Shakur v. Fontaine et al
RULING granting 23 Motion to Substitute Party. ; granting 26 Motion to Withdraw ; denying 29 Motion to Bar proceedings until discovery is completed. Signed by Judge Janet C. Hall on 8/22/2011. (Oliver, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MECCA ALLAH SHAKUR,
DAVID FONTAINE, et al.,
CASE NO. 3:10-CV-1381 (JCH)
AUGUST 22, 2011
RULING ON PLAINTIFF’S MOTIONS TO SUBSTITUTE PARTY [Doc. No. 23] AND
TO BAR PROCEEDINGS UNTIL DISCOVERY IS COMPLETED [Doc. No. 29] AND
DEFENDANTS’ MOTION TO WITHDRAW ADMISSIONS [Doc. No. 26]
The plaintiff brings this civil rights action against defendants David Fontaine,
Lieutenant Fisher, Warden Murphy and Counselor Lewis. The plaintiff now moves to
substitute the estate of defendant Fisher as a defendant and to preclude the
defendants from filing a motion to dismiss or for summary judgment until he completes
discovery. The defendants move to withdraw their admissions that were deemed
admitted when they did not respond to the requests for admission within the permissible
time period. For the reasons that follow, the plaintiff’s motion to substitute is granted
and his motion to bar proceedings is denied. The defendants’ motion to withdraw
admissions is granted.
MOTION TO SUBSTITUTE PARTY [Doc. No. 23]
On April 25, 2011, the defendants filed a notice of suggestion of death on the
record indicating that defendant Fisher had died. In response, the plaintiff moves to
substitute the executor or administrator of the estate as a defendant and asks the court
to order counsel to provide him the home address and telephone number of defendant
The Supreme Court has held that, pursuant to 42 U.S.C. § 1988, the
survivorship of section 1983 claims is generally a question of state law, unless state law
is inconsistent with the federal policy underlying section 1983 claims. Robertson v.
Wegmann, 436 U.S. 584, 590 (1978). Under Connecticut law, the cause of action
survives against the executor or administrator of defendant Fisher’s estate. Conn. Gen.
Stat. § 52-599(b). The plaintiff has filed a motion to substitute defendant Fisher’s
executor or administrator and seeks the court’s assistance in ascertaining that person’s
The defendants do not object to the continuation of this action. The defendants
argue that substitution is not necessary because the Office of the Attorney General has
appeared on behalf of defendant Fisher and any monetary judgment against him would
be paid by the state in accordance with the state indemnification statute, Conn. Gen.
Stat. § 5-141d. Counsel does not intend to seek dismissal of the claims against
defendant Fisher based on the absence of a substitute defendant. Thus, the
defendants argue that there is no need to substitute the executor or administrator of
defendant Fisher’s estate as a defendant to ensure payment of any judgment or to
release to the plaintiff personal information regarding defendant Fisher’s family.
The defendants do not cite any caselaw excusing substitution. Because
Connecticut law provides that the case will survive against the executor or administrator
of defendant Fisher’s estate, the plaintiff’s motion to substitute that person as a
defendant is granted. Because the plaintiff is an inmate, the court will not order the
release of defendant Fisher’s home address and telephone number to the plaintiff.
Rather, counsel is directed to file the name of the executor or administrator of
defendant Fisher’s estate and to file, under seal, an address at which the court may
effect service on the executor or administrator. The address will not be released to the
plaintiff. If, as is suggested in the opposition papers, counsel intends to continue
defending the claims against defendant Fisher, she need not file an address but shall
file her appearance on behalf of the executor or administrator within thirty days from the
date of this order.
MOTION TO BAR PROCEEDINGS [Doc. No. 29]
The plaintiff asks the court to preclude the defendants from filing a dispositive
motion until after the plaintiff completes discovery. The Federal Rules of Civil
Procedure contain procedures the plaintiff can follow should the defendants file a
motion for summary judgment before the plaintiff has completed discovery. See Fed.
R. Civ. P. 56(d) (describing procedure where facts are unavailable to non-moving
party). No further prohibitions are needed. The plaintiff’s motion is denied.
MOTION TO WITHDRAW ADMISSIONS [Doc. No. 26]
The defendants move to withdraw responses to requests for admission that were
deemed admitted under Rule 36, Fed. R. Civ. P. They state that they served their
responses at the time they filed this motion.
Under Rule 36, once matters are admitted by operation of the rule because a
party fails to respond to a request for admissions within thirty days, the only recourse
available is a motion to withdraw the admission under Rule 36(b). Such a motion may
be granted if that “would promote the presentation of the merits of the action and if the
court is not persuaded that it would prejudice the requesting party in maintaining or
defending the action on the merits.” Fed. R. Civ. P. 36(b). This provision for withdrawal
of an admission reflects the importance placed on resolving an action on its merits.
In opposition to the motion, the plaintiff challenges the newly-served responses
to the requests for admission. Withdrawal of an admission requires the party who had
obtained it to prove the matter. This requirement does not, without more, constitute
prejudice, within the meaning of Rule 36(b). See Security Ins. Co. of Hartford v.
Trustmark Ins. Co., 217 F.R.D. 296, 298 (D. Conn. 2002) (citations omitted). The
plaintiff has made no showing that his presentation of the merits of the case would be
prejudiced by permitting the defendants to withdraw their admissions1 and no such
prejudice is apparent from the record before the court.
The plaintiff’s Motion to Substitute Party [Doc. No. 23] is GRANTED. Counsel is
directed to file the name of the executor or administrator of defendant Fisher’s estate
and to file, under seal, an address at which the court may effect service on the executor
or administrator. If counsel intends to represent the estate in this matter, she may file
an appearance in lieu of the address. Counsel shall file her response to this Order
within thirty (30) days.
In his memorandum, the plaintiff recites other discovery problems unrelated to
the requests for admission and mistakenly states that the court granted his motion to
compel. In fact, the court denied the motion to compel as moot when it entered default
against the defendants. See Doc. No.10. Any argument that the defendants have not
complied with his motion to compel is without merit.
The plaintiff’s Motion to Bar Proceedings until Discovery is Completed [Doc. No.
29] is DENIED. The defendants’ Motion to Withdraw Admissions [Doc. No. 26] is
SO ORDERED this 22nd day of August 2011, at Bridgeport, Connecticut.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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