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Wayne Allen v. W. Wood

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


April 21, 2011

WAYNE ALLEN, PLAINTIFF,
v.
W. WOOD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. By order filed March 31, 2011, the United States Marshal was directed to serve process on defendants in this action, including Q. Anderson. On April 15, 2011, the United States Marshal returned service unexecuted on Q. Anderson because that individual is deceased. In light of the suggestion of Q. Anderson's death upon the record, the Clerk of the Court will be directed to serve a copy of the USM-285 form returned by the Marshal on plaintiff together with a copy of this order. Service of such form will invoke the ninety day time limit for filing a motion for substitution pursuant to Federal Rule of Civil Procedure 25(a)(1).

Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall serve on plaintiff forthwith a copy of the USM-285 form returned by the United States Marshal on April 15, 2011, together with this order. Plaintiff may, within ninety days after service of this order, file a motion for substitution pursuant to Federal Rule of Civil Procedure 25(a)(1). Failure of plaintiff to timely file such motion will result in the dismissal from this action of Q. Anderson and any potential successive defendant against whom the same claims could be made.

SO ORDERED.

20110421

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