Gustard v. Harris et al

Filing 70

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/30/2019 DENYING as unnecessary plaintiff's 43 motion to substitute Laura Zuniga in place of McCauley; DENYING plaintiff's 43 motion to substitute Stacy Townsend in his official capacity for Matthew McKinney; and DENYING plaintiff's 42 motion to extend time for serving the complaint. (Yin, K)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CHRISTOPHER GUSTARD, 11 12 13 14 No. 2:17-cv-0012-TLN-EFB P Plaintiff, v. ORDER KAMALA HARRIS, et al., Defendants. 15 16 Plaintiff is a federal inmate proceeding without counsel in this action brought under 42 17 U.S.C. § 1983. Following screening and the filing of an amended complaint, claims against three 18 defendants remain in the action: Morazzini, McKinney, and McCauley. ECF No. 34. These 19 claims include claims against McCauley in his official capacity as executive officer of a state 20 agency and claims against McKinney in his individual capacity only. ECF No. 30 at 15-41. 21 There is no dispute that McCauley and McKinney are no longer employed by the agency in 22 question. ECF Nos. 43, 52 at 6. Plaintiff has therefore filed a motion to substitute parties. ECF 23 No. 43. He seeks to substitute Laura Zuniga in place of defendant McCauley, and Stacy 24 Townsend in place of defendant McKinney. 25 As to claims against the defendants in their official capacities, no such motion is 26 necessary. The substitution of successor in office as to such claims is automatic by operation of 27 law. As to individual capacity claims, plaintiff has shown no basis for substituting any defendant 28 as to any such claims. 1 1 2 3 4 5 6 Federal Rule of Civil Procedure 25(d) provides for automatic substitution of parties when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. . . . Later proceedings should be in the substituted party’s name, but any misnomer not affecting the parties’ substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution. Fed. R. Civ. P. 25(d). McCauley has left office and was replaced by Laura Zuniga.1 Accordingly, Laura Zuniga 7 is automatically substituted in place of McCauley as to all claims plaintiff asserts against 8 McCauley in his official capacity. However, McCauley remains as a defendant with regard to 9 claims asserted against him in his individual capacity. 10 As to McKinney, contrary to plaintiff’s assertions in his motion, the amended complaint 11 asserts only individual capacity claims against McKinney. ECF No. 30 at 9 (“Matthew 12 McKinney is sued in his individual capacity.”); see also id. at 15-41 (asserting a variety of claims 13 against McKinney, all in his individual capacity). Thus, Rule 25(d) does not apply to any claims 14 asserted against McKinney and there is no basis to substitute Stacy Townsend. 15 Plaintiff has also filed a motion to extend the time for serving the complaint on 16 defendants. ECF No. 42. All existing defendants have returned executed waivers of service. 17 ECF Nos. 41, 54. As Zuniga’s substitution is automatic and, having been sued in her official 18 capacity, it appears that she will be represented by existing counsel (the state attorney general’s 19 office) and there is no need to serve the complaint on her. Thus, the request to extend time is 20 denied as unnecessary. 21 Plaintiff also requests clarification of the docket. ECF No. 68. He states that several 22 documents he recently filed with the court (a request for judicial notice, a declaration, and an 23 opposition to a request for judicial notice filed by some defendants) do not appear on the docket. 24 These documents were filed together with plaintiff’s opposition to McKinney’s and McCauley’s 25 motion to dismiss and they appear on the docker at ECF No. 64, pages 22, 27, and 32. 26 27 28 1 Plaintiff has identified Zuniga as McCauley’s successor with an article published by the California Architect’s Board. ECF No. 42 at 14. The court grants plaintiff’s request for judicial notice of the article to the extent that it identifies Zuniga as the current Executive Officer of the Board’s Landscape Architects Technical Committee, a fact not disputed by defendants. 2 1 Accordingly, it is hereby ORDERED that: 2 1. Plaintiff’s motion to substitute Laura Zuniga in place of McCauley (ECF No. 43) is 3 DENIED as unnecessary. Pursuant to Rule 25(d) Laura Zuniga is automatically 4 substituted in place of McCauley as to all official capacity claims asserted against 5 McCauley. McCauley remains a defendant as to the individual capacity claims against 6 him. 7 8 9 10 2. Plaintiff’s motion to substitute Stacy Townsend in his official capacity for Matthew McKinney (ECF No. 43) is DENIED. 3. Plaintiff’s motion to extend time for serving the complaint (ECF No. 42) is DENIED. DATED: July 30, 2019. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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