Gaines v. Brown et al

Filing 19

ORDER signed by Magistrate Judge Barbara A. McAuliffe on 10/17/2017 vacating 16 FINDINGS AND RECOMMENDATIONS. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARY LEE GAINES,

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Plaintiff,

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v.
E. G. BROWN, et al.,

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Defendants.

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Case No.: 1:16-cv-01666-AWI-BAM (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS
(ECF No. 16)

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Plaintiff Mary Lee Gaines (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On June 7, 2017, the Court dismissed the complaint with leave to amend within thirty days

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after service. (ECF No. 7.) Thereafter, Plaintiff was granted three extensions of time to amend her

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complaint, with the most recent amended complaint due by September 7, 2017. (ECF Nos. 9, 12, 15.)

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Plaintiff failed to comply with those orders. Consequently, on September 14, 2017, the Court issued

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findings and recommendations recommending dismissal of this action for failure to state a claim,

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failure to obey a court order, and failure to prosecute. (ECF No. 16.)
On September 13, 2017, the Court received Plaintiff’s first amended complaint, which was not

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docketed until September 14, 2017. (ECF No. 17.) The declaration of service is dated September 7,

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2017.
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On October 16, 2017, Plaintiff filed objections to the September 14, 2017 findings and

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recommendations. (ECF No. 18.) Plaintiff argues that the first amended complaint was mailed to the

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Court by her paralegal on September 7, 2017, and therefore has complied with the Court’s orders.

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It appears that Plaintiff’s amended complaint crossed in the mail with the Court’s findings and

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recommendations. In addition, based on the filing of the first amended complaint on September 13,

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2017, the Court finds it proper to vacate its findings and recommendations.

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Accordingly, it is HEREBY ORDERED that the findings and recommendations issued on

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September 14, 2017 (ECF No. 16) are VACATED. Plaintiff’s first amended complaint will be

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screened in due course.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 17, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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