Opinion
No. CV-19-05665-PHX-DWL (DMF)
08-14-2020
Antony T. Murrell, Jr., Plaintiff, v. City of Phoenix, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
This matter was referred to the undersigned United States Magistrate Judge pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1) (Doc. 26 at 20). This matter is before the Court on Plaintiff's motion to file a Fifth Amended Complaint (Doc. 28); the proposed Fifth Amended Complaint was lodged with the Court (Doc. 29). Because undersigned finds that the amendments in the Fifth Amended Complaint do not cure all of the deficiencies identified by the District Judge (Doc. 26), undersigned is proceedings by report and recommendation.
This Report and Recommendation applies the same legal principles and authorities set forth in the District Judge's Screening and Service Order regarding the Fourth Amended Complaint (Doc. 26), incorporating the legal authorities discussions from the Screening and Service Order without the use of quotations.
I. Procedural History
On September 23, 2019, Plaintiff Antony T. Murrell, Jr., who is confined in the Arizona State Prison Complex-Florence, filed a Complaint in the Superior Court of Arizona in and for Maricopa County against the City of Phoenix, the City of Scottsdale, and the City of Mesa (Doc. 1-3). On November 21, 2019, Defendant City of Mesa filed a Notice of Removal and removed the case to this Court (Doc. 1). Shortly thereafter, Defendant City of Scottsdale and Defendant City of Mesa each filed a Motion to Dismiss for failure to state a claim (Docs. 4, 5). On December 2, 2019, Plaintiff filed a Motion to Amend and lodged a proposed amended complaint (Docs. 6, 7). On December 12, 2019, Defendant City of Phoenix filed a Motion for Screening Order and a Motion to Dismiss for failure to state a claim (Docs. 9, 10). On December 16, 2019, Defendant City of Mesa filed a Response to Plaintiff's Motion to Amend (Doc. 11).
Defendant City of Scottsdale's Motion to Dismiss was originally filed in state court and was filed herein pursuant to Rule 3.6(c) of the Local Rules of Civil Procedure.
In a January 10, 2020 Order, the Court granted Plaintiff's Motion to Amend, directed the Clerk of Court to file the lodged proposed amended complaint, dismissed the First Amended Complaint without prejudice, denied as moot the Motions to Dismiss and Motion for Screening Order, and gave Plaintiff 30 days to file a second amended complaint (Doc. 12). On February 3, 2020, Plaintiff filed a Motion for Extension of Time (Doc. 14). On February 5, 2020, he filed a Motion to Amend and attached a Second Amended Complaint (Docs. 15, 16). In an April 3, 2020 Order, the Court denied the Motion for Extension of Time and Motion to Amend as moot and dismissed the Second Amended Complaint with leave to amend (Doc. 17).
On April 9, 2020, Plaintiff filed a Motion seeking an "Emergency No Retaliation Order" and a Motion to Amend (Docs. 18, 19). He also lodged a proposed Third Amended Complaint (Doc. 20). In a May 15, 2020 Order, the Court denied Plaintiff's Motions, directed the Clerk of Court to file the lodged proposed Third Amended Complaint, and dismissed the Third Amended Complaint with leave to amend (Doc. 21).
On June 1, 2020, Plaintiff filed a Fourth Amended Complaint (Doc. 24). The Court ordered Defendants Erwin and Ullibarri to answer a portion of Count Three of the Fourth Amended Complaint and dismissed the remaining claims and Defendants without prejudice (Doc. 26). Of Plaintiff's four counts in his Fourth Amended Complaint, only Count Three against Defendants Erwin and Ullibarri for allegedly interfering with legal mail sent to Plaintiff by Attorney Martha Barco was allowed to proceed forward (Doc. 26 at 17). Plaintiff has moved for permission to amend his complaint again and has lodged a proposed Fifth Amended Complaint (Docs. 28, 29). II. Statutory Screening of Prisoner Complaints
This section's legal authorities and principles were taken verbatim from Doc. 26 at 2-3, 10.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).
A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.
But as the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] 'must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
To prevail on a § 1983 claim, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994)). In addition, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).
Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.
III. Plaintiff's Lodged Fifth Amended Complaint
Plaintiff's motion to amend states that he is curing his Fourth Amended Complaint defects "[a]s ordered" (Doc. 28). As a first matter, the District Judge did not order Plaintiff to make any amendment of the Fourth Amended Complaint. Rather, the District Judge ordered that Defendants Erwin and Ullibarri answer Count Three regarding the allegations that they interfered with certain legal mail sent to Plaintiff by Attorney Martha Barco and dismissed the remaining claims of the Fourth Amended Complaint for failure to state a claim (Doc. 26).
Plaintiff's proposed Fifth Amended Complaint adds allegations to Counts One, Three, and Four (see Docs. 28, 29).
