Archuleta v. Grewal et al

Filing 28

ORDER DISMISSING CASE. Signed by Judge James Ware on 3/16/12. (sis, COURT STAFF) (Filed on 3/16/2012) (Additional attachment(s) added on 3/16/2012: # 1 Certificate/Proof of Service) (sis, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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RICHARD ARCHULETA,
Plaintiff,

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vs.

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INDERJIT GREWAL, et. al.,
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Defendants.
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No. C 10-02367 JW (PR)
ORDER OF DISMISSAL

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Plaintiff Richard Archuleta filed a pro se complaint under 42 U.S.C § 1983

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alleging that medical personnel at the Correctional Training Facility in Soledad,

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California, were deliberately indifferent to his serious medical needs. Doc #1. For the

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reasons set forth below, this action is DISMISSED.

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DISCUSSION

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On September 23, 2011, defendants filed a declaration that stated that on July 16,

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2011, plaintiff’s sister had contacted them and indicated that she had received

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defendants’ declaration in lieu of reply and would seek legal representation. Doc. #23

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at ¶ 4. Defendants further stated that on September 16, 2011, their summary judgment

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motion addressed to plaintiff was returned to them with “REFUSED” and “Deceased”

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stamped on the envelope. Id. at ¶ 5.

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In general, the law of the forum state determines whether a section 1983 action

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survives or is extinguished upon the death of a party. See 42 U.S.C. § 1988(a);

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Robertson v. Wegmann, 436 U.S. 584, 592–595 (1978). Under California law,

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plaintiff's section 1983 damages claims survive his death. See Cal. Civ. Proc. § 377.20

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(“Except as otherwise provided by statute, a cause of action for or against a person is

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not lost by reason of the person's death, but survives subject to the applicable limitations

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period.”); Cal. Civ. Proc. § 377.21 (“A pending action ... does not abate by the death of

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a party if the cause of action survives.”); cf. In re Estate of Ferdinand Marcos, Human

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Rights Litig., 25 F.3d 1467, 1476 (9th Cir.1994) (noting that Eighth Amendment claims
and 1983 actions survive the death of a party). A pending action asserting surviving

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For the Northern District of California

United States District Court

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claims can be continued by the plaintiff's personal representative or successor in

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interest, as defined by the California Probate Code. See Cal. Civ. Proc. § 377.40

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(“Subject to [the section of the Probate Code governing creditor claims,] a cause of

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action against a decedent that survives may be asserted against the decedent’s personal

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representative or, to the extent provided by statute, against the decedent’s successor in

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interest.”); Smith v. Fontana, 818 F.2d 1411, 1416–1417 (9th Cir.1987) (applying

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California survivorship law to hold that a section 1983 claim could be asserted by the

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decedent's estate), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199

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F.3d 1037 (9th Cir.1999) (en banc). When a party dies and the claim is not

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extinguished, the court may order substitution of the deceased party with the proper

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legal representative. Fed. R. Civ. Proc. 25(a); Hilao v. Estate of Marcos, 103 F.3d 762,

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766 (9th Cir. 1996).

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On October 7, 2011, the court ordered defendants to file a “Statement of Fact of

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Death” of the deceased party on the non-party successors or representatives. Doc. #24.

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The court ordered service of the “Statement of Fact of Death” to be effected in the

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manner provided in Fed. R. Civ. Proc. 4 for service of a summons, as required by Fed.

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R. Civ. Proc. 25(a)(3). Id.; see also Fed. R. Civ. Proc. 25(a)(3) (“A statement noting

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death must be served [on non-parties as provided in Rule 4].”); Barlow v. Ground, 39

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F.3d 231, 233 (9th Cir. 1994).

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On October 26, 2011, at 1:00 p.m., defendants personally served a copy of the

Lane #D, Green Bay, WI 54304, in accordance with Fed. R. Civ. Proc. 4(e)(2)(A). See

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Fed. R. Civ. Proc. 4(e)(2)(A) (“an individual . . . may be served in a judicial district of

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the United States by: . . . (2)(A) delivering a copy of the summons and of the complaint

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to the individual personally . . .); see also Barlow, 39 F.3d at 233 (“non-party successors

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or representatives of the deceased party must be served the suggestion of death in the

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manner provided by Rule 4 for the service of a summons.”) (internal citation omitted).

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For the Northern District of California

Statement of Fact of Death on Ms. Beland Rand n.k.a Bellin Archuleta, at 818 Marvelle

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United States District Court

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Personal service on Ms. Rand (or Ms. Archuleta) complied with the requirements set

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forth in Fed. R. Civ. Proc. 25 and commenced the running of the 90 day period for

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substitution motions set forth in Rule 25(a)(1). See Fed. R. Civ. Proc. 25(a)(1); see also

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Barlow, 39 F.3d at 233.

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More than ninety days have passed since Ms. Rand (or Ms. Archuleta) was

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personally served the Statement of Notice of Death. No motion for substitution has

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been filed by a successor or representative of plaintiff. Accordingly, the court must

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dismiss this action. See Fed. R. Civ. Proc. 25(a)(1) (“If the [substitution] motion is not

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made within 90 days after service of a statement noting the death, the action by or

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against the decedent must be dismissed.”) (emphasis added).

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For the reasons stated above, this action is DISMISSED in accordance with Fed.

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R. Civ. Proc. 25. The Clerk is directed to terminate any pending motions as moot and

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close the file.

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IT IS SO ORDERED.

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DATED: March 16, 2012
JAMES WARE
United States District Chief Judge

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