Opinion
No. 2:05-cv-2134-MCE-CMK-P
08-27-2018
ANTHONY E. MACK, Plaintiff, v. MARSHA ONA, et al., Defendants.
FINDINGS AND RECOMMENDATION
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. In light of the suggestion on the record of the death of defendant Latteri on May 13, 2009, the court directed plaintiff to seek substitution pursuant to Federal Rule of Civil Procedure 25(a)(1) within 90 days of the date of the order. Plaintiff was cautioned that failure to seek substitution would result in dismissal of the action as against the deceased defendant. More than 90 days have expired and plaintiff has not sought substitution.
Federal Rule of Civil Procedure 25(a)(1) provides, in pertinent part: "If the motion [for substitution] is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed." This language is mandatory in that dismissal is required where no timely motion for substitution is made. Because plaintiff has not sought substitution of within the 90-day period, dismissal of the action as against the deceased is required by the rules.
Based on the foregoing, the undersigned recommends that this action be dismissed as against defendant SALVATORE A. LATTERI only and that the Clerk of the Court be directed to terminate this individual as a defendant to this action.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: August 27, 2018
/s/_________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE