Anderson v. Veeru-Collings
Filing
23
MEMORANDUM DECISION AND ORDER granting 9 Motion to Dismiss for Lack of Jurisdiction ; denying 10 Motion to Amend/Correct; denying 11 Motion for TRO; denying 11 Motion for Preliminary Injunction; denying 20 Motion for Reconsideration. Accordingly, Mr. Anderson's case is Dismissed without Prejudice to pursue in state court. Signed by Judge Robert J. Shelby on 11/13/2014. (las)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MICHAEL T. ANDERSON,
Plaintiff,
MEMORANDUM
DECISION & ORDER
v.
PADMA VEERU-COLLINGS, in her
official capacity,
Case No. 2:14-CV-00481
Judge Robert J. Shelby
Defendant.
Michael T. Anderson brings an official-capacity suit against Padma Veeru-Collings, a
prosecutor employed by Salt Lake City, to enjoin several state criminal prosecutions. 1 Mr.
Anderson claims that Utah’s municipal justice court system violated his constitutional rights by
depriving him of the right to an unbiased magistrate in the first instance. The City moves to
dismiss the Complaint, arguing that Younger mandates that this court abstain from hearing Mr.
Anderson’s claims. In response, Mr. Anderson seeks leave to amend his complaint and moves
for a temporary restraining order against the Salt Lake County District Attorney’s Office.
After careful consideration of these issues, the court concludes that the Younger doctrine
applies to this case and bars the claims asserted in both Mr. Anderson’s Complaint and proposed
Amended Complaint. Accordingly, the Motion to Dismiss is GRANTED, the Motion for Leave
to Amend is DENIED, and the Motion for Temporary Restraining Order and Preliminary
Injunction is DENIED. 2
1
An official-capacity suit should be treated as a suit against the municipal entity. Kentucky v. Graham, 105 S. Ct.
3099, 3105 (1985). Accordingly, the court will use “the City” to refer to Ms. Veeru-Collings.
2
Dkt. Nos. 9, 10, 11.
The court also OVERRULES Mr. Anderson’s Objection relating to rulings given on a
status conference and DENIES his Motion for Reconsideration of Such Order. 3
BACKGROUND
This case arises out of a series of state misdemeanor and felony charges against the
plaintiff, Mr. Anderson. Over the past year, the Salt Lake City Prosecutor’s Office pursued five
misdemeanor cases against Mr. Anderson. 4 The Salt Lake City Justice Court found Mr.
Anderson guilty in each of these cases, resulting in convictions for criminal trespass, failure to
pay a fee, and interference with a law enforcement officer. Mr. Anderson appealed his
convictions to the Utah district court, where he was entitled under Utah law to a trial de novo.
During the pendency of his appeal, Mr. Anderson filed this action seeking to enjoin the
City from proceeding with the misdemeanor cases or using the Salt Lake Justice Court in the
future. 5 Mr. Anderson also sought a declaration that Utah’s municipal justice court system,
which allows the use of justice courts for misdemeanor cases, violates the Due Process Clause of
the Fourteenth Amendment of the United States Constitution.6 Mr. Anderson filed a Motion for
a Temporary Restraining Order and Preliminary Injunction with his Complaint. 7
The court held a status conference to discuss Mr. Anderson’s motion on July 30, 2014. At
this hearing, the City represented that it would be willing to stay the misdemeanor cases in state
3
Dkt. Nos. 19, 20.
4
See Dkt. No. 3, at 4 (listing cases).
5
Dkt. No. 3, at 28-29. In Utah, municipalities may create justice courts which have jurisdiction over class B and
class C misdemeanors. Utah Code Ann. § 78A-7-106. A defendant who appeals from the justice court is entitled to
a trial de novo in district court. Id. § 78A-7-118. Utah’s justice courts lack jurisdiction over class A misdemeanors
and felonies. See id. § 78A-7-106.
6
Id. at 31.
7
Dkt. No. 4.
