Harris v. Lyou et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PAUL ALLEN HARRIS,
Plaintiff,
v.
CHRIS LYOU, et al.,
Defendants.
Case No. 3:20-cv-00121-RRB
ORDER AFTER NOTICE OF DEATH
Paul A. Harris, a self-represented prisoner (“Plaintiff”) filed a Prisoner’s
Complaint under the Civil Rights Act, 42 U.S.C. § 1983 on May 27, 2020.1 	On
October 27, 2022, Counsel for Defendants filed a Notice informing the Court of
Plaintiff’s death.2 The filing included a copy of the State of Alaska, Department of
Corrections Press Release regarding Plaintiff’s death.3
“If a party dies and the claim is not thereby extinguished, the court may order
substitution of the proper parties. 	A motion for substitution may be made by any
party or by the decedent's successor or representative. If the motion is not made
1 Docket 1.
2 Docket 66.
3 Docket 66-1.
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Order After Notice of Death
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within 90 days after service of a statement noting the death, the action by or against
the decedent must be dismissed.”4
However, 	there 	are 	formal 	requirements 	for 	the 	Notice 	of 	Death 	(or
“Suggestion of Death”)5 to trigger the 90-day period. 	First, a party must formally
suggest the death of the party upon the record. Second, the suggesting party must
serve other parties and nonparty successors or representatives of the deceased
with a suggestion of death in the same manner as required for service of the
motion to substitute.”6 	At a minimum, the suggestion of death must identify the
decedent’s successor or personal representative.7
While the press release indicated Plaintiff’s next of kin had been notified of
his death, Defendants filing at Docket 66 is deficient under Rule 25 because it fails
to identify any nonparty representatives or successors or serve notice to such
parties.
IT IS THEREFORE ORDERED:
1. 	Defendants must properly file and serve nonparty successors or
representatives of the deceased with a suggestion of death by February 25, 2023.
4 Fed. R. Civ. P. 25(a)(1).
5 See, e.g., Gilmore v. Lockard, 936 F.3d 857, 865 (9th Cir. 2019) (“statement noting the death” is
often called the “suggestion of death.”).
6 Id. (quoting Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994)).
7 Id. at 867; see also Bailey v. MacFarland, 2020 WL 5763825, at *4 n.2 (E.D. Cal. Sept. 28, 2020).
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Order After Notice of Death
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2. 	The 90-day period provided by Rule 25(a)(1) will not be triggered until
the appropriate successor or representative is served a suggestion of death in the
manner provided by Federal Rule of Civil Procedure 4.8
DATED this 25th day of January, 2023, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
8 Barlow v. Ground, 39 F.3d 231, 233-234 (9th Cir. 1994).
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