Opinion
No. 05-56499.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed February 28, 2007.
Emille V. De Cuir, Riverside, CA, pro se.
Toni Rae Bruno, Esq., Richard S. Kemalyan, Esq., Dwyer Daly Brotzen Bruno, Los Angeles, CA, Jad T. Davis, Esq., Ropers, Majeski, Kohn Bentley, Los Angeles, CA, for Defendants-Appellees.
Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. No. CV-02-00537-VAP.
Before: BEEZER, FERNANDEZ, and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Emille De Cuir appeals pro se from the district court's judgment dismissing his action alleging defendants discriminated and retaliated against him based on his status as a veteran of the uniformed services in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301- 4333. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment, Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002), and determination that an action is barred by res judicata, Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1025 (9th Cir. 2005). We review for abuse of discretion the district court's decision to not consider evidence presented for the first time in objections to the magistrate judge's report. Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002). We affirm.
Even if the USERRA applied to De Cuir's 1990 failure to hire claim, the district court properly granted summary judgment because De Cuir failed to create a triable issue as to whether his veteran status was a "motivating factor" in defendants' action. See 38 U.S.C. § 4311(c)(1); Leisek, 278 F.3d at 900.
The district court also properly concluded that De Cuir's retaliation claim based on his citation and subsequent prosecution in 1996 for fare evasion aboard a Metrolink train was barred by res judicata, because he had previously brought a federal action based on the same "transactional nucleus of facts." See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1077-81 (9th Cir. 2003) (discussing the three elements of a res judicata defense).
The district court did not abuse its discretion in declining to consider evidence De Cuir presented for the first time in his objections to the magistrate judge's report recommending summary judgment for defendants. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) ("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").