(HC) Taylor v. Yates, No. 1:2009cv01876 - Document 16 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 14 Respondent's Motion to Dismiss the Petition for Failure to State a Claim Cognizable in Habeas Corpus be GRANTED, the Clerk be Directed to Close the Action, the Court DECLINE to Issue a Certific ate of Appealability, and the Clerk be Directed to Forward to Petitioner a Blank Form Complaint for Civil Rights Claims Brought Pursuant to 42 U.S.C. 1983, re 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Sheila K. Oberto on 2/3/2011. Referred to Judge Wanger. Objections to F&R due by 3/10/2011. (Jessen, A)
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(HC) Taylor v. Yates Doc. 16 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARK JAMES TAYLOR, 11 Petitioner, 12 13 14 v. JAMES A. YATES, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—01876-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOCS. 14, 1) FINDINGS AND RECOMMENDATIONS TO DENY A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO SEND PETITIONER A CIVIL RIGHTS COMPLAINT FORM 17 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant 21 to 28 U.S.C. § 2254. 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 23 Rules 302 and 304. 24 motion to dismiss the petition filed on November 9, 2010. The matter has been referred to the Pending before the Court is the Respondent’s 25 I. 26 Petitioner, an inmate of Pleasant Valley State Prison, Background 27 challenges a disciplinary finding made in March 2008 that 28 Petitioner failed to comply with count procedures in violation of 1 Dockets.Justia.com 1 Cal. Code Regs. tit. 15, § 3017, which provides, “Inmates must be 2 present at designated times and places for counts, and must 3 present themselves for count in the manner set forth in 4 institution procedures.” 5 (Pet. 7, 37, 19.) In the petition filed on October 26, 2009, Petitioner 6 initially alleged 1) he was innocent of the violation because of 7 insufficient evidence of the prohibited conduct and of 8 wilfulness; 2) the offense of failure to comply with count 9 procedures was not an offense, was not a lesser included offense 10 of the originally charged violation of delaying a peace officer 11 while performing his duties, and was not a serious rules 12 violation; 3) Cal. Code. Regs. tit. 15, § 3017 granted excessive 13 discretion to prison authorities and resulted in false charges of 14 violations and wrongful convictions; and 4) the disciplinary 15 finding violated Petitioner’s right to due process guaranteed 16 under the Fourteenth Amendment of the United States Constitution. 17 (Pet. 7-16.) 18 and expungement of references to it in Petitioner’s central file, 19 modification of the state regulation, and restoration of thirty 20 (30) days of lost credit. 21 Petitioner seeks the reversal of the guilty finding (Pet. 14.) By this Court’s order filed on September 2, 2010, 22 Petitioner’s claims concerning the interpretation of the offense 23 of failure to comply with count procedures, its status as a 24 serious rules violation or as a lesser included offense of the 25 originally charged violation, the extent of discretion entrusted 26 to prison officials under Cal. Code. Regs. tit. 15, § 3017, and 27 any violation of due process of law premised solely on the state 28 constitution were dismissed because they were state law claims 2 1 not cognizable in a proceeding pursuant to 28 U.S.C. § 2254. 2 Insofar as Petitioner claimed a violation of federal due process 3 of law because of the absence of some evidence to support a 4 finding of a violation of the pertinent disciplinary rules, the 5 Respondent was ordered to file a response to the petition. 6 Respondent filed the motion to dismiss on November 9, 2010. 7 November 24, 2010, Petitioner filed opposition to the motion to 8 dismiss. 9 II. 10 On No reply was filed. Jurisdiction Because the petition was filed after April 24, 1996, the 11 effective date of the Antiterrorism and Effective Death Penalty 12 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 13 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 14 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 15 A district court may entertain a petition for a writ of 16 habeas corpus by a person in custody pursuant to the judgment of 17 a state court only on the ground that the custody is in violation 18 of the Constitution, laws, or treaties of the United States. 19 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 20 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 21 16 (2010) (per curiam). 22 constitutional violation as a result of the challenged 23 disciplinary proceedings. 24 Lindh 28 Petitioner alleges that he suffered a Further, the decision challenged arises out of conduct of 25 prison officials at a prison located within the jurisdiction of 26 this Court. 27 28 28 U.S.C. §§ 2254(a), 2241(a), (d). Accordingly, this Court has jurisdiction over this action. /// 3 1 III. 2 In the motion to dismiss the petition, Respondent argues The Propriety of a Motion to Dismiss 3 that Petitioner has failed to state a case or controversy 4 cognizable pursuant to 28 U.S.C. § 2254. 5 Petitioner has failed to establish a basis for habeas relief 6 because Petitioner’s allegations do not concern the fact or 7 duration of his confinement. 8 9 Respondent argues that The filing of a motion to dismiss instead of an answer was authorized by the Court’s order of September 8, 2010, which 10 referred to the possibility of Respondent’s filing a motion to 11 dismiss and set forth a briefing schedule for any such motion. 12 (Doc. 10, 3.) 13 dismiss is authorized by Rule 4 of the Rules Governing Section 14 2254 Cases in the District Courts. 15 Notes, 1976 Adoption and 2004 Amendments. 16 It is established that the filing of a motion to Rule 4, Advisory Committee Here, the reason for the motion filed by Respondent was an 17 absence of a basis for granting federal habeas because the 18 Petitioner’s complaint did not affect the legality or duration of 19 his confinement. 20 mindful of its continuing duty to determine its own subject 21 matter jurisdiction and to dismiss an action where it appears 22 that the Court lacks jurisdiction. 23 CSIBI v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) (citing 24 City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)); 25 Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 1989). 26 This Court has limited jurisdiction and is Fed. R. Civ. P. 12(h)(3); Habeas Rule 7 permits the Court to direct the parties to 27 expand the record by submitting additional materials relating to 28 the petition and to authenticate such materials, which may 4 1 include letters predating the filing of the petition, documents, 2 exhibits, affidavits, and answers under oath to written 3 interrogatories propounded by the judge. 4 Habeas Rule 7(a), (b). If, upon expansion of the record, the Court perceives that a 5 defect not apparent on the face of the petition may preclude a 6 hearing on the merits, the Court may authorize a motion to 7 dismiss. 8 1982). 9 United States Supreme Court suggested that the summary judgment Hillery v. Pulley, 533 F.Supp. 1189, 1196 (E.D.Cal. In Blackledge v. Allison, 431 U.S. 63, 80-81 (1977), the 10 procedure should be used to test whether facially adequate 11 allegations have sufficient basis in fact to warrant plenary 12 presentation of evidence. 13 record in a given case could demonstrate that an evidentiary 14 hearing is unnecessary, and specifically advised that there might 15 be cases in which expansion of the record would provide evidence 16 of a petitioner’s contentions so overwhelming as to justify a 17 conclusion that an allegation of fact does not raise a 18 substantial issue of fact. 19 the petitioner is entitled to “careful consideration and plenary 20 processing of (his claim,) including full opportunity for 21 presentation of the relevant facts.” 22 The Court noted that expansion of the Id. at 81. In such circumstances, Id. at 82-83. Summary judgment standards were likewise applied in Hillery 23 v. Pulley, 533 F.Supp. 1189, 1197 (E.D.Cal. 1982), where the 24 court stated: 25 26 27 28 The standards under rule 56 are well known. (Footnote omitted.) To paraphrase them for purposes of habeas proceedings, it may be said that a motion to dismiss a petition for habeas corpus made after expansion of the record may only be granted when the matters on file reveal that there is no genuine issue of material fact “which if resolved in accordance with the 5 1 2 3 petitioner’s contentions would entitle him to relief... (citation omitted). Only if it appears from undisputed facts... that as a matter of law petitioner is entitled to discharge, or that as a matter of law he is not, may an evidentiary hearing be avoided. (Citation omitted.) 