Mitchell v. Beard et al

Filing 20

ORDER vacating 17 FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Stanley A. Boone on 11/27/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT MITCHELL,

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Plaintiff,

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Case No. 1:17 -cv-01032-DAD-SAB
ORDER VACATING FINDINGS AND
RECOMMENDATIONS ISSUED
NOVEMBER 13, 2017

v.
CDCR SECRETARY JEFFERY BEARD, et
al.,

(ECF No. 17)

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Defendants.
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Plaintiff Robert Mitchell (“Plaintiff”), a former state prisoner, proceeding pro se and in

18 forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 12, 2017 in the
19 Central District of California. On August 3, 3017, the matter was transferred to the Eastern
20 District of California.
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On August 23, 2017, the Court dismissed Plaintiff’s complaint for failure to state a claim

22 under section 1983 and ordered Plaintiff to file an amended complaint within thirty days. 28
23 U.S.C. § 1915A; 28 U.S.C. § 1915(e). On September 25, 2017, Plaintiff filed objections to the
24 order, and on October 2, 2017, the Court overruled Plaintiff’s objections and granted Plaintiff an
25 additional thirty days to file an amended complaint. (ECF Nos. 13, 14.) After more than thirty
26 days passed and Plaintiff failed to file an amended complaint, the Court issued Findings and
27 Recommendations recommending dismissal of the action for failure to comply with a court order
28 and failure to state a cognizable claim on November 13, 2017.

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On November 20, 2017, the Court received a letter from Plaintiff, along with a first

2 amended complaint. (ECF Nos. 18, 19.) Plaintiff submits that he attempted to file his first
3 amended complaint but it was returned to him with a notation that the case number was
4 incorrect. (ECF No. 18.) Plaintiff submits a clerk’s notice which supports his contention. (Id.)
5 Based on Plaintiff’s contention and the fact that he has filed his first amended complaint, the
6 Court will vacate the Findings and Recommendations issued November 13, 2017.
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Accordingly, it is HEREBY ORDERED that:

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The Findings and Recommendations issued November 13, 2017, are vacated; and

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Plaintiff is advised that the Court will screen the first amended complaint in due

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12 IT IS SO ORDERED.
13 Dated:

November 27, 2017
UNITED STATES MAGISTRATE JUDGE

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