(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH DELGADO, 12 13 14 15 No. 2:19-cv-1540 KJM KJN P Plaintiff, v. FINDINGS AND RECOMMENDATIONS JOE A. LIZARRAGA, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, with a civil rights action pursuant to 42 18 U.S.C. § 1983. On May 20, 2020, counsel for defendants Barton and Scheurer filed a suggestion 19 of death upon the record as to defendant Negrete. A suggestion of death upon the record 20 pertaining to the death of defendant Negrete was filed on June 3, 2020. Pursuant to Federal Rule 21 of Civil Procedure 25, a motion for substitution of a proper party must be made no later than 22 ninety days after the death is suggested upon the record. That time period has now expired, and 23 no motion for substitution has been filed. Therefore, defendant Negrete must be dismissed. Weil 24 v. Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 21 n. 5 (9th Cir.1981); 25 Fed. R. Civ. P. 25(a)(1). 26 Accordingly, IT IS HEREBY RECOMMENDED that defendant Negrete be dismissed. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 1 1 after service of these findings and recommendations, any written objections may be filed with the 2 court. The document should be captioned “Objections to Magistrate Judge’s Findings and 3 Recommendations.” Any response to the objections shall be filed and served within fourteen 4 days after service of the objections. Failure to file objections within the specified time may waive 5 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 Dated: October 15, 2020 7 8 9 /delg1540.death.fr 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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