(PROPOSED) ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

GEORGE H. KING, Chief District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed all of the records in this case, including the Original Complaint, the First Amended Complaint, the currently operative Second Amended Complaint, the October 3, 2012 and December 6, 2012 Orders of the United States Magistrate Judge dismissing the Original Complaint and portions of the First Amended Complaint ("Dismissal Orders"), this Court's February 10, 2015 Order Accepting Findings, Conclusions and Recommendation of United States Magistrate Judge ("February Order"), all documents filed in support of and in opposition to defendant Toure Muhammad's July 17, 2015 Motion for Summary Judgment ("Motion for Summary Judgment") (including a transcript of plaintiff's deposition ("Depo.")), the December 22, 2015 Report and Recommendation of United States Magistrate Judge ("Report and Recommendation" or "R&R") (including the Dismissal Orders which are incorporated therein), and Plaintiff's Objections to the Report and Recommendation ("Objections" or "Obj.").

The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made,1 and makes the following rulings thereon:

Objection No. 2 (Obj. at 4) — that the Report and Recommendation incorrectly treats a specified matter as "uncontroverted" — is OVERRULED. Contrary to plaintiff's contention, the statement in the Report and Recommendation that other Muslim inmates had become upset "[i]n response" to plaintiff's disagreement "with everything in the Quran" (R&R at 5:4-6) reflects, almost verbatim, plaintiff's own deposition testimony (Depo. at 74:8-16), and thus is considered an uncontroverted fact for purposes of summary judgment. Cf., e.g., Leslie v. Grupo ICA, 198 F.3d 1152, 1157 (9th Cir. 1999) (on summary judgment court may disregard "sham" affidavit "that a party files to create an issue of fact by contradicting the party's prior deposition testimony").

Objection No. 3 (Obj. at 5) — that the Report and Recommendation characterizes plaintiff's claim that defendant was "enraged," as merely an "assertion" by plaintiff even though it is an "undisputed fact" (R&R 5:13-15) — is OVERRULED. It is immaterial whether the statement that defendant Toure had become "enraged" during the August 10 Service (as that term is defined in the Report and Recommendation) is characterized as plaintiff's personal assertion or as an "uncontroverted" fact since the Report and Recommendation presumed such fact to be true in its analysis. (R&R at 11:24-26).

Objection No. 4 (Obj. at 5-6) — that the Report and Recommendation implies that it is uncontroverted that defendant only intended temporarily to remove plaintiff from Muslim services — is SUSTAINED IN PART AND OVERRULED IN PART. Although the Court does not read the sentence in issue (R&R 5:20-23) to make the implication suggested by plaintiff, the Court, for clarification, nonetheless replaces such sentence with the following: "Thereafter, plaintiff was removed from the Ramadan list and Muslim services, but plaintiff was reinstated on or about August 26, 2011 after he successfully appealed the removals. (SUF ¶¶ 16-17, 19; SAC at 5A-5B; Toure Decl. ¶¶ 8-10; Toure Ex. A; Depo. at 82)." To the extent Objection No. 4 seeks any other relief, it is OVERRULED.

Objection No. 5 (Obj. at 5) — that the Report and Recommendation suggests that it is uncontroverted that plaintiff is content and able to fulfill his religious duties properly while confined in his cell and not attending religious services — is OVERRULED. The Report and Recommendation's statement in issue — that plaintiff was "still able to practice his Islamic religion in his cell" at Centinela State Prison (R&R 6:14-17 (citing SUF ¶ 23; Depo. at 52-53)) is a correct characterization of the uncontroverted facts, and does not, as plaintiff contends, "suggest[] . . . that plaintiff is contented" with such an arrangement.

Objection No. 6 (Obj. at 6-7) — essentially that the Report and Recommendation fails to consider other alleged instances of defendant's retaliation post-dating the August 10 Incident (as defined in the R&R) — is OVERRULED. As the Report and Recommendation correctly indicates (R&R at 2 n.3), this Court previously dismissed plaintiff's claims in the Second Amended Complaint predicated on misconduct which allegedly occurred after the August 10 Incident. (Docket No. 90).

Objection Nos. 7-21 (Obj. at 7-12) are OVERRULED. Such objections essentially make the same arguments which plaintiff previously raised in opposition to the Motion for Summary Judgment, and which the Report and Recommendation properly concluded had no merit, and/or assert sweeping and unspecified challenges to the analysis underlying the Report and Recommendation's findings and conclusions. Except to the extent the Objections have been sustained as noted above, the

Court agrees with, and approves and accepts the Report and Recommendation (including the Dismissal Orders which are incorporated therein).

IT IS HEREBY ORDERED THAT: (1) the Original Complaint and the First Amended Complaint (except to the extent it asserts First Amendment free exercise and retaliation claims against defendant Muhammad in his individual capacity) are dismissed for the reasons stated in the Dismissal Orders; (2) defendant Toure Muhammad's Evidentiary Objections to Plaintiff's Opposition Evidence to the Motion for Summary Judgment are overruled as moot; (3) the Motion for Summary Judgment is granted; and (4) in accordance with this Order granting the Motion for Summary Judgment and the February Order, Judgment is to be entered in favor of defendants Captain Gonzalez and Toure Muhammad and against plaintiff.

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.