Luster v. Amezcua et al

Filing 25

ORDER VACATING 23 Findings and Recommendations; ORDER DEEMING 24 Second Amended Complaint Timely Filed, signed by Magistrate Judge Gary S. Austin on 6/13/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAPHNYE S. LUSTER,

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Plaintiff,
vs.
RAUL H. AMEZCUA, et al.,
Defendants.

1:16-cv-00554-LJO-GSA-PC
ORDER VACATING FINDINGS AND
RECOMMENDATIONS
(ECF. No. 23.)
ORDER DEEMING SECOND AMENDED
COMPLAINT TIMELY FILED
(ECF No. 24.)

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Daphnye S. Luster (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.

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On March 26, 2018, the court issued an order dismissing the First Amended Complaint

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for failure to state a claim, with leave to amend within thirty days. (ECF No. 22.) The thirty-

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day time period passed, and Plaintiff did not file an amended complaint or otherwise respond to

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the court’s order.

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Due to Plaintiff’s failure to respond to the order, on May 22, 2018, the court entered

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findings and recommendations, recommending that this case be dismissed with prejudice for

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failure to state a claim. (ECF No. 23.) Plaintiff was granted fourteen days in which to file

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objections to the findings and recommendations. (Id.)

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To date, Plaintiff has not filed objections. However, on June 11, 2018, Plaintiff filed the

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Second Amended Complaint. (ECF No. 24.) Given that the Second Amended Complaint has
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now been filed, although untimely, the court finds good cause to vacate the findings and

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recommendations and deem the Second Amended Complaint timely filed.

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Plaintiff is advised that in the future, if she needs additional time to comply with a court
order, she should file a motion for extension of time before the prior deadline expires.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The findings and recommendations, entered on May 22, 2018, are VACATED;

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2.

The Second Amended Complaint, filed on June 11, 2018, is deemed timely filed;

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and
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The court shall screen the Second Amended Complaint in due course.

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IT IS SO ORDERED.
Dated:

June 13, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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