Opinion
No. CIV S-11-3342 LKK GGH P
04-12-2012
GORDON D. MEADOR, Plaintiff, v. M. HAMMER, et al., Defendants.
ORDER
Plaintiff, a state prisoner proceeding pro se, 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 Rule 302.
Plaintiff, however, has been proceeding with counsel as of January 25, 2012. See docket entry # 18.
On January 18, 2012, 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 fourteen days. Neither party has filed objections to the findings and recommendations.
Although entered in the docket of this case several days after the filing of the findings and recommendations, plaintiff pro se's "affidavit... in support of [his] motion for preliminary injunction" cannot be construed as objections as the affidavit was filed, by (generous) application of the mailbox rule (Houston v. Lack, 487 U.S. 266, 275-76, 108 S.Ct. 2379, 2385 (1988); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009)), more than three weeks prior to issuance of the findings and recommendations. Moreover, counsel who has been substituted in for plaintiff has not filed objections.
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The court has reviewed the file and finds the findings and recommendations to be supported by the record and by the magistrate judge's analysis. Accordingly, IT IS HEREBY ORDERED that:
1. The court notes that by order issued on March 12, 2012, ECF No. 23, the magistrate judge in this case discharged the findings and recommendations filed on January 18, 2012, ECF No. 13, insofar as those findings and recommendations directed plaintiff to provide a fully completed in forma pauperis application. Thus, the findings and recommendations filed January 18, 2012, are adopted, except insofar as they are superseded by the magistrate judge's March 12, 2012 order. ;
2. Plaintiff's motion for a temporary restraining order, filed on December 16, 2011 (docket # 2), is denied.
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LAWRENCE K. KARLTON
SENIOR JUDGE
UNITED STATES DISTRICT COURT