Vu v. Monique
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss Action with Prejudice for Failure to State a Claim re 13 , signed by Magistrate Judge Michael J. Seng on 12/19/14. Referred to Judge O'Neill. Objections Due Within Fourteen Days. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MAI THI VU,
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Plaintiff,
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CASE NO. 1:14-cv-0249-LJO-MJS (PC)
v.
JACQUES MONIQUE,
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Defendant.
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FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION WITH PREJUDICE FOR
FAILURE TO STATE A CLAIM
(ECF No. 13)
OBJECTIONS DUE WITHIN FOURTEEN
(14) DAYS
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388
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(1971).1
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The Court screened Plaintiff’s complaint (ECF No. 1), and dismissed it for failure
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to state a claim but gave leave to amend (ECF No. 11). Plaintiff’s first amended
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complaint is before the Court for screening.
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Plaintiff’s first amended complaint states that it is brought pursuant to 28 U.S.C. § 1983. (ECF No. 13.) Although
Plaintiff is a state prisoner, she alleges claims against a federal immigration official. As Plaintiff previously was
advised, claims against an individual acting under color of federal law are cognizable, if at all, under Bivens, rather
than § 1983. The Court will construe Plaintiff’s complaint liberally as being brought pursuant to Bivens.
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I.
SCREENING REQUIREMENT
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may
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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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II.
PLEADING STANDARD
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Under Bivens, a plaintiff may sue a federal officer in his or her individual capacity
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for damages for violating the plaintiff’s constitutional rights. See Bivens, 403 U.S. at 397.
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“Actions under [42 U.S.C.] § 1983 and those under Bivens are identical save for the
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replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum
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v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). To state a claim under Bivens, a plaintiff
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must allege: (1) that a right secured by the Constitution of the United States was
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violated, and (2) that the alleged violation was committed by a federal actor. See Van
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Strum, 940 F.2d at 409.
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A complaint must contain “a short and plain statement of the claim showing that
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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
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are not required, but “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief
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that is plausible on its face.” Id. Facial plausibility demands more than the mere
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possibility that a defendant committed misconduct and, while factual allegations are
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accepted as true, legal conclusions are not. Id. at 677-78.
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III.
PLAINTIFF’S ALLEGATIONS
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Plaintiff is incarcerated at Central California Women’s Facility (“CCWF”), where
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the acts giving rise to her complaint occurred. Plaintiff names Jacques Monique,
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Immigration Enforcement Agent at United States Immigration & Customs Enforcement,
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as Defendant.
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Plaintiff fled Vietnam in 1978 due to political persecution. She entered the United
States lawfully as a Vietnamese refugee and is now a lawful permanent resident.
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Despite Plaintiff’s lawful status, Defendant filed an unwarranted immigration
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detainer against Plaintiff. Because of the detainer, Plaintiff is unable to participate in
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prison fire camps. She also is unable to qualify for early release subject to electronic
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monitoring.
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Plaintiff alleges that the immigration detainer was imposed in violation of her
rights to Equal Protection and Due Process.
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Plaintiff asks that the detainer be lifted.
IV.
ANALYSIS
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A.
Equal Protection
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Bivens relief is available to enforce the equal protection component of the Fifth
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Amendment’s Due Process Clause. Davis v. Passman, 442 U.S. 228, 229 (1979). The
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Fifth Amendment’s Due Process Clause “subjects the federal government to
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constitutional limitations that are the equivalent of those imposed on the states by the
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Equal Protection Clause of the Fourteenth Amendment.” Consejo de Desarrollo
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Economico De Mexicali, A.C. v. United States, 482 F.3d 1157, 1170 n.4 (9th Cir. 2007)
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(citing Bolling v. Sharpe, 347 U.S. 497 (1954)); see also Weinberger v. Wiesenfeld, 420
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U.S. 636, 638 n.2 (1975).
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The Equal Protection Clause requires that persons who are similarly situated be
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treated alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
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(1985). An equal protection claim may be established by showing that the defendant
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intentionally discriminated against the plaintiff based on the plaintiff's membership in a
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protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of
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Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were
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intentionally treated differently without a rational relationship to a legitimate state
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purpose, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Lazy Y
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Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of
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Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).
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Plaintiff has alleged that she is a member of a protected class. Graham v.
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Richardson, 403 U.S. 365, 372 (1971) (classifications based on alienage, nationality, or
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race are inherently suspect and subject to close judicial scrutiny). However, she has not
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alleged intentional discrimination based on her membership in that class. Serrano, 345
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F.3d at 1082 (“Intentional discrimination means that a defendant acted at least in part
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because of a plaintiff’s protected status.”) (quoting Maynard v. City of San Jose, 37 F.3d
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1396, 1404 (9th Cir. 1994)). She has not stated an equal protection claim on this basis.
