Ybarra v. Lamarque, et al.

Filing 19

ORDER GRANTING 18 MOTION for RECONSIDERATION and FURTHER DIRECTING the clerk of the court to re-serve plaintiff with copy of Order dismissing complaint with leave to amend 8 and VACATING the 15 Clerk's Judgment and 14 Order Adopting Find ings and Recommendations; case reopened; motion terminated; Case Management DDL set for 5/21/2007 for receipt of amended complaint; order signed by Judge Oliver W. Wanger on 4/19/07. (Attachments: # 1 1983 Amended Prisoner Civil Rights Complaint form)(Rooney, M)

(PC) Ybarra v. Lamarque, et al.

Doc. 19

Case 1:05-cv-01013-OWW-SMS

Document 19

Filed 04/20/2007

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 LAMARQUE, et al., 14 15 16 17 18 19 By Order filed on February 8, 2007, this action was 20 dismissed upon the findings and recommendation of the Magistrate 21 Judge because of Plaintiff's failure to file an amended complaint 22 within the time set forth in the Magistrate Judge's Order filed 23 on November 2, 2006. 24 February 8, 2007. 25 On April 16, 2007, Plaintiff filed a motion for 26 1 Judgment for Defendants was entered on Defendant. vs. Plaintiff, JOAQUIN YBARRA, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-05-1013 OWW/SMS P ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 18), VACATING ORDER AND JUDGMENT OF DISMISSAL (Docs. 14 & 15) AND DIRECTING CLERK OF COURT TO RE-SERVE ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND AND ORDER DIRECTING CLERK TO SEND PLAINTIFF BLANK CIVIL RIGHTS FORM (Doc. 8) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dockets.Justia.com

Case 1:05-cv-01013-OWW-SMS

Document 19

Filed 04/20/2007

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

reconsideration, contending that the mailroom staff at Kern Valley State Prison returned the service of the Findings and Recommendation on January 5, 2007 "as a common retaliatory tactic". By Order filed on November 2, 2006, Plaintiff's complaint was dismissed with leave to file an amended complaint within 30 days of service of the Order. The Order was served on Plaintiff

at his address at Salinas Valley State Prison, Soledad, California. Service of the Order was returned to the Court on

November 9, 2006 with the notation, "no longer @ this institution". The Findings and Recommendation filed on December

18, 2006 were served on Plaintiff at his address at Salinas Valley State Prison. On December 21, 2006, Plaintiff filed a

Notice of Change of Address, listing his address at Kern Valley State Prison, Delano, California. On January 5, 2007, the

Findings and Recommendation served on Plaintiff at Salinas Valley State Prison was returned to the Court with the notation, "no longer at institution." On January 24, 2007, the Findings and

Recommendation was reserved on Plaintiff at Kern Valley State Prison. Because of the reservice of the Findings and

Recommendation, Plaintiff's time to file objections to the recommendation of dismissal for failure to timely comply with the court order was extended to February 16, 2007. However, as

noted, this action was dismissed for failure to prosecute on February 8, 2007. This record establishes that Plaintiff's contention that the 2

Case 1:05-cv-01013-OWW-SMS

Document 19

Filed 04/20/2007

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

mailroom staff at Kern Valley State Prison returned the Order served on November 11, 2006 and the Findings and Recommendation served on December 18, 2006 is false. Service was made on to

Plaintiff at Salinas Valley State Prison because, on the dates of service, Plaintiff had not filed the Notice of Change of Address. The mail was returned by the Salinas Valley State Prison. However, because it appears that Plaintiff's transfer from Salinas Valley State Prison to Kern Valley State Prison occurred during the time that he was ordered to file an amended complaint and because Plaintiff did file a Notice of Change of Address, Plaintiff will be allowed the opportunity to comply with the Order directing Plaintiff to file an amended complaint, although as set forth below, Plaintiff shall file the amended complaint within 26 days instead of 30 days of service of this Order. ACCORDINGLY: 1. 2. 3. Plaintiff's motion for reconsideration is GRANTED; The Order and Judgment of dismissal are VACATED; The Clerk of the Court is directed to reserve the Order

Dismissing Complaint with Leave to Amend and Order Directing Clerk of Court to Send Plaintiff Blank Civil Rights Form (Doc. 8). 4. Plaintiff is ordered to file the amended complaint Failure to

within 26 days following service of this Order.

timely comply will result in the dismissal of this action. /// /// 3

Case 1:05-cv-01013-OWW-SMS

Document 19

Filed 04/20/2007

Page 4 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

IT IS SO ORDERED. Dated: 668554 April 19, 2007 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

4