United States District Court, N.D. New York
July 19, 2004.
PATRICK GRAHAM, Plaintiff,
ROBERT J. HENDERSON, HANS WALKER, VINCENT MAHUNIK, MICHAEL A. VASQUEZ, MARY BETH CIASCHI PETHYBRIDGE, GARY ANTHONY, WILLIAM A. GABAK, Defendants.
The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
MEMORANDUM DECISION AND ORDER
Plaintiff, Patrick Graham, an inmate in the New York State
Corrections System, alleges a violation of his civil rights under
42 U.S.C. § 1983 against defendants, including Charles Ciaschi
and John Nelson Decker. Plaintiff moves pursuant to Rule 25(a) of
the Federal Rules of Civil Procedure: (1) for an Order
substituting Mary Beth Ciaschi Pethybridge, distributee and
Voluntary Administrator of the Estate of Charles Ciaschi, for
defendant Charles Ciaschi; (2) an Order substituting Jeanne Decker, wife of deceased defendant John
Nelson Decker, for John Nelson Decker; and, (3) an Order amending
the caption to reflect these changes.
I. Impetus for the Case
On or about June 1989, staff at the Auburn State Prison (the
"Prison"), where plaintiff was incarcerated, decided to remove
the showers from the industrial area where inmates, including
plaintiff, produced various furniture. The proposed removal of
the showers was a point of contention between the Prison's staff
and its inmates. Inmates sought to persuade officials at the
Prison to reconsider their decision to remove the showers and
engaged in a series of meetings with them in June 1989 to this
effect. The inmates continued to pursue their position by
initiating a claim through the institutional grievances process
as established by prison protocols. Plaintiff submits that his
participation in these activities, as the Shop Representative for
his work area, was noteworthy. When the inmates' efforts failed
to elicit the desired result, approximately seventeen of them,
following plaintiff's lead, filed grievances against the shower
removal. Contemporaneously, plaintiff petitioned the New York
State Supreme Court pursuant to Article 78 of the Civil Practice
Law and Rules for certain relief, including an injunction to
prevent officials at the Prison from removing the showers.
Thereafter, the Inmate Grievance Resolution Committee ("IGRC")
met with plaintiff at his work area to investigate his grievance.
The IGRC asked plaintiff to aid in its investigation by
recording, from among the group of inmates having filed
grievances, the names of those who wished to represent the group,
for given the similarity of the grievances, they were to be
consolidated. Plaintiff complied with the IGRC's requests and
spoke with several inmates to this effect. Plaintiff directed
those inmates who wished to participate as representatives to
write their name, DIN number, and prison cell location on a pad of paper.
According to plaintiff, defendant Gabak observed plaintiff
collecting information and accused him of circulating a petition.
Defendants Gabak and Vasquez, allegedly directed defendants
Ciaschi and Decker to file misbehavior reports against Graham for
the alleged circulation of a petition as a pretext for urging a
work slow-down. Plaintiff alleges that defendants were creating a
subterfuge to retaliate against him for spearheading the movement
to oppose the removal of the showers. As a result of the
misbehavior reports, the Prison's staff conducted a Tier III
disciplinary hearing where defendant Mahunik sentenced plaintiff
to 180 days in the Special Housing Unit ("SHU"). Plaintiff
characterized Mahunik's conduct as particularly egregious in view
of Corrections Law § 138(4) which states: "Inmates shall not be
disciplined for making written or oral statements, demands, or
requests involving a change of institutional conditions,
policies, rules, regulations, or laws affecting an institution."
Plaintiff asserts a claim under 42 U.S.C. § 1983 against
defendants, as employees of the New York State prison system
acting under color of state law, for the alleged retaliation
against him 180 days in the SHU for exercising his First
Plaintiff pursued his § 1983 action pro se for more than a
decade, including the appeal of its dismissal to the United
States Court of Appeals for the Second Circuit. In July 2002,
however, the court appointed trial counsel for plaintiff.
II. Motion to Substitute
Plaintiff received defendants' pre-trial papers on September
18, 2002, which informed him that defendants Ciaschi and Decker
were deceased. See Dkt. No. 146, Brennan Aff. at ¶ 4. According to the New York State Attorney General's
Office*fn1 ("the State"), Ciaschi died on April 30, 1995,
and Decker died on April 15, 1997. See Dkt. No. 146, Brennan
Aff. at ¶ 4. Counsel for defendants failed to notify plaintiff of
the deaths of these defendants. See id. at ¶ 6. Plaintiff's
counsel contacted the Attorney General's Office and requested
information on the personal representatives of the decedents, but
the Attorney General's Office indicated that the State was not in
possession of that information. See id. at ¶ 7. On November
4, 2002, the Attorney General's Office filed a "Suggestion of
Death" on the record as required for each decedent by Rule 25(a)
of the Federal Rules of Civil Procedure. See id. at ¶ 8.
Plaintiff's counsel avers upon information and belief that Decker
died intestate and that no action was taken in the Cayuga County
Surrogate's Court. He is survived by his wife Jeanne Decker, whom
plaintiff alleges is a distributee of his estate. See Dkt. No.
146, Brennan Aff. at ¶ 10. Counsel similarly avers upon
information and belief that Ciaschi is survived by his wife Mary
Beth Ciaschi who was a distributee of his estate and served as a
Voluntary Administrator of the estate. See id. at ¶ 11. Mary
Beth Ciaschi has since remarried and is now known as Beth
Pethybridge. See Dkt. No. 145, Pl.'s Mem. of Law in Supp. of
Mot. at 1. The New York State Attorney General has filed an
appearance on behalf of Jeanne Decker and Beth Pethybridge who,
in addition to the remaining defendants, oppose plaintiff's
I. Survivability of Plaintiff's Claim Under 42 U.S.C. § 1983
A. In General
Plaintiff's claim arises under 42 U.S.C. § 1983. In determining
whether a claim brought under 42 U.S.C. § 1983 survives the death
of a defendant, the court must consider the law of the state in which the action arose. See Blissett v. Eisensmidt,
940 F. Supp. 449, 457 (N.D.N.Y. 1996) (McCurn, S.J.) (citing
Barrett v. United States, 651 F. Supp. 604, 605 (S.D.N.Y.
1986)). Here, the relevant statute is New York Estates, Powers
and Trusts Law ("EPTL") § 11-3.2(a)(1), which states, in
pertinent part, that "[n]o cause of action for injury to person
or property is lost because of the death of the person liable for
the injury. For any injury, an action may be brought or continued
against the personal representative of the decedent . . ."
The State argues that only "personal injury" claims will
survive the death of a defendant. See Dkt. No. 149, Def.'s Mem.
of Law in Supp. of Mot. at 9-10. The State argues that when New
York EPTL § 11-3.2(a)(1) makes mention of "injury to person," the
definition of "personal injury" offered in New York Gen. Constr.
Law, § 37-a is applicable. The definition reads as follows:
"Personal injury" includes libel, slander and malicious
prosecution; also an assault, battery, false imprisonment, or
other actionable injury to the person either of the plaintiff, or
of another. New York Gen. Constr. Law, § 37-a. The State argues
that this definition is all-inclusive and because there is no
mention of 42 U.S.C. § 1983 retaliation claims, such claims do
not survive the death of a defendant. The court disagrees.
In Blissett, the court assumed, without explanation, that the
plaintiff's § 1983 claim for excessive force in violation of the
Eighth Amendment survived the death of a named defendant (a
correctional officer at a correctional facility). See
Blissett, 940 F. Supp. at 457. Because the § 1983 claim at issue
was not based on retaliation, the court made no mention of
personal injury being required for survival of the § 1983 claim,
nor did it note that retaliation claims cannot survive the death
of a named defendant. See id. In Barrett, the court held
that § 1983 claims can survive the death of both the defendant
and the plaintiff. See Barrett, 651 F. Supp. at 605-606. In
Pratt v. Bernstein, 553 F. Supp. 110, 117 (S.D.N.Y. 1981), the court held
that § 1983 claims for personal injury will survive the death of
the person liable. The court did not hold that only § 1983
claims for personal injury will survive the death of the person
liable, nor did they hold that § 1983 claims for retaliation do
not survive the death of the defendant. See Pratt,
553 F. Supp. at 117.
Although there is no case law available specifically holding
that § 1983 retaliation claims survive the death of the person
liable, there is no case law to the contrary. Furthermore, other
types of § 1983 claims have survived the death of the defendant.
