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Brown v. Morton

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 31, 2008

CLARENCE BROWN, PLAINTIFF,
v.
C/O MORTON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER CONSTRUING COPY OF DEATH CERTIFICATE AS SUGGESTING DEATH UPON THE RECORD

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983.

On July 3, 2008, findings and recommendations were entered, recommending that this action be dismissed for failure to state a claim upon which relief could be granted. On July 15, 2008, the recommendation was returned with a notation that Plaintiff is deceased. Pursuant to Fed. R. Civ. P. 25(a)(1), successors or representatives of a deceased party may make a motion for substitution "not later than 90 days after the death is suggested upon the record" and continue the action. Ninety days have expired since the court received notice of plaintiff's death. The court accepts the suggestion of death upon the record. Under Rule 25(a)(1), unless a motion for substitution is made, "the action shall be dismissed as to the deceased party." Absent such a statement, this case will be dismissed on October 30, 2008.

IT IS SO ORDERED.

20080731

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