Opinion
3:21cv109-LC-HTC
01-24-2022
MARK EDWARD COOK, Plaintiff, v. JOHN DOE OFFICER at WALTON CORRECTIONAL INSTITUTION Defendant.
REPORT AND RECOMMENDATION
HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE
Plaintiff Mark Edward Cook initiated this action by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. ECF Doc. 1. On October 20, 2021, the Secretary of the Florida Department of Corrections (“FDOC”) filed a suggestion of death, notifying the Court that Plaintiff was released from the FDOC's custody on September 6, 2021 and died at New Beginnings of Tampa on October 5, 2021. ECF Doc. 24. Thus, on October 21, 2021, the Court directed Plaintiff to file a response if the notice of death was in correct, or within ninety (90) days, for Plaintiff's successor in interest to file a motion for substitution. ECF Doc. 25.
See also http://www.dc.state.fl.us/offenderSearch/detail.aspx?Page=Detail&DCNumber=T90825&TypeS earch=IR.
The Clerk was directed to send the order to Plaintiff at his last known address as well as to Rasha Cook and Sharron Murphy, known living relatives, at addresses provided by the FDOC. Id. More than ninety (90) days have passed, and no response has been filed. Thus, upon consideration, the undersigned recommends this case be dismissed pursuant to Federal Rule of Civil Procedure 25.
Under Rule 25 of the Federal Rules of Civil Procedure, “[i]f a party dies and the claim is not extinguished, the court may order substitution of the proper party.” Fed.R.Civ.P. 25(a)(1). However, “[i]f 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.” Id.
Accordingly, it is respectfully RECOMMENDED:
1. This case be dismissed under Federal Rule of Civil Procedure 25(a)(1).
2. The clerk be directed to close the file.
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 its objections upon 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 the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.