Rondel Delbert Gardner v. CSP - LAC

• Court: District Court, C.D. California
• Decided: March 7, 2023
• Docket: 2:20-cv-07519
• Status: Unknown

Opinion

Case 2:20-cv-07519-VBF-AGR Document 83 Filed 03/07/23 Page 1 of 3 Page ID #:836

1 2 3 4 JS-6 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RONDEL DELBERT GARDNER, ) NO. CV-20-7519-VBF (AGR) 12 ) Plaintiff, ) 13 ) ORDER OF DISMISSAL v. ) 14 ) CSP-LAC, et al., ) 15 ) Defendants. ) 16 ) ) 17 ) 18 I. 19 BACKGROUND 20 21 On August 17, 2020, Plaintiff, a state prisoner proceeding pro se, filed a 22 civil rights complaint under 42 U.S.C. § 1983. (Dkt. No. 1.) 23 On January 19, 2022, Plaintiff filed a Second Amended Complaint (“SAC”). 24 (Dkt. No. 66.) The SAC named as defendants: (1) Dr. Lee; (2) Dr. Bernard 25 Ramos; (3) Dr. Gian Hernandez; (4) the “medical staff nurses”; and (5) “any of the 26 doctors that I was referred to,” including ear, nose and throat (ENT) specialist 27 Victor Kitt. (Id. at 3-4.)1 All defendants were sued in their individual capacity 28 1 Page citations are to the page numbers assigned by the CM/ECF system in the header. Case 2:20-cv-07519-VBF-AGR Document 83 Filed 03/07/23 Page 2 of 3 Page ID #:837

1 except that Plaintiff did not identify a capacity for the nurses. 2 On June 23, 2022, Defendants filed a Notice of Plaintiff’s death. (Dkt. No. 3 77.) On June 27, 2022, the magistrate judge issued an order that explained 4 further proceedings under Rule 25 of the Federal Rules of Civil Procedure upon 5 the death of Plaintiff. Specifically, the order explained that a motion for 6 substitution of the proper party must be filed within 90 after service of the order or 7 service of the statement noting the death, whichever occurred later. The order 8 required Defendants to serve a copy of the order on Plaintiff’s next of kin and 9 contained information regarding the Federal Pro Se Clinic in Los Angeles, Santa 10 Ana and Riverside. (Dkt. No. 78.) Defendants filed the notice to Plaintiff’s next of 11 kin that attached the operative complaint, the notice of Plaintiff’s death and the 12 magistrate judge’s order on June 29, 2022. (Dkt. No. 82.) 13 Rule 25 of the Federal Rules of Civil Procedure provides: “If a party dies 14 and the claim is not extinguished, the court may order substitution of the proper 15 party. A motion for substitution may be made by any party or by the decedent’s 16 successor or representative. If the motion is not made within 90 days after 17 service of a statement noting the death, the action by or against the decedent 18 must be dismissed.” Fed. R. Civ. P. 25(a)(1). “A motion to substitute, together 19 with a notice of hearing, must be served on the parties as provided in Rule 5.” 20 Fed. R. Civ. P. 25(a)(3). 21 The court must dismiss the lawsuit if a motion for substitution is not made 22 by any party or by the decedent’s successor or representative within 90 days after 23 service of a statement noting the death. Fed. R. Civ. P. 25(a)(1). Rule 25(a)(1) 24 “requires two affirmative steps in order to trigger the running of the 90 day 25 period.” Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). “First, a party must 26 formally suggest the death of the party upon the record.” Id. That requirement is 27 satisfied by the Defendants’ filing of the Notice of Death. Moss v. Entzel, 2020 28 U.S. Dist. LEXIS 27294, *7 (C.D. Cal. Feb. 13, 2020). “Second, the suggesting 2 ase 2:20-cv-07519-VBF-AGR Document 83 Filed 03/07/23 Page 3of3 Page ID #:838

1 party must serve other parties and nonparty successors or representatives of the 2 deceased with a suggestion of death in the same manner as required for service 3 of the motion to substitute.” Barlow, 39 F.3d at 233; see Moss, 2020 U.S Dist. 4 LEXIS 27294, *7 (proofs of service upon identified family members). Defendants 5 have satisfied this requirement. (Dkt. No. 82.) 6 No one has filed a timely motion for substitution within 90 days after service as required by Rule 25, and no one has requested an extension of time to do so. 9 Vi. ORDER 0 For the reasons discussed above, IT IS ORDERED that this action is □ dismissed without prejudice. See Zanowick v. Baxter Healthcare Corp., 850 F.3d

13 1090, 1096 (9th Cir. 2017). 14 □□ patep: Match7 9993 Ulisse babe PO

18 19 20 21 22 23 24 20 26 at 28