Doye v. Colvin et al

Filing 136

ORDER stating that the Court's dismissal of Doye's complaint against Sheriff Martin was proper. Signed by Judge B. Avant Edenfield on 5/11/2011. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
NOEL ROMERO DOYE,
Plaintiff,
v.

4:08-cv-174

JASON COLVIN, et al.,
Defendants.
ORDER
On March 22, 2011, the Magistrate
Judge issued a Report and Recommendation
(“R&R”) in this case, recommending that
this Court grant the defendants’ motion for
summary judgment as to Warden Franks,
but deny the motion as to every other
defendant. See Doc. 125. The Magistrate
Judge also directed Doye to show cause by
April 5, 2011, why the Court should not
dismiss Doye’s claims against Sheriff
Martin for improper service. See id.
On April 12, the Court concurred with
the Magistrate Judge’s analysis and adopted
the R&R as its own opinion, with the
exception that the Court disagreed with the
Magistrate Judge’s factual findings
regarding Doye’s in forma pauperis (“IFP”)
and pro se statuses. See Doc. 131 n.1. The
Court also dismissed Doye’s claims against
Sheriff Martin for his failure to respond to a
Court order in that he never responded to the
Magistrate Judge’s show cause order. See
id.
On April 14, the clerk’s office docketed
Doye’s response to the Magistrate Judge’s
order. See Doc. 132. While the prisoner

mailbox rule counts his pleading as filed
when Doye signed it, on April 9, 2011, it
was still late. Thus the Court was within its
power to dismiss Doye’s complaint against
Sheriff Martin. See FED. R. C IV. P. 41(b);
L.R. 41.1(b); Equity Lifestyle Props., Inc. v.
Fla. Mowing and Landscape Serv., Inc., 556
F.3d 1232, 1241 (11th Cir. 2009) (“A
district court need not tolerate defiance of
reasonable orders.”).
Doye’s response argues that because the
Court found that he was acting IFP, he was
entitled to rely on the Marshall Service to
properly serve Sheriff Martin. See Doc. 132
at 2 (citing Williams v. Publix Warehouse,
151 F.R.D. 428, 432 (M.D. Fla. 1993)).
Even if Doye timely delivered the forms
necessary for the Marshall Service to effect
service, see id., and he had complied with
the Magistrate Judge’s show cause order,
Doye’s complaint against Sheriff Martin
should still have been dismissed.
Federal Rule of Civil Procedure 25 gives
parties ninety (90) days following a
statement noting the death of a party to
substitute a proper party before the Court
must dismiss the claim. Sheriff Martin died
May 27, 2010. See Staff Report, C OASTAL
C OURIER, available at http://beta.
coastalcourier.com/archives/22002/. Doye
has never moved to substitute another party.

The Court’s dismissal of Doye’s
complaint against Sheriff Martin was proper.

This 11th day of May 2011.

I )

A

(/

B AVANT PDENFIELØ, JUDGE
UNFED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA