Opinion
CV 19-2288-JFW (E)
03-29-2021
CALVIN D. JACKSON, Plaintiff, v. B. RAMOS, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable John F. Walter, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. section 1983 on March 27, 2019. The original Complaint named multiple medical staff and a prison official of California State Prison, Los Angeles County (“LAC”) in their individual and official capacities. On May 8, 2019 Plaintiff filed a First Amended Complaint, the operative pleading. The First Amended Complaint names only three of the aforementioned medical staff as defendants, in their individual capacities only. Defendants are: (1) B. Ramos, Physician; (2) C. Wu, Primary Care Physician; (3) J. Buendia, Licensed Vocational Nurse.
Accordingly, the other Defendants named in the original Complaint are no longer parties to this action. See Hal Roach Studios, Inc. V. Richard Feiner & Co., 896 F.2d 1542, 1546 (1989) (“[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”).
Defendants Wu and Buendia filed a “Motion to Dismiss Case” on August 23, 2019, and Defendant Ramos filed a “Motion to Dismiss First Amended Complaint” on October 7, 2019. In the interim, on September 27, 2019, Plaintiff filed a “Motion to Amend.” Defendants filed an “Opposition to the Motion to Amend” on October 22, 2019. Plaintiff filed an “Opposition to Defendant's Motion to Dismiss etc.” on November 4, 2019. On November 8, 2019, this Court issued an order denying Defendants' Motions to Dismiss and also denying Plaintiff's Motion to Amend. On November 27, 2019, Defendants filed an Answer.
On July 6, 2020, Plaintiff filed two “Motions to Compel Discovery.” One motion requested a production of documents, and the other motion requested responses to interrogatories and responses to requests for admission. On August 4, 2020, the Magistrate Judge denied both motions. The Magistrate Judge observed, inter alia, that Plaintiff had neither signed the discovery requests nor demonstrated service of the requests on Defendants. See Minute Order, filed August 4, 2020.
On October 8. 2020, Defendants filed “Defendants' Motion for Summary Judgment.” In the Motion, Defendants contend that Plaintiff failed to exhaust available administrative remedies before filing this action. After receiving three extensions of time within which to file opposition, Plaintiff filed a “Response to Defendants' Motion for Summary Judgment” on February 1, 2021.
SUMMARY OF THE FIRST AMENDED COMPLAINT
In the First Amended Complaint, Plaintiff asserts that Defendants were deliberately indifferent to Plaintiff's medical needs, alleging:
Plaintiff suffered back-to-back strokes in November and December of 2014 (First Amended Complaint, p. 5). After each stroke, Plaintiff was transferred to Palmdale Regional Hospital for treatment (id.). As a result of the strokes, Plaintiff suffered from: “slurred speech, significant facial drooping, abnormal tone, decreased knowledge of condition, developmental positions, endurance deficits, impaired sensation, safety awareness deficits, strength deficits, visual perceptual deficits, and impaired motor control of his left side” (id.). In addition, Plaintiff suffered from impaired mobile control in his left upper extremity, “impaired sensation, hypertonicity, decreased coordination and reaction time, impaired to light touch above the elbow and down to the hand, [and] significant delays in his protective responses on his” left upper extremity (id., pp.5, 7).
When Plaintiff was discharged from the hospital, his doctor handed Plaintiff's medical records and Plaintiff's “mandatory” treatment plan to the transport officers (id., p. 7). Once Plaintiff was back at the prison, the transport officers handed the medical records and treatment plan to Plaintiff's prison medical team, including Defendants (id.). Each Defendant reviewed the treatment plan received from the hospital (id.). Even though Defendants agreed with this treatment plan, Defendants failed to get Plaintiff the physical therapy and other treatment required by the plan (id.). Plaintiff repeatedly brought this failing to Defendants' attention (id., pp. 7-8). Plaintiff did not receive any of the “mandatory” treatment required by the plan until 2018, after Plaintiff started complaining in writing (id., p. 8).
As a result of Defendants' failure to implement the hospital's treatment plan for four years, Plaintiff was forced to provide his own physical therapy, teaching himself “how to walk, talk, eat, sleep, stretch, etc” (id.). These circumstances took an emotional toll on Plaintiff, leading to depression, anxiety, feeling vulnerable to harm, and feeling fearful that he might be harmed (id. pp. 8-9).
STANDARDS GOVERNING MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial burden of offering proof of the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party's burden is met, the party opposing the motion is required to go beyond the pleadings and, by the party's own affidavits or by other evidence, designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir. 2006).
The Court must “view the facts in the light most favorable to the non-moving party and draw reasonable inferences in favor of that party.” See Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 784 (9th Cir. 2007). However, “inferences are not drawn out of thin air, but from evidence.” Richards v. Nielson Freight Lines, 602 F.Supp. 1224, 1247 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987). Where different ultimate inferences reasonably can be drawn, summary judgment is inappropriate. Miller v. Glenn Miller Productions, Inc., 454 F.3d at 988.
A factual dispute is “genuine” only if there is a sufficient evidentiary basis upon which a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” only if it might affect the outcome of the lawsuit under governing law. Id. “At the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence.” Porter v. California Dep't of Corrections, 419 F.3d 885, 891 (9th Cir. 2005) (citation omitted).
A court may consider a verified complaint to be an affidavit within the meaning of Fed.R.Civ.P. 56(e) to the extent that the pleading demonstrates the plaintiff's person al knowledge of factual matters stated therein. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). However, parties generally may not rely on unsworn allegations in their pleadings or legal memoranda to defeat summary judgment. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). “Evidence may be offered ‘to support or dispute a fact' on summary judgment only if it could be presented in an admissible form at trial.” Southern California Darts Ass'n v. Zaffina, 762 F.3d 921, 925-26 (9th Cir. 2014) (citing Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003), cert. denied, 541 U.S. 937 (2004)) (internal quotations omitted); see also Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846 (9th Cir. 2004). Conclusory statements are insufficient to defeat summary judgment. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 950 n.9 (9th Cir. 2011) (en banc), cert. denied, 565 U.S. 1200 (2012); see Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.”).
DISCUSSION
On undisputed facts, Plaintiff did not properly exhaust available administrative remedies before filing this action. Therefore, Defendants are entitled to summary judgment.
I. Exhaustion Requirement
Under the Prison Litigation Reform Act (“PLRA”), a prisoner must exhaust available administrative remedies before bringing an action in federal court challenging prison conditions. See 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.”). “Proper exhaustion” is required, which means that the inmate must use “all steps that the agency holds out, and do[] so properly (so that the agency addresses the issues on the merits).” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (citation, brackets and internal quotations omitted). The prisoner must comply “with the system's critical procedural rules. . . .” Id. at 90-91. A prisoner exhausts a multi-level grievance procedure only when the prisoner completes the final level of review. See Brown v. Valoff, 422 F.3d 926, 934, 937-38 (9th Cir. 2005) (under Booth v. Churner, 532 U.S. 731, 739 (2001), “prisoner plaintiffs must pursue a remedy through a prison grievance process as long as some action can be ordered in response to the complaint”; original emphasis); Harvey v. Jordan, 605 F.3d 681, 683-84 (2010) (discussing same under the requirements of California's prison system; once a prisoner has been “reliably informed by an administrator that no remedies are available, ” a prisoner is not required to exhaust further levels of review) (citations omitted).
Exhaustion is an affirmative defense as to which the defendant bears the burden of proof. Jones v. Bock, 549 U.S. at 212-17. A defendant moving for summary judgment on exhaustion grounds must carry an initial burden of showing that an available administrative remedy existed and that the prisoner did not exhaust that remedy. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir.) (en banc), cert. denied, 574 U.S. 968 (2014). Once the defendant has carried that burden, the prisoner must come forward with evidence “showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Id. (citation omitted). The ultimate burden of proof remains with the defendant, however. Albino v. Baca, 747 F.3d at 1172.
The prisoner need not pursue exhaustion “when circumstances render administrative remedies effectively unavailable.” Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017) (citations and quotations omitted); see Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (“the remedies must indeed be ‘available' to the prisoner”) (citation omitted). A remedy is unavailable if: (1) “it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) “an administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S.Ct. at 1859-60. These three categories are illustrative, not exhaustive. Andres v. Marshall, 867 F.3d at 1078. A remedy also may be unavailable if prison officials reject or cancel an appeal “for reasons inconsistent with or unsupported by applicable regulations.” Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010). Whether an administrative remedy is “effectively unavailable” is evaluated as of the time the prisoner brings the action. See Andres v. Marshall, 867 F.3d at 1079. “If the district judge holds that the prisoner has exhausted available administrative remedies, that administrative remedies are not available, or that a prisoner's failure to exhaust available remedies should be excused, the case may proceed to the merits.” Albino v. Baca, 747 F.3d at 1171.
“The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Fuqua v. Ryan, 890 F.3d 838, 845 (9th Cir. 2018) (quoting Jones v. Bock, 549 U.S. at 218).
II. CDCR's Exhaustion Procedures
The time frame of the events alleged in the First Amended Complaint spans the years 2014-19. Below, the Court discusses the two different exhaustion procedures applicable to California state prisoners' health care grievances during two different portions of this time frame.
From 2014 through August of 2017, the California Department of Correction and Rehabilitation's (“CDCR's”) exclusive “administrative process for inmate grievances was set forth in Title 15, Division 3, Chapter 1, Article 8 of the California Code of Regulations.” Demmings v. CDCR, 2020 WL 7774931, at *7 (C.D. Cal. Nov. 23, 2020), adopted 2021 WL 107254 (C.D. Cal. Jan. 12, 2021). During this time, these procedures applied to all inmate grievances, including grievances relating to health care. These procedures “involved three levels of appeals.” Robbins v. Cortez, 2020 WL 1137908, at *6 (C.D. Cal. Jan. 23, 2020) (citation omitted); Cal. Code Reg. tit. 15 § 3084.8(b), 3084.7(d)(3). “[A]ppeals had to be filed within thirty calendar days of the occurrence of the event or decision being appealed.” Demmings v. CDCR, 2020 WL 7774931, at *7; Cal. Code Reg. tit. 15 § 3084.8(b)(1). “Inmates initiated an appeal by submitting CDCR Form 602, which described the specific issue under appeal and relief requested, and stated all facts known and available to him/her regarding the issue being appealed.” Demmings v. CDCR, 2020 WL 7774931, at *7; Cal. Code Reg. tit. 15 § 3084.2(a), (a)(3)-(a)(4). “These procedures directed the prisoner to submit first and second level appeals to the appeals coordinator at the institution or parole region. . . .” Green v. Thiessen, 2019 WL 687877, at *12 (S.D. Cal. Feb. 19, 2019) (internal quotations and citation omitted); Cal. Code Reg. tit. 15 § 3084.2(c). “When received, the appeals coordinator determined whether the appeal was rejected or cancelled, or whether it could proceed.” Demmings v. CDCR, 2020 WL 7774931, at *7; Cal. Code Reg. tit. 15 § 3084.6. “To exhaust available administrative remedies, inmates were required to proceed through the third level of review.” Demmings v. CDCR, 2020 WL 7774931, at *7; Cal. Code Reg. tit. 15 § 3084.1(b). “At the third level of review, medical appeals were processed by the Office of Third Level Appeals for the California Correctional Health Care Services.” Green v. Thiessen, 2019 WL 687877, at *12 (citation omitted). “A cancellation or rejection decision did not exhaust administrative remedies.” Demmings v. CDCR, 2020 WL 7774931, at *7; Cal. Code Reg. tit. 15 §§ 3084.1(b), 3084.7(d)(3).
“On September 1, 2017, CDCR adopted a separate grievance procedure for healthcare issues.” Ramirez v. Johnson, 2019 WL 4198644, at *3 (C.D. Cal. June 19, 2019), adopted, 2019 WL 6486034 (C.D. Cal. Sept. 24, 2019); see Cal. Code Regs. tit. 15, §§ 3999.225-3999.237. The health care grievance procedure now involves only two levels. See Cal. Code Regs. tit. 15, §§ 3999.227-3999.230. First, an inmate must file a 602HC form “where the grievant is housed within 30 calendar days.” Cal. Code Regs. tit. 15, § 3999.227(b). “The grievant shall include any involved staff member's last name, first initial, title or position, and the date(s) and description of their involvement.” Cal. Code Regs. tit. 15, § 3999.227(g)(1). “The grievant is limited to one issue or set of issues related to a single health care discipline that can reasonably be addressed in a single health care grievance response.” Cal. Code Regs. tit. 15, § 3999.227(e). If the inmate is dissatisfied with the response to the initial grievance, the inmate can appeal by mailing a “health care grievance package” to the Health Care Correspondence and Appeals Branch of the CDCR. Cal. Code Regs. tit. 15, § 3999.229(a).
