McElroy v. Gustafson et al
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/19/2013 DENYING 32 Motion to Appoint Counsel; DENYING 36 Rule 56(d) Motion for Extension of Time to Oppose Plaintiff's Motion for Summary Judgment; ORD ERING that Plaintiff's deposition be completed within thirty (30) days; ORDERING that Defendants' opposition to 34 Motion for Partial Summary Judgment and Defendants cross-motion, if any, be filed fourteen (14) days after completion of Plaintiff's deposition; RECOMMENDING that 28 Motion for Temporary Restraining Order be denied; REFERRING this matter to Judge Troy L. Nunley; ORDERING that any objections be filed within fourteen (14) days. (Michel, G)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LATHAHN MCELROY,
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Plaintiff,
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No. 2:12-cv-1518-TLN-EFB P
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
C/O GUSTAFSON, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights
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action under 42 U.S.C. § 1983. On May 31, 2013, plaintiff filed a motion for temporary
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restraining order (“TRO”) and preliminary injunction. ECF No. 28. Plaintiff seeks an order
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“requiring the defendants to arrange for a plan of treatment by qualified specialists and/or the
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transferring facility/PCG original treatment plan [and] . . . to carry out the most effective plan(s)
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of treatment.” Id. at 7. Plaintiff argues that the requested injunctive relief should be issued
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against defendants Deems, Virga, and Cate1 because “these defendants have the responsibility for
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providing the plaintiff necessary items, medical prescriptions, and physical therapy as well as the
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ability to arrange it.” Id.
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Plaintiff’s request to proceed as to defendant Cate as a party to this action was denied pursuant
to the court’s screening order issued June 26, 2012. ECF No. 5.
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The purpose in issuing a temporary restraining order is to preserve the status quo pending
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a fuller hearing. The cases contain limited discussion of the standards for issuing a temporary
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restraining order due to the fact that very few such orders can be appealed prior to the hearing on
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a preliminary injunction. It is apparent however, that requests for temporary restraining orders
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which are not ex parte and without notice are governed by the same general standards that govern
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the issuance of a preliminary injunction. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434
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U.S. 1345, 1347 n.2 (1977) (Rehnquist, J.); Los Angeles Unified Sch. Dist. v. United States Dist.
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Court, 650 F.2d 1004, 1008 (9th Cir. 1981) (Ferguson, J. dissenting); Century Time Ltd. v.
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Interchron Ltd., 729 F. Supp. 366, 368 (S.D.N.Y. 1990). In many cases the emphasis of the court
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is directed to irreparable harm and the balance of hardships because the merits of a controversy
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are often difficult to ascertain and adjudicate on short notice.
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The Ninth Circuit standard for preliminary injunctive relief is well-established. A
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preliminary injunction will not issue unless necessary to prevent threatened injury that would
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impair the court’s ability to grant effective relief in a pending action. Sierra On-Line, Inc. v.
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Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984); Gon v. First State Ins. Co., 871 F.2d
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863 (9th Cir.1989). A preliminary injunction represents the exercise of a far reaching power not
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to be indulged except in a case clearly warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d
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141, 143 (9th Cir.1964). To obtain a preliminary injunction a party must demonstrate “that he is
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likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
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preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
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public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009), citing Winter v.
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Natural Res. Def. Council, Inc., --- U.S. ----, 129 S.Ct. 365, 374 (2008). The Ninth Circuit has
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also held that “sliding scale” approach it applies for the showing that must be made as to the
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likelihood of success on the merits survives Winter and continues to be valid. Alliance for Wild
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Rockies v. Cottrell, __ F.3d __, 2010 WL 2926463, *3-4 (filed July 28, 2010). Under this
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sliding scale the elements of the preliminary injunction test are balanced. As it relates to the
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merits analysis, a stronger showing of irreparable harm to plaintiff might offset a lesser showing
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of likelihood of success on the merits. 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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Here, plaintiff’s motion includes allegations against individuals who are not named
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defendants in this action. In particular, Cate, one of the persons plaintiff specifically seeks
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injunctive relief from, is no longer a party to this case. See ECF No. 5. Apart from the problem
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of plaintiff seeking injunctive relief against an individual who is no longer party to the suit, see
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e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969), plaintiff has not
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demonstrated a likelihood of success as to any claim against Cate or any other non-parties.
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Therefore, plaintiff’s motion with regard to these parties should be denied.
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With regard to defendants Deems and Virga, the record before the court suggests that
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neither defendant can provide the relief plaintiff requests. Virga is the Warden at California State
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Prison, Sacramento (“CSP-Sacramento”) and Deems is the Chief Medical Officer at CSP-
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Sacramento. Plaintiff is now housed at Salinas Valley State Prison (“SVSP”). See ECF No. 22.
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The allegations in plaintiff’s motion concern events that occurred from September 2012 until
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April 2013 at both SVSP and Wasco State Prison, where plaintiff was housed prior to his transfer
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to SVSP. Nothing in the record before the court indicates that Deems or Virga are currently
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responsible for providing plaintiff medical treatment – either generally or the specific treatment
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plaintiff seeks through this motion. Plaintiff fails to show how either of these defendants, who
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work at CSP-Sacramento, are able to arrange for the provision of the treatment plaintiff demands
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at SVSP. Accordingly, plaintiff’s motion should be denied with respect to Deems and Virga.
