Hightower v. Birdsong et al

Filing 36

ORDER GRANTING PLAINTIFF EXTENSION OF TIME TO FILE HIS OPPOSITION AND MOTION FOR SUBSTITUTION; DIRECTING DEFENDANT'S COUNSEL TO COMPLY WITH RULE 25; AND SETTING NEW BRIEFING SCEHDULE re 31 Reply to Opposition/Response filed by Larry Lewis Hightower. Signed by Judge Yvonne Gonzalez Rogers on 5/15/17. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 5/15/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LARRY LEWIS HIGHTOWER,

Case No. 15-cv-03966-YGR (PR)

Plaintiff,
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v.
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DR. EDWARD BIRDSONG,
Defendant.

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ORDER GRANTING PLAINTIFF
EXTENSION OF TIME TO FILE HIS
OPPOSITION AND MOTION FOR
SUBSTITUTION; DIRECTING
DEFENDANT’S COUNSEL TO
COMPLY WITH RULE 25; AND
SETTING NEW BRIEFING SCHEDULE

Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42
U.S.C. § 1983. He alleged a claim of deliberate indifference to medical needs against Defendant

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United States District Court
Northern District of California

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SVSP Physician Edward Birdsong, M.D., stemming from severe complications from treatment

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Plaintiff received from February and April 2013. Dkt. 1 at 3.

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Defendant has moved for summary judgment, contending that he was not deliberately

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indifferent to Plaintiff’s serious medical needs, and that Defendant is entitled to qualified

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immunity. See Dkt. 24. To date, even after being granted an extension of time to do so, Plaintiff

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has not filed opposition to Defendant’s motion for summary judgment.

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Instead, Plaintiff has filed a document entitled, “Plaintiff’s Reply to Defendant[’]s

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Opposition to Plaintiff[’]s Motion for Extension of Time to Respond to Motion for Summary

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Judg[]ment,” which the Court construes as yet another motion for an extension of time to file his

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opposition. Dkt. 31. To the extent that Plaintiff is requesting an extension to conduct further

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discovery, the Court in its January 10, 2017 Order previously denied such a request for a

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continuance pursuant to Federal Rule of Civil Procedure 56(d), which involves a procedure by

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which a party may avoid summary judgment when such party has not had sufficient opportunity to

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discover affirmative evidence necessary to oppose the motion. See Dkt. 30 at 1-3 (citing Garrett

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v. San Francisco, 818 F. 2d 1515, 1518 (9th Cir. 1987)). Therefore, for the same reasons stated in

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its January 10, 2017 Order, the Court DENIES such a request for a continuance pursuant to Rule

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56(d). However, the Court GRANTS Plaintiff another brief extension of time to file his

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opposition. The parties shall abide by the briefing schedule outlined below.

Also before the Court is Plaintiff’s March 9, 2017 filing entitled, “Letter of Intent and

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Amendment.” Dkt. 34. In that filing, Plaintiff informs the Court that Defendant Birdsong has

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passed away. Id. at 1. He then advises the Court that he intends to seek leave to amend his

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complaint to: (1) name the Warden of Salinas Valley State Prison and Secretary of the California

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Department of Corrections and Rehabilitation as Defendants; and (2) to substitute the Estate of

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Defendant Birdsong as a Defendant. See id. However, to date, Plaintiff has not filed any motion

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for substitution. Therefore, the Court GRANTS Plaintiff an extension of time to do so, as directed

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below.

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Finally, on April 17, 2017, counsel for Defendant Birdsong filed a document confirming
that Defendant Birdsong indeed passed away on February 9, 2017. Dkt. 35 at 1. In that

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United States District Court
Northern District of California

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document, Defendant’s counsel states that she has had “no contact with Dr. Birdsong’s family,

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successors or representatives.” Id. at 2. Defendant’s counsel further adds that she has “reviewed

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online records for Monterey County Superior Court but has located no probate proceedings for Dr.

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Birdsong’s estate.” Id.

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Federal Rule of Civil Procedure 25(a)(1) states as follows: “If a party dies and the claim is

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not extinguished, the court may order substitution of the proper party. A motion for substitution

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may be made by any party or by the decedent’s successor or representative.” Fed. R. Civ. P.

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25(a)(1). Rule 25(a)(1) also provides for the dismissal of a party if a motion for substitution is not

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made within ninety days after service of a statement noting that party’s death. Id. Two

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requirements are necessary for the running of the ninety-day period to commence: a party must

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(1) formally suggest the death of the party on the record, and (2) serve the suggestion of death on

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the other parties and nonparty successors or representatives. Barlow v. Ground, 39 F.3d 231, 233

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(9th Cir. 1994). Thus, a party may be served the suggestion of death by service on his or her

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attorney, see Fed. R. Civ. P. 5(b), while non-party successors or representatives of the deceased

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party must be served the suggestion of death in the manner provided by Rule 4 for the service of a

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summons, see Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232-34. Rule 25 requires dismissal

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absent a motion for substitution within the ninety-day period only if the statement of death was

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properly served. Unicorn Tales, Inc., v. Bannerjee, 138 F.3d 467, 469-71 (2d Cir. 1998).
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About three months have passed since the date of Defendant’s death. Defendant’s counsel

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must comply with the two requirements of Rule 25 set forth above. Defendant’s counsel is also

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directed to conduct a more reasonable investigation into the status of Defendant’s estate. If

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counsel is able to obtain the name and address of the representative of Defendant’s estate, the

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Court orders counsel to serve nonparty successors or representatives of Defendant with a

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suggestion of death in the manner required by Rule 25(a)(3), and to notify the Court by filing a

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proof of service reflecting of the name and address of the individual so notified, as well as the date

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of compliance, as directed below. See Fed. R. Civ. P. 25(a)(3).
CONCLUSION

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For the reasons outlined above, the Court orders as follows:

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United States District Court
Northern District of California

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1.

Plaintiff’s motion for an extension of time to file his opposition is DENIED in part

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and GRANTED in part. Dkt. 31. Plaintiff’s request for a continuance pursuant to Rule 56(d) is

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DENIED. However, the Court GRANTS Plaintiff another brief extension of time to file his

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opposition. The parties shall abide by the following briefing schedule:
a.

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shall file his opposition to Defendant’s motion for summary judgment.
b.

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No later than twenty-eight (28) days from the date of this Order, Plaintiff

Defendant shall file a reply no later than fourteen (14) days from the date

the opposition is filed.
c.

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circumstances.

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2.

No further extensions of time will be granted absent extraordinary

Counsel for Defendant must comply with the two requirements of Rule 25 by:

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(1) filing a formal notice of suggestion of death on the record; and (2) serving nonparty successors

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or representatives of Defendant with a suggestion of death in the manner required by Rule

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25(a)(3). Defendant’s counsel shall notify the Court by filing a proof of service reflecting of the

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name and address of the individual so notified, as well as the date of compliance. If counsel is

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unable to obtain information about a successor or representative, counsel shall file a declaration in

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which counsel describes the efforts made to comply with this Order. In either case, counsel is

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directed to file one or the other, along with the formal notice of suggestion of death, within
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twenty-eight (28) days of the filing date of this Order.
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Plaintiff is GRANTED an extension of time to file a motion for substitution. He

may file a motion for substitution within twenty-eight (28) days of the filing date of this Order.
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All communications by the Plaintiff with the court must be served on Defendant’s

counsel, by mailing a true copy of the document to Defendant’s counsel.
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It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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and all parties informed of any change of address and must comply with the Court’s Orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: May 15, 2017
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YVONNE GONZALEZ ROGERS
United States District Judge

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