III. Evidence Relevant to the Exhaustion Issue
Plaintiff submitted only three grievance forms at any time after his 2014 strokes (see Plaintiff's Dep., p. 21:23-27:12, 29:1-5 [Defendants' Motion for Summary Judgment. (“Defendants' MSJ”), Ex. A]; Health Care Grievance LAC HC 18002015 [Defendants' MSJ, Ex. 2; Health Care Grievance LAC HC 18002141 [Defendants' MSJ, Ex. 3]; Health Care Grievance LAC HC 18002323 [Defendants' MSJ, Ex. 4]). The first form, submitted on June 13, 2018, alleged Plaintiff's physical therapist had failed to respond to Plaintiff's request that the therapist prepare documentation recommending Plaintiff be housed in a single cell (Health Care Grievance LAC HC 18002015 [Defendants' MSJ, Ex. 2]). The second form, submitted on July 9, 2018, alleged: (1) Plaintiff had received medical documents from the LAC prison medical authorities in June of 2018 stating that Plaintiff required physical therapy twice a week; and (2) this therapy “was/is not being provided” (Health Care Grievance LAC HC 18002141 [Defendants' MSJ, Ex. 3]). The third form, submitted on August 2, 2018, alleged Plaintiff was improperly denied single-cell status (Health Care Grievance LAC HC 18002323 [Defendants' MSJ, Ex. 4]).
During Plaintiff's deposition, which is Exhibit A to the Declaration of John B. Greene filed with Defendants' motion, documents attached to the deposition transcript were referenced as Exhibits 1 through 4.
Thus, Plaintiff's July, 2018 grievance was the only grievance that addressed in any way Plaintiff's alleged need for physical therapy. In response to this grievance, a prison employee interviewed Plaintiff on August 17, 2018 (Institutional Level Response [Resp. to Defendants' Motion for Summary Judgment (“Resp. to MSJ”), ECF Dkt. No. 52, Ex. A]). The “Institutional Level Response” stated that no intervention was necessary based in part on the fact that Plaintiff had received a physical therapy consult on May 2, 2018 and had been seen by a physical therapist beginning in August of 2018 (id.). Plaintiff appealed the Institutional Level Response (Health Care Grievance LAC HC 18002141 [Defendants' MSJ, Ex. 3]). On appeal, the “Headquarters' Level Response” stated that no intervention was necessary, again based in part on the fact that Plaintiff had received physical therapy beginning in August of 2018 (Headquarters' Level Response [Resp. to MSJ, ECF Dkt. No. 52, Ex. A]).
Plaintiff's exhibits do not contain consecutive page numbers. The Court uses the ECF pagination.
IV. Analysis
A. Plaintiff Failed Properly to Exhaust Available Administrative Remedies with Respect to the Claim Alleged in the First Amended Complaint.
The undisputed facts demonstrate that Plaintiff failed properly to exhaust available administrative remedies before filing this action. Plaintiff never submitted a grievance sufficient to put Defendants on notice of Plaintiff's present claim that Defendants were deliberately indifferent in regard to the 2014 physical therapy treatment plan of the doctors at Palmdale Regional Hospital (Defendants' MSJ, p. 9; see Plaintiff's Dep. [Defendants' MSJ, Ex. A]). Plaintiff's July, 2018 grievance (the only grievance regarding physical therapy) referenced only a therapy recommendation made in June of 2018 by prison medical authorities. Plaintiff's grievance said nothing concerning any alleged failure to follow the 2014 hospital treatment plan. Hence, Plaintiff did not properly exhaust administrative remedies with respect to the claim alleged in the First Amended Complaint.
In attempted avoidance of this conclusion, Plaintiff cites McCain v. Peters, 678 Fed.Appx. 534, 534 (9th Cir. 2017) (“McCain”). The McCain decision states that a plaintiff's “failure to include a particular legal theory . . . is not a valid basis for concluding that he did not exhaust administrative remedies.” The McCain decision is inapposite. Here, the insufficiency of Plaintiff's July, 2018 grievance was not the lack of a legal theory. The insufficiency was the lack of any factual allegation related to the 2014 hospital treatment plan that forms the predicate for Plaintiff's present action.
