Opinion
3:23-cv-5072-RJB-TLF
01-26-2024
DAVID MICHAEL AARON BAKER, Plaintiff, v. CHERYL STRANGE, et al., Defendants.
REPORT AND RECOMMENDATION
Noted for February 16, 2024
Theresa L. Fricke United States Magistrate Judge
This matter is before the Court on Defendants' filing of a motion for summary judgment. Dkt. 29. Plaintiff has brought suit under 42 U.S.C. § 1983 against Defendants for allegedly violating his First and Fourteenth Amendment rights when they rejected two forms of sexually explicit materials that were sent to Plaintiff while he was incarcerated within Airway Heights Corrections Center. Dkt. 9 (Complaint). This matter has been referred to the undersigned Magistrate Judge. Mathews, Sec'y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a). For the reasons set forth below, the undersigned recommends the Court should GRANT Defendants' motion for summary judgment and DISMISS Plaintiff's complaint with prejudice.
FACTUAL AND PROCEDURAL HISTORY
Under Washington Administrative Code (WAC) 137-48-040, “[I]ncoming mail to inmates may be disapproved for receipt” by the Washington State Department of Corrections (DOC), if the mail “is deemed to be a threat to legitimate penological objectives, including but not limited to, sexually explicit materials.”
WAC 137-48-020 defines “sexually explicit materials” as follows:
(13) “Sexually explicit materials” consist of any item displaying, portraying, depicting, or describing:
(a) Nudity, which includes exposed/visible (in whole or part, including under or through translucent/thin materials providing intimate physical detail) genitals/genitalia, anus, and/or female/transgender breast nipple(s);
(b) A sex act(s) which includes, but is not limited to, genital-genital, oral-genital, anal-genital, or oral-anal contact/ penetration, genital or anal contact/penetration with an inanimate object, masturbation, sadistic/masochistic abuse, bondage, bestiality, and/or bodily excretory behavior which appears to be sexual in nature;
(c) A participant(s) who appears to be nonconsenting, dominated, degraded, humiliated, or in a submissive role, and/or acting in a forceful, threatening, dominating, or violent manner which appears to be sexual in nature; and/or
(d) Minor(s), or models depicting minors, in a sexually suggestive setting/pose/attire.
Under DOC Policy 450.100, mail to or from incarcerated individuals may be rejected on the grounds that it “contains sexually explicit material per WAC 137-48-020 , including altered images, strategically placed graphics/items, or airbrushing.” See Dkt. 30 (Declaration of Tracy Schneider), Attachment A, at p. 23. If incoming mail is rejected, an incarcerated individual can appeal the mail rejection to the Superintendent or Designee of the facility; the incarcerated individual will be given notice of the results of their appeal. Id. at ¶11. If an incoming mail rejection is upheld by the Superintendent/Designee, an incarcerated individual can choose to appeal the decision of the Superintended/Designee to the Correctional Manager at DOC Headquarters. Id. at ¶12. The individual is again informed of the results of this second appeal. Id.
In addition, publications that are initially rejected as sexually explicit material per WAC 137-48-020 may be approved by the Publication Review Committee for artistic, health/medical, and educational purposes. DOC Policy 450.100.
On March 14, 2022, an image attached to an incoming a JPaymessage sent to Plaintiff was rejected by the prison's mailroom staff. See Dkt. 30 at Attachment B. The image was a photograph of a nude woman.
JPay is a private company that provides an electronic messaging service. See Dkt. 30 at ¶3.
Plaintiff was provided notice that the image was restricted, and he could appeal this rejection pursuant to DOC policy. See Dkt. 30 at Attachment B. Plaintiff appealed the rejection on March 15, 2022; the appeal was reviewed by Defendant Westfall, the facility's mailroom sergeant at the time. See Dkt. 30 at Attachment C. Defendant Westfall upheld the initial decision of rejecting the JPay message because it met the definition of “sexually explicit material” as defined under WAC 137-48-20 and DOC Policy 450.100. See id. Plaintiff filed a second appeal, which was reviewed by DOC Headquarters. On April 20, 2022, DOC Headquarters affirmed Defendant Westfall's decision to reject Plaintiff's mail under WAC 137-48-20. See id. at Attachment D.
