UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 15, 2011
ORDER VACATING FINDINGS AND RECOMMENDATIONS AND ORDERING CLERK TO RE-ISSUE SERVICE DOCUMENTS
(ECF No. 16)
CLERK TO VACATE FINDINGS AND RECOMMENDATIONS AND FORWARD SERVICE DOCUMENTS TO PLAINTIFF FOR COMPLETION AND RETURN WITHIN / THIRTY DAYS
Plaintiff Dwayne Mayfield ("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 June 16, 2010. (ECF No. 1.) The Court found that Plaintiff had stated a cognizable claim against Defendant Mix for excessive use of force in violation of the Eighth Amendment and ordered that Plaintiff either proceed on that claim or file an amended complaint to attempt to state additional claims. (ECF No. 9.) Plaintiff did not file any response. On December 14, 2010, the Court issued Findings and Recommendations recommending dismissal of the action for failure to comply with a court order.*fn1 (ECF No. 11.) Plaintiff filed a notice that he did not receive the Findings and Recommendations, and that he would like to proceed on the excessive force claim. (ECF No. 13.) Thus, on January 14, 2011, the Court issued an order finding service of the Complaint appropriate and forwarding the service documents to Plaintiff for completion and return within thirty days. (ECF No. 15.) Plaintiff again failed to comply. On March 11, 2011, the Court then issued Findings and Recommendations recommending dismissal of the action for again failing to obey the Court's Order. (ECF No. 16.) Plaintiff filed his Objections to these Findings and Recommendations on April 11, 2011. In his Objections, Plaintiff states that he did not receive a copy of the January 14, 2011 Order. He further states that he has been rehoused and unable to submit a change of address because of an institutional lock down. Plaintiff has submitted a Notice of Change of Address with his Objections. (ECF No. 18.)
Having considered Plaintiff's Objections, the Court finds that he should be allowed an additional opportunity to proceed on his claim against Defendant Mix. Based on the foregoing, it is HEREBY ORDERED that:
1. The Court's March 11, 2011 Findings and Recommendations is VACATED;
2. Service shall be initiated against Defendant M. Mix;
3. The Clerk of Court shall send Plaintiff one (1) USM-285 form, one (1) summons, a Notice of Submission of Documents form, an instruction sheet and a copy of the Complaint filed June 16, 2010;
4. Within thirty (30) days from the date of this Order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the Court with the following Documents:
a. One completed summons for each Defendant listed above;
b. One completed USM-285 form for each Defendant listed above; and
c. One (1) copy of the endorsed Complaint filed June 16, 2010.
5. Plaintiff need not attempt service on the defendants and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
6. The failure to comply with this order will result in a recommendation that this action be dismissed.
IT IS SO ORDERED.
UNITED STATES MAGISTRATE JUDGE