Free Order on Motion to Amend/Correct - District Court of Arizona - Arizona

RP

1 2 3 4 5 6 7 8 9 10 11 12 13 Robinson, et al., 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On February 10, 2004, Armando Roberto Aros III (Plaintiff), presently confined in the Central Unit of the Arizona State Prison Complex in Florence, Arizona (ASPC-Florence), filed with the Clerk of the Court an unsigned pro se "Civil Rights Complaint By A Prisoner" (Document #1) (Complaint) pursuant to 42 U.S.C. § 1983. On February 18, 2004, Plaintiff filed a signed "First Amended Complaint" (Document #3) (Amended Complaint). Plaintiff did not pay the one hundred and fifty dollar ($150.00) filing fee, but he filed a certified "Application To Proceed In Forma Pauperis By A Prisoner Civil (Non-Habeas)" (Application To Proceed), which was deficient because Plaintiff had not included a copy of his trust fund account statement for the six (6) months immediately preceding the filing of the Complaint as required. TERMPSREF
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Armando Roberto Aros III, Plaintiff, vs.

) ) ) ) ) ) ) ) ) ) ) )

No. CV-04-306-PHX-SRB (LOA) ORDER

Accordingly, by Order filed March 1, 2004, Plaintiff's -1Filed 09/12/2005 Page 1 of 15

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Application To Proceed was denied without prejudice and Plaintiff was given thirty (30) days to submit a new Application To Proceed, using the form included with the Order, and a certified copy of his trust fund account statement(s) from the Central Office of the Arizona Department of Corrections (ADOC) for the six (6) months immediately preceding the filing of the Complaint. On March 30, 2004, Plaintiff filed a new, certified Application To Proceed (Document #5) and a "Certified Statement Of Account." By Order filed December 27, 2004 (Document #12), Plaintiff's new Application To Proceed was granted and Plaintiff was obligated to pay the one hundred and fifty dollar ($150.00) statutory filing fee for this action. Based on the average monthly balance in Plaintiff's account for six (6) months immediately preceding the filing of the Complaint, an initial partial filing fee of twenty-seven dollars and forty-six cents ($27.46) was assessed. The Order filed December 27, 2004 also denied Plaintiff's "Motion To Amend, Fed. R. Civ. Proc., Rule 15(a)" (Document #6) in part to the extent that Plaintiff requested that this Court accept his lodged second amended complaint, and granted it in part to the extent that Plaintiff was given thirty (30) days from the filing date of the Order to file a second amended complaint that did not include a plaintiff other than himself. The Clerk of the Court was directed not to file Plaintiff's second amended complaint lodged with the Court on March 31, 2004. Additionally, the Order filed December 27, 2004 denied Plaintiff's "Motion To Join Party, Fed. R. Civ. Proc., Rule 20(a)" (Document #7), "Motion To Certify Class, Fed. Rules Civ. Proc., Rule 23(b)(2)" (Document #8), and "Motion To Appoint Counsel, 28 U.S.C. § 1915" (Document #9). By separate Order filed December 27, 2004 (Document #13), the Director of ADOC or her designee was required to send to the Clerk of the Court the initial partial filing fee, and thereafter, payments from Plaintiff's trust account each time the amount in the account

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exceeds ten dollars ($10.00), until the statutory filing fee of one hundred and fifty dollars ($150.00) was paid in full. MOTIONS TO AMEND On January 27, 2005, Plaintiff filed a "Motion To Amend, Fed R. Civ. Proc., Rule 15(a)" (Document #14), which will be denied as moot because the Court's Order filed December 27, 2004 (Document #12) had already given Plaintiff leave to file a second amended complaint. Plaintiff also lodged a "Second Amended Complaint" on January 27, 2005. On March 21, 2005, Plaintiff filed another "Motion To Amend, Fed R. Civ. Proc., Rule 15(a)" (Document #15) (Motion To Amend) and lodged a "Third Amended Complaint" (Third Amended Complaint). In this Motion to Amend, Plaintiff alleges that there were significant typographical errors in his Second Amended Complaint and asks the Court for permission to amend it to submit a complaint free of the errors at issue. (Motion to Amend at 1). Plaintiff's Motion To Amend will be granted to the extent that the Court will direct the Clerk of the Court not to file Plaintiff's Second Amended Complaint, and to file Plaintiff's Third Amended Complaint instead. On April 18, 2005, Plaintiff filed yet another "Motion To Amend, Fed R. Civ. Proc., Rule 15(a)" (Document #16), which will be denied as duplicative of Plaintiff's Motion To Amend filed on March 21, 2005. Lastly, on April 21, 2005, Plaintiff filed "Motion To Correct Filing" (Document #17) (Motion To Correct), in which Plaintiff notes that when the Clerk of the Court returned his copy of the Third Amended Complaint to him, the Clerk accidentally returned page 8B of either the original, or Judge's copy, of the Third Amended Complaint to him. (Motion To Correct at 2). Plaintiff attaches page 8B to his Motion to Correct and asks the Court to order the Clerk of the Court to reunite page 8B with the deficient version of the Third Amended Complaint. (Motion To Correct at 5).

