Opinion
2:06-cv-1836-GEB-KJM-P.
June 29, 2009
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 September 24, 2008, 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 received a lengthy extension of time and has now filed objections to the findings and recommendations.
These objections are supported by new evidence not presented in opposition to the motion for summary judgment; in fact, these objections could more properly be deemed to be his opposition to the motion for summary judgment rather than the four page pleading he filed. For example, he has provided his own declaration about and the declarations of inmates Lewis Jenkins, Rosevelt Bohanon, but does not explain why he did not submit the latter two declarations, both signed in 2003, with his opposition to the motion for summary judgment or what prevented him from adding his own declaration to his original opposition.
Moreover, these objections seek to add claims that were not part of the amended complaint: that defendant Summerhill retaliated against him, that defendant Chapman interfered with plaintiff's attempts to make a record by refusing plaintiff's request to call witnesses at the rules violation hearing, and that defendant St. Andre violated plaintiff's rights by leaving him in a holding cell for many hours. See Docket No. 55 at 8-9, 13-14, 16. Although plaintiff included a claim of retaliation in his original complaint, he dropped it in the amended complaint, which was ordered served on the defendants. Moreover, he attempted to amend this complaint to add a prayer for punitive damages, yet did not seek to include these new constitutional claims against defendants.
This court has the discretion to consider or to reject claims and 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); Bovarie v. G.J. Giurbino, 558 F.Supp.2d 1030, 1045 n. 1 (C.D. Cal. 2008) (claims). Plaintiff has made no attempt to demonstrate or explain why he failed to present the new claims, argument and evidence earlier.
The court therefore exercises its discretion not to consider the new evidence and claims presented in the 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 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 September 24, 2008, are adopted in full; and
2. Defendants' motion for summary judgment is granted.