Gilmore v. Augustus, et al.

Filing 48

ORDER Denying Plaintiff's Fourth Motion For Substitution, Without Prejudice (Doc. 43 ), ORDER Granting Discovery For Limited Purpose, signed by Magistrate Judge Gary S. Austin on 5/20/2014. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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C. DWAYNE GILMORE,

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Plaintiff,

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vs.

1:12-cv-00925-GSA-PC
ORDER DENYING PLAINTIFF’S FOURTH
MOTION FOR SUBSTITUTION, WITHOUT
PREJUDICE
(Doc. 43.)

D. AUGUSTUS, et al.,

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Defendants.

ORDER GRANTING DISCOVERY FOR
LIMITED PURPOSE

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I.

BACKGROUND

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C. Dwayne Gilmore (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on June 7, 2012. (Doc. 1.) This action now proceeds on the First

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Amended Complaint filed on March 8, 2013, against defendants Correctional Officer (C/O) C.

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Lockard, C/O C. Lopez, C/O J. Hightower, and C/O J. J. Torres for excessive force, and against

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defendant C/O J. J. Torres for denial of adequate medical care, in violation of the Eighth

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Amendment.1 On December 12, 2013, the court issued an order directing the United States

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Marshal (“Marshal”) to serve defendants in this action. (Doc. 19.)

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On February 24, 2014, Defendants filed a Notice of defendant Torres’ death pursuant to
Rule 25(a) of the Federal Rules of Civil Procedure. (Doc. 23.)

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On November 18, 2013, the court issued an order dismissing all other claims and defendants from this
action for failure to state a claim. (Doc. 17.) Defendants Lieutenant D. Augustus, Sergeant J. S. Diaz, Licensed
Vocational Nurse (LVN) A. Serna, LVN B. Ismat, LVN I. Bari, LVN J. Canada, LVN Z. Nartume, and John Doe
were dismissed from this action based on Plaintiff=s failure to state any claims against them upon which relief may
be granted under §1983, and Plaintiff=s claims based on supervisory liability and claims for conspiracy and
violation of due process were dismissed from this action for Plaintiff’s failure to state a claim under § 1983. (Id.)
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On May 16, 2014, Plaintiff filed a motion for substitution pursuant to Rule 25(a), or in

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the alternative, a motion for limited discovery, which is now before the court. (Doc. 43.)

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II.

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RULE 25(a)(1) B MOTION FOR SUBSTITUTION
Rule 25(a)(1) of the Federal Rules of Civil Procedure provides that:
“If 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.”

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A “proper party” under Rule 25(a)(1) is the legal representative of the deceased party;

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e.g., an executor of the deceased’s will or an administrator of his or her estate. Mallonee v.

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Fahey, 200 F.2d 918, 919-920, & n.3 (9th Cir. 1952).

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Discussion

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Plaintiff provides the name and address of Elizabeth B. Torres, whom he identifies as

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the wife and heir of deceased defendant J. J. Torres, and submits copies of two obituaries for

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Johnny James Torres indicating that the decedent left behind a wife named Elizabeth Torres.

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(Motion at 5-6.)

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Torres’ wife is Elizabeth B. Torres who currently resides at the address provided by Plaintiff,

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or that she is his legal representative. As noted above, a “proper party” under Rule 25(a)(1) is

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the legal representative of the deceased party; e.g., an executor of the deceased’s will or an

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administrator of his or her estate. Mallonee, 200 F.2d at 919-920, & n.3 (emphasis added).

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Therefore, Plaintiff’s motion for substitution shall be denied, without prejudice.

Plaintiff’s evidence is not sufficient to prove that deceased defendant J. J.

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Plaintiff has requested leave to conduct limited discovery. The Ninth Circuit held in

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Gillespie v. Civiletti that “where the identity of alleged defendants will not be known prior to

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the filing of a complaint ... the plaintiff should be given an opportunity through discovery to

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identify the unknown defendants, unless it is clear that discovery would not uncover the
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identities, or that the complaint would be dismissed on other grounds.” Gillespie v. Civiletti,

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629 F.2d 637, 642 (9th Cir.1980); also see Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th

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Cir.1999).

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attempted and has been unable to obtain the name and address of a deceased defendant’s legal

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representative for purposes of substitution. The Court is unaware of any reason why discovery

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would not yield the identity of the legal representative, and Defendants have raised no other

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basis for dismissal of the cause of action against defendant Torres. Therefore, Plaintiff will be

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permitted to attempt to discover the identity of the unknown legal representative. Plaintiff's

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interrogatories or requests for production for this purpose must be relevant and narrowly

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tailored to identifying the unknown legal representative. Further, this limited discovery must

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be conducted in compliance with the discovery deadline established by the court’s scheduling

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order of April 25, 2014. (Doc. 36.)

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III.

The Gillespie and Wakefield holdings govern the present case.

Plaintiff has

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s fourth motion for substitution, filed on May 16, 2014, is DENIED,

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without prejudice to renewal of the motion at a later stage of the proceedings;

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and

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2.

Plaintiff is granted leave to conduct limited discovery for the purpose of

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discovering the name and address of defendant Torres’ legal representative, for

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purposes of substitution, as instructed by this order.

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IT IS SO ORDERED.
Dated:

May 20, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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