Hernandez v. Thomas

Filing 72

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 10/3/2019 RECOMMENDING 56 Motion to Dismiss be denied. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY HERNANDEZ,

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Plaintiff,

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No. 2:17-CV-1803-KJM-DMC-P

v.

FINDINGS AND RECOMMENDATIONS

THOMAS,

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Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is defendant’s motion to dismiss for failure to inform

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the court of a change of address (ECF No. 56).
On March 12, 2019, mail directed to plaintiff was returned by the United States

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Postal Service as undeliverable. Pursuant to Eastern District of California Local Rule 183(b), any

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party appearing pro se must file and serve a notice of change of address within 63 days of mail

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being returned. A review of the docket reflects that plaintiff has filed a notice of change of

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address.1 Though he did so outside the 63-day window, the court finds plaintiff’s tardiness

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should be excused and this action should proceed.

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///

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By separate order issued herewith, the court vacates the prior findings and recommendations that
defendant’s motion be granted.

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Based on the foregoing, the undersigned recommends that defendant’s motion to
dismiss (ECF No. 56) be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal. See

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 3, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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