1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 EVAN RATCLIFF, 8 Case No.: 2:19-cv-01275-GMN-NJK Plaintiff(s), 9 ORDER v. 10 [Docket No. 45] SCOTT MATTINSON, et al., 11 Defendant(s). 12 13 Pending before the Court is Plaintiff’s motion to substitute parties. Docket No. 45. The 14 Court has considered Plaintiff’s motion, the response filed by Defendants Michael Minev and 15 Jennifer Nash (“Defendants”), and Plaintiff’s reply. Docket Nos. 45, 47, 48. The motion is 16 properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed more fully 17 below, the Court GRANTS in part Plaintiff’s motion. 18 I. BACKGROUND 19 On July 23, 2019, Plaintiff, who is proceeding pro se and is an inmate in the custody of the 20 Nevada Department of Corrections (“NDOC”), filed a complaint asserting Eighth and Fourteenth 21 Amendment claims against Defendants Medical Director Michael Minev, Director of Nursing 22 Scott Mattinson, and Associate Warden Jennifer Nash.1 Docket No. 1. On December 11, 2019, 23 United States District Judge Gloria M. Navarro issued a screening order and found that Plaintiff 24 stated colorable Eighth Amendment deliberate indifference to serious medical needs claims against 25 Defendants Minev, Mattinson, and Nash. Docket No. 12 at 8. Judge Navarro referred the matter 26 to the Court’s Inmate Early Mediation Program. Id. 27
28 1 Plaintiff filed an amended complaint on November 8, 2019. Docket No. 8. 1 On December 30, 2019, the Office of the Attorney General for the State of Nevada 2 (“Attorney General”) filed a limited notice of appearance on behalf of Defendants Minev, 3 Mattinson, and Nash for mediation purposes. Docket No. 13. On June 30, 2020, the Attorney 4 General filed a suggestion of death advising that Defendant Mattinson had died on June 10, 2020. 5 Docket No. 30. On July 7, 2020, the undersigned ordered Defendants to file either a notice and 6 proof of service on Defendant Mattinson’s successor or a declaration outlining the efforts made to 7 locate a successor. Docket No. 31. 8 On July 21, 2020, following unsuccessful mediation efforts, Judge Navarro ordered the 9 Attorney General to file a notice stating for which defendants it would accept service and to file 10 under seal the last-known-address of those defendants for whom it would not accept service. 11 Docket No. 35 at 2. On August 11, 2020, the Attorney General filed a notice advising that it would 12 accept service for Defendants Minev and Nash. Docket No. 36. 13 On August 31, 2020, the Attorney General filed a notice stating that it did not believe it 14 could comply with the Court’s order at Docket No. 31, due to ethical obligations pursuant to the 15 Nevada Rules of Professional Conduct (“NRPC”). See Docket Nos. 44, 44-1. On September 10, 16 2020, Plaintiff filed the instant motion to substitute parties, seeking to substitute Defendant Minev 17 for Defendant Mattinson. Docket No. 45 at 1. 18 II. LEGAL STANDARD 19 Rule 25(a)(1) provides:
20 If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be 21 made by any party or by the decedent’s successor or representative. 22 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 23 dismissed. 24 Fed.R.Civ.P. 25(a)(1).2 “Thus, when making a determination as to whether a motion to substitute 25 should be granted, the Court considers whether: (1) the motion is timely; (2) the claims pled are 26 extinguished; and (3) the person being substituted is the proper party.” McDonald v. Lauren, 2019 27 2 Unless otherwise noted, references to “Rules” refer to the Federal Rules of Civil 28 Procedure. 1 WL 699997, at *1 (W.D. Wash. Feb. 19, 2019). “Rule 25 leaves the substitution decision to the 2 trial court’s sound discretion.” Robbins v. Allied Glove Corp., 2012 WL 6090373, at *1 (D. Nev. 3 Dec. 5, 2012). 