Murillo v. Parkinson et al

Filing 64

ORDER Readopting Report and Recommendation Over Plaintiff's Objections. Plaintiff is granted 45 days in which to file and serve an amended complaint which addresses the deficiencies of pleading for claims which Plaintiff has been granted leave t o amend. Signed by Judge Roger T. Benitez on 3/19/2013.(All non-registered users served via U.S. Mail Service)(knb). Modified on 3/19/2013 to note USCA Case Number is 13-55458. Order electronically transmitted to US Court of Appeals via regenerated NEF. (akr).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAMON MURILLO,
vs.

CASE NO. 11cv1687 BEN (BGS)
Plaintiff,

ORDER READOPTING REPORT
AND RECOMMENDATION
OVER PLAINTIFF’S
OBJECTIONS

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P. FLOURNOY, et al.,
Defendants.

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On February 27, 2013, the Court adopted in full the Report and

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Recommendation (“R&R”) of the Magistrate Judge in this action and granted

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Defendants’ Motion to Dismiss. (ECF No. 54.) Plaintiff’s objections to the R&R

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were filed on March 4, 2013. Plaintiff is a prisoner proceeding pro se and in forma

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pauperis. He signed and dated the objections February 15, 2013 and purportedly

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gave the document to a correctional officer on February 18, 2013, which was the

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deadline for filing objections. Under the prisoner mailbox rule, Plaintiff’s objections

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were timely. See Douglas v. Noelle, 567 F.3d 1103, 1106-07 (9th Cir. 2009).

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Before the Court could address these objections, Plaintiff filed an appeal to

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the Ninth Circuit. (ECF No. 60.) Ordinarily, the filing of a notice of appeal divests

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a district court of further jurisdiction over the case. See Pope v. Sav. Bank of Puget

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Sound, 850 F.2d 1345, 1347 (9th Cir. 1988). However, when the appeal is from an
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11cv1687

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unappealable order, the district court may disregard the purported notice of appeal

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and proceed with the case. See Estate of Conners v. O’Connor, 6 F.3d 656, 658 (9th

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Cir. 1993).

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Plaintiff’s appeal was premature. The Magistrate Judge’s R&R, which the

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Court adopted in full, gave Plaintiff leave to amend some claims. Because there was

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no final order in this case, the Court retains jurisdiction and is free to consider the

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objections submitted by Plaintiff. The Court has reviewed Plaintiff’s objections.

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Finding them without merit, the Court modifies its order of February 27, 2013 to

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READOPT the Report and Recommendation of the Magistrate Judge. Plaintiff is

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granted 45 days in which to file and serve an amended complaint which addresses

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the deficiencies of pleading for claims which Plaintiff has been granted leave to

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amend.

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IT IS SO ORDERED.

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DATED: March 19, 2013

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Hon. Roger T. Benitez
United States District Judge

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11cv1687