Kemp v. Skolnik et al

Filing 57

ORDER that all claims in 53 Amended Complaint are DISMISSED except: (a) the individual capacity due process claims in Count II: and (b) an individual capacity First Amendment claim in Count IX. Defendants Coleman, Lightsy, Eldon K. McDaniel, Palz ueski, Harry Peltzer, Debra Brooks and R. Chambliss terminated. IT IS FURTHER ORDERED that the Attorney General shall advise the Court within 21 days whether her office can accept service. Defendants shall file an answer 30 days from the date of no tice of acceptance. IT IS FURTHER ORDERED that the Clerk of Court shall regenerate electronic notices of prior filings. IT IS FURTHER ORDERED that the Clerk shall send Plaintiff a copy of the Amended Complaint with this order. Signed by Judge Philip M. Pro on 2/3/12. (Copies have been distributed pursuant to the NEF - cc: plaintiff - EDS)

1
2
3
4

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

5
6
7
KEITH KEMP,
8
Plaintiff,
9

2:09-cv-02002-PMP-VCF
(Base File)

vs.
10
11
12

ORDER
HOWARD SKOLNIK, et al.
Defendants.

13
14
15

These consolidated prisoner civil rights actions by Plaintiff Keith Kemp come before
the Court for initial review of the most recent Amended Complaint (#53).

16

The current pleading follows upon a screening order in each of the consolidated files

17

along with a third screening order entered after the consolidation. The prior screening orders

18

sets forth Plaintiff’s allegations, the governing law requiring specific actual factual allegations,

19

and the deficiencies in the prior pleadings. See ## 16 & 49; No. 3:10-cv-00188-HDM-VPC,

20

#11. The current 61-page Amended Complaint carries forward deficiencies from prior

21

pleadings identified in prior screening orders. Where a prior order addresses a deficiency that

22

has been carried forward in the Amended Complaint, the Court notes the prior disposition with

23

a reference to the pertinent portion of the prior screening order. The most recent screening

24

order clearly informed Plaintiff that “[t]he Court will give Plaintiff an opportunity to file a single

25

amended complaint presenting all of his claims, correcting the . . . deficiencies [identified in

26

the third screening order], and correcting the deficiencies in the Court’s prior screening

27

orders.” #49, at 5, lines 23-25; see also id., at lines 1-12. Plaintiff has been provided ample

28

opportunity to amend.

1

Count I

2

In Count I, Plaintiff alleges that he was denied rights to due process and equal

3

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment

4

protection against cruel and unusual punishment, when he was assigned to a segregation unit

5

in High Desert State Prison (“High Desert”) for 26 months. Plaintiff’s allegations accept as

6

a given that he needed to be segregated from the general prison population for his own

7

safety.

8

“administrative segregation” rather than in what he identifies as “protective custody.” Other

9

than conclusory references to “barbaric living conditions” and “abominable housing

10

conditions,” Plaintiff does not present specific, nonconclusory actual factual allegations

11

tending to establish that he was subjected to an atypical and significant hardship in

12

comparison to the ordinary incidents of prison life by being placed in one segregation unit

13

(punitive segregation and/or administrative segregation) as opposed to another (protective

14

segregation). Under the law detailed previously, Count I therefore fails to state a claim upon

15

which relief may be granted under the Due Process Clause. See #16, at 4 & 6. Under the

16

authorities cited previously, any arguendo alleged violation of state administrative regulations

17

does not give rise to a deprivation of a protected liberty interest. See Sandin v. Conner, 515

18

U.S. 472, 477-84, 115 S.Ct. 2293, 2297-2300, 132 L.Ed.2d 418 (1995).

Plaintiff alleges that he was held in “the hole,” “punitive segregation,” and/or

19

The allegations presented otherwise fail to present a basis for relief under the Due

20

Process Clause, and Count I further does not state any viable claim under either the Equal

21

Protection Clause or the Eighth Amendment. As noted previously, verbal harassment,

22

including even threats of bodily injury, does not give rise to a viable Eighth Amendment claim.

