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PLAYER v. WOODFORD

United States District Court, S.D. California


October 19, 2005.

MARCUS PLAYER, Plaintiff,
v.
JEANNE WOODFORD, et al., Defendants.

The opinion of the court was delivered by: WILLIAM McCURINE, JR., Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE (1) DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION; AND (2) DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER
I. INTRODUCTION
On July 17, 2005, Marcus Player ("Plaintiff" or "Player"), a state prisoner at Calipatria State Prison proceeding pro se, filed two motions against various employees of the California Department of Corrections (collectively, "Defendants"): (1) a Motion for Protective Order ("Mot. for Protective Order"); and (2) a Motion for Temporary Restraining Order and Preliminary Injunction ("Mot. for TRO"). Defendant K.W. Prunty filed an answer to Plaintiff's First Amended Complaint ("Prunty's Answer"), and an Opposition to Plaintiff's motions ("Prunty's Opposition") on August 9, 2005. No other defendants have filed responses.*fn1 This Report and Recommendation is submitted to United Stated District Judge Larry A. Burns pursuant to 28 U.S.C. § 636(b)(1)(B). After reviewing Plaintiff's First Amended Complaint, Motion for Temporary Restraining Order and Preliminary Injunction, declarations, and the exhibits attached therewith, and Prunty's Answer and Opposition, for the reasons set forth below, the Court recommends that Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction be DENIED.

II. BACKGROUND

  Plaintiff filed a civil rights complaint under the Civil Rights Act, 42 U.S.C. § 1983, on August 31, 2004. (Doc. No. 1.) The Complaint was amended on December 14, 2004 to cure the deficiencies in the original complaint. (Doc. No. 5) The First Amended Complaint, summonses, and waiver of service forms were mailed to each Defendant on March 28, 2005. (Prunty's Opp'n at 2-3.) However, only Prunty has been served, and the 120-day time limit for serving Defendants has expired. FED. R. CIV. P. 4(m).

  The First Amended Complaint alleges that Plaintiff's civil rights were violated when, as a result of filing an administrative grievance in 1995, he was moved to the CAL-IV Administrative Segregation Unit and received a false Rules Violation Report ("RVR"). (First Amend. Compl. at 3.) Plaintiff contends that Defendants collectively conspired to find him guilty of a false rules violation which was later dismissed by the California Court of Appeals. (Mot. for TRO at 2.) In granting Plaintiff's petition for writ of habeas corpus, the appellate court ordered the confidential documents related to the RVR be removed from Plaintiff's file. (Decl. in Support of Temp. Restraining Order and Preliminary Injunction (hereinafter "Decl. in Support of TRO"), Ex. G at 18.)

  In the instant motions related to the First Amended Complaint, Plaintiff contends that the Department of Corrections has violated his rights by the insertion and retention of false confidential reports in his file. (Decl. in Support of TRO at 5.) Plaintiff now moves for a temporary restraining order and preliminary injunction to prevent Defendants from using confidential information contrary to the policies of the California Department of Corrections ("CDC"). (Mot. for TRO at 1-2.) On August 9, 2005, Prunty filed an answer to the First Amended Complaint and an opposition to Plaintiff's motions. (Prunty's Answer at 1; Prunty's Opp'n at 1.) III. ARGUMENTS

  A. Plaintiff's Arguments

  Plaintiff states that the court must consider four factors in determining whether to grant a preliminary injunction and temporary restraining order: (1) whether the party will suffer irreparable injury, (2) the balance of hardships between the parties, (3) the likelihood of success on the merits, and (4) the public interest. (Mot. for TRO at 3.) Plaintiff contends that he meets all four factors, and, therefore, is entitled to relief. (Id. at 3-4.)

