Hall v. Allison

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EUGENE SAMUEL HALL, Case No. 21-cv-00103-HSG

8 Plaintiff, DENYING AS MOOT MOTION TO VACATE SUMMARY JUDGMENT 9 v. DEADLINE; GRANTING MOTION TO STAY DISCOVERY; DISMISSING 10 KATHLEEN ALLISON, et al., DEFENDANT STEVEN THARRATT 11 Defendants. Re: Dkt. No. 33

13 14 Defendants Kathleen Allison, Joseph Bick, Dean Borders, Ron Broomfield, Ron Davis, 15 Ralph Diaz, L. Escobell, and A. Pachynski filed a motion to dismiss Plaintiff’s First Amended 16 Complaint (FAC) on November 8, 2021. (Docket No. 32). On November 9, 2021, the same 17 Defendants filed a motion to vacate the summary judgment deadline and stay discovery. (Docket 18 No. 33). On December 1, 2021, Defendant Clark Kelso, who previously filed a motion to dismiss 19 Plaintiff’s FAC on July 27, 2021 (Docket No. 23), joined the motion. (Docket No. 34). 20 First, Defendants’ motion to vacate the summary judgment deadline is DENIED AS 21 MOOT. A summary judgment briefing schedule will issue, if applicable, upon resolution of 22 Defendants’ pending motions to dismiss. 23 Second, Defendants’ unopposed motion to stay discovery is GRANTED. Discovery is 24 stayed until further order. 25 Third, the Court notes that service was ordered upon Dr. Steven Tharratt on May 6, 2021, 26 through the California Department of Corrections and Rehabilitation’s (CDCR) e-service program 27 for civil rights cases from prisoners in CDCR custody. (Docket No. 12). On August 10, 2021, the 1 indicated that Dr. Tharratt did not waive personal service because he was deceased. The Court 2 instructed Plaintiff to “inform the court whether he still wishes to maintain his suit against the 3 now-deceased party” within 14 days. (Docket No. 26). On September 13, 2021, the Court noted 4 that Plaintiff had not responded and again ordered Plaintiff “to inform the court whether he will 5 maintain his suit against Dr. Tharratt” within 14 days. (Docket No. 29). Plaintiff has not 6 responded. 7 The Attorney General has represented to another court in this district in another case that 8 “[t]o the best of [the Attorney General’s] knowledge, Mr. Tharratt died on August 20, 2020.” See 9 Case No. 3:20-cv-07845-CRB, Dkt. No. 37, 37-1. The Court takes judicial notice pursuant to 10 Federal Rule of Evidence 201 of the filing in that case, which attaches Mr. Tharratt’s obituary 11 published on the California Department of Corrections and Rehabilitation website on October 6, 12 2020, available at https://www.cdcr.ca.gov/insidecdcr/2020/10/06/dr-robert-tharratt-longtime- 13 cchcs-medical-director-passes-away/. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 14 741, 746 n.6 (9th Cir. 2006) (federal courts “may take judicial notice of court filings and other 15 matters of public record”); Bullock v. Johnson, No. CV 15-2070 PA (AS), 2018 WL 5880736, at 16 *13 n.19 (C.D. Cal. Aug. 10, 2018), report and recommendation adopted, No. CV 15-2070 PA 17 (AS), 2018 WL 4791089 (C.D. Cal. Oct. 3, 2018) (taking judicial notice of CDCR obituary). 18 Mr. Tharratt’s death therefore preceded the filing of this action on January 7, 2021. “[A] 19 party cannot maintain a suit on behalf of, or against, or join, a dead person, or in any other way 20 make a dead person (in that person’s own right, and not through a properly represented estate or 21 successor) party to a federal lawsuit.” LN Mgmt., LLC v. JPMorgan Chase Bank, N.A., 957 F.3d 22 943, 955 (9th Cir. 2020). Dr. Tharratt was therefore not an appropriately named Defendant at the 23 onset of this litigation. Any claim must be made against his estate in accordance with California 24 Probate Code section 9350 et seq. 25 Defendant Dr. Steven Tharratt is therefore DISMISSED from this action. If Plaintiff 26 wishes to proceed with a claim against the Estate of Dr. Steven Tharratt, he must file a claim 27 against the estate in accordance with the provisions of California Probate Code sections 9350- 1 complaint adding the Estate of Dr. Steven Tharratt as a defendant in this case. 2 This order terminates Docket No. 33. 3 IT IS SO ORDERED. 4 || Dated: 2/11/2022 ° HAYWOOD S. GILLIAM, JR. 6 United States District Judge 7 8 9 10 11 a 12

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