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Hill v. Tate

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 24, 2009

RAYNARD B. HILL, PLAINTIFF,
v.
TATE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER VACATING FINDINGS AND RECOMMENDATIONS

(Docs. 11, 12.)

Plaintiff Raynard B. Hill ("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 October 31, 2008, the Court issued an order finding that Plaintiff's complaint states claims under the Eighth Amendment against Defendants Tate, Afra, Runyan, and McConnell, but fails to state any other claims upon which relief may be granted. The Court ordered Plaintiff, within thirty days, to either file an amended complaint curing the deficiencies identified by the Court or notify the Court in writing that he does not wish to file an amended complaint and is willing to proceed only on the claims found to be cognizable. More than thirty days passed and Plaintiff did not comply with or otherwise respond to the Court's order. On January 7, 2009, the Court issued a Findings and Recommendations recommending that this action be dismissed for failure to obey a court order.

On January 20, 2009, Plaintiff filed a motion for reconsideration and also a response to the Court's October 31, 2008 order. (Docs. 12, 13). In Plaintiff's motion for reconsideration, construed by the Court as an Objection to the Findings and Recommendations, Plaintiff states that various health problems within his family "had adverse effects to Plaintiff's emotional state causing a tunnel vision and a failure to respond to an Court Order." Plaintiff also states that his property was confiscated on September 12, 2008 and that he is still in the process of having his property returned.

The Court does not take lightly a party's failure to comply with a court order. However, the Court shall vacate the Findings and Recommendations recommending dismissal of this action, with a warning to Plaintiff that any further failure to obey any other court order in this action will result in a recommendation that this action be immediately dismissed.

Accordingly, the Findings and Recommendations, issued January 7, 2009, are HEREBY ORDERED VACATED.

IT IS SO ORDERED.

20090224

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