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Hightower v. Birdsong

United States District Court, N.D. California

August 31, 2017

LARRY LEWIS HIGHTOWER, JR., Plaintiff,
v.
DR. EDWARD BIRDSONG, Defendant.

         ORDER (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

          YVONNE GONZALEZ ROGERS, United States District Judge

         I. INTRODUCTION

         This 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.

         For the 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 defendant.

         II. BACKGROUND

         Plaintiff, 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”).[1] Id. at 1-2.

         Upon 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.

         On 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.

         On 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.

         Due to 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.

         On June 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 ...


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