                                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                        No. 05-2001




                                     TONY COSTER,
                                               Appellant

                                              v.

               HARRELL WATTS, Administrator National Inmate Appeals;
              M.E. RAY, Regional Director, NERO; JOHN J. LAMANNA,
              Warden F.C.I. McKean; CINDY BILLISITS, A.W. Programs,
               F.C.I. McKean; DENNIS OLSON, MD Clinical Director,
                F.C.I. McKean; BONNIE SAYLOR, NP, F.C.I. McKean




                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                  D.C. No.03-CV-00025
                      District Judge: Honorable Sean J. McLaughlin


                                 Argued February 2, 2010

      Before: MCKEE, Chief Judge, HARDIMAN, Circuit Judge, and POLLAK,*
                                  District Judge

                                  (Filed: August 9, 2010)
                                           _____

                                         OPINION
                                          ______

*
 Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
Thomas J. Roberts, Esq. (Argued)
Williams & Connolly
725 12 th Street, N.W.
Washington, DC 20005
               Counsel for Appellant


Donovan J. Cocas, Esq. (Argued)
Laura S. Irwin, Esq.
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
              Counsel for Appellees


POLLAK, District Judge.

       On January 21, 2003 Tony Coster filed a pro se complaint in the District Court for

the Western District of Pennsylvania alleging that defendants were deliberately indifferent

to his serious medical condition in violation of the Eighth Amendment pursuant 42 U.S.C.

§ 1983. The District Court granted summary judgment in favor of defendants, who will,

collectively, be referred to as “the government.”1 On appeal, Coster argues that the

District Court erred in: (1) granting summary judgment to defendants on the ground that

plaintiff’s Eighth Amendment claim of deliberate indifference amounted to no more than


1
  Defendants are (1) Harrell Watts, the Administrator of National Inmate Appeals for the Federal
Bureau of Prisons; (2) M.E. Ray, The Regional Director of the Bureau of Prisons Northeast
Regional Office; (3) John LaManna, Warden of F.C.I. McKean; (4) Cindy Billisits, Associate
Warden of Programs at F.C.I. McKean; Dennis Olson, M.D., (5) the clinical director at F.C.I.
McKean; (6) Herbert Beam, M.D., a staff physician at F.C.I. McKean; (7) Gracia Fairbanks, an
employee of the medical services department at F.C.I. McKean; and (8) Bonnie Saylor, a Nurse
Practitioner at F.C.I. McKean.


                                              -2-
disagreement over treatment methods, and (2) denying plaintiff’s motion to amend the

complaint to add the United States as a defendant. For the reasons that follow, we will

dismiss the appeal pursuant to Federal Rule of Appellate Procedure 43.




                                              I.

       Because we write primarily for the parties, we recount only the essential facts.

Coster was a federal inmate in the custody of the Bureau of Prisons serving a lengthy

sentence of incarceration pursuant to a conviction in the District Court for the Northern

District of Ohio. On April 6, 2001, he was transferred to Federal Correctional Institute-

McKean, which is located near Bradford, Pennsylvania. After his repeated requests for

hernia surgery were denied, Coster filed his pro se complaint in the District Court for the

Western District of Pennsylvania alleging a violation of the Eighth Amendment. The

District Court granted summary judgment on March 21, 2005 and Coster timely appealed.

In January 2006, Coster sought appointment of counsel on his appeal. On September 18,

2006, Coster filed, in the District Court for the Northern District of Ohio, a request for

compassionate release from incarceration, which that court granted on October 27, 2006.

It appears that Coster died one month later. (We employ the phrase “it appears that”

because this court received no contemporaneous notice of his death.).

       Unaware of Coster’s demise, this court granted Coster’s motion for appointment of

counsel on October 12, 2007, appointing Williams & Connolly, LLP, as pro bono counsel



                                              -3-
pursuant to 28 U.S.C. §1915(e)(1). Appointed counsel failed to learn that Coster was

deceased until April 2009, some eighteen months later, and then only when the

government so informed him. On July 7, 2009, based on Coster’s death, appointed

counsel filed a motion for substitution of a party pursuant to Rule 43, which the

government opposed. On August 20, 2009, this court granted the motion for substitution

of a party but stated that “any issues with respect to the adequacy of proof regarding the

identity of decedent’s representative are referred to a merits panel.” At oral argument on

February 2, 2010, it was brought to our attention that appointed counsel was representing

Jamere Nelson, who was identified as Coster’s son, as the substituted party. The

government argued that substitution was improper given: (1) counsel’s assertedly

“inexcusable” delay in seeking substitution, and (2) the lack of evidence showing that

Nelson was, in fact, Coster’s son. We directed the parties to attempt to come to an

agreement as to the representative of the deceased and to submit a joint letter to the court.

