1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RAFAEL MARTIROSYAN, Case No. 2:21-cv-06433-PA (MAR)

12 Plaintiff, ORDER ACCEPTING FINDINGS AND 13 v. RECOMMENDATIONS OF UNITED

STATES MAGISTRATE JUDGE

14 OFFICER BARIES, et al., 15 Defendants. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaints, the 19 records on file, and the Report and Recommendation of the United States 20 Magistrate Judge (“Report”). Further, the Court has engaged in a de novo review of 21 those portions of the Report to which objections have been made. 22 The Report recommends consolidation of Plaintiff’s two actions, the grant of 23 Defendants’ motions to dismiss in part, and the dismissal of certain Defendants. 24 (ECF No. 171 at 2-3.) Plaintiff filed a Response to the Report. (ECF No. 174.) 25 Plaintiff asserts that he “is not [o]bjecting” to the Report. (ECF No. 174 at 26 1.) Rather, he is filing a “response” or “commenting” on the Report. (Id. at 2.) 27 The response consists of a request that he be granted leave to amend his Complaint 28 his claims against the California Department of Corrections and Rehabilitation 1 (“CDCR”) Defendants. (ECF No. 174 at 2.) As the Report found, however, 2 Plaintiff failed to state a claim against the CDCR Defendants, under any of the 3 alleged theories of liability. (ECF No. 171 at 3, 35-36, 39, 44-45, 52.) Moreover, 4 Plaintiff failed to seek leave to amend when he had an opportunity to do so earlier 5 in the case, and instead requests it for the first time in his response to the Magistrate 6 Judge’s Report. Under these circumstances, leave to amend as to these Defendants 7 is denied. See United States v. Howell, 231 F.3d 615, 623 (9th Cir. 2000) (holding 8 that a district court has discretion to reject supplemental factual allegations 9 presented for the first time in objections to the Magistrate Judge’s Report when the 10 litigant had an opportunity to present them earlier); see also Tabb v. NaphCare, 11 2023 WL 4638843, at *6 (W.D. Wash. July 20, 2023) (noting that a plaintiff 12 generally cannot assert new facts or request leave to amend for the first time in 13 objections to a Magistrate Judge’s Report); Barbarin v. Madden, 2018 WL 14 6303889, at *2 (C.D. Cal. Nov. 29, 2018) (leave to amend was properly denied 15 when requested for the first time in objections to a Magistrate Judge’s Report). 16 It is ordered that (1) the Report and Recommendation is accepted; (2) 17 Plaintiff’s motions to consolidate are granted; (3) the Motions to Dismiss the Baries 18 Second Amended Complaint are denied as moot; (4) the motion to dismiss the 19 Baries Third Amended Complaint is granted with respect to Claims Four, Six, 20 Eight, Eleven, Twelve, and Thirteen; (5) the motion to dismiss the Baries Third 21 Amended Complaint is granted with respect to Claim Five against the City, 22 Defendant Garcetti, and Villanueva in his official capacity only; (6) the Motion to 23 dismiss the Baries Third Amended Complaint is denied in all other respects; (7) the 24 second Motion to Dismiss the Baries Third Amended Complaint is denied; (8) the 25 County Defendants’ Motion to Dismiss the St. Andre Complaint with respect to 26 Claim Three against Defendant Erzkin is denied; (9) the County Defendants’ 27 Motion to Dismiss the St. Andre Complaint is granted in all other respects; (10) the 28 CDCR Defendants’ motion to dismiss the St. Andre Complaint is granted; and (11) 1 || the City, Defendant Garcetti, the CDCR Defendants, John Doe 1, John Doe 2, 2 || LASD, Mabee, and Valdez are terminated as Defendants. 3 It is further ordered that the remaining claims are the following: (1) a First 4 |} Amendment claim against Erzkin, Hayley, Baries, Sylva, and Ramos; (2) an Eighth 5 |} Amendment claim against Hayley, Baries, Sylva, Beccerra, Bernard, Ramos, 6 || Mancilla, and Villanueva; and (3) and Eighth Amendment Monell claim against the 7 || County. 8 9 || DATED: June 30, 2024 10 | Cte □ 11 he onneb REY AN DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28