Johnson v. Frauenheim et al
Filing
53
ORDER DENYING 49 Plaintiff's Motion for Substitution of Defendant signed by Magistrate Judge Barry M. Kurren on 7/18/2016. (Jessen, A)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
LACEDRIC W. JOHNSON,
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Plaintiff,
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)
vs.
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J. BEJINEZ, ET AL.,
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Defendants.
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)
______________________________ )
1:14-cv-01601-LJO-BMK
ORDER DENYING PLAINTIFF’S
MOTION FOR SUBSTITUTION OF
DEFENDANT (Doc. 49)
ORDER DENYING PLAINTIFF’S MOTION FOR
SUBSTITUTION OF DEFENDANT (Doc. 49)
Before the Court is Plaintiff Lacedric Johnson’s Motion for
Substitution of Defendant M. George. Plaintiff seeks to substitute Defendant J.
Benavides for decedent Defendant M. George, arguing that Benavides was the
supervisor responsible for the prison yard where the alleged assault occurred and he
witnessed the assault. After careful consideration of the supporting and opposing
memoranda, the Court DENIES Plaintiff’s request. As discussed below, Defendant
Benavides is not a proper substitute for Defendant George.
Rule 25(a)(1) of the Federal Rules of Civil Procedure provides: “If a
party dies and the claim is not extinguished, the court may order substitution of the
proper party.” A motion for substitution may be made by any party or by the
decedent’s successor or representative. Fed. Civ. P. R. 25(a)(1).
Under California law, “a cause of action against a decedent that
survives may be asserted against the decedent’s personal representative or, to the
extent provided by statute, against the decedent's successor in interest.” Cal. Civ.
Proc. Code § 377.40; see also Cal. Civ. Proc. Code § 377.41 (“On motion, the court
shall allow a pending action or proceeding against the decedent that does not abate to
be continued against the decedent’s personal representative or, to the extent
provided by statute, against the decedent’s successor in interest.”). The California
Probate Code defines a “personal representative” as an “executor, administrator,
administrator with the will annexed, special administrator, successor personal
representative, public administrator acting pursuant to Section 7660, or a person
who performs substantially the same function under the law of another jurisdiction
governing the person’s status.” Cal. Prob. Code § 58. A “successor in interest” is
defined as “the beneficiary of the decedent’s estate.” Cal. Civ. Proc. Code §
377.11.
Plaintiff seeks to substitute Defendant Benavides for decedent
Defendant George, stating that Benavides was the supervisor responsible for the
prison yard where the alleged assault took place and that Benavides witnessed the
assault. However, Plaintiff provides no relevant information explaining how
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Benavides is decedent George’s personal representative or successor in interest.
Given that California law allows substitution only by the decedent’s personal
representative or successor in interest and because Plaintiff fails to establish that
Defendant Benavides meets these qualifications, the Court DENIES Plaintiff’s
request that Benavides substitute decedent George.1
CONCLUSION
In light of the foregoing, the Court DENIES Plaintiff’s Motion for
Substitution of Defendant (Doc. 49).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 18, 2016
/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge
Johnson v. Bejinez, et al., 1:14-cv-01601-LJO-BMK, ORDER DENYING PLAINTIFF’S
MOTION FOR SUBSTITUTION OF DEFENDANT (Doc. 49).
1
The Court declines to construe the present motion as a motion to amend the complaint to assert
the claim against Defendant George (for denial of adequate medical care) against Defendant
Benavides. The claim against Defendant Benavides (for use of excessive force) and the claim
against Defendant George arose from separate events – namely, an assault and subsequent medical
care. The facts as alleged in the First Amended Complaint do not support a claim against
Defendant Benavides for denial of adequate medical care. Therefore, absent clear language that
Plaintiff seeks leave to amend the First Amended Complaint to assert the medical care claim
against Defendant Benavides, the Court declines to construe the present motion as a motion to
amend the complaint.
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