On January 12, 2023, the prison's mailroom staff rejected a copy of the Sports Illustrated Swimsuit Edition magazine that was sent to Plaintiff because it contained sexually explicit material. Id. at Attachment E. Plaintiff appealed this rejection to the Superintendent designee, who upheld the rejection, noting that “[t]he magazine had multiple pictures of female breast nipples visible through translucent clothing. There is a picture of five completely nude children which shows full frontal nudity to include genitals, the children appear to be between the ages of six and 12 years old.” Id. at Attachments F and G.
DISCUSSION
A. Summary Judgment Standard
Summary judgment is supported “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Federal Rule of Civil Procedure (FRCP) 56(c). The moving party bears the initial burden to demonstrate the absence of a genuine dispute of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine dispute concerning a material fact is presented when there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986). A “material” fact is one which is “relevant to an element of a claim or defense and whose existence might affect the outcome of the suit,” and the materiality of which is “determined by the substantive law governing the claim.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
When the Court considers a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [their] favor.” Id. at 255. Yet the Court is not allowed to weigh evidence or decide credibility. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. If the moving party meets their initial burden, an adverse party may not rest upon the mere allegations or denials of their pleading; their response, by affidavits or as otherwise provided in FRCP 56, must set forth specific facts showing there is a genuine issue for trial. FRCP 56(e)(2). The Court may not disregard evidence solely based on its self-serving nature. Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497 (9th Cir. 2015).
In response to the motion for summary judgment, the nonmoving party is required to present specific facts, and cannot rely on conclusory allegations. Hansen v. U.S., 7 F.3d 137, 138 (9th Cir. 1993). The court must determine whether the specific facts that are presented by the non-moving party, considered along with undisputed context and background facts, would show that a rational or reasonable jury might return a verdict in the non-moving party's favor based on that evidence. Emeldi v. University of Oregon, 698 F.3d 715, 728-29 (9th Cir. 2012).
To state a claim under 42 U.S.C. § 1983, a complaint must allege: (a) the conduct complained of was committed by a person acting under color of state law, and (b) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. See Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of these elements are present. See Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985).
Plaintiff must show that each named defendant, through their own individual actions, violated Plaintiff's constitutional rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Liability under § 1983 arises upon a showing of personal participation by each defendant, and a supervisor is not liable for the constitutional violations of employees unless the supervisor “participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “Supervisory prison officials may be liable under § 1983 if they were ‘personally involved in the constitutional deprivation or a sufficient causal connection exists between [their] unlawful conduct and the constitutional violation.' ” Rico v. Ducart, 980 F.3d 1292, 1303 (9th Cir. 2020) (quoting Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062, 1085 (9th Cir. 2013)). “This causal connection can be established by ‘knowingly refusing to terminate a series of acts by others, which the supervisor[s] knew or should have known would cause others to inflict a constitutional injury.' ” Id. (quoting Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011)).
C. Plaintiff's Claims Against Defendants Strange, Key, Haynes, Rivera and Heinrich
While Plaintiff names Strange, Key, Haynes, Rivera and Heinrich as defendants, Plaintiff presents no evidence implicating their personal involvement in reviewing Plaintiff's incoming mail, either initially or on appeal. Additionally, to the extent these Defendants are included due to their roles as supervisors, Plaintiff presents no evidence they “participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d, 1040,1045 (9th Cir. 1989). As such, Defendants Strange, Key, Haynes, Rivera and Heinrich's motion for summary judgment should be GRANTED.
D. Plaintiff's First Amendment Claims
Plaintiff alleges that this First Amendment rights were violated when Defendants rejected his JPay message and Sports Illustrated magazine because the mailings contained sexually explicit material.
Plaintiff appears to raise both a facial and as-applied challenge to the rejection of his mailings. The Ninth Circuit has held that the difference between as-applied and facial challenges “lies only in whether all or only some ... subrules (or fact-specific applications) are being challenged, the substantive legal tests used in the two challenges are ‘invariant.' ” Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011). “The Turner analysis applies equally to facial and ‘as applied' challenges.” Bahrampour v. Lampert, 356 F.3d 969, 975 (9th Cir. 2004) (citing Morrison v. Hall, 261 F.3d 896, 905, 907 (9th Cir. 2001)); See Turner v. Safely, 482 U.S. 78, 89-90 (1987). Thus, the Court proceeds by considering Plaintiff's allegations jointly under Turner.
Inmates have “a First Amendment right to send and receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curium). However, an inmate's First Amendment rights are “necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987). “When a prison regulation impinges on inmates' constitutional rights ... the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); Thornburgh v. Abbott, 490 U.S. 401,413-14 (1989).
