Shehee v. Ahlin et al
Filing
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ORDER NOTIFYING Parties that Ninety-Day Period within which to File Motion for Substitution has not been Triggered by Filing of Notice of Suggestion of Death Due to Service Deficiency; ORDER GRANTING Plaintiff's Request for Entry of Default as to Defendant Tur signed by Magistrate Judge Barbara A. McAuliffe on 12/5/2017. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GREGORY ELL SHEHEE,
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Plaintiff,
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v.
PAMELA AHLIN, et al,
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(ECF No. 56)
ORDER GRANTING PLAINTIFF’S
REQUEST FOR ENTRY OF DEFAULT AS
TO DEFENDANT TUR
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(ECF Nos. 54, 55)
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ORDER NOTIFYING PARTIES THAT
NINETY-DAY PERIOD WITHIN WHICH TO
FILE MOTION FOR SUBSTITUTION HAS
NOT BEEN TRIGGERED BY FILING OF
NOTICE OF SUGGESTION OF DEATH DUE
TO SERVICE DEFICIENCY
Defendants.
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Case No. 1:14-cv-00005-LJO-BAM (PC)
I.
Background
Plaintiff Gregory Ell Shehee (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on
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Plaintiff’s third amended complaint against Defendants Tur and Nguyen for inadequate medical
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care arising from events occurring prior to Plaintiff’s surgery in April 2014, in violation of the
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Fourteenth Amendment.
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On April 19, 2017, the United States Marshal was ordered to serve process on Plaintiff’s
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behalf. (ECF No. 38.) On August 3, 2017, the United States Marshal filed a USM-285 form
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indicating that a copy of the summons and complaint was left with Melanie Varner, caregiver,
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who is documented as a person of suitable age and discretion then residing in Defendant Tur’s
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usual place of abode. (ECF No. 43.)
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On September 20, 2017, after Defendant Tur failed to file a response to the third amended
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complaint, the Court issued an order for Defendant Tur to show cause as to why he failed to file a
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responsive pleading. (ECF No. 50.) On October 18, 2017, Defendant Nguyen filed a response to
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the show cause order. (ECF No. 52.) Defendant Nguyen stated that Defendant Tur no longer
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worked at Department of State Hospitals-Coalinga or for the State of California. In addition,
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during August and September 2017, defense counsel was unable to contact Defendant Tur by
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telephone or through personal service. (Id.)
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In light of this information, on October 30, 2017, the Court issued an order directing the
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Clerk of the Court to re-serve the September 20, 2017 show cause order on Defendant Tur at the
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confidential address used by the U.S. Marshal Service on July 6, 2017. (ECF No. 53.) On
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November 1, 2017, Plaintiff filed the instant request for entry of default and a declaration in
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support. (ECF Nos. 54, 55.)
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Thereafter, on November 21, 2017, Defendant Nguyen filed a notice of suggestion of
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death of Defendant Tur, pursuant to Federal Rule of Civil Procedure 25(a)(1). (ECF No. 56.)
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Defendant Nguyen, through the Department of State Hospitals, states that upon information and
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belief, Defendant Tur passed away on September 19, 2017. (Id.)
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II.
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Notice of Suggestion of Death
Rule 25(a)(1) provides for the dismissal of Defendant Tur from this action if a motion for
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substitution is not made within ninety days after service of a statement noting Tur’s death. Fed.
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R. Civ. P. 25(a)(1). Two things are required of a party for the running of the ninety-day period to
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commence: a party must 1) formally suggest the death of the party on the record, and 2) serve the
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suggestion of death on the other parties and the nonparty successors or representatives of the
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deceased. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). In order for the ninety-day period
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for substitution to be triggered, a party must formally suggest the death of the party upon the
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record, Fed. R. Civ. P. 25(a)(1), and must serve other parties and nonparty successors or
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representatives of the deceased with a suggestion of death in the same manner as required for
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service of the motion to substitute, Fed. R. Civ. P. 25(a)(3). Thus, a party may be served with the
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suggestion of death by service on his or her attorney, Fed. R. Civ. P. 5(b), while non-party
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successors or representatives of the deceased party must be served the suggestion of death in the
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manner provided by Rule 4 for the service of a summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39
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F.3d at 232–34. Rule 25 requires dismissal absent a motion for substitution within the ninety-day
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period only if the statement of death was properly served. Unicorn Tales, Inc., v. Bannerjee, 138
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F.3d 467, 469–71 (2d Cir. 1998).
While Defendant Nguyen’s notice indicates that service of the notice was made on Dr.
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Juan Tur, there is no indication that the listed address is the residence of any successor or
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representative of Defendant Tur. (ECF No. 56.) Therefore, as there is no declaration of service
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or other proof reflecting that there was proper service of the notice on Defendant Tur’s successor
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or representative as provided by Rule 4, the ninety-day period has not been triggered.
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III.
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Request for Entry of Default
In his request for entry of default and declaration in support, Plaintiff argues that entry of
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default is appropriate because the record, (ECF No. 43), shows that Defendant Tur was personally
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served on July 6, 2017. (ECF No. 55.) Therefore, Defendant Tur’s answer is overdue. Further,
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Defendant Tur has failed to respond to the Court’s September 20, 2017 order to show cause why
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default should not be entered. (Id. at 2.) Plaintiff also argues that Defendant Tur is not an infant
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or incompetent and was properly served with notice by the United States Marshal. (Id. at 7.)
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As discussed, Defendant Tur was served by the U.S. Marshal on July 6, 2017. (ECF No.
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43.) Pursuant to Federal Rule of Civil Procedure 12(a)(1)(A)(i), Defendant Tur’s answer or
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motion under Rule 12 was due within twenty-one (21) days after being served with the summons
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and complaint. Defendant Tur has not filed an answer or motion under Rule 12 to Plaintiff’s
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complaint, nor has he filed a response to the Court’s September 20, 2017 order to show cause.
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Accordingly, the Court will direct the Clerk to enter default against Defendant Tur because he has
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“failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a).
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IV.
Conclusion and Order
Based on the foregoing, IT IS HEREBY ORDERED that:
1. The parties are NOTIFIED that the ninety-day period for substitution pursuant to Rule
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25(a)(1) has not been triggered by Defendant Nguyen’s notice of suggestion of death,
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(ECF No. 56); and
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2. The Clerk of the Court is DIRECTED to enter default against Defendant Tur.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
December 5, 2017
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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