December 19, 2013
FRANK GALLEGOS, Plaintiff,
R. TRONCOSO, et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
GEORGE H. WU, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, all of the records herein, Defendants' motion to dismiss the First Amended Complaint ("Motion") and the parties' related briefing, the Report and Recommendation of United States Magistrate Judge ("Report"), and Plaintiff's Objections to the Report. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the Court has conducted a de novo review of those matters to which objections have been stated in writing.
To the extent that Plaintiff contends he did not receive "contemporaneous notice" pursuant to Wyatt v. Terhune , 315 F.3d 1108 (9th Cir. 2003) ( see Objections at 5), his assertion is untrue. Both Defendants and the Court provided such notice to Plaintiff in conjunction with the filing of the Motion ( see Docket Entries 45-46.)
The arguments set forth in the Objections repeat those set forth in Plaintiff's numerous filings in opposition to the Motion, and they were considered by the Magistrate Judge and rejected by her. The Court notes, however, that Plaintiff has appended to his Objections documents that were not presented to the Magistrate Judge, including copies of documents relating to administrative grievances bearing 2012 and 2013 dates that post-date both the filing dates of the original Complaint in this case and the First Amended Complaint. A district court has discretion, but is not required, to consider evidence or claims presented for the first time in objections to a report and recommendation. See Brown v. Roe , 279 F.3d 742, 744-45 (9th Cir. 2002); United States v. Howell , 231 F.3d 615, 621-22 (9th Cir. 2000). The Court has exercised its discretion to consider these new documents, but concludes that they do not affect or alter the analysis and conclusions set forth in the Report, including that Plaintiff failed to exhaust his available administrative remedies before raising his claims in this Court.
Having completed its review, the Court accepts the findings and recommendations set forth in the Report.
IT IS ORDERED that: (1) Defendants' Motion is GRANTED, pursuant to Rule 12(b)[unenumerated] of the Federal Rules of Civil Procedure, for failure to exhaust administrative remedies; and (2) Judgment shall be entered dismissing this action without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.