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Thomas v. Perez

March 17, 2009

RAYSHON THOMAS, PLANTIFF,
v.
PEREZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATION ORDER DENYING MOTION FOR TECHNOLOGY TOOLS

(Document #10)

Plaintiff is a state prisoner who is a proceeding with a 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 February 4, 2009, the Magistrate Judge filed Findings and Recommendations, recommending that Plaintiff's motion for technology tools, which the court construed as motion for preliminary injunctive relief, be denied. The Findings and Recommendations gave notice that Plaintiff could file objections within fifteen days.

No objections to the Findings and Recommendations have been filed. However, on March 10, 2009, Plaintiff filed a notice of appeal.

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)C) this court has conducted a de novo review of this case. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully reviewed the entire file, the court finds the Findings and Recommendations to be supported by the record and by proper analysis. The court recognizes that Plaintiff has appealed the Findings and Recommendations that recommended Plaintiff's motion for technology tools be denied. In general, the filing a notice of appeal transfers jurisdiction over the matters appealed to the court of appeals, and the district court is divested of jurisdiction over those aspects of the case involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam); Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001). However, a notice of appeal from a non-appealable order will not divest the district court of jurisdiction. Estate of Conners by Meredith v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993); United States v. Garner, 663 F.2d 834, 838 (9th Cir.1981); Ruby v. Secretary of the Navy, 365 F.2d 385, 389 (9th Cir.1966) (en banc). "When a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act until the mandate has issued on the appeal does not apply." Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007). Because Plaintiff is attempting to appeal Findings and Recommendations and they are not a final appealable order of the court, Plaintiff's filing of the notice of appeal did not deprive the court of jurisdiction.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations filed February 4, 2009, are ADOPTED;

2. Plaintiff's motion for technology tools, which has been construed as a motion for preliminary injunctive relief, is DENIED; and

4. This action is REFERRED to the Magistrate Judge.

IT IS SO ORDERED.

20090317

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