(PC) Harris v. Pimentel, et al., No. 1:2013cv01354 - Document 33 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS to: (1) Deny Defendant's Motion to Strike First Amended Complaint 16 ; (2) Grant in Part and Deny in Part Defendant's Motion to Dismiss 16 ; (3) Grant Defendant's Motion to Strike Surreply 28 ; and (4) Deny Plaintiff's Request for Judicial Notice 20 , signed by Magistrate Judge Michael J. Seng on 2/9/15. Referred to Judge O'Neill; 14-Day Deadline. (Verduzco, M)
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(PC) Harris v. Pimentel, et al. Doc. 33 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARRELL HARRIS, 12 Plaintiff, 13 14 v. R. PIMENTEL, et al., 15 Case No. 1:13-cv-01354-LJO-MJS (PC) FINDINGS AND RECOMMENDATIONS TO: (1) DENY DEFENDANT’S MOTION TO STRIKE FIRST AMENDED COMPLAINT (ECF No. 16); Defendants. (2) GRANT IN PART AND DENY IN PART DEFENDANT’S MOTION TO DISMISS (ECF No. 16); 16 17 (3) GRANT DEFENDANT’S MOTION TO STRIKE SURREPLY (ECF No. 28) AND 18 19 (4) DENY PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE (ECF No. 20) 20 FOURTEEN (14) DAY OBJECTION DEADLINE 21 22 23 I. PROCEDURAL HISTORY 24 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 25 rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 7 & 9.) This matter 26 proceeds against Defendant Escamilla on Plaintiff’s First Amendment free exercise, 27 Fourteenth Amendment equal protection, and RLUIPA claims for damages. (ECF No. 28 10.) Dockets.Justia.com 1 Defendant moved to strike Plaintiff’s first amended complaint on the ground it 2 consists of sham allegations, and also moved to dismiss on the ground that the first 3 amended complaint failed to state a claim. (ECF No. 16.) Plaintiff filed an opposition and 4 a request for judicial notice. (ECF No. 20.) Defendant filed a reply (ECF No. 24) and 5 objections to the request for judicial notice and the evidence and arguments submitted 6 with Plaintiff’s opposition (ECF No. 25). Plaintiff then filed a surreply (ECF No. 26), and 7 a reply to Defendant’s objections (ECF No. 27). 8 Defendant moved to strike Plaintiff’s surreply and objections. (ECF No. 28.) 9 Plaintiff opposed the motion (ECF No. 30), and Defendant replied (ECF No. 31). 10 These matters are deemed submitted pursuant to Local Rule 230(l). 11 II. REQUEST FOR JUDICIAL NOTICE AND OBJECTIONS 12 Plaintiff asks the Court to take judicial notice of purported filings in unrelated 13 state court proceedings. (ECF No. 20.) Defendant objects to the request, as well as to 14 new allegations submitted by Plaintiff in opposition to the motion to strike and motion to 15 dismiss. (ECF No. 25.) The Court has not considered the disputed evidence or 16 allegations in these findings and recommendations. Accordingly, Plaintiff’s request for 17 judicial notice (ECF No. 20) should be denied as unnecessary. Defendant’s objections 18 will not be addressed. 19 III. MOTION TO STRIKE SURREPLY 20 Defendant moves to strike Plaintiff’s surreply to the motion to strike and motion to 21 dismiss. (ECF No. 28.) 22 Absent leave of court, no briefing on Defendant’s motions is permitted beyond 23 the opposition and reply. The Court did not grant Plaintiff leave to file a surreply and 24 does not desire any further briefing on the motions. The surreply has not been 25 considered in these findings and recommendations. 26 Accordingly, Defendant’s motion to strike Plaintiff’s surreply should be granted, 27 and Plaintiff’s surreply should be stricken from the record. 28 2 1 IV. MOTION TO STRIKE FIRST AMENDED COMPLAINT 2 A. 3 Defendant argues that the first amended complaint consists of “sham allegations” No Authority to Strike Complaint 4 and therefore should be stricken. (ECF No. 16 at 2.) 5 Defendant’s argument that the Court has the authority to strike false or sham 6 pleadings is not good law. PAE Gov’t Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 859 (9th 7 Cir. 2007) (“The district court has no free-standing authority to strike pleadings simply 8 because it believes that a party has taken inconsistent positions in the litigation.”). 9 Indeed, this proposition has not been good law since 1983. See id. at 859 n.3. The 10 primary case relied on by Defendant, Ellingsworth v. Burlington N., Inc., 653 F.2d 1327 11 (9th Cir. 1981), has been superseded by changes to the Federal Rules of Civil 12 Procedure. See PAE Gov’t Servs, Inc., 514 F.3d at 859 n.3. The other case relied on by 13 Defendant, Bradley v. Chiron Corp., 136 F.3d 1317 (Fed. Cir. 1998), has been flatly 14 rejected in this jurisdiction. PAE Gov’t Servs, Inc., 514 F.3d at 859 n.4. 15 Defendant presents no lawful basis to strike Plaintiff’s complaint, and 16 accordingly, the motion to strike should be denied. 17 B. No Basis to Strike Specific Allegations 18 Although not artfully pled, Defendant’s motion may be read to request that only 19 specific allegations in the complaint be stricken. 20 21 1. Legal Standard At the screening stage and on a motion to dismiss, the Court must accept the 22 factual allegations of the complaint as true and draw all reasonable inferences in favor 23 of the non-moving party. Daniels-Hall v. Natl. Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 24 2010). Additionally, pro se litigants are entitled to have their pleadings liberally 25 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 26 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); 27 Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 28 342 (9th Cir. 2010). At the same time, however, the Court is not required to accept as 3 1 true allegations that are contradicted by documents attached to the complaint. Roth v. 2 Garcia Marquez, 942 F.2d 617, 625 n.1 (9th Cir. 1991.) 3 4 2. Plaintiff’s Allegations Plaintiff’s first amended complaint alleges that Defendant searched Plaintiff’s cell 5 when Plaintiff was not present. When Plaintiff returned to his cell, he found his Quran 6 had been kicked under his bed and defiled by a boot mark. Plaintiff’s cell mate told him 7 that Defendant was responsible, did not leave a cell search slip, and called Plaintiff a 8 “Black Muslim” and “terrorist” during the search. (ECF No. 9.) 9 10 3. Analysis Defendant argues that the allegations that Defendant stepped on Plaintiff’s 11 Quran and called Plaintiff derogatory names are contradicted by documents attached to 12 the complaint, specifically, 602 administrative complaints that do not mention these 13 allegations. This is an omission, not a contradiction. It may be offered on the issue of 14 credibility at an appropriate time. At present, however, it shows, at most, a possibility 15 that Plaintiff failed to properly exhaust these complaints, an argument Defendant has 16 not raised in this motion. 17 Defendant also argues that the allegation that Defendant called Plaintiff names 18 should be disregarded because it was not included in Plaintiff’s original complaint. 19 However, if the Court were required to consider only those factual allegations stated in 20 the original complaint, leave to amend would serve no useful purpose. The Court views 21 this change as an addition of factual material relevant to Plaintiff’s previously stated 22 claims, not as a contradiction. 23 Defendant also argues this allegation should be disregarded because the 24 derogatory names were heard by Plaintiff’s cell mate, rather than Plaintiff himself. To 25 the extent this argument attacks the credibility of the claim, the Court is required to 26 accept the allegations of the complaint as true at this stage of the proceedings. In any 27 event the statement attributed to Defendant could have the actionable adverse effect 28 alleged here even if received by Plaintiff second hand. 4 1 Finally, Defendant argues that the allegation that Plaintiff was not provided a cell 2 search slip is contradicted by the attachment of a cell search slip to the complaint. 3 However, as Defendant concedes (ECF No.16-1 at 9 n.3), Plaintiff’s complaint and the 4 attached exhibits indicate that Plaintiff complained that Defendant did not immediately 5 provide a cell search slip, and instead provided the slip 24 hours later. Defendant 6 cannot pick and choose portions of the allegations and attached exhibits in order to 7 create a contradiction. The Court finds no contradiction that would warrant disregarding 8 this allegation. 9 Based on the foregoing, the Court finds that Defendant has not provided a basis 10 for striking the complaint or any of its allegations. Defendant’s motion to strike should be 11 denied. 