(PC) Howes v. White et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/17/2022 GRANTING #2 Motion to Proceed IFP, ORDERING that Plaintiff is obligated to pay the statutory filing fee of $350.00, and that the Clerk of the Court shall randomly assign a US District Judge to this action. It is further RECOMMENDED that #1 Complaint be dismissed without leave to amend for failure to state a claim. Referred to District Judge Dale A. Drozd. Objections due within 21 days after being served with these findings and recommendations. (Huang, H)
Case 2:22-cv-02047-DAD-AC Document 4 Filed 11/17/22 Page 1 of 6
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DAVON MAURICE HOWES,
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Plaintiff,
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No. 2:22-cv-2047 AC P
v.
CLAIRE JACQULINE WHITE, et al.,
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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendants.
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Plaintiff, a county prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983
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and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
I.
Application to Proceed In Forma Pauperis
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.
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§ 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis will be granted.
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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.
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§§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in
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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct
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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and
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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments
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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.
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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
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Case 2:22-cv-02047-DAD-AC Document 4 Filed 11/17/22 Page 2 of 6
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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.
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§ 1915(b)(2).
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II.
Statutory Screening of Prisoner Complaints
The court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are
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“frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[]
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monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
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A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
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Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal
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theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,
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640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as
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stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a
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constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.
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Franklin, 745 F.2d at 1227-28 (citations omitted).
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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
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“Failure to state a claim under § 1915A incorporates the familiar standard applied in the context
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of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,
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680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure
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to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a
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cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the
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speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain
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something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally
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cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur
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Case 2:22-cv-02047-DAD-AC Document 4 Filed 11/17/22 Page 3 of 6
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R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).
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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
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Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
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content that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this
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standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.
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Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the
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pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,
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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).
III.
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Complaint
The complaint alleges that a Solano County Superior Court Judge Bowers; Claire White,
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plaintiff’s retained defense attorney; and District Attorney Elizabeth Ring violated plaintiff’s
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constitutional rights. ECF No. 1. Specifically, plaintiff alleges that Judge Bowers allowed the
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admission of perjured testimony, his defense counsel failed to effectively represent him, and the
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district attorney committed misconduct by asking leading questions and allowing a witness to
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provide perjured testimony. Id. at 3-5. Plaintiff seeks immediate release from custody and
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damages. Id. at 6.
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IV.
Failure to State a Claim
A.
Judges Are Immune From Suit
The Supreme Court has held that judges acting within the course and scope of their
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judicial duties are absolutely immune from liability for damages under § 1983. Pierson v. Ray,
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386 U.S. 547, 553-55 (1967). “A judge will not be deprived of immunity because the action he
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took was in error, was done maliciously, or was in excess of his authority; rather, he will be
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subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’” Stump v.
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Sparkman, 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351
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(1871)). A judge’s jurisdiction is quite broad and its scope is determined by the two-part test
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articulated in Stump:
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The relevant cases demonstrate that the factors determining whether
an act by a judge is a “judicial” one relate to [1] the nature of the act
itself, i.e., whether it is a function normally performed by a judge,
and [2] to the expectations of the parties, i.e., whether they dealt with
the judge in his judicial capacity.
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Id. at 362.
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Judge Bowers’ alleged admission of perjured testimony falls squarely within the scope of
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functions “normally performed by a judge” and was done while acting in the capacity of a judge.
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Judge Bowers is therefore absolutely immune from liability under § 1983 and the claims against
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him must be dismissed without leave to amend.
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B.
Defense Counsel Cannot Be Sued Under § 1983
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
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the Constitution and laws of the United States, and must show that the alleged deprivation was
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committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
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(emphasis added) (citations omitted). Privately retained attorneys do not act under color of state
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law for purposes of section 1983 actions. Briley v. California, 564 F.2d 849, 855 (9th Cir. 1977)
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(citations omitted). This means that plaintiff cannot bring a claim against defendant White under
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§ 1983. Furthermore, any potential claims for legal malpractice do not come within the
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jurisdiction of the federal courts. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). For
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these reasons, the claims against defendant White should be dismissed without leave to amend.
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C.
District Attorney Are Immune From Suit
Prosecutors are absolutely immune from liability when performing the traditional
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functions of an advocate and acts that are “intimately associated with the judicial phase of the
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criminal process.” Kalina v. Fletcher, 522 U.S. 118, 125 (1997) (quoting Imbler v. Pachtman,
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424 U.S. 409, 430 (1976)). Since plaintiff’s claims are based on defendant Ring’s conduct in
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prosecuting plaintiff in his criminal proceedings, these claims also fail as a matter of law.
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D.
Scope of Section 1983
State prisoners may not attack the validity of the fact of their confinement in a section
1983 action and “habeas corpus is the appropriate remedy” for such claims. Preiser v. Rodriguez,
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411 U.S. 475, 490 (1973); Nettles v. Grounds, 830 F.3d 922, 933 (9th Cir. 2016) (“habeas corpus
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is the exclusive remedy to attack the legality of the conviction or sentence”). Because plaintiff
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seeks to challenge his conviction and sentence, the complaint must be dismissed. The court
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further declines to offer plaintiff the option to convert his complaint to a habeas petition because
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it appears his claims have not been exhausted. See 28 U.S.C. § 2254(b)(1) (a petition for writ of
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habeas corpus “shall not be granted unless it appears that the applicant has exhausted the
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remedies available in the courts of the State; or there is an absence of available State corrective
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process” or circumstances render the process ineffective). A search of the California Supreme
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Court’s case information website shows no cases filed by plaintiff. Middleton v. Cupp, 768 F.2d
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1083, 1086 (9th Cir. 1985) (the exhaustion requirement is met by providing the highest state court
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with a full and fair opportunity to consider all claims before presenting them to the federal court).
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V.
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No Leave to Amend
Leave to amend should be granted if it appears possible that the defects in the complaint
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could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31
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(9th Cir. 2000) (en banc); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se
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litigant must be given leave to amend his or her complaint, and some notice of its deficiencies,
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unless it is absolutely clear that the deficiencies of the complaint could not be cured by
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amendment.” (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However, if, after
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careful consideration, it is clear that a complaint cannot be cured by amendment, the court may
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dismiss without leave to amend. Cato, 70 F.3d at 1005-06.
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The undersigned finds that, as set forth above, the complaint fails to state a claim upon
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which relief may be granted and that amendment would be futile. The complaint should therefore
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be dismissed without leave to amend.
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VI.
Plain Language Summary of this Order for a Pro Se Litigant
Your request to proceed in forma pauperis is granted and you are not required to pay the
entire filing fee immediately.
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It is being recommended that your complaint be dismissed without leave to amend
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because you cannot bring civil rights claims under § 1983 against defense counsel, prosecutors, or
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judges. You also cannot challenge your sentence or conviction in a § 1983 case. You are not
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being given the option to change your complaint into a habeas petition because it does not look
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like you have presented these claims to the California Supreme Court.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED.
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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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appropriate agency filed concurrently herewith.
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3. The Clerk of the Court shall randomly assign a United States District Judge to this
action.
IT IS FURTHER RECOMMENDED that the complaint be dismissed without leave to
amend for failure to state a claim.
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 twenty-one days
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after being served with these findings and recommendations, plaintiff may file written objections
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with the court. Such a document should be captioned “Objections to Magistrate Judges Findings
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and Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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DATED: November 17, 2022
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