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Moore v. Hubbard

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 7, 2009

DUANE REED MOORE, SR., PLAINTIFF,
v.
SUE HUBBARD, WARDEN, ET AL., DEFENDANTS.

ORDER

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 13, 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 fourteen days. On March 31, 2009, this court adopted the findings and recommendations and judgment was entered for defendants.

However, on April 3, 2009, plaintiff filed objections to the findings and recommendations. Although the April 3 objections were not filed until after the expiration of the deadline set forth in the findings and recommendations, they will be deemed timely filed. See Houstan v. Lack, 487 U.S. 266, 276 (1988) (prisoner's notice of appeal deemed timely filed on the date it was delivered to prison staff for delivery to the court). Accordingly, the March 31, 2009 order adopting the findings and recommendations and judgment are vacated.

Nonetheless, after reviewing the file and plaintiff's objections, the court again 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 findings and recommendations filed March 13, 2009, are adopted in full;

2. Defendants' motion to dismiss, construed under Rule 56, (docket no. 33) is granted;

3. This action is dismissed without prejudice; and,

4. The Clerk is directed to enter judgment and close the file.

20090507

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