Opinion
No. CIV S-05-0644 FCD GGH P.
March 15, 2007
ORDER
Plaintiff, a state prisoner 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 January 8, 2007, 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. Defendants have filed objections to the findings and recommendations to which plaintiff has filed a response.
In their objections, defendants seek to introduce new and further evidence that they argue "clarifies" how institutional safety and security would be implicated by plaintiff's move to a window-tinted cell and shows that plaintiff's current housing assignment reasonably accommodates plaintiff's myriad medical conditions. There is no explanation for why this effort was spared earlier and why this information was not before the magistrate judge. Indeed, there does not appear to be any reason that defendants did not produce supporting evidence at the appropriate time for the consideration of the magistrate judge. This belated effort constitutes an unjustifiable attempt to undermine the process and serves to abrogate the principles of judicial efficiency and economy.
It is within this court's discretion "not to consider evidence offered for the first time in a party's objections to a magistrate judge's proposed findings and recommendations . . ."Jones v. Blanas, 393 F.3d 918, 935 (9th Cir. 2004), citing Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002). The Ninth Circuit has plainly stated that requiring the district judge to consider evidence not previously set before the magistrate judge "would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." U.S. v. Howell, 231 F.3d 615, 622 (9th Cir. 2000).
Systemic efficiencies would be frustrated and the magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round. In addition, it would be fundamentally unfair to permit a litigant to . . . wait to see which way the wind was blowing, and — having received an unfavorable recommendation — shift gears before the district judge.Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Elec. Co., et al., 840 F.2d 985, 991 (9th Cir. 1988). This court elects to exercise its discretion not to consider the additional evidence presented by defendants for the first time in objections.
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 the record before the magistrate judge. Having made the appropriate review, 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 January 8, 2007, are adopted in full; and
2. Plaintiff's May 25, 2006, "emergency" motion for a preliminary injunction is GRANTED, and defendants are enjoined to place plaintiff in window tinted cell housing within 30 days.