Smith v. Goodenough et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION FOR TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION, denying 5 Motion for TRO and Motion for Preliminary Injunction, and adopting in its entirety 16 Report and Recommendations. Signed by Judge Salvador Mendoza, Jr. (LR, Case Administrator) **3 PAGES, PRINT ALL** (Jess Smith, Prisoner ID: 739951)

1
2

FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

3

Sep 14, 2017
SEAN F. MCAVOY, CLERK

4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

5
6

JESS RICHARD SMITH,

No. 4:17-CV-5060-SMJ

7
Plaintiff,
8
v.
9
10
11

KEITH GOODENOUGH, SCOTT
BUTTICE and S. SUNDBERG,

ORDER ADOPTING REPORT
AND RECOMMENDATION AND
DENYING MOTION FOR
TEMPORARY RESTRAINING
ORDER/PRELIMINARY
INJUNCTION

Defendants.

12
Before the Court is Magistrate Judge Mary K. Dimke’s Report and
13
Recommendation, ECF No. 16, to deny Plaintiff’s Motion for Temporary
14
Restraining Order, ECF No. 5. Plaintiff, a prisoner at the Washington State
15
Penitentiary is proceeding pro se and in forma pauperis; Defendants have not been
16
served. Plaintiff has filed a timely Objection, ECF No. 18.
17
Magistrate Judge Dimke determined the Court lacked jurisdiction to consider
18
Plaintiff’s Motion because he had not yet presented a legally sufficient complaint.
19
ECF No. 16 at 2. Plaintiff appealed the directive to amend or voluntarily dismiss
20
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DENYING MOTION FOR TEMPORARY RESTRAINING
ORDER/PRELIMINARY INJUNCTION -- 1

1

and his interlocutory appeal was dismissed for lack of jurisdiction on August 17,

2

2017. ECF No. 24.

3

In his Objection, Plaintiff contends that Magistrate Judge Dimke exceeded

4

her authority by entertaining his motion. The Court disagrees. Although the power

5

of federal magistrate judges is limited by 28 U.S.C. § 636, a district judge may

6

authorize a magistrate judge to prepare findings and recommendations on

7

dispositive matters. See 28 U.S.C. § 636(b)(1); Estate of Conners v. O'Connor, 6

8

F.3d 656, 658 (9th Cir. 1993). That is what was done here. Magistrate Judge Dimke

9

did not issue a dispositive Order. Plaintiff’s objection is misplaced.

10

Next, Plaintiff challenges the directive to amend his complaint. He has

11

unsuccessfully appealed that issue. To the extent Plaintiff is now objecting to a

12

separate Order, he must limit his objections to the content of the Report and

13

Recommendation.

14

In addition, Plaintiff complains about a failure to “note” his Motion before a

15

District Court. Apparently, he is concerned that, despite the fact he had noted his

16

Motion for hearing on May 30, 2017, it was not considered until July 26, 2017, and

17

then by a magistrate judge. A noted hearing is not a guarantee that a Motion will be

18

resolved by a particular date.

19

This Court has reviewed Plaintiff’s Motion, along with the Report and

20

Recommendation and Plaintiff’s objections. Being fully informed, the Court finds
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DENYING MOTION FOR TEMPORARY RESTRAINING
ORDER/PRELIMINARY INJUNCTION -- 2

1

the Magistrate Judge’s recommendation is correct. Indeed, Plaintiff concedes his

2

Motion for a Temporary Restraining Order is now moot because he has been

3

released from the Intensive Management Unit. ECF No. 18 at 4.
Accordingly, IT IS HEREBY ORDERED:

4
5

1.

ENTIRETY.

6
7

The Report and Recommendation, ECF No. 16, is ADOPTED IN ITS

2.

Plaintiff’s Motion for Temporary Restraining Order and Preliminary

8

Injunction, ECF No. 5, is DENIED.

9

IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and

10
11
12
13

provide a copy to Plaintiff.
DATED this 14th day of September 2017.
__________________________
SALVADOR MENDOZA, JR.
United States District Judge

14
15
16
17
18
19
20
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DENYING MOTION FOR TEMPORARY RESTRAINING
ORDER/PRELIMINARY INJUNCTION -- 3