Franklin v. Frakes et al

Filing 48

MEMORANDUM AND ORDER - Plaintiff will be permitted until October 30, 2017, in which to file an appropriate motion for substitution or Plaintiff's claims against Defendant Britten in his individual capacity will be dismissed. The clerk's office is directed to set a pro se case management deadline with the following text: October 30, 2017: check for Plaintiff's motion for substitution. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSHUA G. FRANKLIN, SR.,
Plaintiff,

8:16CV470

vs.
DIANE SABATKA-RINE, Deputy
Director, In her Individual and Official
Capacity; FRED BRITTEN, Warden, In
his Individual and Official Capacity;
CURT WEES, Unit Administrator, In
his Individual and Official Capacity;
MCCLYMONT, Case Manager;
DENNIS BAKEWELL, and CHARLES
RINE,

MEMORANDUM
AND ORDER

Defendants.
This matter is before the court on Nebraska Assistant Attorney General
Timothy R. Ertz’s, attorney of record for Defendants, Suggestion of Death of
Defendant Fred Britten. (Filing No. 44.) Counsel represents to the court that
Defendant Britten died on or about July 19, 2017. (Id.) Counsel mailed the
Suggestion of Death to Plaintiff on July 28, 2017. (Id.)
Unless Plaintiff is able to comply with Federal Rule of Civil Procedure
25(a)(1)1 by October 30, 2017, Plaintiff’s claims against Defendant Britten in his
individual capacity will be dismissed. Cf. Fed. R. Civ. P. 25(d) (“An action does

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“If a party dies and the claim is not extinguished, the court may order
substitution of the proper party. A motion for substitution may be made by any
party or by the decedent’s successor or representative. If the motion is not made
within 90 days after service of a statement noting the death, the action by or
against the decedent must be dismissed.” Fed. R. Civ. P. 25(a)(1).

not abate when a public officer who is a party in an official capacity dies, resigns,
or otherwise ceases to hold office while the action is pending”).
IT IS THEREFORE ORDERED that:
1.
Plaintiff will be permitted until October 30, 2017, in which to file an
appropriate motion for substitution or Plaintiff’s claims against Defendant Britten
in his individual capacity will be dismissed.
2.
The clerk’s office is directed to set a pro se case management deadline
with the following text: October 30, 2017: check for Plaintiff’s motion for
substitution.
Dated this 2nd day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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