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Upon review, the Court has determined that page 8B is missing from the Judge's copy of the Third Amended Complaint. Accordingly, Plaintiff's Motion To Correct will be granted to the extent that the Court has attached a copy of page 8B to the Judge's copy of the Third Amended Complaint. STATUTORY SCREENING OF PRISONER COMPLAINTS The Court is required to screen complaints or amended complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the 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). The Court also must dismiss a complaint or portion thereof if Plaintiff fails to exhaust any administrative remedy available to him. 42 U.S.C. § 1997e(a). THIRD AMENDED COMPLAINT With regard to his Third Amended Complaint, Plaintiff should take notice that all causes of action alleged in an original or amended complaint which are not alleged in a subsequent amended complaint are waived. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) ("an amended pleading supersedes the original"); King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987). Accordingly, the Court will consider only those claims specifically asserted in Plaintiff's Third Amended Complaint, with respect to only those Defendants named in the Third Amended Complaint. Plaintiff alleges four (4) grounds in his Third Amended Complaint. (Third Amended Complaint at 4-7). Named as Defendants in the Third Amended Complaint are: (1) Robinson, Corrections Officer (CO) IV, Buckley Unit, Arizona State Prison Complex - Lewis in Buckeye, Arizona (ASPC-Lewis); (2) Ray Martinez, Deputy Warden, Buckley Unit, ASPCLewis; (3) Fulton, CO III, Special Management Unit II (SMU II), Arizona State Prison TERMPSREF
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Complex - Eyman in Florence, Arizona (ASPC-Eyman); (4) Fansler, CO III, SMU II, ASPCEyman; (5) Conrad Luna, Deputy Warden, SMU II, ASPC-Eyman; (6) John Doe I, Classification Administrator, ADOC Central Office; (7) John Doe II, Classification Administrator, ADOC Central Office; (8) Donna Clement, Administrator of Offenders' Services Bureau, ADOC Central Office; (9) Schaulin, CO III, Central Unit, ASPC-Florence; (10) Duarte, CO III, Central Unit, ASPC-Florence; (11) D.R. Rivas, former Deputy Warden, Central Unit, ASPC-Florence; and (12) Dora B. Schriro, Director of ADOC, ADOC Central Office. (Third Amended Complaint at 1-2A). Plaintiff seeks a jury trial, declaratory and injunctive relief, and compensatory and punitive monetary damages. (Third Amended Complaint at 8-8B). DISCUSSION Count I In Count I of the Third Amended Complaint, Plaintiff claims that his Fourteenth Amendment right to procedural due process was violated by Defendants Robinson, Ray Martinez, Fulton, Fansler, Conrad Luna, John Doe I, John Doe II, and Donna Clement when he was administratively reclassified to be housed in level five (5) maximum security units for the next two (2) years, and when his Public and Institutional (P.I.) score was raised from 4/3 to 5/5. (Third Amended Complaint at 4-4C). Plaintiff alleges that on November 1, 2002 he was initially transferred from the Buckley Unit, a level four (4) facility, to ASPC-Lewis/Stiner Detention Unit (SDU), a level five (5) maximum security unit, under administrative investigation for an assault on another inmate, and that a special reclassification hearing was held where it was recommended that his P.I. score be raised from 4/3/ to 5/5 and that he be housed in level five (5) maximum security units for the next two (2) years. Id. at 4-4A. When this recommendation was approved, Plaintiff appealed the results on the grounds that he was denied the right to call witnesses, did not enjoy an impartial panel, did not receive adequate notice of the charges,

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and that the charges were false. Id. at 4A. While the appeal was pending, Plaintiff was transferred from SDU to ASPC-Eyman/SMU II, a level five (5) "supermax." Id. Plaintiff further alleges that his appeal was successful and a rehearing was ordered because he had not received adequate notice of the charges against him. Id. at 4A. At the rehearing, it was again recommended that his P.I. score be raised from 4/3/ to 5/5 and that he continue to be housed in level five (5) maximum security units for the next two (2) years. Id. This recommendation was also approved and Plaintiff appealed on the basis that he was not allowed to call witnesses, he did not enjoy an impartial panel, and that he did not receive adequate notice of the charges. Id. at 4B. Eventually, Plaintiff's appeal was denied. Id. The Due Process Clause shields from arbitrary or capricious deprivation, those facets of an inmate's existence that qualify as "liberty interests." See Morrissey v. Brewer, 408 U.S. 471 (1972); Hewitt v. Helms, 459 U.S. 460 (1983). Liberty interests procedurally protected by the Due Process Clause of the Fourteenth Amendment may arise from two (2) sources: the Due Process Clause and the laws of the States. Hewitt, 459 U.S. at 466. "A liberty interest inherent in the Constitution arises when a prisoner has acquired a substantial, although conditional, freedom such that `the loss of liberty entailed [by its revocation] is a serious deprivation requiring that the [prisoner] be accorded due process.'" Whitehorn v. Harrelson, 758 F.2d 1416, 1420 (11th Cir. 1985) (footnote omitted) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973)). The Supreme Court has held "that the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement." Wilkinson v. Austin, 125 S.Ct. 2384, 2393 (2005) (citing Meachum v. Fano, 427 U.S. 215, 222 (1976) (no liberty interest arising from Due Process Clause itself in transfer from low to maximum security prison because "[c]onfinement in any of the State's institutions is within the normal limits of range of custody which the conviction has authorized the State to impose")). In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court narrowed the range of circumstances that give rise to a state-created liberty interest to "freedom from restraint TERMPSREF
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which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. Here, the Court is of the opinion that the conditions in the level five (5) units that Plaintiff has been confined in do not give rise to a state-created liberty interest. Although Plaintiff alleges in Count I that throughout the period from November 1, 2002, until January of 2005, he endured conditions of confinement representing an "atypical and significant hardship" relative to the conditions of confinement he experienced while housed at the Buckley Unit, a level four (4) high-medium facility, Plaintiff does not allege that his confinement in level five (5) units is indefinite, or that by virtue of this confinement he is disqualified from parole eligibility. Id. at 4B-4C. These two (2) conditions, indefinite confinement and disqualification from parole eligibility, were crucial to the Supreme Court's finding in Wilkinson that the harsh conditions in the Ohio State Penitentiary, a supermax facility, imposed an atypical and significant hardship that gave rise to a liberty interest in avoiding assignment to the facility. Wilkinson, 125 S.Ct. at 2394-95. However, even if the Court assumes that the conditions in ADOC's level five (5) facilities give rise to a liberty interest, Plaintiff has received all of the due process that he is entitled to under the Fourteenth Amendment. See Id. at 2397 (inmate constitutionally entitled only to informal, non-adversary procedures prior to assignment to "supermax" facility). Plaintiff was ultimately given notice of the charges, an opportunity to be heard, notice of the adverse decision, and an opportunity to appeal the adverse decision. The Court is not persuaded otherwise by Plaintiff's claim that the notice of charges given to him was inadequate. To the extent that the first notice of charges may have been inadequate, the granting of his first appeal on the basis that the notice was inadequate cured the deficiency. As to the second notice of charges given to Plaintiff before his second hearing, the Court disagrees that the notice was inadequate. This "Classification Referral Notice" (Notice) read:

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This is an administrative hearing to determine appropriate custody and placement. The committee may consider a report which includes information from a confidential informant describing your involvement in an assault with a weapon on another inmate. (Third Amended Complaint at 4A).

4 Plaintiff argues that even though the Notice was provided to him nearly a month in 5 advance, it was inadequate because Plaintiff was convinced that he was no longer being 6 charged with conspiracy, but rather with the actual assault itself, when in fact the conspiracy 7 charge had "survived." Id. The Court finds that the language "involvement in an assault" 8 is sufficient to put Plaintiff on notice of a conspiracy charge. Id. If the Notice had said that 9 the report from a confidential informant described Plaintiff's assault with a weapon on 10 another inmate, then Plaintiff's argument would have some merit. 11 Accordingly, Count I of the Third Amended Complaint will be dismissed without 12 prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a 13 claim upon which relief may be granted. 14 Count II 15 In Count II of the Third Amended Complaint, Plaintiff claims that his Fourteenth 16 Amendment right to substantive due process was violated by Defendants Robinson, Ray 17 Martinez, Fulton, Fansler, Conrad Luna, John Doe I, John Doe II, and Donna Clement when 18 he was administratively reclassified to be housed in level five (5) maximum security units 19 for the next two (2) years, and when his P.I. score was raised from 4/3 to 5/5. (Third 20 Amended Complaint at 5-5C). The factual basis for Count II appears to be the same as that 21 for Count I. 22 "Substantive" due process "forbids the government from depriving a person of life, 23 liberty, or property in such a way that 'shocks the conscience' or 'interferes with rights 24 implicit in the concept of ordered liberty.'" Nunez v. City of Los Angeles, 147 F.3d 867, 871 25 (9th Cir.1998) (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)) (citations 26 omitted). The actions of Defendants in reclassifying Plaintiff do not shock the conscience 27 28 TERMPSREF
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or interfere with rights implicit in the concept of ordered liberty. Accordingly, Count II of the Third Amended Complaint will be dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted. Count III In Count III of the Third Amended Complaint, Plaintiff alleges that his Fourteenth Amendment right to equal protection of the laws was violated by Defendants Robinson, Ray Martinez, Fulton, Fansler, Conrad Luna, John Doe I, John Doe II, and Donna Clement when he was administratively reclassified to be housed in level five (5) maximum security units for the next two (2) years, and when his P.I. score was raised from 4/3 to 5/5. (Third Amended Complaint at 6-6C). The factual basis for Count III also appears to be the same as that for Count I. To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause, Plaintiff must show intentional discrimination. Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1112 (9th Cir. 1991). Unless the discrimination "trammels fundamental personal rights or implicates a suspect classification," the authority acting under color of state law need only show that his decision has "some rational relation to a legitimate state interest." Lockary v. Kayfetz, 917 F.2d 1150, 1155 (9th Cir. 1990). Prisoners are not a suspect classification within the meaning of the Fourteenth Amendment. See McQuery v. Blodgett, 924 F.2d 829, 834 (9th Cir. 1990). A mere demonstration of inequality is not enough to establish a violation of the Equal Protection Clause. See McQuery, 924 F.2d at 834-835. Here, Plaintiff does not identify any intentional discrimination in Count III based on a suspect classification or fundamental right. Moreover, the reclassification of inmates for security purposes clearly has a rational relationship to a legitimate state interest. Accordingly, Count III of the Third Amended Complaint will be dismissed without prejudice

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pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted. Count IV In Count IV of the Third Amended Complaint, Plaintiff claims that his Eighth Amendment right to be free from cruel and unusual punishment was violated by Defendants Schaulin, Duarte, D.R. Rivas, and Dora B. Schriro when they failed to remedy the conditions of confinement at the Central Unit of ASPC-Florence that he challenged in his grievances. (Third Amended Complaint at 7). Plaintiff alleges that the conditions of confinement at the Central Unit resulted in the "unnecessary and wanton infliction of pain." Id. at 7B. Plaintiff further alleges that conditions of confinement that he challenged in his grievances included inadequate cooling systems, having to be fully clothed in an excessively hot environment, lack of a functioning cell light, lack of a usable mattress, lack of a pillow, small recreation pens, inability to obtain meaningful exercise, lack of a trash can, lack of requisite cleaning supplies, inadequate opportunities to use cleaning supplies, noise levels at visitation, pigeon feces in the recreation pens, and lack of access to restroom facilities from the recreation pens. Id. at 7A-7B. Liberally construed, Plaintiff's claims in Count III of the Third Amended Complaint against Defendants Schaulin, Duarte, D.R. Rivas, and Dora B. Schriro adequately state a claim for relief under the Eighth Amendment. Accordingly, Defendants Schaulin, Duarte, Rivas, and Schriro will be required to file an answer to Count III of the Third Amended Complaint. DISMISSAL OF DEFENDANTS There being no claims remaining against Defendants Robinson, Ray Martinez, Fulton, Fansler, Conrad Luna, John Doe I, John Doe II, and Donna Clement, they will be dismissed without prejudice from this action pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted.

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RULE 41(b) WARNING. Plaintiff is warned that if he fails to timely comply with every provision of this Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir.) (district court may dismiss action for failure to comply with any order of the court), cert. denied, 506 U.S. 915 (1992). IT IS THEREFORE ORDERED: (1) That Plaintiff's "Motion To Amend, Fed R. Civ. Proc., Rule 15(a)" (Document #14) is DENIED AS MOOT; (2) That Plaintiff's "Motion To Amend, Fed R. Civ. Proc., Rule 15(a)" (Document #15) is GRANTED to the extent that the Court is directing the Clerk of the Court not to file Plaintiff's "Second Amended Complaint," and to file Plaintiff's "Third Amended Complaint" instead; (3) That the Clerk of the Court is DIRECTED NOT TO FILE Plaintiff's "Second Amended Complaint" lodged with the Court on January 27, 2005; (4) That the Clerk of the Court is DIRECTED TO FILE Plaintiff's "Third Amended Complaint" (Third Amended Complaint) lodged with the Court on March 21, 2005; (5) That Plaintiff's "Motion To Amend, Fed R. Civ. Proc., Rule 15(a)" (Document #16), is DENIED AS DUPLICATIVE; (6) That Plaintiff's "Motion To Correct Filing" (Document #17) is GRANTED to the extent that the Court has attached a copy of page 8B to the Judge's copy of the Third Amended Complaint; (7) That Defendants Robinson, Ray Martinez, Fulton, Fansler, Conrad Luna, John Doe I, John Doe II, and Donna Clement are all DISMISSED WITHOUT PREJUDICE from this action pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted;

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(8) That Counts I, II, and III of the Third Amended Complaint are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted; (9) That Defendants Schaulin, Duarte, D.R. Rivas, and Dora B. Schriro are

REQUIRED TO FILE an answer to Count IV of the Third Amended Complaint; (10) That the Clerk of the Court is DIRECTED to send Plaintiff a service packet, including a copy of this Order, a copy of the Third Amended Complaint, and both summons and request for waiver forms for Defendants Schaulin, Duarte, D.R. Rivas, and Dora B. Schriro; (11) That Plaintiff SHALL COMPLETE AND RETURN the service packets to the Clerk of the Court within twenty (20) 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; (12) That if Plaintiff does NOT either obtain a waiver of service of summons or complete service of the summons and Third Amended Complaint on any Defendant within one hundred and twenty (120) days of the date the Complaint was filed, or within sixty (60) days of the filing of this Order, whichever is later, the ACTION MAY BE DISMISSED as to that Defendant pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and LRCiv 16.2(b)(2)(B)(i); (13) That the United States Marshal SHALL RETAIN the summons, a copy of the Third Amended Complaint, and a copy of this Order for future use; (14) That the United States Marshal SHALL NOTIFY Defendants Schaulin, Duarte, D.R. Rivas, and Dora B. Schriro of the commencement of this action and REQUEST WAIVER OF SERVICE pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants shall include a copy of this Order. The Marshal shall file waivers of service of the summons or requests for waivers that are returned as undeliverable as soon as they are received. If a waiver of service of summons is not returned by a Defendant to the

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Marshall within thirty (30) days from the date the request for waiver was sent by the Marshal, the Marshal shall: (a) Personally serve copies of the summons, Third Amended Complaint, and this Order upon the Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; (b) Within ten (10) days after personal service is effected, file the return of service for the 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 the Defendant. The costs of service shall be

enumerated on the return of service form (USM-285) and shall include the costs incurred by the Marshal for photocopying additional copies of the summons, Third 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) and (5) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court; (15) That if a Defendant agrees to waive service of the summons and Third Amended Complaint, the Defendant SHALL RETURN the signed waiver form to the United States Marshal, not to Plaintiff; (16) That Defendants Schaulin, Duarte, D.R. Rivas, and Dora B. Schriro SHALL ANSWER Count IV of the Third 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; (17) That any answer or responsive pleading SHALL STATE the specific Defendant(s) by name on whose behalf it is filed. The Court may strike any answer or responsive pleading that does not identify the specific Defendant(s) by name on whose behalf it is filed; TERMPSREF
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(18) That a clear, legible copy of every pleading or other document filed SHALL ACCOMPANY each original pleading or other document filed with the Clerk for use by the District Judge or Magistrate Judge to whom the case is assigned. See Rule 5.4 of the Local Rules of Civil Procedure (LRCiv). Failure to submit a copy along with the original pleading or document will result in the pleading or document being stricken without further notice to Plaintiff; (19) That Plaintiff SHALL SERVE upon Defendants, or if appearance has been entered by counsel, upon the attorney, a copy of every further pleading or other document submitted for consideration by the Court. Plaintiff shall include with the original document and copy, to be filed with the Clerk of the Court, a certificate stating the date a true and correct copy of the pleading or document was mailed to Defendant or the counsel. Any paper received by a District Court Judge or Magistrate Judge which has not been filed with the Clerk of the Court may be disregarded by the Court; (20) That at all times during the pendency of this action, Plaintiff SHALL IMMEDIATELY ADVISE the Court and the United States Marshal of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date, except that if Plaintiff has been released from custody, the notice should so indicate. The notice shall not include any motions for any other relief. Plaintiff shall serve a copy of the notice on all opposing parties. Failure to file a NOTICE OF CHANGE OF ADDRESS may result in the dismissal of the action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b); / / / / / TERMPSREF
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(21) That this matter is referred to Magistrate Judge Lawrence O. Anderson pursuant to LRCiv 72.1 and 72.2 for further proceedings.

DATED this 9th day of September, 2005.

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