4 III. ANALYSIS 5 Plaintiff submits that substituting Defendant Minev for Defendant Mattinson is proper 6 because Defendant Minev “is responsible for his staffs [sic] negative behavior, or failure to treat a 7 patient properly.” Docket No. 45 at 1. Plaintiff submits that Defendant Minev, as medical director, 8 is responsible for ensuring that all inmates receive adequate medical care. Id. Plaintiff submits 9 that he did not receive adequate medical care “even though Defendant Minev was made aware of 10 the violation.” Id. Plaintiff further submits that the instant motion complies with Rule 25. Id. 11 In response, Defendants submit that Plaintiff’s motion to substitute parties does not comply 12 with Rule 25 because Defendant Mattinson “is not a proper party to this action[.]” Docket No. 47 13 at 4. Defendants submit that Defendant Mattinson cannot be substituted for two reasons: 14 Defendant Mattinson was never served with a summons and complaint, and the Attorney General 15 never accepted service on Defendant Mattinson’s behalf. Id. “A ‘party’ to litigation is ‘[o]ne by 16 or against whom a lawsuit is brought.’” U.S. ex rel. Eisenstein v. City of N.Y., N.Y., 556 U.S. 928, 17 933 (2009) (quoting Black's Law Dictionary 1154 (8th ed. 2004)). Here, Plaintiff filed a lawsuit 18 against Defendant Mattinson. The Court finds that failure to serve does not divest Defendant 19 Mattinson of his party status. Cf. Wasson v. Riverside Cty., 237 F.R.D. 423, 424 (C.D. Cal. 2006). 20 Defendants further submit that Defendant Minev is not the proper person to substitute in 21 Defendant Mattinson’s place. Docket No. 47 at 4. Defendants submit that, unlike Defendant 22 Mattinson, Defendant Minev is a doctor and “his role is that of an administrator for the entire 23 NDOC, not just one of the facilities.” Id. Defendants submit that Plaintiff has sued Defendant 24 Mattinson in both his official and individual capacities. See id. at 4; see also Docket No. 8 at 2. 25 Defendants further submit that Benedicto Gutierrez, the new Director of Nursing, is the proper 26 party to substitute for Defendant Mattinson in his official capacity. Docket No. 47 at 4. “In an 27 official-capacity action in federal court, death or replacement of the named official will result in 28 automatic substitution of the official's successor in office.” Kentucky v. Graham, 473 U.S. 159, 1 166 (1985); see also Fed.R.Civ.P. 25(d) (“The officer’s successor is automatically substituted as a 2 party.”). Thus, the Court finds that Benedicto Gutierrez, Director of Nursing, is the proper party 3 to substitute for Defendant Mattinson in his official capacity. 4 Neither party discusses who is the proper party to substitute for Defendant Mattinson in his 5 individual capacity. “Should the official die pending final resolution of a personal-capacity action, 6 the plaintiff would have to pursue his action against the decedent's estate.” Kentucky, 473 U.S. at 7 166. The undersigned previously ordered Defendants to file either a notice and proof of service 8 on Defendant Mattinson’s successor or a declaration outlining the efforts made to locate a 9 successor. Docket No. 31. In response, Defendants stated that the Attorney General “believes that 10 there is a reasonable likelihood that [Defendant Mattinson’s] Estate would seek representation” 11 from it.3 Docket No. 44-1 at 4.
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 EVAN RATCLIFF, 8 Case No.: 2:19-cv-01275-GMN-NJK Plaintiff(s), 9 ORDER v. 10 [Docket No. 45] SCOTT MATTINSON, et al., 11 Defendant(s). 12 13 Pending before the Court is Plaintiff’s motion to substitute parties. Docket No. 45. The 14 Court has considered Plaintiff’s motion, the response filed by Defendants Michael Minev and 15 Jennifer Nash (“Defendants”), and Plaintiff’s reply. Docket Nos. 45, 47, 48. The motion is 16 properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed more fully 17 below, the Court GRANTS in part Plaintiff’s motion. 18 I. BACKGROUND 19 On July 23, 2019, Plaintiff, who is proceeding pro se and is an inmate in the custody of the 20 Nevada Department of Corrections (“NDOC”), filed a complaint asserting Eighth and Fourteenth 21 Amendment claims against Defendants Medical Director Michael Minev, Director of Nursing 22 Scott Mattinson, and Associate Warden Jennifer Nash.1 Docket No. 1. On December 11, 2019, 23 United States District Judge Gloria M. Navarro issued a screening order and found that Plaintiff 24 stated colorable Eighth Amendment deliberate indifference to serious medical needs claims against 25 Defendants Minev, Mattinson, and Nash. Docket No. 12 at 8. Judge Navarro referred the matter 26 to the Court’s Inmate Early Mediation Program. Id. 27
