Opinion
No. 1:13-cv-00231 DAD DLB PC
08-17-2016
LUIS RODRIGUEZ, Plaintiff, v. HEFFLEFINGER, et al., Defendants.
FINDINGS AND RECOMMENDATIONS DISMISSING ACTION PURSUANT TO RULE 25(A)(1) THIRTY-DAY OBJECTION DEADLINE ORDER DIRECTING CLERK OF COURT TO SERVE C. GRENOT WITH THESE FINDINGS AND RECOMMENDATIONS
Plaintiff Luis Rodriguez ("Plaintiff"), a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on February 14, 2013.
Defendants filed a statement of Plaintiff's death on May 4, 2016, and represented in the notice that they served members of Plaintiff's family in compliance with Federal Rules of Civil Procedure 4 and 25(a)(1). However, Defendants' notice was not accompanied by any supporting evidence. Therefore, on August 11, 2016, the Court ordered Defendants to supplement the notice with evidence of proper service. Defendants complied with the order on August 16, 2016.
Plaintiff's wife, Caroline Grenot, informed the Court of Plaintiff's passing in a letter dated April 21, 2016.
Defendants' proofs of service, which they inadvertently failed to file with the Court earlier, indicate that Defendants personally served Plaintiff's successor or representative, A. Garcia, on May 7, 2016. Walker Decl. ¶¶ 3, 6. Defendants also attempted service on Plaintiff's successors or representatives C. Grenot and D. Rodriguez numerous times, but were not successful. Walker Decl. ¶¶ 4-5.
Plaintiff death was suggested upon the record more than ninety days ago, with proper service, and no motion for substitution has been made. Fed. R. Civ. P. 25(a)(1).
The Court issued Findings and Recommendations on March 7, 2016, recommending that Defendants' motion for summary judgment based on exhaustion be granted in part. Given the notice of Plaintiff's death, the Findings and Recommendations have not been adopted.
Accordingly, the Court RECOMMENDS that this action be DISMISSED pursuant to Federal Rule of Civil Procedure 25(a)(1). These Findings and Recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991).
The Clerk of Court is ORDERED to serve these Findings and Recommendations on C. Grenot, at the address specific in Document 67. IT IS SO ORDERED.
Dated: August 17 , 2016
/s/ Dennis L . Beck
UNITED STATES MAGISTRATE JUDGE