Woods v. Carey et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/14/11 ORDERING service is appropriate for defendants Carey and Cervantes. The clerk of the court shall send plaintiff 2 USM-285 forms, 1 summons, instruction s heet and a copy of the 05/19/11 fifth amended complaint to be completed and returned within 30 days. Also, RECOMMENDING that plaintiff's 08/30/11 motion for injunctive relief 75 be denied. MOTION for injunctive relief 75 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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EARNEST C. WOODS,
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Plaintiff,
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No. CIV S-06-1857 GEB EFB P
vs.
TOM L. CAREY, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendants.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. This case was referred to the undersigned under Local Rule 302(c)(17), pursuant
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to 28 U.S.C. § 636(b)(1). Currently pending before the court is plaintiff’s fifth amended
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complaint, filed after the court dismissed the fourth amended complaint pursuant to 28 U.S.C.
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§ 1915A, and granted plaintiff one final opportunity to amend. Also pending is plaintiff’s
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motion for a temporary restraining order.
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I.
Background
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On June 3, 2008, the court dismissed this action under Federal Rule of Civil Procedure 8
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on the basis that plaintiff’s second amended complaint was prolix and obscure and that plaintiff
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had therefore failed to state a claim upon which relief could be granted. Dckt. Nos. 26, 35.
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Judgment was duly entered. Dckt. No. 38.
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Plaintiff appealed the judgment to the Court of Appeals for the Ninth Circuit. Dckt. No.
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40. On July 6, 2009, the Court of Appeals determined that the complaint should not have been
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dismissed on this basis, finding that the complaint “delineated a number of claims with sufficient
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specificity and detail,”and remanded the action to this court “for additional proceedings
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consistent with [its] disposition.” Dckt. No. 43 at 2.
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Therefore, on April 26, 2010, the court re-screened the second amended complaint
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pursuant to 28 U.S.C. § 1915A. Dckt. No. 47. The court explained that pursuant to 28 U.S.C.
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§ 1915A(a), it is directed to identify cognizable claims or dismiss the complaint, or any portion
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of the complaint, if it is frivolous, malicious, fails to state a claim upon which relief may be
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granted, or seeks monetary relief from an immune defendant.
In its screening order, the court summarized the second amended complaint’s extensive
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and apparently unrelated allegations against 42 defendants. The court noted that most of the
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allegations simply documented the numerous inmate appeals plaintiff had filed over the course
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of several years, regarding a wide range of issues, and claimed that Carey, the warden, and
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Cervantes, the appeals coordinator had “white-washed” the appeals process. Construing the
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complaint liberally, the court determined plaintiff could proceed on a First Amendment
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retaliation claim against defendant Cervantes and dismissed the remaining claims because they
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were either not cognizable or were improperly joined in a single lawsuit. Dckt. Nos. 47, 52. The
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court granted plaintiff leave to amend, if he so desired, for the limited purpose of adding a
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related, and cognizable claim against defendant Carey, in addition to a retaliation claim against
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Cervantes. Dckt. No. 47.
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On May 28, 2010, plaintiff filed a third amended complaint. Dckt. No. 50. Despite the
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court’s instructions, the third amended complaint named 45 defendants, and the allegations again
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consisted of a list of dozens of inmate appeals plaintiff had filed against various prison officials,
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regarding a broad range of concerns over a period spanning several years. Dckt. No. 59. While
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the complaint included allegations against defendants Cervantes and Carey, it failed to state a
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claim against either defendant. Plaintiff did not allege that Cervantes failed to process plaintiff’s
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inmate appeals in retaliation for plaintiff’s exercise of any constitutionally-protected right, and
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the allegations regarding Carey did not appear to be related to the allegations against Cervantes.
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The court reminded plaintiff that unrelated claims against different defendants must be pursued
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in separate lawsuits. The court granted plaintiff leave to file a fourth amended complaint and
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specifically admonished plaintiff that any amended complaint must strictly adhere to the
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directives set forth by the court and that failure to do so would result in a recommendation that
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this action be dismissed without further leave to amend. Id. at 5-6.
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On December 2, 2010, plaintiff filed a fourth amended complaint, which was nearly
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identical to the third amended complaint. Dckt. No. 65. Accordingly, the court dismissed the
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fourth amended complaint for failure to state a claim, improper joining of claims, and failure to
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comply with the court’s instructions regarding the filing of an amended complaint. Dckt. No. 67.
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The court granted plaintiff one final opportunity to amend his complaint. The court instructed
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plaintiff that he must specifically allege what act or omission of each defendant allegedly
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violated his federally protected rights, and that any amended complaint must be limited to a
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retaliation claim against Cervantes, and a related claim, if any, against defendant Carey. The
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court reminded plaintiff that his remaining claims had been dismissed from this action because
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they were either not cognizable or they were improperly joined. Dckt. No. 52.
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Now before the court is plaintiff’s fifth amended complaint, as well as a motion for a
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temporary restraining order. Dckt. Nos. 73, 75.
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II.