In determining whether a prison regulation regarding incoming mail is reasonably related to a legitimate penological interest, the following factors are considered: (a) whether there is a valid, rational connection between the regulation and the interest used to justify the regulation; (b) whether prisoners retain alternative means of exercising the right at issue; (c) the impact the requested accommodation will have on inmates, prison staff, and prison resources generally; and (d) whether the prisoner has identified easy alternatives to the regulation which could be implemented at a minimal cost to legitimate penological interests. Turner, 482 U.S. at 89-91; Thornburgh, 490 U.S. at 413-14.
As a threshold matter, Defendants have cited several valid penological interests that are served by restricting prisoner access to sexually explicit materials. Dkt. 30, Schneider Declaration, at ¶4. Tracy Schneider, a Correctional Manager, explains that sexually explicit material presents a threat to the safety and security of incarcerated individuals and staff within the facilities. Id. Sexually explicit material is continually being used as a form of currency in prison; negotiations take place between incarcerated individuals where sexually explicit material is traded for other products or services. The use of sexually explicit material as currency also leads to the coercion and strongarming of incarcerated individuals, with threats made against those who will not share sexually explicit material with others. Id. Further, sexually explicit material also poses a threat to the safety of staff members and other incarcerated individuals, as incarcerated individuals' viewing of sexually explicit material leads to increased instances of sexual harassment against incarcerated individuals and staff, especially female staff. Id. at ¶5.
Courts have recognized a “valid, rational connection between the prison regulation” and these concerns. See Thornburgh, 490 U.S. 401 (upholding the validity of a federal prison regulation restricting sexually explicit material); Mauro v. Arpaio, 188 F.3d 1054, 1057-63 (9th Cir. 1999) (en banc) (upholding a similar Arizona regulation which prohibited prisoners from possessing “sexually explicit materials,” defined as “materials that show frontal nudity,” including “personal photographs, drawings, and magazines and pictorials that show frontal nudity”); Bahrampour v. Lampert, 356 F.3d 969, 979 (9th Cir. 2004) (finding prison officials may prohibit receipt of sexually explicit materials in light of concerns about preventing the sexual harassment of prison guards and other inmates); Frost v. Symington, 197 F.3d 349, 357 (9th Cir. 1999) (applying the Supreme Court's Turner test to find a regulation prohibiting receipt of sexually explicit images in the prison did not unconstitutionally abridge the inmate's First Amendment rights); Powell v. Riveland, 991 F.Supp. 1249, 1254 (W.D. Wash. 1997) (finding DOC Policy 450.100 was parallel to the regulation upheld in Thornburgh and therefore facially valid); Clark v. Mason, 2007 WL 2417154, at *17 (W.D. Wash. Aug. 20, 2007) (same); Grenning v. Klemme, 34 F.Supp.3d 1144, 1155 (E.D. Wash. 2014) (holding “no constitutional right is violated when prison staff refuse to deliver sexually explicit materials to an inmate because it is reasonably related to penological interests”).
Plaintiff claims the JPay message and Sports Illustrated magazine depict modeling and have artistic value. This appears to be based on nothing more than Plaintiff's subjective opinion.
It is uncontested that under DOC policy 450.100, publications “initially rejected as sexually explicit material per WAC 137-48-020 may be approved by the committee for artistic, health/medical, and educational purposes.” This approval is discretionary. The JPay message depicted a nude woman and the Sports Illustrated magazine had multiple depictions of women in translucent clothing that showed female nipples and/or areolas, exposed buttocks, and an image of five completely nude children that displayed full frontal nudity including exposed genitalia. Plaintiff contends that the Sports Illustrated magazine could not have contained images of nude children. This statement, however, is conclusory and is simply based on his belief. Further, even if the magazine did not contain images of nude children, images of women in translucent clothing that showed female nipples and/or areolas, exposed buttocks still falls within the category of “sexually explicit” and can be rejected.
Plaintiff's opinion that the JPay message and magazine should have been approved as having artistic value does not overcome Defendants' legitimate penological interest in prohibiting sexually explicit mail.
The second Turner factor of an “alternative means” is satisfied because Plaintiff may receive mailings that do not depict nudity or sexually explicit content. Plaintiff has not presented evidence to show that he's unable to receive mail or publications that comply with Wash. Admin. Code § 137-48-020(13)(a). The third Turner factor regarding the impact of an accommodation on others is met because allowing sexually explicit images would have a profound impact of violence and other aggressive behaviors against inmates and staff. The final Turner factor is satisfied because there is no evidence of any reasonable alternative to the restriction.