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Nor has she alleged she was intentionally treated differently from others similarly
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situated without a rational relationship to a legitimate government purpose. Plaintiff
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alleges only that the immigration detainer was improper because she is not deportable
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due to her status as a Vietnamese refugee. She does not allege that she was
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intentionally treated differently from other Vietnamese refugees or other similarly situated
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individuals. She has failed to state an equal protection claim on this basis.
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Plaintiff was advised in the Court’s prior screening order of the requirements for
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pleading an equal protection claim, but has nonetheless failed to allege a cognizable
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claim. This failure reasonably is construed as reflecting her inability to do so. Further
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leave to amend would be futile and should be denied.
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B.
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The Due Process Clause protects prisoners from being deprived of liberty without
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due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a
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cause of action for deprivation of procedural due process, a plaintiff must first establish
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the existence of a liberty interest for which the protection is sought. For state prisoners,
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liberty interests may arise from the Due Process Clause itself or from state law. Hewitt v.
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Helms, 459 U.S. 460, 466-68 (1983).
Due Process
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Plaintiff’s inability to participate in fire camps does not implicate a liberty interest.
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The Due Process Clause does not confer on inmates a liberty interest in eligibility for
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prison programs. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (rejecting argument that
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a pending warrant and detainer that adversely affected defendant’s prison classification
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and qualification for institutional programs implicated a due process right). Liberty
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interests created by state law generally are limited to freedom from restraint which
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“imposes atypical and significant hardship on the inmate in relation to the ordinary
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incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Plaintiff’s allegation
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that she is unable to participate in fire camps does not reflect the imposition of such a
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hardship. See id. Plaintiff has failed to state a claim on this basis.
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Likewise, Plaintiff’s ineligibility for early release, standing alone, does not
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implicate a liberty interest. Preliminarily, Plaintiff does not allege whether she already
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has been denied early release. If not, her complaint may be premature. Even assuming
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Plaintiff has been denied early release, “[t]here is no right under the Federal Constitution
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to be conditionally released before the expiration of a valid sentence . . . .” Swarthout v.
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Cooke, 562 U.S. 216, 131 S. Ct. 890, 862 (2011). And, while California law creates a
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liberty interest in parole, Cooke v. Solis, 606 F.3d 1206, 1213 (2010), the procedures
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required to vindicate that right are minimal, Greenholtz v. inmates of Neb. Penal and
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Corr. Complex, 442 U.S. 1, 16 (1979). The prisoner must be provided only with an
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opportunity to be heard and the reasons why parole was denied. Greenholtz, 442 U.S. at
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If Plaintiff was denied these minimal protections in relation to the denial of early
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release, her sole remedy lies in habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74,
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78 (2005). State prisoners cannot challenge the fact or duration of their confinement in a
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§ 1983 action. Often referred to as the favorable termination rule or the Heck bar, this
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exception to § 1983’s otherwise broad scope applies whenever state prisoners “seek to
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invalidate the duration of their confinement-either directly through an injunction
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compelling speedier release or indirectly through a judicial determination that necessarily
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implies the unlawfulness of the State's custody.” Wilkinson, 544 U.S. at 81. “[A] state
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prisoner's § 1983 action is barred (absent prior invalidation) if success in that action
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would necessarily demonstrate the invalidity of confinement or its duration.” Id. at 81-82;
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Heck v. Humphrey, 512 U.S. 477, 489 (1994) (until and unless favorable termination of
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the conviction or sentence occurs, no cause of action under § 1983 exists).
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To the extent Plaintiff has been denied early release by state prison officials
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based on the immigration detainer and without the minimal procedural protections
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described above, she may wish to pursue a habeas corpus action. However, as she
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previously was advised (ECF No. 11), she may not pursue such a claim in this § 1983
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action.
Based on the foregoing, further leave to amend Plaintiff’s due process claims
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would be futile and should be denied.
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V.
CONCLUSION AND RECOMMENDATION
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Plaintiff’s first amended complaint fails to state any cognizable claim. She
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previously was advised of pleading deficiencies and afforded the opportunity to correct
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them. She failed to do so. Any further leave to amend reasonably appears futile and
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should be denied.
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The undersigned recommends that the action be dismissed with prejudice, that
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dismissal count as a strike pursuant to 28 U.S.C. § 1915(g), and that the Clerk of the
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Court terminate any and all pending motions and close the case.
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The Findings and Recommendation 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)(1).
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Within fourteen (14) days after being served with the Findings and Recommendation, the
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parties may file written objections with the Court. The document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond
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to another party’s objections by filing a response within fourteen (14) days after being
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served with a copy of that party’s objections. The parties are advised that failure to file
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objections within the specified time may result in the waiver of rights on appeal.
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Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir.
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Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
December 19, 2014
/s/
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UNITED STATES MAGISTRATE JUDGE
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Michael J. Seng
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