice, a staff assistant, and an explanation of the
3 hearing at a documentation hearing, and any future harm was
4 speculative).
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A determination on the merits in this proceeding would proceed

6 pursuant to 28 U.S.C. § 2254, which provides in pertinent part:
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(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

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(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

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Clearly established federal law refers to the holdings, as

19 opposed to the dicta, of the decisions of the Supreme Court as of
20 the time of the relevant state court decision.

Cullen v.

21 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
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Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362,
412 (2000).

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A state court’s decision contravenes clearly established

26 Supreme Court precedent if it reaches a legal conclusion opposite
27 to, or substantially different from, the Supreme Court's or
28 concludes differently on a materially indistinguishable set of
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1 facts.

Williams v. Taylor, 529 U.S. at 405-06.

A state court

2 unreasonably applies clearly established federal law if it either 1)
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correctly identifies the governing rule but applies it to a new set
of facts in an objectively unreasonable manner, or 2) extends or
fails to extend a clearly established legal principle to a new

7 context in an objectively unreasonable manner.

Hernandez v. Small,

8 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407.
9

The Supreme Court has emphasized that an unreasonable

10 application of clearly established federal law under § 2254(d)(1)
11 cannot be premised on an unreasonable failure to extend a governing
12 legal principle to a new context where it should control.
13 Woodall, - U.S. -, 134 S.Ct. 1697, 1706 (2014).

White v.

Therefore, “‘if a

14 habeas court must extend a rationale before it can apply to the
15 facts at hand,’ then by definition the rationale was not ‘clearly
16 established at the time of the state-court decision.’”
17 Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

Id. (quoting

The Court in

18 White v. Woodall reiterated the difference between applying rules
19 that are squarely established by the Court’s holdings and extending
20 a legal principle to the facts of a new case.

The latter is

21 required only if it is so obvious that a clearly established rule
22 applies to a given set of facts that there could be no fairminded
23 disagreement on the question.
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White, 134 S.Ct. at 1706.

Here, in light of the Supreme Court’s holdings, Petitioner

25 cannot prevail on his claim that the state court unreasonably
26 applied clearly established federal law by failing to extend the
27 procedural requirements for prison disciplinary hearings or parole
28 suitability hearings to parole documentation proceedings.
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A

1 documentation hearing differs significantly in nature, purpose, and
2 effect from the circumstances where the Supreme Court has required
3 the more extensive due process protections to which Petitioner
4 claims to be entitled.

Accordingly, Petitioner has failed to allege

5 specific facts that would warrant relief in a proceeding pursuant to
6 28 U.S.C. § 2254.
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Further, the inadequacy of Petitioner’s allegations are based

8 not on a dearth of specific factual allegations, but rather on the
9 nature of Petitioner’s claim as relating to a proceeding not within
10 the scope of procedural requirements set forth as clearly
11 established federal law.

Thus, even if leave to amend were granted,

12 Petitioner could not allege a tenable procedural due process claim
13 with respect to the parole documentation hearing.
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In sum, it will be recommended that Respondent’s motion to

15 dismiss the petition be granted and the petition be dismissed.
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IV.

Certificate of Appealability

17

Unless a circuit justice or judge issues a certificate of

18 appealability, an appeal may not be taken to the Court of Appeals
19 from the final order in a habeas proceeding in which the detention
20 complained of arises out of process issued by a state court.

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21 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
22 (2003).

A district court must issue or deny a certificate of

23 appealability when it enters a final order adverse to the applicant.
24 Rule 11(a) of the Rules Governing Section 2254 Cases.
25

A certificate of appealability may issue only if the applicant

26 makes a substantial showing of the denial of a constitutional right.
27 ' 2253(c)(2).

Under this standard, a petitioner must show that

28 reasonable jurists could debate whether the petition should have
13

1 been resolved in a different manner or that the issues presented
2 were adequate to deserve encouragement to proceed further.

Miller-

3 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
4 473, 484 (2000)).

A certificate should issue if the Petitioner

5 shows that jurists of reason would find it debatable whether: (1)
6 the petition states a valid claim of the denial of a constitutional
7 right, and (2) the district court was correct in any procedural
8 ruling.
9

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the

10 claims in the habeas petition, generally assesses their merits, and
11 determines whether the resolution was debatable among jurists of
12 reason or wrong.

Id.

An applicant must show more than an absence

13 of frivolity or the existence of mere good faith; however, the
14 applicant need not show that the appeal will succeed.

Miller-El v.

15 Cockrell, 537 U.S. at 338.
16

Here, it does not appear that reasonable jurists could debate

17 whether the petition should have been resolved in a different
18 manner.

Petitioner has not made a substantial showing of the denial

19 of a constitutional right.

Accordingly, it will be recommended that

20 the Court decline to issue a certificate of appealability.
21

V.

Recommendations

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Based on the foregoing, it is RECOMMENDED that:

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1) The Court DISREGARD Petitioner’s motion to amend the

24 findings;
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2) Respondent’s motion to dismiss the petition be GRANTED;

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3) The Petition for writ of habeas corpus be DISMISSED without

27 leave to amend;
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4) The Court DECLNE to issue a certificate of appealability;

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2 and
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5) The Clerk be DIRECTED to close the action.

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These findings and recommendations are submitted to the United

5 States District Court Judge assigned to the case, pursuant to the
6 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
7 Rules of Practice for the United States District Court, Eastern
8 District of California.

Within thirty (30) days after being served

9 with a copy, any party may file written objections with the Court
10 and serve a copy on all parties.

Such a document should be

11 captioned AObjections to Magistrate Judge=s Findings and
12 Recommendations.@

Replies to the objections shall be served and

13 filed within fourteen (14) days (plus three (3) days if served by
14 mail) after service of the objections.

The Court will then review

15 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
16 The parties are advised that failure to file objections within the
17 specified time may waive the right to appeal the District Court=s
18 order.

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

19
20
21 IT IS SO ORDERED.
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Dated:

August 1, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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