Opinion
Civil Action 14-1210
01-12-2024
KERRY X. MARSHALL also known as KERRY X [MARSHALL], Plaintiff, v. JOHN WETZEL, et al., Defendants.
David S. Cercone District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons below, it is respectfully recommended that the Court dismiss Plaintiffs claims against Defendants Lydia Hale (“Hale”) and Michael Michlin (‘ Michlin).
II. REPORT
Plaintiff began this action on September 8, 2014. ECF No. 1. The Court granted Plaintiff leave to proceed in forma pauperis on October 31, 2014, and his Complaint was filed on the same date. ECF Nos. 5 and 6. In his Complaint, Plaintiff alleges that prison officials violated his rights by denying his requests for religious accommodations. He brings claims against multiple defendants, including Michlin and Hale. ECF No. 6.
The Court ordered service on Defendants on May 12, 2015. ECF No. 19. On April 21, 2015, notice was filed that service was unable to be effectuated on Michlin. ECF No. 38. There is no indication that Michlin has ever been properly served, and Michlin has never entered an appearance in this action.
Plaintiff also filed a separate lawsuit arising out of substantially similar allegations in the United States District Court for the Middle District of Pennsylvania, Marshall v. Corbett, at Case No. 3:13-cv-2961 (the “Middle District Action”). This action was stayed from May 28,2016 until November 15, 2022 pending the resolution of the Middle District Action.
Plaintiff also sued Michlin and Hale in the Middle District Action. On May 15, 2017, notice was filed in the Middle District Action that Hale died on or about November 13, 2016. Id. at 119. On December 18, 2020, notice was filed in the Middle District Action that Michlin had died on or about November 16, 2020. Id. at 231.
Under Federal Rule of Civil Procedure 25,
(1) Substitution if the Claim Is Not Extinguished. 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).
Plaintiff has been on notice of Hale and Michlin's deaths for over 90 days. He never moved to substitute the proper parties following their deaths. Under Federal Rule of Civil Procedure 25(a)(1), Defendants Michlin and Hale should be dismissed.
III. CONCLUSION
For these reasons, it is respectfully recommended that the Court dismiss Plaintiffs claims against Defendants Michlin and Hale.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.