Anthony Johnson v. L. Gonzalez

MEMORANDUM

California state prisoner Anthony Johnson appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that defendants used excessive force against him. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo summary judgment, Conlon v. United States, 474 F.3d 616, 621 (9th Cir.2007), and for an abuse of discretion a district court’s decision not to consider arguments and evidence raised for the first time as an objection to the magistrate judge’s findings and recommendations, Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir.2012). We reverse and remand.

The district court declined to consider Johnson’s request under Federal Rule of Civil Procedure 36(b) to amend or withdraw his admissions, which were the basis for granting defendants’ motion for summary judgment, because Johnson raised this issue for the first time in his objections to the magistrate judge’s findings and recommendations. However, the district court’s failure to consider this request was an abuse of discretion because Johnson is pro se and his Rule 36(b) request, if granted, would have defeated summary judgment. See id. at 1208-09 (district court abused its…