Shehee v. Ahlin et al

Filing 60

ORDER DENYING Plaintiff's 59 Motion for Substitution, without Prejudice signed by Magistrate Judge Barbara A. McAuliffe on 12/12/2017. (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,

Case No. 1:14-cv-00005-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR SUBSTITUTION, WITHOUT
PREJUDICE
(ECF No. 59)

Defendants.

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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 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 a request for entry of default and a declaration in support. (ECF

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Nos. 54, 55.) Thereafter, on November 21, 2017, Defendant Nguyen filed a notice of suggestion

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of death of Defendant Tur, pursuant to Federal Rule of Civil Procedure 25(a)(1). (ECF No. 56.)

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On December 5, 2017, the Court issued an order notifying the parties that Defendant

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Nguyen failed to serve the notice of suggestion of death on the nonparty successors or

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representatives of the deceased. Therefore, the ninety-day period for the filing of a motion for

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substitution was not triggered. In the same order, the Court granted Plaintiff’s request for entry of

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default as to Defendant Tur. (ECF No. 57.)

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The same day, Plaintiff filed the instant motion for substitution. (ECF No. 59.) It appears

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that Plaintiff’s motion crossed in the mail with the Court’s order. Although Defendant Nguyen

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has not had an opportunity to file a response, the Court finds a response unnecessary. The motion

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is deemed submitted. Local Rule 230(l).

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As discussed in the Court’s November 5, 2017, order regarding Defendant Nguyen’s

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notice of suggestion of death, Rule 25(a)(1) requires two steps to trigger the ninety-day period for

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filing a motion for substitution: a party must 1) formally suggest the death of the party on the

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record, and 2) serve the suggestion of death on the other parties and the nonparty successors or

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representatives of the deceased. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994).

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As Defendant Nguyen did not serve the suggestion of death on any nonparty successor or

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representative of the deceased, the ninety-day period was not triggered. Thus, Plaintiff’s motion

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for substitution is premature.

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The Court also notes that Plaintiff has requested to substitute an unidentified personal

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representative or successor of Defendant Tur. Thus, even if Plaintiff’s motion were properly filed

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within the applicable ninety-day period, the request would be unacceptable. Plaintiff must use the

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correct name of the legal representative of Defendant in a motion for substitution, and the Court

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will not do so on his behalf. See Hightower v. Birdsong, 2017 WL 3782691, at *3, Case No. 152

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cv-03966-YGR (PR) (N.D. Cal. Aug. 31, 2017).
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for
substitution, (ECF No. 59), is DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 12, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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