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Thomas Foote Riseley v. Warden

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


November 6, 2012

THOMAS FOOTE RISELEY, PLAINTIFF,
v.
WARDEN, HIGH DESERT STATE PRISON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

On August 23, 2012, the court directed plaintiff to file an amended complaint within twenty-eight days, and warned plaintiff that his failure to file an amended complaint would result in a recommendation that the action be dismissed. See Doc. No. 7. The court also denied plaintiff's motion to proceed in forma pauperis and directed plaintiff to file a new application. Id. On October 16, 2012, because plaintiff had not responded to the court's August 23, 2012 order, the court issued findings and recommendations recommending that the action be dismissed with prejudice. See Doc. No. 8. On October 29, 2012, plaintiff filed a response to the findings and recommendations, advising the court that he objects to dismissal, and asking the court to provide him with a new copy of the August 23, 2012 order as his paperwork was lost by staff during a transfer. See Doc. No. 9 at 2. Plaintiff does not address his failure to file a new application to proceed in forma pauperis.

The court construes plaintiff's objections to request that the court vacate the findings and recommendations, and grant plaintiff an extension of time to file an amended complaint and an application to proceed in forma pauperis. So construed, the motion is granted.

Good cause appearing, IT IS HEREBY ORDERED that: 1. The findings and recommendations entered October 16, 2012 (Doc. No. 8) are vacated;

2. Plaintiff's October 29, 2012 request for a copy of the court's August 23, 2012 order, and for an extension of time to comply with the court's August 23, 2012 order (Docket No. 9) is granted;

3. The Clerk shall re-serve a copy of the court's August 23, 2012 order on plaintiff, along with an application to proceed in forma pauperis; and

3. Plaintiff shall file his amended complaint within 30 days of the filing date of this order. Within 30 days, plaintiff shall also either: (1) file a complete application to proceed in forma pauperis; or (2) pay the entire filing fee for this action. No further extensions shall be granted. Plaintiff's failure (1) to file an amended complaint, and (2) either to pay the filing fee or to file an application to proceed in forma pauperis, within 30 days of the filing date of this order shall result in a recommendation that this action be dismissed with prejudice.

20121106

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