Pamer v. Schwarzenegger et al

Filing 118

ORDER signed by Magistrate Judge Craig M. Kellison on 12/22/11 ordering the defendants are directed to serve the suggestion of death upon the record pursuant to Rule 25. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

LAWRENCE PAMER,

12

Plaintiff,

13

No. CIV S-07-1902-MCE-CMK-P

vs.

ORDER

14

ARNOLD SCHWARZENEGGER, et al.,

15

Defendants.

16

/

17

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

18

to 42 U.S.C. § 1983. Defendants have filed a notice of Plaintiff’s death pursuant to Federal Rule

19

of Civil Procedure 25(a)(1) (Doc. 117).

20

The court notes that the suggestion of death filed with the court does not contain a

21

proof of service. The party suggesting the death of another party must serve the suggestion of

22

death on the other parties to the action and the nonparty successors or representatives of the

23

deceased. See Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). Service of the notice is

24

required on all parties pursuant to Rule 5 and on nonparties pursuant to Rule 4. See Fed. R. Civ.

25

Proc. 25(a)(3). Prior to dismissing an action for failure to substitute the proper party, proper

26

notice must be provided. See Barlow, 39 F.3d at 233, Fed. R. Civ. Proc. 25 (requiring dismissal
1

1

of action by the decedent if a motion to substitute is not filed within 90 days after service of the

2

statement suggesting death). Defendants are therefore directed to serve the suggestion of death

3

upon the record pursuant to Rule 25. See Fed. R. Civ. Proc. 25(a)(3).

4

SO ORDERED.

5
6
7
8

DATED: December 22, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2