12 V. MOTION TO DISMISS 13 A. 14 A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency Legal Standard 15 of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the 16 absence of sufficient facts alleged under a cognizable legal theory. Conservation Force 17 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). In resolving a 12(b)(6) motion, a 18 court’s review is generally limited to the operative pleading. Daniels-Hall, 629 F.3d at 19 998. 20 To survive a motion to dismiss, a complaint must contain sufficient factual matter, 21 accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 22 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 23 (2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Serv., 572 F.3d 24 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw 25 all reasonable inferences in favor of the non-moving party. Daniels-Hall, 629 F.3d at 26 998. Pro se litigants are entitled to have their pleadings liberally construed and to have 27 any doubt resolved in their favor. Wilhelm, 680 F.3d at 1121. 28 5 1 B. Official Capacity Claims 2 Plaintiff’s complaint names Defendant in his official and individual capacities. 3 (ECF No. 9 at 1.) The Court’s screening order did not address whether Plaintiff could 4 proceed against Defendant in his official capacity. (ECF No. 10.) Defendant argues that 5 claims against him in his official capacity are barred by the Eleventh Amendment and 6 must be dismissed. (ECF No. 16 at 5.) Plaintiff concedes that his official capacity claims 7 are barred. (ECF No. 20 at 28.) 8 Plaintiff may not seek money damages against Defendant in his official capacity. 9 Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989); see also Aholelei v. Dep’t 10 of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). And, although 11 he may seek prospective relief, Will, 491 U.S. at n.10; see also Wolfson v. Brammer, 12 616 F.3d 1045, 1065-66 (9th Cir. 2010), his claim for injunctive relief was dismissed as 13 moot. (ECF No. 10.) 14 Accordingly, Plaintiff’s claims against Defendant in his official capacity should be 15 dismissed. 16 C. RLUIPA 17 Defendant moves to dismiss Plaintiff’s RLUIPA claim based on the Ninth Circuit’s 18 recent decision in Wood v. Yordy, 753 F.3d 899, 902-04 (9th Cir. 2014). (ECF No. 16 at 19 5-6.) Plaintiff argues that Wood is distinguishable because it involved a motion for 20 summary judgment, rather than a motion to dismiss. (ECF No. 20 at 15.) 21 The Court’s screening order allowed Plaintiff to pursue damages against 22 Defendant in his individual capacity under RLUIPA, noting that the question of whether 23 money damages are available against state actors in their individual capacities under 24 RLUIPA was an open question in the Ninth Circuit. (ECF No. 10 at 5.) Since that time, 25 the Ninth Circuit has concluded that RLUIPA does not permit suits against government 26 employees in their individual capacities. Wood, 753 F.3d at 902-04. Neither does it 27 permit suits for money damages against government employees in their official 28 capacities. Sossamon v. Texas, 131 S. Ct. 1651, 1660 (2011). Accordingly, only official 6 1 capacity suits seeking prospective relief are permitted. As noted above, Plaintiff’s suit 2 seeks only money damages. Plaintiff’s argument that Wood is distinguishable is 3 misplaced. His allegations fail to state a RLUIPA claim and this claim should be 4 dismissed. 5 6 7 D. Free Exercise Claim 1. Legal Standard – Free Exercise “Inmates clearly retain protections afforded by the First Amendment, including its 8 directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of 9 Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). The protections of the Free 10 Exercise Clause are triggered when prison officials substantially burden the practice of 11 an inmate’s religion by preventing him from engaging in conduct which he sincerely 12 believes is consistent with his faith. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 13 2008). Prisoners are not required to “objectively show that a central tenet of [their] faith 14 is burdened” in order to raise a viable free exercise claim. Id. at 884. 