Summary
declining to exercise its discretion to consider new facts alleged in objections to findings and recommendations where "the new factual allegations contained in the Objections appear to per[t]ain to events which significantly post-date the events in issue in this action and appear to involve prison officials who are not defendants in this action"
Summary of this case from Bland v. RodriguezOpinion
Case No. CV 05-8534 DSF(JC)
03-29-2012
RICHARD JOSEPH CRANE, Plaintiff, v. M. YARBOROUGH, et al., Defendants.
ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative Second Amended Complaint and all of the records herein, including the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"), and plaintiff's objections to the Report and Recommendation and attachments thereto ("Objections"). The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made.
To the extent plaintiff proffers new facts, theories and legal arguments for the first time in the Objections, the Court declines to consider them. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000), cert. denied, 534 U.S. 831 (2001). The Court notes, in any event, that the new factual allegations contained in the Objections appear to pertain to events which significantly post-date the events in issue in this action and appear to involve prison officials who are not defendants in this action and who instead are employed at a prison outside the Central District of California.
Based upon the Court consideration of the foregoing documents and the record and its de novo review, the Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge and overrules the Objections.
IT IS HEREBY ORDERED that (1) the Second Amended Complaint is dismissed without leave to amend; and (2) Judgment be entered accordingly.
Plaintiff's official capacity and First Amendment retaliation claims are alternatively stricken without leave to amend.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Report and Recommendation, and the Judgment herein on plaintiff and on counsel for defendants.
IT IS SO ORDERED.
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HONORABLE DALE S. FISCHER
UNITED STATES DISTRICT JUDGE