United States District Court, E.D. California
ORDER REOPENING CASE (ECF NO. 14)
Larry Freeman (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
April 24, 2019, the assigned Magistrate Judge granted
Plaintiff leave to file a first amended complaint or a notice
of voluntary dismissal. (ECF No. 10.) Plaintiff was expressly
warned that if he failed to file an amended complaint in
compliance with the Court's order, this action would be
dismissed for failure to state a claim and failure to obey a
court order. (Id. at 12.)
11, 2019, following Plaintiff's failure to communicate
with the Court, the Magistrate Judge issued findings and
recommendations recommending dismissal of this action, with
prejudice, for failure to state a claim, failure to obey a
Court order, and failure to prosecute. (ECF No. 11.) Those
findings and recommendations were served on Plaintiff and
contained notice that any objections thereto were to be filed
within fourteen (14) days after service. (Id. at
12, 2019, after a de novo review of the case, the Court
adopted the findings in full and dismissed this action, with
prejudice, due to Plaintiff's failure to state a claim,
failure to obey a court order, and failure to prosecute. (ECF
No. 12.) Judgment was entered the same date. (ECF No. 13.)
15, 2019, the Clerk filed Plaintiff's objections to the
findings and recommendations. That document is dated July 9,
2019, more than a week after the applicable deadline for
filing objections. (ECF No. 13.) In this filing, Plaintiff
explains that he has been bedridden since February 13, 2019,
he has been transferred to a new facility, is awaiting his
property and legal materials, and has been denied writing
materials. See Id. This constellation of events has
prevented Plaintiff from properly responding to court orders.
See Id. Plaintiff requests an extension of time of
120 days in which to follow court orders. See id.
Court will assume that Plaintiff gave his objections to
prison personnel either on the date of the objections or the
following day, that is, either July 9, 2019 or July 10, 2019.
Under the prison mailbox rule, a document by a prisoner is
considered filed on the date that the prisoner gives the
document to prison officials for mailing. See Dougles v.
Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009). Through
application of the mailbox rule, although Plaintiff's
objections are outside the time set by the Findings and
Recommendation, they predate the Court's adoption of the
Findings and Recommendation. Rainer v. Chapman, 245 Fed.Appx.
698, 699 (9th Cir. 2007); Sharonoff v. Montoya, 2017 U.S.
Dist. LEXIS 175430, *1-*2 (E.D. Cal. Oct. 20, 2017); Turner
v. Sacramento Cnty, 2010 U.S. Dist. LEXIS 134272, *1 (E.D.
Cal. Dec. 20, 2010).
these circumstances, the Court finds that relief from
judgment and the order adopting the Findings and
recommendation is appropriate. The Court's order adopting
is mistaken in that it noted that no objections had been
made. Obviously because of the lag between mail and receipt,
the Court did not and could not have actually considered
Plaintiff's objections in connection with the order
adopting the findings and recommendation. Plaintiff's
objections provide reasons for his failure to follow court
orders. Being bedridden and without legal materials and
writing materials would make it difficult to file an amended
complaint or correspond with the court in a prompt manner.
Additionally, Plaintiff's complaint indicates that he has
a significant medical problem involving his spinal cord.
Given the nature of Plaintiff's objection's, under
Rule 60(b)(1), the Court will reopen this case. Cf Yniques v.
Cabral 985 F.2d 1031, 1034 (9t h Cir. 1993) (noting that Rule
60(b)(1) encompasses mistakes by the court).
than 120 days have passed since the filing of the Findings
and Recommendation, and Plaintiff has had more than
sufficient time to evaluate the Screening Order and the
shortcomings identified therein. Therefore, Plaintiff will be
given thirty days from service of this order in which to
comply with the Screening Order. That is, Plaintiff has
thirty days to file either a Rule 41(a) dismissal or an
amended complaint. If Plaintiff fails to timely file either
of these documents, or a properly supported request for a
reasonable extension of time,  then the Court will readopt the
Findings and Recommendation and close this case without
IT IS HEREBY ORDERED that:
1. The July 12, 2019 order adopting Findings and
Recommendation (Doc. No. 12) and the judgment entered on July
12, 2019 (Doc. No. 13) are VACATED;
2. The Clerk shall REOPEN this case;
3. Within thirty (30) days from service of this order,
Plaintiff shall comply with the April 24, 2019 screening
4. The failure to timely comply with this order will result
in the readoption of the Findings and Recommendation and the
closure of ...