15 16 2. Parties’ Arguments Defendant argues that Plaintiff’s allegations are insufficient to state a Free 17 Exercise claim because Plaintiff did not allege a substantial enough burden on his ability 18 to exercise his sincerely held religious beliefs. (ECF No. 16-1 at 7.) According to 19 Defendant, “[m]oving, touching, or putting religious items of inmates on the floor during 20 a cell search simply does not constitute a violation of the Free Exercise clause.” (Id.) 21 Additionally, Defendant argues that the duration of Defendant’s alleged conduct was too 22 short to constitute a violation. (ECF No. 16-1 at 8.) 23 Plaintiff argues that the desecration of his Quran, which led to his being unable to 24 practice his religion until it was replaced, constituted a substantial burden. 25 26 2. Prior Screening Order The Court’s prior screening order (ECF No. 10) concluded that the allegations 27 that Defendant searched Plaintiff’s cell, removed his Quran from its cover, examined it, 28 threw it on the floor, and stepped on it rendering it unusable for worship were sufficient 7 1 at the screening stage to show Defendant substantially burdened Plaintiff’s religious 2 practice. 3 To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient 4 factual matter, accepted as true, to state a claim to relief that is plausible on its face. 5 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); Moss, 572 F.3d at 969. This 6 is the same standard the Court applies in screening a prisoner’s complaint to determine 7 whether it states a cognizable claim. Indeed, it is the very standard the Court applied in 8 evaluating Plaintiff’s complaint, and which lead to the Court’s conclusion that the 9 complaint stated cognizable claims. That is, the Court found that Plaintiff alleged claims 10 which, when accepted as true for pleading purposes, would survive a Rule 12(b)(6) 11 motion. 12 Nothing has since changed. 13 Nevertheless, Defendant argues that the very pleading which this Court found 14 stated a cognizable claim does not state a cognizable claim and should be dismissed 15 pursuant to Rule 12(b)(6). The Court would prefer not to duplicate its efforts and explain 16 again why it reached the conclusions it did on screening, but the present motion to 17 dismiss effectively asks it to do so. Accordingly, the Court will herein address the 18 substantive issues presented by Defendant's motion. 19 20 3. Analysis Defendant seemingly argues that placing religious items on the floor cannot, as a 21 matter of law, constitute a substantial burden on the free exercise of religion. (ECF No. 22 16-1 at 6-8.) In support, Defendant cites two unpublished District Court cases, neither of 23 which is on point. In the first of these, Robinson v. Roper, No. CV 06-3817-TJH (PJW), 24 2010 WL 1407851, at *3 (E.D. Cal. Feb. 17, 2010), the plaintiff argued that the 25 desecration of his religious materials by placing them on the floor substantially 26 burdened his ability to practice his religion. The Court held that plaintiff failed to meet his 27 evidentiary burden on a motion for summary judgment because he failed to present 28 admissible evidence that his religious practice was substantially burdened. Id. Nothing 8 1 in Robinson stands for the proposition that placing religious items on the floor fails to 2 state a Free Exercise claim as a matter of law. 3 In the second case cited by Defendant, Hensley v. Kampshaefer, No. 3:07CV- 4 616-H, 2009 WL 69074, *1 (W.D. Ky. 2009), the plaintiff also claimed that his religious 5 items were desecrated by tossing them on the floor. As in Robinson, the Court 6 concluded that the plaintiff failed to meet his evidentiary burden on a motion for 7 summary judgment because he “fail[ed] to offer proof that any of the items or property 8 . . . were essential to the practice of his religion” and “fail[ed] to offer proof that 9 Defendant’s alleged conduct prevented him from practicing his religion.” Id. at *3. The 10 Court did not hold that the allegations failed to state a claim. 11 Defendant also argues that any burden of Plaintiff’s Free Exercise was too short 12 to constitute a First Amendment violation because his Quran was replaced. In support, 13 he cites Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998), another case decided 14 at the summary judgment stage. There, the defendant’s preaching and espousal of 15 religious views interrupted the plaintiff’s ability to pray on several occasions over a three 16 month period. Id. at 1211. The Court concluded that the intrusions were “relatively short17 term and sporadic,” and therefore did not constitute a substantial interference. Id. at 18 1215. In contrast, here, Plaintiff alleges his ability to practice his faith was burdened 19 over a continuous period until the Quran was replaced. The complaint does not specify 20 the length of the deprivation, although Plaintiff’s opposition states that it was for one 21 week. Regardless, Plaintiff’s allegations differ from the intermittent intrusions alleged in 22 Canell. 