Opinion
No. CV-18-00674-PHX-JAT (ESW)
08-20-2019
Paul Allen Sorensen, Plaintiff, v. Karen Barcklay, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
On March 26, 2018, Plaintiff Paul A. Sorensen, who was confined in the Arizona State Prison Complex-Yuma in San Luis, Arizona, filed a pro se civil rights First Amended Complaint (Doc. 6). The Court screened Plaintiff's First Amended Complaint pursuant to 28 U.S.C.§ 1915(a) and required Defendants Corizon, Barcklay, Smalley, Brisbois and Meza to answer (Doc. 9 at 9). Defendants Corizon Health, Inc, Meza, Smalley and Barcklay filed Answers (Docs. 16, 22). Service as to Defendant Brisbois was returned unexecuted (Doc. 20).
On November 20, 2018, Defendants Corizon Health, Inc., Smalley, Barcklay, and Meza filed a "Notice to Court Regarding Plaintiffs Death." (Doc. 24). That Plaintiff Paul Allen Sorensen died October 8, 2018 is undisputed. The Court ordered Defendants to provide the Court with the name and address of Plaintiff's potential nonparty successors or representatives and proof of service thereon by December 28, 2018, pursuant to Fed. R. Civ. P. 25(a). (Doc. 29).
A Motion to Substitute (Doc. 25) was timely filed by Dorothy McKaney. Mrs. McKaney was listed by the Plaintiff at the Department of Corrections as the individual to contact in the event of his death. (Doc. 34). However, Mrs. McKaney provided the Court with no supporting documentation that she had been appointed by the Court as Plaintiff's executor or administrator. Nor did she provide supporting documentation that she is a named beneficiary under his will or heir by intestate succession. In fact, Plaintiff referenced his son in a letter to Mrs. McKaney (Doc. 25 at 7), and Mrs. McKaney identified Leeland Sorensen as Plaintiff's successor (Doc. 27).
The Court denied Mrs. McKaney's Motion to Substitute (Doc. 38 at 3). The Court ordered Defendants to serve Plaintiff's son (Doc. 25 at 7) with the Notice to Court Regarding Plaintiff's Death (Doc. 24), Statement Noting Death (Doc. 27) and a copy of the Court's Order (Doc. 38). The Court noted that Mrs. McKaney may not represent a successor without legal authority to do so. See A.R.S. § 14-1201; In re Baycol Products Litigation, 616 F. 3d 778, 785 (8th Cir. 2010) (acknowledging that state law governs who may be a successor).
On April 24, 2019, Leeland Sorensen was served with a copy of the Court's Order (Doc. 38) and Notice to the Court Regarding Plaintiff's Death (Doc. 24). (Doc. 53 at 4). Because the identity of the filing party was in dispute, the Motion to Substitute (Doc. 54) purportedly filed by Plaintiff's son Leeland Sorensen was denied without prejudice, to allow the refiling of a renewed Motion that is notarized to verify the identity of the individual signing the Motion (Doc. 60).
The time for filing a notarized Motion to Substitute has passed and no renewed Motion has been filed.
Because no timely Motion to Substitute pursuant to Fed. R. Civ. P. 25(a)(1) has been filed, the Magistrate Judge will recommend that Plaintiff's First Amended Complaint (Doc. 6) be dismissed and the action terminated.
For the reasons set forth herein,
IT IS RECOMMENDED that Plaintiff's First Amended Complaint (Doc. 6) be dismissed and the action terminated.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
Dated this 20th day of August, 2019.
/s/_________
Eileen S. Willett
United States Magistrate Judge