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Donald Green v. the State of California Board of

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 2, 2011

DONALD GREEN,
PETITIONER,
v.
THE STATE OF CALIFORNIA BOARD OF
PAROLE HEARINGS; MATTHEW CATE, RESPONDENTS.

The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER:

SUA SPONTE

(1) VACATING ORDER ADOPTING REPORT AND RECOMMENDATION;

(2) VACATING JUDGMENT; AND

(3) EXTENDING TIME TO REPLY TO OBJECTIONS

On July 25, 2011, Magistrate Judge Jan M. Adler filed a report and recommendation advising this Court to grant Respondent Matthew Cate's motion to dismiss and dismiss Petitioner's habeas corpus petition without prejudice to Petitioner bringing his claim under 42 U.S.C. § 1983. (ECF No. 16.) Magistrate Judge Adler ordered the parties to file any objections to the R&R "not later than August 16, 2011." (Id. at 6.) On August 29, 2011, having received no objections, the Court adopted Magistrate Judge Adler's R&R, granted Respondent's motion to dismiss, and dismissed Petitioner's habeas petition without prejudice to Petitioner bringing his claim under 42 U.S.C. § 1983. (ECF No. 18.) Subsequent to the issuance of that Order, the Court received Petitioner's objections to the R&R. (ECF No. 21.) Under the prisoner mailbox rule, see Miles v. Prunty, 187 F.3d 1104, 1106 n.2 (9th Cir. 1999), the objections are timely (see ECF No. 21, at 4 (objections mailed on August 16, 2011)). Accordingly, the Court accepted them nunc pro tunc to August 22, 2011. (ECF Nos. 20, 21.)

Having accepted Petitioner's timely objections, the Court HEREBY VACATES (1) its August 29, 2011 Order adopting Magistrate Judge Adler's R&R, granting Respondent's motion to dismiss, and dismissing Petitioner's habeas petition (ECF No. 18); and (2) the associated judgment (ECF No. 19). Respondent may reply to Petitioner's objections within ten days from the date that this Order is electronically docketed.

IT IS SO ORDERED.

20110902

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