  B. Defendants' Arguments

  Prunty opposes Plaintiff's motions on several grounds. Prunty first claims that personal jurisdiction has not been established over all Defendants because Prunty is the only defendant who has been served, the time within which Defendants must be served has expired, and key documents were omitted from the motion served on Prunty. (Prunty's Opp'n at 3-4.) As personal jurisdiction has not been established over Defendants, Prunty argues that under Zepeda v. U.S.I.N.S., 753 F.2d 719 (9th Cir. 1983), Plaintiff's motion must be denied regardless of whether Plaintiff can establish the requirements for his requested relief. (Id. at 4.)

  Additionally, Prunty argues that Plaintiff's motion fails on the merits and does not establish the required elements for a grant of equitable relief. (Id. at 4-9.) Plaintiff should be limited to the legal remedy of damages because such relief is sufficient to address the claims he presents. (Id. at 10.) Therefore, Prunty contends that Plaintiff's motion should be denied. (Id.)

  IV. LEGAL STANDARDS

  A. Jurisdiction

  A federal court may only issue injunctions when it has personal jurisdiction over the parties, and subject matter jurisdiction over the claims. Zepeda, 753 F.2d at 727. Subject matter jurisdiction refers to the classes of cases that fall under the court's authority, while personal jurisdiction deals with the persons over whom the court has adjudicatory authority. Kontrick v. Ryan, 540 U.S. 443, 455 (2004).

  Federal question jurisdiction provides federal courts with subject matter jurisdiction over civil claims based on the Constitution, laws, or treatises of the United States. 28 U.S.C. § 1331 (West 2005). As provided in California Rules of Civil Procedure § 410.5(a) a court has jurisdiction over a party from the time the summons is served on him. CAL.R.CIV.P. § 410.5(a).*fn2 A general appearance by a party is akin to personal service of summons. Id.

  Rule 4 of the Federal Rules of Civil Procedure discusses the summons process. Specifically, Rule 4(m) states if the summons and complaint are not served on a defendant within 120 days of filing the complaint, the court may dismiss the action without prejudice against that defendant. FED. R. CIV. P. 4(m). The court may extend the time for service if the plaintiff shows good cause for failure to serve defendants within the set time period. Id.

  B. Injunctions

  Injunctions are covered by Rule 65 of the Federal Rules of Civil Procedure. FED. R. CIV. P. 65. Specifically, preliminary injunctions are discussed in Rule 65(a), while Rule 65(b) governs the use of temporary restraining orders, detailing the circumstances under which such relief may be granted. FED. R. CIV. P. 65(a), (b). Subsection (d) indicates the necessary form and scope for an injunction or restraining order. FED. R. CIV. P. 65(d). Injunctions should be issued only to protect against irreparable injury: "the basis for injunctive relief in federal courts has always been irreparable injury and the inadequacy of legal remedies." Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12 (1982). However, preliminary equitable relief requires additional requirements to be met. Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1216-17 (C.D. Cal. 2002). i. Preliminary Injunction

  The Ninth Circuit has recognized two tests to determine whether to grant a preliminary injunction. Earth Island Institute v. U.S. Forest Svc, 351 F.3d 1291, 1297 (9th Cir. 2003). Under the traditional test the plaintiff must establish: (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases). Id. at 1297-98 (citing Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995)). Under the alternate test, a preliminary injunction is granted if the moving party establishes "either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor." Zepeda, 753 F.2d at 727. These two tests, however, represent "extremes of a single continuum," rather than two separate tests. Earth Island Institute, 351 F.3d at 1298. Regardless of which test is used, the moving party must establish, at a minimum, that there is a significant threat of irreparable injury and a fair chance of success on the merits. Cottonwood Christian Center, 218 F.Supp.2d at 1217.

  ii. Temporary Restraining Order

  A temporary restraining order is sought when a plaintiff fears irreparable injury will occur before a hearing regarding a preliminary injunction can be held. Loral Corp. v. Sanders Assoc., Inc., 639 F.Supp. 639, 642 (Del. 1986) (citing C. Wright, A. Miller, Federal Practice and Procedure, 11A Fed. Prac. & Proc. Civ.2d § 2951 (1973)). A plaintiff must establish the same elements required for a preliminary injunction in order for a temporary restraining order to be granted. Cal. Independent System Operator Corp. v. Reliant Energy Svcs, Inc., 181 F. Supp. 3d 1111, 1126 (E.D. Cal. 2001).

