Tunstall v. Bick et al

Filing 167

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 8/3/2023 RECOMMENDING this action be dismissed pursuant to Federal Rule of Civil Procedure 25(a)(1) and defendants' 116 motion to revoke plaintiff's ifp status be denied as moot. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (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

ROBER WILLIAM TUNSTALL, JR.,

12

Plaintiff,

13
14

No. 2:16-CV-2604-KJM-DMC-P

v.

FINDINGS AND RECOMMENDATIONS

JOSEPH BICK, et al.,

15

Defendants.

16
Plaintiff, who was a prisoner proceeding pro se, brought this civil rights action

17
18

pursuant to 42 U.S.C. § 1983.
On October 13, 2022, Defendants filed a formal notice of suggestion of Plaintiff’s

19
20

death pursuant to Federal Rule of Civil Procedure 25. See ECF No. 161. Thereafter, the Court

21

directed defense counsel to make efforts to provide Plaintiff’s next of kin notice and further

22

directed defendant counsel to submit a status report. See ECF No. 162. On April 28, 2023,

23

defense counsel filed a status report indicating that the notice was served on Plaintiff’s daughter,

24

Sherry Tunstall, on February 17, 2023. See ECF No. 165. To date, no motion for substitution

25

has been filed.

26

///

27

///

28

///
1

1

Following service of a notice of suggestion of death, an action by a deceased

2

plaintiff must be dismissed if a motion to substitute is not filed within 90 days of service of the

3

notice. See Fed. R. Civ. P. 25(a)(1). In light of the foregoing, and because no motion to

4

substitute was made within 90 days of service of the notice of Plaintiff’s death on February 17,

5

2023, this action must be dismissed. See id.

6

Based on the foregoing, the undersigned recommends as follows:

7

1.

This action be DISMISSED pursuant to Federal Rule of Civil Procedure

2.

Defendants’ motion to revoke Plaintiff’s in forma pauperis status, ECF No.

8
9
10

25(a)(1).

116, be DENIED as moot.

11

These findings and recommendations are submitted to the United States District

12

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

13

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

14

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

15

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

16

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

17
18

Dated: August 3, 2023

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28
2