Gates v. Griffith et al

Filing 61

ORDER denying 58 Motion to Stay, by Magistrate Judge Boyd N. Boland on 3/13/12.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 10-cv-02417-RBJ-BNB
DEAN GATES,
Plaintiff,
v.
SHARON PHILLIPS,
JOSEPH SINGLETON,
DR. WORMER,
LAURIE O’NEAL,
J. HOOKER,
J. WESCOT, and
ALL NURSES OVERSEEING MY CARE FROM 12-3-08 TIL 12-27-08,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the State Defendants’ Motion for a Stay of Case . . . . [Doc. #58
filed 10/18/2011] (the “Motion to Stay”). The Motion to Stay is DENIED.
At the time he filed his Prisoner Complaint [Doc. #19], the plaintiff was incarcerated by
the Colorado Department of Corrections at the Fort Lyon Correctional Facility. On June 16,
2011, the defendants filed a notice of the plaintiff’s death [Doc. #40] and a motion to dismiss the
Complaint under Rule 25(a) [Doc. #51]. On September 19, 2011, I recommended that the
defendants’ motion to dismiss be denied because the defendants did not demonstrate that they
served (or attempted to serve) a suggestion of death on the successors or representatives of the
plaintiff’s estate as required by Grandbouche v. Lovell, 913 F.2d 835, 837 (10th Cir. 1990) [Doc.
#52].

The defendants request an order staying the case or extending the deadline to file an
answer or otherwise respond to the plaintiff’s Complaint. Motion to Stay, p. 4. The defendants
state that they “have filed a Second Notice of Death pursuant to Fed. R. Civ. P. 25(a) on October
18, 2011, which includes certification that the Second Notice is being served on the individuals
named to the Colorado Department of Corrections by plaintiff as his son and sister.” Id. at ¶ 7.
However, the defendants have not filed any documentation demonstrating proper service on the
successors or representatives of the plaintiff’s estate. Accordingly,
IT IS ORDERED:
1. The Motion to Stay is DENIED; and
2. On or before March 27, 2012, the defendants shall file proof that they served (or
attempted to serve) a suggestion of death on the successors or representatives of the plaintiff’s
estate as required by Grandbouche v. Lovell, 913 F.2d 835, 837 (10th Cir. 1990).
Dated March 13, 2012.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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