Nguyen v. California Prison Health Service, et al.

Filing 33

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/1/15 RECOMMENDING that plaintiffs Rule 25 motion (ECF No. 25 ) be denied and defendant Andreason be dismissed from this action pursuant to Rule 4(m). Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

NAM BA NGUYEN,

12

Plaintiff,

13
14
15

No. 2:13-cv-963-MCE-EFB P

v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA PRISON HEALTH
SERVICE, et al.,
Defendants.

16
17

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

18
19

U.S.C. § 1983.1 On July 22, 2015, the United States Marshal returned service unexecuted as to

20

defendant Andreason on the grounds that the defendant is deceased. ECF No. 21. Plaintiff now

21

moves to substitute parties pursuant to Rule 25 of the Federal Rules of Civil Procedure. ECF No.

22

25. Plaintiff requests that defendant Andreason be substituted with “Lotenstein,” reasoning that it

23

was actually Lotenstein, and not Andreason, who signed the response to plaintiff’s administrative

24

appeal. Id. As explained below, plaintiff’s motion should be denied and defendant Andreason

25

dismissed from this action.

26

/////

27
1

28

This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1).
1

1

The proper party for substitution under Rule 25(a)(1) is the legal representative of the

2

deceased party, such as the executor of the deceased’s will, or an administrator of his or her

3

estate. Mallonee v. Fahey, 200 F.2d 918, 919-20 (9th Cir. 1952). Lotenstein may not properly be

4

substituted for Andreason under Rule 25(a)(1), as he or she is not Andreason’s legal

5

representative.

6

In addition, Rule 25(d) allows for a decedent’s successor to be automatically substituted

7

as a party if the decedent was named as a party in his official capacity. Substitution is thus proper

8

where “the successor of an officer adopts or continues or threatens to adopt or continue the action

9

of his predecessor in enforcing a law averred to be in violation of the Constitution of the United

10

States.” Mallonee, 200 F.2d at 919-20. Plaintiff did not sue Andreason in his official capacity

11

and even if he had, plaintiff provides no basis for holding Lotenstein liable as Andreason’s

12

successor. Thus, substitution of Lotenstein is not proper under Rule 25(d).

13

Plaintiff has been warned that Rule 4(m) of the Federal Rules of Civil Procedure requires

14

that service of process be effected within 120 days of the filing of the complaint absent a showing

15

of good cause. ECF No. 23. Plaintiff has not identified a proper party for substitution of

16

defendant Andreason and has failed to establish the requisite good cause to avoid dismissal under

17

Rule 4(m).

18
19

Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s Rule 25 motion (ECF
No. 25) be denied and defendant Andreason be dismissed from this action pursuant to Rule 4(m).

20

These findings and recommendations are submitted to the United States District Judge

21

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

22

after being served with these findings and recommendations, any party may file written

23

objections with the court and serve a copy on all parties. Such a document should be captioned

24

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

25

/////

26

/////

27

/////

28

/////
2

1

within the specified time may waive the right to appeal the District Court’s order. Turner v.

2

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

3

DATED: December 1, 2015.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3