Opinion
Case No. 5:17-cv-02144-PSG (MAA)
02-13-2020
WILL MOSS, JR., Plaintiff, v. C. ENTZEL et al. Defendants.
ORDER OF DISMISSAL
I. INTRODUCTION
Before the Court is Defendants C. Entzel, F. Garrido, R. Poynor, R. Leen, and K. Langel's (collectively, "Defendants") request that the Court dismiss this action pursuant to Federal Rule of Civil Procedure 25(a) ("Rule 25(a)"). (Second Status Rep. 3, ECF No. 90.) For the reasons below, Defendants' request is GRANTED.
II. PROCEEDINGS
On October 18, 2017, Plaintiff Will Moss ("Plaintiff"), proceeding pro se and in forma pauperis, filed a civil rights complaint against the Federal Bureau of Prisons ("BOP") and Defendants. (Compl., ECF No. 1.) Plaintiff amended his complaint on January 2, 2018 ("FAC," ECF No. 13) and March 9, 2018 ("SAC," ECF No. 17.) In the SAC, Plaintiff dismissed the BOP and alleged that Defendants violated his Eighth Amendment rights pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (19751). (See generally SAC.)
On December 6, 2018, the Court received returned mail from Plaintiff. (ECF No. 46.) Through its own research on the BOP's online inmate locator, the Court learned that Plaintiff passed away on November 21, 2018. The Court ordered Defendants to confirm whether Plaintiff was deceased and, if so, file and serve a Statement of Death on all interested nonparties. (Order, ECF No. 47.)
On February 14, 2019, Defendants filed an Ex Parte Application for Order to file Statement of Death Proofs of Service Under Seal. (Under Seal Appl., ECF No. 65.) In support of the Application, Defendants filed the Declaration of Troy Johnson, which: (1) confirmed Plaintiff's death on November 21, 2018 and attached a copy of Plaintiff's Inmate Profile indicating such death; (2) attached copies of (a) Plaintiff's visitor log identifying eight persons who visited Plaintiff ("Visitor Log"), and (b) Plaintiff's Acknowledgment of Inmate through which Plaintiff requested that his mother and grandmother be notified upon his death or illness ("Acknowledgment"); and (3) averred that Plaintiff's Pre-Sentence Report revealed four names of family or friends not otherwise identified in the Visitor Log or Acknowledgment. (Johnson Decl., ECF No. 66.)
On February 20, 2019, Defendants filed a Statement of Death confirming Plaintiff's death on November 21, 2018. (Statement Death, ECF No. 69.) Defendants concurrently filed under seal proofs of service that the Statement of Death was served on twelve third parties—specifically, those persons: (1) listed in Plaintiff's Visitor Log, (2) identified in the Acknowledgment as persons to be notified in case of Plaintiff's death or illness, and (3) identified in Plaintiff's Pre-Sentence Report (collectively, "Third Parties"). (Proof Serv., ECF No. 70.)
On June 7, 2019, the Court issued an Order stating that it could not confirm from the sealed proofs of service whether the Statement of Death was served on the Third Parties in accordance with Federal Rule of Civil Procedure 4 ("Rule 4"), as required by Rule 25(a)(3). See Fed. R. Civ. P. 25(a)(3); see also Barlow v. Ground, 39 F.3d 231, 234 (9th Cir. 1994) (explaining that service of a suggestion of death on a nonparty via mail did not comply with Rule 4 because "[a]lthough California law does permit service of a summons by mail, such service is valid only if a signed acknowledgment is returned and other requirements are complied with"). (Order, ECF No. 76.) The Court ordered Defendants to either: (1) file a written explanation regarding how their service of the Statements of Death on nonparties complied with Rule 4; or (2) re-serve the Statements of Death in accordance with Rule 4. (Id.)
Defendants filed a Status Report on June 28, 2019. (First Status Rep., ECF No. 77.) Defendants asserted that they "do not know the identity of [P]laintiff's successor or representative and therefore could not serve that person." (Id. at 2.) Defendants averred that, nonetheless, they took the additional measures to serve a Statement of Death to the Third Parties via U.S. Mail under Federal Rule of Civil Procedure 5 ("Rule 5") and that none of the Statements of Death were returned as undeliverable. (Id. at 2, 3.)
