Opinion
No. 2:16-cv-1671-EFB P
08-11-2016
MICHAEL C. WANLESS, Plaintiff, v. MICHELE DITOMAS, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
This action was opened on June 21, 2016, in the United States District Court for the Northern District of California, when plaintiff's mother mailed to the court her son's prisoner civil rights complaint, dated June 7, 2016. ECF No. 1. Plaintiff's mother subsequently filed a letter informing the court that her son had died on June 13, 2016, and that prior to his death, he had asked her to file the complaint on his behalf. ECF No. 3. Because plaintiff died prior to commencing this action, it was "void at its inception" and must be dismissed. Banakus v. United Aircraft Corp., 290 F. Supp. 259 (S.D.N.Y. 1968). See also Adelsberger v. United States, 58 Fed. Cl. 616, 618 (Fed. Cl. 2003) (where a plaintiff dies prior to filing suit, there is no proper plaintiff and the action before the court is a nullity); Destacio v. A-C Prods. Liab. Trust (In re Asbestos Prods. Liab. Litig.), 311 F.R.D. 152, 156 (E.D. Pa. 2015) (citing cases for the same proposition). ///// /////
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to serve a copy of this order on plaintiff's mother, Barbara Wanless, 7118 The Terrace, Anderson, California, 96007.
2. The Clerk of the Court shall randomly assign a United States District Judge to this action.
Further, IT IS HEREBY RECOMMENDED that this case be closed.
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)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: August 11, 2016.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE