Opinion
Civil No. 4:17-CV-1977
01-17-2019
HECTOR VARGAS TORRES, Plaintiff v. CAP'T. B. HARRIS, et al., Defendants.
(Judge Brann)
( ) REPORT AND RECOMMENDATION
I. Factual Background
This case is a pro se inmate lawsuit brought by Hector Torres against a number of correctional officers. (Doc. 1.) One of the defendants named by Torres in his complaint was Robert Sichko, who formerly worked as a Correctional Lieutenant at the State Correctional Institution (SCI) Huntingdon. On September 7, 2018, defense counsel filed a Suggestion of Death pursuant to Federal Rule of Civil Procedure 25(a), notifying Torres and the court that defendant Sichko had passed away on July 30, 2018. (Doc. 48.) After noting that the defense was unaware of a successor or administrator of Sichko's estate who could potentially be substituted in this action in accordance with the provisions of Rule 25 the defendants requested that the "Court dismiss Robert Sichko as a Defendant should no motion to substitute be filed within ninety (90) days of the filing of this Suggestion." (Id.)
Those 90 days have now passed, and Torres has not moved to substitute another defendant for Defendant Sichko. Accordingly, for the reasons set forth below, it is recommended that Robert Sichko be dismissed from this lawsuit.
II. Discussion
Under Rule 25(a) of the Federal Rules of Civil Procedure, Sichko's death now affects the viability of this lawsuit against the defendant. Rule 25 provides that:
(a) Death.
Fed. R. Civ. P., Rule 25(a). Federal Rule of Civil Procedure 25(a)(1) further instructs that: " [I]f 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 the service of a statement noting the death, the action by and against the decedent must be dismissed." (Id.).(1) Substitution if the Claim Is Not Extinguished. 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 . . . , the action by or against the decedent must be dismissed
Under Rule 25, substitution of parties upon the death of a defendant may be considered "If a party dies and the claim is not extinguished . . . ." Thus, at the outset we must determine whether this claim was extinguished by his death. In this regard, determination of whether a civil rights claim brought under 42 U.S.C. §1983 survives a party's death is generally made in accordance with state law. See Robertson v. Wegmann, 436 U.S. 584, 588-89 (1978). Pennsylvania law, however, broadly favors the survival of civil actions following the death of a party. See, e.g., 20 Pa C.S.A. §§3371-3373, 42 Pa C.S.A. §8301. Therefore, we conclude that this action was not automatically extinguished by Sichko's death.
Having reached this conclusion, however, we must next determine whether there is a proper substitute party, who is willing and able to step forward to prosecute this case. In this regard, "[d]ecisions on . . . substitution are within the trial court's discretion." McKenna v. Pacific Rail Service, 32 F.3d 820, 836 (3d Cir. 1994). The language of Federal Rule of Civil Procedure 25(a)(1), which provides that the court "may order substitution of the proper party" is plainly permissive. Therefore,"the decision whether to substitute parties lies within the discretion of the trial judge and [the court] may refuse to substitute parties in an action even if the party so moves." Froning's, Inc. v. Johnston Feed Serv., Inc., 568 F.2d 108, 110 n. 4 (8th Cir. 1978).
In determining whether proper substitute representative exists that may be substituted for a deceased party, we may consider substitution of the "decedent's successor or representative." In Sinito v. U.S. Department of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999), the Court noted that the Federal Rule of Civil Procedure 25 allows for the substitution of a "successor" for a deceased party, a term which means that a proper substituted party need not necessarily be the appointed executor or administrator of the deceased party's estate. Id. Rather, the purpose of Federal Rule of Civil Procedure 25 is to allow more flexibility in substitution. Rende v. Kay, 415 F.2d 983, 984 (D.C. Cir. 1969). As to who may be substituted as a proper party successor for a deceased defendant, it has been held that in this setting:
[Under] certain circumstances a person may be a "successor" under Rule25(a)(1) if she is (1) the primary beneficiary of an already distributed estate; (2) named in a will as the executor of the decedent's estate, even if the will is not probated; or (3) the primary beneficiary of an unprobated intestate estate which need not be probated.In re Baycol Products Litigation, 616 F.3d 778, 784-5 (8th Cir. 2010)(citations omitted).
Yet, while the language of the rule allows for greater flexibility in the substitution of appropriate successor parties, the animating principle that governs the exercise of our discretion remains the same: "It is axiomatic that Rule 25 limits properly substituted parties to those individuals who can adequately represent the interests of the deceased party." Sinito v. U.S. Department of Justice, 176 F.3d at 516. In this regard:
Because the purpose of Rule 25(a)(1) is to protect the estate of the decedent, district courts must ensure only "those individuals who can adequately represent the interests of the deceased party" are substituted under the Rule. Sinito, 176 F.3d at 516. District courts should therefore look at the facts and circumstances of each case and then determine whether the person [to be] substitute[d] will sufficiently prosecute or defend the action on the decedent's behalf.In re Baycol Products Litig., 616 F.3d at 788.
Because Rule 25(a) looks to the facts and circumstances of each case and then determines whether the person to be substituted will sufficiently defend the action on the decedent's behalf, matters of substitution are not defined mechanically by the mere fact that a person is related through blood or marriage to the decedent. See Robertson v. Wood, 500 F.Supp. 854 (S.D. Ill. 1980). In short, a substitute party's capacity to litigate, rather than any coincidence of biology, is what controls here. See Tamburo v. Dworkin, No. 04-3317, 2012 WL 104545 (N.D. Ill. Jan. 11, 2012)(declining to appoint children of penniless defendant as substitute parties). Furthermore, Rule 25(a)'s use of the term "successor" necessarily implies that there is some decedent's estate or interest which remains and as to which the substituted party has succeeded.
In the instant case, defense counsel has attested that "Defendants are unable to identify a successor or an individual serving as Administrator of Defendant Sichko's estate." (Doc. 48, ¶4.) Nor has Torres identified any proper legal successor who may be substituted for the deceased defendant, Mr. Sichko. Further, more than 90 days have elapsed since Torres was placed on notice of Sichko's death through the filing of this Suggestion of Death. In these circumstances, the dictates of Rule 25(a) are clear: "If [a] motion [to substitute another party for the deceased defendant] is not made within 90 days after the service of a statement noting the death, the action by and against the decedent must be dismissed." Fed. R. Civ. P., Rule 25(a).
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that Defendant Robert Sichko be DISMISSED from this lawsuit.
The plaintiff is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is
made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 17th day of January, 2019.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge