(PC) Luster v. Amezcua et al, No. 1:2016cv00554 - Document 25 (E.D. Cal. 2018)

Court Description: ORDER VACATING 23 Findings and Recommendations; ORDER DEEMING 24 Second Amended Complaint Timely Filed, signed by Magistrate Judge Gary S. Austin on 6/13/18. (Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAPHNYE S. LUSTER, 12 13 14 15 Plaintiff, vs. RAUL H. AMEZCUA, et al., Defendants. 1:16-cv-00554-LJO-GSA-PC ORDER VACATING FINDINGS AND RECOMMENDATIONS (ECF. No. 23.) ORDER DEEMING SECOND AMENDED COMPLAINT TIMELY FILED (ECF No. 24.) 16 17 18 Daphnye S. Luster (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. 19 On March 26, 2018, the court issued an order dismissing the First Amended Complaint 20 for failure to state a claim, with leave to amend within thirty days. (ECF No. 22.) The thirty- 21 day time period passed, and Plaintiff did not file an amended complaint or otherwise respond to 22 the court’s order. 23 Due to Plaintiff’s failure to respond to the order, on May 22, 2018, the court entered 24 findings and recommendations, recommending that this case be dismissed with prejudice for 25 failure to state a claim. (ECF No. 23.) Plaintiff was granted fourteen days in which to file 26 objections to the findings and recommendations. (Id.) 27 To date, Plaintiff has not filed objections. However, on June 11, 2018, Plaintiff filed the 28 Second Amended Complaint. (ECF No. 24.) Given that the Second Amended Complaint has 1 1 now been filed, although untimely, the court finds good cause to vacate the findings and 2 recommendations and deem the Second Amended Complaint timely filed. 3 4 Plaintiff is advised that in the future, if she needs additional time to comply with a court order, she should file a motion for extension of time before the prior deadline expires. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The findings and recommendations, entered on May 22, 2018, are VACATED; 7 2. The Second Amended Complaint, filed on June 11, 2018, is deemed timely filed; 8 9 and 3. The court shall screen the Second Amended Complaint in due course. 10 11 12 13 IT IS SO ORDERED. Dated: June 13, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2