(PC) Rose v. State of California, No. 1:2008cv00681 - Document 47 (E.D. Cal. 2011)

Court Description: ORDER Vacating 38 Findings and Recommendations, signed by Magistrate Judge Jennifer L. Thurston on 4/21/11. (Verduzco, M)
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(PC) Rose v. State of California Doc. 47 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN W. ROSE, 12 13 Case No. 1:08-cv-00681 LJO JLT (PC) Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS vs. (Doc. 38) 14 STATE OF CALIFORNIA, 15 Defendant. 16 ________________________________/ 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action pursuant to 42 U.S.C. § 1983. In its screening order filed October 27, 2010, the Court 19 instructed Plaintiff to either file a second amended complaint curing the deficiencies in Plaintiff’s 20 due process claim (denial of parole was not supported by “some evidence of current 21 dangerousness”) or notify the Court of his willingness to proceed on his procedural due process 22 claim (prison officials failed to provide him advanced notice of his February 5, 2008 parole 23 hearing). (Doc. 26.) 24 On March 29, 2011, Plaintiff informed the Court that he wished to proceed only on his 25 procedural due process claim. (Doc. 36.) Accordingly, the undersigned issued findings and 26 recommendations on April 1, 2011, dismissing Plaintiff’s remaining claim. (Doc. 38.) 27 Nevertheless, on April 19, 2011, Plaintiff filed objections to the findings and recommendations, 28 stating therein, among other things, that his willingness to proceed was “initiated under duress.” 1 Dockets.Justia.com 1 (Doc. 44.) Plaintiff has also filed a notice of appeal regarding a separate matter in this case. 2 (Docs. 39 & 41.) 3 Accordingly, it is HEREBY ORDERED that: 4 1. 5 6 The findings and recommendations issued by the Court on April 1, 2011 (Doc. 38) are VACATED; 2. Within thirty (30) days of the date of service of this order, Plaintiff shall either file 7 a second amended complaint or notify the Court in writing of his willingness to 8 proceed on his procedural due process claim; and 9 10 3. Plaintiff is firmly warned that his failure to comply with this order will result in a recommendation that this action be dismissed. 11 IT IS SO ORDERED. 12 Dated: April 21, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2