2
court until the instant case was resolved. 8 Based upon this representation, Mr. Anderson
withdrew his Motion for a Temporary Restraining Order and Preliminary Injunction. Following
the status conference, the City filed a Motion to Dismiss, arguing that the Younger abstention
doctrine barred Mr. Anderson’s claims. 9 Mr. Anderson responded by filing a Motion for Leave
to Amend His Complaint for Declaratory and Injunctive Relief and a second Motion for
Temporary Restraining Order and Preliminary Injunction. 10 In his papers, Mr. Anderson sought
to name Simarjit S. Gill, the Salt Lake County District Attorney, as an official-capacity
defendant. 11
In his second Motion for Temporary Restraining Order and Preliminary Injunction, Mr.
Anderson moved to enjoin the County from proceeding with a pending state court felony case.
Approximately four months before the City filed its Motion to Dismiss, but a few days after Mr.
Anderson served the Complaint, the Salt Lake City Police Department arrested Mr. Anderson for
aggravated assault, interference with an arresting office, public intoxication, and jaywalking. 12
Two months after this arrest, the County charged Mr. Anderson in the Third District Court for the
State of Utah with a second-degree felony for purportedly assaulting a police officer. 13 The
County attached a probable cause statement to the Information describing jaywalking, a weapon,
8
Dkt. No. 8.
9
Dkt. No. 9.
10
See Dkt. Nos. 9-12.
11
Because the proposed Amended Complaint names Mr. Gill in his official capacity, the court will refer to Mr. Gill
as “the County.”
12
Dkt. No. 11-1, at 3.
13
Dkt. No. 16-1, at 2-3; Dkt. No. 16-2, at 2-3.
3
and an altercation between Mr. Anderson and two police officers. 14 Based on the probable cause
statement, the Third District Court issued a bench warrant for Mr. Anderson’s arrest. 15
In his papers, Mr. Anderson provides a different description of the events that gave rise to
the felony case. 16 Although he admits to carrying a three-and-a-half inch blade and encountering
police officers on July 5, 2014, Mr. Anderson avers that he illegally crossed the street to avoid a
ranting stranger. Although the knife was originally clinched in his fist, Mr. Anderson states that
he immediately threw the knife to the ground when he discovered that he was being followed by
police officers. Mr. Anderson states that he was not intoxicated at the time of his arrest.
After receiving Mr. Anderson’s motions, this court held a second status conference to set
a briefing schedule. To preserve judicial resources and promote efficiency, the court invited the
County to file a consolidate response to Mr. Anderson’s motions. Liberally construing Mr.
Anderson’s papers to include arguments directed at the City’s Motion to Dismiss, the court also
invited the City to file a reply memorandum with its opposition to Mr. Anderson’s pending
motions. Shortly after the hearing, Mr. Anderson filed an objection to the scheduling order. 17
ANALYSIS
I.
OBJECTION AND MOTION FOR RECONSIDERATION
As a threshold matter, Mr. Anderson has filed a document styled as an “Objection to the
Court’s Order Dated October 3, 2014 ‘Status Conference’ Hearing and His Motion for
14
Dkt. No. 16-2, at 4-5.
15
Dkt. No. 16-1, at 3-4.
16
Dkt. No. 11-1, at 3-4; Dkt. No. 10, at 34-35.
17
Dkt. Nos. 19, 20.
4
Reconsideration of Such Order.” 18 Mr. Anderson believes that this court impermissibly ordered
both parties to submit briefing even though the burden had shifted to the City and County. 19
The court disagrees. During the status conference, the court invited the City and County
to submit briefing on Mr. Anderson’s pending motions and then invited Mr. Anderson to file a
reply, if he elected to do so. This briefing schedule permitted the movants and opposing parties
an adequate opportunity to address the issues as contemplated by the Federal Rules of Civil
Procedure and the District of Utah Local Rules. Mr. Anderson has not shown that inviting
briefing constituted the type of error that would justify reconsideration under Rule 60(b), nor has
he provided the court with an adequate legal basis for sustaining his Objection. Accordingly, Mr.
Anderson’s Objection is overruled and his Motion to Reconsider is denied.
II.
MOTION TO DISMISS: YOUNGER ABSTENTION
The resolution of this case hinges on the reach of the Younger abstention doctrine, which
prevents federal courts from entertaining suits for equitable relief when doing so would interfere
with ongoing state proceedings. 20 Under Younger, a federal court must abstain when “(1) there is
an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an
adequate forum to hear the claims raised in the federal complaint, and (3) the state proceeding
involves important state interests, matters which traditionally look to state law for their
resolution or implicate separately articulated state policies.” 21
18
Id.
