Pierce v. Stone

Filing 11

ORDER VACATING 9 FINDINGS AND RECOMMENDATIONS and ORDER Directing Clerk of Court to Re-Serve Plaintiff With Order Re Consent or Request for Reassignment signed by Magistrate Judge Barbara A. McAuliffe on 4/2/2018. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DARNELLE PIERCE,

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Plaintiff,

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v.

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STONE,

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Defendant.

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ORDER VACATING FINDINGS AND
RECOMMENDATIONS
(ECF No. 9)
ORDER DIRECTING CLERK OF COURT TO
RE-SERVE PLAINTIFF WITH ORDER RE
CONSENT OR REQUEST FOR
REASSIGNMENT
THIRTY (30) DAY DEADLINE

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Case No. 1:17-cv-01614-DAD-BAM (PC)

Plaintiff Darnelle Pierce (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On December 5, 2017, the Court ordered Plaintiff to either consent to or decline

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Magistrate Judge jurisdiction. (ECF No. 3.) On January 18, 2018, the Court issued a second

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order requiring Plaintiff to either consent to or decline Magistrate Judge jurisdiction within thirty

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(30) days. (ECF No. 8.) Plaintiff failed to consent to or decline Magistrate Judge jurisdiction

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within the relevant time periods. Thus, on March 1, 2018, the Court issued findings and

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recommendations to dismiss this action, without prejudice, for failure to obey court orders and

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failure to prosecute. (ECF No. 9.) Those findings and recommendations were served on Plaintiff

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and contained notice that any objections thereto were to be filed within fourteen (14) days after

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service. (Id. at 3.)
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On March 28, 2018, Plaintiff filed objections to the findings and recommendations in the

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form of a letter to the Court. (ECF No. 10.) Plaintiff states that he has responded to every letter

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received from the Court as soon as he has received them, and has followed all of the requests

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given to him. In addition, he states that once mail leaves his hands, it is out of his control. (Id.)

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As it appears that Plaintiff did not receive the Court’s prior orders regarding his consent or

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request for reassignment, the Court finds good cause to vacate the pending findings and

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recommendations and permit Plaintiff a final opportunity to respond to the Court’s orders.

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Plaintiff should not be penalized for failure to obey court orders that he did not receive.

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Accordingly, IT IS HEREBY ORDERED as follows:
1. The findings and recommendations issued on March 1, 2018, (ECF No. 9), are

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VACATED;
2. The Clerk of the Court is directed to re-serve Plaintiff with a new order re consent or

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request for reassignment;
3. Within thirty (30) days from the date of service of this order, Plaintiff shall complete

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and return the order re consent or request for reassignment to the Court; and
4. If Plaintiff fails to comply with this order, this action will be dismissed, without

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prejudice, for failure to obey court orders and failure to prosecute.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 2, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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