Brumbaugh et al v. California Superior Court et al, No. 1:2006cv00225 - Document 2 (E.D. Cal. 2006)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Complaint be Dismissed; referred to Judge Anthony W. Ishii, Objections to F&R due by 3/20/2006 signed by Judge Lawrence J. O'Neill on 3/3/06.

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Brumbaugh et al v. California Superior Court et al Case 1:06-cv-00225-AWI-LJO Doc. 2 Document 2 Filed 03/06/2006 Page 1 of 10 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN BRUMBAUGH, et al., 12 13 14 15 CASE NO. CV F 06-0225 AWI LJO Petitioners, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION vs. CALIFORNIA SUPERIOR COURT IN AND FOR THE COUNTIES OF AMADOR, CALVERAS AND SANTA CLARA, et al, 16 Respondents. 17 / 18 INTRODUCTION 19 On February 27, 2006, Allen Brumaugh and Andrew Roy Morris (collectively “plaintiffs”) filed 20 voluminous papers, including a document styled as an ex parte petition for writs (“complaint”) which 21 this Court construes as a complaint to seek to undo state court orders and proceedings by reference to 22 the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. According to the complaint, 23 Allen Brumaugh purports to pursue claims for his two minor children (“minor children”) identified only 24 by initials. The complaint’s caption lists numerous California courts, agencies and officials along with 25 officials of Calaveras and Amador counties. However, the complaint specifically identifies the 26 following as “real parties of interest” and whom this Court construes as defendants: 27 28 1. Calaveras and Amador County Superior Court judges John E. Martin, Richard K. Specchio, Donald Howard, Susan C. Harlan, David Richmond, James Bosco and 1 Dockets.Justia.com Case 1:06-cv-00225-AWI-LJO 1 2 Document 2 Filed 03/06/2006 Page 2 of 10 Douglas V. Mewhinney (collectively “judicial defendants”); 2. Calaveras and Amador County district attorneys, deputy district attorneys and 3 investigators Todd D. Riebe, Jeffrey Tuttle, Milton Matehak, Lon D. Hamburger and 4 Ronald Rios and Calaveras County Counsel James C. Jones and Calaveras County 5 Assistant Counsel David E. Sirias (collectively “prosecutor defendants”); and 6 3. Calaveras and Amador County Sheriffs Dennis Downden and Michael Prizmich, 7 Calaveras and Amador County court clerks Mary Beth Todd and Hugh Swift along with 8 Kathleen Morris (collectively “remaining defendants”).1 9 The complaint refers to sections of the ADA and alleges that plaintiffs and the minor children 10 have learning disabilities. The gist of the complaint is to “call into question the judgments, orders and 11 processes rendered” in state court proceedings. The complaint references state criminal, child support 12 and tax collection actions apparently brought against plaintiffs. The complaint asks this Court to 13 intervene in the state proceedings. 14 DISCUSSION 15 Standards For Screening 16 “A trial court may dismiss a claim sua sponte under Fed.R.Civ.P. 12(b)(6). . . . Such dismissal 17 may be made without notice where the claimant cannot possibly win relief.” Omar v. Sea-Land Service, 18 Inc., 813 F.2d 986, 991 (9th Cir. 1987); see Wong v. Bell, 642 F.2d 359, 361-362 (9th Cir. 1981). Sua 19 sponte dismissal may be made before process is served on defendants. Neitzke v. Williams, 490 U.S. 20 319, 324 (1989) (dismissals under 28 U.S.C. § 1915(d) are often made sua sponte); Franklin v. Murphy, 21 745 F.2d 1221, 1226 (9th Cir. 1984) (court may dismiss frivolous in forma pauperis action sua sponte 22 prior to service of process on defendants). 23 Since plaintiff proceeds in forma pauperis, this Court, notwithstanding any filing fee that may 24 have been paid, shall dismiss a case at any time if the Court determines the action is frivolous, malicious, 25 fails to state a claim on which relief may be granted, or seeks monetary relief against an immune 26 defendant. See 28 U.S.C. § 1915(e); 2 Schwarzer, Tashima & Wagstaffe, California Practice Guide: 27 28 1 The judicial, prosecutor and remaining defendants will be referred to collectively as “defendants.” 2 Case 1:06-cv-00225-AWI-LJO Document 2 Filed 03/06/2006 Page 3 of 10 1 Federal Civil Procedure Before Trial (2005) Attacking the Pleadings, para. 9:226.1, pp. 9-65. A court 2 need not accept as true factual allegations in in forma pauperis complaints and may reject “completely 3 baseless” allegations, including those which are “fanciful,” “fantastic” or “delusional.” Denton v. 4 Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733 (1992). 