This section's legal authorities and principles were taken verbatim from Doc. 26 at 11.
Plaintiff states that he amended Count One by adding paragraphs 27 through 31 of the Fifth Amended Complaint, which state that the Mesa police like the police of the "City of Phoenix did not arrest Chenique Scott when" Plaintiff "filed a complaint", the police department failures to arrest and failures to investigate were because the reported events were "Black on Black violence", these "failure caused Chenique Scott to break [Plaintiff's] spine and cause [Plaintiff's] concussion" which resulted in lasting injuries and pain (Doc. 29 at 8; Doc. 28).
The new allegations are redundant and conclusory. Further, they still do not meet the legal standard required for a failure to protect claim. "[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." Deshaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989). Therefore, "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197. There are two exceptions to this rule: the custody exception and the state-created-danger exception. Peete v. Metro. Gov't of Nashville & Davidson Cty., 486 F.3d 217, 223 (6th Cir. 2007). The custody exception "does not apply when a state fails to protect a person who is not in custody." Patel v. Kent School Dist., 648 F.3d 965, 972 (9th Cir. 2011). And the state-created-danger exception only applies when "there is 'affirmative conduct on the part of the state in placing the plaintiff in danger.'" Id. at 974 (quoting Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1086 (9th Cir. 2000)). In other words, where state action "creates or exposes an individual to a danger which he or she would not have otherwise faced." Henry A. v. Willden, 678 F.3d 991, 1002-03 (9th Cir. 2012) (quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061(9th Cir. 2006)).
The allegations in Count One in the Fifth Amended Complaint, like those in the Fourth Amended Complaint, are insufficient to state a claim against the City of Mesa or the City of Phoenix based on an unconstitutional policy of inaction in the face of "black on black" violence. This alleged policy would only give rise to a due process claim if the injured party was either in custody or had been exposed to harm as the result of affirmative conduct by Defendant City of Mesa or Defendant City of Phoenix. Plaintiff does not allege any facts to show that he was in custody or that he was exposed to a danger he would not otherwise have faced as a result of municipal action. Accordingly, Plaintiff has failed to state a claim against Defendants City of Phoenix and City of Mesa in Count One of the Fifth Amended Complaint, and undersigned recommends that Count One be dismissed.
This section's legal authorities and principles were taken verbatim from Doc. 26 at 12-13, 15.
Plaintiff states that he amended Count Three by adding paragraphs 52 through 61 of the Fifth Amended Complaint (Doc. 29 at 16-17; Doc. 28). Count Three is an amalgamation of claims regarding retaliation, access to courts, and handling of legal mail.
A viable claim of First Amendment retaliation contains five basic elements: (1) an assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights (or that the inmate suffered more than minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims requires an inmate to show (1) that the prison official acted in retaliation for the exercise of a constitutionally protected right, and (2) that the action "advanced no legitimate penological interest"). The plaintiff has the burden of demonstrating that his exercise of his First Amendment rights was a substantial or motivating factor behind the defendants' conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).
"[P]risoners have a protected First Amendment interest in having properly marked legal mail opened only in their presence." Hayes v. Idaho, 849 F.3d 1204, 1211 (9th Cir. 2017). Prisoners also have a Sixth Amendment right to be present when legal mail related to a criminal matter is inspected. Mangiaracina v. Penzone, 849 F.3d 1191, 1196 (9th Cir. 2017); Nordstrom v. Ryan, 762 F.3d 903, 910-11 (9th Cir. 2014). Although such mail may be reviewed for contraband, it cannot be read. Nordstrom, 762 F.3d at 910-11. However, only mail from an inmate's attorney, or prospective attorney, constitutes "legal mail." See Wolff v. McDonnell, 418 U.S. 539, 576 (1974).
Regarding the first instance of legal mail from attorney Barco, the District Judge ordered Defendants Ullibarri and Erwin to answer (Doc. 26 at 15). Regarding the second incident, the District Judge found that Plaintiff's allegations were insufficient because they were vague, conclusory, and related to a group of defendants "without any factual specificity as to what any particular Defendant did or failed to do" (Id.). Further, the District Judge found that Plaintiff had "failed to identify when and how the purported seizure occurred and what happened to the legal mail after it was seized" (Id. at 16).
The right of meaningful access to the courts prohibits officials from actively interfering with inmates' attempts to prepare or file legal documents. Lewis v. Casey, 518 U.S. 343, 350 (1996). The right of access to the courts is only a right to bring petitions or complaints to federal court and not a right to discover such claims or even to ligate them effectively once filed with a court. Id. at 354. The right "guarantees no particular methodology but rather the conferral of a capability-the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Id. at 356.
