United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT MOTION FOR SUBSTITUTION BE DENIED, AND THAT THIS ACTION BE DISMISSED (Doc. 14.) OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
GARY S. AUSTIN, Magistrate Judge.
Robert McKinney ("Plaintiff"), a state prisoner proceeding pro se, filed the Complaint commencing this civil rights action pursuant to 42 U.S.C. § 1983 on June 18, 2014. (Doc. 1.) This case now proceeds with the original Complaint, against defendants Dr. Singh and Dr. Malakka ("Defendants"), for inadequate medical care in violation of the Eighth Amendment.
On March 2, 2015, Defendants filed a notice of suggestion of Plaintiff's death, pursuant to Rule 25(a) of the Federal Rules of Civil Procedure. (Doc. 12.)
On April 13, 2015, non-party Robin L. Chacon filed a motion for substitution pursuant to Rule 25(a). (Doc. 14.) On April 24, 2015, Defendants filed an opposition to the motion. (Doc. 17.) On May 20, 2015, Plaintiff filed a reply to the opposition. (Doc. 20.)
Robin L. Chacon's motion for substitution is now before the court.
II. MOTION FOR SUBSTITUTION
Rule 25(a)(1) of the Federal Rules of Civil Procedure provides that "[i]f 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." Fed.R.Civ.P. 25(a)(1). The procedural requirements, determined by both the express language of the rule as well as case law, must be satisfied in order for a court to grant the motion for substitution. Survival actions are permitted under § 1983 if authorized by applicable state law. 42 U.S.C. § 1983; Byrd v. Guess, 137 F.3d 1126, 1131 (9th Cir. 1998). California law provides that, "a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period." Cal. Civ. Proc. Code § 377.20(a); Chavez v. Carpenter, 91 Cal.App.4th 1433, 1443, 111 Cal.Rptr.2d 534 (2001).
In the Ninth Circuit, the only persons who may be substituted as parties under Rule 25(a)(1) are legal representatives of the deceased. Mallonee v. Fahey, 200 F.2d 918, 919 (9th Cir. 1952.) California Probate Code § 58 defines a "personal representative" as an "executor, administrator, administrator with the will annexed, special administrator, successor personal representative, or a person who performs substantially the same function under the law of another jurisdiction governing the person's status." Cal. Prob. Code § 58; Myers v. Philip Morris, Inc., 2003 WL 21756086 at *6 (E.D.Cal. 2003); Rose v. City of Los Angeles, 814 F.Supp. 878, 881 (C.D.Cal. 1993); Coats v. K-Mart Corp., 215 Cal.App.3d 961, 967, 264 Cal.Rptr. 12 (1989).
Non-party Robin L. Chacon ("Ms. Chacon"), daughter of deceased Plaintiff Robert McKinney, requests her substitution as a party to this action in place of her father, pursuant to Rule 25(a). Her motion reads as follows, in its entirety:
I, Robin Chacon, is ( sic ) pleading to the court to allow a substitution of Parties after the death of my father, Robert McKinney, on January 17, 2015 for the above mentioned case. According to Rule 25(a)(1) of the Federal Rules of Civil Procedure governs the substitution of parties after death, providing for substitution where the claim is not extinguished by the death of the party.
(Motion, Doc. 14 at 1.).
Defendants oppose Ms. Chacon's motion on the grounds that she has not complied with California Code of Civil Procedure § 377.32(c), which requires a successor in interest, who brings or continues the "survival" action because no estate personal representative has been appointed, to file a certified copy of Plaintiff's death certificate together with an affidavit or declaration, stating specified information and signed under penalty of perjury. Defendants argue that until these defects are remedied, they have no choice but to oppose her motion.
In her reply, Ms. Chacon provides a certified copy of Robert McKinney's death certificate and a declaration, signed under penalty of perjury, that she is "the decedent's successor of the above mentioned plaintiff according to section 377.11 of the CCP and no proceeding is now pending in California for ...