McDowell v. Rivera et al

Filing 17

ORDER VACATING 15 FINDINGS AND RECOMMENDATIONS; ORDER Directing Clerk of Court to Re-Serve August 14, 2018 Screening Order on Plaintiff; ORDER Requiring Plaintiff to File a Second Amended Complaint signed by Magistrate Judge Barbara A. McAuliffe on 10/24/2018. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY McDOWELL,

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Plaintiff,

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v.

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RIVERA, et al.,

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Defendants.

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Case No. 1:17-cv-01665-LJO-BAM (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS
(ECF No. 15)
ORDER DIRECTING CLERK OF COURT TO
RE-SERVE AUGUST 14, 2018 SCREENING
ORDER ON PLAINTIFF
(ECF No. 14)

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ORDER REQUIRING PLAINTIFF TO FILE A
SECOND AMENDED COMPLAINT

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THIRTY (30) DAY DEADLINE

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Plaintiff Jerry McDowell (“Plaintiff”) is a former state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On July 30, 2018, Plaintiff filed a notice of change of address to his current address of

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record. (ECF No. 13.) On August 14, 2018, the Court issued an order screening Plaintiff’s first

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amended complaint and granting Plaintiff leave to file a second amended complaint. The order

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was mailed to Plaintiff’s updated address in Fontana, California. (ECF No. 14.) The order was

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not returned to the Court as undeliverable, and no other communication was received from

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Plaintiff.

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Thus, on October 4, 2018, the Court issued findings and recommendations to dismiss this

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action, with prejudice, for Plaintiff’s failure to state a claim, failure to obey a court order, and

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failure to prosecute. (ECF No. 15.) Those findings and recommendations were served on

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

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days after service. (Id. at 11.)

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Currently before the Court are Plaintiff’s objections, filed October 18, 2018. (ECF No.

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16.) Plaintiff states that he never received the Court’s August 14, 2018 screening order granting

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leave to amend, and requests an extension of time to file his amended complaint. (Id.)

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As it appears that Plaintiff did not receive the Court’s prior screening order, the Court

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finds good cause to vacate the pending findings and recommendations and permit Plaintiff

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another opportunity to file a second amended complaint. Plaintiff should not be penalized for

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failure to obey a court order that he did not receive.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. The findings and recommendations issued on October 4, 2018, (ECF No. 15), are

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VACATED;
2. The Clerk’s Office shall re-serve the Court’s August 14, 2018 screening order, (ECF

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No. 14) on Plaintiff at his current address of record;

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3. The Clerk’s Office shall send Plaintiff a complaint form;

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4. Within thirty (30) days from the date of service of this order, Plaintiff shall file a
second amended complaint in compliance with the Court’s screening order; and

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5. If Plaintiff fails to file a second amended complaint in compliance with this order,

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this action will be dismissed, with prejudice, for failure to obey a court order and

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failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 24, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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