(PC) Matthews v. Pinchback et al, No. 2:2022cv01329 - Document 62 (E.D. Cal. 2023)

Court Description: ORDER signed by District Judge Daniel J. Calabretta on 11/17/23 ADOPTING 53 Findings and Recommendations in full, GRANTING 20 Motion to Dismiss as follows: Defendant Pinchback's Motion to Dismiss Plaintiff's First Cause of Action a gainst Defendant Pinchback as barred by the statute of limitations is GRANTED; and Defendant Pinchback's Motion to Dismiss Plaintiff's Fourth through Seventh Causes of Action against Defendant Pinchback is GRANTED with LEAVE to AMEND. Plaintiff must file an amended complaint addressing only the pleading defects regarding his state law claims within 30 days. (Benson, A.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEREK MATTHEWS, 12 No. 2:22-cv-1329 DJC KJN P Plaintiff, 13 v. 14 ORDER DEMITA PINCHBACK, et al., 15 Defendants. 16 Plaintiff, a state prisoner proceeding through counsel, has filed this civil rights 17 18 action seeking relief under 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. On July 21, 2023, the Magistrate Judge filed findings and recommendations 20 21 herein which were served on all parties and which contained notice to all parties that 22 any objections to the findings and recommendations were to be filed within fourteen 23 days. Plaintiff filed objections to the findings and recommendations.1 24 25 26 27 28 In the objections, Plaintiff argues for the first time that the court should consider the medical challenges of plaintiff’s prior counsel in evaluating whether equitable tolling should apply. (ECF No. 54 at 4, n. 1.) Plaintiff cites ECF Nos. 21, 21-1 and ECF No. 32 (filed under seal) in support of this new argument. (Id.) Plaintiff fails to explain how prior counsel’s health challenges in 2022 contributed to prior counsel’s voluntary dismissal of Plaintiff’s previous case, 2:20-cv-2515, and the re-filing of plaintiff’s claims four months later in the instant action. Plaintiff also cites no authority in support of the 1 1 1 The Court has reviewed the file and finds the findings and recommendations to 2 be supported by the record and by the Magistrate Judge’s analysis. The findings and 3 recommendations filed July 21, 2023, (ECF No. 53), are adopted in full. Accordingly, 4 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, ECF No. 20, is GRANTED 5 as follows: 6 1. Defendant Pinchback’s Motion to Dismiss Plaintiff’s First Cause of Action 7 against Defendant Pinchback as barred by the statute of limitations is GRANTED; and 8 2. Defendant Pinchback’s Motion to Dismiss Plaintiff’s Fourth through Seventh 9 Causes of Action against Defendant Pinchback is GRANTED with leave to amend. 10 Plaintiff must file an amended complaint addressing only the pleading defects 11 regarding his state law claims within thirty days of the entry of this order. 12 13 14 15 16 IT IS SO ORDERED. Dated: November 17, 2023 Hon. Daniel J. Calabretta UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 argument that equitable tolling is available based on prior counsel’s health problems. The Court declines to consider this new and unsupported argument for equitable tolling raised in plaintiff’s objections. See United States v. Howell, 231 F.3d 615, 63122 (9th Cir. 2000) (district judge did not abuse discretion in refusing to consider factual allegations not presented to the magistrate judge); see also Brown v. Roe, 279 F.3d 742, 744–45 (9th Cir. 2002) (stating that 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). 2

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