Wheat v. Miller County Jail et al

Filing 23

REPORT AND RECOMMENDATIONS re 18 Order re Suggestion of Death, recommending Deputy Jones be dismissed. Objections to R&R due by 10/8/2009. Signed by Honorable Barry A. Bryant on September 21, 2009. (cap)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION JAMES DAVID WHEAT v. DEPUTY JONES, Miller County Jail; CORPORAL HOGAN, Miller County Jail; JAILER DOUG ARNOLD, Miller County Jail; FORMER SHERIFF LINDA RAMBO; and FORMER JAIL ADMINISTRATOR JANICE NICHOLSON Civil No. 4:09-cv-04036 PLAINTIFF

DEFENDANTS

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE Plaintiff, James David Wheat, filed this action pursuant to the provisions of 42 U.S.C. § 1983. He proceeds pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2007), the Honorable Harry F. Barnes, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation. On August 7, 2009, a suggestion of death was filed on behalf of Deputy Jaycen Jones (Doc. 15). The death certificate was attached noting he had died on December 14, 2008. Pursuant to Rule 25 of the Federal Rules of Civil Procedure, a party may file a motion to substitute the proper party if a cause of action survives the cause of death of a party. On August 11, 2009, an order (Doc. 18) was entered giving Plaintiff until September 10, 2009, to notify the court if he desired to substitute the estate or personal representative of Deputy Jones as a Defendant in place of Deputy Jones or if he merely desired to proceed against the remaining Defendants. To date, Plaintiff has not responded to the order. Accordingly, I recommend that the claims against Defendant Jones be dismissed. The parties have ten (10) days from receipt of this report and recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may

result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. DATED this 21st day of September 2009. /s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE