Opinion
5:23-cv-02164-WLH-JDE
02-22-2024
KARLIS RUBEN AUGUSTUS HOWARD, Petitioner, v. WARDEN M. GAMBOA, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
WESLEY L. HSU UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the original Petition (Docket No. 1), the Order to Show Cause issued by the assigned magistrate judge (Docket No. 5, “OSC”), Petitoiner's Response to the OSC (Docket No. 6), Petitioner's First Amended Petition (Docket No. 7), the Report and Recommendation of the magistrate judge (Docket No. 9, “Report”), and Petitioner's Objection to the Report (Docket No. 13).
On January 9, 2024, Petitioner filed an objection to the Report, which contained Petitioner's civil rights complaint for the first time. (Docket No. 13). Petitioner had multiple opportunities to provide his civil rights complaint, and in fact was required to do so per Judge Early's Order to Show Cause dated, October 27, 2023. (Docket No. 5). While the Court must conduct a de novo review of the magistrate judge's recommendation, the “district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation.” United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). Petitioner neglected to adequately explain, to the magistrate judge, his failure to provide the civil rights complaint in a timely manner, and therefore “[the Court] uph[olds] the magistrate judge's determination because it was based on the state of the record at that time.” Id. at 623.
IT IS THEREFORE ORDERED that Judgment shall be entered dismissing this action without prejudice.