Nuriddin v. Estrella et al

Filing 39

ORDER DISCHARGING 23 Order to Show Cause Why Defendant Bell Should Not be Dismissed; ORDER DENYING Plaintiff's 36 Motion for Substitution and GRANTING Plaintiff Thirty Days to Make Proper Substitution, signed by Magistrate Judge Stanley A. Boone on 3/19/2015. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MUHAMMAD NURIDDIN,

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Plaintiff,
v.
ESTRELLA, et al.,
Defendants.

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Case No.: 1:11-cv-01448-SAB (PC)
ORDER DISCHARGING ORDER TO SHOW
CAUSE WHY DEFENDANT BELL SHOULD NOT
BE DISMISSED
ORDER DENYING PLAINTIFF’S MOTION FOR
SUBSTITUTION AND GRANTING PLAINTIFF
THIRTY DAYS TO MAKE PROPER
SUBSTITUTION
[ECF Nos. 23, 36]

Plaintiff Muhammad Nuriddin is appearing pro se and in forma pauperis in this civil rights

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action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Bivens actions and actions

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under 42 U.S.C. § 1983 “are identical save for the replacement of a state actor under § 1983 by a

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federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).

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On October 1, 2014, the Court issued an order to show cause why Defendants Miller and Bell

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should not be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (ECF No. 23.)

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Plaintiff filed a response on October 23, 2014. (ECF No. 26.)

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When personal service was attempted on Defendant Bell on August 8, 2014, the Human

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Resources Department at the United States Penitentiary in Atwater reported that Assistant Warden

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John Bell died on May 14, 2012. (ECF No. 20.)

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Plaintiff filed a response to the order to show cause and requested an extension of time to file a

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motion for substitution. (ECF No. 26.) On January 14, 2015, the Court granted Plaintiff thirty days to

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file a request to file a motion for substitution. (ECF NO. 33.) Plaintiff filed a motion for substitution

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on February 25, 2015.

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Plaintiff seeks to substitute the “unknown” wife of Defendant Bell as the successor or

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representative of the decedent’s estate. Plaintiff requests the Court substitute the “unknown” wife or

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“grant Plaintiff the opportunity to find the address and or telephone number of the unknown wife of

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the Defendant A. W. Bell the decedent, to attempt proper service upon the substitution Defendant.”

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While Plaintiff may seek to substitute the proper party for Defendant Bell, it is Plaintiff’s

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responsibility to identify the party, make the substitution, and provide sufficient information for the

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Marshal to locate the party for service. Neither the Court nor the Marshal may conduct an

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investigation on Plaintiff’s behalf to determine this information. Nor will the Court grant Plaintiff an

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infinite period of time to discover such information. The Court will discharge the order to show cause

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and allow Plaintiff one final opportunity to substitute the proper party in light of Defendant Bell’s

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death and provide that party’s address for service. If Plaintiff fails to make the proper substitution and

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provide a current address for service within thirty days from the date of service of this order,

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Defendant Bell will be dismissed from this action.

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Accordingly, it is HEREBY ORDERED that:

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1.

The order to show cause, filed October 1, 2014, is DISCHARGED; and

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2.

Within thirty days from the date of service of this order, Plaintiff shall make the proper

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substitution and provide a current address for service on the proper party for Defendant

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Bell or he will be dismissed from this action.

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IT IS SO ORDERED.

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Dated:

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March 19, 2015
UNITED STATES MAGISTRATE JUDGE

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