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Similarly, the record before the court also does not show that the other two remaining
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defendants, Gustafson and Robertson, are able to provide the relief plaintiff requests in his
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motion. Both are located at High Desert State Prison, not SVSP, and work respectively as a
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correctional officer and physician’s assistant, suggesting that neither one has control over
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plaintiff’s current medical care. Because plaintiff has not made a showing that the any of
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remaining named defendants can provide the relief sought, the motion should be denied.
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On September 9, 2013, plaintiff filed a motion for the appointment of counsel. ECF No.
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32. The United States Supreme Court has ruled that district courts lack authority to require
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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490
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U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary
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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017
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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present
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case, the court does not find the required exceptional circumstances. Plaintiff’s motion for the
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appointment of counsel will therefore be denied.
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Finally, plaintiff has filed a motion for partial summary judgment, ECF No. 34, and
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defendants have filed a motion for an extension of time to file an opposition to that motion, ECF
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No. 36. Defendants’ motion includes a request under Rule 56(d) to postpone consideration of
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plaintiff’s summary judgment motion pending further discovery. Rule 56(d) (formerly Rule
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56(f)) provides that the court may postpone consideration of a pending motion and allow the
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nonmovant “time to obtain affidavits or declarations or to take discovery” when the “nonmovant
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shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to
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justify its opposition.” Fed. R. Civ. P. 56(d). Defendants rely on a declaration by their counsel,
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David Brice, which notes that the discovery period in this case has not opened and that defendants
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have not yet had an opportunity to take plaintiff’s deposition or conduct any written discovery.
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ECF No. 36 at 3. Brice “expect[s] that a deposition and written discovery will allow [him] to
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question Plaintiff regarding the circumstances that led to the alleged use of excessive force,
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pepper spray, and confiscation of his medical items.” Id. However, defendants have not shown
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that postponement of plaintiff’s motion is necessary for defendants to present an opposition to the
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motion. While plaintiff’s deposition will likely yield relevant information, the Brice declaration
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does not demonstrate what facts necessary for opposing summary judgment cannot be presented
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without the deposition. Tatum v. City & County of San Francisco, 441 F.3d 1090, 1101 (9th Cir.
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2006) (“The declaration does not, however, refer to any specific fact in these depositions or
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explain why the information contained in them was ‘essential to justify [Tatum's] opposition.’”);
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State of Cal., on Behalf of California Dept. of Toxic Substances Control v. Campbell, 138 F.3d
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772, 779 (9th Cir. 1998) (“the defendants must show (1) that they have set forth in affidavit form
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the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and
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(3) that these sought-after facts are ‘essential’ to resist the summary judgment motion.”).
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Here, plaintiff’s four page motion raises the limited question of whether his conduct at the
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time warranted the use of pepper spray and confiscation of his back brace and mobility device.
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He includes a six page declaration which succinctly recites his version of the events and states
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that he did not present a risk warranting the level of force used. To defeat plaintiff’s motion
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defendants need not establish that they are entitled to summary judgment. They merely need to
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show that plaintiff’s version of the facts are disputed in some material way. The Brice declaration
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does not explain why the defendants are unable to submit a declaration(s) disputing those facts.
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Thus, while further discovery, including the deposition of plaintiff might assist defendants in
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presenting their own motion for summary judgment, there has been no showing that defendants
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are unable, without further discovery, to present an opposition to the pending motion by plaintiff.
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If defendants’ opposition is premised on the factual contention that either no force was used or
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that plaintiff engaged in conduct warranting the force that was used, defendants have not shown
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why they cannot simply submit declaration testimony saying so. Therefore, defendants fail to
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satisfy the requirements of Rule 56(d) by showing that facts essential to justify opposition to
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summary judgment cannot be presented without the contemplated deposition. Campbell, 138
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F.3d at 779. Accordingly, defendants’ Rule 56(d) request for continuance of the summary
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judgment motion is denied.
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However, the court infers from the defendants’ request that they contemplate a cross-
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motion for summary judgment after taking the plaintiff’s deposition. If so, judicial economy
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favors consideration of both motions at the same time. Therefore, consideration of plaintiff’s
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motion is continued until after the deposition of plaintiff. If plaintiff’s deposition has not already
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been taken, defendants shall complete that deposition within 30 days. Defendants’ opposition to
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plaintiff’s summary judgment motion, and defendants’ cross-motion, if any, shall be filed 14 days
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thereafter.
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In accordance with the above, it is hereby ORDERED that:
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1. Plaintiff’s September 9, 2013 motion for the appointment of counsel, ECF No. 32, is
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denied;
2. Defendants’ Rule 56(d) request for continuance of plaintiff’s summary judgment
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motion is denied; however, the court will consider cross-motions for summary judgment at the
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same time;
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3. Plaintiff’s deposition shall be completed within 30 days; and
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4. Defendants’ opposition to plaintiff’s summary judgment motion, and defendants’
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cross-motion, if any, shall be filed 14 days after completion of plaintiff’s deposition.
Further, it is hereby RECOMMENDED that plaintiff’s May 31, 2013 motion for
temporary restraining order, ECF No. 28, 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.” Any response to the
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objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez
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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: November 19, 2013.
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