Elder v. Silva et al

Filing 93

ORDER signed by Magistrate Judge Dennis M. Cota on 6/26/2024 ORDERING the 92 renewed suggestion of death is deemed timely and the 90-day period within which a motion for substitution must be filed commenced on 5/6/2024. Plaintiff's curren t 87 motion for substitution is DENIED without prejudice. Plaintiff's counsel shall undertake an investigation to determine whether the individual identified in the renewed suggestion of death filed on 5/6/2024, is a successor-in-interest amendable to substitution. This matter is set for a status conference for 6/26/2024 at 09:00 AM before Magistrate Judge Dennis M. Cota, via Zoom. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

COREY JEROME ELDER,

12

Plaintiff,

13

v.

14

JOKSCH,

15

No. 2:16-CV-1925-DJC-DMC-P

ORDER

Defendant.

16
17

Plaintiff, a prisoner proceeding with limited purpose appointed counsel, brings this

18

civil rights action under 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s renewed

19

motion, ECF No. 87, for substitution of parties following the suggestion of death of Defendant

20

Joksch. A hearing was held before the undersigned via Zoom on May 3, 2024. Plaintiff appeared

21

through limited purpose appointed counsel Matthew Norris, Esq. Joshua Shuster, Esq., and Sarah

22

Brattin, Esq., specially appeared for Defendant Joksch. Following discussions with counsel, the

23

matter was submitted.

24

Consistent with the Court’s rulings at the time of the hearing, defense counsel has

25

timely filed a renewed notice of suggestion of death, with information identifying Defendant’s

26

next of kin filed under seal. See ECF No. 92. This filing re-starts the 90-day period within which

27

a motion for substitution must be filed pursuant to Federal Rule of Civil Procedure 25. Plaintiff’s

28

counsel shall undertake an investigation to determine whether the next of kin identified in the
1

1

renewed suggestion is a successor-in-interest amenable to substitution. Pending completion of

2

Plaintiff’s counsel’s investigation, the matter will be set for a status conference. The stay of

3

proceedings shall remain in effect. Plaintiff’s counsel’s appointment shall also remain in effect

4

pending further order of the Court.

5

Accordingly, IT IS HEREBY ORDERED as follows:

6

1.

The renewed suggestion of death, filed on May 6, 2024, is deemed timely.

7

2.

The 90-day period within which a motion for substitution must be filed

8

commenced on May 6, 2024.

9
10
11

3.

Plaintiff’s current motion for substitution, ECF No. 87, is denied without

4.

Plaintiff’s counsel shall undertake an investigation to determine whether

prejudice.

12

the individual identified in the renewed suggestion of death filed on May 6, 2024, is a successor-

13

in-interest amendable to substitution.

14
15

5.

This matter is set for a status conference before the undersigned via Zoom

on June 26, 2024, at 9:00 a.m.

16
17

Dated: May 9, 2024

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
2