  V. DISCUSSION

  A. Court's Jurisdiction

  The initial requirements that must be met for a court to grant injuctive relief or render a judgment are subject matter jurisdiction and personal jurisdiction. Zepeda, 753 F.2d at 727. Prunty concedes this Court's subject matter jurisdiction over the case under 28 U.S.C. § 1343(a)(3) and 42 U.S.C. § 1983. (Prunty's Answer at 1.) Therefore, subject matter jurisdiction has been satisfied.

  Personal jurisdiction is the second initial requirement for a court to have authority over a case. Service of summons is required for personal jurisdiction under Rule 4(e). FED.R.CIV.P.4(e). A personal appearance functions similarly to service of summons. CAL.R.CIV.P. § 410.5(a). In the instant case, the only defendant who has been served as required by Rule 4(e), and over whom the Court has established jurisdiction, is Prunty. CAL. R. CIV. P. § 410.5(a). Therefore, the Court may issue injunctive relief, as Plaintiff requests, against Prunty. However, because the other defendants have not been served or personally appeared, and because the 120 day time limit provided has long passed, the Court cannot grant injunctive relief binding those defendants as it does not have personal jurisdiction over them.*fn3 As such, the First Amended Complaint should be dismissed without prejudice as to the unserved defendants pursuant to Rule 4(m). FED. R. CIV. P. 4(m). The further analysis below regarding Plaintiff's motions applies solely to Defendant Prunty.

  B. Preliminary injunction must be denied

  The factors discussed above in section IV-B are used to determine whether a preliminary injunction should be granted. Plaintiff's motion must be considered in light of those factors. As will be discussed below, Plaintiff does not have a sufficiently strong showing that he is likely to succeed on the merits, and does not establish that he will suffer irreparable injury, that the balance of hardships weighs in his favor, or that the public interest will be served. Therefore, Plaintiff's motion for a preliminary injunction must be denied.

  i. Success on the Merits

  Plaintiff's underlying complaint alleges due process and free speech violations, as well as Eighth and Fourth Amendment violations pursuant to 42 U.S.C. § 1983. Specifically, Plaintiff's First Amended Complaint alleges that his rights were violated by the use and placement of confidential documents in his file. (First Amend. Compl. at 1.) Defendant denies these allegations. (Prunty's Answer at 1-2.) Pursuant to the appellate court's order, the confidential documents must be removed from Plaintiff's file. (Decl. in Support of TRO, Ex. G at 18.)

  In determining whether to grant Plaintiff's request for a preliminary injunction, the Court must examine Plaintiff's chances of succeeding on the merits of his claim. Earth Island Institute, 351 F.3d at 1297-98. At a minimum, Plaintiff must demonstrate "`a fair chance of success on the merits' or `questions . . . serious enough to require litigation.'" Sports Form, Inc. v. United Press Intl., Inc., 686 F.2d 750, 753 (9th Cir. 1982) (citing Benda v. Grand Lodge of the Intl. Assoc. of Machinists and Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978).). To succeed on a claim under 42 U.S.C. § 1983, Plaintiff must demonstrate that (1) the conduct that harms him was committed under color of state law; and (2) the conduct deprives him of a constitutional right. Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir. 1987).

  Plaintiff does not make a showing that he has a fair chance of success on the merits of his 42 U.S.C. § 1983 claim. As the prison officials were acting in their official capacity when Plaintiff alleges that his constitutional rights were violated, those acts would have been committed by prison officials under state authority, satisfying the first requirement for success on the merits. (First Amend. Compl. at 3-4.)

