Opinion
2:21-cv-06433-PA (MAR)
06-30-2024
RAFAEL MARTIROSYAN, Plaintiff, v. OFFICER BARIES, et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
PERCY ANDERSON, UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaints, the records on file, and the Report and Recommendation of the United States Magistrate Judge (“Report”). Further, the Court has engaged in a de novo review of those portions of the Report to which objections have been made.
The Report recommends consolidation of Plaintiff's two actions, the grant of Defendants' motions to dismiss in part, and the dismissal of certain Defendants. (ECF No. 171 at 2-3.) Plaintiff filed a Response to the Report. (ECF No. 174.)
Plaintiff asserts that he “is not [o]bjecting” to the Report. (ECF No. 174 at 1.) Rather, he is filing a “response” or “commenting” on the Report. (Id. at 2.) The response consists of a request that he be granted leave to amend his Complaint his claims against the California Department of Corrections and Rehabilitation (“CDCR”) Defendants. (ECF No. 174 at 2.) As the Report found, however, Plaintiff failed to state a claim against the CDCR Defendants, under any of the alleged theories of liability. (ECF No. 171 at 3, 35-36, 39, 44-45, 52.) Moreover, Plaintiff failed to seek leave to amend when he had an opportunity to do so earlier in the case, and instead requests it for the first time in his response to the Magistrate Judge's Report. Under these circumstances, leave to amend as to these Defendants is denied. See United States v. Howell, 231 F.3d 615, 623 (9th Cir. 2000) (holding that a district court has discretion to reject supplemental factual allegations presented for the first time in objections to the Magistrate Judge's Report when the litigant had an opportunity to present them earlier); see also Tabb v. NaphCare, 2023 WL 4638843, at *6 (W.D. Wash. July 20, 2023) (noting that a plaintiff generally cannot assert new facts or request leave to amend for the first time in objections to a Magistrate Judge's Report); Barbarin v. Madden, 2018 WL 6303889, at *2 (C.D. Cal. Nov. 29, 2018) (leave to amend was properly denied when requested for the first time in objections to a Magistrate Judge's Report).
It is ordered that (1) the Report and Recommendation is accepted; (2) Plaintiff's motions to consolidate are granted; (3) the Motions to Dismiss the Baries Second Amended Complaint are denied as moot; (4) the motion to dismiss the Baries Third Amended Complaint is granted with respect to Claims Four, Six, Eight, Eleven, Twelve, and Thirteen; (5) the motion to dismiss the Baries Third Amended Complaint is granted with respect to Claim Five against the City, Defendant Garcetti, and Villanueva in his official capacity only; (6) the Motion to dismiss the Baries Third Amended Complaint is denied in all other respects; (7) the second Motion to Dismiss the Baries Third Amended Complaint is denied; (8) the County Defendants' Motion to Dismiss the St. Andre Complaint with respect to Claim Three against Defendant Erzkin is denied; (9) the County Defendants' Motion to Dismiss the St. Andre Complaint is granted in all other respects; (10) the CDCR Defendants' motion to dismiss the St. Andre Complaint is granted; and (11) the City, Defendant Garcetti, the CDCR Defendants, John Doe 1, John Doe 2, LASD, Mabee, and Valdez are terminated as Defendants.
It is further ordered that the remaining claims are the following: (1) a First Amendment claim against Erzkin, Hayley, Baries, Sylva, and Ramos; (2) an Eighth Amendment claim against Hayley, Baries, Sylva, Beccerra, Bernard, Ramos, Mancilla, and Villanueva; and (3) and Eighth Amendment Monell claim against the County.