Mitchell v. Davey, et al.
Filing
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FINDINGS and RECOMMENDATIONS, Recommending That Defendant's 33 Motion for an Order Revoking Plaintiff's In Forma Pauperis Status be Granted and That Plaintiff be Given Forty-Five Days to Pay the Filing Fee, signed by Magistrate Judge Erica P. Grosjean on 5/1/17. Objections to F&R Due Within Twenty-One Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOHN E. MITCHELL,
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Plaintiff,
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v.
CRM M.S. ROBICHEAUX
and LIEUTENANT THOMPSON,
Defendants.
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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT
DEFENDANT’S MOTION FOR AN
ORDER REVOKING PLAINTIFF’S IN
FORMA PAUPERIS STATUS BE
GRANTED AND THAT PLAINTIFF BE
GIVEN FORTY-FIVE DAYS TO PAY
THE FILING FEE
(ECF NO. 33)
OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS
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1:16-cv-01148-DAD-EPG (PC)
I.
BACKGROUND
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John E. Mitchell (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint
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commencing this action on August 5, 2016. (ECF No. 1). The Court granted Plaintiff’s
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application to proceed in forma pauperis on August 23, 2016. (ECF No. 6). On December 20,
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2016, the Court screened Plaintiff’s complaint, and found a cognizable claim against
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defendants Robicheuax and Thompson for violation of Plaintiff’s free exercise rights under the
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First Amendment. (ECF No. 16). The case is now proceeding on that claim. (ECF No. 26).
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On March 24, 2017, defendant Thompson filed a motion for an order revoking
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Plaintiff’s in forma pauperis status. (ECF No. 33). On April 11, 2017, defendant Robicheaux
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filed a notice of joinder in the motion. (ECF No. 39). On April 17, 2017, Plaintiff filed an
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opposition to the motion. (ECF No. 40). On April 24, 2017, defendant Thompson filed a
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reply. (ECF No. 41).
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II.
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)
28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides
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that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has,
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on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action
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or appeal in a court of the United States that was dismissed on the grounds that it is frivolous,
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malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is
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under imminent danger of serious physical injury.”
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III.
ANALYSIS
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To begin, it does not appear that Plaintiff is in imminent danger. The availability of the
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imminent danger exception “turns on the conditions a prisoner faced at the time the complaint
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was filed, not at some earlier or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th
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Cir. 2007). “Imminent danger of serious physical injury must be a real, present threat, not
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merely speculative or hypothetical.” Blackman v. Mjening, No. 116CV01421LJOGSAPC,
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2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To meet his burden under § 1915(g),
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Plaintiff must provide “specific fact allegations of ongoing serious physical injury, or a pattern
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of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v.
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Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague and utterly conclusory assertions” of
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harm are insufficient. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998). The
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“imminent danger” exception is available “for genuine emergencies,” where “time is pressing”
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and “a threat… is real and proximate….” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
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Based on the facts alleged in the complaint (ECF No. 1), it does not appear that Plaintiff
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is in imminent danger. This case now involves only a claim against defendants Robicheaux
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and Thompson for violation of Plaintiff’s free exercise rights under the First Amendment
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because they failed to provide Plaintiff with meals consistent with the religion of Islam. (ECF
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No. 16). There are no allegations that would suggest Plaintiff is at risk of being seriously
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physically injured. Additionally, Plaintiff’s opposition (ECF No. 40) does not allege that
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Plaintiff is in imminent danger. Accordingly, the Court finds that Plaintiff is not in imminent
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danger.
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Therefore, the Court must determine whether Plaintiff “has, on 3 or more prior
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occasions… brought an action or appeal in a court of the United States that was dismissed on
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the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be
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granted….” Section 1915(g).
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Defendant Thompson argues that three actions and one appeal count as strikes: Mitchell
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v. Marshall, et al., C.D. Cal. No. 2:10-cv-07351-UA-SH (“Marshall 1”); Mitchell v. Marshall,
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et al., C.D. Cal. No. 2:12-cv-02048-ABC-SH (“Marshall 2”); Mitchell v. Norton, et al., E.D.
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Cal. No. 1:12-cv-00331-GSA; and Mitchell v. Beard, et al., Ninth Circuit No. 16-15470. (ECF
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No. 33-1, p. 2). Defendant Thompson asks the Court to take judicial notice of the dockets in
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these cases, as well as certain orders and findings and recommendations. (ECF No. 34). The
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Court grants defendant Thompson’s request for judicial notice, and takes judicial notice of
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these cases.
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Plaintiff argues that Marshall 1, Marshall 2, and Beard do not constitute strikes. (ECF
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No. 40). Plaintiff states that it is up to the Court to determine whether Norton counts as a
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strike. (Id. at p. 3). Plaintiff also alleges that he ended up paying the filing fee for the Marshall
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1 and Beard cases. (Id. at pgs. 2 & 4). However, the fact that Plaintiff may have eventually
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ended up paying the filing fee in these cases does not factor into the analysis. As described
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above, the question is whether, before filing this action, Plaintiff filed three or more cases that
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were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim
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upon which relief could be granted. Section 1915(g). See also Belanus v. Clark, 796 F.3d
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1021, 1028 (9th Cir. 2015), cert. denied, 137 S. Ct. 109 (2016), reh'g denied, 137 S. Ct. 489
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(2016) (holding that a case can count as a strike even if the plaintiff has paid the filing fee in
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that case). Accordingly, whether Plaintiff paid the filing fees in any of these four cases is
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irrelevant. The Court notes that plaintiffs proceeding in forma pauerpis are still obligated to
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pay the filing fee. “Notwithstanding subsection (a), if a prisoner brings a civil action or files an
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appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing
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fee….” Section 1915(b)(1).