  Although the conduct Plaintiff complains of was committed under color of state law, Plaintiff cannot demonstrate that this conduct deprived him of a constitutional right. Plaintiff alleges that the constitutional rights violated by Defendants were: (1) First Amendment right to free speech; (2) Fourth Amendment right against unreasonable seizure; (3) Fifth Amendment freedom from cruel and unusual punishment; and (4) Fourteenth Amendment right to due process. (Id. at 3.) As discussed below, Plaintiff is unlikely to succeed on the merits of his First and Fourteenth Amendment claims. Plaintiff's chances of success with respect to his Fourth and Fifth Amendment claims cannot be properly evaluated with the limited information provided in the pleadings because the circumstances surrounding the alleged rights violations must be considered.

  a. Free Speech

  Plaintiff's First Amendment right to free speech was not violated. Because of the "institutional need to maintain order", a prisoner's First Amendment rights may be limited to a greater degree than those of ordinary citizens. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). For a prisoner to state a cause of action for a violation of First Amendment rights, "he must do more than allege retaliation because of the exercise of his first amendment rights in bringing and assisting in civil rights litigation; he must also allege that the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." Id. See also Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984). Plaintiff clearly alleges that he was retaliated against for filing a grievance regarding the treatment of African-American prisoners. (First Amend. Compl. at 3.) However, Plaintiff fails to allege how the retaliatory action — his transfer out of the general population — did not further the legitimate goals of the prison. As such, he does not state a cause of action for a violation of his right to freedom of speech.

  b. Unreasonable Seizure

  Plaintiff's claim that his Fourth Amendment right against unreasonable search and seizure was violated is unsupported by the pleadings as written. The Fourth Amendment only prohibits unreasonable seizures; reasonable seizures are permitted. U.S. Const., Amend. IV. Plaintiff does not provide enough detail for the court to examine the reasonableness of his seizure under the circumstances. Although the RVR was subsequently dismissed by the appellate court's grant of habeas corpus, that decision does not make the actions taken in response to the RVR unreasonable. (Decl. in Support of TRO, Ex. G at 18.) Those actions must be evaluated for unreasonableness in consideration of the circumstances, and a more detailed examination of the circumstances must be furnished for the Court to make a determination.

  c. Cruel and Unsual Punishment

  Plaintiff's Fifth Amendment right to freedom from cruel and unusual punishment was not violated. In the context of prisoners, cruel and unusual punishment occurs in three situations: when the punishment would (1) shock the general conscience or be intolerable to fundamental fairness, (2) is greatly disproportionate to the offense for which it is imposed, or (3) goes beyond what is necessary to achieve a legitimate penal aim. Jordan v. Fitzharris, 257 F.Supp. 674, 679 (N.D. Cal. 1966).

  Plaintiff was punished for a being found guilty on an RVR, and moved to a different unit within the prison. Plaintiff does not allege, nor does it appear from the pleadings, that anything in the Administrative Segregation Unit or SHU amounts to cruel and unusual punishment. Plaintiff states that Administrative Segregation was "stern." (First Amend. Compl. at 3.) However, "stern confines" do not amount to a Fifth Amendment violation without more to meet the standards above. See Jordan, 257 F.Supp. 674 (holding that although a prisoner was subject to cruel and unusual punishment by being put in a "strip cell" — an unlit isolation unit within the prison where he had no means to clean himself, and his food was meagerly rationed — the placement of prisoners in special segregation units as punishment did not amount to Fifth Amendment violations). Therefore, Plaintiff's placement in Administrative Segregation did not violate his Fifth Amendment rights. Plaintiff further alleges that the Defendants' actions caused him to be attacked by other inmates and prison officers. (First Amend. Compl. at 5.) He states that the officers "brutalized plaintiff by bending him awkwardly, slamming him against walls and stomping on his feet with boots . . ." (Id.) Whether this supports a claim of cruel and unusual punishment must be further evaluated as there is insufficient information in the record for the Court to make such a determination. As the situations in which cruel and unusual punishment is found to have occurred are determined largely by the circumstances, the Court must know more about the circumstances surrounding these incidents than was provided by Plaintiff's First Amended Complaint.

