Rayos #311171 v. Smith et al

Filing 219

ORDER ADOPTING REPORT AND RECOMMENDATION 216 and dismissing claims against Lloyd Thurlby; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

Case 1:15-cv-01153-PLM-RSK ECF No. 219 filed 11/27/18 PageID.1493 Page 1 of 2

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARCOS RAYOS, #311171,
Plaintiff,
-vWILLIE SMITH, et al.,
Defendants.

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No. 1:15-cv-1153
Honorable Paul L. Maloney

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING
DEFENDANT THURLBY
Plaintiff Marcos Rayos, a prisoner under the control of the Michigan Department of
Corrections (MDOC), filed a civil rights lawsuit against multiple MDOC employees.
Defendant Lloyd Thurlby is sued in his personal and official capacities. Thurlby, passed
away in July 2018. A notice of death was filed in August 2018.
The magistrate judge issued a report recommending the claims against Thurlby be
dismissed. (ECF No. 216.) Plaintiff filed objections. (ECF No. 217.) After being served
with a report and recommendation (R&R) issued by a magistrate judge, a party has fourteen
days to file written objections to the proposed findings and recommendations. 28 U.S.C. '
636(b)(1); Fed. R. Civ. P. 72(b)(2). A district court judge reviews de novo the portions of the
R&R to which objections have been filed. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Plaintiff makes two arguments. First, Plaintiff states he was given bad advice by his
appointed legal writer, who advised that official capacity claims do not abate upon the death
of the named defendant. Second, Plaintiff requests the Court substitute Debbie Thurlby as
the new defendant. Plaintiff contends Debbie Thurlby is the "executioner" of Lloyd's estate.

Case 1:15-cv-01153-PLM-RSK ECF No. 219 filed 11/27/18 PageID.1494 Page 2 of 2

The Report and Recommendation (ECF No. 216) is ADOPTED as the Opinion of
this Court. Plaintiff's objections are overruled. The claims against Lloyd Thurlby are
DISMISSED. Plaintiff did not timely seek to substitute the estate as the proper party. See
Fed. R. Civ. P. 25(a)(1). Plaintiff's official capacity claim will survive Thurlby's dismissal
because Plaintiff has sued multiple defendants in their official capacities. All of those claims
are functionally claims against the same entity.
IT IS SO ORDERED.
Date: November 27, 2018

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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