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Turning to Plaintiff’s prior cases, the Court finds that Marshall 1, C.D. Cal. No. 2:10-
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cv-07351-UA-SH, was dismissed for failure to state a claim, and thus counts as a strike. While
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the assigned magistrate judge in the Marshall 1 case only checked the box recommending that
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Plaintiff be denied in forma pauperis status because of an “[i]nadequate showing of indigency,”
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the “Comments” section says “see attachment.” (ECF No. 34-1, p. 4). The attachment clearly
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states that the magistrate judge found that Plaintiff’s complaint failed to state a claim upon
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which relief could be granted. (Id. at p. 5). Moreover, the assigned district judge adopted the
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magistrate judge’s recommendation and denied Plaintiff’s request to proceed in forma
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pauperis. (Id. at p. 4). “[W]hen a district court disposes of an in forma pauperis complaint ‘on
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the grounds that [the claim] is frivolous, malicious, or fails to state a claim upon which relief
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may be granted,’ such a complaint is ‘dismissed’ for purposes of § 1915(g) even if the district
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court styles such dismissal as denial of the prisoner's application to file the action without
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prepayment of the full filing fee.” O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).
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The second case that defendant Thompson argues counts as a strike is Marshall 2, C.D.
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Cal. No. 2:12-cv-02048-ABC-SH. In this case, the assigned magistrate judge issued findings
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and recommendations, recommending that the case be dismissed for failure to state a claim
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(ECF No. 34-2, pgs. 8 & 19).
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recommendations in full. (Id. at p. 21). Accordingly, the Court finds that this case counts as a
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strike.
The assigned district judge adopted the findings and
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The third case that defendant Thompson argues counts as a strike is Norton, E.D. Cal.
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No. 1:12-cv-00331-GSA. This case was dismissed, with prejudice, for failure to state a claim.
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(ECF No. 34-3, p. 16). Accordingly, the Court finds that this case counts as a strike.
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The final case that defendant Thompson argues counts as a strike is Beard, Ninth
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Circuit No. 16-15470. Plaintiff appealed the denial of his motion for a preliminary injunction.
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(ECF No. 34-4, pgs. 9 & 10). The Ninth Circuit Court of Appeals affirmed the denial, stating
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that “[a] review of the record and the opening brief indicates that the questions raised in this
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appeal are so insubstantial as to not require further argument.” (Id.).
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“[A] case is frivolous if it is ‘of little weight or importance: having no basis in law or
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fact.’” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citing Webster's Third New
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International Dictionary 913 (1993)). While § 1915(g) states that a case must be “dismissed on
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the grounds that it is frivolous…,” § 1915(g) (emphasis added), for it to count as a strike, “the
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procedural mechanism or Rule by which the dismissal is accomplished, while informative, is
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not dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013). See also O'Neal, 531
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F.3d 1146, 1153 (9th Cir. 2008) (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 986–87 (9th
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Cir.1999) (alteration in original) (“no ‘particular formalities are necessary for an order that
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serves as the basis of [an involuntary] dismissal’”).
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In this appeal, while the appellate court did not actually dismiss the case, it did
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“summarily affirm” the lower court’s ruling. (ECF No. 34-4, p. 10). It did so because “the
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questions raised in [the] appeal [were] so insubstantial as not to require further argument.”
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(Id.). The Court finds that this counts as a strike. See, e.g., McCoy v. Enenmoh, No. 1:12-CV-
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00983 AWI, 2014 WL 2524010, at *2 (E.D. Cal. June 4, 2014), report and recommendation
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adopted sub nom. McCoy v. Stronach, No. 1:12CV00983 AWI DLB, 2014 WL 3615621 (E.D.
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Cal. July 22, 2014) (finding that an appeal that was dismissed as “‘so insubstantial as not to
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require further argument’” counted as a strike under § 1915(g)).
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Accordingly, based on the foregoing, the Court finds that, before filing this case,
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Plaintiff had filed three or more cases that were dismissed on the grounds that they were
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frivolous, malicious, or failed to state a claim upon which relief could be granted.
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IV.
CONCLUSION AND RECOMMENDATIONS
The Court finds that under 28 U.S.C. § 1915(g) Plaintiff may not proceed in forma
pauperis in this action.
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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1. Defendant Thompson’s motion for an order revoking Plaintiff’s in forma pauperis
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status pursuant to 28 U.S.C. § 1915(g) be GRANTED;
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2. The order granting Plaintiff’s application to proceed in forma pauperis (ECF No. 6)
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be VACATED and that Plaintiff’s in forma pauperis status in this action be
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REVOKED; and
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3. If these findings and recommendations are adopted, that Plaintiff be ordered to pay
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the $400.00 filing fee in full within forty-five days of the date of service of the order
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adopting these findings and recommendations.
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These findings and recommendations will be submitted to the United States District
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Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1).
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Within twenty-one (21) days after being served with a copy of these findings and
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recommendations, any party may file written objections with the court and serve a copy on all
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parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Any reply to the objections shall be served and filed within ten (10) days
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after service of the objections. The parties are advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d
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834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
May 1, 2017
/s/
UNITED STATES MAGISTRATE JUDGE
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