Underwood v. Knowles et al

Filing 96

ORDER DENYING Motion for Substitution of Attorney, WITHOUT PREJUDICE to Renewal of the Motion Within Thirty Days 82 , signed by Magistrate Judge Gary S. Austin on 5/23/11: Plaintiff's failure to file a motion for substitution in compliance with Rule 25(a)(1) pursuant to this order shall result in the dismissal of Defendant Seth Lantz from this action. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VALENTINE E. UNDERWOOD, 12 Plaintiff, 13 14 1:08-cv-00986-AWI-GSA-PC ORDER DENYING MOTION FOR SUBSTITUTION, WITHOUT PREJUDICE TO RENEWAL OF THE MOTION WITHIN THIRTY DAYS (Doc. 82.) v. M. KNOWLES, et al., 15 Defendants. THIRTY DAY DEADLINE / 16 17 I. BACKGROUND 18 Valentine E. Underwood (“Plaintiff”) is a state prisoner proceeding pro se in this civil 19 rights action pursuant to 42 U.S.C. § 1983. Plaintiff paid the filing fee for this action and is not 20 proceeding in forma pauperis. Plaintiff filed the complaint commencing this action on July 17, 21 2008. (Doc. 1.) This action now proceeds on the original complaint, against defendants 22 Northcutt and Martin for retaliation, in violation of the First Amendment; and against defendants 23 Northcutt, Martin, Caviness, Lantz, Trujillo, Truitt, and Fambrough ("Defendants") for use of 24 excessive force physical force, in violation of the Eighth Amendment.1 25 26 On December 7, 2010, Defendants filed a Statement of Fact of Death, suggesting the death of defendant Seth Lantz during the pendency of this action. (Doc. 72.) On December 15, 27 28 1 All other claims and defendants were dismissed by the Court on October 21, 2009, based on Plaintiff’s failure to state a claim. (Doc. 31.) 1 1 2010, the Court issued an order notifying the parties that the ninety-day period within which to 2 file a motion for substitution pursuant to Rule 25(a)(1) had not been triggered, because 3 Defendants' notice of defendant Lantz's death did not contain a declaration of service or other 4 proof reflecting that there was proper service of the notice on Lanz's successors or representatives 5 as provided by Rule 4. (Doc. 73.) On January 14, 2011, Plaintiff filed a motion for substitution 6 pursuant to Rule 25(a)(1). (Doc. 82.) 7 II. RULE 25(a)(1) – MOTION FOR SUBSTITUTION 8 Rule 25(a)(1) of the Federal Rules of Civil Procedure provides that: 9 13 [i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party. 14 Under Rule 25(a)(1), any party may file a motion for substitution, which must be served 15 on all parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 16 4 for the service of a summons. Thus, parties may be served by service on their attorney, Fed. R. 17 Civ. P. 5(b), but non-party successors or representatives of the deceased party must be served in 18 the manner provided by Rule 4 for the service of a summons. See Barlow v. Ground, 39 F.3d 19 231, 232-234 (9th Cir. 1994). 10 11 12 20 Plaintiff requests that “S. Lantz's successors or representatives of his estate be substituted 21 as an [sic] defendant in this matter." (Motion, Doc. 82 at 1:22-26.) Plaintiff requests assistance 22 by the Court and the United States Marshal in identifying and serving the successors or 23 representatives of defendant Lantz's estate, on the ground that Plaintiff cannot afford the costs. 24 Plaintiff requests leave to proceed in forma pauperis for purposes of the motion for substitution. 25 To proceed with a motion for substitution, Plaintiff must provide proof of service of the 26 motion for substitution upon the other parties to this action and the successors or representatives 27 of Seth Lantz, as required by Rule 25(a)(1). Plaintiff is advised that he is responsible for 28 identifying and finding Seth Lantz's heirs or representatives. Such assistance is not a function of 2 1 the United States Marshals Service. Plaintiff is also responsible to arrange for service of the 2 motion for substitution. Even if Plaintiff was proceeding in forma pauperis, he would not be 3 entitled to assistance free of charge by the United States Marshal for service of the motion for 4 substitution. 5 Therefore, Plaintiff’s motion for substitution shall be denied, without prejudice to 6 renewal of the motion in compliance with Rule 25(a)(1) within thirty days. 7 III. CONCLUSION 8 Based on the foregoing, IT IS HEREBY ORDERED that: 9 1. Plaintiff's motion for substitution, filed on January 14, 2011, is DENIED, without 10 prejudice to renewal of the motion within thirty days from the date of service of 11 this order; and 12 2. Plaintiff’s failure to file a motion for substitution in compliance with Rule 13 25(a)(1) pursuant to this order shall result in the dismissal of defendant Seth Lantz 14 from this action. 15 16 IT IS SO ORDERED. 17 Dated: 6i0kij May 23, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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