On August 7, 2019, the Court issued an Order concluding that the Statement of Death was not served properly on Plaintiff's nonparty successors or representatives as required by Rule 25(a). (Order 2-3, ECF No. 79.) As such, Rule 25(a)'s ninety-day period for filing a motion to substitute had not been triggered. (Id. at 8-9.) The Court ordered Defendants to effect personal service of the Statement of Death, pursuant to Rule 4, on the following identified nonparties: Plaintiff's daughter, mother, father, grandmother, sister, cousin, and any family members identified by Troy Johnson in his review of Plaintiff's Pre-Sentence Report. (Id. at 9.) The Court ordered Defendants to file proofs of such service no later than September 6, 2019. (Id.)
On December 4, 2019, Defendants filed a Status Report explaining their efforts to serve the Statement of Death as ordered (Second Status Rep.), together with accompanying proofs of service attesting to service of the Statement of Death upon the eight identified family members of Plaintiff (Proofs Serv., ECF Nos. 91, 91-1). Defendants averred that they filed the Statement of Death on February 20, 2019 (ECF No. 69), and requested that the Court dismiss the action as to all remaining Defendants pursuant to Rule 25(a). (Second Status Rep. 3.)
III. DISCUSSION
Rule 25(a)(1) of the Federal Rules of Civil Procedure provides:
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 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)(1). A motion to substitute and a statement noting death must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 25(a)(3).
Because Bivens actions are a creation of federal law, the question of whether Plaintiff's action survived his death is a question of federal law. Carlson v. Green, 446 U.S. 14, 23 (1980). Under federal common law, federal claims typically survive a decedent's death if they are remedial in nature and not penal. Wheeler v. City of Santa Clara, 894 F.3d 1046, 1056-57 (9th Cir. 2018). "Claims for non-economic compensatory damages in the form of pain and suffering, emotional distress, and the like, are not punitive and therefore survive[] [plaintiff's] death." Id. (quoting Lopez v. Regents of Univ. of Cal., 5 F. Supp. 3d 1106, 1057 (N.D. Cal. 2013)). Plaintiff's lawsuit alleged that Defendants caused him unnecessary pain, injury, and mental anguish in violation of the Eighth Amendment's Cruel and Unusual Punishments Clause. (SAC 5.) These claims are not punitive, and survived Plaintiff's death under federal common law. See Wheeler, 894 F.3d at 1056-57.
Because Plaintiff's Bivens claims were not extinguished by his death, the Court must dismiss the lawsuit if a motion for substitution is not made by any party or by Plaintiff's successor or representative within ninety days after service of a statement noting Plaintiff's death. See Fed. R. Civ. P. 25(a)(1). Rule 25(a)(1) requires "two affirmative steps" to trigger this ninety-day period. Barlow, 39 F.3d at 233. "First, a party must formally suggest the death of the party upon the record." Id. "Second, the suggesting party must serve other parties and nonparty successors or representatives of the deceased with a suggestion of death in the same manner as required for service of the motion to substitute." Id.
Here, Defendants' February 20, 2019 Statement of Death satisfies the first requirement that a party must formally suggest the death of the party upon the record. With respect to the second requirement, Defendants filed proofs of service attesting to service of the Statement of Death, pursuant to Rule 4, upon Plaintiff's eight identified family members. (Second Status Rep. 1; Proofs Serv., ECF Nos. 91, 91-1.) The last date of service of Plaintiff's eight identified family members was November 11, 2019. (Id. at Ex. D.) It has been over ninety days since this date, and no motion for substitution has been filed in accordance with Rule 25(a)(1). Accordingly, this action is DISMISSED without prejudice.
IT IS SO ORDERED. DATED: 2/13/2020
/s/_________
PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
MARIA A. AUDERO
UNITED STATES MAGISTRATE JUDGE