Gause #162805 v. Indy et al
Filing
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ORDERED extending the time to serve Defendants Dentist Doe and East to August 10, 2016. ORDERED directing the Clerk of Court to mail Plaintiff a service packet for Defendant Dentist Doe. FURTHER ORDERED that by June 17, 2016, counsel for Defendant s shall jointly file under seal Defendant East's last known address and shall provide the Court with any available information on whether Defendant East is deceased. Signed by Magistrate Judge Eileen S Willett on 6/13/16. (Attachments: # 1 Service Packet Letter, # 2 Service Packet)(EJA)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Richard LeGrand Gause,
Plaintiff,
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ORDER
v.
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No. CV-15-02514-JJT-ESW
Unknown Indy, et al.,
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Defendants.
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On June 7, 2016, the Court ordered Plaintiff to show cause why Defendants East
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and Dentist Doe should not be dismissed without prejudice from this action for failure to
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serve pursuant to the Rule 4(m) of the Federal Rules of Civil Procedure and Rule
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16.2(b)(2)(B)(ii) of the Local Rules of Civil Procedure. Plaintiff filed his response to the
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Court’s order on June 8, 2016 (Doc. 29).
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Plaintiff anticipates that he will obtain Defendant Dentist Doe’s identity upon
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review of Plaintiff’s medical records that Defendant Utterbeck’s counsel is providing.
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(Doc. 29 at 1). Plaintiff requests that the Court send him another service packet for
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Dentist Doe. The Court will grant Plaintiff’s request and will extend the time to serve
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Dentist Doe to August 10, 2016.
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Plaintiff questions whether Defendant East is in fact deceased as the State has
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allegedly indicated to the United States Marshals Service (“USMS”). (Id. at 2). Plaintiff
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states that he intends to proceed with his claims against Defendant East even if Defendant
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East is deceased. (Id.). Federal Rule of Civil Procedure 25(a)(1) provides that:
If a party dies and the claim is not extinguished, the court
may order substitution of the proper party. A motion for
substitution may be made by any party or by the decedent's
successor or representative. If the motion is not made within
90 days after service of a statement noting the death, the
action by or against the decedent must be dismissed.
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The ninety-day period does not commence until two steps are completed. “First, a party
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must formally suggest the death of the party upon the record. . . . Second, the suggesting
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party must serve other parties and nonparty successors or representatives of the deceased
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with a suggestion of death in the same manner as required for service of the motion to
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substitute . . . . ” Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (citations omitted).
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“A motion to substitute, together with a notice of hearing, must be served on the parties
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as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death
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must be served in the same manner.” Fed. R. Civ. P. 25(a)(3).
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Plaintiff requests that the Court provide instructions on how to proceed as to
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Defendant East. The Court liberally construes pleadings filed by pro se prisoners and
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must give pro se prisoners fair notice of the requirements for responding to a motion for
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summary judgment.
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‘advocate’ for or to assist and guide the pro se layman through the trial thicket.” Bias v.
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Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007).
The Court, however, is “under no obligation to become an
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The Court will order counsel for Defendants to jointly file under seal Defendant
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East’s last known address and shall provide the Court with any available information on
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whether Defendant East is deceased.
CONCLUSION
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Based on the foregoing,
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IT IS ORDERED extending the time to serve Defendants Dentist Doe and East to
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August 10, 2016.
IT IS FURTHER ORDERED directing the Clerk of Court to mail Plaintiff a
service packet for Defendant Dentist Doe.
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Upon receipt of the properly completed
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service packet, the USMS shall effect service in accordance with the Court’s January 21,
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2016 Order (Doc. 9).
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IT IS FURTHER ORDERED that by June 17, 2016, counsel for Defendants
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shall jointly file under seal Defendant East’s last known address and shall provide the
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Court with any available information on whether Defendant East is deceased.
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Dated this 13th day of June, 2016.
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