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Smith v. Chrones

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 3, 2008

JAMES E. SMITH, PLAINTIFF,
v.
CHRIS CHRONES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER VACATING FINDINGS AND RECOMMENDATIONS ISSUED JULY 14, 2008 (Doc. 25.) ORDER FOR CLERK TO SEND COMPLAINT FORM TO PLAINTIFF ORDER FOR PLAINTIFF TO SUBMIT FIRST AMENDED COMPLAINT WITHIN THIRTY DAYS

Plaintiff, James E. Smith ("plaintiff"), is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on December 11, 2006. (Doc. 1.) On April 11, 2008, the court dismissed plaintiff's complaint for failure to state a claim, with leave to file a First Amended Complaint, or in the alternative, to notify the court that he wishes to dismiss this action, within thirty days. (Doc. 19.) More than ninety days passed, and plaintiff failed to file a First Amended Complaint or notify the court that he wishes to dismiss this action. On July 14, 2008, the undersigned issued findings and recommendations to dismiss this action for plaintiff's failure to obey the court's April 11, 2008 order. (Doc. 25.) On July 21, 2008, plaintiff filed objections. (Doc. 27.)

In his objections, plaintiff argues that he responded to the court's April 11, 2008 order by "submitting to the Court an amended complaint under Rule 15(d) Federal Rule of Civil Procedure."

The court did not receive an amended complaint from plaintiff for this action. Plaintiff was advised in the court's April 11, 2008 order that if he chose to file an amended complaint, he must "boldly and clearly entitle it 'First Amended Complaint' and refer to the case number 1:06-cv-01799-OWW-GSA-PC.'" The court received no such document. However, in light of plaintiff's statement indicating that he prepared and submitted an amended complaint, the court shall grant plaintiff thirty days in which to file the First Amended Complaint. To this end, the court shall vacate its findings and recommendations.

Based on the foregoing, IT IS HEREBY ORDERED that:

1. The court's findings and recommendations issued July 14, 2008, are VACATED in their entirety;

2. The Clerk is DIRECTED to send to plaintiff a section 1983 complaint form;

3. Plaintiff is GRANTED thirty days from the date of service of this order in which to file a First Amended Complaint;

4. The amended complaint must be clearly and boldly entitled "FIRST AMENDED COMPLAINT" and refer to case number 1:06-cv-01799-OWW-GSA-PC; and

5. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed.

IT IS SO ORDERED.

20080803

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