Opinion
NO. CV 10-9720-JFW (MAN)
08-24-2011
CALVIN E. COOKSEY, Plaintiff, v. HOURIE L. TAYLOR, et al., Defendants
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, all of the records herein, the Report and Recommendation of United States Magistrate Judge ("Report"), and plaintiff's Objections. The Court has conducted a de novo review of those matters to which objections have been stated in writing by plaintiff.
The Court notes that plaintiff has submitted new evidence with the Objections. A district court has discretion, but is not required, to consider evidence or claims presented for the first time in objections to a report and recommendation. See Brown v. Roe, 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). The Court exercises its discretion to consider the new evidence appended to plaintiff's Objections. Having done so, the Court concludes that this evidence does not affect the correctness of the Report's conclusions.
The Court accepts the findings and recommendations of the Magistrate Judge set forth in the Report. Accordingly, IT IS ORDERED that: defendants' motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure is denied; defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is granted; the First Amended Complaint is dismissed without leave to amend; and this action is dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on the parties.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE