Flournoy v. Sacramento County Sheriff Dept et al

Filing 179

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/29/2017 DENYING 176 Motion to Supplement Discovery Response to Plaintiff's Oppositions to Each Defendants Motion for Summary Judgment. (York, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES HENRY FLOURNOY,

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Plaintiff,

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No. 2:11-cv-2844-KJM-EFB P

v.
SACRAMENTO COUNTY SHERIFF
DEP’T, et al.,

ORDER

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. On September 25, 2017, the court recommended that defendant Bauer and
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Sahba’s motions for summary judgment be granted, and that defendant Kinder’s motion for
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summary judgment be granted and denied in part.1 ECF No. 175. Plaintiff has now filed a

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motion entitled “Motion to Supplement Discovery Response to Plaintiff’s Oppositions to Each
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Defendants Motion for Summary Judgment.” ECF No. 176. Plaintiff states that he “recently
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discovered” that portions of his oppositions to defendants’ motions were “incomplete” and he “is
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simply including that formerly excluded evidence by way of this motion.” Id. at 1.
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Plaintiff has been granted an extension of time to file objections to those findings and
recommendations. ECF No. 178.
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The purpose of plaintiff’s motion is not clear. Because it is procedurally and substantively

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deficient, it will be denied. Briefing on the summary judgment motions has long since concluded

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and there is no basis for submitting new “evidence” at this time. If the additional evidence is

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intended to support any objections plaintiff intends to file to the pending findings and

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recommendations, he may say so in those objections and explain how the evidence relates to his

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arguments. Plaintiff should be aware, however, that the court is not required to consider new

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evidence presented with objections. See Rojas v. Marko Zaninovich, Inc., No. 1:09-cv-705-AWI-

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JLT, 2012 U.S. Dist. LEXIS 51787, at *37-39 (E.D. Cal. Apr. 12, 2012) (reasoning that allowing

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new evidence with objections would defeat the reasons for referring motions to magistrate judges

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and not assist the court). The court also notes that if this district judge adopts the findings and

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recommendations, this case will proceed to trial against defendant Kinder on an excessive force

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claim. At trial, plaintiff will have the opportunity to present additional evidence.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s “Motion to Supplement

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Discovery Response to Plaintiff’s Oppositions to Each Defendants Motion for Summary

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Judgment” (ECF No. 176) is denied.

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DATED: November 29, 2017.

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