(PC) Zaiza v. Tamplen ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JOSE R. ZAIZA, No. 2:15-cv-447-KJM-EFB P 11 Plaintiff, 12 v. ORDER 13 D. TAMPLEN, et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 17 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 18 Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On March 1, 2019, the magistrate judge filed findings and recommendations, 20 which were served on all parties and which contained notice to all parties that any objections to 21 the findings and recommendations were to be filed within fourteen days. See Findings & 22 Recommendations (“Findings”), ECF No. 50. Both parties have filed objections to the findings 23 and recommendations. 24 In the Findings, the magistrate judge referred to a Health Care Services Request 25 Form plaintiff filed on November 5, 2012, which references plaintiff’s deliberate indifference 26 claims and is stamped to indicate it was reviewed by the third level of appeal. See Findings at 12 27 (citing ECF No. 1 at 74). For the first time in their objections, defendants supplement the record 28 regarding this document, purportedly showing that plaintiff did not include the deliberate 1 indifference claim in his second and third level appeals associated with the November 5, 2012 2 Health Care Services Request Form. See Defs.’ Objs., ECF No. 51, at 7–8 (citing Mathison 3 Decl., Ex. A, ECF No. 51-1, at 3–26). It is within the court’s discretion whether to consider new 4 evidence submitted with objections to Findings and Recommendations. Curtis v. Berryhill, No. 5 3:16-CV-1952-PK, 2018 WL 1535479, at *1 (D. Or. Mar. 29, 2018). 6 Plaintiff mailed his objections to the court before defendants filed theirs. See Pls.’ 7 Objs., ECF No. 52, at 4 (dated March 9, 2020). Therefore, plaintiff has not had the opportunity to 8 respond to defendants’ new evidence, introduced for the first time in the objections. To cure any 9 potential prejudice to plaintiff that may be caused by the court’s considering defendants’ new 10 evidence, the court hereby ORDERS that plaintiff is allowed twenty-one (21) days from the date 11 of this order to respond to the new evidence offered with defendants’ objections, ECF No. 51, 12 after which the court will review the Findings and Recommendations de novo and issue its order 13 on them. 14 IT IS SO ORDERED. 15 DATED: February 24, 2020. 16 17 18 19 20 21 22 23 24 25 26 27 28