Rose v. State of California
Filing
47
ORDER Vacating 38 Findings and Recommendations, signed by Magistrate Judge Jennifer L. Thurston on 4/21/11. (Verduzco, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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STEVEN W. ROSE,
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Case No. 1:08-cv-00681 LJO JLT (PC)
Plaintiff,
ORDER VACATING FINDINGS AND
RECOMMENDATIONS
vs.
(Doc. 38)
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STATE OF CALIFORNIA,
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Defendant.
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________________________________/
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights
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action pursuant to 42 U.S.C. § 1983. In its screening order filed October 27, 2010, the Court
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instructed Plaintiff to either file a second amended complaint curing the deficiencies in Plaintiff’s
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due process claim (denial of parole was not supported by “some evidence of current
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dangerousness”) or notify the Court of his willingness to proceed on his procedural due process
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claim (prison officials failed to provide him advanced notice of his February 5, 2008 parole
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hearing). (Doc. 26.)
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On March 29, 2011, Plaintiff informed the Court that he wished to proceed only on his
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procedural due process claim. (Doc. 36.) Accordingly, the undersigned issued findings and
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recommendations on April 1, 2011, dismissing Plaintiff’s remaining claim. (Doc. 38.)
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Nevertheless, on April 19, 2011, Plaintiff filed objections to the findings and recommendations,
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stating therein, among other things, that his willingness to proceed was “initiated under duress.”
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(Doc. 44.) Plaintiff has also filed a notice of appeal regarding a separate matter in this case.
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(Docs. 39 & 41.)
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Accordingly, it is HEREBY ORDERED that:
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1.
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The findings and recommendations issued by the Court on April 1, 2011 (Doc.
38) are VACATED;
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Within thirty (30) days of the date of service of this order, Plaintiff shall either file
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a second amended complaint or notify the Court in writing of his willingness to
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proceed on his procedural due process claim; and
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3.
Plaintiff is firmly warned that his failure to comply with this order will result in a
recommendation that this action be dismissed.
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IT IS SO ORDERED.
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Dated: April 21, 2011
9j7khi
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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