K. Mwasi v. David J. Montoya et al

Filing 127

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge David O. Carter for Report and Recommendation (Issued) 123 , MOTION for Partial Summary Judgment 112 . 1. The Motion (Dkt. 112) is GRANTED; Plaintiff's Eighth Amendment deliberate indiff erence claim against defendants Montoya and Enriquez is DISMISSED with prejudice, to be reflected in the final judgment in this action; 2. Plaintiff's claims alleged against defendant Cash are DISMISSED without prejudice for failure to timely serve process under Rule 4, to be reflected in the final judgment in this action (see document for further details). (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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KING MWASI,

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Plaintiff,

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v.

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DAVID J. MONTOYA, et al.,
Defendants.

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No. 2:15-cv-04152-DOC (JDE)
ORDER ACCEPTING
AMENDED SUPERSEDING
REPORT AND
RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the records on file,
including the Complaint (Dkt. 1) filed by Plaintiff King Mwasi (“Plaintiff”),
Plaintiff’s First Amended Complaint (Dkt. 25, “FAC”), the Report and
Recommendation of the previously assigned United States Magistrate
regarding the FAC (Dkt. 27), this Court’s Order Accepting the Report and
Recommendation of the previously assigned Magistrate Judge regarding the
FAC, ordering dismissal of certain claims with prejudice (Dkt. 33), Plaintiff’s
operative Second Amended Complaint (Dkt. 71, “SAC”), the Motion for
Partial Summary Judgment as to Plaintiff’s Eighth Amendment deliberate
indifference claim against Defendants Enriquez and Montoya (Dkt. 112,
“Motion”), Plaintiff’s Opposition to the Motion (Dkt. 120), the Reply in

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support of the Motion (Dkt. 121), the Report and Recommendation as to the

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Motion issued by the currently assigned Magistrate Judge (Dkt. 123,

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“Report”), and Plaintiff’s Objections to the Report (Dkt. 126, “Objections”).

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With his Objections, Plaintiff purports to offer new a new declaration

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relating to the May 2011 “incident” at issue. Objections at 7-9. This

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declaration does not relate to the failure of service issue raised in the Report.

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See Report at 17-19. The Court has discretion but is not required to consider

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new evidence offered for the first time with objections to a Report and

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Recommendation. See United States v. Howell, 231 F.3d 615, 621-22 (9th Cir.

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2000). The Court exercises its discretion to not consider this new evidence

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relating to events from 2011, as Plaintiff had a full and fair opportunity to

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present evidence in opposition to the Motion, having received two extensions

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of time to do so, resulting in Plaintiff having more than three months to submit

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evidence in opposition to the Motion. Plaintiff does not explain here why such

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evidence was not submitted during that three-month period when such

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evidence was required to be presented to oppose the Motion. In addition, the

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day after the Motion was filed, Plaintiff was advised that he “must set out

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specific facts in declarations [etc.] . . .” with any opposition to the Motion if he

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contested facts raised in the Motion, and a failure to do so would result in

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“Defendants’ evidence being accepted as true.” See Dkt. 113 at 2. Plaintiff

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offers no explanation why the “new” declaration was not submitted with his

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Opposition. The Court declines to consider the new evidence here.

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The Court has engaged in a de novo review of those portions of the

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Report to which objections have been made. The Court accepts the findings

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and recommendation of the magistrate judge.

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Therefore, IT IS HEREBY ORDERED that:

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1.

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The Motion (Dkt. 112) is GRANTED; Plaintiff’s Eighth
Amendment deliberate indifference claim against defendants
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Montoya and Enriquez is DISMISSED with prejudice, to be

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reflected in the final judgment in this action;

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2.

Plaintiff’s claims alleged against defendant Cash are DISMISSED

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without prejudice for failure to timely serve process under Rule 4,

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to be reflected in the final judgment in this action;

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3.

As the time for the filing of dispositive motions has passed, the

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following claims remain to be tried: (1) Eighth Amendment

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excessive force claim against Montoya and Enriquez; (2) Eighth

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Amendment failure to intervene claim against Franklin; and (3)

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state law claims for assault, battery, and negligence against

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Montoya, Enriquez, and Franklin.

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4.

Per the terms of the referral order (Dkt. 3), the referral of certain

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pretrial matters to the assigned Magistrate Judge is terminated.

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The assigned Magistrate Judge is hereby authorized to investigate,

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and, if warranted, initiate and/or oversee ADR efforts and report

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results of such efforts by July 1, 2021. Other than such ADR

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efforts, the case is STAYED pending the conclusion of such ADR

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efforts or July 1, 2021, whichever occurs first.

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Dated: February 10, 2021

______________________________
HON. DAVID O. CARTER
United States District Judge

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