5 A claim is legally frivolous when it lacks an arguable basis either in law or fact. Neitzke v. 6 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-1228 (9th Cir. 1984). A 7 frivolous claim is based on an inarguable legal conclusion or a fanciful factual allegation. Neitzke, 490 8 U.S. at 324. A federal court may dismiss a claim as frivolous where it is based on an indisputably 9 meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. 10 The test for maliciousness is a subjective one and requires the court to “determine the . . . good 11 faith of the applicant.” Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 46 (1915); see Wright v. 12 Newsome, 795 F.2d 964, 968, n. 1 (11th Cir. 1986). A lack of good faith is found most commonly in 13 repetitive suits filed by plaintiffs who have used the advantage of cost-free filing to file a multiplicity 14 of suits. A complaint is malicious if it suggests an intent to vex defendants or abuse the judicial process 15 by relitigating claims decided in prior cases. Crisafi v. Holland, 655 F.2d 1305, 1309 (D.C. Cir. 1981); 16 Phillips v. Carey, 638 F.2d 207, 209 (10th Cir. 1981); Ballentine v. Crawford, 563 F.Supp. 627, 628-629 17 (N.D. Ind. 1983); cf. Glick v. Gutbrod, 782 F.2d 754, 757 (7th Cir. 1986) (court has inherent power to 18 dismiss case demonstrating “clear pattern of abuse of judicial process”). A lack of good faith or malice 19 also can be inferred from a complaint containing untrue material allegations of fact or false statements 20 made with intent to deceive the court. See Horsey v. Asher, 741 F.2d 209, 212 (8th Cir. 1984). 21 A complaint, or portion thereof, may be dismissed for failure to state a claim if it appears beyond 22 doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to 23 relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 24 45-46 (1957)); see also Palmer v. Roosevelt Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 25 1981). “[W]hen a federal court reviews the sufficiency of a complaint, before the reception of any 26 evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether 27 a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support 28 claims.” Scheurer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1688 (1974); Gilligan v. Jamco Development 3 Case 1:06-cv-00225-AWI-LJO 1 2 3 Document 2 Filed 03/06/2006 Page 4 of 10 Corp., 108 F.3d 246, 249 (9th Cir. 1997). The face of the complaint reflects deficiencies and immunities to prevent plaintiffs from offering evidence to support claims raised in the complaint. 4 Jurisdictional Deficiencies 5 F.R.Civ.P. 8 establishes general pleading rules and provides in pertinent part: 6 (a) Claims for Relief. A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. 7 8 9 ... 10 (e) Pleading to be Concise and Direct; Consistency. (1) Each averment of a pleading shall be simple, concise and direct. 11 12 13 A pleading may not simply allege a wrong has been committed and demand relief. The 14 underlying requirement is that a pleading give “fair notice” of the claim being asserted and the “grounds 15 upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103 (1957); Yamaguchi v. 16 United States Department of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997). Although a complaint need 17 not outline all elements of a claim, “[i]t must be possible . . . for an inference to be drawn that these 18 elements exist.” Walker v. South Central Bell Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990); Lewis 19 v. ACB Business Service, Inc., 135 F.3d 389, 405-406 (6th Cir. 1998). Despite the flexible pleading 20 policy of the Federal Rules of Civil Procedure, a complaint must give fair notice and state the elements 21 of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 22 1984). A plaintiff must allege with at least some degree of particularity overt facts which defendant 23 engaged in to support plaintiff’s claim. Jones, 733 F.2d at 649. 24 The complaint fails to allege a proper basis for this Court’s jurisdiction. The complaint addresses 25 the handling of state court family law, criminal, and tax collection actions which appear to arise from 26 plaintiffs’ family matters. Domestic and family law matters, including divorce and custody, are state 27 courts’ primary responsibility. Federal courts are prevented to hear disputes under the “domestic 28 relations exception” to federal jurisdiction. Ankenbrandt v. Richards, 504 U.S. 689, 703, 112 S.Ct. 2206 4 Case 1:06-cv-00225-AWI-LJO Document 2 Filed 03/06/2006 Page 5 of 10 1 (1992); Newman v. Indiana, 129 F.3d 937 (7th Cir. 1997). Core or ancillary proceedings stemming from 2 domestic relations or family law disputes fall within the exception. 3 The complaint seeks this Court’s interference into family law and related disputes. Pursuant to 4 Ankenbrandt, this Court finds that it is prevented to proceed with this action. Ankenbrandt, 504 U.S. 5 at 703; see also Allen v. Allen, 48 F.3d 259, 261 n. 2 (7th Cir. 1995) (constitutional claim involving 6 custody dispute fits within domestic relations exception). 