Opinion
5:20-cv-320-TKW-MJF
07-01-2021
TIMOTHY BAUER, Plaintiff, v. JACKSON CORRECTIONAL INSTITUTION, et al., Defendants.
REPORT AND RECOMMENDATION
Michael J. Frank United States Magistrate Judge
This prisoner civil rights case is before the court upon referral from the clerk of court. On March 19, 2021, this court issued an order (Doc. 10) requiring Plaintiff to show cause why this case should not be dismissed for failure to comply with a prior order entered on February 8, 2021 (Doc. 7).
The February 8, 2021, order required Plaintiff to file an amended complaint or a notice of voluntary dismissal by March 10, 2021. (Doc. 7).
The show cause order was mailed to Plaintiff at his address of record (Marion Correctional Institution) on March 19, 2021. (Doc. 10 (receipt)). The mail was returned on March 29, 2021, as undeliverable, marked “Return to Sender - Unable to Forward.” (Doc. 11).
On March 30, 2021, this court noted Plaintiff's death on the record, and ordered that a motion for substitution of the proper party be filed within 90 days. (Doc. 12). See Florida Department of Corrections, Corrections Offender Network, http://www.dc.state.fl.us/offenderSearch/detail.aspx?Page=Detail&DCNumber=U0 0923&TypeSearch=IR. The order was mailed to Plaintiff's address of record, but was returned as undeliverable marked “Deceased, ” with no forwarding address. (Doc. 13).
The Department of Corrections published Plaintiff's death on its website on March 14, 2021.
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). Over 90 days have passed since the order noting Plaintiff's death, and no motion for substitution has been filed.
Accordingly, the undersigned respectfully RECOMMENDS that:
1. This action be DISMISSED under Rule 25(a)(1) of the Federal Rules of Civil Procedure.
2. The clerk be directed to close this case file. At Panama City, Florida, this 1st day of July, 2021.
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (14) days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the court's internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. R. 3-1; 28 U.S.C. § 636.