United States of America ex rel v. Peters

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, ex rel. Case No. 2:14-cv-01982-SU

ARLEN SMITH, JERRY HARRYMAN, and

ROTISH SINGH, ORDER

Plaintiffs-Relators,

and

ARLEN SMITH, JERRY HARRYMAN, and

ROTISH SINGH, on behalf of themselves and on

behalf of all others similarly situated,

Plaintiffs,

v.

COLETTE S. PETERS, Director, Oregon

Department of Corrections; BRIAN BELLEQUE,

Acting Deputy Director, Oregon Department of

Corrections; MITCH MORROW, Deputy Director,

Oregon Department of Corrections; MIKE

GOWERS, Assistant Director, Oregon Department

of Corrections; STEVEN FRANKS, Administrator,

Oregon Department of Corrections; KIM

BROCKAMP, Administrator, Oregon Department

of Corrections; KETTY RATHS, Administrator,

Oregon Department of Corrections; ANITA

NELSON, Administrator and Manager of

Commissary Operations, Oregon Department of

Corrections; MARK NOOTH, Assistant

Director, Oregon Department of Corrections;

and JOHN DOES numbers one through ten,

Defendants.

HERNÁNDEZ, District Judge:

Magistrate Judge Sullivan issued a Findings and Recommendation [109] on October 29,

2019, in which she recommends the Court grant Defendants’ Motion to Dismiss [98]. Plaintiffs

timely filed objections to the Findings and Recommendation. The matter is now before the

Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

When any party objects to any portion of the Magistrate Judge’s Findings and

Recommendation, the district court must make a de novo determination of that portion of the

Magistrate Judge’s report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932 (9th

Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

The Court has carefully considered Plaintiffs’ objections. As an initial matter, Plaintiffs

raise a number of issues in their objections that were not briefed before Judge Sullivan. For

example, Plaintiffs argue they have successfully pleaded a new claim for the “fraudulent use of

interagency mail” under the False Claims Act. The Court declines to address issues raised for the

first time on review. See Brown v. Roe, 279 F.3d 742, 745–46 (9th Cir. 2002) (rejecting the

Fourth Circuit’s holding that a district court must consider new arguments raised for the first

time in an objection to a magistrate judge’s F&R); United States v. Howell, 231 F.3d 615, 622

(9th Cir. 2000) (district courts have discretion to consider new evidence raised for the first time

in an objection to a magistrate judge’s F&R); Olmos v. Ryan, No. CV–11–00344–PHX–GMS,

2013 WL 3199831, at *8 (D. Ariz. June 24, 2013) (“Generally, a district court need not consider

new arguments raised for the first time in objections to an R & R.”). The Court concludes that

the remaining objections do not provide a basis to modify the recommendation. The Court has

also reviewed the pertinent portions of the record de novo and finds no error in the Magistrate

Judge’s Findings and Recommendation.

CONCLUSION

The Court adopts Magistrate Judge Sullivan’s Findings and Recommendation [109].

Accordingly, Defendants’ Motion to Dismiss [98] is GRANTED and this action is dismissed

with prejudice and without leave to amend.

IT IS SO ORDERED.

DATED: ________________A_p__ri_l_ 8__, _2_0__2_0___________________________.

MARCO A. HERNÁNDEZ

United States District Judge