Mark David Keller v. B Magana et al

Filing 60

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Cormac J. Carney for Report and Recommendation (Issued), 58 . IT IS HEREBY ORDERED that: (1) Plaintiff's Motion to Stay is DENIED; (2) Plaintiff's Motion to Strike is DENIED; (3) Defen dants' Motion to Dismiss Plaintiff's First Amended Complaint is GRANTED; (4) Plaintiff's Motion for Leave to Amend is DENIED; (5) Plaintiff's claims are dismissed without prejudice; and (6) Judgment shall be entered dismissing this action without prejudice. IT IS SO ORDERED. (san)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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MARK DAVID KELLER,

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Plaintiff,
v.
B. MAGANA, et al.,
Defendants.

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Case No. CV 12-5036-CJC (JEM)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

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On February 11, 2014, the United States Magistrate Judge issued a Report and

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Recommendation, recommending that: (1) Defendants’ Motion to Dismiss be granted; (2)

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Plaintiff’s Motion for Leave to Amend be denied; (3) Plaintiff’s Motion to Strike be denied; (4)

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Plaintiff’s Motion to Stay be denied; (5) Plaintiff’s claims be dismissed without prejudice; and

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(6) Judgment be entered dismissing this action without prejudice. Thereafter, on February 26,

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2014, Plaintiff filed Objections to the Report and Recommendation (“Objections”).

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To the extent Plaintiff argues in his Objections that the Prison Litigation Reform Act “may

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in its current form be unconstitutional by barring meaningful access to the Courts by prisoners”

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(Objections at 11), the Court declines to consider this belatedly-asserted claim that was not

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included in the First Amended Complaint or in the Opposition to Defendants’ Motion to Dismiss.

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A district court “has the discretion to decline to consider arguments presented for the first time

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in a party’s objections to a Magistrate Judge’s Findings and Recommendation.” Aleck v. United

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States, 2005 WL 2709502, at *1 (D. Or. 2005) (citing Jones v. Blanas, 393 F.3d 918, 935 (9th

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Cir. 2004) and United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000)). “[S]uch

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discretion has been exercised in this regard, especially when declining to address a new

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argument first raised in the objections.” Id. (citing Howell, 231 F.3d at 621-22). Plaintiff’s new

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argument was available to him at the time he filed his First Amended Complaint and/or the

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Opposition to the Motion to Dismiss, and Plaintiff offers no explanation for the failure to raise

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it earlier. (See, generally, Objections at 1-15.) Under the circumstances, the Court will exercise

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its discretion and decline to consider the new argument Plaintiff raised in his Objections. “Such

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a policy is reasonable since the referral mechanism is intended to help ease the heavy

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workloads of the district courts and to aid in the efficient resolution of disputes.” ISM Sports,

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Inc. v. Lemonia Gyro & Souvlaki, Inc., 2005 WL 1861308, at *2 (E.D.N.Y. 2005); see also

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Howell, 231 F.3d at 622 (“To require a district court to consider evidence not previously

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presented to the magistrate judge would effectively nullify the magistrate judge’s consideration

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of the matter and would not help to relieve the workload of the district court. . . . Equally

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important, requiring the district court to hear evidence not previously presented to the

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magistrate judge might encourage sandbagging.”).

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Plaintiff’s remaining contentions in the Objections are without merit and warrant no
comment.

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Based on the foregoing and pursuant to 28 U.S.C. § 636, the Court has reviewed the

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pleadings, the records on file, and the Report and Recommendation of the United States

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Magistrate Judge. Plaintiff has filed Objections, and the Court has engaged in a de novo review

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of those portions of the Report and Recommendation to which Plaintiff has objected. The Court

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accepts the findings and recommendations of the Magistrate Judge.

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IT IS HEREBY ORDERED that: (1) Plaintiff’s Motion to Stay is DENIED; (2) Plaintiff’s

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Motion to Strike is DENIED; (3) Defendants’ Motion to Dismiss Plaintiff’s First Amended

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Complaint is GRANTED; (4) Plaintiff’s Motion for Leave to Amend is DENIED; (5) Plaintiff’s

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claims are dismissed without prejudice; and (6) Judgment shall be entered dismissing this

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action without prejudice.

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IT IS SO ORDERED.
DATED: March 18, 2014
CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

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