Opinion
2:18-CV-2281-DJC-DMC-P
08-03-2023
DUANE LINDER, Plaintiff, v. JAMES S. PUCELIK, et al., Defendants.
ORDER
DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On February 7, 2022, a notice of Plaintiff's death was entered on the docket. See ECF No. 65. This document was filed by Stephen F. Snow, who states he is an inmate who had been assisting Plaintiff with his legal paperwork. See id. According to Mr. Snow, Plaintiff died on January 28, 2022. See id. On February 15, 2022, Defendants filed a formal notice of Plaintiff's death pursuant to Federal Rule of Civil Procedure 25. See ECF No. 67. As of the date of this filing, Defendants were unaware of any next of kin for Plaintiff and did not serve any such individuals with the notice. See id. Defendants did, however, serve the Litigation Coordinator at Mule Creek State Prison, where Plaintiff had been housed at the time of his death. See id.
After no motion for substitution had been filed as of August 16, 2022, the Court issued findings and recommendations that Defendants' motion to dismiss be granted pursuant to Rule 25(a)(1). See ECF No. 72. On August 25, 2022, this matter was reassigned to District Judge Dale A. Drozd. See ECF No. 73. The matter was reassigned again to District Judge Daniel J. Calbretta on April 6, 2023. See ECF No. 83. The August 16, 2022, findings and recommendations have not yet been submitted to the currently assigned District Judge.
On September 2, 2022, Mr. Snow filed a request for permission to forward Plaintiff's legal materials to Plaintiff's sister, Terri Sanford, whose address is known to Mr. Snow. See ECF No. 76. That request was granted on November 22, 2022. See ECF No. 77. On December 16, 2022, Mr. Snow renewed his request, this time asking that the Clerk of the Court forward Plaintiff's legal materials. See ECF No. 78. Mr. Snow provided Ms. Sanford's address. See id. On December 19, 2022, the Clerk of the Court received three envelopes of materials from Mr. Snow. See ECF No. 79. On December 21, 2022, the Clerk of the Court received three additional envelopes of materials. See ECF No. 80. On December 23, 2022, the Clerk of the Court received two more envelopes of Plaintiff's legal materials. See ECF No. 81. The Clerk of the Court will by this order be authorized and directed to forward these materials to Ms. Sanford.
Pending a motion for substitution filed by next of kin within 90 days of the date of this order, the Court will vacate the November 22, 2022, findings and recommendations and deny Defendants' request that the findings and recommendations be submitted to the assigned District Judge. By separate findings and recommendations issued herewith, the Court will recommend that Defendants' motion to dismiss be denied without prejudice to being renewed if no motion for substitution is timely filed.
Accordingly, IT IS HEREBY ORDERED as follows:
1. Mr. Snow's request, ECF No. 78, that the Clerk of the Court be authorized and directed to forward Plaintiff's legal materials to next of kin Ms. Sanford is GRANTED.
2. The Clerk of the Court is directed to forward materials received on December 19, 2023, December 21, 2023, and December 23, 2023, ECF Nos. 79, 80, and 81, to Plaintiff's sister at the following address:
Terri Sanford 2841 Montgomery Street Oroville, CA 95966 3. The findings and recommendations issued on August 16, 2022, are VACATED.
4. Defendants' request, ECF No. 82, that the August 16, 2022, findings and recommendations be submitted to the assigned District Judge is DENIED as moot.