# (PC) Bland v. Rodriguez > District Court, E.D. California · September 29, 2020 URL: https://www.frixlaw.com/law-library/cases/10022355 ## Case - **Court:** District Court, E.D. California - **Decided:** September 29, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10022355 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA BLAND, No. 1:20-cv-00478-DAD-EPG (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 ROBERT RODRIGUEZ, et al., (Doc. No. 16) 15 Defendants. 16 17 Plaintiff Joshua Bland is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 18, 2020, the assigned magistrate judge screened plaintiff’s first amended 21 complaint (“FAC”) and issued the pending findings and recommendations. (Doc. No. 16.) The 22 magistrate judge found that plaintiff alleged cognizable failure to protect claims against 23 defendants Stark, Jaime, Rodriguez, Garay, Melendrez, Lewis, and Isais, but that he failed to 24 allege any other cognizable claim against any other defendant. (Id.) Accordingly, the findings 25 and recommendations recommended (1) that this action proceed on the claims found cognizable 26 and (2) the dismissal of all other claims and defendants with prejudice. (Id. at 10.) After 27 requesting and receiving an extension of time to file his objections, on September 3, 2020, 28 plaintiff filed objections to the pending findings and recommendations. (Doc. Nos. 17–19.) 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 2 conducted a de novo review of this case. Having carefully reviewed the entire file, including 3 plaintiff’s objections, the court finds the findings and recommendations to be supported by the 4 record and by proper analysis in part. 5 Plaintiff raises three objections to the pending findings and recommendations. (See Doc. 6 No. 19.) The court addresses each in turn. 7 With respect to the magistrate judge’s finding that plaintiff could not assert a due process 8 claim for deprivation of his property because California law provides him an adequate post- 9 deprivation remedy (Doc. No. 16 at 7–8), plaintiff contends that “he did complete the 10 Government Claims Act program/process, but was told the court would be the proper venue,” and 11 he contends that the process “is indeed futile and very inadequate” and he “thus . . . 12 challenges . . . the constitutionality of the entire statute as it impedes Pltf.’s First Amendment 13 right to petition the Government for redress.” (Doc. No. 19 at 1.) As an initial matter, and as 14 noted in the pending findings and recommendations, plaintiff has not alleged his compliance with 15 California’s Government Claims Act. For example, he has not attached to his FAC nor his 16 objections to the pending findings and recommendations the written claim he filed with the 17 California Victim Compensation and Government Claims Board or proof of that Board’s 18 acceptance or rejection of his claim. (Doc. No. 16 at 7–8.) Moreover, plaintiff’s objection that 19 requiring his compliance with the California Government Claims Act violates his First 20 Amendment rights is clearly frivolous. 21 With respect to the magistrate judge’s finding that plaintiff cannot assert a failure to 22 protect claim against defendant Huckleberry because “[t]here are no allegations in the [FAC] 23 suggesting that defendant Huckleberry knew that Plaintiff was being threatened” (id. at 9), 24 plaintiff for the first time alleges new facts in his objections, arguing that he told defendant 25 Huckleberry that he was being threatened. (See Doc. No. 19 at 1) (“After Huckleberry said 26 something to Rodriguez, Pltf. had reiterated to Huckleberry what he had just told Rodriguez in 27 concerns with the 25er’s presuring [sic] Pltf. for his paper work or they’ll kill him.”). Although 28 these new allegations were not included in the FAC, and although plaintiff has not moved 1 pursuant to Federal Rule of Civil Procedure 15 to amend his FAC to include these allegations, “a 2 district court has discretion, but is not required, to consider evidence or arguments presented for 3 the first time in objections to a report and recommendation.” Graham v. Langford, No. 16-cv- 4 1729-CAS-GJS, 2017 WL 3151232, at *1 (C.D. Cal. July 24, 2017) (citing Brown v. Roe, 279 5 F.3d 742 (9th Cir. 2002) and United States v. Howell, 231 F.3d 615 (9th Cir. 2000)). Here, the 6 magistrate judge found that the FAC alleged a failure to protect claim against defendant 7 Rodriguez based on allegations that are substantially similar to the new allegations that plaintiff 8 has alleged against defendant Huckleberry in his objections. See Crane v. Yarborough, No. 05- 9 cv-8534 DSF-JC, 2012 WL 1067956, at *1 (C.D. Cal. Mar. 29, 2012) (declining to exercise its 10 discretion to consider new facts alleged in objections to findings and recommendations where 11 “the new factual allegations contained in the Objections appear to per[t]ain to events which 12 significantly post-date the events in issue in this action and appear to involve prison officials who 13 are not defendants in this action”). Accordingly, the court will consider the newly asserted facts 14 that plaintiff has alleged his objections, and finds that with those allegations he has alleged a 15 cognizable failure to protect claim against defendant Huckleberry. 16 Finally, with respect to the magistrate judge’s finding that plaintiff “has only made vague 17 conclusory allegations regarding the existence of a conspiracy to allow inmates to attack him” 18 (Doc. No. 16 at 9–10), plaintiff contends that the allegations in his FAC sufficiently allege that 19 the defendants in this action conspired against him. (Doc. No. 19 at 1–2.) Plaintiff’s objection in 20 this regard, and his reiteration of conclusory allegations alleging a conspiracy, do not 21 meaningfully dispute the magistrate judge’s finding that the FAC fails to allege a conspiracy 22 claim. 23 Accordingly, 24 1. The findings and recommendations issued on August 18, 2020 (Doc. No. 16) are 25 adopted in part; 26 2. This action now proceeds only on plaintiff’s failure to protect claims against 27 defendants Stark, Jaime, Rodriguez, Garay, Melendrez, Lewis, Isais, and 28 Huckleberry; wOAOe □□ □□ UV T EE OOM PAR NSM PIC Vee OY Mt 1 3. All other claims and defendants are dismissed; and 2 4. The matter is referred back to the assigned magistrate judge for further 3 proceedings consistent with this order. 4 | IT IS SO ORDERED. a " 5 Li. wh F Dated: _ September 29, 2020 Sea 1" S098 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10022355. Public record. Not legal advice.