23

See #16, at 7.

24
25
26

Count I therefore will be dismissed for failure to state a claim upon which relief may be
granted.
Count II

27

In Count II, Plaintiff alleges that he was denied rights to due process and equal

28

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment
-2-

1

protection against cruel and unusual punishment. He alleges that he was improperly labeled

2

as a member of a Security Threat Group in August 25, 2008, with no supporting evidence and

3

that this designation was not removed until he finally was given a previously-requested

4

hearing on February 25, 2010. He alleges that in the interim the classification contributed to

5

a denial of parole, resulted in his being transferred to a maximum security prison, and

6

affected his housing classification and privileges.

7

Count II states a claim for relief under the Due Process Clause, albeit not based upon

8

any alleged violation of state administrative regulations, see Sandin, supra. Count II does not

9

state a claim for relief under the Equal Protection Clause or the Eighth Amendment.

10
11

All claims in Count II except the due process claim therefore will be dismissed.
Count III

12

In Count III, Plaintiff alleges that he was denied rights to due process and equal

13

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment

14

protection against cruel and unusual punishment, when “many, many times” his requests to

15

make legal calls would be denied while he was previously incarcerated at High Desert and

16

Ely State Prison (“Ely”) between August 25, 2008, and January 6, 2011. The allegations do

17

not state a claim for relief under the Due Process Clause, the Equal Protection Clause, or the

18

Eighth Amendment. Nor do the conclusory allegations tend to demonstrate actual injury.

19
20
21

Count III therefore will be dismissed for failure to state a claim upon which relief may
be granted.
Count IV

22

In Count IV, Plaintiff alleges that he was denied rights to due process and equal

23

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment

24

protection against cruel and unusual punishment, when $207.53 was deducted from his

25

inmate account in error for an alleged self-inflicted injury that allegedly never occurred, which

26

he alleges was an illegal charge against his account.

27

Plaintiff thus alleges that he was subjected to an unauthorized and erroneous or

28

negligent deprivation of his property. Count IV thus fails to state a claim under the Fourteenth
-3-

1

Amendment for a denial of due process arising from the loss or deprivation of the property,

2

due to the availability of an adequate state post-deprivation remedy for the loss. See Hudson

3

v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451

4

U.S. 527, 543, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels

5

v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); N.R.S. 73.010; N.R.S.

6

41.031; N.R.S. 209.243. Count IV otherwise fails to state a claim for relief under either the

7

Equal Protection Clause or the Eighth Amendment.

8
9
10

Count IV therefore will be dismissed for failure to state a claim upon which relief may
be granted.
Count V

11

In Count V, Plaintiff alleges that he was subjected to cruel and unusual punishment in

12

violation of the Eighth Amendment when he intermittently was not allowed as much exercise

13

as he maintains that he was supposed to be allowed. He alleges that the denials of exercise

14

occurred at High Desert between September 23, 2008, and February 7, 2009, and between

15

August 18, 2009, and October 21, 2009, for a total of approximately 203 days. He maintains

16

that he was supposed to be allowed five hours of exercise a week. During these periods, he

17

sometimes would be allowed only one opportunity to go to the yard for exercise per week and

18

never was allowed more than three opportunities per week to go to the yard. On 58 of the

19

days that he was supposed to have an opportunity to exercise over the course of the period,

20

he was not allowed an opportunity.

21

Count V fails to state a claim upon which relief may be granted. Intermittent denial of

22

exercise with no associated medical effects does not rise to the level of a constitutional

23

violation. E.g., May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997). The mere alleged violation

24

of state administrative regulations does not give rise to a constitutional deprivation. See

25

Sandin, supra.

26

Count V therefore will be dismissed for failure to state a claim upon which relief may

27

be granted.

28

////
-4-

1

Count VI

2

In Count VI, Plaintiff alleges that he was subjected to cruel and unusual punishment

3

in violation of the Eighth Amendment. He alleges that while previously incarcerated at High

4

Desert and Ely from September 23, 2008, through January 6, 2011, he “noticed” that

5

correctional officers were stacking food trays one on top of the other, which he believes is an

6

unsanitary practice that should be stopped.

