Opinion
Civil Action 21-cv-70J
03-15-2023
JAMIE MCVICKER, Plaintiff, v. DR. RITA COMACHO and DANIEL C. VITTONE, Defendants.
District Judge Stephanie L. Haines
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Jamie McVicker (“Plaintiff”), an inmate presently incarcerated at the State Correctional Institution at Houtzdale (“SCI-Houtzdale”), filed this pro se action pursuant to 42 U.S.C. § 1983 arising out of allegations that he did not receive adequate medical care following a sudden onset of blurry vision. ECF No. 37.
For the following reasons, it is respectfully recommended that Plaintiff s claims against Defendant Daniel C. Vittone (“Dr. Vittone”) be dismissed.
II. REPORT
A. RELEVANT PROCEDURAL HISTOR
Plaintiff began this action by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”) on April 16, 2021, together with a proposed Complaint. ECF No. 1. After Plaintiff cured certain filing deficiencies, the Court granted Plaintiffs IFP Motion on July 27, 2021, and his Complaint was filed on the same date. ECF Nos. 10 and 12. Plaintiff originally brought claims against Defendants PrimeCare Medical Inc. (“PrimeCare”) and Dr. Rita Camacho.
Plaintiff refers to this Defendant as Dr. Rita Comacho in his pleadings. Based on materials provided to the Court in this case, it appears the correct spelling is Dr. Camacho.
Plaintiff later moved for leave to amend his Complaint, which the Court granted. ECF Nos. 33 and 34. He filed his First Amended Complaint on December 30, 2021, in which he eliminated claims against PrimeCare and added Dr. Vittone as a defendant. ECF No. 37.
On July 11, 2022, Plaintiff moved for default judgment against Dr. Vittone based on his failure to file a responsive pleading. ECF No. 63. Attorney Michael C. Hamilton then entered an appearance on behalf of Dr. Vittone. ECF No. 64. On July 25, 2022, Attorney Hamilton filed a response in opposition to the Motion for Default Judgment indicating that Dr. Vittone was deceased. ECF No. 66.
The undersigned submitted a Report and Recommendation, recommending that the Motion for Default Judgment be denied. ECF No. 71. On October 18, 2022, District Judge Stephanie L. Haines entered an Order adopting Report and Recommendation, as supplemented, and denying the Motion for Default Judgment. ECF No. 72.
B. DISCUSSION
Federal Rule of Civil Procedure 25 provides, in relevant part:
(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).
Attorney Hamilton filed notice of Dr. Vittone's death on July 25, 2022. It has been over 90 days, and no party has filed a motion to substitute. Therefore, Plaintiff s claims against Dr. Vittone should be dismissed.
C. CONCLUSION
For these reasons, it is respectfully recommended that Plaintiff1 s claims against Dr. Vittone be dismissed.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to file an appeal to the District Judge which includes the basis for objection to this Order. Any appeal is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any appellate rights.
Honorable Stephanie L. Haines, United States District Judge