(PC) Gaines v. Brown et al, No. 1:2016cv01666 - Document 19 (E.D. Cal. 2017)
Court Description: ORDER signed by Magistrate Judge Barbara A. McAuliffe on 10/17/2017 vacating 16 FINDINGS AND RECOMMENDATIONS. (Lundstrom, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARY LEE GAINES, 12 Plaintiff, 13 14 v. E. G. BROWN, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-01666-AWI-BAM (PC) ORDER VACATING FINDINGS AND RECOMMENDATIONS (ECF No. 16) 17 Plaintiff Mary Lee Gaines (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 7, 2017, the Court dismissed the complaint with leave to amend within thirty days 20 21 after service. (ECF No. 7.) Thereafter, Plaintiff was granted three extensions of time to amend her 22 complaint, with the most recent amended complaint due by September 7, 2017. (ECF Nos. 9, 12, 15.) 23 Plaintiff failed to comply with those orders. Consequently, on September 14, 2017, the Court issued 24 findings and recommendations recommending dismissal of this action for failure to state a claim, 25 failure to obey a court order, and failure to prosecute. (ECF No. 16.) On September 13, 2017, the Court received Plaintiff’s first amended complaint, which was not 26 27 docketed until September 14, 2017. (ECF No. 17.) The declaration of service is dated September 7, 28 2017. 1 1 On October 16, 2017, Plaintiff filed objections to the September 14, 2017 findings and 2 recommendations. (ECF No. 18.) Plaintiff argues that the first amended complaint was mailed to the 3 Court by her paralegal on September 7, 2017, and therefore has complied with the Court’s orders. 4 It appears that Plaintiff’s amended complaint crossed in the mail with the Court’s findings and 5 recommendations. In addition, based on the filing of the first amended complaint on September 13, 6 2017, the Court finds it proper to vacate its findings and recommendations. 7 Accordingly, it is HEREBY ORDERED that the findings and recommendations issued on 8 September 14, 2017 (ECF No. 16) are VACATED. Plaintiff’s first amended complaint will be 9 screened in due course. 10 11 12 13 IT IS SO ORDERED. Dated: /s/ Barbara October 17, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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