Opinion
4:22-cv-00288-KGB
01-09-2023
ELIJAH KING PLAINTIFF v. MARK GOBER, et al. DEFENDANTS
ORDER
KRISTINE G. BAKER, UNITED STATES DISTRICT JUDGE
Before the Court are the Partial Recommended Disposition and the Recommended Disposition (“Recommendation”) of United States Magistrate Judge Joe J. Volpe (Dkt. Nos. 5, 15). Also before the Court are the motions for substitution of counsel and for extension of time to file motion for summary judgment of defendants Mark Gober and Susan Potts (Dkt. Nos. 17, 18). The Court addresses each in turn.
I. Partial Recommended Disposition And Recommendation
Judge Volpe submitted his Partial Recommended Disposition on May 10, 2022, recommending that plaintiff Elijah King be allowed to proceed with his black mold claim against Mr. Gober and Ms. Potts but that all other claims be dismissed for failure to state a claim (Dkt. No. 5). Mr. King received the Partial Recommended Disposition, but he did not file objections to the Partial Recommended Disposition and the time for doing so has passed. After careful consideration, the Court concludes that the Partial Recommended Disposition should be, and hereby is, adopted in its entirety as this Court's finding in all respects (Id.).
On June 8, 2022, the Court issued its Magistrate Consent Notice and Initial Scheduling Order, which were returned undeliverable (Dkt. Nos. 9, 10, 11). On June 21, 2022, Judge Volpe ordered Mr. King to provide the Court with an updated address within 30 days if he wanted to continue with his lawsuit and warned Mr. King that if he failed to do so he would recommend dismissal of his case (Dkt. No. 12). The Order was returned undeliverable (Dkt. No. 14).
Judge Volpe submitted his Recommendation on August 2, 2022, recommending that Mr. King's complaint be dismissed without prejudice for failure to prosecute (Dkt. No. 15). Mr. King has not filed any objections, and the time for filing objections has passed. After careful consideration, the Court concludes that the Recommendation should be, and hereby is, adopted in its entirety as this Court's finding in all respects (Id.). The Court dismisses without prejudice Mr. King's complaint for failure to prosecute (Dkt. No. 2).
II. Motion For Substitution Of Counsel
Mr. Gober and Ms. Potts state that, effective November 1, 2022, Kaylen S. Lewis no longer represents them (Dkt. No. 17). Mr. Gober and Ms. Potts request that Ms. Lewis be removed as counsel of record, with Michael A. Mosley entering an appearance for Mr. Gober and Ms. Potts (Id.). For good cause shown, the Court grants the motion for substitution of counsel and removes Ms. Lewis as counsel of record for Mr. Gober and Ms. Potts; Mr. Mosley shall appear as counsel of record for Mr. Gober and Ms. Potts.
III. Motion For Extension Of Time To File For Summary Judgment
Mr. Gober and Ms. Potts ask for an extension of time to file a motion for summary judgment until after the Court rules on Judge Volpe's Recommendation (Dkt. No. 18). Because this Order adopts Judge Volpe's Recommendation, the Court denies as moot Mr. Gober and Ms. Potts' motion for extension of time to file for summary judgment (Dkt. No. 18).
IV. Conclusion
The Court rules as follows:
1. The Court concludes that the Partial Recommended Disposition should be, and hereby is, adopted in its entirety as this Court's finding in all respects (Dkt. No. 5).
2. The Court concludes that the Recommendation should be, and hereby is, adopted in its entirety as this Court's finding in all respects (Dkt. No. 15).
3. The Court dismisses, without prejudice, Mr. King's complaint for failure to prosecute (Dkt. No. 2).
4. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from this Order and the accompanying Judgment would not be taken in good faith.
5. The Court grants the motion for substitution of counsel and removes Ms. Lewis as counsel of record for Mr. Gober and Ms. Potts (Dkt. No. 17).
6. The Court denies as moot Mr. Gober and Ms. Potts' motion for extension of time to file for summary judgment (Dkt. No. 18).
It is so ordered.