(PC) Stribling v. Lucero ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AARON STRIBLING, No. 2:16-cv-01438-TLN-JDP 12 Plaintiff, 13 v. ORDER 14 LUCERO, 15 Defendant. 16 17 This matter is before the Court on Defendant Lucero’s (“Defendant”) Notice of Plaintiff’s 18 Death and Request for Dismissal of Action with Prejudice. (ECF No. 44.) For the reasons 19 discussed herein, Defendant’s Request is GRANTED. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 On June 24, 2016, Plaintiff Aaron Stribling (“Plaintiff”) commenced this action pursuant 3 to 42 U.S.C. § 1983, asserting a single cause of action against Defendant for excessive force in 4 violation of the Eighth Amendment. (See ECF No. 38 at 1.) Plaintiff claims that, while he was 5 being transported via bus to another state prison, he had a dispute with Defendant about being 6 provided water and Defendant grabbed him by the collar and repeatedly shook him. (Id. at 2–5.) 7 The matter was initially set for trial on June 10, 2019, but was postponed by the Court to 8 May 11, 2020, due to the precedence of an older civil trial, and then to April 12, 2021, due to 9 COVID-19. (See ECF Nos. 41, 42.) 10 In a supporting declaration, Counsel for Defendant asserts that she initially learned of 11 Plaintiff’s death when the Court’s October 1, 2020 Order (ECF No. 43) served on Plaintiff was 12 returned as “undeliverable, deceased.” (ECF No. 44-1 at 1.) Thereafter, Counsel confirmed with 13 Salinas Valley State Prison and the Sacramento County Coroner’s Office that Plaintiff died in a 14 single-vehicle accident on August 8, 2020. (ECF No. 44 at 2; ECF No. 44-1 at 2–5.) 15 On October 20, 2020, Defendant filed the instant request for dismissal on the basis that 16 Plaintiff’s sole claim for excessive force — which is unrelated to his death — does not survive his 17 death. (ECF No. 44.) The Court construes Defendant’s filing as a request for dismissal pursuant 18 to Federal Rule of Civil Procedure (“Rule”) 25. 19 II. STANDARD OF LAW 20 Rule 25(a)(1) provides: 21 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 22 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 23 noting the death, the action by or against the decedent must be dismissed. 24 25 Fed. R. Civ. P. 25(a)(1). 26 III. ANALYSIS 27 In the instant case, Defendant has sufficiently established that Plaintiff’s action does not 28 survive his death. “The question of whether an action survives the death of a party must be 1 | determined by looking towards the law, state or federal, under which the cause of action arose.” 2 | Continental Assurance Co. v. American Bankshares Corp., 483 F. Supp. 175, 177 (E.D. Wis. 3 | 1980). The test for survivorship hinges on whether the statutory provision is primarily penal in 4 | nature or remedial in nature. See Bracken v. Harris & Zide, L.L.P., 219 F.R.D. 481, 483 (N.D. 5 | Cal. 2004) (“penalties do not survive for the reason that a decedent is beyond punishment ... 6 | [whereas] actions to recompense or compensate a plaintiff for a harm inflicted upon him by a 7 || decedent do survive.”). 8 Section 1983 litigation follows state law with regard to survival actions. Robertson v. 9 | Wegman, 436 U.S. 584, 589-90 (1978). California Code of Civil Procedure § 377.34 states that 10 | the damages recoverable by a decedent’s successor “are limited to the loss or damage that the 11 | decedent sustained or incurred before death, . . . [but not] damages for pain, suffering, or 12 | disfigurement.” Cal. Code Civ. P. § 377.34; see also Cty. of Los Angeles v. Superior Court, 21 13 Cal. 4th 292, 305 (1999). In the instant case, it is undisputed that Plaintiff suffered no physical 14 | injury as a result of the alleged excessive force incident, and Plaintiff was only seeking punitive 15 | damages and damages for mental anguish at trial. (ECF No. 38 at 4-6.) Neither of these 16 || remedies is available in a survival action. Cal. Code Civ. P. § 377.34; see also Bracken, 219 17 | F.R.D. at 483. Accordingly, Plaintiffs claim extinguished upon his death and dismissal is 18 | appropriate. 19 IV. CONCLUSION 20 For the foregoing reasons, Defendant’s Request for Dismissal is hereby GRANTED. 21 (ECF No. 44.) The action is DISMISSED, and the Clerk of the Court is directed to close this 22 || case. 23 IT IS SO ORDERED. 24 | DATED: February 10, 2021 25 { J) /) 26 “ ! /} loch 27 Troy L. Nuhlep> 28 United States District Judge