Regarding Plaintiff's retaliation claim, the District Judge held that the allegations in the Fourth Amended Complaint were too vague and conclusory; further, "Plaintiff's allegation of a retaliatory motive is wholly unsupported" (Doc. 26 at 13).
As a matter of standing, for an access-to-courts claim, a plaintiff must show that he suffered an "actual injury" with respect to contemplated litigation. Id. at 349. To show actual injury with respect to contemplated litigation, the plaintiff must demonstrate that the defendants' conduct frustrated or impeded him from bringing to court a nonfrivolous claim that he wished to present. Id. at 352-53.
"[T]he injury requirement is not satisfied by just any type of frustrated legal claim." Id. at 354. The right of access to the courts "does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims." Id. at 355. The nonfrivolous claim must be a direct or collateral attack on the inmate's sentence or a challenge to the conditions of his confinement. Id. "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id.
About the access to courts allegations in Count Three of Plaintiff's Fourth Amended Complaint, the District Judge found:
Plaintiff's allegations regarding the seizure and review of his legal materials and the failure to provide him with copies and mail service are, for the most part, too vague and conclusory to state a claim for a denial of court access. Plaintiff has largely failed to describe, in adequate detail, the circumstances surrounding each instance of purported interference, including when and how he requested assistance from each individual Defendant and what, specifically, each Defendant did or said in response.(Doc. 26 at 14).
In any event, Plaintiff has failed to sufficiently allege that he suffered an actual injury as the result of Defendants' conduct. Although he claims that multiple defendants were dismissed from one of his lawsuits because of the actions of Defendants Ullibarri, Garcia, and Mansano, this is not the type of injury that would give rise to an access-to-courts claim. See Lewis, 518 U.S. at 354 (right of court access does not encompass right to discover grievances or litigate them effectively once in court). Plaintiff does not allege that he was unable to present a claim as the result of Defendants' conduct, nor does he describe the claim(s) in sufficient detail to seek relief on this basis. See Christopher v. Harbury, 536 U.S. 403, 414-15 (2002) ("[T]he underlying cause of action . . . is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation."). Accordingly, Plaintiff has failed to state an access-to-courts claim in Count Three.
Liberally construed, Plaintiff's allegations in Count Three of the Fifth Amended Complaint (Doc. 29) state an access to courts claim against Defendants Pinney relating to Plaintiff's PCR proceedings, state an access to courts claim against Defendants Pinney, Ullibarri, Bohuszewicz, Erwin, Garcia, and Manzano pertaining to CV 2019-096073 and CV 2019-095873, state a retaliation claim against Defendants Bohuszewicz and Rubio pertaining to CV 2019-095855, and state a claim for interference with legal mail against Defendants Ramos and Garcia (in addition to Erwin and Ullibarri as previously ordered) whereby the claim against Defendants Ramos and Garcia relates to the now lost legal mail which was opened and seized outside Plaintiff's presence as referenced on Doc. 29 at 17.
This section's legal authorities and principles were taken verbatim from Doc. 26 at 16-17.
Plaintiff states that he amended Count Four by adding paragraphs 8 through 14 of the Fifth Amended Complaint (Doc. 29 at 20-21; Doc. 28).
To state a claim under 42 U.S.C. § 1985(3) for a conspiracy to deprive an individual of rights or privileges, a complaint must allege (1) a conspiracy, (2) to deprive any person or a class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, (3) an act by one of the conspirators in furtherance of the conspiracy, and (4) a personal injury, property damage or a deprivation of any right or privilege of a citizen of the United States. Griffin v. Breckenridge, 403 U.S. 88, 102-103 (1971). "A claim under this section must allege facts to support the allegation that defendants conspired together. A mere allegation of conspiracy without factual specificity is insufficient." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988). Additionally, there must be some "racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Id. To make the requisite showing of class-based animus "the plaintiff must be a member of a class that requires special federal assistance in protecting its civil rights." Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1519 (9th Cir. 1987).
Section 1986 imposes liability on an individual who "knows of an impending violation of section 1985 but neglects or refuses to prevent the violation." Karim-Panahi, 839 F.2d at 626. A claim can be stated under this section "only if the complaint contains a valid claim under section 1985." Id.
