Timberland v. Mascarenas et al
Filing
83
ORDER DISMISSING ACTION Pursuant to Rule 25(a)(1) signed by District Judge Dale A. Drozd on 7/19/2021. CASE CLOSED. (Jessen, A)
Case 1:16-cv-00922-DAD-GSA Document 83 Filed 07/20/21 Page 1 of 2
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RONALD TIMBERLAND,
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Plaintiff,
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No. 1:16-cv-00922-NONE-GSA-PC
ORDER DISMISSING ACTION PURSUANT TO
RULE 25(a)(1)
vs.
(Doc. No. 81.)
G. MASCARENAS, et al.,
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Defendants.
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Plaintiff Ronald Timberland is a state prisoner proceeding pro se with this civil rights
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action seeking relief under 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this
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action on June 27, 2016. (Doc. No. 1.) This case now proceeds with plaintiff’s second
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amended complaint, filed on June 20, 2018, against defendant G. Mascarenas for failure to
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protect plaintiff, in violation of the Eighth Amendment. (Doc. No. 26.)
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On March 1, 2021, defense counsel (“Counsel”) filed a “Notice of Suggestion of Death
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of Plaintiff,” which states that Counsel was informed that plaintiff died on December 19, 2020.
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(Doc. No. 81.) Counsel also states that a copy of the notice was served on plaintiff’s father,
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Ramon Timberland, in the manner identified by Federal Rule of Civil Procedure 4. The
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attached proof of service indicates that plaintiff’s father was personally served on February 26,
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2021. (Doc. No. 81-1).
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Case 1:16-cv-00922-DAD-GSA Document 83 Filed 07/20/21 Page 2 of 2
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“If a party dies and the claim is not thereby extinguished, the court may order
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substitution of the proper parties. A motion for substitution may be made by any party or by the
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decedent's successor or representative. If the motion is not made within 90 days after service of
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a statement noting the death, the action by or against the decedent must be dismissed.” Fed. R.
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Civ. P. 25(a)(1).
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The party filing the notice of death (or “suggestion of death”) “must serve other parties
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and nonparty successors or representatives of the deceased with a suggestion of death in the
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same manner as required for service of the motion to substitute. Fed. R. Civ. P. 25(a)(1).
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Thus, a party may be served the suggestion of death by service on his or her attorney, Fed. R.
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Civ. P. 5(b), while non-party successors or representatives of the deceased party must be served
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the suggestion of death in the manner provided by Rule 4 for the service of a summons.”
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Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). “[T]he 90 day period provided by Rule
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25(a)(1) will not be triggered against [the decedent’s] estate until the appropriate representative
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of the estate is served a suggestion of death in the manner provided by Federal Rule of Civil
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Procedure 4.” (Id. at 233–34).
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The notice of death was appropriately filed and served more than ninety days ago, and
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no motion for substitution has been made. Accordingly, IT IS ORDERED that this action is
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DISMISSED pursuant to Federal Rule of Civil Procedure 25(a)(1).
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IT IS SO ORDERED.
Dated:
July 19, 2021
UNITED STATES DISTRICT JUDGE
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