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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Richard LeGrand Gause,

Plaintiff,

v. 

Unknown Indy, et al.,

Defendants.

No. CV-15-02514-JJT-ESW

ORDER

On June 7, 2016, the Court ordered Plaintiff to show cause why Defendants East 

and Dentist Doe should not be dismissed without prejudice from this action for failure to 

serve pursuant to the Rule 4(m) of the Federal Rules of Civil Procedure and Rule 

16.2(b)(2)(B)(ii) of the Local Rules of Civil Procedure. Plaintiff filed his response to the 

Court’s order on June 8, 2016 (Doc. 29).

Plaintiff anticipates that he will obtain Defendant Dentist Doe’s identity upon 

review of Plaintiff’s medical records that Defendant Utterbeck’s counsel is providing. 

(Doc. 29 at 1). Plaintiff requests that the Court send him another service packet for 

Dentist Doe. The Court will grant Plaintiff’s request and will extend the time to serve 

Dentist Doe to August 10, 2016.

Plaintiff questions whether Defendant East is in fact deceased as the State has 

allegedly indicated to the United States Marshals Service (“USMS”). (Id. at 2). Plaintiff 

states that he intends to proceed with his claims against Defendant East even if Defendant 

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East is deceased. (Id.). Federal Rule of Civil Procedure 25(a)(1) provides that:

If a party dies and the claim is not extinguished, the court 

may order substitution of the proper party. A motion for 

substitution may be made by any party or by the decedent's 

successor or representative. If the motion is not made within 

90 days after service of a statement noting the death, the 

action by or against the decedent must be dismissed.

The ninety-day period does not commence until two steps are completed. “First, a party 

must formally suggest the death of the party upon the record. . . . Second, the suggesting 

party must serve other parties and nonparty successors or representatives of the deceased 

with a suggestion of death in the same manner as required for service of the motion to 

substitute . . . . ” Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (citations omitted). 

“A motion to substitute, together with a notice of hearing, must be served on the parties 

as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death 

must be served in the same manner.” Fed. R. Civ. P. 25(a)(3).

Plaintiff requests that the Court provide instructions on how to proceed as to 

Defendant East. The Court liberally construes pleadings filed by pro se prisoners and 

must give pro se prisoners fair notice of the requirements for responding to a motion for 

summary judgment. The Court, however, is “under no obligation to become an 

‘advocate’ for or to assist and guide the pro se layman through the trial thicket.” Bias v. 

Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007). 

The Court will order counsel for Defendants to jointly file under seal Defendant 

East’s last known address and shall provide the Court with any available information on 

whether Defendant East is deceased. 

CONCLUSION

Based on the foregoing,

IT IS ORDERED extending the time to serve Defendants Dentist Doe and East to 

August 10, 2016.

IT IS FURTHER ORDERED directing the Clerk of Court to mail Plaintiff a 

service packet for Defendant Dentist Doe. Upon receipt of the properly completed 

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service packet, the USMS shall effect service in accordance with the Court’s January 21, 

2016 Order (Doc. 9). 

IT IS FURTHER ORDERED that by June 17, 2016, counsel for Defendants 

shall jointly file under seal Defendant East’s last known address and shall provide the 

Court with any available information on whether Defendant East is deceased. 

Dated this 13th day of June, 2016. 

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