(PC) Tomasini v. Chau ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL C. TOMASINI, No. 2:18-cv-0286 DAD AC P 12 Plaintiff, 13 v. ORDER 14 JAMES CHAU, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief under 42 18 U.S.C. § 1983. The matter has been referred to a United States Magistrate Judge pursuant to 28 19 U.S.C. § 636(b)(1)(B) and Local Rule 302. All parties have been served, and this case is in the 20 discovery phase. See ECF No. 38 (discovery and scheduling order). 21 Before the court is plaintiff’s request for a ninety-day stay. ECF No. 62. The document 22 also states that plaintiff would like to “release” the recently deceased defendant D. Gentry1 as a 23 named defendant in this case. ECF No. 62 at 1-2. 24 For the reasons stated below, the court will deny both motions. In addition, plaintiff will 25 be given the opportunity to decide whether he wishes to substitute a different individual in 26 deceased defendant Gentry’s place. 27 1 Defendants filed a notice of death on behalf of deceased defendant Gentry on December 8, 28 2022. ECF No. 58. 1 I. MOTION TO STAY PROCEEDINGS 2 A. Relevant Facts 3 In support of plaintiff’s motion to stay these proceedings for ninety days, he asserts that 4 on November 30, 2022, he was transferred from Mule Creek State Prison (“MCSP”) to a different 5 facility to receive short-term medical care. ECF No. 62 at 1. Approximately three weeks later, he 6 was told that he would not be able to return to MCSP due to lack of room. Id. As a result, 7 plaintiff would have to be transferred to another facility. Id. 8 Plaintiff states that all his property is still at MCSP, including his legal files. ECF No. 62 9 at 1. He further asserts that he has not received any information from prison authorities indicating 10 when his files will be returned to him. Id. For these reasons, he asserts that a ninety-day stay of 11 these proceedings is warranted. Id. Defendants have neither filed an opposition, nor a statement 12 of non-opposition to plaintiff’s motion. 13 B. Discussion 14 The motion must be denied. The transfer of prison litigants among institutions is a normal 15 incident of prison life. Staying this matter for ninety days due to plaintiff’s prison transfer and 16 resultant lack of access to his legal property is not warranted given that plaintiff fails to identify 17 the legal property that he needs at this time and why. See generally ECF No. 62. 18 Furthermore, the November 2022 date to file motions to compel (see ECF No. 50 at 2) 19 (order amending discovery and scheduling order) was rendered moot when extensions of time 20 were granted to serve and respond to discovery requests (see ECF Nos. 54, 57) (orders granting 21 extensions of time). Consequently, that date as well as the remaining pretrial motion date 22 currently set for February 20, 2023 (ECF No. 50 at 2), must be reset. There is no fast- 23 approaching discovery deadline that would warrant a stay of these proceedings simply because 24 plaintiff has been transferred a different prison and currently has no access to his legal files. 25 In the future, once any remaining discovery deadlines have been reset, plaintiff may 26 request extension of any specific deadline that he believes he cannot meet, due to lack of his legal 27 files or for any other reason. Any such motion must clearly identify the particular deadline 28 plaintiff seeks to extend and the basis for his request. 1 II. “RELEASE” OF DECEASED DEFENDANT GENTRY 2 On December 8, 2022, defendants filed a notice of death for defendant D. Gentry. ECF 3 No. 58. In response, plaintiff has stated that he wishes to “release” defendant Gentry as a named 4 defendant in this case. ECF No. 62 at 1. 5 Rather than dismissing Gentry at this time, the court will provide information regarding 6 plaintiff’s options. The Federal Rules of Civil Procedure provide that when a party dies, that 7 person’s successor(s) and/or personal representative(s) may be substituted in the place of the 8 deceased party. Rule 25(a), Fed. R. Civ. Pro.; see also Gilmore v. Lockard, 936 F.3d 857 (9th 9 Cir. 2019). This allows a plaintiff to proceed on a claim against a deceased defendant, and to 10 recover from the deceased defendant’s estate should plaintiff ultimately prevail on the merits. 11 The notice of death filed in this case states that defendant Gentry is survived by her daughter and 12 son. ECF No. 58. These survivors have been identified to plaintiff, and they were served with 13 the notice of death. Id. 14 Plaintiff therefore has ninety days from the filing of the notice of death to bring a motion 15 to substitute parties. Rule 25(a), Fed. R. Civ. Pro.; Gilmore, 936 F.3d at 867-66. If plaintiff 16 would like to substitute Gentry’s next of kin for defendant Gentry, he must file a motion for 17 substitution within ninety days of the date of service of defendants’ notice of death. See id. The 18 motion must be served on the representative(s) plaintiff wishes to substitute for Gentry. Rule 19 25(a)(3). 20 If plaintiff does not wish to substitute one of defendant Gentry’s children in her place, and 21 instead wishes to dismiss Gentry after having considered his options, he should file a motion to 22 voluntarily dismiss Gentry as a defendant. The present request to “release” Gentry will be denied 23 without prejudice to such a motion. Such a motion may be filed without delay. 24 If plaintiff fails to respond to this order within 90 days of service of the notice of death, 25 Gentry must be dismissed with or without plaintiff’s consent. Rule 25(a). 26 Once the status of defendant Gentry as a party has been clarified, the court will reset any 27 remaining discovery deadlines. 28 //// ] Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiffs motion for a stay of the proceedings (ECF No. 62 at 1) is DENIED; 3 2. Plaintiff's request to “release” defendant Gentry (ECF No. 61 at 1-2) is DENIED; 4 3. If plaintiff still wishes to proceed in this case without substituting a successor for 5 || defendant Gentry, within fourteen days from the date of this order, he must file a motion stating 6 | as much, and 7 4. If plaintiff wishes to substitute one of the deceased defendant Gentry’s successors as a 8 | defendant in this action, he must timely file a motion for substitution of parties consistent with 9 || Federal Rule of Civil Procedure 25 and other federal and local rules. 10 Upon plaintiff's filing of his motion related to deceased defendant Gentry, the court will 11 || reset the necessary discovery and pretrial deadlines. 12 | DATED: January 12, 2023 ~ Cttt0 Lhar—e_ 3 ALLISONCLAIRE. 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28