                                                                           FILED
                            NOT FOR PUBLICATION                            MAY 23 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


ANTHONY JOHNSON,                                 No. 12-15136

               Plaintiff - Appellant,            D.C. No. 1:09-cv-01264-AWI-
                                                 BAM
  v.

L. GONZALEZ; A. MURRIETA,                        MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                              Submitted May 14, 2013**

Before:        LEAVY, THOMAS, and MURGUIA, Circuit Judges.

       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,

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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 discretion by not considering an opposition to a

motion to dismiss presented by a pro se prisoner for the first time in his objections

to the magistrate judge’s recommendation, even though the prisoner did not

explain why he failed to file a timely opposition); see also Jones v. Blanas, 393

F.3d 918, 935 (9th Cir. 2004) (concluding that it would have been an abuse of

discretion for the district court not to consider arguments raised for the first time in

the objections to the magistrate’s findings “given the circumstances under which

this evidence was offered – a pro se plaintiff, ignorant of the law, offering crucial


                                            2                                      12-15136
facts as soon as he understood what was necessary to prevent summary judgment

against him”). Accordingly, we reverse and remand for further proceedings

consistent with our disposition.

      Johnson’s opposed motion to request supplementary briefing, filed on

August 13, 2012, is denied.

      REVERSED and REMANDED.




                                        3                                    12-15136
