Calhoun v. Gomez et al

Filing 40

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/9/2014 RECOMMENDING that defendant Merriweather be dismissed from this action. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMONT L. CALHOUN,

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Plaintiff,

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No. 2:12-cv-2856-GEB-EFB P

v.

FINDINGS AND RECOMMENDATIONS

M. GOMEZ, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On December 20, 2013, the United States Marshal returned service unexecuted as

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to defendant Merriweather on the grounds that the defendant is deceased. ECF No. 24. Plaintiff

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acknowledged receipt of this notice on January 21, 2014. ECF No. 27. He did not, however, file

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a formal suggestion of death in accordance with Rule 25 of the Federal Rules of Civil Procedure,

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which establishes the procedure to be followed if a party dies during the pendency of an action.

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See Fed. R. Civ. P. 25; Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994).

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Accordingly, IT IS HEREBY RECOMMENDED that defendant Merriweather be

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dismissed from this action. See Fed. R. Civ. P. 25(a)(1) (if motion for substitution “is not made

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within 90 days after service of a statement noting the death, the action by or against the decedent

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must be dismissed”).

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/////
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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 9, 2014.

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