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Burton Ray Bathke v. Edmund G. Brown

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


December 5, 2012

BURTON RAY BATHKE,
PLAINTIFF,
v.
EDMUND G. BROWN, JR.,
DEFENDANT.

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

ORDER VACATING FINDINGS AND RECOMMENDATIONS AND GRANTING PLAINTIFF AN EXTENSION OF TIME TO FILE AN ) AMENDED COMPLAINT AMENDED COMPLAINT DUE IN THIRTY DAYS

On August 10, 2012, an order was entered, dismissing the complaint for failure to state a claim and granting Plaintiff leave to file an amended complaint. Despite extensions of time, Plaintiff failed to file an amended complaint. On November 16, 2012, a recommendation of dismissal was entered, recommending dismissal of this action for Plaintiff's failure to obey a court order. On November 16, 2012, Plaintiff filed objections to the findings and recommendations.

Plaintiff's objections consist of rambling narrative and legal argument. Plaintiff appears to re-alleging the facts of the complaint, and refers to allegations of conduct by correctional officials. Plaintiff is advised that any deficiencies identified in the August 10, 2012 order should be addressed in a first amended complaint. The August 10, 2012, order clearly identified the defects in the complaint. Because Plaintiff has responded to the recommendation of dismissal for failure to prosecute, the Court will vacate the recommendation of dismissal and grant Plaintiff one extension of time in which to file a first amended complaint in compliance with the order of August 10, 2012. Plaintiff's failure to do so will result in a recommendation that this action be dismissed for failure to state a claim.

Accordingly, IT IS HEREBY ORDERED that:

1. The November 16, 2012, recommendation of dismissal is vacated.

2. Plaintiff is granted an extension of time of thirty days from the date of service of this order in which to file an amended complaint in compliance with the order of August 10, 2012.

IT IS SO ORDERED.

20121205

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