Opinion
No. CIV S-05-2017-MCE-CMK-P.
February 24, 2006
ORDER
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On November 4, 2005, the court dismissed plaintiff's complaint and directed plaintiff to file a first amended complaint within 30 days. Plaintiff was warned that failure to file an amended complaint may result in dismissal of this action for lack of prosecution and failure to comply with court rules and orders. Plaintiff failed to file an amended complaint and, on January 12, 2006, the court issued findings and recommendations that this action be dismissed for lack of prosecution and failure to comply with court orders and rules.
Plaintiff has filed objections to the findings and recommendations. In his objections, plaintiff states that he never received the court's November 4, 2005, order directing him to file an amended complaint. Plaintiff has submitted a declaration from a prison staff counselor indicating that plaintiff never received any legal mail in November 2005.
Because it appears that plaintiff did not receive the court's November 4, 2005, order, and in the interest of justice, the court will vacate the January 12, 2006, findings and recommendations. The court will direct that the November 4, 2005, order be re-served and will provide plaintiff additional time to file an amended complaint. Plaintiff is again cautioned that failure to file an amended complaint within the time provided in this order may result in the dismissal of this action. See Local Rule 11-110.
Accordingly, IT IS HEREBY ORDERED that:
1. The court's January 12, 2006, findings and recommendations are vacated;
2. The Clerk of the Court is directed to re-serve the court's November 4, 2005, order on plaintiff; and
3. Plaintiff shall file a first amended complaint within 30 days of the date of service of this order.