28 1 Plaintiff filed an amended complaint on November 8, 2019. Docket No. 8. 1 On December 30, 2019, the Office of the Attorney General for the State of Nevada 2 (“Attorney General”) filed a limited notice of appearance on behalf of Defendants Minev, 3 Mattinson, and Nash for mediation purposes. Docket No. 13. On June 30, 2020, the Attorney 4 General filed a suggestion of death advising that Defendant Mattinson had died on June 10, 2020. 5 Docket No. 30. On July 7, 2020, the undersigned ordered Defendants to file either a notice and 6 proof of service on Defendant Mattinson’s successor or a declaration outlining the efforts made to 7 locate a successor. Docket No. 31. 8 On July 21, 2020, following unsuccessful mediation efforts, Judge Navarro ordered the 9 Attorney General to file a notice stating for which defendants it would accept service and to file 10 under seal the last-known-address of those defendants for whom it would not accept service. 11 Docket No. 35 at 2. On August 11, 2020, the Attorney General filed a notice advising that it would 12 accept service for Defendants Minev and Nash. Docket No. 36. 13 On August 31, 2020, the Attorney General filed a notice stating that it did not believe it 14 could comply with the Court’s order at Docket No. 31, due to ethical obligations pursuant to the 15 Nevada Rules of Professional Conduct (“NRPC”). See Docket Nos. 44, 44-1. On September 10, 16 2020, Plaintiff filed the instant motion to substitute parties, seeking to substitute Defendant Minev 17 for Defendant Mattinson. Docket No. 45 at 1. 18 II. LEGAL STANDARD 19 Rule 25(a)(1) provides:
20 If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be 21 made by any party or by the decedent’s successor or representative. 22 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 23 dismissed. 24 Fed.R.Civ.P. 25(a)(1).2 “Thus, when making a determination as to whether a motion to substitute 25 should be granted, the Court considers whether: (1) the motion is timely; (2) the claims pled are 26 extinguished; and (3) the person being substituted is the proper party.” McDonald v. Lauren, 2019 27 2 Unless otherwise noted, references to “Rules” refer to the Federal Rules of Civil 28 Procedure. 1 WL 699997, at *1 (W.D. Wash. Feb. 19, 2019). “Rule 25 leaves the substitution decision to the 2 trial court’s sound discretion.” Robbins v. Allied Glove Corp., 2012 WL 6090373, at *1 (D. Nev. 3 Dec. 5, 2012). 4 III. ANALYSIS 5 Plaintiff submits that substituting Defendant Minev for Defendant Mattinson is proper 6 because Defendant Minev “is responsible for his staffs [sic] negative behavior, or failure to treat a 7 patient properly.” Docket No. 45 at 1. Plaintiff submits that Defendant Minev, as medical director, 8 is responsible for ensuring that all inmates receive adequate medical care. Id. Plaintiff submits 9 that he did not receive adequate medical care “even though Defendant Minev was made aware of 10 the violation.” Id. Plaintiff further submits that the instant motion complies with Rule 25. Id. 11 In response, Defendants submit that Plaintiff’s motion to substitute parties does not comply 12 with Rule 25 because Defendant Mattinson “is not a proper party to this action[.]” Docket No. 47 13 at 4. Defendants submit that Defendant Mattinson cannot be substituted for two reasons: 14 Defendant Mattinson was never served with a summons and complaint, and the Attorney General 15 never accepted service on Defendant Mattinson’s behalf. Id. “A ‘party’ to litigation is ‘[o]ne by 16 or against whom a lawsuit is brought.’” U.S. ex rel. Eisenstein v. City of N.Y., N.Y., 556 U.S. 928, 17 933 (2009) (quoting Black's Law Dictionary 1154 (8th ed. 2004)). Here, Plaintiff filed a lawsuit 18 against Defendant Mattinson. The Court finds that failure to serve does not divest Defendant 19 Mattinson of his party status. Cf. Wasson v. Riverside Cty., 237 F.R.D. 423, 424 (C.D. Cal. 2006). 20 Defendants further submit that Defendant Minev is not the proper person to substitute in 21 Defendant Mattinson’s place. Docket No. 47 at 4. Defendants submit that, unlike Defendant 22 Mattinson, Defendant Minev is a doctor and “his role is that of an administrator for the entire 23 NDOC, not just one of the facilities.” Id. Defendants submit that Plaintiff has sued Defendant 24 Mattinson in both his official and individual capacities. See id. at 4; see also Docket No. 8 at 2. 