(PC) Billie v. Gipson ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ROBERT LEE BILLIE, No. 1:23-cv-00985-NODJ-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS 12 TO DISMISS THIS ACTION WITHOUT v. PREJUDICE FOR FAILURE TO 13 PROSECUTE CONNIE GIPSON, et al., 14 OBJECTIONS, IF ANY, DUE Defendants. WITHIN 30 DAYS 15 16 Plaintiff Robert Lee Billie is a state prisoner proceeding pro se and in forma pauperis in 17 this civil rights action filed pursuant to 42 U.S.C. § 1983. For reasons stated below, the Court 18 recommends that this case be dismissed without prejudice for failure to prosecute. 19 Plaintiff filed his initial complaint on June 23, 2023. (ECF No. 1). After the Court issued a 20 screening order finding no cognizable claims (ECF No. 11), Plaintiff filed Second Amended 21 Complaint on October 16, 2023 (ECF No. 14). While waiting for the Court to screen the second 22 amended complaint, Court order reassigning the case (ECF No. 15), which was served on 23 Plaintiff via mail, was returned to Court on December 18, 2023 marked as “undeliverable, RTS, 24 Decease, Unable to Forward.” Consistent with Local Rule 183(b) and this Court’s Informational 25 Order (ECF No. 6 at 5), both of which warned the Plaintiff that his case will be dismissed for 26 failure to prosecute if he failed to comply, the Clerk of Court noted on the docket that the 27 deadline for Plaintiff to update his address with the Court was February 26, 2024. That deadline 28 has now passed and Plaintiff (or Plaintiff’s representative) has not responded. 1 Although Federal Rule of Civil Procedure 25 permits a decedent’s successor or 2 representative to file a motion for substitution—which must be filed within ninety days of service 3 of a statement noting the death—adherence to the Rule 25 procedure is not feasible in this case. 4 To trigger the ninety-day period for filing a motion for substitution, the suggestion of death must be served upon a non-party successor or representative of the deceased party in accordance with 5 Rule 4. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). The burden of serving successors or 6 representatives is placed on the “suggesting party.” Id. at 233. There is no “suggesting party” in 7 this case; Plaintiff’s death has come to the Court’s attention through a notice on the returned 8 envelope. No defendants have been served or formally appeared in this action. There are also no 9 other parties who could identify successors or representatives of the deceased party and effectuate 10 service of a statement noting death. 11 In the past, in similar circumstances, this Court has dismissed the case for failure to 12 prosecute. In Irby, the Court was notified of Plaintiff’s death by a party who was named as a 13 defendant but has not yet been served or formally appeared in the case, and there were no other 14 parties who could effectuate service of a statement noting death. See Irby v. Naranjo, No. 2:21- 15 cv-01039-KJM-JDP (PC), 2022 WL 224257, at *1 n.1 (E.D. Cal. Jan. 25, 2022), report and 16 recommendation adopted, No. 2:21-cv-01039-KJM-JDP (PC), 2022 WL 584213 (E.D. Cal. Feb. 17 25, 2022). Under these circumstances, the Court found that adherence to Rule 25’s procedure was 18 not feasible and held that dismissal without prejudice for failure to prosecute was appropriate. Id. 19 The same action—dismissal for failure to prosecute—is appropriate here. 20 Accordingly, the Court RECOMMENDS that: 21 1. This action be dismissed without prejudice under Federal Rule of Civil Procedure 22 41(b) for failure to prosecute and failure to follow Court’s orders; 23 2. The Clerk of Court be directed to close this case. These findings and recommendations will be submitted to the United States district judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days 25 after being served with these findings and recommendations, Plaintiff may file written objections 26 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 27 and Recommendations.” 28 1 Plaintiff is advised that failure to file objections within the specified time may result in the 2 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 3 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 ; IT IS SO ORDERED. Dated: _ February 27, 2024 [spe ey 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28