(PC)Irby v. Naranjo ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DEMETRIS IRBY, Case No. 2:21-cv-01039-KJM-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED 13 v. WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE 14 NARANJO, et al., 15 Defendants. 16 17 Plaintiff, a county inmate proceeding without counsel, commenced this civil rights action 18 under 42 U.S.C. § 1983. On December 3, 2021, I screened plaintiff’s complaint pursuant to 28 19 U.S.C. § 1915A. ECF No. 10. I notified plaintiff that he could proceed with his viable due 20 process claim against defendant Naranjo, but that his remaining claims were not cognizable. Id. 21 at 3-4. I therefore ordered plaintiff, within thirty days, either to file an amended complaint or 22 notify the court that he wishes to proceed only with his claim. To date, plaintiff has not complied 23 with that order.1 24 1 On December 27, 2021, the Solano County Sheriff’s Office filed a notice stating that the 25 “Plaintiff is confirmed deceased with our Coroner’s Office.” ECF No. 12. Although Federal Rule of Civil Procedure 25 permits a decedent’s successor or representative to file a motion for 26 substitution—which must be filed within ninety days of service of a statement noting the death— 27 adherence to Rule 25’s procedure is not feasible in this case. To trigger the ninety-day period for filing a motion for substitution, the suggestion of death must be served upon a non-party 28 successor or representative of the deceased party in accordance with Rule 4. Barlow v. Ground, 1 Accordingly, it is RECOMMENDED that this action be dismissed without prejudice for 2 | failure to prosecute. Fed. R. Civ. P. 41(b); E.D. Cal. Local Rule 110. 3 I submit these findings and recommendations to the district judge under 28 U.S.C. 4 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 5 | Eastern District of California. Within 14 days of the service of the findings and 6 || recommendations, any party may file written objections to the findings and recommendations 7 | with the court and serve a copy on all parties. That document should be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 9 | and recommendations under 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the 10 | specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 11 | 834, 839 (9th Cir. 2014). 12 3 IT IS SO ORDERED. 14 ( ! — Dated: _ January 25, 2022 Q_—— 15 JEREMY D. PETERSON 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 39 F.3d 231, 233 (9th Cir. 1994). The burden of serving successors or representatives is placed 26 | onthe “suggesting party.” Jd. at 233. Although the Solano County Sheriffs Office—the entity that provided notice of plaintiff's death—is named as a defendant in this case, it has not been 27 | served or formally appeared in this action. There are also no other parties who could effectuate service of a statement noting death. Consequently, I find that dismissal without prejudice for 28 | failure to prosecute is appropriate in this case.