(PC) Tomasini v. Huggard ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL C. TOMASINI, No. 2:18-cv-3020 MCE CKD P 12 Plaintiff, 13 v. ORDER 14 JESSICA DUNCAN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 20, 2022, the magistrate judge filed findings and recommendations concerning 21 defendant Huggard’s motion for summary judgment which were served on all parties and which 22 contained notice to all parties that any objections to the findings and recommendations were to be 23 filed within fourteen days. Plaintiff has filed objections to the findings and recommendations. 24 With his objections, Plaintiff submits new evidence in form of his own assertions of fact 25 including a declaration attached to the objections. Plaintiff provides no explanation as to why this 26 evidence was not included with his opposition to defendant Huggard’s motion for summary 27 /// 28 /// 1 judgment and it does not appear the evidence could not have been.1 This being the case, the new 2 evidence is not considered. See U.S. v. Howell, 231 F.3d 615, 621-23 (9th Cir. 2000) (district 3 court has discretion whether to consider new evidence submitted with objections to findings and 4 recommendations). 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 6 Court has conducted a de novo review. Having carefully reviewed the entire file, the Court finds 7 the findings and recommendations to be supported by the record and by proper analysis. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed January 20, 2022, are ADOPTED in full; 10 2. Plaintiff’s request that the court stay ruling on defendant Huggard’s motion for 11 summary judgment is DENIED; 12 3. Defendant Huggard’s motion for summary judgment (ECF No. 80) is GRANTED; and 13 4. The Clerk of the Court is directed to close this case. 14 IT IS SO ORDERED. 15 DATED: March 31, 2022 16 17 18 19 20 21 22 23 24 25 26 1 As noted by the magistrate judge in the January 20, 2022 findings and recommendations, 27 plaintiff allegations of fact made under the penalty of perjury in plaintiff’s amended complaint, and plaintiff’s testimony at his deposition were considered in considering defendant Huggard’s 28 motion for summary judgment.