United States District Court, C.D. California
Mark Bond, Plaintiff, Pro se, Mendota, CA.
For Mr Brown, (Pharmacist), Ms Valenzuela, Defendants: Donald W Yoo, United States Attorney's Office, Civil Division, Los Angeles, CA.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
HONORABLE PHILIP S. GUTIERREZ, UNITED STATES DISTRICT JUDGE.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, all documents filed in connection with the Motion for Summary Judgment filed by plaintiff (" Plaintiff's Motion") and the Motion for Summary Judgment filed by the remaining defendants Matthew Brown and Tiana Valenzuela-Lechuga (" Defendants' Motion"), and all of the records herein, including the attached Report and Recommendation of United States Magistrate Judge (" Report and Recommendation"), and plaintiff's objections to the Report and Recommendation (" Objections"). The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge and overrules the Objections.
Contrary to plaintiff's assertion in the Objections, a district court has discretion to consider arguments first raised in a reply to an opposition to a motion for summary judgment. See Lane v. DOI, 523 F.3d 1128, 1140 (9th Cir. 2008). A district court may also consider new evidence submitted in conjunction with a reply to an opposition to a motion for summary judgment where the opposing party has had an opportunity to respond. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996), cert. denied, 522 U.S. 808, 118 S.Ct. 48, 139 L.Ed.2d 14 (1997). Here, plaintiff responded to the reply through his filing of a surreply (Docket No. 112) -- a document which was initially stricken, but was nonetheless considered by the Magistrate Judge (see Report and Recommendation at 3 n.4), and was thereafter reinstated -- and through his Objections.
IT IS HEREBY ORDERED THAT: (1) Plaintiff's Motion is denied; (2) Defendants' Motion is granted; and (3) Judgment be entered accordingly.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Report and Recommendation on plaintiff and counsel for defendants.
IT IS SO ORDERED
Pursuant to the Order Accepting Findings, Conclusions, and Recommendations of United States Magistrate Judge, IT IS ADJUDGED that summary judgment is granted in favor of remaining ...