7 In addition, a federal court is not the proper forum to attack state court orders. Federal courts 8 lack jurisdiction to review or modify state court judgments under the Rooker-Feldman doctrine. See 9 Rooker v. Fidelity Trust Company, 263 U.S. 413, 44 S.Ct. 149 (1923); District of Columbia Court of 10 Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303 (1983). The Rooker-Feldman doctrine is based 11 on 28 U.S.C. § 1257 which grants the United States Supreme Court jurisdiction to review decisions of 12 the highest state courts for compliance with the federal Constitution. See Rooker, 263 U.S. 413, 44 S.Ct. 13 149; Feldman, 460 U.S. at 482, 103 S.Ct. 1303. The doctrine provides that “lower federal courts do not 14 have jurisdiction to review a case litigated and decided in state court; only the United States Supreme 15 Court has jurisdiction to correct state court judgments.” Gottfried v. Medical Planning Services, 142 16 F.3d 326, 330 (6th Cir. 1998). “This is equally true in constitutional cases brought under [28 U.S.C.] § 17 1983, since federal courts must give ‘full faith and credit’ to the judicial proceedings of state courts.’” 18 Gottfried, 142 F.3d at 330 (citing 28 U.S.C. § 1738). “Federal district courts lack subject matter 19 jurisdiction to review such final adjudications or to exclude constitutional claims that are ‘inextricably 20 intertwined with the state court’s [decision] in a judicial proceeding.’” Valenti v. Mitchell, 962 F.2d 288, 21 296 (3rd Cir. 1992) (quoting Feldman, 460 U.S. at 483, n. 16). 22 Moreover, a federal court lacks subject matter jurisdiction to review final determinations of state 23 courts and claims “inextricably intertwined” with final state court decisions, even if such “inextricably 24 intertwined” claims were not raised in state court. See District of Columbia Court of Appeals v. 25 Feldman, 460 U.S. 462, 483-487 and n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); 26 Olson Farms, Inc. v. Barbosa, 134 F.3d 933, 937 (9th Cir. 1998) (holding the Rooker-Feldman doctrine 27 is jurisdictional). A federal district court is a court of original jurisdiction and has no authority to review 28 final determinations of state courts. Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir. 5 Case 1:06-cv-00225-AWI-LJO Document 2 Filed 03/06/2006 Page 6 of 10 1 1986); Dubinka v. Judges of Superior Court of State of Cal. for County of Los Angeles, 23 F.3d 218, 221 2 (9th Cir. 1994). “[A] losing party in state court is barred from seeking what in substance would be 3 appellate review of the state judgment in a United States District Court, based on the losing party’s claim 4 that the state judgment itself violates the loser’s federal rights.” Johnson v. DeGrandy, 512 U.S. 997, 5 1005-1006 (1994). 6 7 In short, the complaint reveals no grounds to properly invoke this Court’s jurisdiction. An attempt at amendment is unwarranted. 8 Deficiencies As To Claims 9 F.R.Civ.P. 8(a) requires a short plain statement of plaintiff’s claim. The complaint does not 10 adequately identify grounds for relief against the defendants to satisfy F.R.Civ.P. 8(a)(2). The complaint 11 is rambling and disjointed and fails to provide any defendant fair notice and to state elements of a claim 12 plainly and succinctly. The complaint fails to demonstrate that plaintiffs may pursue claims or seek 13 relief subject alleged in the complaint. The pleading deficiencies prevent this Court from proceeding 14 on plaintiff’s complaint and demonstrate that an attempt at amendment is unwarranted. Plaintiffs 15 misguidedly attempt to abuse the ADA to seek this Court’s improper interference into matters reserved 16 for state courts. 17 Judicial Immunity 18 Under a longstanding rule, the judicial defendants are entitled to absolute immunity: 19 Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine in Bradley v. Fisher, 13 Wall 335, 20 L.Ed. 646 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it “is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. 20 21 22 23 24 Pierson v. Ray, 386 U.S. 547, 553-554, 87 S.Ct. 1213 (1967). 25 The Ninth Circuit Court of Appeals has explained: 26 Judges are absolutely immune from damages for judicial acts taken within the jurisdiction of their courts. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (Ashelman). Grave procedural errors or acts in excess of judicial authority do not deprive a judge of this immunity. Stump v. Sparkman, 435 U.S. 349, 355-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978) (Stump). A judge loses absolute immunity only 27 28 6 Case 1:06-cv-00225-AWI-LJO 1 2 Document 2 Filed 03/06/2006 Page 7 of 10 when he acts in the clear absence of all jurisdiction or performs an act that is not judicial in nature. See Forrester v. White, __ U.S. __, 108 S.Ct. 538, 544-46, 98 L.Ed.2d 555 (1988); Stump, 435 U.S. at 356-57 & n. 7, 98 S.Ct. at 1105 & n. 7, Ashelman, 793 F.2d at 1075. 