Summary
finding that "any action initiated under § 1983 survives a plaintiff's death"
Summary of this case from Bowling v. JamiesonOpinion
No. 11-CV-961
11-26-2013
ANGEL MENDEZ, Plaintiff, v. KNOBLACH, Sgt., Onieda Correctional Facility; MASNER, Correctional Officer, Onieda Correctional Facility; and TIMOTHY COLLINS, Correctional Officer, Onieda Correctional Facility, Defendants.
ANGEL MENDEZ Plaintiff pro se HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendants CHRISTOPHER W. HALL, ESQ. Ass't Attorney General
APPEARANCES: ANGEL MENDEZ
Plaintiff pro se
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendants
OF COUNSEL: CHRISTOPHER W. HALL, ESQ.
Ass't Attorney General
DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Angel Mendez brought this action pursuant to 42 U.S.C. § 1983. Subsequently, plaintiff died and his wife, Carmen Mendez, attempted to substitute herself as plaintiff and continue the action on her deceased husband's behalf. On September 17, 2013, the Honorable Christian F. Hummel, United States Magistrate Judge, advised by Report-Recommendation that Ms. Mendez's motion to substitute be denied. No objections to the Report-Recommendation were filed.
Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
1. Ms. Mendez's motion to substitute is DENIED; and
2. This case is DISMISSED for failure to substitute within 90 days after service of the statement noting the death of plaintiff Angel Mendez pursuant to Federal Rule of Civil Procedure 25(a).
The Clerk is directed to serve a copy of this Decision and Order upon defendants and Carmen Mendez.
IT IS SO ORDERED.
____________________
United States District Judge
Dated: November 26, 2013
Utica, New York.