Thomas v. O'Mar, et al.

Filing 45

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/15/18 DIRECTING plaintiff shall submit a complaint limited to the claims that arose at the California Medical Facility within 30 days of the date of this order. The Clerk of the Court is directed to serve a copy of this order on the individuals listed in the Declaration of Service filed in Thomas v. Bick, No. 2:16-cv-1425-TLN-CKD (E.D. Cal. June 12, 2018), ECF No. 39.(Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSH THOMAS,

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Plaintiff,

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No. 2:18-cv-2068-EFB P

v.

ORDER

O’MAR, et al.,

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Defendants.

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This case was opened pursuant to an order from the Fresno Division of this court. See

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Thomas v. Ogbehi, No. 1:15-cv-1059-LJO-BAM (E.D. Cal. July 30, 2018) (severing and

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transferring the claims alleged in plaintiff’s third amended complaint that arose at the California

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Medical Facility in Vacaville, California). However, to proceed plaintiff had to file a complaint

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limited to the claims that arose at the California Medical Facility. But court records reflect that

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plaintiff passed away on May 15, 2018. See Thomas v. Bick, No. 2:16-cv-1425-TLN-CKD (E.D.

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Cal. June 7, 2018), ECF No. 37 (“Defendants’ Notice of Death of Plaintiff Josh Thomas”).1

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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Accordingly, the court will direct the Clerk of the Court to serve this order on plaintiff’s

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apparent successors in interest as identified in the Declaration of Service filed in Thomas v. Bick,

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No. 2:16-cv-1425-TLN-CKD (E.D. Cal. June 12, 2018), ECF No. 39.2

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Accordingly, it hereby is ORDERED that:

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1. The Clerk of the Court shall send to plaintiff the form complaint used in this court.

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2. Within 30 days of the date of this order, plaintiff shall submit a complaint limited to

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the claims that arose at the California Medical Facility. Failure to comply with this order may

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result in a recommendation of dismissal.

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3. The Clerk of the Court is directed to serve a copy of this order on the individuals listed

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in the Declaration of Service filed in Thomas v. Bick, No. 2:16-cv-1425-TLN-CKD (E.D. Cal.

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June 12, 2018), ECF No. 39.

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DATED: October 15, 2018.

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If a claim accrues before a plaintiff’s death, and where California law authorizes a
survival action, a successor can maintain a § 1983 action. Tatum v. City & Cty. of San Francisco,
441 F.3d 1090, 1100 (9th Cir. 2006) (citing 42 U.S.C. § 1988 and Cal. Civ. P. Code § 377.30).
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