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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JULIUS LEE JACKSON,

NO. CIV. S-04-983 LKK/GGH P

Plaintiff,

v. O R D E R

THE STATE OF CALIFORNIA, et al.,

Defendants.

 /

Plaintiff, a state prisoner proceeding pro se, has filed this

civil rights action seeking relief under 42 U.S.C. § 1983. This

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 April 26, 2005, the magistrate judge filed findings and

recommendations herein which were served on all parties and which

contained notice that any objections to the findings and

recommendations were to be filed within twenty days. Plaintiff has

timely filed objections.

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The district court reviews de novo those portions of the

proposed findings of fact to which objections has been made, 28

U.S.C. § 636(b)(1)(c); McDonnell Douglas Corp. v. Commodore

Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert.

denied, 455 U.S. 920 (1982), and the magistrate judge’s conclusions

of law. Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989)

(citing Britt v. Simi Valley Unified School Dist., 708 F.2d 452,

454 (9th Cir. 1983)). The court may, however, assume the

correctness of that portion of the proposed findings of fact to

which no objection has been made and decide the motion on

applicable law. See United States v. Remsing, 874 F.2d 614, 617

(9th Cir. 1989)(citing Orand v. United States, 602 F.2d 207, 208

(9th Cir. 1979)).

The court is not bound to adopt the magistrate judge’s

findings and recommendation; on the contrary, the court must

exercise “sound judicial discretion” in making its own

determination on the record. United States v. Raddatz, 447 U.S.

at 675-76. The court may accept, reject, or modify, in whole or

in part, the magistrate judge’s findings and recommendations. 

28 U.S.C. § 636(b)(1)(c); United States v. Remsing, 874 F.2d at

617. 

Plaintiff filed this action against numerous High Desert State

Prison officials alleging that they each violated his

constitutional rights when they physically harmed and continually

harassed him. Plaintiff filed a motion for preliminary injunction

requesting that, inter alia, defendants be ordered to transfer him

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to another prison. The magistrate judge determined that plaintiff

failed to meet his burden under the applicable standard because he

could not prove that he is subject to irreparable harm in the

prison and recommended that the motion be denied. While I decline

to adopt the magistrate’s findings and legal determinations, I

adopt the ultimate disposition of the motion. A review of the

docket indicates that plaintiff has been transferred out of High

Desert State Prison. Therefore, plaintiff’s motion must be denied

as moot. 

Accordingly, the court orders that plaintiff’s motion for a

preliminary injunction is DENIED as moot. 

IT IS SO ORDERED.

 DATED: August 18, 2005.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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