  d. Due Process

  Plaintiff's Fourteenth Amendment right against deprivation of property or liberty without due process of law was not violated. Plaintiff has failed to allege any deprivation of property or liberty sufficient to invoke the protection of the due process clause. In his First Amended Complaint, Plaintiff contends that his right to due process was violated when he was removed from the prison's general population and placed in Administrative Segregation, and then placed in "the stern confines of the SHU" as a result of a false RVR. (Id. at 3-4.) However, prisoners are deprived of their liberty interest and are subject to the rules of the prison system. Meachum v. Fano, 427 U.S. 215, 224 (1976). The Constitution does not guarantee that a prisoner will be confined to any specific prison, or even to prisons with specific confinement conditions; "[t]he conviction has sufficiently extinguished the defendant's liberty interest to empower the State to confine him in any of its prisons." Id. (emphasis in original). From his First Amended Complaint, Plaintiff's argument that his liberty was violated appears to be based on his removal from the prison's general population and placement in Administrative Segregation and SHU. (First Amend. Compl. at 3.) Because prisoners do not have a liberty interest preventing the State from moving them between prisons and between varying degrees of confinement, Plaintiff has failed to demonstrate that any liberty right has been violated sufficient to implicate the Fourteenth Amendment right to due process.

  ii. Irreparable Injury

  Even if Plaintiff were to demonstrate a likelihood of success on the merits of his claims, he cannot meet the irreparable injury requirement to justify an injunction. The use of injunctions should be limited to instances "when irreparable damage occurs, or is likely to occur, or where the ascertainment thereof is impossible, or nearly so." Caddy-Imler Creations, Inc. v. Caddy, 299 F.2d 79, 84 (9th Cir. 1962). The irreparable harm feared must be imminent; indefinite harm does not suffice. Midgett v. Tri-County Metropolitan Transportation Dist. Of Oregon, 254 F.3d 846, 850-51 (9th Cir. 2001).

  In the instant case, Plaintiff alleges that irreparable damage has occured since confidential documents remain in his file and are used against him, despite a court order to remove them. (Decl. in Support of TRO at 5.) Additionally, he contends that he will suffer irreparably "by the continued insertion of false confidential reports into his files, by the retention of confidential reports in his files . . . and by all the confidential reports in his files that are undisclosed, uninvestigated, untrue and for which [P]laintiff has no remedy to contest." (Id.) Plaintiff further asserts, but does not establish, that the confidential memos were considered by the Board of Prison Terms in denying him parole on August 17, 2004, despite the April 30, 2004 court order to delete the memos from his file. (Mot. for TRO at 3.)

  Plaintiff asks the court to enjoin Defendants from using confidential information against him in the future. (First Amend. Compl. at 7.) To be entitled to an injunction, Plaintiff must show that he faces "a real or immediate threat of substantial or irreparable injury." Midgett, 254 F.3d at 850. The disclosure of confidential information, particularly information ordered to be removed by the appellate court, either in the past to deny Plaintiff parole, or in the future for any reason whatsoever, would likely injure Plaintiff. However, such use, although injurious, would not constitute irreparable harm as Plaintiff cannot establish that such harm is imminent as he is required to do. Id.

  Plaintiff attempts to establish the imminency requirement by contending that he will suffer from the "continued insertion of false confidential reports into his files." (Decl. in Support of TRO at 5.) This allegation does not satisfy the requirement, however, as Plaintiff does not provide any indication or evidence that Defendants will continue to add false confidential documents to his file. Even if Plaintiff's allegations regarding the false confidential documents in his file are taken as true, this harm occurred in the past. (Mot. for TRO at 3.) Specifically, Plaintiff asserts that the past use of the information has harmed him, and alleges that he will suffer irreparably if the documents remain in his file. (Decl. in Support of TRO at 5.) Plaintiff does not specifically detail how he will be irreparably harmed if the documents are not immediately removed from his file. "Courts will not issue injunctions against administrative officers on the mere apprehension that they will not do their duty or follow the law." Waite v. Macy, 246 U.S. 606, 609 (1918). The court should not assume that a government official will violate the law absent a clear showing of intent to do so, as Plaintiff suggests that the court do. First Natl. Bank of Albuquerque v. Albright, 208 U.S. 543, 553 (1908). Therefore, the irreparable harm Plaintiff fears is not imminent. It is merely indefinite harm that cannot form the basis for an injunction. Midgett, 254 F.3d at 850-51.

