IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 10, 2010
DAVID THOMPSON, PLAINTIFF,
PERRY RENIFF, ET AL., DEFENDANTS.
ORDER AND FINDINGS AND RECOMMENDATIONS
At the time plaintiff commenced this action he was a county jail inmate proceeding pro se. On September 14, 2009, the court dismissed plaintiff's original complaint and granted him thirty days leave to file an amended complaint. On October 8, 2009, the Butte County Sheriff filed a notice in this case informing the court that plaintiff had passed away on September 22, 2009.
Rule 25(a)(1) of the Federal Rules of Civil Procedure provides: 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.
Plaintiff is the sole party to this action. Ninety days have passed since the Butte County Sheriff notified the court of plaintiff's death, and no motion for substitution of a party has been filed by the decedent's successor or representative. In light of plaintiff's passing and the absence of a timely motion for substitution , the court will recommend that this action be dismissed.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a United States District Judge to this action.
IT IS HEREBY RECOMMENDED that this action be dismissed. See Fed. R. Civ. P. 25(a)(1).
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-one days of the issuance of these findings and recommendations, plaintiff's successor or representative may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff's successor or representative is 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).
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