Mootry v. Flores et al

Filing 53

ORDER signed by Magistrate Judge Barbara A. McAuliffe on 1/1/2012 denying 51 Motion to amend objections and striking objections to Findings and Recommendations. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL MOOTRY,

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CASE NO. 1:09-cv-01252-LJO-BAM PC

Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION TO
AMEND OBJECTIONS AND STRIKING
OBJECTIONS TO THE FINDINGS AND
RECOMMENDATIONS

v.
E. G. FLORES, et al.,

(ECF No. 51, 52)
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Defendants.
/

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Plaintiff Michael Mootry (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 20, 2011, an order

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issued granting Defendants’ motion to dismiss and granting Plaintiff leave to file an amended

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complaint. On December 27, 2011, Plaintiff filed a motion to amend his objections to the finding

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and recommendations and objections.

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Plaintiff’s complaint was dismissed for failure to state a claim. In considering a motion to

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dismiss for failure to state a claim, the court generally considers only the pleadings and must accept

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as true the allegations in the complaint. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); Shaver

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v. Operating Engineers Local 428 Pension Trust Fund, 332 F.3d 1198, 1201, 1203 (9th Cir. 2002).

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A court may consider evidence that the complaint relies on, where the complaint refers to a

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document that is central to the complaint and no party questions the authenticity of the document.

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Marder, 450 F.3d at 448; see United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Plaintiff’s

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opposition sets forth new evidence and facts which are not included in his complaint and may not

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be considered in deciding the motion to dismiss. Accordingly, Plaintiff’s motion for leave to file an
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amended objections is HEREBY DENIED and Plaintiff’s objections are STRICKEN from the

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record.

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IT IS SO ORDERED.
Dated:
10c20k

January 1, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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