Opinion
1:20-cv-000228-DAD-GSA-PC
05-14-2020
MARK RAYMOND FRISBY, Plaintiff, v. STATE OF CALIFORNIA, et al., Defendants.
ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS ENTERED ON APRIL 17, 2020
(ECF No. 14.) ORDER DEEMING FIRST AMENDED COMPLAINT TIMELY FILED ON APRIL 28, 2020
(ECF No. 15.) ORDER FOR CLERK TO SEND PLAINTIFF A COPY OF THE COURT'S SCREENING ORDER ISSUED ON MARCH 4, 2020 (ECF No. 11.)
Mark Raymond Frisby ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.
On April 17, 2020, the court entered findings and recommendations, recommending that this case be dismissed based on Plaintiff's failure to state a claim, failure to prosecute, and failure to comply with the court's order of March 4, 2020, which required Plaintiff to file an amended complaint within thirty days. (ECF No. 14.) Plaintiff was granted fourteen days in which to file objections to the findings and recommendations. (Id.) On April 28, 2020, Plaintiff filed objections to the findings and recommendations, and also filed the First Amended Complaint. (ECF Nos. 15, 16.)
In his objections to the findings and recommendations, Plaintiff asserts that he did not receive any "prior notices of rejection to the original complaint . . . Plaintiff must assume that the original complaint was lost." (ECF No. 16 at 1.)
Plaintiff is advised that the original complaint, filed on February 10, 2020, was not lost. On March 4, 2020, the court screened the original complaint and dismissed it for violation of Rule 8 of the Federal Rules of Civil Procedure, and for failure to state a claim with leave to amend within thirty days. (ECF No. 11.) In the event that Plaintiff did not receive a copy of the court's screening order, the court shall direct the Clerk to send him one now.
Finally, given that Plaintiff has filed the First Amended Complaint for this action the court shall vacate the findings and recommendations entered on March 20, 2020, and deem the First Amended Complaint timely filed on April 28, 2020.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations entered on March 20, 2020, are WITHDRAWN;IT IS SO ORDERED.
2. The First Amended Complaint, filed on April 28, 2020, is deemed timely filed; and
3. The Clerk is DIRECTED to send Plaintiff a copy of the court's screening order issued on March 4, 2020 (ECF No. 11).
Dated: May 14 , 2020
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE