(PC) Shockner v. Soltanian ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MANFRED SHOCKNER, No. 2:18-cv-01948-TLN-KJN 12 Plaintiff, 13 v. ORDER 14 SOLTANIAN, 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 March 18, 2022, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within fourteen days. (ECF No. 125.) 23 Plaintiff has filed objections to the findings and recommendations. (ECF No. 129.) 24 The magistrate judge recommended that Defendants’ motion to dismiss Plaintiff’s claim 25 that Defendant Smith approved Defendant Soltanian-Zadeh’s decision to discontinue Plaintiff’s 26 methadone as barred by the statue of limitations be granted. The magistrate judge recommended 27 that the related claim against Defendant Solanian-Zadeh be dismissed as barred by the statute of 28 limitations, as Defendant Soltanian-Zadeh joined the motion to dismiss. 1 In his objections, Plaintiff raises a new claim for equitable tolling. Plaintiff alleges that he 2 “has been physically unable to process the case as he was hospitalized for right hip surgery and 3 subsequent rehabilitation at COR OHU, for a period of over six and possibly up to nine months.” 4 (ECF No. 129 at 5.) 5 The Court has discretion to consider new arguments raised in objections to findings and 6 recommendations. Brown v. Roe, 279 F.3d 742, 745-46 (9th Cir. 2002). For the following 7 reasons, the Court declines to consider Plaintiff’s new argument for equitable tolling raised in his 8 objections. While Plaintiff is a pro se litigant, Plaintiff knew of the grounds for the new argument 9 for equitable tolling when he filed his opposition to the pending motion. Plaintiff’s new argument 10 was not based on a “novel claim under a relatively new statue.” Brown, 279 F.3d at 745. 11 Even if the Court considered Plaintiff’s new argument raised in his objections, the Court 12 would find that Plaintiff did not allege sufficient facts supporting a colorable claim for equitable 13 tolling. See Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999). While Plaintiff alleges in his 14 objections that he could not “process” this case for six to nine months due to hip surgery, Plaintiff 15 does not allege when this hip surgery occurred. Without this information, the Court cannot find 16 that Plaintiff made a colorable claim for equitable tolling based on hip surgery. 17 Moreover, as discussed in the findings and recommendations, Plaintiff had two years from 18 March 13, 2014, to file a timely complaint. (ECF No. 125 at 9.) Plaintiff filed this action on June 19 28, 2018. (Id.) Plaintiff’s alleged nine month recovery from hip surgery would not explain the 20 over two year delay in the filing of this action. 21 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 22 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 23 Court finds the findings and recommendations to be supported by the record and by proper 24 analysis. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The Findings and Recommendations filed March 18, 2022, (ECF No. 125), are adopted 27 in full; and 28 2. Defendants’ Motion for Judgment on the Pleadings (ECF No. 106) is GRANTED; 1 3. Plaintiff's claim alleging that Defendant Smith approved Defendant Soltanian-Zadeh’s 2 | decision to discontinue Plaintiff's methadone is DISMISSED; 3 4. Plaintiffs claim alleging that Defendant Soltanian-Zadeh discontinued Plaintiffs 4 | methadone is DISMISSED. 5 | DATE: June 15, 2022 8 Troy L. Nunley 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28