Butler v. Branscum et al

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOSHUA DUANE BUTLER,
Plaintiff,
v.
KEVIN BRANSCUM, in his individual
capacity,
Defendant.*
Case No. CIV-23-344-RAW
ORDER
On January 6, 2026, the remaining defendant in this case, Kevin Branscum, filed a notice
that the plaintiff in this case, Joshua Butler died on or about December 31, 2025. On March 18,
2026, the court received a notice from the Oklahoma Department of Corrections that Joshua
Butler died on December 31, 2025. No death certificate has been filed.
Federal Rule of Civil Procecure 25(a)(1) 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) (emphasis added).
Whether a § 1983 claim survives the death of plaintiff or is extinguished is governed by
state law, so long as the state law is not inconsistent with the Constitution and laws of the United
States. Robertson v. Wegmann, 436 U.S. 584 (1978). See also Hopkins v. Oklahoma Pub. Emps.
* On September 27, 2024, Plaintiff’s claims against Kevin Branscum were dismissed with the exception of the
§1983 claim regarding his conduct after stopping Mr. Butler’s vehicle. Docket No. 73. On January 5, 2026,
Plaintiff’s claims against the other named defendant in this case, Matthew Youngblood, were dismissed. Docket
No. 88.
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Ret. Sys., 150 F.3d 1155, 1159 (10th Cir. 1998) (citing 42 U.S.C. § 1988(a) and noting that in
Robertson v. Wegmann, “the Supreme Court held that in the absence of any federal law
controlling the survival and abatement of section 1983 suits, this question would be governed by
the local state's survival and abatement statute, so long as that statute is “not inconsistent with the
Constitution and laws of the United States.”).
The only remaining claim in this action is Mr. Butler’s §1983 claim against Mr.
Branscum regarding his conduct after stopping Mr. Butler’s vehicle on August 17, 2023. In
Oklahoma: “In addition to the causes of action which survive at common law, causes of action
for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or
fraud, shall also survive . . . .” 12 OKLA . S TAT . § 1051. Additionally, in Oklahoma: “No action
pending in any court shall abate by the death of either or both the parties thereto, except an
action for libel, slander or malicious prosecution, which shall abate by the death of the
defendant.” 12 OKLA . S TAT . § 1052. Mr. Butler’s claim was not extinguished by his death.
As noted above, pursuant to Federal Rule of Civil Procedure 25(a)(1), the court must
dismiss this case if no motion for substitution is made within ninety (90) days after service of a
statement noting the death. Notably, however, there is no indication on the docket in this case
that service of a statement noting Mr. Butler’s death was ever made upon his successor(s) or
representative. “[T]he service required by Rule 25(a)(1) on nonparties, specifically the
successors or representatives of the deceased party’s estate, must be service pursuant to
Fed.R.Civ.P. 4.” Grandbouche v. Lovell, 913 F.2d 835, 837 (10th Cir. 1990).
Accordingly, the court hereby directs the Defendant to either file with this court proof of
service if it was already done or to serve Mr. Butler’s successor(s) or representative with a
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statement noting Mr. Butler’s death pursuant to Rule 4 and to then file the proof of service with
this court.
IT IS SO ORDERED this 3rd day of June, 2026.
______________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA
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