25 Defendants further submit that Benedicto Gutierrez, the new Director of Nursing, is the proper 26 party to substitute for Defendant Mattinson in his official capacity. Docket No. 47 at 4. “In an 27 official-capacity action in federal court, death or replacement of the named official will result in 28 automatic substitution of the official's successor in office.” Kentucky v. Graham, 473 U.S. 159, 1 166 (1985); see also Fed.R.Civ.P. 25(d) (“The officer’s successor is automatically substituted as a 2 party.”). Thus, the Court finds that Benedicto Gutierrez, Director of Nursing, is the proper party 3 to substitute for Defendant Mattinson in his official capacity. 4 Neither party discusses who is the proper party to substitute for Defendant Mattinson in his 5 individual capacity. “Should the official die pending final resolution of a personal-capacity action, 6 the plaintiff would have to pursue his action against the decedent's estate.” Kentucky, 473 U.S. at 7 166. The undersigned previously ordered Defendants to file either a notice and proof of service 8 on Defendant Mattinson’s successor or a declaration outlining the efforts made to locate a 9 successor. Docket No. 31. In response, Defendants stated that the Attorney General “believes that 10 there is a reasonable likelihood that [Defendant Mattinson’s] Estate would seek representation” 11 from it.3 Docket No. 44-1 at 4. In light of this reasonable likelihood, Defendants submitted “that 12 they cannot provide a notice and proof of service on the successor nor a declaration outlining any 13 efforts to locate a successor” because “any investigation into the identification of a potential future 14 client would be an ethical violation” under Rules 1.7 and 2.3 of the NRPC. Docket No. 44 at 2. 15 Contrary to Defendants’ assertions, it is incumbent upon the Attorney General on behalf of 16 Defendants to undertake reasonable efforts to identify Defendant Mattinson’s estate. As a 17 threshold matter, Defendants’ reliance on Rules 1.7 and 2.3 of the NRPC is misplaced. Rules 1.7 18 and 2.3 of the NRPC provide guidance on potential conflicts of interest with respect to current, not 19 future, clients. See NRPC 1.7 (“Conflict of Interest: Current Clients”) (emphasis added); NRCP 20 2.3 (“A lawyer may provide an evaluation of a matter affecting a client . . . if the lawyer reasonably 21 believes that making the evaluation is compatible with . . . the lawyer’s relationship with the 22 client.”) (emphasis added). As Defendants make clear, the Attorney General represents neither 23 Defendant Mattinson nor his estate at this time. See Docket No. 36. Moreover, it is unlikely that 24 Plaintiff, as an inmate, can undertake the required research to identify Defendant’s Mattinson’s 25 26 27 3 Defendants note that Defendant Mattinson “was married at the time of his passing.” 28 Docket No. 44-1 at 4. 1] estate.* Therefore, the Court finds that Defendants must file either a notice and proof of service 2] on Defendant Mattinson’s successor or a declaration outlining the efforts made to locate a successor.° 4| IV. CONCLUSION 5 Accordingly, the Court GRANTS in part Plaintiff's motion to substitute parties. Docket 6] No. 45. The Clerk of Court is INSTRUCTED to substitute Benedicto Gonzalez, Director of Nursing, for Defendant Mattinson in his official capacity. No later than October 23, 2020, the 8], Attorney General must FILE a notice identifying the executor of Defendant Mattinson’s estate 9} and/or his successor. 10 IT IS SO ORDERED. 11 Dated: October 9, 2020 12 Nancy J. Keppe 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 * Indeed, Judge Navarro ordered the Attorney General to file under seal the last-known- address for those defendants it would not accept service. See Docket No. 35 at 2. The Attorney General failed to do so. See Docket. 27 > In at least two cases in this district, the Attorney General has complied with court orders requiring it to identify a defendant’s estate. See Brand v. Cox, 2018 WL 4210770, at *6 (D. Nev. 28] Sept. 4, 2018); Collins v. Collins, 2018 WL 4181623, at *4 (D. Nev. Aug. 30, 2018).