  iii. Balance of Hardships

  The balance of hardships requirement weighs in Defendant's favor. Plaintiff contends that Defendants have used the confidential memos in his file against him despite the appellate court's order that those memos be removed. (Decl. in Support of TRO at 5.) Neither side has presented any clear evidence that the memos were or were not removed. However, even if the memos were not removed pursuant to the appellate court's order, Defendant indicates that the information regarding Plaintiff's gang affiliation contained in those memos is available in other documents in Plaintiff's file that do not have to be removed. (Prunty's Opp'n at 7.) Thus, the balance of hardships weighs against Plaintiff because the material he alleges was used against him was available in legitimate documents within his file, regardless of whether the confidential RVR memos were removed. (Id.) If Defendants failed to remove the confidential memos discussed in the appellate court's decision, such action would be contrary to the appellate court's order. However, because the information in those documents was still available through other documents in Plaintiff's file, the balance of hardships does not weigh in favor of Plaintiff. This prong of the test does not support granting a preliminary injunction as Plaintiff requests.

  iv. Public Interest

  Although Plaintiff contends that granting the injunction will serve the public interest in ensuring that government officials obey the law, Plaintiff's argument is flawed. (Mot. for TRO at 4.) A federal court is not required to grant an injunction for every violation of the law. Weinberger, 456 U.S. at 313. Although preventing government officials from violating prisoner rights is an important function of the legal system, government officials must be given the ability to perform their duties. As discussed above, courts assume that government officials will perform their duties and abide by the law. Waite, 246 U.S. at 609. Therefore, it is generally in the public interest to allow prison officials to perform their duties without interference by the courts as long as there is no clear intent to break the law. Because federal courts should not be participating in creating administrative rules for prisons, they should also not interfere with the application or enforcement of those administrative rules unless necessary. See Shaw v. Murphy, 532 U.S. 223, 231 (2001) (holding that federal courts should not oversee prison administration, and cannot require that a prison permit correspondence between prisoners absent a finding that a rule prohibiting such communication violates a constitutional right).

  The public interest requirement "primarily addresses impact on non-parties rather than parties." Sammartano v. First Judicial District Court, In and For the County of Carson City, 303 F.3d 959, 974 (9th Cir. 2002). Although Plaintiff aruges that it is "a matter of the highest public interest" for prison officials to obey the law, the facts of the instant case do not impact the public interest. Specifically, Plaintiff asks the court to grant injunctive relief preventing the use of specific documents in his personal file from being used against him. (Mot. for TRO at 1-2.) However, the continued use of these documents as alleged would have no impact on the general public, and a preliminary injunction preventing or limiting their use would not further any public interest. As such, an examination of the public interest does not weigh towards granting a preliminary injunction.

  D. Temporary restraining order must be denied

  Because the requirements to grant a temporary restraining order are the same as those required for a preliminary injunction, Plaintiff's motion for a temporary restraining order must similarly be denied. Cal. Independent System Operator Corp., 181 F. Supp. 3d at 1126.

  VI. CONCLUSION AND RECOMMENDATION

  For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order DENYING Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction because Plaintiff has failed to establish the requirements for this Court to issue such relief against Defendants.

  IT IS FURTHER RECOMMENDED that the unserved Defendants be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) because they were not served within the required 120 days. FED. R. CIV. P. 4(m).

  IT IS ORDERED that no later than November 7, 2005, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." IT IS FURTHER ORDERED that any reply to the objections shall be filed with the court and served on all parties no later than November 21, 2005. The parties are advised that failure to file objections within the specified time may result in waiver of the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); see also Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).

  IT IS SO ORDERED.

20051019

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