United States District Court, N.D. California
ORDER GRANTING PLAINTIFF EXTENSION OF TIME TO FILE
HIS OPPOSITION AND MOTION FOR SUBSTITUTION; DIRECTING
DEFENDANT'S COUNSEL TO COMPLY WITH RULE 25; AND SETTING
NEW BRIEFING SCHEDULE
GONZALEZ ROGERS United States District Judge.
a state prisoner proceeding pro se, filed a civil
rights complaint pursuant to 42 U.S.C. § 1983. He
alleged a claim of deliberate indifference to medical needs
against Defendant SVSP Physician Edward Birdsong, M.D.,
stemming from severe complications from treatment Plaintiff
received from February and April 2013. Dkt. 1 at 3.
has moved for summary judgment, contending that he was not
deliberately indifferent to Plaintiff's serious medical
needs, and that Defendant is entitled to qualified immunity.
See Dkt. 24. To date, even after being granted an
extension of time to do so, Plaintiff has not filed
opposition to Defendant's motion for summary judgment.
Plaintiff has filed a document entitled,
“Plaintiff's Reply to Defendant[']s Opposition
to Plaintiff[']s Motion for Extension of Time to Respond
to Motion for Summary Judgment, ” which the Court
construes as yet another motion for an extension of time to
file his opposition. Dkt. 31. To the extent that Plaintiff is
requesting an extension to conduct further discovery, the
Court in its January 10, 2017 Order previously denied such a
request for a continuance pursuant to Federal Rule of Civil
Procedure 56(d), which involves a procedure by which a party
may avoid summary judgment when such party has not had
sufficient opportunity to discover affirmative evidence
necessary to oppose the motion. See Dkt. 30 at 1-3
(citing Garrett v. San Francisco, 818 F.2d 1515,
1518 (9th Cir. 1987)). Therefore, for the same reasons stated
in its January 10, 2017 Order, the Court DENIES such a
request for a continuance pursuant to Rule 56(d). However,
the Court GRANTS Plaintiff another brief extension of time to
file his opposition. The parties shall abide by the briefing
schedule outlined below.
before the Court is Plaintiff's March 9, 2017 filing
entitled, “Letter of Intent and Amendment.” Dkt.
34. In that filing, Plaintiff informs the Court that
Defendant Birdsong has passed away. Id. at 1. He
then advises the Court that he intends to seek leave to amend
his complaint to: (1) name the Warden of Salinas Valley State
Prison and Secretary of the California Department of
Corrections and Rehabilitation as Defendants; and (2) to
substitute the Estate of Defendant Birdsong as a Defendant.
See Id. However, to date, Plaintiff has not filed
any motion for substitution. Therefore, the Court GRANTS
Plaintiff an extension of time to do so, as directed below.
on April 17, 2017, counsel for Defendant Birdsong filed a
document confirming that Defendant Birdsong indeed passed
away on February 9, 2017. Dkt. 35 at 1. In that document,
Defendant's counsel states that she has had “no
contact with Dr. Birdsong's family, successors or
representatives.” Id. at 2. Defendant's
counsel further adds that she has “reviewed online
records for Monterey County Superior Court but has located no
probate proceedings for Dr. Birdsong's estate.”
Rule of Civil Procedure 25(a)(1) states as follows: “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.”
Fed.R.Civ.P. 25(a)(1). Rule 25(a)(1) also provides for the
dismissal of a party if a motion for substitution is not made
within ninety days after service of a statement noting that
party's death. Id. Two requirements are
necessary for the running of the ninety-day period to
commence: a party must (1) formally suggest the death of the
party on the record, and (2) serve the suggestion of death on
the other parties and nonparty successors or representatives.
Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994).
Thus, a party may be served the suggestion of death by
service on his or her attorney, see Fed. R. Civ. P.
5(b), while non-party successors or representatives of the
deceased party must be served the suggestion of death in the
manner provided by Rule 4 for the service of a summons,
see Fed. R. Civ. P. 25(a)(3); Barlow, 39
F.3d at 232-34. Rule 25 requires dismissal absent a motion
for substitution within the ninety-day period only if the
statement of death was properly served. Unicorn Tales,
Inc., v. Bannerjee, 138 F.3d 467, 469-71 (2d Cir. 1998).
three months have passed since the date of Defendant's
death. Defendant's counsel must comply with the two
requirements of Rule 25 set forth above. Defendant's
counsel is also directed to conduct a more reasonable
investigation into the status of Defendant's estate. If
counsel is able to obtain the name and address of the
representative of Defendant's estate, the Court orders
counsel to serve nonparty successors or representatives of
Defendant with a suggestion of death in the manner required
by Rule 25(a)(3), and to notify the Court by filing a proof
of service reflecting of the name and address of the
individual so notified, as well as the date of compliance, as
directed below. See Fed. R. Civ. P. 25(a)(3).
reasons outlined above, the Court orders as follows:
Plaintiff's motion for an extension of time to file his
opposition is DENIED in part and GRANTED in part. Dkt. 31.
Plaintiff's request for a continuance pursuant to Rule
56(d) is DENIED. However, the Court GRANTS Plaintiff another
brief extension of time to file his opposition. The parties
shall abide by the following briefing schedule:
later than twenty-eight (28) days from the
date of this Order, Plaintiff shall file his opposition to
Defendant's motion for summary judgment.
Defendant shall file a reply no later than fourteen
(14) days from the date the opposition is filed.
No further extensions of time will be granted absent