Greene v. C. D. C

Full title: MARVELLOUS A.X. GREENE, Plaintiff, v. C. D. C., et al., Defendants

Court: United States District Court, E.D. California

Date published: Apr 23, 2009

2:05-cv-0330-GEB-JFM-PC (E.D. Cal. Apr. 23, 2009)

Opinion

2:05-cv-0330-GEB-JFM-PC.

April 23, 2009

ORDER

GARLAND BURRELL JR., District Judge

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 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 General Order No. 262.

On March 31, 2009, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations.¹

1 Plaintiff's objections are styled "Objections to Magistrate Judge's Findings and Recommendations/Motion to Vacate Judgment/Notice of Appeal." On April 8, 2009, the Clerk of the Court processed plaintiff's appeal to the United States Court of Appeals for the Ninth Circuit as an interlocutory appeal. The magistrate judge's findings and recommendations are not properly the subject of an interlocutory appeal, see 28 U.S.C. § 1292. In addition, no judgment had been entered in this action at the time plaintiff filed his objections and his motion to vacate judgment is therefore improper and will be disregarded. Plaintiff's notice of appeal does not meet the criteria of Rule 4(a)(2) of the Federal Rules of Appellate Procedure as this court had not announced any decision on the findings and recommendations at the time plaintiff's notice of appeal was filed. For these reasons, plaintiff's April 7, 2009 notice of appeal is ineffective to appeal the judgment to be entered pursuant to this order.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, 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 by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed March 31, 2009, are adopted in full;

2. Plaintiff's October 24, 2008 motion for summary judgment is denied;

3. Defendants' November 6, 2008 cross-motion for summary judgment is granted; and

4. Summary judgment is entered for defendants in this action.