7

Count VI fails to state a claim upon which relief may be granted. Petitioner does not

8

allege any compensable injury from what he believes to be an unsanitary practice, and he no

9

longer is incarcerated at either High Desert or Ely. He has no standing to seek equitable relief

10

regarding the alleged unsanitary practice at the other prisons, and his conclusory assertion

11

that the alleged violation is “capable of repetition, yet evading review” does not establish his

12

standing to pursue the matter.

13
14
15

Count VI therefore will be dismissed for failure to state a claim upon which relief may
be granted and for lack of standing.
Count VII

16

In Count VII, Plaintiff alleges that he was denied rights to due process and equal

17

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment

18

protection against cruel and unusual punishment, when a correctional officer wrote him up in

19

retaliation for filing a grievance against her. He alleges that as a result he has lost, inter alia,

20

six days a month credit against his sentence expiration date and an additional ten days lost

21

statutory sentencing credits.

22

Plaintiff’s claims necessarily imply the invalidity of the deprivation of his sentence

23

credits, thereby challenging the duration of his confinement. Plaintiff’s claims accordingly are

24

not cognizable under Section 1983. See Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584,

25

137 L.Ed.2d 906 (1997).

26

Count VII therefore will be dismissed as noncognizable under 28 U.S.C. § 1983.

27

////

28

////
-5-

1

Count VIII

2

In Count VIII, Plaintiff alleges that he was denied rights to due process and equal

3

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment

4

protection against cruel and unusual punishment, when a CD player-radio, headphones, and

5

power adapter that belonged to him were taken by correctional officers from another inmate’s

6

cell, allegedly in violation of state administrative regulations. Count VIII fails to state a claim

7

under the Fourteenth Amendment for a denial of due process arising from the loss or

8

deprivation of the property, due to the availability of an adequate state post-deprivation

9

remedy for the loss. See Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d

10

393 (1984); Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981),

11

overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d

12

662 (1986); N.R.S. 73.010; N.R.S. 41.031; N.R.S. 209.243. Any alleged violation of state

13

administrative regulations, again, does not give rise to the deprivation of a protected liberty

14

interest. Sandin, supra. The deprivation of the CD player-radio, etc. otherwise does not give

15

rise to a viable claim under the Equal Protection Clause or the Eighth Amendment.

16
17
18

Count VIII therefore will be dismissed for failure to state a claim upon which relief may
be granted.
Count IX

19

In Count IX, Plaintiff alleges that he was denied rights to due process and equal

20

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment

21

protection against cruel and unusual punishment, when he was transferred to maximum

22

security custody at Ely, allegedly in retaliation for filing the present lawsuit.

23

Count IX fails to state a claim under the Due Process Clause, the Equal Protection

24

Clause and/or the Eighth Amendment. As noted previously, any alleged violation of state

25

administrative regulations does not give rise to the deprivation of a protected liberty interest.

26

Sandin, supra. Although not specifically pled as a First Amendment claim, the Court will

27

direct service and a response to the claim to the extent that Plaintiff alleges that he was

28

transferred in retaliation for litigation activity.
-6-

1
2
3

All claims in Count IX therefore will be dismissed except to the extent that Plaintiff
alleges that he was transferred in retaliation for litigation activity.
Count X

4

In Count X, Plaintiff alleges that he was denied rights to due process and equal

5

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment

6

protection against cruel and unusual punishment, when he was not allowed to purchase legal

7

books while at Ely. Count X fails to state a claim under the Due Process Clause, the Equal

8

Protection Clause and/or the Eighth Amendment. Any alleged violation of state administrative

9

regulations does not give rise to the deprivation of a protected liberty interest. Sandin, supra.