23 Plaintiff may well be unable to prove that the desecration of his Quran 24 substantially burdened the exercise of his religious beliefs. However, that is not his 25 burden at this stage of the proceedings. He must only allege facts that, when accepted 26 as true, state a claim for relief. He has done so. Defendant’s motion to dismiss Plaintiff’s 27 Free Exercise claim should be denied. 28 9 1 2 3 E. Equal Protection Claim 1. Legal Standard The Equal Protection Clause requires that persons who are similarly situated be 4 treated alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 5 (1985). An equal protection claim may be established by showing that the defendant 6 intentionally discriminated against the plaintiff based on the plaintiff's membership in a 7 protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of 8 Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals 9 were intentionally treated differently without a rational relationship to a legitimate state 10 purpose, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Lazy Y 11 Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of 12 Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 13 Race constitutes a protected class. Graham v. Richardson, 403 U.S. 365, 371 14 (1971). To allege a religious discrimination claim, a plaintiff must allege facts sufficient 15 to support the claim that prison officials intentionally discriminated against him on the 16 basis of his religion by failing to provide him a reasonable opportunity to pursue his faith 17 compared to other similarly situated religious groups. Cruz v. Beto, 405 U.S. 319, 32118 22 (1972) (per curiam). 19 20 2. Parties Arguments Defendant argues that Plaintiff fails to state an equal protection claim because he 21 did not allege facts to demonstrate he was treated differently than other similarly 22 situated inmates based on an impermissible motivation. (ECF No. 16-1 at 8-10.) 23 Defendant asserts that exhibits attached to the first amended complaint show a 24 legitimate penological interest for the search of Plaintiff’s cell. He further argues that 25 derogatory remarks regarding race or religion, standing alone, do not constitute an 26 equal protection claim and, in any event, Plaintiff did not hear the alleged remarks. 27 Additionally, intentional destruction of Plaintiff’s Quran would not constitute a Fourteenth 28 Amendment due process violation. 10 1 Plaintiff maintains that he has stated a claim for the reasons articulated in the 2 Court’s screening order. (ECF No. 20 at 40-41.) 3 4 3. Prior Screening Order The Court’s prior screening order found that Plaintiff stated a cognizable Equal 5 Protection claim based on the allegations that Defendant had used the words “Black 6 Muslim” and “terrorist” during the cell search and did not immediately provide a cell 7 search slip. (ECF No. 10.) The Court noted that the lack of a cell search slip suggested 8 the search was not routine, and the use of pejorative language suggested improper 9 motivation. The Court concluded that these allegations were sufficient to claim that the 10 search and desecration of Plaintiff’s Quran were conducted with the intent to 11 discriminate based on Plaintiff’s protected status as a Black Muslim. 12 As above, nothing has changed with regard to this issue either. 13 Thus, again, the Court would far prefer to spend its time productively addressing 14 the multitude of cases before it, and not have to duplicate its prior analysis, but will here 15 once again address the substantive issues presented by Defendant's motion to ensure 16 this single order addresses all issues raised. 17 18 4. Analysis Defendant claims that Plaintiff failed to allege facts to show an impermissible, 19 discriminatory motive. However, as the Court previously concluded, the use of 20 pejorative language during the search is sufficient to suggest improper motive. While 21 use of the offending words does not itself state an Equal Protection claim, Freeman v. 22 Arpaio, 125 F.3d 732, 737 (9th Cir. 1997) (citation omitted), the abusive language 23 nevertheless suggests that the accompanying conduct may have been motivated by 24 discriminatory intent. Because the remarks speak to Defendant’s intent, that Plaintiff did 25 not hear them is irrelevant. 26 Defendant next argues that documents attached to the complaint establish that 27 there was a legitimate penological interest for searching Plaintiff’s cell. However, to the 28 extent Plaintiff’s claims are based on racial discrimination, any legitimate penological 11 1 interests are irrelevant to his claim. See Johnson v. California, 543 U.S. 499, 510 2 (2005). The deferential standard of review that allows the Court to consider whether the 3 actions of prison officials are reasonably related to legitimate penological interests does 4 not apply to classifications based on race; such classifications remain subject to strict 5 scrutiny. Id. Plaintiff’s claim that he was subject to discrimination on the basis of his 6 being a Black Muslim cannot be justified by legitimate penological interests. 7 Nevertheless, discrimination based on religion is permissible to the extent it is 8 “reasonably related to legitimate penological interests.” Shakur, 514 F.3d 891 (citing 9 Turner v. Safley, 482 U.S. 78 (1987)). Defendant argues that there were legitimate 10 penological reasons for searching Plaintiff’s cell, and points out that the cell search slip 11 notes items of contraband found in Plaintiff’s cell. Plaintiff argues, however, that he 12 possessed no contraband. Whether Plaintiff possessed contraband, and thus whether 13 there were legitimate penological reasons for searching his cell, is a factual dispute that 14 cannot be resolved at this stage of the proceedings. 15 Finally, the Court is unable to discern the import of Defendant’s argument that 16 the deprivation of Plaintiff’s Quran does not constitute a Fourteenth Amendment 17 violation because he had a post-deprivation remedy. This consideration is applicable to 18 the analysis of alleged Due Process violations. However, if Plaintiff intentionally was 19 treated differently than other similarly situated inmates based on his race and/or 20 religion, it is of no moment that he had a post-deprivation remedy for any Due Process 21 violation associated with the desecration of his Quran. 22 Plaintiff’ allegations state a cognizable Equal Protection claim. Defendant’s 23 motion to dismiss this claim should be denied. 24 VI. CONCLUSION AND RECOMMENDATION 25 Defendant has provided no legal basis to strike Plaintiff’s first amended 26 complaint. Accordingly, it is recommended that the motion to strike (ECF No. 16) be 27 denied. 28 12 It is recommended that Defendant’s motion to dismiss Plaintiff’s official capacity 1 2 and RLUIPA claims be granted because Plaintiff’s allegations fail to state a claim. (ECF 3 No. 16.) However, in all other respects, the motion to dismiss should be denied. Finally, it is recommended that Plaintiff’s request for judicial notice (ECF No. 20) 4 5 be denied as unnecessary, that Defendant’s motion to strike Plaintiff’s surreply (ECF 6 No. 28) be granted, and that Plaintiff’s surreply (ECF No. 47) be stricken from the 7 record. These findings and recommendations will be submitted to the United States 8 9 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 10 636(b)(1). Within fourteen (14) days after being served with the findings and 11 recommendations, the parties may file written objections with the Court. The document 12 should be captioned “Objections to Magistrate Judge’s Findings and 13 Recommendations.” A party may respond to another party’s objections by filing a 14 response within fourteen (14) days after being served with a copy of that party’s 15 objections. The parties are advised that failure to file objections within the specified time 16 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 17 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 20 21 IT IS SO ORDERED. Dated: February 9, 2015 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 13
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