Plaintiff has failed to carry his burden of “showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” See Albino v. Baca, 747 F.3d at 1172. Plaintiff could have, but did not, use the three-level procedure available to him from 2014 through August of 2017. Plaintiff did use the two-level health care procedure available to him as of September of 2017. However, as discussed above, on none of the three occasions Plaintiff used this procedure did Plaintiff grieve the same claim alleged in the present action.
B. Defendants Have not Waived the Defense of Failure to Exhaust.
Plaintiff confusingly claims that his administrative remedies were exhausted “when the defendants allowed the grievance to proceed without any objection and provided answer [sic] to the complaint” (Resp. To MSJ, p. 6). As previously discussed, Plaintiff never submitted an administrative grievance sufficient to put Defendants on notice of Plaintiff's present claim, so there was nothing in the administrative proceedings to which Defendants could have been expected to object. Further, Defendants' Answer in this action pleaded as “Affirmative Defense NO. 6” “Plaintiff's failure to exhaust administrative remedies” (Answer, filed November 27, 2019, at p. 5). Plainly, there has been no waiver. See, e.g., Sanders v. Los Angeles County, 2019 WL 7882060, at *18 (C.D. Cal. Oct. 16, 2019), adopted, 2019 WL 8589406 (C.D. Cal. Dec. 31, 2019); see also Albino v. Baca, 747 F.3d 1162, 1168-71 (9th Cir.), cert. denied, 574 U.S. 968 (2014) (a motion for summary judgment, not an unenumerated motion to dismiss, is usually the proper procedural device for defendants to raise an exhaustion defense).
Thus, the insufficiency of Plaintiff's grievances was fundamentally substantive, not procedural. Compare Reyes v. Smith, 810 F.3d 654, 657-58 (9th Cir. 2016) (prison officials' failure to enforce a procedural bar during administrative proceedings can waive the exhaustion requirement). Plaintiff's grievances simply failed to address the claim Plaintiff later alleged in the First Amended Complaint.
C. The Court Should Not Defer Consideration of Defendants' Motion .
Plaintiff asserts he would have been able to show disputed issues of material fact “if he would have been allowed to receive [] requested discovery” (Resp. to MSJ, ECF Dkt. No. 52, p. 8; see Plaintiff's Req. for Produc. of Docs., etc. [Resp. to MSJ, ECF Dkt. No. 52, Ex. B]). Under Rule 56(d) of the Federal Rules of Civil Procedure, a court may defer consideration of a motion for summary judgment and allow additional time for discovery “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” “A party seeking to delay summary judgment for further discovery must state what other specific evidence it hopes to discover and the relevance of that evidence to its claims.” Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018), cert. denied, 139 S.Ct. 1222 (2019) (citations and internal quotations omitted). “[T]he requesting party must show that: (1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment.” Id. (citation and internal quotations omitted).
To the extent Plaintiff requests belated reconsideration of the denial of his July 6, 2020 discovery motions, reconsideration is denied. See Minute Order, filed August 4, 2020; Fed.R.Civ.P. 72(a); L.R. 7-18.
Rule 56(d) is inapplicable here. Plaintiff has failed to identify any evidence Plaintiff does not already possess which might bear on the dispositive issue in the present proceeding: the issue of whether Plaintiff properly exhausted available administrative remedies before filing this action. Rather, the discovery Plaintiff appears to request is relevant, if at all, only to the substantive merits of his claim. In these circumstances, deferring consideration of Defendants' motion would be an idle act. See Maljack Productions, Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 887-888 (9th Cir. 1996) (motion to pursue additional discovery properly denied where nonmoving party “listed a number of facts that, even if established, would not have precluded summary judgment”); Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir. 1994) (district court did not abuse discretion in denying motion where “the information sought by [the party opposing summary judgment] would not have shed light on any of the issues upon which the summary judgment decision was based”).
CONCLUSION AND RECOMMENDATION
Undisputed facts demonstrate that Plaintiff failed properly to exhaust available administrative remedies before bringing this action. Defendants are entitled to summary judgment.
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) granting summary judgment in favor of Defendants; and (3) dismissing the action without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.