Plaintiff's suggested alternative to the Department's exclusion of sexually explicit material is to “create an atmosphere that represents society and pro social behavior.” Dkt. 34, at 13. This is not a workable alternative, in light of the difficulty asserting any control over atmosphere in which reactions to these photographs will vary from one person to the next.
Thus, there is no genuine dispute of material fact as to whether Plaintiff's message implicated the valid penological interest of security in prohibiting sexually explicit material, or whether Defendants' actions in rejecting the letter were reasonable. Because the rejection of Plaintiff's JPay message and magazine were reasonably related to legitimate penological interests, this does not give rise to a First Amendment violation. Plaintiff has not shown that the DOC's regulation prohibiting incoming sexually explicit mail was either unconstitutional on its face or as applied. The Court recommends that Defendants' motion for summary judgment should be GRANTED as to this claim.
As discussed above, Defendants Strange, Key, Haynes, Rivera and Heinrich did not personally participate in Plaintiff's alleged constitutional violations. Further, while Defendant Westfall reviewed Plaintiff's first appeal of the rejection of his JPay message, Defendant Westfall had no further involvement. He did not review Plaintiff's second appeal or any appeal relating to the Sports Illustrated magazine. He retired from DOC in June 2022, which was prior to the date on which DOC rejected the Sports Illustrated magazine. Dkt. 26 (Answer) at ¶3.15.
E. Plaintiff's Equal Protection Clause Claim
The Fourteenth Amendment right to equal protection is applicable during incarceration. See e.g., Baumann v. Arizona Dep't of Corrections, 754 F.2d 841 (9th Cir. 1985). Where a plaintiff does not allege a violation of a fundamental right or the existence of a suspect classification, in order to satisfy the equal protection clause prison officials need only show that their policies bear a rational relationship to a legitimate penological interest. See Hill v. Washington State Dep't of Corr., 628 F.Supp.2d 1250, 1262 (W.D. Wash. 2009); see also Turner, 482 U.S. at 89-90; Coakley v. Murphy, 884 F.2d 1218, 1221-22 (9th Cir. 1989).
Plaintiff does not allege a violation of a fundamental right, as there is no fundamental right to having sexually explicit material in prison. To the extent he claims that as a heterosexual male, he is being “targeted” because “male models are not subject to the same scrutiny”, Plaintiff's claim is conclusory, and unsupported by any proof; it fails as a matter of law. Dkt. 9; Dkt. 34 at 11.
There is no basis for concluding that the mail policy is not applicable to materials depicting male models. The policy clarifies that publications will not be withheld based solely on their appeal to a particular sexual orientation. Dkt. 30 at Attachment A, p. 20. It also restricts representations of the genitals/genitalia of either gender. See WAC § 137-48-020(13)(a). Furthermore, Plaintiff does not show the DOC acted with an intent or purpose to discriminate against heterosexual males in adopting its policy. Without such a showing, Plaintiff's equal protection claim necessarily fails. See Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (“ ‘Discriminatory purpose' ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,' not merely ‘in spite of,' its adverse effects upon an identifiable group.”) (citation and footnote omitted). Therefore, Defendants' motion for summary judgment on Plaintiff's Equal Protection claim should be GRANTED.
F. Plaintiff's Due Process Clause Claim
Plaintiff claims that because DOC did not process his appeal of their rejection of the Sports Illustrated magazine as a “publication appeal,” his due process rights were violated. He further claims that he did not receive the notice of rejection of this appeal since he had already been transferred out of Airway Heights to Olympic Corrections Center.
Prisoners have a liberty interest in the receipt of mail, which triggers procedural due process guarantees. Krug v. Lutz, 329 F.3d 692, 696-967 (9th Cir. 2003). If prison officials withhold mail, a prisoner has due process right to receive notice that his incoming mail is being withheld. See Frost v. Symington, 197 F.3d 348, 353-54 (9th Cir. 1999); see also Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001) (holding that due process rights apply to withheld mail where prisoners had constitutionally protected right to receive the mail).
Prisoners have a due process right to appeal the exclusion of mail to a prison official other than the one who made the initial exclusion decision. See Krug, 329 F.3d at 697-98 & n. 5 (holding that due process safeguards of Martinez, and not Turner reasonableness standard, apply to withholding delivery of incoming publications, and prison's policy of not providing two-level review violates prisoner's procedural due process rights).
