Foster v. Enenmoh et al

Filing 17

ORDER Adopting 11 FINDINGS AND RECOMMENDATIONS; ORDER DENYING 8 Motion for Preliminary Injunction, Without Prejudice signed by District Judge Lawrence J. O'Neill on 8/6/2009. (Sant Agata, S)

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O n March 30, 2009, after screening the complaint pursuant to 28 U.S.C. § 1915A, the court dismissed plaintiff's c o m p l a i n t for failure to state a claim, with leave to file a first amended complaint within thirty days. (Doc. 10.) Plaintiff s o u g h t and was granted an extension of time to file the first amended complaint. (Docs. 12, 13.)
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

MICHAEL LOUIS FOSTER, Plaintiff, vs. A. ENENMOH, et al., Defendants. _____________________________/

1:08-cv-01849-LJO-SMS-PC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 11.) ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION, WITHOUT PREJUDICE (Doc. 8.)

Michael Louis Foster ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 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 Rule 72-302. On March 30, 2009, the Magistrate Judge entered findings and recommendations, recommending that plaintiff's motion for preliminary injunction be denied, on the ground that the court lacked jurisdiction due to the dismissal of plaintiff's complaint.1 (Doc. 11.) On May 15, 2009, plaintiff filed a first amended complaint. (Doc. 15.) Also on May 15, 2009, plaintiff filed objections to the findings and recommendations, arguing that the filing of the first amended complaint reinstated the court's jurisdiction to decide the motion for preliminary injunction. (Doc. 14.)

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In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 73305, 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 proper analysis. Plaintiff's objections have been duly considered. However, due to the subsequent dismissal of the first amended complaint, the court presently lacks jurisdiction over this matter.2 Zepeda v. United States Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985). Therefore, the motion for preliminary injunction shall be dismissed, without prejudice to plaintiff's renewal of the motion at a later stage of the proceedings. Accordingly, THE COURT HEREBY ORDERS that: 1. The Findings and Recommendations issued by the Magistrate Judge on March 30, 2009, are adopted in full; and 2. Plaintiff's motion for preliminary injunctive relief, filed on December 19, 2008, is denied without prejudice. IT IS SO ORDERED. Dated: b9ed48 August 6, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

O n July 31, 2009, after screening the first amended complaint pursuant to 28 U.S.C. § 1915A, the court dismissed th e first amended complaint for failure to state a claim, with leave to file a second amended complaint within thirty days. ( D o c . 16.) To date, plaintiff has not filed a second amended complaint.

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