Bruce v. Chaiken et al

Filing 96

ORDER signed by District Judge Troy L. Nunley on 11/6/18 ADOPTING 91 FINDINGS AND RECOMMENDATIONS in full; and GRANTING in part and DENYING in part 37 Motion for Summary Judgment. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT C. BRUCE,

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No. 2:15-cv-0960-TLN-KJN

Plaintiff,
v.

ORDER

SHAMA CHAIKEN, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 31, 2018, the magistrate judge filed findings and recommendations herein

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. (ECF No. 91.)

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Defendants have filed objections to the findings and recommendations. (ECF No. 92.) Plaintiff

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filed a motion for extension of time to file objections. (ECF No. 93.) On September 28, 2018,

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Plaintiff was granted thirty days to file his objections. (ECF No. 94). Plaintiff has not filed

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objections to the findings and recommendations.

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In their objections, Defendants argue, in part, that Plaintiff’s claim that Defendant Ikegbu

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denied care for Plaintiff’s prostate for two weeks is improper because it was raised for the first

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time in the opposition to Defendants’ motion for summary judgment. (ECF No. 92 at 5.)

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Defendants did not raise this argument in the reply or supplemental reply. (See ECF Nos. 55 at
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8–10; 77 at 8–9.) Instead, Defendants addressed the merits of this claim. (See ECF Nos. 55 at 8–

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10; 77 at 8–9.)

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A district court has discretion, but is not required, to consider evidence or arguments

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presented for the first time in objections to findings and recommendations. See Brown v. Roe,

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279 F.3d 742, 744–45 (9th Cir. 2003); United States v. Howell, 231 F.3d 615, 621–22 (9th Cir.

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2000). Defendants had an opportunity to argue that Plaintiff waived his claim regarding

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Defendant Ikegbu’s alleged failure to treat his prostate in the reply and supplemental reply.

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Instead, Defendants addressed the merits of this claim. Based on this record, the magistrate judge

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also addressed the merits of this claim. (See ECF No. 91 at 41–45.) For these reasons, this Court

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declines to exercise its discretion to consider Defendants’ argument, raised in the objections, that

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Plaintiff’s claim that Defendant Ikegbu denied care for his prostate is improper because it was

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raised for the first time in the opposition to Defendants’ summary judgment motion.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the findings and recommendations to be supported by the record and by proper

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analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed August 31, 2018 are adopted in full; and

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2. Defendants’ summary judgment motion (ECF No. 37) is granted in part but denied as

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to Plaintiff’s claims that Defendant Nangalama violated the Eighth Amendment by prescribing

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the self-administered enema, and that Defendant Ikegbu violated the Eighth Amendment by

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failing to treat Plaintiff’s prostate related complaints on September 11, 2013.

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Dated: November 6, 2018

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Troy L. Nunley
United States District Judge

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