United States District Court, S.D. Mississippi, Southern Division
RANDY C. WILLIAMS PLAINTIFF
JACQUELINE BANKS, et al. DEFENDANTS
ORDER OVERRULING PLAINTIFF'S OBJECTION
ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
, AND DISMISSING PLAINTIFF'S CLAIMS AGAINST DEFENDANT
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation  of United States Magistrate Judge John C.
Gargiulo entered on December 9, 2016. The Magistrate Judge
recommended that pro se Plaintiff Randy C. Williams'
(“Plaintiff”) claims asserted against Defendant
Theresa Seabrook in his Complaint  be dismissed. R. &
R.  at 1-2. On December 28, 2016, Plaintiff filed an
Objection  to the Report and Recommendation. After due
consideration of the Report and Recommendation,
Plaintiff's Objection, the record, and relevant legal
authority, the Court finds that Plaintiff's Objection
 should be overruled, and that the Magistrate Judge's
Report and Recommendation  should be adopted as the
finding of this Court. Plaintiff's claims against
Defendant Theresa Seabrook should be dismissed.
November 30, 2015, Plaintiff, proceeding in forma
pauperis, filed a Complaint , against Defendant
Theresa Seabrook (“Seabrook”) and others pursuant
to 42 U.S.C. § 1983. On December 30, 2015, the
Magistrate Judge entered an Order  granting
Plaintiff's Motion  to Amend his Complaint 
“to the extent that the Court will consider the
allegations contained within the pleading and the Motion is
deemed to be compliance (sic) with the Court's Order 
directing Plaintiff to provide more information.” Order
 at 1. The Order  directed the Clerk to issue a
Notice of Lawsuit and Request to Waive Service of Summons to
be sent to Janis G. Stancil at Mississippi Department of
Corrections (“MDOC”). Order  at 1. The Order
further directed Defendants to file a “signed Waiver
form or Response within 30 days, ” and directed MDOC to
notify the Court of the last known address of any Defendant
no longer employed at MDOC. Id. at 1-2.
January 19, 2016, Defendants Jacqueline Banks, Ron King,
Hubert Davis, and Timothy Morris filed a Suggestion of Death
, pursuant to Federal Rule of Civil Procedure 25(a),
notifying the Court that Defendant Seabrook passed away on or
about December 14, 2015. Suggestion of Death  at 1.
December 9, 2016, the Magistrate Judge sua sponte recommended
that Plaintiff's claims against Seabrook be dismissed
because “more than ninety (90) days have passed, and
Plaintiff has not moved to substitute another party for
Theresa Seabrook” as required by Rule 25(a)(1), citing
to Sampson v. ASC Indus., 780 F.3d 679, 681 (5th
Cir. 2015). R. & R.  at 1-2.
December 28, 2016, Plaintiff filed an Objection  to the
Report and Recommendation asserting in pertinent part that he
objected to “Seabrook being dismissed due to the
defendant being apart (sic) of the M.d.o.c. (sic) at the time
the the (sic) Plaintiff filed his Complaint.” Obj. 
Plaintiff has objected to the Magistrate Judge's Report
and Recommendation, this Court is required to Amake a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.@ 28 U.S.C. § 636(b)(1); see also Longmire v.
Guste, 921 F.2d 620, 623 (5th Cir. 1991) (noting parties
are Aentitled to a de novo review by an Article III Judge as
to those issues to which an objection is made@). A court is
not required, however, to make new findings of fact
independent of those made by a magistrate. Warren v.
Miles, 230 F.3d 688, 694-95 (5th Cir. 2000). Nor is a
court required to reiterate the findings and conclusions of a
magistrate judge. Koetting v. Thompson, 995 F.2d 37,
40 (5th Cir. 1993). Also, a court need not consider
objections which are frivolous, conclusive, or general in
nature. Battle v. United States Parole Commission,
834 F.2d 419, 421 (5th Cir. 1987).
present matter, Plaintiff objected to the recommendation that
Defendant Seabrook be dismissed on grounds that Defendant
Seabrook had been an employee of MDOC at the time he
“filed his Complaint.” Plaintiff did not deny
that Seabrook had passed away, that he had received the
Suggestion of Death  filed January 19, 2016, or that more
than 90 days had elapsed without Plaintiff filing a motion to
substitute another party for Seabrook. See Objection
 at 1-3.
forth in the Report and Recommendation, Federal Rule of Civil
Procedure 25(a) governs the substitution of parties in case
of death. Rule 25(a) provides that
[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
Fed. R. Civ. P. 25(a)(1). “Plaintiff was served with
the Suggestion of Death in accordance with Federal Rule of
Civil Procedure 5. See Sampson v. ASC Indus., 780
F.3d 679, 681 (5th Cir. 2015).” R. & R.  at 1.
Court finds that because more than 90 days have passed since
the Suggestion of Death was filed, Plaintiff's claims
against Defendant Theresa Seabrook should be dismissed
pursuant to Rule 25(a)(1) and Seabrook should be dismissed
from this matter. See Sampson, 780 F.3d at 681.
Plaintiff's claims ...