(PC) Pierce v. Stone, No. 1:2017cv01614 - Document 11 (E.D. Cal. 2018)

Court Description: ORDER VACATING 9 FINDINGS AND RECOMMENDATIONS and ORDER Directing Clerk of Court to Re-Serve Plaintiff With Order Re Consent or Request for Reassignment signed by Magistrate Judge Barbara A. McAuliffe on 4/2/2018. (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 DARNELLE PIERCE, 12 Plaintiff, 13 v. 14 STONE, 15 Defendant. 16 19 20 ORDER VACATING FINDINGS AND RECOMMENDATIONS (ECF No. 9) ORDER DIRECTING CLERK OF COURT TO RE-SERVE PLAINTIFF WITH ORDER RE CONSENT OR REQUEST FOR REASSIGNMENT THIRTY (30) DAY DEADLINE 17 18 Case No. 1:17-cv-01614-DAD-BAM (PC) Plaintiff Darnelle Pierce (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 5, 2017, the Court ordered Plaintiff to either consent to or decline 21 Magistrate Judge jurisdiction. (ECF No. 3.) On January 18, 2018, the Court issued a second 22 order requiring Plaintiff to either consent to or decline Magistrate Judge jurisdiction within thirty 23 (30) days. (ECF No. 8.) Plaintiff failed to consent to or decline Magistrate Judge jurisdiction 24 within the relevant time periods. Thus, on March 1, 2018, the Court issued findings and 25 recommendations to dismiss this action, without prejudice, for failure to obey court orders and 26 failure to prosecute. (ECF No. 9.) Those findings and recommendations were served on Plaintiff 27 and contained notice that any objections thereto were to be filed within fourteen (14) days after 28 service. (Id. at 3.) 1 1 On March 28, 2018, Plaintiff filed objections to the findings and recommendations in the 2 form of a letter to the Court. (ECF No. 10.) Plaintiff states that he has responded to every letter 3 received from the Court as soon as he has received them, and has followed all of the requests 4 given to him. In addition, he states that once mail leaves his hands, it is out of his control. (Id.) 5 As it appears that Plaintiff did not receive the Court’s prior orders regarding his consent or 6 request for reassignment, the Court finds good cause to vacate the pending findings and 7 recommendations and permit Plaintiff a final opportunity to respond to the Court’s orders. 8 Plaintiff should not be penalized for failure to obey court orders that he did not receive. 9 10 Accordingly, IT IS HEREBY ORDERED as follows: 1. The findings and recommendations issued on March 1, 2018, (ECF No. 9), are 11 12 VACATED; 2. The Clerk of the Court is directed to re-serve Plaintiff with a new order re consent or 13 14 request for reassignment; 3. Within thirty (30) days from the date of service of this order, Plaintiff shall complete 15 16 and return the order re consent or request for reassignment to the Court; and 4. If Plaintiff fails to comply with this order, this action will be dismissed, without 17 prejudice, for failure to obey court orders and failure to prosecute. 18 19 20 IT IS SO ORDERED. Dated: /s/ Barbara April 2, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2