IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 20, 2009
KEVIN KING, PLAINTIFF,
CDCR, ET AL., DEFENDANT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a former state prisoner, proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983.
On December 17, 2008, the court issued findings and recommendations granting defendants' motion for summary judgment filed October 3, 2008, as plaintiff failed to file an opposition and did not appear at the November 20, 2008, hearing. On December 5, 2008, defendants' filed a motion to dismiss for lack of prosecution and the hearing was set for January 15, 2009. Plaintiff filed no opposition.
On the January 15, 2009, hearing date for the motion to dismiss for lack of prosecution, an attorney appeared for defendants and plaintiff appeared. Plaintiff explained that he was unable to respond to the motions and appear in court due to grief from the one year anniversary of the death of his son, on November 16, 2007. Plaintiff wishes to continue with the prosecution of this case.
Accordingly, IT IS HEREBY ORDERED that:
1. The December 17, 2008, findings and recommendations are vacated;
2. Plaintiff is ordered to respond to the October 3, 2008, motion for summary judgment by February 4, 2009;
3. Defendants'*fn1 have until February 11, 2009 to reply to plaintiff's response.
IT IS HEREBY RECOMMENDED that:
1. Defendant's motion to dismiss for lack of prosecution is denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).