Opinion

Bonds v. McCain

Court
District Court, W.D. Louisiana
Filed
Mar 8, 2021
Cited by
0 cases
Authority
More cited than 22.6%

automatically substituting new warden in his official capacity for deceased warden defendant in a habeas corpus action

How later courts described this case

  • automatically substituting new warden in his official capacity for deceased warden defendant in a habeas corpus action

Written by the judges who cited it.

The opinion

d

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

KENNY BONDS #292089, CIVIL DOCKET NO. 1:20-CV-00293

Plaintiff SEC P

VERSUS JUDGE DAVID C. JOSEPH

W S SANDY MCCAIN ET AL, MAGISTRATE JUDGE PEREZ-MONTES

Defendants

MEMORANDUM ORDER

plaintiff Kenny Bonds (“Bonds”) filed a civil rights complaint,

pursuant to 42 U.S.C. § 1983. The named Defendants are Warden W.S.

Sandy McCain, James Longino, and Steve Bordelon.

Defendant W.S. Sandy McCain was dismissed on notice of death. ECF Nos.

12, 15. However, the current warden, Marcus Myers, was not substituted for Warden

McCain on the record.

Fed. R. Civ. P. 25(d) provides in pertinent part:

(d) Public Officers; Death or Separation from Office. An action does not

abate when a public officer who is a party in an official capacity dies,

resigns, or otherwise ceases to hold office while the action is pending.

The officer's successor is automatically substituted as a party. Later

proceedings should be in the substituted party's name, but any

misnomer not affecting the parties' substantial rights must be

disregarded. The court may order substitution at any time, but the

absence of such an order does not affect the substitution.

“The general term ‘public officer’ ... comprises Federal, State, and local officers.” Rule

25, Advisory Committee Notes, Note to Subdivision (d)(1). “In general [Rule 25(d)]

will apply whenever effective relief would call for corrective behavior by the one then

having official status and power, rather than one who has lost that status and power

through ceasing to hold office.” Note to Subdivision (d)(1); see also Kentucky v.

Graham, 473 U.S. 159, 166 n. 11 (1985); Aschan v. Auger, 861 F.2d 520, 521 n. 2 (8th

Cir. 1988) (automatically substituting new warden in his official capacity for deceased

warden defendant in a habeas corpus action); Dixon v. Barr, 2021 WL 415811, at □□□

3 (W.D. La. 2021); American Civil Liberties Union of Mississippi, Inc. v. Finch, 638

F.2d 1336, 1341-42 (5th Cir. 1981); Muslow v. Board of Supervisors of Louisiana

States University, 2020 WL 4471647, * 11 (E.D. La. 2020).

Because Warden Myers was automatically substituted as a Defendant by

operation of law, the Clerk of Court is DIRECTED to add Warden Marcus Myers to

the docket as a Defendant in substitution for Warden McCain.

SIGNED on Monday, March 8, 2021.

□□□

JOSEPH H.L. PEREZ-MONTES

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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