Hendon v. Baroya et al
Filing
142
FINDINGS and RECOMMENDATIONS recommending that Defendant Griffin be DISMISSED from this action under Rule 25; Defendant Griffin is deceased, and Plaintiff has not filed a Motion for Substitution; re 18 Amended Complaint filed by Carlos Hendon ; referred to Judge Ishii, signed by Magistrate Judge Gary S. Austin on 11/21/14. (20-Day Deadline)(Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CARLOS HENDON,
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Plaintiff,
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vs.
BAROYA, et al.,
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Defendants.
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I.
1:05-cv-01247-AWI-GSA-PC
FINDINGS AND RECOMMENDATION,
RECOMMENDING THAT DEFENDANT
GRIFFIN BE DISMISSED FROM THIS
ACTION UNDER RULE 25 PURSUANT
TO NOTICE OF DEATH
OBJECTIONS, IF ANY, DUE WITHIN
TWENTY (20) DAYS
BACKGROUND
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Carlos Hendon ("Plaintiff") is a state prisoner proceeding pro se with this civil rights
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action under 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on
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September 30, 2005. (Doc. 1.) This action now proceeds on Plaintiff's Second Amended
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Complaint filed on June 26, 2008, against defendants Baroya, Pham, Nguyet, Hoppe, Griffin
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and Reidman (“Defendants”) for subjecting him to cruel and unusual punishment in violation
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of the Eighth Amendment. (Doc. 18.)
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On August 14, 2014, Defendants filed a notice of the death of defendant Griffin. (Doc.
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133.)
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II.
FEDERAL RULE OF CIVIL PROCEDURE 25
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Pursuant to Rule 25 of the Federal Rules of Civil Procedure, “[i]f a party dies and the
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claim is not thereby extinguished, the court may order substitution of the proper parties. Fed.
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R. Civ. P. 25(a)(1). The motion for substitution may be made by any party or by the successors
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or representatives of the deceased party and, together with the notice of hearing, shall be served
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on the parties as provided in Rule 5 and upon persons not parties in the manner provided in
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Rule 4 for the service of a summons, and may be served in any judicial district. Id. Unless the
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motion for substitution is made not later than 90 days after the death is suggested upon the
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record by service of statement of the fact of the death as provided for herein for the service of
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the motion, the action shall be dismissed as to the deceased party.” Id.
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III.
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CONCLUSION AND RECOMMENDATION
Plaintiff was informed more than 90 days ago by Defendants that defendant Griffin is
deceased, and Plaintiff has not filed a motion for substitution.
Accordingly, IT IS HEREBY RECOMMENDED THAT defendant Griffin be
dismissed from this action under Rule 25.
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These findings and recommendation are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty
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(20) days after being served with these findings and recommendations, any party may file
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written objections with the court.
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Magistrate Judge's Findings and Recommendation." Any reply to the objections shall be
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served and filed within ten days after service of the objections. The parties are advised that
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failure to file objections within the specified time may waive the right to appeal the District
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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Such a document should be captioned "Objections to
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IT IS SO ORDERED.
Dated:
November 21, 2014
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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