Consiglio v. Brown et al

Filing 25

SUA SPONTE ORDER regarding Substitution of Party sued in their official capacity; Brandon Price substituted for Audrey King, signed by Magistrate Judge Stanley A. Boone on 12/6/17. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SAM CONSIGLIO, JR.,
Plaintiff,

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v.
EDMUND G. BROWN, et al.,
Defendants.

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Case No.: 1:16-cv-01268-AWI-SAB (PC)
SUA SPONTE ORDER REGARDING
SUBSTITUTION OF PARTY SUED IN THEIR
OFFICIAL CAPACITY
[ECF Nos. 23, 24]

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Plaintiff Sam Consiglio, Jr., is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. This case proceeds against Defendants Edmund Brown, Governor of the

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State of California, Pamela Ahlin, Director of the California Department of State Hospitals, and

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Audrey King, Executive Director of Department of State Hospitals-Coalinga (“DSH-C”), in their

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official capacities, on Plaintiff’s claim that the prohibitions in 9 C.C.R. § 891 and 9 C.C.R. § 4350

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amount to punishment in violation of the Fourteenth Amendment.

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On November 14, 2017, a waiver of service of summons was filed by defense counsel. The

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waiver was executed by counsel for Brandon Price on November 9, 2017, with a notation stating that

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Brandon Price was appearing in place of Defendant King, who has now retired from her position.

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(ECF No. 23)

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On November 22, 2017, a copy of the waiver and the Form USM-285 was returned, showing

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that Brandon Price, Executive Director of DSH-C, was served in place of Defendant King. Plaintiff

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provided information in the USM-285 form that at the time this action was filed, Audrey King was the

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Executive Director of DSH-C, but has since retired, and to his understanding, Brandon Price has
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replaced her as Executive Director. (ECF No. 24.) The request to waive was sent by the United States

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Marshal on August 1, 2017. (Id. at 2.)

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Defendant King is the former Executive Director of DSH-C, who was sued in her official

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capacity. Under Federal Rule of Civil Procedure 25, when a public officer who has been sued in his or

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her official capacity leaves office, “[t]he officer’s successor is automatically substituted as a party.”

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Fed. R. Civ. P. 25(d). “Later proceedings should be in the substituted party’s name, but any misnomer

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not affecting the parties’ substantial rights must be disregarded. The court may order substitution at

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any time, but the absence of such an order does not affect the substitution.” Id.
Therefore, Brandon Price is automatically substituted for Defendant King. The Clerk of the

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Court will be directed to update the docket to reflect this automatic substitution of a party.

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Accordingly, the Court HEREBY ORDERS that:

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1.

Pursuant to Federal Rule of Civil Procedure 25(d), “Brandon Price” is automatically

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substituted for “Audrey King” as the Defendant Executive Director of DSH-C, sued in their official

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capacity in this action; and
2.

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The Clerk of the Court is respectfully directed to update the docket to reflect this

substitution of parties.

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IT IS SO ORDERED.

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Dated:

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December 6, 2017
UNITED STATES MAGISTRATE JUDGE

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