4 533 F.Supp. 1197. 5 Summary judgment is proper only where the moving party 6 establishes that there are no genuine issues as to any material 7 facts, or where in viewing the evidence and the reasonable 8 inferences which may be drawn therefrom in the light most 9 favorable to the opposing party, the movant is entitled to 10 prevail as a matter of law. Hillery v. Pulley, 533 F.Supp. 1189, 11 1197 n. 15 (E.D.Cal. 1982) (citing Jones v. Halekulani Hotel 12 Inc., 557 F.2d 1308, 1310 (9th Cir. 1977) and Adickes v. S.H. 13 Kress & Co., 398 U.S. 144, 157-59 (1970)). 14 The present case is one in which expansion of the record to 15 include facts concerning the consequences of the challenged 16 disciplinary finding may permit summary disposition of the 17 petition without a full evidentiary hearing. Accordingly, 18 pursuant to Habeas Rule 4, the Court will review the facts 19 alleged in the petition and as reflected in the evidentiary 20 materials submitted by the parties in connection with the motion 21 to dismiss. 22 IV. Habeas Corpus Jurisdiction 23 A. Legal Standards 24 A district court may entertain a petition for a writ of 25 habeas corpus by a person in custody pursuant to the judgment of 26 a state court only on the ground that the custody is in violation 27 of the Constitution, laws, or treaties of the United States. 28 28 6 1 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 2 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 3 16 (2010) (per curiam). 4 Further, a district court has subject matter jurisdiction to 5 entertain a petition for a writ of habeas corpus only if the 6 petitioner is “in custody” within the meaning of the habeas 7 corpus statute at the time the petition is filed. 8 §§ 2241(c)(3), 2254(a). 9 physical incarceration; a petitioner is in “custody” if he is 28 U.S.C. “Custody” is not limited to actual 10 subject to restraints not shared by the public generally. 11 v. Cunningham, 371 U.S. 236, 243 (1963). 12 custody with respect to the conviction he attacks. 13 sentence is fully served, even if the conviction may affect the 14 length or conditions of a sentence to be imposed in the future, 15 the prisoner is not “in custody” within the meaning of 28 U.S.C. 16 §§ 2241(c) or 2254(a). 17 (1989). 18 Jones A petitioner must be in Once a See Maleng v. Cook, 490 U.S. 488, 490-492 Claims challenging the validity of a prisoner’s continued 19 incarceration, including the fact or length of the custody, are 20 within the “heart of habeas corpus” and are cognizable only in 21 federal habeas corpus. 22 99, 499 n.14 (1973). 23 U.S.C. § 1983 is appropriate for a state prisoner challenging the 24 conditions of prison life but not the fact or length of the 25 custody. 26 931 F.2d 573, 574 (9th Cir. 1991). 27 28 Preiser v. Rodriguez, 411 U.S. 475, 498In contrast, an action pursuant to 42 Preiser v. Rodriguez, 411 U.S. at 499; Badea v. Cox, Habeas corpus has been mentioned as a potential alternative remedy to an action under § 1983 for unspecified additional and 7 1 unconstitutional restraints during lawful custody. 2 Rodriguez, 411 U.S. at 499-500. 3 Preiser in support of the proposition that habeas jurisdiction 4 covers challenges to prison conditions are factually distinct 5 from the present case. 6 prison conditions that in turn burdened or precluded prisoners’ 7 ability to pursue the federal habeas corpus remedy. 8 Avery, 393 U.S. 483 (1969) (a motion for law books and a 9 typewriter was treated as a petition for habeas relief, and, in Preiser v. The cases cited by the Court in They involved state interference with Johnson v. 10 the absence of an alternative form of assistance to prisoners, 11 the Court held invalid a state prison regulation that barred 12 inmates from assisting other prisoners in preparing petitions for 13 post-conviction relief); Ex Parte Hull, 312 U.S. 546, 549 (1941) 14 (a prison’s regulation of the contents of a petition for habeas 15 relief was held invalid because it was inconsistent with the 16 federal courts’ exclusive authority to determine the sufficiency 17 of a petition). 18 (1973), the Court treated what purported to be a habeas petition 19 concerning conditions of confinement, including disciplinary 20 measures, as a civil rights complaint and failed to require 21 exhaustion beyond having exhausted state habeas remedies. 22 In Wilwording v. Swenson, 404 U.S. 249, 251 The Court notes that the appropriate extent of any overlap 23 between habeas corpus and § 1983 has not been clarified by 24 subsequent decisions of the United States Supreme Court. 25 However, the Court has noted that the concern for maintaining the 26 habeas remedy has been focused on cases where prisoners seek to 27 invalidate the duration of their confinement “either directly 28 through an injunction compelling speeder release or indirectly 8 1 through a judicial determination that necessarily implies the 2 unlawfulness of the State’s custody.” 3 U.S. 74, 81 (2005). 4 procedures are invalid may be obtained via a suit pursuant to 5 § 1983. 6 procedures, and not the wrong result of a denial of good time 7 credits, then victory does not necessarily mean speedier or 8 immediate release. 9 § 1983 remains available for procedural challenges where success Wilkinson v. Dotson, 544 A simple declaration that disciplinary Id. at 79-80. Where prisoners attack only the wrong Wilkinson v. Dotson, 544 U.S. 74, 80. 10 would not necessarily spell immediate or speedier release. 11 Thus, at 81-82. 12 Id. This circuit has held that the availability of habeas relief 13 with respect to a challenge to conditions of confinement depends 14 on the likelihood of the effect of a successful challenge on the 15 overall length of the prisoner’s sentence. 16 334 F.3d 850, 858-59 (9th Cir. 2003). 17 court considered whether the favorable termination rule of Heck 18 v. Humphrey and Edwards v. Balisok1 should apply to a state 19 prisoner’s § 1983 claim that prison disciplinary hearing 20 procedures that resulted in the prisoner’s placement in 21 administrative segregation violated his constitutional rights. Ramirez v. Galaza, In Ramirez v. Galaza, the 22 23 24 25 26 27 28 1 The first reference is to Heck v. Humphrey, 512 U.S. 477 (1994), in which the Court held that for a prisoner to maintain a § 1983 claim for damages (but not injunctive relief or release from custody) for an allegedly unconstitutional conviction or sentence or for an action that would render a conviction or sentence invalid, a prisoner must prove that the conviction or sentence has been reversed or invalidated by a state tribunal or has warranted issuance of a federal writ of habeas corpus. The second reference is to Edwards v. Balisok, 520 U.S. 641 (1997), in which the Heck “favorable termination” rule was extended to a prisoner’s claim for damages and injunctive relief for prison disciplinary hearing procedures that resulted in a loss of good-time credits because the alleged defects, if established, necessarily implied the invalidity of the deprivation of the credits. 9 1 334 F.3d at 852. 2 proceed under § 1983 without proving favorable termination 3 because the prisoner’s claim, if successful, would not 4 necessarily invalidate a disciplinary action that affected the 5 fact or length of his confinement. 6 significance of Preiser v. Rodriguez: 7 8 9 10 11 12 13 The court determined that the prisoner could Id. The court reviewed the The Supreme Court first addressed the intersection between § 1983 and writs of habeas corpus in Preiser v. Rodriguez, holding that “when a state prisoner is challenging the very fact or duration of his physical confinement,” and where “the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment,” the prisoner's “sole federal remedy is a writ of habeas corpus.” 411 U.S. at 500, 93 S.Ct. 1827. Conversely, Preiser concluded that “a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.” Id. at 499, 93 S.Ct. 1827. 14 Ramirez v. Galaza, 334 F.3d at 855. The court noted that the 15 distinction applied whether the term of incarceration resulted 16 from a conviction or sentence imposed by a state court, or a 17 disciplinary sanction imposed in a state prison. Id. at 856. 18 The court reviewed its prior decisions concerning the 19 availability of habeas corpus to challenge conditions of 20 confinement: 21 22 23 24 25 26 27 28 Our holding also clarifies our prior decisions addressing the availability of habeas corpus to challenge the conditions of imprisonment. We have held that a prisoner may seek a writ of habeas corpus under 28 U.S.C. § 2241 for “expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole.” Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir.1989) (citing McCollum v. Miller, 695 F.2d 1044, 1047 (7th Cir.1982)). Bostic does not hold that habeas corpus jurisdiction is always available to seek the expungement of a prison disciplinary record. Instead, a writ of habeas corpus is proper only where expungement is “likely to accelerate the prisoner's eligibility for 10 1 parole.” Bostic, 884 F.2d at 1269 (emphasis added). In Bostic, we cited the Seventh Circuit's decision in McCollum which presumed that where a disciplinary infraction might delay a prisoner's release on parole, the prisoner may, “by analogy to Preiser,” challenge the disciplinary sentence through habeas corpus. McCollum, 695 F.2d at 1047. Bostic thus holds that the likelihood of the effect on the overall length of the prisoner's sentence from a successful § 1983 action determines the availability of habeas corpus. Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir.1997) (finding “no difficulty in concluding that a challenge to the procedures used in the denial of parole necessarily implicates the validity of the denial of parole and, therefore, the prisoner's continuing confinement”) (emphasis added). 2 3 4 5 6 7 8 9 Ramirez v. Galaza, 334 F.3d at 858. 10 B. Analysis 11 Allegations in the petition and attached documentation 12 reflect that Petitioner claimed that he lost thirty days of 13 credits. (Pet. 14, 37.) However, Respondent submitted with the 14 motion to dismiss a copy of a rules violation report and 15 chronological history reflecting that the thirty days of credit 16 were restored. (Mot., Ex. 1 [doc. 14-1], 2; Ex. 2 [doc. 14-1], 17 6.) 18 In the opposition to the motion, Petitioner does not dispute 19 that the credits were restored. However, he states under penalty 20 of perjury that he is serving a life sentence, and both good 21 institutional behavior and serious misconduct are factors 22 relevant to a determination of whether Petitioner is suitable for 23 parole. (Opp., doc. 15, 2.) Petitioner states generally that 24 the finding “will be used as a reason to deny parole for three to 25 fifteen years,” and its effect will be “enormous.” (Opp., 2-3.) 26 However, Petitioner provides no additional or specific facts in 27 support of this assertion. 28 11 1 The Court will consider in the context of Petitioner’s 2 overall sentence the nature and sufficiency of any nexus between 3 the disciplinary finding and the length of Petitioner’s 4 imprisonment, and the Court will assess the likelihood that 5 expungement of the finding would accelerate Petitioner’s release. 6 First, it has not been shown that expungement of the 7 challenged disciplinary findings would be likely to accelerate 8 Petitioner’s eligibility for parole. 9 any facts concerning the likelihood of his being released on Petitioner has not alleged 10 parole or the relationship between the disciplinary finding and 11 the likelihood of release on parole. 12 are multiple other factors bearing upon Petitioner’ suitability 13 for parole. 14 Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004), where 15 prisoners’ claims solely for equitable relief concerning the 16 constitutional propriety of less frequent parole reviews were 17 held to be cognizable pursuant to § 2254 because if successful, 18 the claims “could potentially affect the duration of their 19 confinement.” 20 parole or eligibility for parole. 21 It is probable that there This is not a situation analogous to that present in In contrast, the instant case does not involve Further, because the time credit forfeited by Petitioner has 22 been restored, Petitioner’s claim concerning the invalidity of 23 the disciplinary procedures does not directly or necessarily 24 affect the fact or duration of his custody. 25 is analogous to that in Ramirez v. Galaza because once the 26 forfeited credit was restored, Petitioner’s claim no longer 27 necessarily affected the duration of his confinement or bore the 28 same relationship to his release. 12 Petitioner’s claim 1 In summary, in the present case there is an absence of any 2 special circumstances requiring the availability of the habeas 3 remedy to preserve Petitioner’s access to habeas relief. 4 Further, there is no factual basis for connecting release on, or 5 eligibility for, parole with the findings concerning Petitioner’s 6 disciplinary misconduct. 