BLASH v. CITY OF HAWKINSVILLE AND PULASKI COUNTY GEORGIA SHERRIF'S OFFICE et al

Filing 88

ORDER. Ordered by US DISTRICT JUDGE TILMAN E. SELF, III on 8/7/2019. (ech)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JOHNNY BLASH,
Plaintiff,
v.
CITY OF HAWKINSVILLE AND
PULASKI COUNTY, GEORGIA
SHERIFF’S OFFICE; HAWKINSVILLEPULASKI COUNTY, GEORGIA; BILLY
W. CAPE; and DANNY BRANNEN;

CIVIL ACTION NO.
5:17-cv-00380-TES

Defendants.
ORDER

In the midst of culling through the voluminous materials related to Defendants’
Motion for Summary Judgment [Doc. 64], the Court discovered that “Billy Cape is now
deceased.” [Doc. 73-1 at p. 6]. Prior to this single sentence, neither party had informed
the Court of Sheriff Cape’s death.
In this lawsuit, the sole claim against Defendant Cape is a claim for race
discrimination, in his individual capacity, under § 1981. See Blash v. City of Hawkinsville,
No. 5:17-cv-00380-TES, 2018 WL 3150346 (M.D. Ga. June 27, 2018). The Court realizes
that Plaintiff has filed a Motion for Reconsideration [Doc. 76] of that decision, and this
Order is not intended to give any inclination as to the Court’s forthcoming decision on
that motion.

“[Individual]-capacity suits” like the one asserted against Defendant Cape here
“seek to impose personal liability upon a government official for actions he takes under
color of state law” and any award of damages against this official in his individual
capacity “can be executed only against the official’s personal assets.” Halliburton v.
Liberty Cty. Sch. Dist., No. CV414-179, 2019 WL 3294190, at *8 (S.D. Ga. July 22, 2019)
(quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). “Should the official die pending
final resolution of a[n] [individual]-capacity action, [a] plaintiff would have to pursue
his action against the decedent’s estate.” Graham, 473 U.S. at 166 n.11.
Despite the informal mention of Defendant Cape’s death in the record before the
Court, neither party has made any attempt to comply with Federal Rule of Civil
Procedure 25, which provides:
If 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). However, in order trigger the 90-day period, two steps must be
taken: (1) “a party must formally suggest the death on the record” and (2) “the party
that filed the suggestion must serve nonparty successors or representatives of the
decedent with the suggestion of death, consistent with Federal Rule of Civil Procedure
4.” Halliburton, 2019 WL 3294190, at *8; see also McGuinnes v. Novartis Pharm. Corp., 289

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F.R.D. 360, 362 (M.D. Fla. Feb. 4, 2013) (citing Escareno v. Carl Nolte Sohne GmbH & Co.,
77 F.3d 407, 411 (11th Cir. 1996)).
The parties must take the proper steps pursuant to Federal Rule of Civil
Procedure 25 to effectuate substitution. However, the Court advises the parties that it
will not tolerate a lengthy delay in either the service of the suggestion of death or the
filing of a motion for substitution. Should the parties unreasonably delay in complying
with Rule 25, the Court will dismiss the claim against Defendant Cape.
SO ORDERED, this 7th day of August, 2019.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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