Opinion
1:19-cv-00901-JLT-CDB (PC)
05-08-2023
RICHARD SCOTT KINDRED, Plaintiff, v. WUILMER CABRERA, et al., Defendants.
SECOND ORDER AFTER SUGGESTION OF DEATH (Docs. 45, 46) FOURTEEN (14) DAY DEADLINE
Plaintiff Richard Scott Kindred, a former state prisoner acting pro se, filed this civil rights action under 42 U.S.C. § 1983, in which he asserts claims for excessive force and failure to protect against Defendants. (Doc. 1.) On October 31, 2022, Defendants filed a notice representing that Plaintiff died on October 19, 2022. (Doc. 42.) The Deputy Attorney General representing Defendants complied with the requirements of Rule 25 of the Federal Rules of Civil Procedure and personally served Plaintiff's only surviving next of kin, his brother, Bryen Kindred, and his sister, Carol Ann Dietz. (Doc. 44.)
On March 9, 2023, the Court entered an Order After Suggestion of Death requiring any motion to substitute a party as the plaintiff to be filed no later than April 17, 2023. (Doc. 45.) After no one filed a motion for substitution by the deadline as required by the Court, on April 21, 2023, the assigned magistrate judge issued Findings and Recommendations (“F&R”) to dismiss the action because Plaintiff's next of kin did not file a timely motion to substitute after personal service as ordered by the Court. (Doc. 46.) The F&R erroneously advised that Plaintiff could file objections within fourteen days after service, and only Plaintiff was served. (Id. at 2-3; docket.) On May 1, 2023, the mail was returned as “Undeliverable, No Mail Receptacle.”
In the F&R, the Court should have advised Bryen Kindred and Carol Ann Dietz that they could file objections within fourteen days after service, and they should have been served with the F&R. Therefore, the advisement at the end of the F&R (Doc. 46) is amended by interlineation as follows:
These Findings and Recommendations will be submitted to the United States District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these Findings and Recommendations, Defendants or Plaintiff's next of kin may file written objections with the Court. The document should be titled, “Objections to Magistrate Judge's Findings and Recommendations.” These parties and nonparties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
Accordingly, the Court directs the Clerk of Court to serve this Order and the Findings and Recommendations filed April 21, 2023, (Doc. 46) on Bryen Kindred, The Salvation Army, 631 Dickerson Pike, Nashville, TN 37207; Carol Ann Dietz, 7 Brooksies Pond Cove, Jackson, CA 38305; and the Deputy Attorney General Ashley N. Reyes. The Clerk shall not send these documents to the last known address of the deceased Plaintiff.
The Defendants and Plaintiff's next of kin are granted an additional fourteen (14) days, from the date of service of this Order, to file objections to the Findings and Recommendations of April 21, 2023. (Doc. 46.)
IT IS SO ORDERED.