Milner v. Carlton et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS 11 . Bow Love dismissed as plaintiff without prejudice. Signed by Honorable Harry F. Barnes on November 26, 2008. (jn)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION LARRY D. MILLER and BOW LOVE PLAINTIFF VS. CASE NO. 08-CV-4039 BOBBY CARLTON; MEMS McKINNON; NEVADA COUNTY, ARKANSAS; and EIGHTH DISTRICT COUNTY JAIL DEFENDANTS ORDER Before the Court is the Report and Recommendation filed on July 10, 2008, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (Doc. No. 11). The Plaintiff Larry Miller filed objections to the Report and Recommendation on July 18, 2008. (Doc. No. 13). This is a pro se civil rights action filed pursuant to 42 U.S.C. 1983. In the Complaint, the Plaintiff, Larry Miller, has named Bow Love, a former inmate of the Nevada County Jail, as a co-Plaintiff in the case. Miller states that Love is deceased. Judge Bryant finds that Miller is not the legal representative of Love's estate and that Love's presence in the case is motivated solely by Miller. Judge Bryant recommends that Bow Love be dismissed as a co-plaintiff to the action. Miller objects to the Magistrate Judge's findings and recommendation. In his objections, Miller states that Love's mother refuses to represent him in this action. He asks the Court to appoint him as Love's Next of Friend pursuant to Rule 17(c)(2) of the Federal Rules of Civil Procedure in order that he might bring this action on Love's behalf. Rule 17 (a)(2) states that "A minor or an incompetent person who does not have a duly appointed representative may sue by a next of friend or by a guardian ad litem. The court must appoint a guardian ad litem--or issue another appropriate order--to protect a minor or incompetent person who is unrepresented in an action." Fed.R.Civ.P. 17(a)(2). Bow Love is not a minor or an incompetent person. He is deceased. Therefore, this rule is not applicable to this case. After reviewing the record de novo, the Court adopts the Magistrate Judge's Report and Recommendation as its own. The Court finds that Plaintiff Larry D. Miller is not the legal representative of Bow Love's estate. Therefore, there is no basis upon which Miller can bring this action on Love's behalf. Accordingly, Bow Love is hereby dismissed as a Plaintiff in this action. The dismissal is without prejudice. IT IS SO ORDERED, this 26th day of November, 2008. /s/Harry F. Barnes Hon. Harry F. Barnes United States District Judge

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