Birrell, et al., v. Fox, et al.,

Filing 80

ORDER signed by Chief District Judge Kimberly J. Mueller on 3/24/2023 DENYING 61 Findings and Recommendations as pertaining to Alford. This matter is referred back to the assigned magistrate judge for further pretrial proceedings. (Perdue, C.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID WESLEY BIRRELL, et al.,

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No. 2:16-cv-01818 KJM CKD P

Plaintiffs,
v.

ORDER

ROBERT W. FOX, et al.,
Defendants.

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Plaintiff Thomas Alford is a state prisoner proceeding pro se. On June 29, 2022, the

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assigned magistrate judge ordered plaintiff to file a status report within twenty-one days on

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whether he has obtained counsel or whether he wants to pursue the matter pro se. ECF No. 56.

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Plaintiff did not respond and on August 4, 2022, the magistrate judge issued findings and

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recommendations recommending, among other things, that plaintiff Alford be dismissed. ECF

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No. 61. On January 17, 2023, the court adopted the recommendation and plaintiff was dismissed.

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ECF No. 70. On January 27, 2023, plaintiff filed a document in which he indicates he never

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received a copy of the magistrate judge’s August 4, 2022 findings and recommendations and

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therefore was never permitted the opportunity to object to dismissal as provided for in the

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August 4, 2022 findings and recommendations. On March 6, 2023, the court vacated the

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judgment with respect to plaintiff and granted him fourteen days to file objections to the

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August 4, 2022 findings and recommendations. ECF No. 78. Plaintiff timely filed objections and
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states he wishes to continue with the case, indicating his desire to pursue the matter pro se. ECF

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No. 79.

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Accordingly, the court declines to adopt the August 4, 2022 findings and

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recommendations as to plaintiff Alford. (ECF No. 61). The court declines to dismiss plaintiff

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Alford. This matter, as it pertains to him, is referred back to the assigned magistrate judge for

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further pretrial proceedings.

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This order resolves ECF No. 61.
DATED: March 24, 2023.

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