(PC) Delgado v. Lizarraga et al

Filing 45

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/15/2020 RECOMMENDING defendant Negrete be dismissed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH DELGADO,

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No. 2:19-cv-1540 KJM KJN P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

JOE A. LIZARRAGA, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding pro se, with a civil rights action pursuant to 42

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U.S.C. § 1983. On May 20, 2020, counsel for defendants Barton and Scheurer filed a suggestion

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of death upon the record as to defendant Negrete. A suggestion of death upon the record

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pertaining to the death of defendant Negrete was filed on June 3, 2020. Pursuant to Federal Rule

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of Civil Procedure 25, a motion for substitution of a proper party must be made no later than

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ninety days after the death is suggested upon the record. That time period has now expired, and

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no motion for substitution has been filed. Therefore, defendant Negrete must be dismissed. Weil

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v. Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 21 n. 5 (9th Cir.1981);

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Fed. R. Civ. P. 25(a)(1).

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Accordingly, IT IS HEREBY RECOMMENDED that defendant Negrete be dismissed.

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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 service of these findings and recommendations, any written objections may be filed with the

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court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any response to the objections shall be filed and served within fourteen

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days after service of the objections. Failure to file objections within the specified time may waive

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

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Dated: October 15, 2020

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/delg1540.death.fr

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