       On February 9, 2010, the government filed a letter pursuant to Rule 28(j) asking the

court to dismiss Coster’s appeal on the ground that it was moot for lack of jurisdiction and

untimely under Federal Rule of Appellate Procedure 43(a). Rule 43(a)(1), which governs

substitution of a party after a notice of appeal has been filed, provides that:

      If a party dies after a notice of appeal has been filed or while a proceeding is pending
      in the court of appeals, the decedent’s personal representative may be substituted as
      a party on motion filed with the circuit clerk by the representative or by any party. . .
      . If the decedent has no representative, any party may suggest the death on the
      record, and the court of appeals may then direct appropriate proceedings.



                                              -4-
Fed. R. App. 43(a).2 On February 23, 2010 appointed counsel filed a letter arguing that

dismissal was not appropriate and advising the court that “There is now a representative

who is prepared to prosecute these claims. . . . He is moving forward toward opening Mr.

Coster’s estate in probate court in Ohio and will seek to become the executor of the

estate.” Counsel then requested “reasonable time be allowed for him to open the estate of

Mr. Coster and seek appointment as the executor of the estate.” On March 3, 2010, this

court issued a 45-day Order to Show Cause as to why the case should not be dismissed

pursuant to Rule 43.

       On April 19, 2010, appointed counsel filed a supplemental letter pursuant to Rule

28(j) informing the court that on April 6, 2010, Sherine Coster, stated to be Coster’s niece,

had submitted an application in the Probate Court of Cuyahoga County, Ohio to administer

Coster’s estate. According to appointed counsel’s supplemental letter, a hearing was to be

held in the Probate Court on May 17, 2010. Appointed counsel concluded by asking this

court to exercise its discretion to grant a relative of the deceased status as that party’s

representative for purposes of the appeal on a provisional basis, pending the outcome of

Sherine Coster’s application to become the executor of Tony Coster’s estate. The


2
   The government submits that “the official notes to Rule 43(a) of the Federal Rules of
Appellate Procedure indicate that the drafters intended the rule to function similarly to Rule
25(a) of the Federal Rules of Civil Procedure.” Rule 25 permits a court to deny a motion to
substitute a party if the “notice of death is made ‘long after the death’ of the party and
‘circumstances have arisen rendering it unfair to allow substitution.’” That note states in relevant
part that a motion to substitute under that rule “may be denied . . . if made long after the death . . .
and circumstances have arisen rendering it unfair to allow substitution.”


                                                 -5-
government response, filed on April 20, 2010, repeated its arguments in favor of

dismissing the appeal pursuant to Rule 43.

       May 17, 2010 came and went, and appointed counsel never informed the court of

the outcome of the state court proceeding. On May 21, 2010 the government renewed its

request that the appeal be dismissed for lack of jurisdiction and for untimeliness of

substitution pursuant to Rule 43. On July 19, 2010, the government informed the court

that the May 17 hearing in Probate Court had apparently been continued to July 7, 2010.

The government asked the court to order appointed counsel to provide the government

with the name and contact information of the person appointed to administer Coster’s

estate; in the alternative–in the event that no one had been appointed to administer

Coster’s estate–the government asked the court to dismiss the appeal pursuant to Rule 43.

Nothing further has been heard from appointed counsel.




                                             II.

       Due to this long history and the failure of appointed counsel to find a suitable

representative and to inform this court of the proceedings in the Ohio Probate Court, this

appeal will be dismissed pursuant to Rule 43. Appointed counsel has been afforded

numerous opportunities to find a substitute. “[A]t some point, the failure to substitute a

proper party for a deceased appellant moots the case. Under Article III, our jurisdiction . .

. is limited to cases and controversies. We fail to see how any live case or controversy can



                                             -6-
exist when a deceased appellant has not been replaced with a legal representative.” Oritz

v. Dodge, 126 F.3d 545, 550-51 (3d Cir. 1997); cf. Marbury v. Madison, 1 Cranch 137

(1803) (federal courts have jurisdiction only where cases and controversies are properly

before them). A judgment accompanies this opinion.




                                            -7-
