Pamer v. Schwarzenegger et al
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 04/16/12 ordering defendants are required to serve the suggestion of death on all parties pursuant to Rule 5 and on nonparties pursuant to Rule 4. (see order for further details) (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LAWRENCE PAMER,
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Plaintiff,
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No. CIV S-07-1902-MCE-CMK-P
vs.
ORDER
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ARNOLD SCHWARZENEGGER, et al.,
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Defendants.
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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant
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to 42 U.S.C. § 1983. On December 20, 2011, defendants filed a notice that plaintiff died in
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prison on October 16, 2011. On December 23, 2011, the court issued an order requiring the
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defendants to serve the suggestion of death pursuant to Barlow v. Ground, 39 F.3d 231, 233 (9th
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Cir. 1994). Specifically, the court informed defendants of the requirement that the suggestion of
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death be served on all other parties and the nonparty successors or representatives of the
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deceased. See id.
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In response, defendants submitted a proof of serve by mail the same day
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indicating that the notice of death was served on the deceased plaintiff at his prison address.
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There has been no further proof of service filed, nor have the defendants submitted a declaration
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that plaintiff had no next of kin or other possible successors or representatives. Service of the
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notice on the deceased prisoner plaintiff at his prison address fails to comply with the prior order,
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nor is it sufficient to trigger the 90 day period under Rule 25(a)(1). Without requiring the
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defendants to make extraordinary efforts to find a possible successor or representative of
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plaintiff, the court is reasonably certain there is likely to be a next of kin listed in the plaintiff’s
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prisoner file. If there is not, defendants can inform the court as much in a declaration setting
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forth what reasonable steps were taken to find a next of kin or representative of plaintiff’s estate.
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As set forth in the court’s previous order, defendants are required to serve the
suggestion of death on all parties pursuant to Rule 5 and on nonparties pursuant to Rule 4. See
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Fed. R. Civ. Proc. 25(a)(3) (requiring service of the statement noting death in the same manner as
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a motion to substitute); see also Barlow, 39 F.3d at 233. If plaintiff has no known next of kin,
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and defendants are unable to locate a representative without extraordinary efforts, they may file a
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declaration in leu of a proof of service. Otherwise, defendants shall properly serve the suggestion
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of death as required. See id.
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SO ORDERED.
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DATED: April 16, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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