Terry v. Cate et al
Filing
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ORDER signed by Magistrate Judge Gregory G. Hollows on 11/03/11 ordering within 28 days of the date of this order, the state Attorney General or a designee shall, if known, file a Suggestion of Death identifying plaintiff's successor or represen tative. The Attorney General, or her designee, shall also, if practicable, also serve a copy of the Suggestion of Death on plaintiff's successor. The Clerk of the Court is directed to serve a copy of this order on Monica Anderson, Supervising Deputy Attorney General. As plaintiff is evidently deceased, the Clerk of the Court is directed not to serve a copy of this order upon him at the prison address, as the mail will simply be returned. (cc: Monica Anderson) (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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NICK TERRY,
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Plaintiff,
No. CIV S-10-1842 GGH P
vs.
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MATTHEW CATE, et al.,
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Defendants.
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ORDER
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Plaintiff was directed, by Order filed on October 14, 2011, to show cause why all
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defendants should not be dismissed pursuant to Fed. R. Civ. P. 4(m) or, in the alternative, for
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plaintiff’s failure to prosecute. Plaintiff, a state prisoner proceeding pro se, in an action pursuant
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to 42 U.S.C. § 1983, had paid his filing fee in full1 and had been directed to complete service of
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process of his second amended complaint within sixty days in accordance with Fed. R. Civ. P. 4,
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but there was no evidence that the defendants had subsequently been served.
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However, the show cause order was returned, indicating that plaintiff is deceased.
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At this time, although it is not clear that any defendant was served,2 the court will direct the state
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Plaintiff had been granted ample opportunity to file an in forma pauperis affidavit to
determine whether he could qualify for in forma pauperis status, but ultimately indicated that he
could not do so based on the amount of his financial resources, which left him responsible for
service of process. See, e.g., Order, filed on October 14, 2011, n. 1.
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Matthew Cate, Secretary of the California Department of Corrections and
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Attorney General’s Office to file a notice of suggestion of death pursuant to Fed. R. Civ. P.
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25(a)(1). The suggestion of death, in order to be valid and to invoke the ninety day limit for
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filing of a motion for substitution, should, if possible, identify the successor or representative
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who may be substituted for decedent. Smith v. Planas,, 151 F.R.D. 547 (S.D. N.Y. 1993).
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Accordingly, IT IS HEREBY ORDERED that:
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1. Within twenty-eight days of the date of this order, the state Attorney General,
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or a designee, shall, if known, file a Suggestion of Death identifying plaintiff’s successor or
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representative. The Attorney General, or her designee, shall also, if practicable, also serve a copy
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of the Suggestion of Death on plaintiff’s successor;
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2. The Clerk of the Court is directed to serve a copy of this order on Monica
Anderson, Supervising Deputy Attorney General; and
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3. As plaintiff is evidently deceased, the Clerk of the Court is directed not to serve
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14 DATED: November 3, 2011
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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GGH:009
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terr1842.ord
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Rehabilitation, is among the named defendants but he is an official capacity defendant only.
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