-EFB (PC) Oliver v. Carey et al, No. 2:2006cv00390 - Document 109 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/29/11 recommending that plaintiff's claims against defendant Thor be dismissed without prejudice. The clerk be directed to close the case. Referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
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-EFB (PC) Oliver v. Carey et al Doc. 109 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JAMES OLIVER, Plaintiff, 11 12 13 14 15 16 No. CIV S-06-00390 MCE EFB P vs. CAREY, et al., Defendants. FINDINGS AND RECOMMENDATIONS / Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. Following the court’s order of September 30, 2011, the sole remaining defendant 18 in this action is defendant Thor. For the reasons that follow, the undersigned recommends that 19 plaintiff’s claims against defendant Thor be dismissed and that the case be closed. 20 On April 28, 2010, counsel for defendants filed a suggestion of death under Federal Rule 21 of Civil Procedure 25(a), informing the court that defendant Thor had died. Dckt. No. 68. 22 Despite several attempts, plaintiff has failed to substitute a proper party for defendant Thor. The 23 court granted plaintiff extended discovery until March 24, 2011 to ascertain the identity of a 24 proper party to be substituted for defendant Thor. Dckt. No. 92. Despite the passage of 96 days 25 since the expiration of that discovery period, plaintiff has not filed a proper motion for 26 substitution. Plaintiff’s opposition to defendants’ motion for summary judgment makes no 1 Dockets.Justia.com 1 mention of defendant Thor. Accordingly, the court ordered plaintiff to show cause why his 2 claims against defendant Thor should not be dismissed. See Fed. R. Civ. P. 25(a)(1) (“If the 3 motion [for substitution of a deceased party] is not made within 90 days after service of a 4 statement noting the death, the action by or against the decedent must be dismissed.”). 5 In response, plaintiff argues that, because he is in prison, he is unable to discover the 6 identity of the proper substitute party for defendant Thor. Dckt. No. 107. Plaintiff implies that 7 he has sought the information solely from defense counsel and that defense counsel has refused 8 to provide an answer. Id. at 2 (“Plaintiff’s incarcerated status does not lend to investigation and 9 discovery of such information without assistance of some outside force or entity and therefore 10 must rely on good faith responses from counsel representing defendants’ interests for furtherance 11 of this cause. Plaintiff has not received this good faith effort[.]”). However, plaintiff has 12 provided no copies of correspondence between himself and defense counsel showing that, since 13 the court’s January 25, 2011 order granting him extended discovery on the substitution issue, he 14 requested the information and was refused. Nor did plaintiff file a motion to compel or seek 15 other relief from the court in order to ascertain the identity of defendant Thor’s substitute within 16 the extended discovery period provided by the court or after. 17 Because plaintiff has failed to diligently pursue substitution of a proper party for 18 deceased defendant Thor since the court’s January 25, 2011 order, it is hereby recommended 19 that: 20 1. Plaintiff’s claims against defendant Thor be dismissed without prejudice; and 21 2. The Clerk be directed to close the case. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 2 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: November 29, 2011. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3