For instance, in Swiggett v. Coombe, 2003 WL 174311, at * 1-3
(S.D.N.Y. January 27, 2003), the court impliedly held that a
state prison inmate could have substituted parties where the
defendant prison officials had passed away prior to the
conclusion of a § 1983 due process claim had the plaintiff timely
filed the motion to substitute and named the proper parties for
substitution. Courts have also held that other § 1983 claims
survive the death of the plaintiff. See Javits v. Stevens,
382 F. Supp. 131 (S.D.N.Y. 1974) (holding that a civil rights
action survived the plaintiff attorney's death where he was
seeking injunctive and declaratory relief vacating an order which
suspended the attorney from practicing law for three years).
Because no court has held that § 1983 retaliation claims do not
survive the death of the defendant in New York and further,
because no court has held that only § 1983 "personal injury"
claims survive the death of the defendant, plaintiff's § 1983
retaliation claim survives the death of defendants Decker and
Ciaschi. See Barrett, 651 F. Supp. at 606.
B. Plaintiff's Claim for Punitive Damages
While plaintiff's 42 U.S.C. § 1983 retaliation claim survives
the death of defendants Decker and Ciaschi, his claim for
punitive damages does not survive their deaths. New York law is
very clear on this matter. New York EPTL § 11-3.2(a)(1) allows a party
to continue with a cause of action where the opposing party dies
during the course of litigation, but "punitive damages shall not
be awarded nor penalties adjudged in any such action brought
. . ." Also, "[t]here is a strong policy against the assessment
of punitive damages against an estate on account of wrongful
conduct of the decedent[.]" Blissett, 940 F. Supp. at 457
(citations omitted). The court in Blissett further noted that
punitive damages are "clearly beyond the scope of relief which
[New York EPTL § 11-3.2(a)(1)] authorizes." Id.
Plaintiff's request for punitive damages based on his § 1983
retaliation claim as against defendants Ciaschi and Decker does
not survive their deaths and therefore must be dismissed as to
II. Substitution of Parties
A. Proper Parties
The Federal Rules, rather than state-law principles, govern the
procedure for substitution following a party's death, even where
the court must apply state substantive law. Servidone Constr.
Corp. v. Greenberg, 156 F.3d 414, 416 (2d Cir. 1998) (citations
omitted). Pursuant to Rule 25 of the Federal Rules of Civil
Procedure, substitution of parties in a civil action may be
allowed upon the death of a named party:
If a party dies and the claim is not thereby
extinguished, the court may order substitution of the
proper parties. The motion for substitution may be
made by any party or by the successors or
representatives of the deceased party and, together
with the notice of hearing, shall be served on the
parties as provided in Rule 5 and upon persons not
parties in the manner provided in Rule 4 for the
service of a summons, and may be served in any
judicial district. Unless the motion for substitution
is made not later than 90 days after the death is
suggested upon the record by service of a statement
of the fact of death as provided herein for the
service of the motion, the action shall be dismissed
as to the deceased party (emphasis added). Rule 25 only permits the substitution of "proper
parties." See Unicorn Tales, Inc. v. Banerjee,
138 F.3d 467, 469 (2d Cir. 1998). It is well settled
that when a defendant in a § 1983 action dies . . .
the proper party to substitute is the successor of
the deceased or the representative of his estate.
Swiggett, 2003 WL 174311, at * 2 (citations
A "representative" of the deceased party's estate is a proper
party for substitution. Sinito v. United States Dept. of
Justice, 176 F.3d 512
, 516 (D.C. Cir. 1999). The law of the
forum state determines the capacity of the parties to sue and be
sued, and under the applicable New York law, a representative is
a person who has received letters to administer the estate of a
decedent. Collins v. American Automobile Insurance Co.,
230 F.2d 416
, 422 (2d Cir. 1956); New York EPTL § 1-2.13. In such
cases, the representative is usually either the appointed
administrator or executor of the decedent's estate. See
Collins, 230 F.2d at 422; accord Al-Jundi v. Rockefeller,
88 F.R.D. 244, 246 (W.D.N.Y. 1980).
a. Mary Beth Ciaschi Pethybridge
Mary Beth Ciaschi Pethybridge was the Voluntary Administratrix
of defendant Charles Ciaschi's estate. See Dkt. No. 146, Ex. D.
