(PC) Pelleriti v. Avila ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE JAMES PELLERITI, No. 2:19-cv-1853 DAD AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 DANA AVILA, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding pro se with a civil rights action pursuant to 18 42 U.S.C. § 1983. 19 On January 21, 2022, counsel for defendants notified the court that defendant Longoria 20 had died. ECF No. 52. The court initially ordered plaintiff to identify Longoria’s successor in 21 interest and file a motion for substitution of a proper party within ninety days or it would be 22 recommended that Longoria be dismissed. ECF No. 54. Plaintiff then sought to substitute the 23 California Department of Corrections and Rehabilitation (CDCR) for Longoria (ECF No. 55) and 24 that request was stricken because the CDCR is not a proper party (ECF No. 59). By that same 25 order, the court noted that it had erred in placing the burden of identifying Longoria’s successor 26 on plaintiff and ordered defendants to file a new suggestion of death that identified Longoria’s 27 successor in interest or the personal representative of her estate. ECF No. 59 at 2. 28 //// 1 On September 2, 2022, defendants filed a new suggestion of death that stated counsel had 2 || been unable to definitely identify any successor in interest or personal representative of 3 || Longoria’s estate and detailed her attempts to locate Longoria’s successor or representative. ECF 4 | No. 61. Counsel was able to determine that the CDCR had Armando Longoria listed as 5 || Longoria’s emergency contact and spouse, though she was unable to successfully contact Mr. 6 || Longoria to confirm that he was still Longoria’s spouse at the time of her death. Id. at 2. Counsel 7 || then provided Mr. Longoria’s business address and stated that she would file the residential 8 | address she had located with the court under seal if so directed. Id. The suggestion of death was 9 || served on Mr. Longoria in accordance with Federal Rules of Civil Procedure 4 and 25 on 10 || September 4, 2022. ECF No. 62. More than ninety days have passed since the suggestion of 11 | death was filed and plaintiff has not moved to substitute Mr. Longoria or any other individual as 12 || defendant Longoria’s successor or representative. The court further notes that plaintiffs most 13 || recent notice of change of address reflects that he has been released from prison and therefore no 14 | longer faces the same obstacles in identifying Longoria’s representative as he did while 15 || incarcerated. 16 Accordingly, IT IS HEREBY RECOMMENDED that defendant Longoria be dismissed 17 || from this action. See Fed. R. Civ. P. 25(a)(1). 18 These findings and recommendations are submitted to the United States District Judge 19 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within twenty-one days 20 || after service of these findings and recommendations, any written objections may be filed with the 21 || court. The document should be captioned “Objections to Magistrate Judge’s Findings and 22 || Recommendations.” Any response to the objections shall be filed and served within fourteen 23 || days after service of the objections. Failure to file objections within the specified time may waive 24 | the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 || DATED: October 10, 2023 ~ 26 Chtten— Lhane ALLISON CLAIRE 27 UNITED STATES MAGISTRATE JUDGE 28