REPORT AND RECOMMENDATION

GARY R. JONES, Magistrate Judge.

Plaintiff, a pro se prisoner litigant, initiated this case by filing a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff was granted leave to proceed as pauper. (ECF No. 10.) He thereafter filed a second amended complaint, which is the operative complaint in this matter. (ECF No. 15.)

After screening the second amended complaint ("Complaint") the Court concluded that the allegations of the Complaint were sufficient to alert Defendants to the nature and factual basis of Plaintiff's claims and therefore directed service of the Complaint on Plaintiff's behalf. (ECF No. 17.) One of the Defendants upon whom the Court directed service was Mr. Speights, an assistant warden at Jefferson Correctional Institution ("Jefferson CI"). (Id.) According to Plaintiff, Mr. Speights failed to intervene in another defendant's use of excessive force against Plaintiff in violation of Plaintiff's Eight Amendment rights. (ECF No. 15.)

On May 3, 2018, however, the summons for Mr. Speights was returned unexecuted, noting that the server was unable to serve the summons on Mr. Speights because Mr. Speights is deceased. (ECF No. 24.) The Court therefore issued an order to show cause to Plaintiff explaining that "[t]he only way Plaintiff would be able to pursue claims against someone who is deceased is via the decedent's estate—assuming the decedent even has an estate. In that case, Plaintiff must name a personal representative of the estate." (ECF No. 27.) The Court gave Plaintiff an opportunity to provide further information to the Court as to a personal representative of Mr. Speights' estate and advised Plaintiff that if he could not name a personal representative of Mr. Speights' estate, he could not pursue claims arising from Mr. Speights' alleged unlawful conduct. (Id.) The Court further advised that if he could not name a personal representative of Mr. Speights' estate, a recommendation of dismissal with regard to Mr. Speights would be appropriate. (Id.) (citing Fed. R. Civ. P. 4(m); Wayne v. Jarvis, 197 F.3d 1098 (11th Cir. 1999); Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (affirming dismissal of claims against officer only identified as "John Doe (Unknown Legal Name), Guard, Charlotte Correctional Institute").

Plaintiff responded to the Court's order to show cause by requesting the Court to provide Mr. Speights' full legal name and former home address so Plaintiff could find out whether Mr. Speights left an estate. (ECF No. 29.) According to Plaintiff, the process server had this information. (Id.)

The Court explained, however, that neither the process server nor the Court has the information Plaintiff requested. (ECF No. 30.)1 Furthermore, even assuming the Florida Department of Corrections ("FDOC") had provided Mr. Speights' former address, the Court noted that such information would be confidential. (Id.) (citing Fla. Stat. § 119.071(4)(d)2.a.(I)). The Court therefore denied Plaintiff's request and again advised Plaintiff that if he could not name a personal representative of Mr. Speights' estate by June 6, 2018, he could not pursue claims arising from Mr. Speights' alleged unlawful conduct and a report and recommendation of dismissal with regard to Mr. Speights would be appropriate. (Id.)

Plaintiff has now responded, arguing that he is entitled to pre-suit discovery, aided by the Court, pursuant to Billman v. Indiana Dep't of Corr., 56 F.3d 785 (7th Cir. 195). He also contends that if Mr. Speights simply no longer worked for the FDOC, the FDOC would have provided the information in confidence to the Court and the process server would have then served Mr. Speights at his home address. He further argues that the confidentiality provision in § 119.071(4)(d)2.a.(I) should yield to his right to have his lawsuit served. Presumably, Plaintiff means the Court has the authority to order the FDOC to provide Mr. Speights' former home address.

For starters, even assuming the Court had the authority to order the FDOC to provide Mr. Speights' former address in confidence, Plaintiff still has not provided a name to whom the summons should be served. See Fed. R. Civ. P. 4(a)(1)(B) (requiring the summons to be directed to the defendant).

Further, to the extent Plaintiff argues that he is entitled to pre-suit discovery, aided by the Court pursuant to Billman, this Court is not bound by Billman, a Seventh Circuit case. Plaintiff has identified no binding authority from either the Supreme Court of the United States or the United States Court of Appeals for the Eleventh Circuit requiring this Court to grant Plaintiff pre-suit discovery or somehow aid Plaintiff in some form of pre-suit discovery.

Regardless, the issue in Billman was different from the issue in this case. In Billman the district court dismissed a state prisoner's action raising Eighth Amendment claims with prejudice as frivolous because the complaint did not name the specific individual defendants, nor did it allege the requisite state of mind for any of the defendants. 56 F.3d at 787-88. On appeal, the Seventh Circuit explained,

Id. at 789. The Seventh Circuit noted, however, that "[t]he absence of names creates justifiable skepticism concerning this claim, but for the reasons previously set forth a determination of frivolousness would be premature when the plaintiff has been given no chance to explain why he cannot (if he cannot) identify the guilty guards." Id. at 790. Accordingly, the Seventh Circuit reversed in part and remanded the case to the district court with directions that the district court reinstate the suit against the individual defendants and assist the prisoner, within reason, to make the necessary pre-suit investigation in an attempt to identify the individual defendants. Id.

This case is different. This case involves a situation where the individual defendant is deceased. Billman did not address whether it would be appropriate for the district court to assist Plaintiff in discovering whether a decedent left an estate and if so, the name of the personal representative of that estate.

Moreover, unlike the district court in Billman, this Court gave Plaintiff two opportunities to identify a personal representative of Mr. Speights' estate. Plaintiff has not suggested that he utilized those opportunities by attempting to somehow discover whether Mr. Speights left an estate.

Furthermore, unlike Billman, this Court has not recommended the dismissal with prejudice of Plaintiff's entire complaint as frivolous. Nor is the Court recommending the dismissal of Plaintiff's claims against Mr. Speights with prejudice. Rather, the court has authorized Plaintiff to proceed with his claims against two other individual defendants. In the event Plaintiff obtains information during discovery as to whether Mr. Speights left an estate and if so, the name of the personal representative of that estate, Plaintiff may file a motion for leave to amend his complaint so that he may name the personal representative of Mr. Speights' estate and proceed with his claims arising from Mr. Speights' alleged unlawful conduct.

At this juncture, however, Plaintiff cannot proceed with his claims against Mr. Speights because he cannot sue a defendant who is dead and he cannot sue a personal representative of Mr. Speights' estate because Plaintiff has not alleged there is an estate for Mr. Speights or a personal representative for the estate. Service of the Complaint, therefore, cannot be effectuated and dismissal of Plaintiff's claims against Mr. Speights without prejudice is appropriate.

Accordingly, it is respectfully RECOMMENDED that Plaintiff's claims against Mr. Speights should be DISMISSED without prejudice.

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only, and does not control. A copy of objections shall be served upon all other parties. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a report and recommendation, that party waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.