Under New York EPTL § 1301, a voluntary administratrix is "a
person who qualifies and undertakes to settle the estate of the
decedent without the formality of court administration. . . ."
Acting as Voluntary Administratrix of her deceased husband's
estate, by itself, does not meet the requirements of a
"representative" for the purposes of substitution in New York.
Plaintiff has offered no proof that Ms. Ciaschi Pethybridge
received any letters to administer the estate of Charles Ciaschi.
See New York EPTL § 1-2.13. Plaintiff has only produced an
"Affidavit in Relation to Settlement of Estate Pursuant to
Article 13, SCPA" signed by Mary Beth Ciaschi in December of 1995. This document fails to
show that testamentary letters of administration were ever
granted to Mary Beth Ciaschi regarding the Estate of Charles
Ciaschi, and therefore, under New York law, plaintiff has failed
to establish that Mary Beth Ciaschi was a "representative" of her
deceased husband's estate.
b. Jeanne Decker
With regard to Jeanne Decker, plaintiff has merely produced a
computer print-out of the obituary of defendant John Nelson
Decker. Dkt. No. 146, Ex. C. While the obituary states that
Jeanne Decker was defendant John Nelson Decker's wife of
fifty-one years, it establishes nothing more than that. See
id. Therefore, plaintiff has failed to establish that Jeanne
Decker was a representative of the estate of her late husband
John Nelson Decker or that he had an estate.
Under Rule 25(a), a "successor" of the deceased party is also a
proper party for substitution. A successor of the deceased party
is a "distributee" of the decedent's estate if the decedent's
estate has been distributed at the time the motion for
substitution has been made. Gronowicz v. Leonard,
109 F.R.D. 624, 626 (S.D.N.Y. 1986) (citations omitted); see e.g., Hardy
v. Kaszycki & Sons Contractors, Inc., 842 F. Supp. 713, 716-717
(S.D.N.Y. 1993) (holding that the deceased defendant trustee's
wife was a representative of her husband's estate and a proper
party for substitution purposes where the wife was the primary
distributee of her deceased husband's estate).
a. Mary Beth Ciaschi Pethybridge
As previously noted, plaintiff submitted the Affidavit in
Relation to Settlement of Estate Pursuant to Article 13, SCPA to
show that Mary Beth Ciaschi Pethybridge is a proper party for substitution of deceased defendant Charles Ciaschi. See Dkt.
No. 146, Ex. D. While this document fails to show that
testamentary letters of administration were ever granted to Mary
Beth Ciaschi regarding the Estate of Charles Ciaschi, it reveals
that Mary Beth Ciaschi was the primary distributee of the Estate
of Charles Ciaschi. See Dkt. No. 146, Ex. D. The affidavit
further reveals that the proceeds of the estate were distributed.
See id. Because the estate appears to have settled sometime
in 1995, and the motion to substitute parties was not filed until
2002, Mary Beth Ciaschi Pethybridge is a "successor" of deceased
defendant Charles Ciaschi, and she is therefore a proper party
Because the Estate of Charles Ciaschi has apparently been
settled and the proceeds fully distributed, a discretionary
denial of substitution in this case would not further the
principal reason for such a denial. See Saylor v. Bastedo,
623 F.2d 230, 237 (2d Cir. 1980) (stating that the principal
reason for discretionary denial of substitution of parties is to
promote the prompt settlement and distribution of the estate of
deceased defendants). Furthermore, the State has failed to
establish that Mary Beth Ciaschi Pethybridge is not an individual
who can "adequately represent the interests of the deceased
party." See Sinito, 176 F.3d at 516 (stating that "[i]t is
axiomatic that Rule 25 limits properly substituted parties to
those individuals who can adequately represent the interests of
the deceased party.").
b. Jeanne Decker
As noted above, with respect to Jeanne Decker, plaintiff's lone
submission was a computer print-out of defendant John Nelson
Decker's obituary. Dkt. No. 146, Ex. C. The obituary fails to
prove that Jeanne Decker was a distributee of John Nelson
Decker's estate, if one did exist. See id. Plaintiff,
therefore, has failed to establish that Jeanne Decker was a
"successor" of John Nelson Decker and because plaintiff also failed to establish that Jeanne
Decker was a "representative" of John Nelson Decker's estate,
plaintiff has not shown that Jeanne Decker is a "proper party."
