Washington v. Ogletree et al

Filing 18

ORDER VACATING 13 Findings and Recommendations; ORDER DEEMING 14 First Amended Complaint Timely Filed signed by Magistrate Judge Gary S. Austin on 7/17/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRANKIE WASHINGTON,

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1:12-cv-01473-AWI-GSA-PC

Plaintiff,

ORDER VACATING FINDINGS AND
RECOMMENDATIONS
(Doc. 13.)

D. OGLETREE, et al.,

ORDER DEEMING FIRST AMENDED
COMPLAINT TIMELY FILED
(Doc. 14.)

vs.

Defendants.

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Frankie Washington (Aplaintiff@) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on

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September 10, 2012. (Doc. 1.) On May 17, 2013, the court dismissed the Complaint for failure

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to state a claim, with leave to amend within thirty days. (Doc. 13.) The thirty-day time period

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expired, and Plaintiff failed to file an amended complaint.

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On June 21, 2013, findings and recommendations were entered, recommending that this

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action be dismissed based on plaintiff=s failure to state a claim upon which relief may be

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granted under §1983. (Doc. 13.) On July 15, 2013, Plaintiff filed objections to the findings

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and recommendations, together with a First Amended Complaint. (Docs. 15, 16.)

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In her objections, Plaintiff claims that she sent an amended complaint to the court on

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June 10, 2013, which the court never received. Plaintiff asserts that the First Amended

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Complaint, which she submitted with the objections, is an identical copy of the amended

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complaint she timely sent to the court.
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In light of the facts that Plaintiff claims she sent a timely amended complaint to the

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court, which the court did not receive, and Plaintiff has now submitted the First Amended

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Complaint, the findings and recommendations shall be vacated, and Plaintiff’s First Amended

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Complaint shall be deemed timely filed.

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Accordingly, THE COURT HEREBY ORDERS that:

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The Findings and Recommendations issued by the Magistrate Judge on April 15,
2013, are VACATED; and

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Plaintiff’s First Amended Complaint, filed on July 15, 2013, is deemed timely
filed.

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IT IS SO ORDERED.
Dated:

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July 17, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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