Alexander, et al v. CA Dept. of Corrections and Rehabilitation, et al

Filing 41

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/25/12 ORDERING that no later than 5/30/12, plaintiffs shall obtain counsel and file a substitution of attorneys. Failure to obtain counsel will result in a recommendation this action be dismiss ed without prejudice; No later than 5/23/12, plaintiffs shall show cause why the sibling referenced in the complaint should not be joined as a party plaintiff; No later than 5/23/12, plaintiffs shall file a status report. In the status report, plaintiffs shall specifically outline what steps have been taken to effectuate service of summons in this action. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JONATHON ALEXANDER,

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Plaintiff,

CIV S-11-640 MCE CKD PS

vs.

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STATE OF CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION, et al.,

ORDER

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Defendant.
___________________________________/
This wrongful death action was referred to the undersigned pursuant to Local Rule

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302(c)(21). The action arises out of the murder of plaintiffs’ father while he was incarcerated.

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On March 21, 2011, plaintiff Jonathon Alexander was appointed as guardian ad litem to

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represent the interests of his sister, plaintiff Amber Alexander, an incompetent person presently

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confined to a mental institution. At the time of appointment, plaintiffs were represented by

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counsel in this action. On April 23, 2012, counsel’s motion to withdraw was granted and

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plaintiffs are now proceeding pro se.

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An incompetent person can only proceed if represented by counsel. Johns v.

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County of San Diego, 114 F. 3d 874, 877 (9th Cir. 1997) (minors must be represented by

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attorney); see also Meeker v. Kercher, 782 f.2d 153, 154 (10th Cir. 1986) (“it is not in the interest
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of minors or incompetents that they be represented by non-attorneys”). Although plaintiff Amber

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Alexander is not a minor, given her present confinement, she is incompetent to proceed in this

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action on her own behalf. Plaintiff will therefore be granted a limited time period in which to

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obtain counsel.

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The complaint alleges that the two named plaintiffs are two of the three children

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of the decedent. Under California Code of Civil Procedure § 377.60, all three children have the

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right to bring a wrongful death action. Plaintiffs will therefore be directed to show cause, in

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writing, why the third child referenced in the complaint should not be joined as a plaintiff in this

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action.

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This matter is currently set for status conference before the undersigned on June 6,

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2012. The action has been pending since March 8, 2011. Under Federal Rule of Civil Procedure

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4(m), service of process is to be completed within 120 days of filing of the complaint. This

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action has now been pending over thirteen months. At the status conference, plaintiffs are

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advised that the status of service of summons on defendants will be addressed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. No later than May 30, 2012, plaintiffs shall obtain counsel and file a

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substitution of attorneys. Failure to obtain counsel will result in a recommendation this action be

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dismissed without prejudice.

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2. No later than May 23, 2012, plaintiffs shall show cause why the sibling

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referenced in the complaint should not be joined as a party plaintiff.

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3. No later than May 23, 2012, plaintiffs shall file a status report. In the status

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report, plaintiffs shall specifically outline what steps have been taken to effectuate service of

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summons in this action.

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Dated: April 25, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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alexander.minor

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