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Davis v. CDCR

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 6, 2009

MAURICE DAVIS, JR., PLAINTIFF,
v.
CDCR, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS & ORDER

Plaintiff, a state prisoner proceeding pro se, died in custody during the pendency of this action, on 3/28/08. See docket # 18. By Order, filed on 1/16/09, this court directed defendants' counsel to inform the court within fifteen days whether or not personal service of the suggestion of death had been effected upon the representative of plaintiff's estate, pursuant to Fed. R. Civ. P. 4 and 25. Counsel for defendants, on 1/29/09, filed a declaration regarding proof of service of statement noting plaintiff's death upon plaintiff's successor or representative, indicating a previous declaration to that effect had been filed on 7/29/08, in response to the court prior orders. Proof of service upon plaintiff's designated representative, his sister, Marita Tetter, is signed by the process server and dated 7/15/08, and indicates personal service upon her was effected on 7/12/08. See Ex. A in docket # 23 and # 27.

Pursuant to Fed. R. Civ. P. 25(a)(1), a motion for substitution of a proper party must be made no later than ninety days after the death is suggested upon the record. Counsel for defendants has submitted proof of service as of 7/12/08 upon plaintiff's representative of a statement noting plaintiff's death; however, there has been no motion for substitution of a proper party filed, and the period of time for doing so has long expired.

Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

In addition, IT IS ORDERED that the Clerk of the Court serve a copy of these findings and recommendations by mail upon Marita Tetter / 266 N. Evergreen / Kankakee, IL 60901. The Clerk is further ordered not to serve a copy of this document upon plaintiff's address of record as he is deceased.

20090206

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