19
Dkt. No. 20, at 3.
20
Younger v. Harris, 401 U.S. 37 (1971).
21
Weitzel v. Div. of Occupational & Prof’l Licensing of Dep’t of Commerce of State of Utah, 240 F.3d 871, 875 (10th
Cir. 2001) (quoting Amanatullah v. State Bd. of Medical Examiners, 187 F.3d 1160, 1163 (10th Cir.1999)).
5
A.
Application
After careful consideration of the record and the parties’ briefing, the court concludes that
all three elements required for Younger abstention have been satisfied.
First, this case directly implicates ongoing state criminal proceedings. In his papers, Mr.
Anderson references no less than six pending state criminal proceedings. 22 And in point of fact,
the entire purpose of this suit is to enjoin state criminal proceedings. 23 Accordingly, the City has
satisfied the first element of the Younger abstention doctrine.
Second, the state court provides an adequate forum to hear Mr. Anderson’s claims. Utah
courts possess concurrent jurisdiction over claims arising under 42 U.S.C. § 1983. 24 And here,
Mr. Anderson has not demonstrated that the state courts are an inadequate forum to raise federal
constitutional claims. 25 To the contrary, the Utah Supreme Court has recognized that a criminal
defendant may challenge the constitutional validity of the justice court system during a trial de
novo and on appeal. 26 In this respect, Mr. Anderson may challenge the constitutionality of
Utah’s justice courts in a state forum. 27
Furthermore, to the extent that Mr. Anderson seeks to enjoin a criminal proceeding that
began in the Third District Court, Mr. Anderson fails to articulate a separate cause of action in
either the Complaint or the proposed Amended Complaint, both of which are predicated on the
22
See Dkt. Nos. 3, 11.
23
Dkt. Nos. 3, 10.
24
See, e.g., Peak Alarm Co. v. Salt Lake City Corp., 243 P.3d 1221, 1249 (Utah 2010).
25
See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (“[W]hen a litigant has not attempted to present his federal
claims in related state-court proceedings, a federal court should assume that state procedures will afford an adequate
remedy, in the absence of unambiguous authority to the contrary.”).
26
W. Jordan City v. Goodman, 135 P.3d 874, 878-80 (Utah 2006); cf. J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1292
(10th Cir. 1999) (framing inquiry in terms of whether a claim “could have been raised”).
27
Goodman, 135 P.3d at 878-80.
6
theory that the justice court system—not the state district courts—deprived Mr. Anderson of his
constitutional rights. 28 This suggests that the state court is a more appropriate and adequate
forum than this one to challenge the legality of Mr. Anderson’s felony charges. 29
Mr. Anderson, however, suggests that the Utah Supreme Court’s decision in West Jordan
City v. Goodman demonstrates that his constitutional claims would receive poor treatment in the
state system. The court disagrees. Goodman involved a state constitutional challenge, rather
than a federal constitutional challenge. 30 More importantly, the Utah Supreme Court’s holding
was based on the fact that the defendant not only failed to develop a factual record below but
also failed to adequately brief the issues on appeal. 31 Indeed, the Utah Supreme Court left open
the possibility that conflicts of interest may compromise the impartibility of a municipally
employed judge. 32 For these reasons, the court concludes that Goodman did not foreclose the
opportunity to bring in state court a federal constitutional challenge to the justice court system.
Third, Mr. Anderson’s criminal charges implicate important state interests. Here, the City
has an interest in the enforcement of state statutes and its city ordinances. 33
Because all three elements are satisfied, the Younger abstention doctrine bars the claims
unless Mr. Anderson demonstrates that extraordinary circumstances trigger one of the limited
exceptions to the doctrine.
28
Dkt. Nos. 3, 10.
29
Dkt. No. 16, at 6; see also Goings v. Sumner Cnty. Dist. Attorney’s Office, 571 F. App’x 634, 638 (10th Cir. 2014)
(“In any event, it is beyond cavil that a state court is an adequate forum for the resolution of challenges to distinctly
state prosecutorial or court procedures or processes.”).
30
Goodman, 135 P.3d at 876.
31
Id. at 879-80.
32
Id. at 883.
33
Aid for Women v. Foulston, 441 F.3d 1101, 1119 (10th Cir. 2006) (“[T]he government has a strong interest
generally in the enforcement of its criminal laws.”).
7
B.
Exception
Although Younger abstention is “non-discretionary,” the Tenth Circuit has recognized that
it may not extend to extraordinary circumstances. Specifically, Younger is inapplicable “in cases
of proven harassment or prosecutions undertaken by state officials in bad faith without hope of
obtaining a valid conviction and perhaps in extraordinary circumstances where irreparable injury
can be shown.” 34 An injury is irreparable only when the threat to federally protected rights
“cannot be eliminated by . . . defense against a single prosecution.” 35
When evaluating whether a state prosecution has been commenced in bad faith or with
the intent to harass, courts look to three factors: “(1) whether it was frivolous or undertaken with
no reasonably objective hope of success; (2) whether it was motivated by defendant’s suspect
class or in retaliation for the defendant’s exercise of constitutional rights; and (3) whether it was
conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion,
typically through the unjustified and oppressive use of multiple prosecutions.” 36 When seeking
to avoid Younger abstention, the plaintiff bears a “heavy burden” and must set “forth more than
mere allegations of bad faith or harassment.” 37
Mr. Anderson has failed to carry his burden of showing that extraordinary circumstances
justify a deviation from the Younger doctrine. Although Mr. Anderson appears to argue that he
suffers an irreparable injury by having to challenge the constitutionality of the justice court in
multiple proceedings, 38 the Supreme Court has held that injuries “incidental to every criminal
34
Weitzel v. Div. of Occupational & Prof’l Licensing of Dep’t of Commerce of State of Utah, 240 F.3d 871, 876-77
(10th Cir. 2001) (internal quotation marks and citation omitted).
35
Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir.1997).
36
Amanatullah v. Colorado Bd. of Med. Examiners, 187 F.3d 1160, 1165 (10th Cir. 1999).
37
Weitzel, 240 F.3d at 876-77 (internal quotation marks and citation omitted).
38
Dkt. No. 10, at 44-45; Dkt. No. 11-1, at 22-35.
8
proceeding brought lawfully and in good faith” do not constitute the type of irreparable injury
that would justify an extraordinary interference with state proceedings. Here, Mr. Anderson has
not shown any injuries outside the ordinary prosecution of the criminal proceedings. 39
Mr. Anderson also argues that there is sufficient evidence of bad faith or harassment to
justify a departure from Younger. Mr. Anderson’s arguments are myriad. For example, Mr.
Anderson briefly argues that the Utah judiciary is biased against him. Mr. Anderson maintains
that state officials retaliated against him for filing this lawsuit and that the criminal charges are
unsupported by probable cause. 40 Citing a Tenth Circuit decision and two Fifth Circuit cases, 41
Mr. Anderson asserts that the temporal proximity between the filing of this case and his arrest by
the Salt Lake City Police Department demonstrates that state officials intended to deter him from
exercising his rights in the state criminal cases and his federal civil cases. 42 Mr. Anderson also
seeks a negative inference from the fact that a City prosecutor referenced his felony charges in a
hearing for one of his misdemeanor cases. 43 Finally, Mr. Anderson maintains that the only
39
Although Mr. Anderson briefly argues that an arrest may prevent him from litigating his constitutional claims in
this and other proceedings, incarceration is often an inconvenient by-product of a lawful arrest. But this does not
necessarily mean that Mr. Anderson suffered an irreparable injury, especially where he will be able to bring
constitutional claims either in the state cases or by seeking post-conviction relief. See, e.g., Wilder v. Adams Cnty.
Dist. Court, 310 F. App’x 228, 229 (10th Cir. 2009); Sweeten v. Sneddon, 463 F.2d 713, 715 (10th Cir. 1972).
40
See, e.g., Dkt. No. 11-1, at 24-25; Dkt. No. 21, at 12-13.
41
Dkt. No. 11-1, at 26-29 (citing Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979), Poole v. Cnty. of Otero, 271
F.3d 955, 960 (10th Cir. 2001), and Fitzgerald v. Peek, 636 F.2d 943 (5th Cir. 1981)). The court concludes that these
decisions are factually distinguishable or unpersuasive. In Wilson v. Thompson, a criminal case was revived after
law enforcement officers, who had recently been served with a civil rights action, approached the state court judge to
discuss renewing the criminal proceeding. 593 F.2d 1375, 1379-81 (5th Cir. 1979). In Poole v. County of Otero, the
Tenth Circuit’s holding arose out of the standard for malicious prosecution claims, the Younger doctrine was not
even at issue, and the plaintiff alleged that the police officers named in the underlying civil rights suit caused
criminal charges to be brought against the defendant. 271 F.3d 955, 959-60 (10th Cir. 2001), abrogated by Hartman
v. Moore, 126 S. Ct. 1695 (2006). Finally, Fitzgerald v. Peek lacks any discussion of facts that would permit this
court to evaluate its persuasiveness. 636 F.2d 943, 944-45 (5th Cir. 1981) (per curiam).
42
See, e.g., Dkt. No. 11-1, at 26-29.
43
See, e.g., Dkt. No. 21, at 4-7.
9
evidence against him comes from law enforcement officers and suggests that these officers
should be required to submit to polygraph examinations. 44
None of these arguments—standing alone or together—is sufficient to demonstrate bad
faith or harassment under the factors set out by the Tenth Circuit. First, although he questions
the impartiality of the state bench and the honesty of law enforcement officers, Mr. Anderson has
not presented any affirmative proof that either the misdemeanor or felony cases were “frivolous
or undertaken with no reasonably objective hope of success.” 45 To the contrary, the fact that the
justice courts found Mr. Anderson guilty in the misdemeanor cases and the Third District Court
issued a warrant in the felony case suggests there is at least a factual and legal basis for bringing
criminal charges against Mr. Anderson. The court will further note that Mr. Anderson appears to
admit at least some of the facts underlying the felony case in his proposed Amended Complaint,
which further suggests that the case is not entirely frivolous.
Second, Mr. Anderson has failed to demonstrate that the criminal charges were brought
“in retaliation for the defendant’s exercise of constitutional rights.” 46 As a preliminary matter,
Mr. Anderson focuses almost entirely on the felony case, and he fails to present any evidence that
the misdemeanor cases, which were the proceedings that Mr. Anderson sought to enjoin in the
first instance, were brought in retaliation for exercising his constitutional rights. But even when
the court considers the subsequent felony case, there is insufficient evidence of retaliation. For
one thing, although Mr. Anderson points to a vaguely shared interest in protecting Utah’s
municipal court system, he has not presented specific evidence of collusion between the City and
the County, let alone a sweeping conspiracy involving judges from different courts, judicial staff,
44
See, e.g., Dkt. No. 11-1, at 29, 30-31 (citing treatises).
45
Weitzel, 240 F.3d at 876-77.
46
Id.
10
prosecutors from different municipalities, and police officers. And while temporal proximity
may be probative of retaliation in some cases, such an inference is necessarily weakened in this
case by the fact that separate municipal entities independently charged Mr. Anderson based on
unrelated events. Stated differently, Mr. Anderson’s general allegations, without more, are
insufficient to demonstrate retaliation or harassment under Tenth Circuit case law.
Third and finally, Mr. Anderson has not demonstrated that these independent criminal
cases were “conducted in such a way as to constitute harassment and an abuse of prosecutorial
discretion, typically through the unjustified and oppressive use of multiple prosecutions.” 47 In
this case, it appears that each prosecution arose out of an independent set of facts. The mere fact
that different municipal entities brought charges based on different events by itself does not rise
to the level of harassment or abuse of prosecutorial discretion sufficient to trigger an exception,
especially where there appears to be a factual predicate for the state criminal cases.
As noted, a party invoking the exceptions to the Younger doctrine bears a heavy burden.
Here, Mr. Anderson has not demonstrated that exceptional circumstances provide a basis to
depart from the general principle that a district court must abstain from granting injunctive relief
when doing so would directly interfere with pending state criminal proceedings. 48 Accordingly,
the court grants the City’s Motion and dismisses the Complaint.
