
    Clarence O. SMITH, Deceased, Plaintiff-Appellee, v. M.R. MALDONADO; et al., Defendants-Appellants.
    No. 06-16998.
    United States Court of Appeals, Ninth Circuit.
    Submitted March 18, 2009.
    
    Filed April 3, 2009.
    
      Clarence O. Smith, lone, CA, pro se.
    James E. Flynn, Esq., Office of the California Attorney General, Sacramento, CA, for Defendants-Appellants.
    Before: LEAVY, HAWKINS, and TASHIMA, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Correctional Officers M.R. Maldonado and M.B. Scharosch appeal from the district court’s order denying their motion for summary judgment based on qualified immunity in this 42 U.S.C. § 1983 action alleging that the officers violated former inmate Clarence O. Smith’s Eighth Amendment rights by housing him with another inmate who subsequently attacked him. We vacate and remand.

Smith died while this appeal was pending, and his apparent next-of-kin have not responded to this Court’s order requesting proof that they are the executors and/or sole heirs of Smith’s estate. Therefore, the district court’s September 27, 2006, 2006 WL 2792844, order granting in part and denying in part defendants’ motion for summary judgment is vacated, and this case is remanded with directions to dismiss the action due to Smith’s death. See Fed. R.App. P. 43.

VACATED and REMANDED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     