(PC) Gonzalez v. James et al
Filing
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FINDINGS and RECOMMENDATIONS recommending Defendants' Motion to Dismiss be granted 27 signed by Magistrate Judge Stanley A. Boone on 1/28/2025. Referred to Judge Jennifer L. Thurston; Objections to F&R due within 14-Days. (Deputy Clerk TEL)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAIME CESAR GONZALEZ,
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No. 1:23-cv-01505-JLT-SAB (PC)
Plaintiff,
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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANTS’
MOTION TO DISMISS BE GRANTED
v.
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JOON KEE JAMES, et al.
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(ECF No. 27)
Defendants.
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Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42
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U.S.C. § 1983.
Currently before the Court is Defendants’ motion to dismiss, filed November 18, 2024.
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(ECF No. 27.)
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I.
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PROCEDURAL BACKGROUND
This action is proceeding against Defendants Joon Kee James, Sabrina M. Kurczeski,1 and
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Gerald Edwards for deliberate indifference to Plaintiff’s serious medical need.
On March 8, 2024, a signed waiver of service was returned on behalf of Defendant Vu
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Quang Huynh. (ECF No. 13.)
On March 29, 2024, the summons were returned executed as to Defendants Joon Kee
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Erroneously sued by Plaintiff as Sabrina M. Kurezeski.
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James, Sabrina M. Kurczeski, and Gerald Edwards. (ECF No. 14.) However, these Defendants
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did not file a timely response, and, on July 2, 2024, the Court entered default as to these
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Defendants. (ECF No. 17.)
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On April 18, 2024, Defendant Vu Quang Huynh filed a motion to dismiss for lack of
jurisdiction and failure to state a claim for relief. (ECF No. 15.)
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On April 24, 2024, Defendant Vu Quang Huynh filed an answer to the operative
complaint. (ECF No. 16.)
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On July 22, 2024, Findings and Recommendations were issued to grant Defendant
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Huynh’s motion to dismiss. (ECF No. 21.) The Findings and Recommendations were adopted in
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full on August 15, 2024, and Defendant Huynh was dismissed from the action. (ECF No. 21.)
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On August 20, 2024, Defendants Kurczeski and Edwards filed a motion to set aside the
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entry of default. (ECF No. 22.)
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On September 17, 2024, Findings and Recommendations were issued to grant the motion
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to set aside the entry of default as to Defendants Kurczeski and Edwards. (ECF No. 23.) The
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Findings and Recommendations were adopted on October 28, 2024. (ECF No. 25.)
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On November 18, 2024, Defendants Kurczeski and Edwards filed the instant motion to
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dismiss the claims against them for lack of jurisdiction.2 (ECF No. 27.) Plaintiff did not file an
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opposition and the time to do so has passed. Local Rule 230(l).
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II.
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DISCUSSION
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This action is proceeding on Plaintiff’s claims that Defendants Joon Kee James, Sabrina
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M. Kurczeski, Vu Quang Huynh, and Gerald Edwards for deliberate indifference to Plaintiff’s
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serious medical needs when he was taken to the hospital emergency room for evaluation.
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Plaintiff claims that he reported to several emergency room personnel that he was assaulted by
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correctional officers, that his back hurt, and he had lost control of his bowels. Plaintiff also
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alleges that correctional officers directed that he be provided only a CT of the brain without
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explanation and that emergency room providers acted under a “code of silence” with correctional
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No response has been filed on behalf of Defendant Joon Kee James.
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officers to ignore Plaintiff’s medical needs. He further alleges that the health care providers
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neglected his medical needs as “retaliation.” Plaintiff then contends he was discharged without
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treatment for his back pain and later, on April 27, 2023, it was discovered that he had a spinal
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fracture.
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Defendants Kurczeski and Edwards argue that the Court lacks subject matter jurisdiction
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under Federal Rule of Civil Procedure 12(b)(1) because they are not a state actor for purposes of
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§ 1983 liability. In the alternative, Defendants argue that Plaintiff fails to state a cognizable claim
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for relief under Federal Rule of Civil Procedure 12(b)(6).
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Plaintiff bears the burden of establishing that defendant is a state actor, and there is a
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presumption that private individuals and entities do not act under the “color of state law” within
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the meaning of § 1983. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th
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Cir. 2011). To state a claim under § 1983, Plaintiff “must allege a violation of his constitutional
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rights and show that the defendant's actions were taken under color of state law.” Florer v.
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Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 921 (9th Cir. 2011) (quoting Gritchen v.
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Collier, 254 F.3d 807, 812 (9th Cir. 2001)); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir.
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2006); see also Sampson v. County of Los Angeles, 974 F.3d 1012, 1018 (9th Cir. 2020). The
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“color of law” or “state actor” requirement is “a jurisdictional requisite for a § 1983 action.”
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Gritchen, 254 F.3d at 812; see also West v. Atkins, 487 U.S. 42, 46–48 (1988). The question in
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determining whether a person is subject to suit under § 1983 is the same as the question in
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Fourteenth Amendment claims, Pasadena Republican Club v. W. Justice Ctr., 985 F.3d 1161,
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1167 (9th Cir. 2021). Specifically, is the alleged infringement of federal rights fairly attributable
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to the government? Id.
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Determining whether a private party acts under color of state law “is a matter of normative
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judgment, and the criteria lack rigid simplicity.” Brentwood Acad. v. Tenn. Secondary Sch.
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Athletic Ass’n, 531 U.S. 288, 295 (2001); Rawson v. Recovery Innovations, Inc., 975 F.3d 742,
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747 (2020). “[N]o one fact can function as a necessary condition across the board for finding state
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action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing
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reason against attributing activity to the government.” Brentwood, 532 U.S. at 295–96. To
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typically act under color of state law, a defendant must have exercised power possessed on
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account of state law and made possible because they are cloaked with the authority of state law.
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West, 487 U.S. at 49; Florer, 639 F.3d at 922. A defendant need not necessarily be a state
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employee, but they must be “a willful participant in joint action with the State or its agents.
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Private persons, jointly engaged with state officials in the challenged action, are acting ‘under
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color’ of law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27–28 (1980).
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There are at least four tests that facilitate identification of state action. Namely, “(1) public
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function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental
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nexus.” Rawson, 975 F.3d at 747 (quoting Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.
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2003)). Satisfaction of any the tests is enough to find state action, provided no “countervailing”
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factor defeats a finding of state action. Pasadena Republican Club, 985 F.3d at 1167; Rawson,
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975 F.3d at 747. Regardless of the test, the question is simply always whether a defendant has
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exercised power possessed and made possible because state law. Pasadena Republican Club, 985
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F.3d at 1167.
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The public function test is satisfied only upon a showing that the function relevant to a
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claim is “both traditionally and exclusively governmental.” Rawson, 975 F.3d at 747 (quoting
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Kirtley, 326 F.3d at 1093). A plaintiff may satisfy both the nexus and joint action tests by
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identifying “a sufficiently close nexus between the state and the private actor,” such that the
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private action may be treated as an action of the State, or where the State is so interwoven with
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the private action that the State was a joint participant in the action. Id. (quoting Jensen v. Lane
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Cty., 222 F.3d 570, 575 (9th Cir. 2000)). Governmental compulsion or coercion may exist if the
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State exercised coercive power or provided encouragement—whether explicit or secret—such
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that a choice must be viewed as one made by the State. Id. (citing Blum v. Yaretsky, 457 U.S.
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991, 1004 (1982)).
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Physicians who contract with prisons to provide healthcare to inmates are state actors.
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See, e.g., West, 487 U.S. at 50–54; Harris v. Mkrtchyan, No. 2:19-cv-1040-JAM-JDP (PC), 2021
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WL 2651999, at *2 (E.D. Cal. June 28, 2021); George v. Sonoma Cty. Sheriff's Dep’t, 732 F.
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Supp. 2d 922, 934 (N.D. Cal. 2010). However, private doctors, nurses, and hospitals who have
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not assumed the State's obligation to provide medical care to inmates, are not state actors just
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because they provide one-off medical treatment to an inmate. See, e.g., West, 487 U.S. at 50–54;
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Felix v. Casey, No. 2:18-cv-3185-KJM-AC-P, 2021 WL 2209828, at *2 (E.D. Cal. June 1, 2021);
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Probst v. Adams Cty. Sheriff's Dep’t, No. 1:20-cv-00032-DCN, 2021 WL 1554064, at *3 (D.
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Idaho Apr. 19, 2021).
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Here, there are insufficient allegations that Defendants Kurczeski and Edwards are
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contract medical professionals with California City Correctional Facility, the California
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Department of Corrections and Rehabilitation (CDCR), or that he is otherwise employed by the
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State. In fact, it appears that Defendants Kurczeski and Edwards are employed by Adventist
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Health, Tehachapi. (ECF No. 9.); Declaration of Sabrina M. Kurczeski, ¶¶ 2-3; Declaration of
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Gerard Edwards, ¶¶ 2-3; see also Von Haney v. Cross, No. 2:18-CV-1836 KJN P, 2019 WL
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586620, at *2 (E.D. Cal. Feb. 13, 2019) (stating outside surgeons and anesthesiologist at Shasta
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Medical Center and “are not employees of the California Department of Corrections and
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Rehabilitation, and thus do not qualify as state actors under section 1983.”). Defendants’ status
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as state actors is further strained by the fact that they were contacted to perform “emergency”
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room services. See Clewis v. Cal. Prison Health Care Servs., No. 2:14-cv-01682-SI, 2013 WL
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2482521, at *1 (E.D. Cal. June 10, 2013) (finding no state action where “a health care provider
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not contracted to the state has a preexisting commitment to serve all persons who present
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themselves for emergency treatment”); Sykes v. McPhillips, 412 F.Supp.2d 197, 204 (N.D.N.Y.
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2006) (doctors “non-contractual provision of medical services outside of the prison context, in an
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emergency room, is not sufficient to support a finding of state actor status”); Rodriguez v.
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Plymouth Ambulance Serv., 577 F.3d 816, 827 (7th Cir. 2009) (“an emergency medical system
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that has a preexisting obligation to serve all persons who present themselves for emergency
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treatment hardly can be said to have entered into a specific voluntary undertaking to assume the
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state’s special responsibility to incarcerated persons”). Although Plaintiff alleges that emergency
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room personnel acted pursuant to a “code of silence” with correctional officers in denying his
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appropriate medical care, there are insufficient facts to demonstrate that either Kurczeski or
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Edwards were aware of and willing participants in the alleged “code of silence.” In addition,
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there are no facts to demonstrate how or when this “code of silence” was implemented or
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employed to give rise to the level of “state action” under § 1983. Absent any specific allegations
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demonstrating that Defendants Kurczeski and Edwards were acting under state law, this Court
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lacks subject matter jurisdiction. Accordingly, Defendants’ motion to dismiss the claims against
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him for lack of subject matter jurisdiction should be granted.3
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III.
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RECOMMENDATIONS
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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1.
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The motion to dismiss brought by Defendants Kurczeski and Edwards4 for lack of
subject matter be granted; and
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Defendants Kurczeski and Edwards be dismissed from the action.
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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 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days after being served with these Findings and Recommendations, the parties may file
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written objections with the Court, limited to 15 pages in length, including exhibits. The
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document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” The parties are advised that failure to file objections within the specified
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time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39
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(9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
January 28, 2025
STANLEY A. BOONE
United States Magistrate Judge
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Because the Court finds that it lacks subject matter jurisdiction, the Court need not reach Defendants’ alternative
argument that the complaint fails to state a cognizable claim for relief.
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As previously stated, this motion was not brought on behalf of Defendant Joon Kee James.
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