(PC) Hendon v. Baroya et al, No. 1:2005cv01247 - Document 142 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Defendant Griffin be DISMISSED from this action under Rule 25; Defendant Griffin is deceased, and Plaintiff has not filed a Motion for Substitution; re 18 Amended Complaint filed by Carlos Hendon ; referred to Judge Ishii, signed by Magistrate Judge Gary S. Austin on 11/21/14. (20-Day Deadline)(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS HENDON, 12 Plaintiff, 13 14 vs. BAROYA, et al., 15 Defendants. 16 17 I. 1:05-cv-01247-AWI-GSA-PC FINDINGS AND RECOMMENDATION, RECOMMENDING THAT DEFENDANT GRIFFIN BE DISMISSED FROM THIS ACTION UNDER RULE 25 PURSUANT TO NOTICE OF DEATH OBJECTIONS, IF ANY, DUE WITHIN TWENTY (20) DAYS BACKGROUND 18 Carlos Hendon ("Plaintiff") is a state prisoner proceeding pro se with this civil rights 19 action under 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on 20 September 30, 2005. (Doc. 1.) This action now proceeds on Plaintiff's Second Amended 21 Complaint filed on June 26, 2008, against defendants Baroya, Pham, Nguyet, Hoppe, Griffin 22 and Reidman (“Defendants”) for subjecting him to cruel and unusual punishment in violation 23 of the Eighth Amendment. (Doc. 18.) 24 On August 14, 2014, Defendants filed a notice of the death of defendant Griffin. (Doc. 25 133.) 26 II. FEDERAL RULE OF CIVIL PROCEDURE 25 27 Pursuant to Rule 25 of the Federal Rules of Civil Procedure, “[i]f a party dies and the 28 claim is not thereby extinguished, the court may order substitution of the proper parties. Fed. 1 1 R. Civ. P. 25(a)(1). The motion for substitution may be made by any party or by the successors 2 or representatives of the deceased party and, together with the notice of hearing, shall be served 3 on the parties as provided in Rule 5 and upon persons not parties in the manner provided in 4 Rule 4 for the service of a summons, and may be served in any judicial district. Id. Unless the 5 motion for substitution is made not later than 90 days after the death is suggested upon the 6 record by service of statement of the fact of the death as provided for herein for the service of 7 the motion, the action shall be dismissed as to the deceased party.” Id. 8 III. 9 10 11 12 CONCLUSION AND RECOMMENDATION Plaintiff was informed more than 90 days ago by Defendants that defendant Griffin is deceased, and Plaintiff has not filed a motion for substitution. Accordingly, IT IS HEREBY RECOMMENDED THAT defendant Griffin be dismissed from this action under Rule 25. 13 These findings and recommendation are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty 15 (20) days after being served with these findings and recommendations, any party may file 16 written objections with the court. 17 Magistrate Judge's Findings and Recommendation." Any reply to the objections shall be 18 served and filed within ten days after service of the objections. The parties are advised that 19 failure to file objections within the specified time may waive the right to appeal the District 20 Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Such a document should be captioned "Objections to 21 22 23 24 IT IS SO ORDERED. Dated: November 21, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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