United States District Court, N.D. California
(1) DENYING PLAINTIFF'S MOTION TO SUBSTITUTE DEFENDANT
AND AMEND COMPLAINT WITHOUT PREJUDICE TO REFILING; (2)
DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WITHOUT
PREJUDICE TO REFILING; (3) STAYING PROCEEDINGS; AND (4)
ADMINISTRATIVELY CLOSE CASE
GONZALEZ ROGERS, United States District Judge
action is now before the Court to address issues arising from
the death of Defendant Dr. Edward Birdsong. Pending before
the Court is the deceased defendant's motion for summary
judgment. Dkt. 24. Also pending is Plaintiffs motion
entitled, “Motion for Amendment, and Substitution, and
[Request for] Defendant's Counsel to Comply With Rule
25.” Dkt. 41.
reasons explained below, the Court will: (1) deny Plaintiffs
“Motion for Amendment, and Substitution, and [Request
for] Defendant's Counsel to Comply With Rule 25, ”
without prejudice to refiling upon following the proper
procedure to substitute in a proper defendant in place of the
deceased defendant; (2) deny the pending motion for summary
judgment without prejudice to refiling; and (3) stay the
proceedings and administratively close the case, and do
nothing further until (a) Plaintiff uses the correct
procedure to move to substitute in a proper defendant in
place of the deceased defendant, or (b) the deceased
defendant's representative either (i) files a proper
document that triggers the 90-day deadline in Federal Rule of
Civil Procedure 25(a) (for Plaintiff to file a motion for
substitution) or (ii) moves to substitute in as the proper
a state prisoner incarcerated at Salinas Valley State Prison
(“SVSP”), filed a civil rights complaint pursuant
to 42 U.S.C. § 1983. Dkt. 1. Plaintiff named Defendant
as well as the California Department of Corrections and
Rehabilitation (“CDCR”). Id. at 1-2.
screening the complaint, the Court dismissed all claims
against the CDCR-state and federal-because the Eleventh
Amendment prevents the CDCR, which is a state agency, from
being sued in federal court. Dkt. 9 at 2. The Court found
that Plaintiff had alleged a cognizable claim under 42 U.S.C.
§ 1983 against Defendant for deliberate indifference to
medical needs in violation of Plaintiff's Eighth
Amendment rights, stemming from severe complications from
treatment he received from February and April 2013.
Id. at 2-3. Defendant was then served with process.
As mentioned above, Defendant 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.
March 9, 2017, Plaintiff filed a document entitled,
“Letter of Intent and Amendment.” Dkt. 34. In
that filing, Plaintiff informed the Court that Defendant
Birdsong has passed away. Id. at 1. Plaintiff then
advised the Court that he intended to seek leave to amend his
complaint to: (1) name the SVSP Warden and CDCR Secretary as
Defendants; and (2) to substitute the Estate of Defendant
Birdsong as a Defendant. See id.
April 17, 2017, counsel for Defendant, Lynne G. Stocker,
Esq., filed a document confirming that Defendant had indeed
passed away on February 9, 2017. Dkt. 35 at 1. Defense
counsel stated that she had “no contact with Dr.
Birdsong's family, successors or representatives.”
Id. at 2. Defense counsel further added that she
“reviewed online records for Monterey County Superior
Court but has located no probate proceedings for Dr.
Birdsong's estate.” Id.
the issues presented by Defendant's death, the Court, in
an Order dated May 15, 2017, directed defense counsel to
comply with the requirements of Federal Rule of Civil
Procedure 25 by: (1) filing a formal notice of suggestion of
death on the record; and (2) serving nonparty successors or
representatives of Defendant with a suggestion of death in
the manner required by Rule 25(a)(3). Dkt. 36 at 3. The Court
further instructed defense counsel to conduct a more
reasonable investigation into the status of Defendant's
estate, stating as follows:
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 . .
Id. at 3 (citing Fed.R.Civ.P. 25(a)(3)). Finally,
because Plaintiff had not yet filed a motion for
substitution, the Court granted him an extension of time to
do so. Id. at 3-4.
12, 2017, defense counsel filed a declaration (in response to
the Court's May 15, 2017 Order) on behalf of the
specially appearing CDCR. Dkt. 37. Counsel stated that a
“petition in probate had been filed by a John Birdsong
under Case No. 17PR000131.” Id. at 2. Counsel
further explained ...