47
Id.
48
Mr. Anderson briefly argues that the burden of proof has shifted to the City to rebut the presumption of a bad faith
prosecution. Dkt. No. 21, at 18-21. Because Mr. Anderson failed to meet this initial burden, the court need not
reach this issue.
11
III.
MOTION TO AMEND
Twenty-eight days after the City served its motion, Mr. Anderson sought leave to amend
his Complaint.49 The Federal Rules of Civil Procedure promote liberal amendment to pleadings
so that claims may be heard on their merits. 50 Under Rule 15(a), this court “should freely give
leave when justice so requires.” 51 At the same time, however, an amendment may be denied
when the nonmovant demonstrates “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies previously allowed, undue prejudice [or] futility.” 52
In this case, Mr. Anderson’s motion must be denied because it both fails to cure the
deficiencies of the original Complaint and the proposed amendment would be futile. Except for
claims for injunctive and declaratory relief, Mr. Anderson’s proposed Amended Complaint does
not assert any new claims against the County. Notably, the central theory of recovery in the
proposed Amended Complaint continues to be the unconstitutionality of Utah’s justice court
system, which is not at issue in the County’s felony case. But even setting these concerns aside,
Mr. Anderson’s proposed amendment would be futile because the Younger doctrine operates as a
jurisdictional bar to a claim for equitable relief against the County for the reasons discussed in
Part I. 53 Accordingly, Mr. Anderson’s Motion for Leave to Amend is denied.
49
Dkt. No. 10.
50
Calderon v. Kansas Dep't of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999).
51
Fed. R. Civ. P. 15(a)(2).
52
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Forman v. Davis, 371 U.S. 178, 182
(1962)).
53
Cf. Phelps v. Hamilton, 122 F.3d 885, 891 (10th Cir. 1997) (concluding appellate court lacked jurisdiction to
consider appeal of denial of motion to amend because the Younger doctrine deprived the trial court and appellate
court of jurisdiction).
12
IV.
MOTION FOR TEMPORARY RESTRAINING ORDER
In his second Motion for a Temporary Restraining Order and Preliminary Injunction, Mr.
Anderson asks this court to enjoin the County from proceeding with the felony case. 54 The Tenth
Circuit has recognized that the Younger doctrine may impose some jurisdictional limitation on
granting certain types of relief. 55 Because this court must decline to exercise jurisdiction over
Mr. Anderson’s claims for equitable relief, the Motion for Temporary Restraining Order and
Preliminary Injunction is denied as moot. 56 In doing so, the court makes no judgment on the
arguments in Mr. Anderson’s motion but instead invites him, if he elects to do so, to raise his
claims for injunctive and declaratory relief in a more appropriate forum.
CONCLUSION
For the reasons stated above, the court rules as follows on the pending motions:
1. Mr. Anderson’s Objection (Dkt. No. 19) is OVERRULED;
2. Mr. Anderson’s Motion for Reconsideration (Dkt. No. 20) is DENIED;
3. the City's Motion to Dismiss (Dkt. No. 9) is GRANTED;
4. Mr. Anderson’s Motion for Leave to Amend (Dkt. No. 10) is DENIED; and
5. Mr. Anderson’s Motion for Temporary Restraining Order and Preliminary
Injunction (Dkt. No. 11) is DENIED;
Accordingly, Mr. Anderson’s case is DISMISSED WITHOUT PREJUDICE to pursue in
state court. The Clerk of Court is directed to close the case.
SO ORDERED this 13th day of November, 2014.
54
Dkt. No. 11-1.
55
Compare D.A. Osguthorpe Family P'ship v. ASC Utah, Inc., 705 F.3d 1223, 1230 n.8 (10th Cir. 2013) cert. denied,
133 S. Ct. 2831 (U.S. 2013), with Phelps v. Hamilton, 122 F.3d 885, 891 (10th Cir. 1997); see also Chapman v.
Barcus, 372 F. App’x 899, 901 (10th Cir. 2010).
56
Phelps, 122 F.3d at 891.
13
BY THE COURT:
________________________________________
ROBERT J. SHELBY
United States District Judge
14
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