Opinion
Civil Action 5:21-CV-00024
07-18-2022
WILLIAM M PHILLIPS, Plaintiff, v. ERNESTO GALVIN, et al., Defendants.
ORDER
DIANA SALDANA UNITED STATES DISTRICT JUDGE
Pending is the Magistrate Judge's Report and Recommendation (Dkt. 19) recommending that Plaintiff William Phillips' civil rights complaint (Dkt. 1) be dismissed without prejudice. The Parties have been duly noticed regarding the filing of objections, and the applicable 14-day timeframe for the filing of objections has now lapsed.
The Clerk of Court mailed a copy of the Magistrate Judge's Report and Recommendation (Dkt. 19) to the address on file for Plaintiff. (Dkt. 20.) The mailing was returned to the Clerk's Office as undeliverable, with a notation that Plaintiff was no longer in custody. (Dkt. 22.) The Office of the Attorney General has since confirmed that Plaintiff passed away on March 26, 2022. (See Dkt. 24, Attach. 1.) No family member or other representative has appeared in this case or moved for substitution to prosecute this case in Plaintiff's stead. See Fed.R.Civ.P. 25(a).
Noting that no objections have been filed, and having now reviewed the matter as provided by 28 U.S.C. § 636, the Court concludes that the Report and Recommendation (Dkt. 19) should be and is hereby ACCEPTED. Therefore, this case is DISMISSED WITHOUT PREJDUDICE.
The Court will arrange to have a copy of this Order and the underlying Report and Recommendation mailed to Plaintiff's known family members, as identified by the Office of the Attorney General. (See Dkt. 24, Attach. 2.) If a family member or other representative wishes to move for substitution and file objections to the Report and Recommendation, said person may file a motion with the Court to reconsider this Order.
Because the Court finds that Plaintiff makes no substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2). The Court certifies that any appeal from this decision would not be taken in good faith and therefore should not be taken in forma pauperis. See 28 U.S.C. § 1915(a)(2); Fed. R. App. P. 24(a)(3).
The Clerk of Court is DIRECTED to mail copies of this Order and the Report and Recommendation (Dkt. 19) by any receipted means to the following addresses:
• William Phillips, 276 County Road 3404, Avery, TX 75554
• Joyce Bower, 283 County Road 3404, Avery, TX 75554
• Betty Patterson, 2009 W. Mulberry St., Fort Collins, TX 80521
The Clerk is further DIRECTED to TERMINATE this case.
IT IS SO ORDERED.