Bratton v. Broomfield

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 11 RONALD W. BRATTON, Case No. 20-cv-03885 BLF (PR) 12 Plaintiff, ORDER DIRECTING DEFENDANTS’ COUNSEL TO FILE 13 v . NOTICE OF SUGGESTION OF DEATH OF DEFENDANT 14 S.R. ALBRITTON, et. al., SANDLER AND SERVE ON ALL PARTIES 15 Defendants.

18 Plaintiff, a state inmate filed instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against personnel at San Quentin State Prison. Dkt. No. 1. On August 22, 2022, the Court found the complaint, liberally construed, stated cognizable claims and ordered the matter served on Defendants. Dkt. No. 22. The order directed the Clerk to send Requests for Waiver of Service of Summons to Defendants S. R. Albritton, Dr. S.

23 Garrigan, Dr. Sandler, A. Maxfield, and N. Smith. Id. at 4. On September 26, 2022, the CDC filed a reported of E-Service Waiver under seal, indicating that Dr. Sandler (Psychologist-Clinical) is deceased. Dkt. No. 23. Defendants Albritton, Garrigan, Maxfield, and Smith have been served, and counsel has appeared on their behalf. Dkt.

27 Nos. 25, 27.

1 || substitution of the proper party. A motion for substitution may be made by any party or by || the decedent’s successor or representative. If the motion is not made within 90 days after || service of a statement noting the death, the action by or against the decedent must be || dismissed.” Fed. R. Civ. P. 25(a). Two things are required of a party for the running of || the 90 day period to commence: a party must 1) formally suggest the death of the party on || the record, and 2) serve the suggestion of death on the other parties and nonparty || successors or representatives. Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). A || party may be served the suggestion of death by service on his or her attorney, Fed. R. Civ. g || P. 5(b), while non-party successors or representatives of the deceased party must be served || the suggestion of death in the manner provided by Rule 4 for the service of a summons.

11 || Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232-34. Rule 25 requires dismissal absent a motion for substitution within the 90 day period only if the statement of death was E 13. || properly served. Unicorn Tales, Inc., v. Bannerjee, 138 F.3d 467, 469-71 (2d Cir. 1998).

S 14 The CDCR’s notice does not constitute a formal suggestion of death for Defendant 15 || Sandler. Accordingly, Defendants’ counsel is directed to file a formal suggestion of death || no later than twenty-eight (28) days from the date this order is filed and serve it on the 17 || other parties and nonparty successors or representatives of Defendant Sandler’s estate.

5 18 || Counsel shall file notice of service along with the suggestion of death.

19 After a successor or representative of deceased Defendant Sandler has been located, || Plaintiff must move for substitution no later than twenty-eight (28) days after receiving 71 notice of the successor or representative of Defendant Sandler’s estate.

22 IT ISSO ORDERED || Dated: _ November 8, 2022 __ fob Lay Acratn/ 54 BETH LABSO FREEMAN United States District Judge || PROSEBLFICR 200388sBration deccaseddet