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R. HICKMAN, et al., Defendants.

No. CIV S-99-1869 FCD KJM P

342 F. Supp. 2d 887

September 29, 2004, Decided

September 30, 2004, Filed




Plaintiff, a state prisoner proceeding with counsel, has filed this civil rights action seeking relief under 42 U.S.C. 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local General Order No. 262.


On August 4, 2004, the magistrate judge filed findings and recommendations herein, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Defendants have filed objections to the findings and recommendations. n1


In accordance with the provisions of 28 U.S.C. 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.


Accordingly, IT IS HEREBY ORDERED that:


1. The findings and recommendations filed August 4, 2004 are adopted in full;


2. Plaintiffs March 5, 2004 motion for summary judgment is granted;


3. Defendants Perez, Van Court, Baker, Guaderrama, their superiors, agents, co-employees and successors to state office are enjoined from considering plaintiff's refusal to participate in Narcotics Anonymous at any point in time as a basis for denying plaintiff parole;


4. Defendant Hickman, and his successors, are ordered to expunge all references to plaintiff's failure to attend Narcotics Anonymous from any file maintained by the California Department of Corrections; and


5. This case is closed. n2


DATED: September 29, 2004






n1 With their objections, defendants submit the declaration of Marvin E. Speed II. While a district court judge may receive additional evidence under 28 U.S.C. 636(b)(1)(C)'when determining whether to accept or reject a magistrate judge's findings and recommendations, the court exercises its discretion and declines to consider the Speed declaration as counsel for defendants has not provided any reason why the declaration was not submitted during the approximately five month period defendants' and plaintiff's motions for summary judgment were pending before the magistrate judge issued her findings and recommendations. U.S. v. Howell, 231 F.3d 615, 622-23 (9th Cir. 2000), cert, denied, 534 U.S. 831, 151 L. Ed. 2d 40, 122 S. Ct. 76 (2001) (district court judge has discretion to reject evidence submitted after findings and recommendations have issued).


n2 In her findings and recommendations, the magistrate judge recommended that plaintiff's counsel be awarded attorneys fees and costs under 42 U.S.C. 1988. If plaintiff seeks fees and / or costs under 1988, or any other applicable statute or rule, plaintiff shall file a motion in accordance with the applicable rules.


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