O'Neal v. Lee
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/01/15 recommending that the motion to dismiss 11 be denied. MOTION to DISMISS 11 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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GLENN DAVID O’NEAL,
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Plaintiff,
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v.
No. 2:14-cv-1598 GEB DAD P
FINDINGS AND RECOMMENDATIONS
BONNIE LEE,
Defendant.
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Plaintiff is a state prisoner proceeding pro se with an action for alleged violations of his
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civil rights, pursuant to 42 U.S.C. § 1983. He claims that the defendant, a doctor at High Desert
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State Prison (HDSP), rendered him inadequate medical treatment in violation of his right to be
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free from cruel and unusual punishment under the Eighth Amendment. Defendant Lee has filed a
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motion to dismiss the complaint for failure to state a claim on which relief could be granted,
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pursuant to Federal Rule of Civil Procedure 12(b)(6).
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I. Legal standard
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In considering whether a complaint states a claim upon which relief can be granted, the
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court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe
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the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232,
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236 (1974). Pro se pleadings are held to a less stringent standard than those drafted by lawyers.
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See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive dismissal for failure to state a
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claim, a pro se complaint must contain more than “naked assertions,” “labels and conclusions” or
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“a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555-57 (2007). In other words, “[t]hreadbare recitals of the elements of a cause of
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action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
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678 (2009). Furthermore, a claim upon which the court can grant relief must have facial
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plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
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factual content that allows the court to draw the reasonable inference that the defendant is liable
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for the misconduct alleged.” Iqbal, 556 U.S. at 678. Attachments to a complaint are considered
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to be part of the complaint for purposes of a motion to dismiss for failure to state a claim. Hal
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Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).
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II. Plaintiff’s allegations
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In his complaint, plaintiff alleges as follows. Plaintiff broke his ankle on June 12, 2011.
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(Complaint (ECF No. 1) at 4.) In 2012, while plaintiff was housed at California Correctional
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Facility (CCI), a non-party physician recommended “bone stimulation treatment and tibiotalar
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effusion to correct the malunion of my tibiotalar joint.” (Id.) A Doctor Tate at CCI originally
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agreed with that recommendation, but after plaintiff filed an inmate grievance complaining of the
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medical care he was being provided, Tate retaliated against him by discontinuing all treatment.1
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(Id.) When plaintiff arrived at HDSP in August 2012, he “was in debilitating pain daily that
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significantly affected my daily activities as simple as walking. Dr. Andrew Pomazal requested
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that I receive physical therapy, but [defendant] Dr. Bonnie Lee denied the request, which also
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included crutches or a cane, x-rays, treatment, or any pain relief and rehabilitation.” (Id.) In his
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complaint, plaintiff makes no other specific allegations against defendant Lee.
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III. Analysis
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The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment
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prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v.
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Plaintiff’s allegation that Dr. Tate retaliated against him for filing an inmate grievance was the
basis of a claim plaintiff presented in a prior lawsuit he filed in this court, O’Neal v. Solis, et al.,
Civil Action No. 1:12-cv-1299-RBB. Plaintiff has not named Dr. Tate as a defendant in this
action.
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Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In order to
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prevail on a claim of cruel and unusual punishment, a prisoner must allege and prove (1) an
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objective element, that he suffered a sufficiently serious deprivation and (2) a subjective element,
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that prison officials acted with deliberate indifference in allowing or causing the deprivation to
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occur. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). An Eighth Amendment medical claim
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therefore has two elements: “the seriousness of the prisoner’s medical need and the nature of the
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defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991),
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overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en
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banc). The prisoner must allege and prove “acts or omissions sufficiently harmful to evidence
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deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106.
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A medical need is serious “if the failure to treat the prisoner’s condition could result in
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further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974
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F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include
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“the presence of a medical condition that significantly affects an individual’s daily activities.” Id.
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at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the
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objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S.
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825, 834 (1994).
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If a prisoner establishes the existence of a serious medical need, he must then show that
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prison officials responded to the serious medical need with deliberate indifference. Farmer, 511
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U.S. at 834. In general, deliberate indifference exists when prison officials deny, delay, or
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intentionally interfere with medical treatment; a prisoner may also show it in the way in which
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prison officials provide medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th
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Cir. 1988). However, “the indifference to [a plaintiff’s] medical needs must be substantial. Mere
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‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support [h]is cause of action.”
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Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at
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105-06). See also Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere
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negligence in diagnosing or treating a medical condition, without more, does not violate a
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prisoner’s Eighth Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate
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indifference is “a state of mind more blameworthy than negligence” and “requires ‘more than
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ordinary lack of due care for the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835 (quoting
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Whitley, 475 U.S. at 319).
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In moving to dismiss plaintiff’s complaint defendant Lee contends only that plaintiff has
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not alleged that defendant Lee acted with the requisite state of mind. The motion does not contest
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that plaintiff suffered from a serious medical condition. Rather, the defendant argues that “the
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factual allegations, at most, show a difference of medical opinion between Dr. Pomazal and Dr.
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Lee. . . . [Plaintiff] fails to allege that Dr. Lee’s decision to deny the physical therapy was
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medically unacceptable under the circumstances and that Dr. Lee chose to deny physical therapy
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in conscious disregard of an excessive risk to [plaintiff’s] health.” (Motion (ECF No. 11) at 4.)
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Indeed, as a general matter, mere differences of opinion between a prisoner and prison medical
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staff or between medical professionals as to the proper course of treatment for a prisoner’s
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medical condition a cognizable civil rights claim. Toguchi, 391 F.3d at 1058; Jackson v.
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McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989);
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Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
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Here, however, the factual allegations of the complaint support the reasonable inference,
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which the court is required to draw, that plaintiff bases his claim on more than a mere difference
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of opinion between doctors. The plaintiff has alleged an objectively serious injury (a broken and
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still untreated ankle) that put him in “debilitating pain daily” and that the defendant denied him
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any “treatment or any pain relief” in response to that condition. (Complaint at 4) (emphasis
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added).) That allegation does not necessarily depend on a doctor’s opinion: it just as plausibly
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avers that the defendant knew the plaintiff was suffering an objectively serious medical condition
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and simply ignored him. If true, that allegation suffices to state a claim under the Eighth
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Amendment. See Jett v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006) (stating that “prison
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administrators . . . are liable for deliberate indifference when they knowingly fail to respond to an
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inmate’s requests for help”); Hathaway v. Coughlin, 37 F.3d 63, 68 (2nd Cir. 1994) (concluding
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that “[a] jury could infer deliberate indifference from the fact that [the defendant physician] knew
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the extent of [the inmate’s] pain . . . and declined to do anything more to attempt to improve [the
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inmate’s] situation”).
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Plaintiff does not allege that Dr. Lee had a difference of opinion with Dr. Pomazal, who
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allegedly “requested” that the plaintiff receive physical therapy. Rather, plaintiff simply alleges
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that in August 2012 when he was in “debilitating pain daily” Dr. Lee denied a request for
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physical therapy, crutches or a cane, x-rays, treatment, or any pain relief. In the absence of any
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statement in the complaint that Dr. Lee made her decision on the basis of her own medical
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judgment, the court cannot presume that she did so. Giving the allegations of the complaint the
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liberal construction due all pro se plaintiffs, the undersigned finds a reasonable inference that
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plaintiff is alleging that Dr. Lee gave his plea for pain relief no professional consideration and
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simply denied him any treatment, medication, therapy or equipment outright.
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Certainly, defendant may well present evidence establishing otherwise later, but at the
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pleading stage, the court cannot dismiss an action on a presumed difference in medical opinions
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for which there is no conclusive support in the complaint. “Ultimately, defense counsel may well
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establish that this case is simply one about a mere difference of opinion between physicians as to
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the proper course of treatment. On the other hand, plaintiff may be able to establish that this is
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instead a case in which [the defendant doctor] deliberately ignored [an examining doctor’s]
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recommendations with respect to treatment and pain management.” Steinocher v. Smith, No.
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2:12-cv-0467 DAD P, 2015 WL 1238549 at *3 (E.D. Cal. March 17, 2015) (relying on Estelle,
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429 U.S. at 104-05). See also Jett, 439 F.3d at 1097-98 (finding a triable issue of fact as to
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whether a prison doctor was deliberately indifferent to a prisoner’s medical needs when he
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decided not to request an orthopedic consultation as the prisoner’s emergency room doctor had
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previously ordered); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992) (finding a triable
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issue of fact as to whether prison officials were deliberately indifferent to prisoner’s serious
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medical needs when they relied on the opinion of a prison doctor instead of the opinion of the
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prisoner’s treating physician and surgeon), abrogated in part on other grounds by Estate of Ford v.
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Ramirez-Palmer, 301 F.3d 1043, 1045 (9th Cir. 2002); Wakefield v. Thompson, 177 F.3d 1160,
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1165 & n. 6 (9th Cir. 1999) (holding that “a prison official acts with deliberate indifference when
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he ignores the instructions of the prisoner’s treating physician or surgeon”).
For all of the foregoing reasons, the undersigned finds that the complaint states a claim for
inadequate medical care in violation of the Eighth Amendment.
Accordingly, IT IS HEREBY RECOMMENDED that the motion to dismiss (ECF No. 11)
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. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: October 1, 2015
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