Harry v. Nichols, 3:17-cv-328-MCR/MJF. (2019)
Court: District Court, N.D. Florida
Number: infdco20190705965
Visitors: 6
Filed: Jun. 05, 2019
Latest Update: Jun. 05, 2019
Summary: REPORT AND RECOMMENDATION MICHAEL J. FRANK , District Judge . This prisoner civil rights case, filed under 42 U.S.C. 1983, is before the court on referral from the clerk of the court. On March 1, 2019, Defendants Nichols and Brady filed a Suggestion of Death noting that Plaintiff was deceased. (Doc. 72). The Defendants identified Plaintiff's next-of-kin as Lizette Whitaker. ( Id. ). On March 6, 2019, the court ordered Defendants to file a notice certifying the date they served the Sugges
Summary: REPORT AND RECOMMENDATION MICHAEL J. FRANK , District Judge . This prisoner civil rights case, filed under 42 U.S.C. 1983, is before the court on referral from the clerk of the court. On March 1, 2019, Defendants Nichols and Brady filed a Suggestion of Death noting that Plaintiff was deceased. (Doc. 72). The Defendants identified Plaintiff's next-of-kin as Lizette Whitaker. ( Id. ). On March 6, 2019, the court ordered Defendants to file a notice certifying the date they served the Suggest..
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REPORT AND RECOMMENDATION
MICHAEL J. FRANK, District Judge.
This prisoner civil rights case, filed under 42 U.S.C. § 1983, is before the court on referral from the clerk of the court. On March 1, 2019, Defendants Nichols and Brady filed a Suggestion of Death noting that Plaintiff was deceased. (Doc. 72). The Defendants identified Plaintiff's next-of-kin as Lizette Whitaker. (Id.). On March 6, 2019, the court ordered Defendants to file a notice certifying the date they served the Suggestion of Death on Ms. Whitaker. (Doc. 74). The order also provided notice that a motion for substitution of Plaintiff must be filed within 90 days after service of the Suggestion of Death. (Doc. 74). Ms. Whitaker was served with the Suggestion of Death on March 4, 2019. (Doc. 76 and Attach.). No motion for substitution has been filed. Rule 25 of the Federal Rules of Civil Procedure provides:
If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
Fed. R. Civ. P. 25(a)(1). Ninety days have passed since service of Defendants' Suggestion of Death, and no motion for substitution has been filed. Accordingly, it is respectfully RECOMMENDED that:
1. This action be DISMISSED under Rule 25(a)(1) of the Federal Rules of Civil Procedure.
2. All pending motions be DENIED AS MOOT.
3. The clerk be directed to close the case file.
Source: Leagle
