Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently pending before the court are plaintiff's Motion for Substitution of Parties (Docket No. 71), defendant Mahmoud's Motion to Modify the Discovery and Scheduling Order (Docket No. 76), and defendant Solomon's Motion to Compel and to Modify Scheduling Order (Docket No. 77). For the reasons provided below, plaintiff's motion will be denied, defendant Mahmoud's motion will be granted, and defendant Solomon's motion will be granted in part.
This action proceeds on the December 20, 2006 amended complaint in which plaintiff alleges that defendants were deliberately indifferent to his serious medical needs by failing to appropriately respond to and treat a condition in his elbow and triceps. Dckt. No. 12, Am. Compl. at 3-5. The court ordered service of the complaint on defendants Noriega, Mahmoud, Solomon, and Thor on May 5, 2009. Dckt. No. 29. On March 10, 2010, the court ordered defendants Solomon, Thor, and Noriega to file an answer within 30 days of that date. Dckt. No. 59. The same day, the court again ordered service on defendant Mahmoud, who had not yet been served. Dckt. No. 60. Defendant Solomon filed an answer on March 22, 2010, and defendants Noriega and Thor filed an answer on April 8, 2010. Dckt. Nos. 64, 65.
On April 12, 2010, the court issued a discovery and scheduling order, setting the following deadlines: (1) for requesting written discovery at May 7, 2010, (2) for completing discovery and filing discovery motions at July 9, 2010, and (3) for filing dispositive motions at October 1, 2010. Dckt. No. 67. Defendant Mahmoud returned an executed waiver of service on May 12, 2010. Dckt. No. 69.
II. Plaintiff's Motion for Substitution of Parties
On April 28, 2010, defendant Noriega filed a Suggestion of Death pursuant to Federal Rule of Civil Procedure 25(a)*fn1 , notifying all parties of the death of defendant Thor. Dckt. No. 68. Plaintiff responds by seeking to substitute in defendant Thor's place "the successor or representative CSP-Solano Chief Medical Officer Alvaro C. Traquina M.D. who at all times is responsible for making policy, supervising medical staff employees, [and] is responsible for conditions and operations at the prison." Dckt. No. 71 at 1. Defendants Noriega and Mahmoud oppose the motion, arguing that defendant Thor was sued in an individual, rather than official, capacity, and thus Dr. Traquina is not a proper party for substitution. Dckt. No. 74.
(1) Substitution if the Claim Is Not Extinguished. 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.
(d) Public Officers; Death or Separation from Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party. Later proceedings should be in the substituted party's name, but any misnomer not affecting the parties' substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution.
A "proper party" under Rule 25(a)(1) is the legal representative of the deceased party; e.g., an executor of the deceased's will or an administrator of his or her estate. Mallonee v. Fahey, 200 F.2d 918, 920 (9th Cir. 1952). Thus, substitution of Dr. Traquina is not appropriate under Rule 25(a)(1).
To determine whether Dr. Traquina may be substituted for defendant Thor under Rule 25(d), the court must determine whether plaintiff sued defendant Thor in his official capacity, as Rule 25(d) only provides for substitution of a successor in office where the original defendant was sued in his official capacity. Plaintiff's complaint is silent as to whether the defendants are sued in their personal and/or official capacities. Thus, the court must look at the content of the complaint and the course of the proceedings to make the personal v. official capacity determination. See Ashker v. Cal. Dep't of Corr., 112 F.3d 392, 395 (9th Cir. 1997); Shoshone-Bannock Tribes v. Fish & Game Comm'n, 42 F.3d 1278, 1284-85 (9th Cir. 1994).
To establish a claim against a state actor in his or her official capacity under 28 U.S.C. § 1983, a plaintiff must show that the entity employing the actor had some policy or custom that played a part in the alleged violation of federal law. Hafer v. Melo, 502 U.S. 21, 25 (1991). "Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law," and thus a plaintiff may establish personal liability in a § 1983 case simply by showing that the state actor, acting under color of state law, caused the deprivation of a federal right, without any requirement of a connection to a governmental policy or custom. Id. In addition, a suit against a state official in her official capacity is considered a suit against the state itself, and thus claims for money damages in such suits are barred by the Eleventh Amendment. Ashker, 112 F.3d at 395 & n.3. Accordingly, where money damages are sought against a state official, it is presumed that the official is sued in her individual capacity. Shoshone-Bannock Tribes, 42 F.3d at 1284.
Here, plaintiff's complaint seeks only monetary damages. Dckt. No. 12, Am. Compl. at 3. In addition, the complaint makes no reference to any policy or custom, much less alleges that such a policy or custom played a part in defendant Thor's alleged constitutional violation(s). Thus, it is apparent from plaintiff's complaint that he sued defendant Thor in his individual, and not official, capacity. Accordingly, substitution of Dr. Traquina under Rule 25(d) is inappropriate.
As Dr. Traquina is not the proper party for substitution under Rule 25(a) and may not be substituted under the successor-official provision of Rule 25(d), and as plaintiff points to no other authority under which substitution of Dr. Traquina for defendant Thor would be appropriate, the court will deny plaintiff's motion to substitute Dr. Traquina for defendant Thor. The denial of plaintiff's motion is without prejudice to plaintiff filing a new substitution motion under Rule 25 seeking to substitute a proper party for defendant Thor.
III. Defendant Mahmoud's Motion to Modify the Discovery and Scheduling Order
The October 1, 2010 deadline for filing dispositive motions was established by the April 12, 2010 discovery and scheduling order. Dckt. No. 67. Requests to modify a deadline established by the scheduling order are governed by Rule 16 of the Federal Rules of Civil Procedure. A schedule may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the ...