Blaine v. California Health Care Facility et al

Filing 103

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 08/10/17 recommending that this action be dismissed. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VANCE BLAINE, 12 Plaintiff, 13 14 15 No. 2:13-cv-2163 KJM AC P v. FINDINGS AND RECOMMENDATIONS CALIFORNIA HEALTH CARE FACILITY, et al., Defendants. 16 17 18 Plaintiff, now deceased, was a state prisoner proceeding pro se with this civil rights action. 19 On May 1, 2017, defense counsel filed a notice of plaintiff’s death and informed the court that the 20 only known contact for plaintiff was an attorney whom plaintiff asked to be notified in the event 21 of his death. See ECF No. 101. Pursuant to the Federal Rules of Civil Procedure, a motion for 22 substitution of a proper party must be made within ninety days after the death of that party is 23 noted on the record and, if such motion is not timely made, the action must be dismissed. See 24 Fed. R. Civ. P. 25(a)(1). The ninety-day period has now expired, and no motion for substitution 25 has been filed. Neither the referenced attorney nor any other representative or successor of 26 plaintiff has sought substitution in this action. 27 //// 28 //// 1 1 2 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed. See Fed. R. Civ. P. 25(a)(1). 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 5 days after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 8 objections shall be served and filed within fourteen days after service of the objections. The 9 parties are advised that failure to file objections within the specified time may waive the right to 10 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 DATED: August 10, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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