Givens v. Cal. Dep't of Corr. & Rehab.

Full title: FRANCOIS P. GIVENS, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND…

Court: United States District Court, Eastern District of California

Date published: Jul 26, 2022

2:19-cv-0017 JAM KJN P (E.D. Cal. Jul. 26, 2022)

Opinion

2:19-cv-0017 JAM KJN P

07-26-2022

FRANCOIS P. GIVENS, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

THE HONORABLE JOHN A. MENDEZ, SENIOR UNITED STATES DISTRICT JUDGE

ORDER

THE HONORABLE JOHN A. MENDEZ, SENIOR UNITED STATES DISTRICT JUDGE

Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On May 17, 2021, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Plaintiff filed objections to the findings and recommendations. Defendants Chapnick, Conklin DeHerrera (named as Conklin), and Palagummi filed a reply. (ECF No. 57.) Plaintiff filed an unauthorized sur-reply. (ECF No. 58.)

Plaintiff's objections that counsel for these remaining defendants intentionally and unreasonably failed to assist plaintiff in locating information about Newman's death, or assisting plaintiff in obtaining information concerning a potential successor in interest for the decedent Newman, are overruled. As argued by counsel for such defendants, counsel does not, and never has, represented decedent Newman, who died before this action was filed, and counsel is under no obligation to assist plaintiff in litigating his claims against decedent Newman. Because Newman died before plaintiff filed this action, Rule 25 does not apply.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed May 17, 2021, are adopted in full;

2. Plaintiff's motion to compel defendants to comply with Rule 25(a) of the Federal Rules of Civil Procedure (ECF No. 42) and motion to stay (ECF No. 43) are denied; and

3. Decedent Dr. Harry Newman is dismissed from this action with prejudice.