Gates v. Wells et al

Filing 29

ORDER denying 21 Motion to Substitute Party. Signed by Judge Miranda M. Du on 6/4/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RUSSELL GATES,

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Case No. 3:13-cv-00228-MMD-VPC
Plaintiff,

ORDER

v.
JEFF WELLS, et al.,
Defendants.
Before the Court is a motion to substitute filed by Maricela Gates (“Gate”). (Dkt.
no. 21.) Defendants have filed an opposition (dkt. no. 22.)

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Plaintiff Russell Gates initiated this action under 42 U.S.C. § 1983 on May 3,

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2013. (Dkt. no. 1.) Following screening, the Court permitted Plaintiff’s claims for

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deliberate indifference to a serious medical need under the Eighth and Fourteenth

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Amendments to proceed. (Dkt. no. 4.)

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On October 9, 2014, Defendants filed a suggestion of death on the record with a

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copy of Plaintiff’s death certificate. (Dkt. no. 20; dkt. no. 20-1.) On November 3, 2014,

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Gates filed her motion to substitute herself in place of Plaintiff. Defendants oppose

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substitution, contending that Gates has failed to demonstrate that she is an official

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representative of Plaintiff’s estate. (Dkt. no. 22.)

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Gates requests to be substituted in place of Plaintiff because of his death, citing

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to Federal Rule of Civil Procedure 25. Rule 25(a)(1) provides that “[i]f a party dies and

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the claim is not extinguished, the court may order substitution of the proper party. A

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motion for substitution may be made by any party or by the decedent’s successor or

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representative. If the motion is not made within ninety (90) days after service of a

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statement noting the death, the action by or against the decedent must be dismissed.”

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Fed. R. Civ. P. 25(a)(1). Rule 25 thus creates a procedure that allows for those who

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have an interest in the litigation or those with the authority to act on behalf of the

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decedent to substitute in. See Barlow v. Ground, 39 F.3d 231, 233-34 (9th Cir .1994).

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The Court must determine whether Gates is a proper party for substitution under Rule

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25.

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Defendants argue that under Nevada law, only an official representative of the

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decedent has a right to bring a survival action. They contend that Gates is not a proper

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party for substitution because she has not demonstrated that she is Plaintiff’s official

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representative. The Court agrees.

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Whether a § 1983 claim that accrued before death survives the decedent

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depends on whether state law authorizes a survival action. See Smith v. City of

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Fontana, 818 F.2d 1411, 1416 (9th 1987) (overruled on other grounds by Hodgers-

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Durgin v. de la Vina, 199 F.3d 1077 (9th Cir. 199). Nevada’s survival action statute

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provides that “no cause of action is lost by reason of the death of any person, but may

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be maintained by or against the person’s executor or administrator.” NRS § 41.100(1);

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Schmutz v. Bradford, No. 58612, 2013 WL 7156301, at *2 (Nev. Dec. 19, 2013). Thus,

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Nevada law extends the right to bring a survival action only to the official representative

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of the decedent’s estate.

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Gates does not state that she is the authorized representative of Plaintiff’s estate.

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In fact, Gates’ motion does not identify her relationship with Plaintiff. Gates has not

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demonstrated that she is the proper party for substitution under Rule 25.

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It is therefore ordered that the motion to substitute (dkt. no. 21) is denied.

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DATED THIS 4th day of June 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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