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Ramon Murillo v. P. Flournoy

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 19, 2013

RAMON MURILLO,
PLAINTIFF,
v.
P. FLOURNOY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge

ORDER READOPTING REPORT AND RECOMMENDATION OVER PLAINTIFF'S OBJECTIONS

On February 27, 2013, the Court adopted in full the Report and Recommendation ("R&R") of the Magistrate Judge in this action and granted Defendants' Motion to Dismiss. (ECF No. 54.) Plaintiff's objections to the R&R were filed on March 4, 2013. Plaintiff is a prisoner proceeding pro se and in forma pauperis. He signed and dated the objections February 15, 2013 and purportedly gave the document to a correctional officer on February 18, 2013, which was the deadline for filing objections. Under the prisoner mailbox rule, Plaintiff's objections were timely. See Douglas v. Noelle, 567 F.3d 1103, 1106-07 (9th Cir. 2009).

Before the Court could address these objections, Plaintiff filed an appeal to the Ninth Circuit. (ECF No. 60.) Ordinarily, the filing of a notice of appeal divests a district court of further jurisdiction over the case. See Pope v. Sav. Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir. 1988). However, when the appeal is from an unappealable order, the district court may disregard the purported notice of appeal and proceed with the case. See Estate of Conners v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993).

Plaintiff's appeal was premature. The Magistrate Judge's R&R, which the Court adopted in full, gave Plaintiff leave to amend some claims. Because there was no final order in this case, the Court retains jurisdiction and is free to consider the objections submitted by Plaintiff. The Court has reviewed Plaintiff's objections. Finding them without merit, the Court modifies its order of February 27, 2013 to READOPT the Report and Recommendation of the Magistrate Judge. Plaintiff is granted 45 days in which to file and serve an amended complaint which addresses the deficiencies of pleading for claims which Plaintiff has been granted leave to amend.

IT IS SO ORDERED.

20130319

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