7 the findings having any other effect on the fact or duration of 8 confinement to bring the present petition within the scope of 9 habeas corpus. There is an insufficient likelihood of The Court concludes that Petitioner’s claim has 10 not been shown to have a sufficient nexus to the length of 11 imprisonment so as to implicate the “core” challenges identified 12 by the Court in Preiser v. Rodriguez, 411 U.S. 475. 13 Accordingly, the Court concludes that in the present case, 14 the nexus between the claim and the length of imprisonment is 15 insufficient to confer habeas jurisdiction on this Court. 16 will be recommended that the petition be dismissed for failure to 17 state a claim cognizable in a petition pursuant to 28 U.S.C. § 18 2254. It 19 V. 20 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 21 appealability, an appeal may not be taken to the Court of Appeals 22 from the final order in a habeas proceeding in which the 23 detention complained of arises out of process issued by a state 24 court. 25 U.S. 322, 336 (2003). 26 only if the applicant makes a substantial showing of the denial 27 of a constitutional right. 28 petitioner must show that reasonable jurists could debate whether 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). 13 Under this standard, a 1 the petition should have been resolved in a different manner or 2 that the issues presented were adequate to deserve encouragement 3 to proceed further. 4 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 5 certificate should issue if the Petitioner shows that jurists of 6 reason would find it debatable whether the petition states a 7 valid claim of the denial of a constitutional right and that 8 jurists of reason would find it debatable whether the district 9 court was correct in any procedural ruling. Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, 10 529 U.S. 473, 483-84 (2000). 11 conducts an overview of the claims in the habeas petition, 12 generally assesses their merits, and determines whether the 13 resolution was debatable among jurists of reason or wrong. 14 It is necessary for an applicant to show more than an absence of 15 frivolity or the existence of mere good faith; however, it is not 16 necessary for an applicant to show that the appeal will succeed. 17 Miller-El v. Cockrell, 537 U.S. at 338. In determining this issue, a court 18 A district court must issue or deny a certificate of 19 appealability when it enters a final order adverse to the 20 applicant. Id. 21 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 22 debate whether the petition should have been resolved in a 23 different manner. 24 of the denial of a constitutional right. 25 recommended that the Court decline to issue a certificate of 26 appeal ability. 27 /// 28 /// Petitioner has not made a substantial showing 14 Accordingly, it will be 1 VI. 2 In accordance with the foregoing analysis, it is RECOMMENDED 3 that: 4 5 1) Respondent’s motion to dismiss the petition for failure to state a claim cognizable in habeas corpus be GRANTED; and 6 7 2) The Court DECLINE to issue a certificate of appealability; and 8 9 10 Recommendation 3) The Clerk be DIRECTED to forward to Petitioner a blank form complaint for civil rights claims brought pursuant to 42 U.S.C. § 1983; and 11 4) The Clerk be DIRECTED to close the action. 12 These findings and recommendations are submitted to the 13 United States District Court Judge assigned to the case, pursuant 14 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 15 the Local Rules of Practice for the United States District Court, 16 Eastern District of California. 17 being served with a copy, any party may file written objections 18 with the Court and serve a copy on all parties. Such a document 19 should be captioned “Objections to Magistrate Judge’s Findings 20 and Recommendations.” 21 and filed within fourteen (14) days (plus three (3) days if 22 served by mail) after service of the objections. 23 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 24 636 (b)(1)(C). 25 objections within the specified time may waive the right to 26 /// 27 /// 28 /// Within thirty (30) days after Replies to the objections shall be served The Court will The parties are advised that failure to file 15 1 appeal the District Court’s order. 2 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d 3 4 IT IS SO ORDERED. 5 Dated: ie14hj February 3, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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