(PC) Underwood v. Tan ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERROL LOVELL UNDERWOOD, No. 2:17-CV-0174-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 RICHARD TAN, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion, ECF No. 46, for substitution of 19 parties. 20 On October 30, 2019, Defendants submitted an amended notice of suggestion of 21 death of Defendant Egipto, notifying Plaintiff of Defendant Egipto’s death. See ECF No. 30. 22 Under Federal Rule of Civil Procedure 25(a)(1), a civil suit against a deceased party must be 23 dismissed unless a party moves for substitution within 90 days of a service noting death. See Fed. 24 R. Civ. P. 25. After the deceased party is dismissed, the action proceeds with the remaining 25 parties. See Fed. R. Civ. P. 25(a)(2). Plaintiff now moves to substitute the State of California in 26 place of deceased Defendant Egipto. See ECF No. 46. 27 / / / 28 / / / 1 Plaintiff's motion will be denied for two reasons. First, the motion is untimely in 2 | that it was filed more than 90 days after Defendants provided Plaintiff with the notice of 3 | suggestion of death of Defendant Egipto. The notice was served in October 2019 and □□□□□□□□□□□ 4 | motion was not filed until a year later in October 2020. Second, the defendant Plaintiff seeks to 5 | substitute in place of the deceased defendant is immune under the Eleventh Amendment. Here, 6 | Plaintiff seeks to substitute the State of California in place of deceased Defendant Egipto. The 7 | Eleventh Amendment prohibits federal courts from hearing suits brought against a state both by 8 | its own citizens, as well as by citizens of other states. See Brooks v. Sulphur Springs Valley Elec. 9 | Coop., 951 F.2d 1050, 1053 (9th Cir. 1991). This prohibition extends to suits against states 10 || themselves, and to suits against state agencies. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th 11 } Cir. 1995) (per curiam); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 12 Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion to substitute 13 | parties, ECF No. 46, is denied. 14 15 16 | Dated: October 30, 2020 Ssvcqo_ M DENNIS M. COTA 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28