Fifth Amended Complaint
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The fifth amended complaint suffers from many of the same defects as plaintiffs’s
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previously lodged complaints. Despite the court’s previous admonishments, the complaint is not
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limited to allegations supporting a retaliation claim against Cervantes, and a related claim, if any,
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against defendant Carey. Rather, plaintiff has named at least 36 defendants, and includes
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lengthy, rambling and often vague and conclusory factual allegations. See Dckt. Nos. 73, 74.
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However, liberally construed, and for the limited purposes of § 1915A screening, the complaint
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states a potentially cognizable First Amendment retaliation claim against defendants Carey and
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Cervantes. Plaintiff alleges that defendant Carey retaliated against plaintiff for filing a lawsuit
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against him by directing defendant Cervantes to ignore plaintiff’s inmate appeals, and that
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defendant Cervantes retaliated against plaintiff for filing such appeals. Plaintiff may proceed
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with this action on his claim that Carey and Cervantes violated his First Amendment rights.
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III.
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Temporary Restraining Order
Plaintiff seeks injunctive relief to prevent prison official from placing him in
administrative segregation, destroying his property, or transferring him to another prison. Dckt.
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No. 75. Plaintiff also claims that non-parties have interfered with medical treatment related to
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his alleged esophagus condition. Id.
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A preliminary injunction will not issue unless necessary to prevent threatened injury that
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would impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc.
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v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871
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F.2d 863 (9th Cir. 1989). A preliminary injunction represents the exercise of a far reaching
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power not to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter,
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Inc., 326 F.2d 141, 143 (9th Cir. 1964). In order to be entitled to preliminary injunctive relief, a
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party must demonstrate “that he is likely to succeed on the merits, that he is likely to suffer
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irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,
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and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127
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(9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The Ninth
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Circuit Court of Appeals has also held that the “sliding scale” approach it applies to preliminary
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injunctions as it relates to the showing a plaintiff must make regarding his chances of success on
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the merits survives Winter and continues to be valid. Alliance for Wild Rockies v. Cottrell, 632
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F.3d 1127, at 1134-35 (9th Cir. 2011). Under this sliding scale the elements of the preliminary
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injunction test are balanced. As it relates to the merits analysis, a stronger showing of
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irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits.
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Id.
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In cases brought by prisoners involving conditions of confinement, any preliminary
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injunction “must be narrowly drawn, extend no further than necessary to correct the harm the
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court finds requires preliminary relief, and be the least intrusive means necessary to correct the
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harm.” 18 U.S.C. § 3626(a)(2).
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Plaintiff’s motion for injunctive relief is unrelated to the claims on which this action
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proceeds. Plaintiff has not adequately demonstrated that he is likely to prevail on the merits in
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this action. Moreover, plaintiff’s motion refers to individuals who are not parties to this lawsuit.
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The court cannot issue an order against individuals who are not parties to a suit pending before
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it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). See also
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Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an
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injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the
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claim; it may not attempt to determine the rights of persons not before the court.”).
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Assuming a likelihood of success on the merits, plaintiff also fails to show that the
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balance of equities and public interest weigh in favor of a preliminary injunction. Further,
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plaintiff has not adequately demonstrated he is likely to suffer irreparable harm in the absence of
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preliminary relief. The Supreme Court has held that the party seeking the injunction must prove
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that he is likely to suffer irreparable harm in the absence of preliminary relief. Winter, 555 U.S.
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at *22.
Finally, plaintiff is hereby informed that inmates do not have a constitutional right to be
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housed at a particular facility or institution or to be transferred, or not transferred, from one
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facility or institution to another. Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983); Johnson v.
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Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam).
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IV.
Conclusion
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Accordingly, it is hereby ORDERED that:
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1. Service is appropriate for defendants Carey and Cervantes.
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2. The Clerk of the Court shall send plaintiff two USM-285 forms, one summons, an
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instruction sheet and one copy of the May 19, 2011 fifth amended complaint.
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3. Within 30 days from service of this order, plaintiff shall complete the attached Notice
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of Submission of Documents and submit it to the court with the completed summons and USM-
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285 forms and three copies of the endorsed May 19, 2011 fifth amended complaint.
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4. Upon receipt of the necessary materials, the court will direct the United States
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Marshal to serve defendants Carey and Cervantes pursuant to Federal Rule of Civil Procedure 4
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without payment of costs. Failure to comply with this order will result in a recommendation that
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this action be dismissed.
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Further, it is RECOMMENDED that plaintiff’s August 30, 2011 motion for injunctive
relief be denied.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: November 14, 2011.
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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EARNEST C. WOODS,
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Plaintiff,
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No. CIV S-06-1857 GEB EFB P
vs.
TOM L. CAREY, et al.,
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Defendants.
NOTICE OF SUBMISSION OF DOCUMENTS
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Plaintiff hereby submits the following documents in compliance with the court’s order
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filed
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completed summons form
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completed forms USM-285
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copies of the Fifth Amended Complaint
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Dated:
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Plaintiff
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