Opinion
Civil Action 1:21-CV-120
05-03-2023
DEMONTROUS WITCHER v. ARRON THOMPKINS, et al.,
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Zack Hawthorn, United States Magistrate Judge
Plaintiff, Demonstrous Witcher, an inmate currently confined at Jester III of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 against numerous defendants.
The above-styled action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge for findings of fact, conclusions of law, and recommendation for the disposition of the case.
Background
On October 24, 2022, the Office of the Attorney General as Amicus Curiae filed a Suggestion of Death as to Defendant Michael Cast (doc. # 20). The Suggestion of Death filed pursuant to Federal Rule of Civil Procedure 25(a)(1) informs the court that Defendant Cast passed away on April 9, 2021. Id.
Discussion
Pursuant to Federal Rule of Civil Procedure 25(a)(1), “[i]f 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 has passed since the Suggestion of Death was filed. No motion for substitution has been filed. As such, the undersigned recommends dismissing Plaintiff's claims against Defendant Michael Cast.
Recommendation
Plaintiff's claims against Defendant Michael Cast should be dismissed pursuant to Federal Rule of Civil Procedure 25(a)(1).
Objections
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(c).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within fourteen (14) days after service shall bar an aggrieved party from the entitlement of de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Servs. Auto. Assoc'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.