(PC) Davis v. Veal, et al, No. 2:2007cv01472 - Document 28 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 2/6/2009 RECOMMENDING that this action be dismissed; objections due 20 days after being served with these F & R's; Referred to Judge Frank C. Damrell, Jr. ORDERING that the Clerk of the Court serve a copy of these F & R's by mail upon Marita Tetter, Kankakee, IL; and the Clerk is further ORDERED not to serve a copy of this document upon plaintiff's address of record as he is deceased. (Reader, L)
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(PC) Davis v. Veal, et al Doc. 28 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MAURICE DAVIS, Jr., 11 Plaintiff, 12 13 14 15 16 No. CIV S-07-1472 FCD GGH P vs. CDCR, et al., FINDINGS AND RECOMMENDATIONS Defendants. & ORDER / Plaintiff, a state prisoner proceeding pro se, died in custody during the pendency 17 of this action, on 3/28/08. See docket # 18. By Order, filed on 1/16/09, this court directed 18 defendants’ counsel to inform the court within fifteen days whether or not personal service of the 19 suggestion of death had been effected upon the representative of plaintiff’s estate, pursuant to 20 Fed. R. Civ. P. 4 and 25. Counsel for defendants, on 1/29/09, filed a declaration regarding proof 21 of service of statement noting plaintiff’s death upon plaintiff’s successor or representative, 22 indicating a previous declaration to that effect had been filed on 7/29/08, in response to the court 23 prior orders. Proof of service upon plaintiff’s designated representative, his sister, Marita Tetter, 24 is signed by the process server and dated 7/15/08, and indicates personal service upon her was 25 effected on 7/12/08. See Ex. A in docket # 23 and # 27. Dockets.Justia.com 1 Pursuant to Fed. R. Civ. P. 25(a)(1), a motion for substitution of a proper party must be made no later than ninety days after the death is suggested upon the record. Counsel for 2 defendants has submitted proof of service as of 7/12/08 upon plaintiff’s representative of a 3 statement noting plaintiff’s death; however, there has been no motion for substitution of a proper 4 party filed, and the period of time for doing so has long expired. 5 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 8 days after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 11 shall be served and filed within ten days after service of the objections. The parties are advised 12 that failure to file objections within the specified time may waive the right to appeal the District 13 Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 In addition, IT IS ORDERED that the Clerk of the Court serve a copy of these 15 findings and recommendations by mail upon Marita Tetter / 266 N. Evergreen / Kankakee, IL 16 60901. The Clerk is further ordered not to serve a copy of this document upon plaintiff’s address 17 of record as he is deceased. 18 DATED: February 6, 2009 19 /s/ Gregory G. Hollows 20 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 21 GGH:009 22 23 24 25 davi1472.fr
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