(PC) Pelleriti v. Avila

• Court: District Court, E.D. California
• Decided: January 25, 2024
• Docket: 2:19-cv-01853
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE JAMES PELLERITI, No. 2:19-cv-01853-DAD-AC (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 DANA DAVILA, et al., DEFENDANT E. LONGORIA 15 Defendants. (Doc. No. 65) 16 17 Plaintiff Jesse James Pelleriti is a former state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On January 21, 2022, counsel 19 for defendants notified the court that defendant E. Longoria had died on August 17, 2021. (Doc. 20 No. 52.) On September 2, 2022, at the court’s direction (Doc. No. 59), defendants filed a new 21 suggestion of death, which stated that defendant’s counsel had been unable to identify any 22 successor in interest or personal representative of E. Longoria’s estate, detailed the attempts 23 undertaken to do so, and reported that CDCR had Armando Longoria listed as E. Longoria’s 24 emergency contact and spouse, but that counsel had been unable to confirm that Mr. Longoria 25 was still E. Longoria’s spouse at the time of her death.. (Doc. No. 61.) That suggestion of death 26 was served in accordance with Federal Rules of Civil Procedure 4 and 25 on September 4, 2022. 27 (Doc. No. 62.)

28 ///// 1 On October 10, 2023, the assigned magistrate judge issued findings and recommendations 2 noting that more than ninety days had passed since the new suggestion of death had been filed 3 and served, plaintiff had not moved to substitute Armando Longoria or any other individual as 4 defendant E. Longoria’s successor or representative in this action within the required time, and 5 recommending that defendant E. Longoria therefore be dismissed from this action pursuant to 6 Federal Rule of Civil Procedure 25(a)(1). (Doc. No. 65.) 7 Those findings and recommendations were served on the parties and contained notice that 8 any objections thereto were to be filed within twenty–one (21) days of service. (Id. at 2.) On 9 October 30, 2023, plaintiff filed timely objections to the pending findings and recommendations. 10 (Doc. No. 66.) On November 3, 2023, plaintiff filed nearly identical objections. (Doc. No. 67.) 11 In his objections, plaintiff indicates his desire to continue to pursue his claims brought against 12 defendant Longoria (whom he mistakenly refers to as Armando Longoria throughout his 13 objections) and suggests that defendants stipulate to facts alleged in his complaint as to defendant 14 Longoria. (Doc. Nos. 66, 67.) Plaintiff’s objections provide no basis upon which to question the 15 analysis set forth in the pending findings and recommendations. 16 In accordance with 28 U.S.C. § 636(b)(1)(C), the court has conducted a de novo review of 17 this case. Having carefully reviewed the entire file, the court finds the findings and 18 recommendations to be supported by the record and by proper analysis. See Zanowick v. Baxter 19 Healthcare Corp., 850 F.3d 1090, 1094 (9th Cir. 2017) (Rule 25(a)(1) requires dismissal of the 20 action against the decedent if a motion for substitution is not made by any party within 90 days 21 after service of the notice, with that deadline being subject to extension under Rule 6(b), 22 including after its expiration, if the party fails to act due to excusable neglect).1 23 Accordingly, 24 1. The findings and recommendations issued on October 10, 2023 (Doc. No. 65) are 25 adopted in full; 26 ///// 27 1 Plaintiff has made no suggestion that the second statement of death was not served in the 28 manner required. See Gilmore v. Lockard, 936 F.3d 857, 865 (9th Cir. 2019). 1 2. Defendant E. Longoria is dismissed from this action, and the Clerk of the Court is 2 directed to so reflect on the docket; and 3 3. This action is referred back to the assigned magistrate judge for further 4 proceedings. 5 IT IS SO ORDERED. ° | Dated: _ January 24, 2024 Dab A. 2, sxe 7 DALE A. DROZD 3 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28