Mcafee v. Parkway Inn Motel et al, No. 1:2017cv01372 - Document 7 (E.D. Cal. 2018)

Court Description: ORDER VACATING 5 FINDINGS AND RECOMMENDATIONS; ORDER GRANTING 6 Plaintiff's Request to File an Amended Complaint; and ORDER Directing Clerk of Court to Re-Serve 4 Order Dismissing Complaint With Leave to Amend signed by Magistrate Judge Stanley A. Boone on 1/3/2018. Amended Complaint due within thirty (30) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS MCAFEE, Plaintiff, 12 13 14 Case No. 1:17 -cv-01372-DAD-SAB ORDER VACATING NOVEMBER 22, 2017 FINDINGS AND RECOMMENDATIONS AND GRANTING PLAINTIFF’S REQUEST TO FILE AN AMENDED COMPLAINT v. PARKWAY INN MOTEL, et al., (ECF Nos. 5, 6) Defendants. 15 THIRTY-DAY DEADLINE 16 17 Plaintiff Curtis Mcafee (“Plaintiff”), proceeding pro se in this action, filed this civil rights 18 action pursuant to 42 U.S.C. § 1983 on October 12, 2017. (ECF No. 1.) On October 17, 2017, 19 Plaintiff’s complaint was screened and dismissed with leave to amend for failure to state a claim. 20 (ECF No. 4.) Plaintiff was to file an amended complaint within thirty days of the order 21 dismissing his complaint. (Id.) 22 Plaintiff did not timely file an amended complaint and on November 22, 2017 findings 23 and recommendations were filed recommending that this action be dismissed for Plaintiff’s 24 failure to comply with the October 17, 2017 order. (ECF No. 5.) The order was served on 25 Plaintiff’s address of record which is general delivery at the main post office. On December 7, 26 2017, the October 17, 2017 order was returned as “Undeliverable, Attempted, not known, unable 27 to forward.” On December 28, 2017, Plaintiff filed an untimely objection to the November 22, 28 2017 findings and recommendation and requested a thirty day extension of time to file an 1 1 amended complaint. (ECF No. 6.) In this instance, the Court will excuse Plaintiff for his untimely response and failure to 2 3 retrieve his mail. However, Plaintiff is placed on notice that even though he is proceeding pro se 4 in this action, he is still required to comply with all federal and local rules and court orders and 5 any further failure to comply may result in sanctions up to and including dismissal of this action. 6 Based on the foregoing, IT IS HEREBY ORDERED that: 7 1. The Clerk of the Court is DIRECTED to re-serve the October 17, 2017 order dismissing the complaint with leave to amend (ECF No. 4); 8 9 2. The findings and recommendations filed November 22, 2017 is VACATED; 10 3. Plaintiff’s request for a thirty day extension of time to file an amended complaint is GRANTED; and 11 4. 12 Plaintiff is advised that if he fails to file an amended complaint in compliance 13 with this order the Court will recommend that this action be dismissed for failure 14 to state a claim and failure to comply with court orders. 15 16 IT IS SO ORDERED. 17 Dated: January 3, 2018 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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