Buckley v. Alameida, et al

Filing 178

ORDER Denying 160 without Prejudice Plaintiff's Motion for Substitution of Defendant Kordan; ORDER Directing Attorney for Defendant Kordan to Formally Suggest the Death of Defendant Kordan pursuant to Rule 25, signed by Magistrate Judge Gerald B. Cohn on 8/24/12. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ANTONIO C. BUCKLEY,

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Plaintiff,

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v.
ALAMEIDA, et al.,

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CASE NO. 1:04-cv-05688-OWW-GBC PC
ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION FOR SUBSTITUTION
OF DEFENDANT KORDAN
(Doc. 160)

Defendants.

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ORDER DIRECTING ATTORNEY FOR
DEFENDANT KORDAN TO FORMALLY
SUGGEST THE DEATH OF DEFENDANT
/ KORDAN PURSUANT TO RULE 25

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I.

Procedural History

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Plaintiff Antonio Cortez Buckley (“Plaintiff”) is a state prisoner proceeding pro se in this

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civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1 (the Religious Land Use

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and Institutionalized Persons Act (“RLUIPA”)). On September 29, 2003, Plaintiff filed the original

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complaint. Doc. 1. On March 23, 2007, Plaintiff filed the third amended complaint which the Court

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found to have stated cognizable claims against the following defendants: Calderon; Vo; Meadors;

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Reed; Kordan; Traynham; Papac; Winett; Woodley; Barker; Howard; Johnson; Mack; and Chappel

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(“Defendants”). Doc. 42; Doc. 44. On January 25, 2012, Defendants’ motion for summary

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judgement was granted as to all claims against Defendants Vo; Meadors; Woodley; and Johnson.

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Doc. 125; Doc. 153; Doc. 155. Additionally summary judgement was denied as to Plaintiff's Eighth
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Amendment claim against Defendants Reed, Mack, and Traynham for placing Plaintiff in a cell that
was covered in feces and denied as to Plaintiff's Equal Protection claim against Defendants Chappel
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and Barker for the confiscated menorah and candles. Doc. 125; Doc. 153; Doc. 155. The Court also

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ordered parties to address whether Defendants Howard, Winnett, Papac, Calderon and Kordan

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violated the Eighth amendment by maliciously implementing a contraband search without a valid
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penological interest. Doc. 125; Doc. 153; Doc. 155. On March 28, 2012, in a motion for extension

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of time, Defendants stated that Defendant Kordan has died. Doc. 156. On April 20, 2012, Plaintiff

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motioned to substitute Defendant Kordan with Defendant Vo pursuant to Rule 25 of the Federal

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Rules of Civil Procedure. Doc. 160.

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II.

Rule 25 Statement of Death

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Rule 25(a)(1) provides for the dismissal of this action if a motion for substitution is not made

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within ninety days after service of a statement noting Plaintiff’s death. Fed. R. Civ. P. 25(a)(1).

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Two things are required of a party for the running of the ninety-day period to commence: a party

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must 1) formally suggest the death of the party on the record, and 2) serve the suggestion of death

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on the other parties and nonparty successors or representatives. Barlow v. Ground, 39 F.3d 231, 233

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(9th Cir. 1994). In order for the ninety-day period for substitution to be triggered, a party must

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formally suggest the death of the party upon the record, Fed. R. Civ. P. 25(a)(1), and must serve

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other parties and nonparty successors or representatives of the deceased with a suggestion of death

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in the same manner as required for service of the motion to substitute, Fed. R. Civ. P. 25(a)(3).

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Thus, a party may be served the suggestion of death by service on his or her attorney, Fed. R. Civ.

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P. 5(b), while non-party successors or representatives of the deceased party must be served the

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suggestion of death in the manner provided by Rule 4 for the service of a summons. Fed. R. Civ.

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P. 25(a)(3); Barlow v. Ground, 39 F.3d at 232-234. Rule 25 requires dismissal absent a motion for

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substitution within the ninety-day period only if the statement of death was properly served. Unicorn

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Tales, Inc., v. Bannerjee, 138 F.3d 467, 469-471 (2d Cir. 1998).

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The ninety-day period has not been triggered by the notice because there is no declaration of

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service or other proof reflecting that there was proper service of the notice on Plaintiff’s successor

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or representative as provided by Rule 4.
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III.

Plaintiff’s Request to Substitute Dr. Vo for Defendant Kordan

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Under section 1983, Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009);

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Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton,

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588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Each

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defendant is only liable for his or her own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 676-77;

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Ewing v. City of Stockton, 588 F.3d 1218, 1235. In this case, the Court has found granted summary

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judgement in favor of Dr. Vo and Dr. Vo cannot serve as a substitute for the now deceased

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Defendant Kordan, because Dr. Vo’s actions and involvement are not the same as Defendant

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Kordan’s actions in the violation of Plaintiff’s constitutional rights.

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However, Plaintiff’s claims are not abated upon the death of a defendant. See Carlson v.

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Green, 446 U.S. 14, 24, 100 S.Ct. 1468, 1474–75, 64 L.Ed.2d 15 (1980) (a cause of action for an

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Eighth Amendment violation survives the death of a party); In re Estate of Ferdinand Marcos,

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Human Rights Litigation, 25 F.3d 1467, 1476 (9th Cir. 1994). In other words, Plaintiff’s claims

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survive the death of Defendant Kordan and Defendant Kordan’s nonparty successors or

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representatives could be given notice and be substituted as a party in this section 1983 claim. See

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Carlson v. Green, 446 U.S. 14, 24, 100 S.Ct. 1468, 1474–75, 64 L.Ed.2d 15 (1980) (a cause of

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action for an Eighth Amendment violation survives the death of a party); In re Estate of Ferdinand

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Marcos, Human Rights Litigation, 25 F.3d 1467, 1476 (9th Cir. 1994).

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For the reasons set forth herein, it is HEREBY ORDERED that:

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Attorney for Defendant Kordan must formally suggest the death of Defendant Kordan

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pursuant to Fed. R. Civ. P. 25(a)(1), and must serve other parties and nonparty

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successors or representatives of Defendant Kordan with a suggestion of death in

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accordance with Fed. R. Civ. P. 25(a)(3), Fed. R. Civ. P. 5(b), Fed. R. Civ. P. 4;

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Plaintiff’s motion for substitution of Defendant Kordan is DENIED WITHOUT

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PREJUDICE to Plaintiff seeking to substitute Defendant Kordan with his nonparty

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successors or representatives.

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IT IS SO ORDERED.

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Dated:
0jh02o

August 24, 2012
UNITED STATES MAGISTRATE JUDGE

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