Jacoby v. Baldwin County et al

Filing 95

ORDER re: 94 Motion to Substitute Party. The motion is denied without prejudice to Jacoby's ability to renew the motion via appropriate filing to the circuit clerk. Signed by Chief Judge William H. Steele on 1/14/2014. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRENT JACOBY,

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Plaintiff,
v.
BALDWIN COUNTY, et al.,
Defendants.

CIVIL ACTION 12-0197-WS-M

ORDER
This closed civil matter comes before the Court on plaintiff’s “Motion for a Substitution
of Parties” (doc. 94). In the Motion, plaintiff Brent Jacoby (an Alabama inmate proceeding pro
se in this § 1983 prisoner-civil-rights case) requests that a Major Milton be substituted as a
named defendant for defendant Major Dale Byrne. Defendants filed a Suggestion of Death (doc.
93) on December 10, 2013, reflecting that defendant Byrne is deceased. Presumably, Jacoby’s
Motion is brought pursuant to Rule 25(a), Fed.R.Civ.P.
The procedural problem with Jacoby’s Motion is that this civil action has been terminated
and is presently on appeal to the Eleventh Circuit Court of Appeals. By Order and Judgment
(docs. 68, 69) dated May 22, 2013, the undersigned dismissed all of plaintiff’s claims (including,
without limitation, his claims against defendant Byrne) with prejudice. Jacoby filed a Notice of
Appeal (doc. 70), and the matter is now pending before the Eleventh Circuit. As such, any
motion to substitute that Jacoby may wish to advance in this case must be filed with the Eleventh
Circuit Clerk of Court, not here. See Rule 43(a)(1), Fed.R.App.P. (“If a party dies after a notice
of appeal has been filed or while a proceeding is pending in the court of appeals,” substitution is
achieved “on motion filed with the circuit clerk by the representative or by any party” and “the
court of appeals may then direct appropriate proceedings”). Accordingly, the Motion for a
Substitution of Parties (doc. 94) is denied, without prejudice to Jacoby’s ability to renew the
motion via appropriate filing to the circuit clerk.
DONE and ORDERED this 14th day of January, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE