Roberts v. Roseville Police Department

Filing 26

ORDER signed by Magistrate Judge Dale A. Drozd on 1/13/2014 ORDERING that the administrator of the estate's 22 motions for order substituting personal representative and for leave to file supplemental complaint are DENIED without prejudice to their re-filing it in accordance with this order within thirty days. Defendants' 24 request for dismissal is DENIED without prejudice. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BLANCHE A. ROBERTS,

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Plaintiff,

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v.

No. 2:11-cv-02207 TLN DAD (PS)

ORDER

ROSEVILLE POLICE DEP’T, et al.,

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Defendants.

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Plaintiff, proceeding in pro per, filed this civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff alleges that defendants unlawfully detained her in violation of her constitutional rights

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under the Fourth Amendment, and that the policies of the municipal defendants caused the

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violation of her constitutional rights. (ECF No. 9.) On May 15, 2013, the court was notified of

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plaintiff’s death through the filing of defendants’ statement noting death. (ECF No. 16.)

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Presently pending before the court are the following: (1) Personal Representative of the Estate of

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Blanche A. Roberts’ August 13, 2013 motion to substitute for deceased plaintiff and motion for

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leave to file “supplemental complaint” (ECF No. 22); and (2) defendants’ request for dismissal

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pursuant to Fed. R. Civ. P. 25 (ECF No. 24). For the reasons discussed below, both the decedent

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plaintiff’s personal representative’s motion to substitute and motion to file supplemental

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complaint as well as defendants’ request for dismissal will be denied without prejudice.

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On May 15, 2013, defendants filed a statement noting death and requested permission to

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serve the statement on plaintiff’s last known address, or on the person listed as her spouse on her

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death certificate.1 (ECF No. 15.) On June 6, 2013, this court issued an order granting

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defendants’ request and directing defendants to serve the statement noting death on both

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plaintiff’s last known address and the person listed as her spouse on her death certificate. (ECF

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No. 19.) Defendants served the statement noting death on June 7, 2013. (ECF No. 20.)

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Accordingly, a motion for substitution by the decedent plaintiff’s successor or representative was

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due to be filed within 90 days, specifically by September 5, 2013. Fed. R. Civ. P. 25(a)(1).
On August 13, 2013, the administrator of decedent plaintiff’s estate, Charles Harden (“the

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administrator of the estate”), filed motions with the court seeking to substitute in as the personal

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representative of plaintiff and for leave to file a “supplemental complaint.” (ECF No. 22.)

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However, Mr. Harden is not an attorney and an attorney did not file the motions on his behalf.

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The motions were noticed incorrectly for a hearing before the assigned District Judge and that

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incorrectly noticed hearing was vacated by court order on August 15, 2013. (ECF No. 23.) At

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that time Mr. Harden was provided the opportunity to properly re-notice the motions before the

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undersigned however he failed to do so. (Id.)

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On September 16, 2013, defendants filed a request for dismissal. (ECF No. 24.) Therein

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defendants aver that Mr. Harden cannot maintain this action in a representative capacity.

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Defendants further argue that because Mr. Harden failed to properly re-notice the motion for

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substitution by the September 5, 2013 deadline, the action should be dismissed pursuant to

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Federal Rule of Civil Procedure 25. (ECF No. 24 at 3.) Mr. Harden did not file a response to

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defendant’s request for dismissal.

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Defendants are correct that the administrator of the estate cannot proceed pro se in

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representing the decedent plaintiff’s estate in this action. See, e.g., Simon v. Hartford Life and

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Accident Ins. Co., 546 F.3d 661, 664-65 (9th Cir. 2008) (“[C]ourts have routinely adhered to the

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general rule prohibiting pro se plaintiffs from pursuing claims on behalf of others in a

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The court notes that defendants do not dispute that under California law plaintiff’s claims in
this action survive her death. (ECF No. 15.)
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representative capacity.”) (citing 28 U.S.C. § 1654). However, notwithstanding the error in

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setting the hearing on his motion before the assigned District Judge, the administrator of

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plaintiff’s estate timely filed a motion to substitute before the September 5, 2013 deadline. Thus,

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defendants’ request for dismissal will be denied without prejudice.

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Because the administrator of plaintiff’s estate cannot represent the decedent plaintiff in

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this action, the motions to substitute and to file a supplemental complaint will also be denied

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without prejudice. However, the court will provide the administrator of plaintiff’s estate an

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additional thirty days to retain counsel to re-file the motions on his behalf. The administrator of

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plaintiff’s estate is hereby cautioned that failure to timely file a motion to substitute in accordance

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with this order will result in a recommendation that this action be dismissed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The administrator of the estate’s motions for order substituting personal representative

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and for leave to file supplemental complaint (ECF No. 22) are denied without prejudice to their

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re-filing it in accordance with this order within thirty days; and

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2. Defendants’ request for dismissal (ECF No. 24) is denied without prejudice.
Dated: January 13, 2014

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