Opinion
2:07-cv-1002-GEB-KJM-P.
September 30, 2009
ORDER
Plaintiff, who has been civilly committed and is proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On August 25, 2009, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days.
Plaintiff has filed objections to the findings and recommendations, to which defendants have replied. Plaintiff's objections include additional materials not presented as part of his motion for summary judgment, most notably copies of evaluations prepared by defendants Korpi and Vognsen.
This court has the discretion to consider or to reject evidence presented for the first time in objections to findings and recommendations. Jones v. Blanas, 393 F.3d 918, 935 (9th Cir. 2004); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). These reports reflect what defendants Korpi and Vognsen reported in their declarations: they were aware of the MDSO commitment and aware that it had been reversed, but did not rely on it in reaching their diagnoses. See Docket No. 32, Ex. B at 16, 19, 23-24 Ex. C at 3 at 16-19. He has also submitted a copy of the Clinical Evaluator Handbook, which cannot and does not show specifically what the defendants considered in reaching their diagnoses. Finally, he has submitted a copy of his mother's death certificate; although it does show that she died of chronic renal failure, it does not demonstrate that she could have been saved by a kidney transplant nor that plaintiff was eligible to donate a kidney to her. Even if this court considers these documents in connection with plaintiff's motion for summary judgment, it nevertheless finds that plaintiff has not borne his burden of demonstrating his entitlement to summary judgment.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed August 25, 2009, are adopted in full; and
2. Plaintiff's motion for summary judgment (docket no. 23) is denied.