Sessing v. Beard, et al.

Filing 41

ORDER Denying Plaintiff's Motion For Leave To Amend The Complaint (ECF No. 38 ), signed by Magistrate Judge Michael J. Seng on 9/3/2015. (Fahrney, E)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9

NATHAN SESSING,

10
11

Plaintiff,
v.

12

JEFFREY BEARD, et al.,

13

Case No. 1:13-cv-01684-LJO-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO AMEND THE
COMPLAINT

Defendants.

14

I.

(ECF No. 38)

PROCEDURAL HISTORY

15
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights
16
17

action pursuant to 42 U.S.C. § 1983. Findings and recommendations addressing the

18

claims in Plaintiff’s Fourth Amended Complaint are currently pending. Before the Court is

19

Plaintiff’s motion for leave to file a Fifth Amended Complaint. (ECF No. 38).

20
21
22

The Court originally issued findings and recommendations to dismiss Plaintiff’s Third
Amended Complaint with prejudice on March 30, 2015. (ECF No. 25.) In response to
Plaintiff’s objections (ECF No. 32), however, the Court vacated the findings and

23
recommendations and permitted Plaintiff to file an amended complaint. (ECF No. 33.)
24
25

After Plaintiff filed his Fourth Amended Complaint (ECF No. 34), the Court issued new

26

findings and recommendations on June 29, 2015, recommending that service proceed on

27

Plaintiff’s Equal Protection claim and that his First Amendment and RLUIPA claims be

28

dismissed. (ECF No. 35.) Plaintiff has been granted two extensions of time to file objections
1

1

to the findings and recommendations (ECF Nos. 37 & 40), and his objections are due on

2

September 30, 2015. He filed his motion to amend the complaint on August 5, 2015. (ECF

3

No. 38.)

4
II.

MOTION TO AMEND

5
Plaintiff’s basis for amending his complaint is that he “possesses evidence” that “will

6
7

highlight the essential nature of a fire pit within the practice of Odinism,” and thus

8

presumably support reevaluation of the RLUIPA and/or First Amendment claims that the

9

Court has found to be non-cognizable under the circumstances alleged. (ECF No. 38, at 1.)

10
11

However, Plaintiff also indicates that he is willing to include the “evidence” in his objections,
“if the Court makes it clear it will accept new evidence in objections to the magistrate’s

12
13
14
15

findings and recommendations.” (Id.)
III.

DISCUSSION
The Court does not consider “evidence” in screening orders or in the objections

16

thereto, but, instead analyzes the adequacy of factual allegations, all of which are taken as

17

true at this stage of litigation. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to survive

18
19

dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a
claim that is plausible on its face”)(citations omitted); see also Maldonaldo v. Yates, No.

20
21
22
23

1:11-cv-01885, 2013 WL 2457479, at *1 (E.D. Cal. June 6, 2013 (withdrawing findings and
recommendations where plaintiff alleged new facts in objections).
Meanwhile, 28 U.S.C. § 636(b)(1) expressly allows any party to object to a

24

magistrate judge’s findings and recommendations, and requires a district judge to make a

25

de novo determination of the portions of findings and recommendations to which objection

26

is made. In other words, Plaintiff is free to object – on factual or legal grounds – to any part

27
of the Court’s June 29, 2015 findings and recommendations, and the district judge is
28
required, by law, to consider Plaintiff’s objections in determining whether or not to adopt the
2

1

findings and recommendations. In addition, the magistrate judge may, in response to

2

information in a party’s objections, vacate its own findings and recommendations, as this

3

Court did after reviewing Plaintiff’s objections to its March 30, 2015 findings and

4
recommendations. (ECF No. 33.)
5
Insofar as it appears that Plaintiff’s only basis for amending his complaint is concern

6
7

that his objections will not be considered, the Court advises him that 28 U.S.C. § 636(b)(1)

8

directs consideration of his objections, including whether they raise new legal or factual

9

issues. Therefore, the Court will deny Plaintiff’s motion to amend.

10
11

IV.

ORDER
Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for leave to file an

12
13

amended complaint (ECF No. 38) is DENIED.

14
15

IT IS SO ORDERED.

16
Dated:
17

September 3, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
3