Therefore, plaintiff's request for substitution of Jeanne Decker
for John Nelson Decker is denied. Furthermore, deceased defendant
John Nelson Decker is dismissed from the case.
B. Timeliness of Motion to Substitute
Plaintiff's motion for substitution was made, and the proper
party (Mary Beth Ciaschi Pethybridge) served, within the ninety
day time period required by Fed.R.Civ.P. 25(a). On November 4,
2002, the Attorney General filed a "Suggestion of Death" on the
record as required by Fed.R.Civ.P. 25(a) for each decedent. See
Dkt. No. 146, Ex. C. Plaintiff filed his motion for substitution
on January 27, 2003. See Dkt. No. 144, Notice of Mot.
III. Substitution is Not Prejudicial To Any Party
The decision by the court to grant substitution is
discretionary. See Saylor v. Bastedo, 623 F.2d 230, 236-237
(2d Cir. 1980) (citing Anderson v. Yungkau, 329 U.S. 482,
485-486, 67 S.Ct. 428, 91 L.Ed. 436 (1947)). The discretionary
nature of a motion to substitute parties is established by the
use of the word "may" in Fed.R.Civ.P. 25(a)(1). See Saylor,
623 F.2d at 236. In Saylor, the Second Circuit stated that in
the exercise of sound discretion, a court may deny a motion to
substitute a proper party for a deceased defendant if the
suggestion of death is not made or is delayed and circumstances
have arisen rendering it unfair to allow substitution. See
id. at 237. "The principal reason for such a discretionary
denial is to promote the prompt settlement and distribution of
the estate of deceased defendants." Id.
A. Proof of an Estate for Charles Ciaschi and the Effects of
Its Settlement The State erroneously contends that there is no proof that an
estate ever existed for Charles Ciaschi. See Dkt. No. 149,
Def.'s Mem. of Law in Supp. of Mot. at 18-19. As set forth above,
the Affidavit in Relation to Settlement of Estate Pursuant to
Article 13, SCPA shows: that there was in fact an estate for
Charles Ciaschi; that Mary Beth Ciaschi was Voluntary
Administrator of said estate; and, that she was also the primary
distributee of the estate. See Dkt. No. 146, Ex. D.
Furthermore, the affidavit reveals that the estate appears to
have settled and its proceeds were distributed sometime in 1995,
shortly following the death of Mr. Ciaschi. See id.
The State cited two cases in which courts held that due to the
fact that the estates of deceased defendants had been long
settled, substitution was denied. See Dkt. No. 149, Def.'s Mem.
of Law in Supp. of Mot. at 16-19. In Saylor v. Bastedo, the
Second Circuit affirmed based only in part on the fact that the
estate of the deceased defendant had been settled. See
Saylor, 623 F.2d at 236-237. The Second Circuit also affirmed
because the deceased party had not been deposed prior to his
death, and his sons were unable to produce documents evidencing
his alleged misconduct. Id. at 235. Here, Mr. Ciaschi and Mr.
Decker were questioned by plaintiff through Mr. Mahunik at the
Tier III Disciplinary Procedure on July 12 and 13, 1989. See
Dkt. No. 141, Sec. 8. Both defendants also answered
interrogatories. See Dkt. No. 25 and 31. There is also other
evidence related to defendant Ciaschi in the record. Moreover,
the three other defendants connected with the claim are still
alive and can and have produced evidence relating to the alleged
misconduct by Mr. Ciaschi. The other case cited by the State
denied substitution of the wife and executrix of the estate of
the deceased party where the estate had long been settled. See
TWI Int'l, Inc. v. Vanguard Oil and Serv. Co., 1994 WL 191884,
at * 2 (S.D.N.Y. May 17, 1994). The fact that the estate had been
long-settled was not the only consideration at hand See TWI
Int'l, Inc., 1994 WL 191884, at * 2. In TWI, the party seeking substitution had already been
granted a judgment against the deceased defendant. See id.
More importantly though, the stipulation sought to be enforced by
the plaintiff had no effect because it had been signed months
after the death of the decedent. See TWI Int'l, Inc., 1994 WL
191884, at *2.
Because these two cases are distinguishable on several grounds
and because the court has discretion to grant or deny
substitution, the mere fact that the estate has long been settled
does not persuade the court to deny substitution.
B. Ms. Ciaschi's Involvement in the Litigation Thus Far
The State argues that Ms. Ciaschi has not been involved in the
litigation thus far and therefore should not be substituted.
See Dkt. No. 149, Def.'s Mem. of Law in Supp. of Mot. at 14-19.
The State supports their argument with the ruling in Crotty v.
City of Chicago Heights, 1990 WL 6816, at * 1-2 (N.D. Ill.
January 10, 1990). There, the court held that substitution of the
executor of the decedent party's estate was inappropriate because
the executor had not been involved in the litigation to that
point. See id. Again, that was not the only reason behind the
court's denial of substitution. See id. Here, Ms. Ciaschi was
married to Charles Ciaschi until his death in 1995. She has also
been involved in the litigation since being named as a candidate
for substitution for Charles Ciaschi in 2003. Therefore, the
court is not persuaded by this argument to deny substitution.
The State also argues that substitution should be denied
because the candidate(s) submitted for substitution must be able
to adequately represent the interests of deceased parties. See
Crotty, 1990 WL 6816, at * 2. This court does not foresee any
problems regarding adequate representation of the interests of
the deceased defendant. Therefore, without more, the court is not
persuaded to deny substitution on these grounds. C. Imminency of Trial
The State erroneously states that trial is imminent. At this
point in time, there is no trial date on the calendar and
therefore trial is not imminent.
D. Possibility of Separate Suit is not Required
The State next argues that the motion to substitute should be
denied unless plaintiff has the ability to bring a separate suit
against Ms. Ciaschi regarding his allegations. This is a
misinterpretation of the law. The State cites McManus v. Lykes
Brothers Steamship Co., Inc., 275 F. Supp. 361, 364 (E.D. La.
1967) in support of this argument. In that case, the plaintiff
died, and furthermore, no motion to dismiss was ever filed. See
id. at 362. When the court was referring to requiring the
substituted party to be able to bring a separate suit against the
adversarial parties, the court was speaking of substitution for a
deceased plaintiff. See id. at 364. Although the McManus
court generalized this issue, the context of that case leads to
the conclusion that the court was not referring to situations
such as the one before this court (where a plaintiff seeks to
substitute someone for a deceased defendant). See id. More
importantly, the court in McManus was applying Louisiana law.
See id. Mr. Graham does not need to be able to bring a
separate suit against Ms. Ciaschi in order for this court to
grant his motion for substitution of Ms. Ciaschi Pethybridge for
her late husband, defendant Charles Ciaschi.
The court has the discretion to deny substitution of proper
parties if it sees fit to do so. See Saylor, 623 F.2d at
236-237. For the reasons stated above, however, this court is not
persuaded by any of the State's arguments to deny the plaintiff's
motion to substitute Mary Beth Ciaschi Pethybridge for deceased defendant Charles Ciaschi. It appears to
the court that it would be unfair and unjust to deny plaintiff's
motion to substitute on the grounds suggested by the State. This
is so because it was due to the lack of diligence on the part of
the defendants that Mr. Graham, proceeding pro se at the time,
did not learn of the deaths of Mr. Ciaschi and Decker for seven
and five years (respectively) after their deaths.
WHEREFORE, after careful consideration of the file in this
matter and the parties' submissions, as well as the applicable
law, the court hereby
ORDERS, that Patrick Graham's motion to substitute Mary Beth
Ciaschi Pethybridge for deceased defendant Charles Ciaschi,
pursuant to Federal Rule of Civil Procedure 25, is GRANTED; the
ORDERS, that Patrick Graham's motion to substitute Jeanne
Decker for deceased defendant John Nelson Decker, pursuant to
Federal Rule of Civil Procedure 25, is DENIED; the court further
ORDERS, that John Nelson Decker be dismissed from the case;
the court further
ORDERS, that the Clerk of the Court amend the case caption,
as reflected in the caption above: Mary Beth Ciaschi Pethybridge
shall be substituted for Charles Ciaschi and John Nelson Decker
shall be deleted.
IT IS SO ORDERED.