Coleman v. Adams, et al.

Filing 109

FINDINGS and RECOMMENDATION Regarding Dismissal of Defendant Deering (ECF Nos. [27, 90 ) signed by Magistrate Judge Stanley A. Boone on 5/21/2014. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 6/26/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SAAHDI COLEMAN,

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Plaintiff,
v.
A. QUEZADA, et al.,
Defendants.

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Case No.: 1:06-cv-00836-AWI-SAB (PC)
FINDINGS AND RECOMMENDATION
REGARDING DISMISSAL OF DEFENDANT
DEERING
[ECF Nos. 27, 90]

Plaintiff Saahdi Coleman is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On August 24, 2009, the Marshal returned the summons and USM-285 forms as to Defendant

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Dr. Deering with a notation that he is deceased. (ECF No. 21.) The USM-285 form was served by

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mail on Plaintiff at his address of record. (Id.)

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On August 24, 2012, an order to show cause was issued as to why Defendant Deering should
be dismissed for unsuccessful service. Plaintiff did not respond to the order to show cause.

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Rule 25(a)(1) of the Federal Rules of Civil Procedure states:

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If a party dies and the claim is not extinguished, the court may order substitution of a
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 make 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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Fed. R. Civ. P. 25(a)(1).
As just stated, Plaintiff was served with the notice of death on August 24, 2009, and ninety

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days have passed and Plaintiff has failed to file a motion for substitution, and/or respond to the order

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to show cause. Accordingly, Defendant Deering is subject to dismissal.

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Accordingly, the Court HEREBY RECOMMENDS that Defendant Deering be dismissed from
the action.

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This Findings and Recommendation will be 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 thirty (30) days

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after being served with the Findings and Recommendation, the parties may file written objections with

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the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

May 21, 2014
UNITED STATES MAGISTRATE JUDGE

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