BARRY TED MOSKOWITZ, Chief District Judge.
Manuel Soares (Plaintiff), a prisoner proceeding pro se and in forma pauperis in this civil rights case pursuant 42 U.S.C. § 1983, in response to two Notifications of Death upon the record as to Defendant J. Hansson (ECF Nos. 83, 86), has filed a Motion for Substitution pursuant to FED. R. CIV. P. 25 (ECF No. 92).
Plaintiff seeks to substitute Defendant J. Hansson with the representative of his estate, Dr. Laura Leard, as a "party-defendant to this civil action" as Defendants have indicated in their Statement Regarding Appointment of Personal Representative (ECF No. 86 at 2), because she has been "named as the `personal representative' of the estate of J[.] Hansson." (ECF No. 92 at 5.)
Neither Defendants' August 16, 2016 Statement Noting Death (ECF No. 83), their subsequent Statement Regarding Appointment of Personal Representative (ECF No. 86), nor Plaintiff's Motion to Substitute (ECF No. 92), however, include proof of personal service on the non-party representative as required by FED. R. CIV. P. 25 and FED. R. CIV. P. 4. See FED. R. CIV. P. 25(a)(3); Barlow v. Ground, 39 F.3d 231, 233-34 (9th Cir. 1994).
A motion for substitution must be made within 90 days after service of a statement of death.
In this case, neither Defendants nor Plaintiff have complied with Rule 25(a)(3) and Rule 4's service requirements. Both Defendants' Statements Noting Death were properly served upon Plaintiff as a party by mail pursuant to FED. R. CIV. P. 5(b) (see ECF No. 83 at 4; Doc. No. 86 at 3), but neither include proof of personal service as required by Rule 4 upon Dr. Laura Leard, who has been identified as decedent Defendant J. Hansson's "non-party successor or representative" as is required by FED. R. CIV. P. 25(a)(3). See Barlow, 39 F.3d at 233-34. Plaintiff's Motion to Substitute also includes a proof of service by mail upon Terrence Sheehy, the Deputy Attorney General representing the remaining Defendants as provided by FED. R. CIV. P. 5(b) (see ECF No. 92 at 9), as well as proof of service by mail upon the attorney identified by Mr. Sheehy as the person to whom "inquiries relative to th[e] appointment" of Dr. Laura Leard, the personal representative of the estate of J. Hansson, "may be referred." (Id.; see also ECF No. 86 at 2). However, Plaintiff has not provided proof of having personally served Dr. Laura Leard as the non-party successor or representative as required by Rule 4 and FED. R. CIV. P. 25(a)(3). Barlow. 39 F.3d at 233-34.
Accordingly, Plaintiff's Motion to Substitute (ECF No. 92) is DENIED without prejudice, and Defendants are ORDERED to file a renewed statement noting the death of Defendant J. Hansson, accompanied by proof of service upon Dr. Laura Leard, the personal representative of the estate of J. Hansson, pursuant to Rule 4 and FED. R. CIV. P. 25(a)(3) within 30 days.
IT IS SO ORDERED.