In this case, the undisputed evidence shows that Plaintiff had the requisite due process notice and right to appeal. Specifically, the record reflects that Plaintiff received notice that his mailings had been rejected. Dkt. 30 at Attachments B and E. The record further shows that Plaintiff appealed the rejection of his mailings. Dkt. 30 at Attachments C, D, G. Plaintiff's appeals were reviewed by a staff member other than the person who initially issued the rejection. Contrary to Plaintiff's assertion, his appeal relating to the Sports Illustrated magazine did only had to be reviewed by a prison official other than the one who made the initial exclusion decision, which is what occurred in this case.
With respect to Plaintiff's second claim -- that he did not receive notice that DOC rejected his second appeal of its decision to exclude the Sports Illustrated magazine -the rejection notice of his appeal was dated February 10, 2023. See Dkt. 30 at Attachment G. Plaintiff notified the Court that his transfer to Olympic Corrections Center was scheduled for February 13, 2023. Dkt. 5. In any case, Plaintiff was still provided with the minimum procedural safeguards, a two-level review of the DOC's determination that his mail was rejected. Dkt. 30 at Attachments E and G.
Thus, the Court recommends that Defendants' motion for summary judgment be GRANTED as to this claim.
G. Qualified Immunity
The Court should also grant Defendants' motion for summary judgment with respect to Plaintiff's request for damages because the Defendants are entitled to qualified immunity. Unless a plaintiff makes a two-part showing, qualified immunity shields government officials from liability. The plaintiff must show both: (a) that the official(s) violated a federal statutory or constitutional right and (b) that-at the time of the alleged act or failure to act-there was clearly established law that defined the contours of the federal right, such that every reasonable official would understand that what they are doing is unlawful. Escondido v. Emmons, 139 S.Ct. 500, 503 (2019).
When qualified immunity is reviewed in the context of a defense motion for summary judgment, the evidence must be considered in the light most favorable to the plaintiff with respect to central facts. Tolan v. Cotton, 572 U.S. 650, 657 (2014) (per curiam). If there is a genuine issue of material fact concerning both: (1) Whether it would be clear to a reasonable officer that their conduct was unlawful under the circumstances they confronted, and (2) Whether the defendant's conduct violated a constitutional right” then summary judgment granting qualified immunity is not appropriate. Bonivert v. City of Clarkson, 883 F.3d 865, 871-72 (9th Cir. 2018).
As discussed above, viewed in the light most favorable to Plaintiff, the facts do not show that Defendants' acts violated plaintiff's Constitutional rights. Accordingly, Defendants are entitled to qualified immunity because the first prong of the qualified immunity test is not satisfied.
H. Injunctive Relief
In his complaint, Plaintiff states that in addition to monetary damages, he seeks the Court to order DOC to “honestly evaluate material as a whole” and “end the infringement” of his constitutional rights. Dkt. 9 at 12.
Injunctive relief is a drastic remedy that should only be granted sparingly. See Munaf v. Geren, 553 U.S. 674, 689-90 (2008); Rizzo v. Goode, 426 U.S. 362, 378-79 (1976). To be entitled to a permanent injunction, the party seeking the injunction must actually succeed on the merits. See e.g., Valley View Health Care Inc. v. Chapman, 992 F.Supp.2d 1016, 1042 (E.D. Cal. 2014). Additionally, a party must show: (1) that the party has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. See eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).
Plaintiff is not entitled to injunctive relief because, as discussed above, he has failed to show a triable issue on the merits of his claims.
IN FORMA PAUPERIS STATUS ON APPEAL
The Court must also decide whether Plaintiff's in forma pauperis status should continue on appeal. See 28 U.S.C. §1915(a)(3) (“an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith”). The Court must determine whether appeal is frivolous or malicious, or whether it fails to state a claim on which relief may be granted. See 28 U.S.C. §1915(e)(2)(B)(i)&(ii).
While the Court was not persuaded on the merits of Plaintiff's claim, there is no evidence that his appeal is frivolous or is taken in bad faith. Accordingly, the Court recommends that in forma pauperis status should continue on appeal.
CONCLUSION
Based on the foregoing discussion, the undersigned recommends the Court GRANT Defendants' motion for summary judgment and dismiss Plaintiff's complaint. A proposed order and proposed judgment are attached.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed to set the matter for consideration on February 16, 2024, as noted in the caption.