United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY DEFENDANT BRAZELTON SHOULD
NOT BE DIMISSED 21 DAY DEADLINE
Shabazz ("Plaintiff") is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff alleges that various prison authorities
violated the Eighth Amendment by transferring him to a prison
that suffered from a Valley Fever epidemic and that he has
contracted Valley Fever as a result.
March 7, 2017, the Court entered an Order finding service of
process appropriate for defendants Paul D. Brazelton, Susan
L. Hubbard, Deborah Hysen, Felix Igbinosa, J. Clark Kelso,
Tonya Rothchilds, Dwight Winslow, and James A. Yates. (ECF
Defendant Brazelton, the Court received notice that service
was returned unexecuted on June 30, 2017. (ECF No. 38.) The
notice indicated that defendant Brazelton was the former
Warden at Pleasant Valley State Prison at the time of civil
violation before passing away on November 11,
2016. (Id. at 1.)
has taken no action in connection with this notification
concerning defendant Brazelton.
Rule of Civil Procedure 4(m) provides:
(m) Time Limit for Service. If a defendant is not served
within 90 days after the complaint is filed, the court-on
motion or on its own after notice to the plaintiff-must
dismiss the action without prejudice against that defendant
or order that service be made within a specified time. But if
the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
Rule of Civil Procedure 25(a) provides a procedure for
substitution of parties upon death:
(1) Substitution if the Claim Is Not Extinguished. 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.
(2) Continuation Among the Remaining Parties. After a
party's death, if the right sought to be enforced
survives only to or against the remaining parties, the action
does not abate, but proceeds in favor of or against the
remaining parties. The death should be noted on the record.
(3) Service. A motion to substitute, together with a notice
of hearing, must be served on the parties as provided in Rule
5 and on nonparties as provided in Rule 4. A statement noting
death must be served in the same manner. Service may be made
in any judicial district.
Fed. R. Civ. P. 25(a)
Rule of Civil Procedure 25(d) applies to public officers sued