Garcia v. Clark, et al.

Filing 186

FINDINGS and RECOMMENDATION Recommending That Defendant R. Santos Be Dismissed From This Action Under Rule 25 Pursuant to Notice of Death 182 , signed by Magistrate Judge Gary S. Austin on 11/12/16: 20-Day Deadline. (Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

WILLIAM P. GARCIA,

12

Plaintiff,

13

vs.

14

CLARK, et al.,

15

Defendants.

1:10-cv-00447-LJO-GSA-PC
FINDINGS AND RECOMMENDATION,
RECOMMENDING THAT DEFENDANT
R. SANTOS BE DISMISSED FROM THIS
ACTION UNDER RULE 25 PURSUANT
TO NOTICE OF DEATH
(ECF No. 182.)
OBJECTIONS, IF ANY, DUE WITHIN
TWENTY (20) DAYS

16
17
18

I.

BACKGROUND

19

William B. Garcia (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

20

action under 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March

21

12, 2010. (ECF No. 1.) This action now proceeds on Plaintiff's First Amended Complaint filed

22

on May 24, 2010, against defendants Palmer, Tolson, Turner, C. Walters, R. Santos, D. Ibarra,

23

S. Knight, F. Diaz, and K. Allison (“Defendants”) for violation of the First Amendment, the

24

Equal Protection Clause of the Fourteenth Amendment, and the Religious Land Use and

25

Institutionalized Persons Act of 2000.1 (ECF No. 12.)

26
27
28

1

On November 4, 2010, the Court issued an order dismissing defendants Quintana, Sheron,
Clark, and Lais from this action for Plaintiff’s failure to state any claims against them. (ECF No. 18.) On July 10,
2012, the Court dismissed defendant A. Seinez from this action for Plaintiff’s failure to effect service of process.
(ECF No. 72.)
1

1

On October 7, 2016, Defendants filed a request to dismiss defendant Santos from this

2

action under Federal Rule of Civil Procedure 25. (ECF No. 133.) No opposition has been

3

filed.

4

II.

FEDERAL RULE OF CIVIL PROCEDURE 25

5

Pursuant to Rule 25 of the Federal Rules of Civil Procedure, “[i]f a party dies and the

6

claim is not thereby extinguished, the court may order substitution of the proper parties. Fed.

7

R. Civ. P. 25(a)(1). The motion for substitution may be made by any party or by the successors

8

or representatives of the deceased party and, together with the notice of hearing, shall be served

9

on the parties as provided in Rule 5 and upon persons not parties in the manner provided in

10

Rule 4 for the service of a summons, and may be served in any judicial district. Id. Unless the

11

motion for substitution is made not later than 90 days after the death is suggested upon the

12

record by service of statement of the fact of the death as provided for herein for the service of

13

the motion, the action shall be dismissed as to the deceased party.” Id.

14

Discussion

15

Defendants request dismissal of defendant Santos from this action because defendant

16

Santos passed away during the pendency of this action. On May 10, 2016, Defendants notified

17

the Court of defendant Santos’ death. (ECF No. 169.) Defendants served a copy of the notice

18

on defendant Santos’ last known address, which Defendants have reason to believe is still

19

occupied by family members of defendant Santos. (Id.) Ninety days have passed since the

20

notice was sent, and no family member has moved for substitution under Rule 25. The Court

21

finds that Defendants have complied with the requirements of Rule 25 and therefore, their

22

request for dismissal of defendant Santos should be granted.

23

III.

24
25

CONCLUSION AND RECOMMENDATION
Accordingly, IT IS HEREBY RECOMMENDED THAT defendant Santos be

dismissed from this action under Rule 25.

26

These findings and recommendation are submitted to the United States District Judge

27

assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty

28

(20) days after being served with these findings and recommendations, any party may file
2

1

written objections with the court.

2

Magistrate Judge's Findings and Recommendation." Any reply to the objections shall be

3

served and filed within ten days after service of the objections. The parties are advised that

4

failure to file objections within the specified time may waive the right to appeal the District

5

Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Such a document should be captioned "Objections to

6
7
8
9

IT IS SO ORDERED.
Dated:

November 12, 2016

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3