(PC) Linder v. Pucelik ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DUANE LINDER, No. 2:18-CV-2281-DJC-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 JAMES S. PUCELIK, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. 19 On February 7, 2022, Mr. Snow, an inmate who had been assisting Plaintiff with 20 his case, filed a document providing notice that Plaintiff Linder died on January 28, 2022. See 21 ECF No. 65. On February 15, 2022, Defendants also filed a notice of Plaintiff’s death pursuant to 22 Federal Rule of Civil Procedure 25(a)(1). See ECF No. 67. Defendants were unable to locate 23 Plaintiff Linder’s next of kin but provided notice to the prison’s litigation coordinator. See id. 24 On August 8, 2022, following expiration of the 90-day period provided in Rule 25(a)(1) to file a 25 motion to substitute, and upon the lack of any such motion, Defendants filed a motion to dismiss. 26 See ECF No. 71. On August 16, 2022, the Court recommended that motion be granted. See ECF 27 No. 72. 28 / / / 1 Mr. Snow filed objections to the findings and recommendations on behalf of 2 deceased Plaintiff Linder on September 2, 2022. See ECF No. 64. In the objections, Mr. Snow 3 provided the name and address of Plaintiff Linder’s next of kin, his sister, Ms. Sanford. See id. 4 On September 20, 2022, Mr. Snow filed a request that the Clerk of the Court forward Plaintiff 5 Linder’s legal materials to Ms. Sanford. See ECF No. 76. The Court granted Mr. Snow’s 6 request. See ECF No. 77. Plaintiff Linder’s legal materials were received by the Clerk of the 7 Court on December 19, 2022, ECF No. 79, December 21, 2022, ECF No. 80, and December 23, 8 2022, ECF No. 81. Thereafter, the Court directed the Clerk of the Court to forward these 9 materials to Ms. Sanford. See ECF No. 84. The Court also vacated the August 16, 2022, findings 10 and recommendations pending receipt by Ms. Sanford of Plaintiff Linder’s legal materials and 11 filing of a motion to substitute. See id. Concurrently, the Court issued findings and 12 recommendations that Defendants’ August 8, 2022, motion to dismiss be denied without 13 prejudice to renewal should no motion to substitute be filed. See ECF No. 85. On September 6, 14 2023, the District Judge adopted the findings and recommendations in full and denied 15 Defendants’ motion to dismiss without prejudice. See ECF No. 86. 16 Under Rule 25(a)(1), the Court must dismiss an action where the plaintiff is 17 deceased and no motion for substitution has been filed within 90 days of the notice of suggestion 18 of the plaintiff’s death. See Fed. R. Civ. P. 25(a)(1). In this case, the record reflects that Ms. 19 Sanford, as Plaintiff Linder’s next of kin, was provided with Mr. Linder’s legal materials. More 20 than 90 days have passed since Mr. Linder’s legal materials were forward to Ms. Sanford by the 21 Clerk of the Court and since the District Judge denied Defendants’ motion to dismiss without 22 prejudice. To date, no motion for substitution has been filed. Therefore, the Court will 23 recommend dismissal of this action pursuant to Rule 25(a)(1). 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / ] Based on the foregoing, the undersigned recommends that this action be dismissed 2 || pursuant to Federal Rule of Civil Procedure 25(a)(1). 3 These findings and recommendations are submitted to the United States District 4 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 5 || after being served with these findings and recommendations, any party may file written objections 6 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 7 || Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 8 | Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 | Dated: December 18, 2023 Ss..c0_, DENNIS M. COTA 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28