Gil v. Sanchez et al
Filing
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ORDER granting 2 Motion for Leave to Proceed in forma pauperis. US Marshal shall effect service of complaint. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in th is case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR) (IFP Package prepared). Signed by Judge Cathy Ann Bencivengo on 5/15/2017. (All non-registered users served via U.S. Mail Service) (Certified Copy to USM) (jjg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 3:17-cv-0698-CAB-JMA
RUBEN GIL
CDCR #T-95819,
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ORDER:
Plaintiff,
1) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS PURSUANT TO 28 U.S.C.
§ 1915(a) (ECF No. 2)
v.
CAPTAIN SANCHEZ; LIEUTENANT
WILLIAMS,
Defendants.
AND
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2) DIRECTING U.S. MARSHAL TO
EFFECT SERVICE OF SUMMONS
AND COMPLAINT PURSUANT TO
28 U.S.C. § 1915(d)
AND Fed.R.Civ.P. 4(c)(3)
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Ruben Gil (“Plaintiff”), currently incarcerated at R.J. Donovan Correctional
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Facility located in San Diego, California, and proceeding pro se, has filed a civil rights
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complaint (“Compl.”) pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff did not prepay
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the civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to
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Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
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I.
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Plaintiff’s Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the
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United States, except an application for writ of habeas corpus, must pay a filing fee of
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$400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to
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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, if
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a prisoner, like Plaintiff, is granted leave to proceed IFP, he remains obligated to pay the
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entire fee in “increments,” see Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015),
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regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) &
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(2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act
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(“PLRA”), a prisoner seeking leave to proceed IFP must submit a “certified copy of the
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trust fund account statement (or institutional equivalent) for the prisoner for the six-
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month period immediately preceding the filing of the complaint.” 28 U.S.C.
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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
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trust account statement, the Court assesses an initial payment of 20% of (a) the average
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monthly deposits in the account for the past six months, or (b) the average monthly
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balance in the account for the past six months, whichever is greater, unless the prisoner
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has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution
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having custody of the prisoner then collects subsequent payments, assessed at 20% of the
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preceding month’s income, in any month in which the prisoner’s account exceeds $10,
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and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C.
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§ 1915(b)(2).
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In addition to the $350 statutory fee, all parties filing civil actions on or after May 1, 2013, must pay
an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees,
District Court Misc. Fee Schedule) (eff. May 1, 2013). However, the additional $50 administrative fee
is waived if the plaintiff is granted leave to proceed IFP. Id.
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In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust
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account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. Andrews,
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398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account statement, but it
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shows that he has a current available balance of 0.04. See 28 U.S.C. § 1915(b)(4)
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(providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action
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or appealing a civil action or criminal judgment for the reason that the prisoner has no
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assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at
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850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of
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a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds
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available to him when payment is ordered.”).
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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) and
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assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350
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balance of the filing fees mandated will be collected by the California Department of
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Corrections and Rehabilitation (“CDCR”) and forwarded to the Clerk of the Court
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pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
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II.
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Initial Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A
Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the
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PLRA also obligates the Court to review complaints filed by all persons proceeding IFP
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and by those, like Plaintiff, who are “incarcerated or detained in any facility [and]
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accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the
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terms or conditions of parole, probation, pretrial release, or diversionary program,” “as
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soon as practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under
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these statutes, the Court must sua sponte dismiss complaints, or any portions thereof,
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which are frivolous, malicious, fail to state a claim, or which seek damages from
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defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v.
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Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v.
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Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
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All complaints must contain “a short and plain statement of the claim showing that
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the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are
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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining
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whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
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requires the reviewing court to draw on its judicial experience and common sense.” Id.
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The “mere possibility of misconduct” falls short of meeting this plausibility standard.
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Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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“When there are well-pleaded factual allegations, a court should assume their
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veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
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Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
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(“[W]hen determining whether a complaint states a claim, a court must accept as true all
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allegations of material fact and must construe those facts in the light most favorable to
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the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that §
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1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).
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However, while the court “ha[s] an obligation where the petitioner is pro se,
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particularly in civil rights cases, to construe the pleadings liberally and to afford the
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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not
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“supply essential elements of claims that were not initially pled.” Ivey v. Board of
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Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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As currently pleaded, the Court finds Eighth Amendment allegations in Plaintiff’s
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Complaint which are sufficient to survive the sua sponte screening required by 28 U.S.C.
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§§ 1915(e)(2) and 1915A(b). Accordingly, the Court will direct the U.S. Marshal to
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effect service on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court
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shall issue and serve all process, and perform all duties in [IFP] cases.”); Fed.R.Civ.P.
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4(c)(3) (“[T]he court may order that service be made by a United States marshal or
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deputy marshal . . . if the plaintiff is authorized to proceed in forma pauperis under 28
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U.S.C. § 1915.”).
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III.
Conclusion and Order
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Good cause appearing, IT IS HEREBY ORDERED that:
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1.
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Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No.
2) is GRANTED.
2.
The Secretary of the CDCR, or his designee, shall collect from Plaintiff’s
prison trust account the $350 filing fee owed in this case by collecting monthly payments
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from the account in an amount equal to twenty percent (20%) of the preceding month’s
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income and forward payments to the Clerk of the Court each time the amount in the
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account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS
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SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED
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TO THIS ACTION.
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3.
The Clerk of the Court is directed to serve a copy of this Order on Scott
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Kernan, Secretary, California Department of Corrections and Rehabilitation, P.O. Box
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942883, Sacramento, California, 94283-0001.
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IT IS FURTHER ORDERED that:
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4.
The Clerk is DIRECTED to issue a summons as to Plaintiff’s Complaint
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(ECF No. 1) upon Defendants and forward it to Plaintiff along with blank U.S. Marshal
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Form 285s for each named Defendant. In addition, the Clerk is directed provide Plaintiff
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with a certified copy of this Order and a certified copy of his Complaint (ECF No. 1) and
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the summons so that he may serve each named Defendant. Upon receipt of this “IFP
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Package,” Plaintiff is directed to complete the Form 285s as completely and accurately as
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possible, and to return them to the United States Marshal according to the instructions
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provided by the Clerk in the letter accompanying his IFP package.
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5.
Upon receipt, the U.S. Marshal is ORDERED to serve a copy of the
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Complaint and summons upon the named Defendants as directed by Plaintiff on the USM
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Form 285s. All costs of service will be advanced by the United States. See 28 U.S.C.
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§ 1915(d); Fed.R.Civ.P. 4(c)(3).
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6.
Defendants are thereafter ORDERED to reply to Plaintiff’s Complaint
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within the time provided by the applicable provisions of Federal Rule of Civil Procedure
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12(a). See 42 U.S.C. § 1997e(g)(2) (while a defendant may occasionally be permitted to
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“waive the right to reply to any action brought by a prisoner confined in any jail, prison,
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or other correctional facility under section 1983,” once the Court has conducted its sua
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sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made
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a preliminary determination based on the face on the pleading alone that Plaintiff has a
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“reasonable opportunity to prevail on the merits,” the defendant is required to respond).
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7.
Plaintiff must serve upon the Defendants or, if appearance has been entered
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by counsel, upon Defendants’ counsel, a copy of every further pleading or other
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document submitted for consideration by the Court. Plaintiff must include with the
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original paper to be filed with the Clerk of the Court, a certificate stating the manner in
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which a true and correct copy of the document was served on the Defendants, or counsel
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for Defendants, and the date of that service. Any paper received by the Court which has
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not been properly filed with the Clerk, or which fails to include a Certificate of Service,
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may be disregarded.
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Dated: May 15, 2017
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