Birrell, et al., v. Fox, et al.,

Filing 50

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 05/08/19 RECOMMENDING that defendants Alford, Bell, Jackson, Lewis, Gutschenritter, Parker and White be dismissed from this action. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID WESLEY BIRRELL, et al.,

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No. 2:16-cv-1818 JAM CKD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

ROBERT W. FOX,
Defendant.

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On October 31, 2018, the court ordered the 16 plaintiffs identified in the operative

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amended complaint other than defendant Birrell to inform the court whether they wish to remain a

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plaintiff in this case. Those plaintiffs were informed that failure to respond to the court’s order

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would result in a recommendation that they be dismissed. Plaintiffs Alford, Bell, Jackson, Lewis,

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Gutschenritter, Parker and White did not respond to the court’s order.

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With respect to plaintiff Jackson, the court’s October 31, 2018 order was returned by

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officials at the California Medical Facility with a notation that Jackson is deceased. The order

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was received by the court on November 16, 2018. Since no motion for substitution has been filed

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with respect to plaintiff Jackson, the court will recommend that defendant Jackson be dismissed

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pursuant to Rule 25(a) of the Federal Rules of Civil Procedure.

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As for plaintiffs Gutschenritter and White, their copies of the October 31, 2018 order were
returned to the court unserved. These plaintiffs were properly served as it is a plaintiff’s

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responsibility to keep the court apprised of his current address at all times. Pursuant to Local

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Rule 182(f), service of documents at the record address of the party is fully effective.

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In accordance with the above, IT IS HEREBY RECOMMENDED that defendants Alford,
Bell, Jackson Lewis, Gutschenritter, Parker and White be dismissed from this action.

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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.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 8, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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birr1818.36.frs

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