3 4 Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir.), cert. denied, 488 U.S. 995 (1988). 5 In light of the absolute immunity for the judiciary, the complaint’s claims against the judicial 6 defendants are supported neither in law nor fact to render them frivolous. The complaint’s meritless 7 allegations reflect a malicious intent to vex the judicial defendants. 8 Prosecutorial Immunity 9 Based on scattered factual fragments alleged in the complaint, the prosecutor defendants are 10 entitled to absolute prosecutorial immunity. State prosecutors are entitled to absolute prosecutorial 11 immunity for acts taken in their official capacity. See Imbler v. Pachtman, 424 U.S. 409, 427, 430-431; 12 96 S.Ct 984 (1976); Gabbert v. Conn, 131 F.3d 793, 800 (9th Cir. 1997); Gobel v. Maricopa County, 867 13 F.2d 1201, 1203 (9th Cir. 1989). 14 15 16 17 18 19 20 In Schlegel v. Bebout, 841 F.2d 937, 943-944 (9th Cir. 1988), the Ninth Circuit Court of Appeals provided guidance to determine the scope of prosecutorial immunity: Our inquiry must center on the nature of the official conduct challenged, and not the status or title of the officer. As a result, we must examine the particular prosecutorial conduct of which [plaintiff] complains. If we determine that the conduct is within the scope of [defendants’] authority and is quasi-judicial in nature, our inquiry ceases since the conduct would fall within the sphere of absolute immunity. To determine whether conduct of a state official is within his or her authority, the proper test is not whether the act performed was manifestly or palpably beyond his or her authority, but rather whether it is more or less connected with the general matters committed to his or her control or supervision. . . . 21 24 Absolute immunity depends on the function the officials are performing when taking the actions that provoked the lawsuit. We must look to the nature of the activity and determine whether it is “intimately associated with the judicial phase of the criminal process.” . . . Investigative or administrative functions carried out pursuant to the preparation of a prosecutor’s case are also accorded absolute immunity. (Emphasis in original; citations omitted.) 25 Determining whether a prosecutor's actions are immunized requires a functional analysis. The 26 classification of the challenged acts, not the motivation underlying them, determines whether absolute 27 immunity applies. Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986)(en banc). 22 23 28 Prosecutors and other eligible government personnel are absolutely immune from section 1983 7 Case 1:06-cv-00225-AWI-LJO Document 2 Filed 03/06/2006 Page 8 of 10 1 damages in connection with challenged activities related to the initiation and presentation of criminal 2 prosecutions. Imbler, 424 U.S. 409; see also Kalina v. Fletcher, 118 S.Ct. 502, 507 (1997); Gabbert, 3 131 F.3d at 800; Roe v. City of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997); Gobel, 867 F.2d at 4 1203. “[A]bsolute prosecutorial immunity attaches to the actions of a prosecutor if those actions were 5 performed as part of the prosecutor’s preparation of his case, even if they can be characterized as 6 ‘investigative’ or ‘administrative.’” Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir. 1984), cert. 7 denied, 469 U.S. 1127, 105 S.Ct. 810 (1985). Even charges of malicious prosecution, falsification of 8 evidence, coercion of perjured testimony and concealment of exculpatory evidence will be dismissed 9 on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F.Supp. 710, 728 (N.D. Cal. 1984). 10 Further activities intimately connected with the judicial phase of the criminal process include making 11 statements that are alleged misrepresentations and mischaracterizations during hearings and discovery 12 and in court papers, see Fry v. Melaragno, 939 F.2d 832,837-838 (9th Cir. 1991), and conferring with 13 witnesses and allegedly inducing them to testify falsely, see Demery, 735 F.2d at 1144. 14 Here, the prosecutor defendants are entitled to absolute immunity for prosecutorial actions. The 15 prosecutorial immunity bars plaintiffs’ claims to render futile further attempt to amend the complaint. 