United States District Court, S.D. California
October 19, 2005.
MARCUS PLAYER, Plaintiff,
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
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
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.
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
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
IV. LEGAL STANDARDS
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.
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.
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).
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
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
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
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.
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