Martin v. State of Nevada et al

Filing 19

ORDER - it is hereby ordered that Denzel's motion for substitution under Rule 25(a)(1) (ECF No. 18 ) is granted. It is further ordered that the Clerk of the Court will substitute "Denzel Hosea Martin, Special Administrator of the Est ate of Weslie Hosea Martin" as the plaintiff in this action. Denzel will be permitted to maintain the claims that Weslie sought to bring in this action. It is further ordered that Denzel has until December 21, 2024, to file either a writ ten notice informing the Court that he intends to proceed on the complaint and exhibits that Weslie submitted (ECF No. 1 -1) or a first amended complaint to attempt to replead those claims with the assistance of counsel. It is further ordered that Denzel has until December 21, 2024, to either pay the full $405.00 filing fee for this civil action or file an application to proceed in district court without prepaying fees or costs under 28 U.S.C. § 1915. Signed by Judge Miranda M. Du on 11/22/2024. (Copies have been distributed pursuant to the NEF - DLS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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WESLIE MARTIN,
v.

Case No. 3:23-cv-00423-MMD-CLB
Plaintiff,

ORDER

UNDERWOOD, et al.,
Defendants.

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This action began with a civil rights complaint under 42 U.S.C. § 1983 and an

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application to proceed in forma pauperis submitted by then state prisoner Weslie Hosea

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Martin (“Weslie”). (ECF Nos. 1-1, 1.) During the pendency of this lawsuit, the Nevada

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Department of Corrections filed a suggestion of death on the docket in another of Weslie’s

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lawsuits. See Martin v. The State of Nevada, No. 3:21-cv-00365-RCJ-CSD, at ECF

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No. 15 (D. Nev. Sept. 25, 2023). On December 6, 2023, the Court denied all pending

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applications and motions and ordered this action would be dismissed unless a motion to

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substitute under the Federal Rule of Civil Procedure 25(a)(1) was filed by March 5, 2024.

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(ECF No. 5.) When no timely motion was filed, the Court dismissed and closed this action.

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(ECF Nos. 7, 8.) However, the Court reopened this action on the motion of Weslie’s

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brother Denzel Hosea Martin (“Denzel”) seeking that relief and to substitute under Rule

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25. (ECF No. 13.) The Court denied Denzel’s request for substitution because it was not

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properly supported, and gave him until August 7, 2024, to file a new fully supported motion

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for that relief. (Id.)

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Through counsel, Denzel now moves for substitution, explaining his slight delay in

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filing the motion is the product of excusable neglect and stating that he is Weslie’s brother

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and the special administrator of his estate. (ECF No. 18 at 2.) To support his argument

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that he is the proper person to be substituted, Denzel provides Letters of Special

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Administration showing that Nevada’s Eighth Judicial District Court granted his petition to

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be appointed as special administrator of the Estate of Weslie Hosea Martin on August 1,

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2024. (ECF No. 18-1.)

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Good cause appearing, it is hereby ordered that Denzel’s motion for substitution
under Rule 25(a)(1) (ECF No. 18) is granted.

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It is further ordered that the Clerk of the Court will substitute “Denzel Hosea Martin,

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Special Administrator of the Estate of Weslie Hosea Martin” as the plaintiff in this action.

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Denzel will be permitted to maintain the claims that Weslie sought to bring in this action.

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It is further ordered that Denzel has until December 21, 2024, to file either a written

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notice informing the Court that he intends to proceed on the complaint and exhibits that

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Weslie submitted (ECF No. 1-1) or a first amended complaint to attempt to replead those

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claims with the assistance of counsel.

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It is further ordered that Denzel has until December 21, 2024, to either pay the full

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$405.00 filing fee for this civil action or file an application to proceed in district court

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without prepaying fees or costs under 28 U.S.C. § 1915. 1

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Denzel is advised that if he elects to file an application to proceed in forma pauperis

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and the Court grants him that status, then the Court will screen the original complaint or

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first amended complaint, whichever pleading he elects to proceed on, under 28 U.S.C.

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§ 1915(e)(2). But if Denzel pays the filing fee, the Court will not screen his pleading and

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this action will proceed onto the normal litigation track. In either event, the Court will enter

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a separate order about the issuance of summonses and service on the defendants when

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it is time to do so.

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DATED THIS 22nd Day of November 2024.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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1The application to proceed in district court without prepaying fees or costs is

publicly accessible on the forms section of the U.S. District Court, District of Nevada
website at: https://www.nvd.uscourts.gov/court-information/forms/.
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