ORDER ADOPTING FINDINGS AND RECOMMENDATION THAT DEFENDANT'S MOTION TO DISMISS THE COMPLAINT BE GRANTED IN PART

ORDER THAT PLAINTIFF FILE AN AMENDED COMPLAINT WITHIN 30 DAYS OF SERVICE OF THIS ORDER

(Doc. Nos. 47, 60)

DALE A. DROZD, District Judge.

Plaintiff Fernie Garza, a state prisoner represented by counsel, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on February 10, 2015. (Doc. No. 1.) The matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On July 8, 2016, the assigned magistrate judge issued findings and recommendations, recommending defendant's motion to dismiss the amended complaint (Doc. No. 47) be granted in part. (Doc. No. 60.) Specifically, the assigned magistrate judge recommended: (1) that defendants' motion be denied as to plaintiff's civil rights claims under 42 U.S.C. § 1983, and (2) that defendants' motion be granted as to plaintiffs' state law claims for general and medical negligence. (Id.) The findings and recommendations were served on plaintiff that same day and contained notice that any objections thereto were to be filed within fifteen days. (Id.) On July 18, 2016, plaintiff timely filed objections with respect to dismissal of his state law claims. (Doc. No. 61.)

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, including plaintiff's objections, the court finds the findings and recommendations to be supported by the record and by proper analysis.

"[A] district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation." United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). Nevertheless, arguments and factual allegations presented for the first time in objections cannot be used to correct the defects of the complaint. Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012) (holding it is within the district court's discretion "not to consider an opposition to a motion to dismiss inappropriately presented by plaintiff for the first time in objections"); see also 28 U.S.C. § 636(b)(1)(C).

In his objections, plaintiff alleges facts fleshing out several theories not addressed in either his amended complaint or in his opposition and supplemental briefing on the instant motion to dismiss. For the first time, in his objections plaintiff argues that the discovery rule tolls the date of accrual of his state law claims because he had no ability to investigate the prison staff's roles in placing him in housing with a dangerous inmate and that the accrual date with respect to those claims was also tolled by excusable neglect because he was incapacitated from the attack and could not act effectively on his own behalf. (Doc. No. 61 at 1-3.) Plaintiff's contentions are not inconsistent with the magistrate judge's finding that regardless of whether plaintiff's arguments for tolling the accrual date, this court lacks jurisdiction to hear such arguments. (Doc. No. 60 at 16-20.) In fact, plaintiff appears to concede as much. (See Doc. No. 61 at 6.)

Plaintiff further contends that the assigned magistrate judge erred by finding that "transfer" of the petition to the state superior court would be futile. (See Doc. Nos. 60 at 18-20; 61.) As the magistrate judge stated,

(Doc. No. 60 at 19-20.) While plaintiff acknowledges that a petition for relief from the claim presentation requirements of the Government Claims Act must be filed in a proper state court, he offers no legal basis for requiring this court to remand that issue to a state court. (See Doc. No. 61 at 5-6.) As the magistrate judge implied and as plaintiff concedes, the governing statue, California Government Code § 946.6, does not provide a procedure for remand, and plaintiff has not demonstrated here that such relief is possible or appropriate in any event.

Accordingly,

IT IS SO ORDERED.