16 Further Immunity 17 Defendants are entitled to immunity under the Eleventh Amendment2 to the federal Constitution, 18 which provides “[t]he Judicial power of the United States shall not be construed to extend to any suit 19 in law or equity, commenced or prosecuted against one of the United States by Citizens of Another State, 20 or by Citizens or Subjects of any Foreign State.” The United States Supreme Court has noted: “The 21 [Eleventh] Amendment . . . enacts a sovereign immunity from suit, rather than a nonwaivable limit on 22 the federal judiciary’s subject matter jurisdiction.” Idaho v. Couer d’Alene Tribe, 521 U.S. 261, 117 23 S.Ct. 2028, 2033 (1997). 24 “The Eleventh Amendment prohibits federal courts from hearing suits brought against an 25 unconsenting state. Though its language might suggest otherwise, the Eleventh Amendment has long 26 been construed to extend to suits brought against a state by its own citizens, as well as by citizens of 27 2 28 This Court is aware of 42 U.S.C. § 12202 which clearly does not apply to the state court proceedings subject to the complaint. 8 Case 1:06-cv-00225-AWI-LJO Document 2 Filed 03/06/2006 Page 9 of 10 1 other states.” Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991), cert. 2 denied, 503 U.S. 938 (1992)(citation omitted); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 3 116 S.Ct. 1114, 1122 (1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 4 144 (1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). 5 The Eleventh Amendment bars suits against state agencies as well as those where the state itself 6 is named as a defendant. See Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 7 139, 144 (1993); Natural Resources Defense Council v. California Dept. of Transportation, 96 F.3d 420, 8 421 (9th Cir. 1996); Brooks, 951 F.2d at 1053; see also Lucas v. Department of Corrections, 66 F.3d 245, 9 248 (9th Cir. 1995) (per curiam) (Board of Corrections is agency entitled to immunity); Taylor v. List, 10 880 F.2d 1040, 1045 (9th Cir. 1989) (Nevada Department of Prisons was a state agency entitled to 11 Eleventh Amendment immunity). 12 The Eleventh Amendment’s bar to actions against states and their entities in federal courts 13 provides further grounds that plaintiff can not maintain claims against the state court. The complaint 14 alleges no conduct that falls outside the scope of the immunities. This Court finds that the state courts 15 and their judges and personnel are immune from suit as they performed functions intimately associated 16 with the judicial process and/or were a state agency. See Stevens v. Rifkin, 608 F.Supp. 710, 728 (N.D. 17 Cal. 1984); 28 U.S.C. § 1915A(b)(2). 18 19 The complaint alleges no conduct that falls outside the scope of immunity. Malice 20 This Court is concerned that plaintiffs have brought this action in absence of good faith and 21 attempt to vex defendants because they are disgruntled with the outcome of state court proceedings. 22 Such attempt to vex defendants provides further grounds to dismiss plaintiff’s complaint. 23 CONCLUSION AND ORDER 24 For the reasons discussed above, this Court RECOMMENDS to DISMISS plaintiff’s complaint 25 without prejudice on grounds: (1) this Court lacks jurisdiction over the complaint’s claims; (2) the 26 complaint fails to state a claim upon which relief may be granted; (3) an attempt at amendment is 27 unwarranted based on jurisdictional defects, available immunities and defenses, and the complaint’s 28 deficiencies; and (4) the complaint lacks good faith and exhibits plaintiff’s intent to vex defendants. 9 Case 1:06-cv-00225-AWI-LJO Document 2 Filed 03/06/2006 Page 10 of 10 1 This Court further RECOMMENDS to DIRECT this Court’s clerk to return to plaintiffs the voluminous 2 exhibits filed with their complaint to avoid overburdening this Court’s record. 3 These findings and recommendations are submitted to the United States district judge assigned 4 to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72-304. No later than 5 March 20, 2006, plaintiffs may file written objections to these findings and recommendations with the 6 Court and serve a copy on the magistrate judge in compliance with this Court’s Local Rule 72-304(b). 7 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 8 Recommendations.” The district court will then review the magistrate judge’s ruling, pursuant to 28 9 U.S.C. § 636(b)(1)(c)). Plaintiff is admonished that failure to file objections within the specified time 10 may waive the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 Plaintiffs are admonished not to attempt to file an amended complaint as plaintiff’s 12 recourse is to object to these findings and recommendations. Plaintiffs are further admonished 13 this Court will strike any papers to attempt to file an amended complaint unless this Court 14 specifically grants plaintiffs permission to file an amended complaint. 15 16 IT IS SO ORDERED. Dated: 66h44d March 3, 2006 /s/ Lawrence J. O'Neill UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10

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