Bussiere v. Kokor et al

Filing 124

ORDER DISMISSING ACTION under Federal Rule of Civil Procedure 25(a)(1) signed by Magistrate Judge Sheila K. Oberto on 04/19/2018. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR T. BUSSIERE,

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Plaintiff,

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v.

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No. 1:13-cv-01565-SKO (PC)
ORDER DISMISSING ACTION UNDER
FEDERAL RULE OF CIVIL PROCEDURE
25(a)(1)

TIGGS-BROWN,

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Defendant.

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Plaintiff, Arthur T. Bussiere, was a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. On November 15, 2017, a docket entry

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was made reflecting that Plaintiff’s copy of the November 8, 2017 Order to Show Cause was

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returned as undeliverable with a note that Plaintiff is deceased. On January 4, 2018, Defendant

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PA Tiggs Brown filed a notice of Plaintiff’s death on the record. Fed. R. Civ. P. 25(a)(1). (Doc.

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120.) On January 18, 2018, Defendant filed the certificate showing that Plaintiff’s non-party

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successors or representatives were served with the notice of death on December 22, 2017. (Doc.

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122.) No motion for substitution has been made.

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Rule 25(a)(1) provides for the dismissal of this action if a motion for substitution is not

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made within ninety days after service of a statement noting plaintiff’s death. Fed. R. Civ. P.

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25(a)(1). For the running of the ninety-day period to commence, a party must 1) formally suggest

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the death of the party on the record, and 2) serve the suggestion of death on the other parties and

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nonparty successors or representatives. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994).

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Thus, a party may be served with the suggestion of death by service on his or her attorney as
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provided for in Rule 5, while non-party successors or representatives of the deceased party must

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be served the suggestion of death in the manner provided for in Rule 4 for the service of a

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summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232-34.

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Accordingly, because Plaintiff’s death was suggested upon the record more than ninety

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days ago and no motion for substitution has been made, this action is HEREBY ORDERED

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DISMISSED, with prejudice, pursuant to Federal Rule of Civil Procedure 25(a)(1). The Clerk of

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the Court shall close the case and enter judgment.

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IT IS SO ORDERED.
Dated:

April 19, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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