Matthews v. Dhillion et al

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 06/18/19 RECOMMENDING that this action be dismissed pursuant to FRCP 25(a)(1) Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DWIGHT MATTHEWS,

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Plaintiff,

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No. 2:16-CV-2343-TLN-DMC-P

v.

FINDINGS AND RECOMMENDATIONS

K. DHILLION, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. On February 122, 2019, defendants filed a notice of plaintiff’s death pursuant

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to Federal Rule of Civil Procedure 25 (ECF No. 16). A review of the record reflects the notice

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was properly served under Rule 25(a)(3) (ECF No. 25, Exhibit 1).
Under Rule 25(a)(1), an action which is not extinguished must be dismissed upon

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the death of the plaintiff unless a motion for substitution is made with in 90 days after service of a

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statement noting the death. In this case, a notice of plaintiff’s death was properly served, more

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than 90 days since service have passed, and no motion for substitution has been filed. Therefore,

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this action must be dismissed.

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Based on the foregoing, the undersigned recommends that this action be dismissed
pursuant to Federal Rule of Civil Procedure 25(a)(1).

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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

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with the court. Responses to objections shall be filed within 14 days after service of objections.

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Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 18, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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