In order to "recover under a § 1983 conspiracy theory, a plaintiff must plead and prove not only a conspiracy, but also a deprivation of rights; pleading and proof of one without the other will be insufficient." Dyess ex rel. Dyess v. Tehachapi Unified Sch. Dist., 2010 WL 3154013, at *8 (E.D. Cal. Aug. 6, 2010) (quoting Dixon v. City of Lawton, 898 F.2d 1443, 1449 n.6 (10th Cir. 1990)). A conspiracy theory "does not enlarge the nature of the claims asserted by the plaintiff, as there must always be an underlying constitutional violation." Lacey v. Maricopa Cty., 693 F.3d 896, 935 (9th Cir. 2012); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 524 (9th Cir. 1994) (affirming dismissal of § 1985(3) conspiracy claim based on plaintiff's failure to state a claim for an underlying constitutional rights violation); Del Elmer; Zachay v. Metzger, 967 F.Supp. 398, 401 n. 3 (S.D. Cal. 1997) ("[T]here must be an underlying violation of section 1983 in order for there to be a violation of sections 1985 or 1986[.] Thus, if plaintiff cannot state a claim upon which relief can be granted under § 1983, he cannot state a claim under §§ 1985 or 1986 either."). In other words, "[c]onspiracy is not itself a constitutional tort under § 1983." Lacey, 693 F.3d at 935.
Plaintiff has made conclusory allegations that the Defendants were motivated by discriminatory animus in adopting an "unofficial position that black inmates are dumb" and "can be told anything" when the Defendants purportedly retaliated against Plaintiff, denied Plaintiff access to courts, and opened his legal mail outside of his presence. These conclusory allegations are not supported by specific facts. Further, the Fifth Amended Complaint lacks sufficient facts as to how the Defendants from whom an answer has been ordered/recommended actually conspired together. Accordingly, Plaintiff has failed to state a claim against any defendant in Count Four and undersigned recommends that Count Four be dismissed.
IV. Further Amendment of the Fifth Amended Complaint
Plaintiff's proposed Fifth Amended Complaint is his sixth complaint filed in these proceedings, which were initiated in November 2019. Plaintiff has had multiple and sufficient opportunities to amend his complaint. These opportunities were informed by not only the Court's most recent Screening and Service Order (Doc. 26), but by previous screening orders and previous motions to dismiss. For the further orderly management of the case and in fairness to the Defendants in the discovery process, undersigned recommends that the Fifth Amended Complaint, as screened, be the final complaint to proceed in this action.
Accordingly,
IT IS RECOMMENDED that the Court Order that:
1. The Clerk of Court file the lodged Fifth Amended Complaint (Doc. 29).
2. Defendants Erwin and Ullibarri must answer Count Three as it relates to their alleged interference with legal mail sent to Plaintiff by Attorney Martha Barco, as previously ordered (Doc. 26).
3. Defendant Pinney must answer Count Three as it relates to access to courts and Plaintiff's PCR proceedings; Defendants Pinney, Ullibarri, Bohuszewicz, Erwin, Garcia, and Manzano must answer Count Three as it relates to access to courts and CV 2019-096073 and CV 2019-095873; Defendants Bohuszewicz and Rubio must answer Count Three as it relates to retaliation pertaining to CV 2019-095855; and Defendants Ramos and Garcia must answer Count Three as it relates to the now lost legal mail which was opened and seized outside Plaintiff's presence as referenced on Doc. 29 at 17.
4. The remaining claims and Defendants be dismissed without prejudice and without leave to amend.
5. The Clerk of Court must send Plaintiff a service packet including the Fifth Amended Complaint (Doc. 29), this Order, and both summons and request
for waiver forms for Defendants Erwin, Ullibarri, Pinney, Bohuszewicz, Garcia, Manzano, Rubio, and Ramos.
6. Plaintiff must complete and return the service packets to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order.
7. If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Fifth Amended Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii).
8. The United States Marshal must retain the Summons, a copy of the Fifth Amended Complaint, and a copy of this Order for future use.
9. The United States Marshal must notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this Order.
10. A Defendant who agrees to waive service of the Summons and Fifth Amended Complaint must return the signed waiver forms to the United States Marshal, not the Plaintiff, within 30 days of the date of the notice and request for waiver of service pursuant to Federal Rule of Civil Procedure 4(d)(1)(F) to avoid being charged the cost of personal service.
11. The Marshal must immediately file signed waivers of service of the summons. If a waiver of service of summons is returned as undeliverable or is not returned by a Defendant within 30 days from the date the request for waiver was sent by the Marshal, the Marshal must:
(a) personally serve copies of the Summons, Fifth Amended Complaint, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and
(b) within 10 days after personal service is effected, file the return of service for Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, Fifth Amended Complaint, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court.
12. Defendants must answer the relevant portion(s) of the Fifth Amended Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
13. Any answer or response must state the specific Defendant by name on whose behalf it is filed. The Court may strike any answer, response, or other motion or paper that does not identify the specific Defendant by name on whose behalf it is filed.
14. There will be no further amendment of the complaint given Plaintiff's multiple previous amendments of the complaint since this action's filing in November 2019.
If a Defendant is an officer or employee of the Arizona Department of Corrections, Plaintiff must list the address of the specific institution where the officer or employee works. Service cannot be effected on an officer or employee at the Central Office of the Arizona Department of Corrections unless the officer or employee works there.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 14th day of August, 2020.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge