Wesley Stewart v. Perry M. Johnson, Charles Anderson, John R. Voight, Dean H. Mills , 840 F.2d 18 ( 1988 )

840 F.2d 18

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Wesley STEWART, Plaintiff-Appellant,
v.
Perry M. JOHNSON, Charles Anderson, John R. Voight, Dean H.
Mills, Defendants-Appellees.

No. 87-1540.

United States Court of Appeals, Sixth Circuit.

Feb. 18, 1988.

1

Before DAVID A. NELSON and ALAN E. NORRIS, Circuit Judges, and SPIEGEL, District Judge.*

ORDER

2

This is an appeal from the district court's grant of summary judgment to the defendants in this prisoner civil rights action. Counsel appointed to represent the plaintiff in this action now moves for permission to withdraw from such representation and has filed a brief in support thereof in compliance with Anders v. California, 386 U.S. 738 (1967). Upon review of the case, we conclude the action must be dismissed for want of prosecution.

3

This appeal was docketed in this Court on June 15, 1987. On September 10, 1987, appointed counsel filed a suggestion of death, stating the plaintiff died on August 27, 1987. Counsel also filed a motion for stay of appellate proceedings in order to permit her time to identify any next of kin or to determine the opening of an estate. The Clerk granted a 90-day stay on September 18, 1987.

4

In subsequent reports to the Court, counsel stated she contacted the plaintiff's adult daughter and a brother with instructions they inform her if they or an estate intended to substitute a named plaintiff. In her present motion to withdraw, counsel states she had "received no indication that an Estate has been opened on behalf of [the plaintiff] or that the Estate, if opened, intends to substitute in as party."

5

Based upon counsel's representations, we conclude the present appeal has been rendered moot by the fact of the plaintiff's death and the absense of any heir or estate representative to prosecute the appeal.

6

It therefore is ORDERED that the motion to withdraw as counsel is granted. It is ORDERED further that this appeal is dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.

*

The Honorable S. Arthur Spiegel, U.S. District Judge for the Southern District of Ohio, sitting by designation