10

To the extent that Plaintiff’s claims might arise under the First Amendment, the conclusory

11

allegations presented fail to state the requisite actual injury to pursue such a claim. See,e.g.,

12

#16, at 7; No. 3:10-cv-00188, #11, at 3. Nor do the conclusory allegations state a claim under

13

the Religious Land Use and Institutionalized Persons Act (RLUIPA). Moreover, Plaintiff’s

14

conclusory assertion that the alleged violation is “capable of repetition, yet evading review”

15

does not establish his standing to pursue the matter now that he is held at Lovelock.

16
17
18

Count X therefore will be dismissed for failure to state a claim upon which relief may
be granted and for lack of standing.
Count XI

19

In Count XI, Plaintiff alleges that he was denied rights to due process and equal

20

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment

21

protection against cruel and unusual punishment, when a caseworker allegedly included

22

inaccurate information in his preliminary parole report. According to Plaintiff’s allegations, he

23

therefore appeared “defensive and egotistical” when he tried to correct the errors at his parole

24

hearing, such that he appeared “to know more than the parole board” and appeared

25

“haughty.” He alleges that he thus was not “receive[d] well by the board,” contributing to his

26

being denied parole on February 5, 2010, for three years.

27

Plaintiff’s claims necessarily imply the alleged invalidity of the denial of his parole,

28

thereby challenging the duration of his confinement. Plaintiff’s claims accordingly are not
-7-

1

cognizable under § 1983. See,e.g., Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S.Ct.

2

2364, 129 L.Ed.2d 383 (1994); Butterfield v. Bail, 120 F.3d 1023, 1024–25 (9th

3

Cir.1997)(“Few things implicate the validity of continued confinement more directly than the

4

allegedly improper denial of parole.”).

5
6

Count XI therefore will be dismissed as noncognizable under § 1983.
Count XII

7

In Count XII, Plaintiff alleges that he was subjected to cruel and unusual punishment

8

in violation of the Eighth Amendment. He alleges that while previously incarcerated in

9

punitive segregation units at High Desert and Ely from September 23, 2008, through January

10

6, 2011, he was not allowed to take water with him to the outdoor exercise yard and that the

11

yard facilities were poorly laid out and uneven, without restroom facilities or running water.

12

Count XII fails to state a claim upon which relief may be granted. Plaintiff does not

13

allege any compensable injury from the alleged circumstances, and he no longer is at either

14

High Desert or Ely. Plaintiff has no standing to seek equitable relief regarding the alleged

15

practices at the other prisons, and his conclusory assertion that the alleged violation is

16

“capable of repetition, yet evading review” does not establish his standing to pursue the

17

matter.

18
19
20

Count XII therefore will be dismissed for failure to state a claim upon which relief may
be granted and for lack of standing.
Count XIII

21

In Count XIII, Plaintiff alleges that he was denied rights to due process and equal

22

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment

23

protection against cruel and unusual punishment, when a caseworker deliberately took

24

grievance and legal papers from him and left his remaining legal papers in such disarray that

25

it took him a week to reorganize them. He additionally alleges that the caseworker and a

26

correctional officer later threatened him and that the correctional officer used “excessive

27

force” against him when he called for help.

28

////
-8-

1

Count XIII fails to state a claim under the Fourteenth Amendment for a denial of due

2

process arising from the loss or deprivation of property, due to the availability of an adequate

3

state post-deprivation remedy for the loss. See Hudson v. Palmer, 468 U.S. 517, 533, 104

4

S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 68

5

L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106

6

S.Ct. 662, 88 L.Ed.2d 662 (1986); N.R.S. 73.010; N.R.S. 41.031; N.R.S. 209.243. The

7

alleged disorganization of Plaintiff’s papers is a de minimis matter that does not rise to

8

constitutional significance. See,e.g., Blair v. Bethel School District, 608 F.3d 540, 544 (9th Cir.

9

2010). As noted in a prior screening order, verbal harassment, including even threats of

10

bodily injury, do not give rise to a viable Eighth Amendment claim. See #16, at 7. Further,

11

as also noted in prior screening orders, plaintiff must present specific allegations of actual

12

fact, not merely recite conclusory and formulaic recitations of the elements of a cause of

13

action in order to state a claim. #16, at 2; #49, at 3-5. Plaintiff’s conclusory allegation that he

14

was subjected to “excessive force” fails to state a claim.

15
16
17

Count XIII therefore will be dismissed for failure to state a claim upon which relief may
be granted.
Count XIV

18

In Count XIV, Plaintiff alleges that he was subjected to cruel and unusual punishment

19

in violation of the Eighth Amendment. He alleges that he subscribes to over 32 periodicals,

20

including magazines and daily newspapers, and that he further has bought a number of

21

books. According to the Amended Complaint, from October 21, 2009, forward, the mailroom

22

at Ely failed to deliver some issues of the periodicals to which Plaintiff subscribed and failed

23

to deliver some of the books that he ordered. Plaintiff alleges that 24 issues -- from the over

24

32 either daily or weekly periodicals that he subscribed to -- were not delivered to him from

25

September 2010 through April 2011 while he was incarcerated at Ely, including some of the

26

daily editions of USA Today. Plaintiff further alleges that the Ely mailroom has not forwarded

27

an additional 13 issues following his transfer to Lovelock before his address change notices

28

took effect. Plaintiff additionally alleges that 6 books that he ordered were not delivered.
-9-

1

The foregoing allegations, plainly, do not state a claim of cruel and unusual punishment

2

in violation of the Eighth Amendment. Nor does the alleged loss or destruction of newspaper,

3

magazines, and books give rise to any other constitutional violation. Hudson, supra; Parratt,

4

supra. If Plaintiff wishes to recoup the value of the alleged lost materials, he will have to file

5

a claim in small claims court in state court. Minutiae such as Plaintiff not consistently getting

6

his USA Today subscription daily in his cell is not a matter addressed by the Constitution of

7

the United States.

8
9
10

Count XIV therefore will be dismissed for failure to state a claim upon which relief may
be granted.
Count XV

11

In Count XV, Plaintiff alleges that he was denied rights to due process and equal

12

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment

13

protection against cruel and unusual punishment. He alleges that six numbered disciplinary

14

hearings “need to be reviewed by an impartial court representative, because the department

15

threw out ‘AR 707' and did what they wanted to.” Plaintiff then makes conclusory generic

16

allegations as to the alleged acts and omissions by correctional officers in conducting

17

disciplinary hearings generally, such as, for example, that “[u]sually an inmate is considered

18

‘guilty’ before he ever says anything.”

19

Count XV fails to state a due process claim under the Fourteenth Amendment.

20

Nothing in the conclusory allegations presented tends to establish that Plaintiff was subjected

21

to the deprivation of a protected liberty interest or other protected interest as a result of any

22

of the six disciplinary proceedings. Plaintiff must present specific factual allegations tending

23

to establish such a deprivation, as a fundamental prerequisite for any such due process claim.

24

See #16, at 6. As noted previously, an alleged violation of state regulations does not give rise

25

to the deprivation of a protected liberty interest. Sandin, supra. Plaintiff, again, was informed

26

repeatedly in prior screening orders that he must present specific allegations of actual fact,

27

not conclusory recitals of elements of a cause of action. Count XV otherwise plainly fails to

28

allege a viable claim under either the Equal Protection Clause or the Eighth Amendment.
-10-

1
2
3

Count XV therefore will be dismissed for failure to state a claim upon which relief may
be granted.
Count XVI

4

In Count XVI, Plaintiff alleges that he was denied rights to due process and equal

5

protection in violation of the Fourteenth Amendment, “inclusive of” Eighth Amendment

6

protection against cruel and unusual punishment. Very similar to Count XV, Plaintiff makes

7

conclusory, generic, and blanket allegations regarding the conduct of the prison grievance

8

system, alleging, inter alia, that correctional officials “only go through the motions” and that

9

staff are never found to have done anything wrong. Petitioner alleges that prison officials fail

10

to follow state administrative regulations in a number of respects.

11

Count XVI fails to state a due process claim under the Fourteenth Amendment. Once

12

again, an alleged violation of state administrative regulations does not give rise to the

13

deprivation of a protected liberty interest. Sandin, supra. It is well established law that

14

prisoners do not have a protected liberty interest in a particular grievance procedure.

15

See,e.g., Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Nor do the facts alleged

16

present any claim under either the Equal Protection Clause or the Eighth Amendment.

17
18

Count XVI therefore will be dismissed for failure to state a claim.
Remaining Issues

19

As noted previously in screening herein, Plaintiff may not pursue claims for monetary

20

damages against the defendant correctional officers in their official capacities. E.g., #16, at

21

5-6. The allegations of the limited claims that remain in Counts II and IX do not support any

22

claim for equitable relief. Moreover, the intrusive and wide-ranging injunctive relief sought in

23

the prayer clearly goes beyond that permitted under the governing law. See #53, at electronic

24

docketing pages 60-61. All official capacity claims and all claims for equitable relief therefore

25

will be dismissed.

26

Given the clear statement in prior screening orders as to the need to plead specific

27

actual factual allegations and the ample opportunity given to amend, the Court finds that

28

further opportunity for amendment would be futile.
-11-

1

IT THEREFORE IS ORDERED that all claims in the Amended Complaint (#53) are

2

DISMISSED except: (a) the individual capacity due process claims in Count II; and (b) an

3

individual capacity First Amendment claim in Count IX for allegedly transferring Plaintiff in

4

retaliation for filing this action. All other claims presented, including but not limited to all

5

official capacity claims and all claims for equitable relief, are dismissed for the reasons

6

assigned in this order.

7

IT FURTHER IS ORDERED that, as a consequence of the foregoing dismissal, the

8

only Defendants that remain before the Court, on the claims that remain that are identified in

9

the preceding paragraph, as applicable, are Defendants Skolnik, Nevens, Baca, Henson,

10

Kuloloia, Wuest, Cox and Morrow. No claims remain against any other Defendant named in

11

the Amended Complaint (#53).

12

IT FURTHER IS ORDERED that, the Attorney General already being represented by

13

counsel of record, the Attorney General shall advise the Court within twenty-one (21) days

14

from entry of this order whether her office can accept service of process for the remaining

15

named Defendants. As to any of the named Defendants for which the Attorney General does

16

not accept service, the Attorney General shall file, under seal, the last known address(es) of

17

those Defendant(s). As to the Defendants for whom the Attorney General accepts or has

18

accepted service, such Defendants shall file and serve an answer or other response to the

19

complaint, as amended, within thirty (30) days of the date of the notice of acceptance of

20

service filed in response to this order.

21

IT FURTHER IS ORDERED that the Clerk of the Court shall furnish counsel, by

22

regeneration of electronic notices or such other method consistent with the Clerk’s practice,

23

such copies of prior filings as are requested by counsel in order to respond herein.

24

IT FURTHER IS ORDERED that, if service is not accepted for any of the Defendants,

25

Plaintiff shall file a motion identifying the unserved Defendants, requesting issuance of a

26

summons, and specifying a full name and address for said Defendant. Plaintiff is informed

27

that, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, service must be

28

accomplished within one hundred twenty (120) days from the date of entry of this order.
-12-

1

IT IS FURTHER ORDERED that henceforth, Plaintiff shall serve upon counsel for

2

Defendants a copy of every pleading, motion or other paper submitted for consideration by

3

the Court. Plaintiff shall include with the original paper submitted for filing a certificate stating

4

the date that a true and correct copy of the document was mailed to the counsel for

5

Defendants. Plaintiff shall direct service to the individual attorney who has entered an

6

appearance for Defendants. The Court may disregard any paper received by a district judge

7

or magistrate judge which has not been filed with the Clerk, and any paper received which

8

fails to include a certificate of service.

9
10

The Clerk shall send Plaintiff a copy of the Amended Complaint (#53) with this order.
DATED: February 3, 2012.

11
12
13
14

_________________________________
PHILIP M. PRO
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28
-13-