Williams v. Banks et al
Order Overruling Plaintiff's Objection 35 , Adopting Magistrate Judge's Report and Recommendation 30 , and Dismissing Plaintiff's Claims Against Defendant Theresa Seabrook. Signed by District Judge Halil S. Ozerden on February 6, 2017. (BGL)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
RANDY C. WILLIAMS
CIVIL NO. 1:15cv394-HSO-JCG
JACQUELINE BANKS, et al.
ORDER OVERRULING PLAINTIFF’S OBJECTION ,
ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION , AND DISMISSING PLAINTIFF’S
CLAIMS AGAINST DEFENDANT THERESA SEABROOK
This matter comes before the Court on the Report and Recommendation 
of United States Magistrate Judge John C. Gargiulo entered on December 9, 2016.
The Magistrate Judge recommended that pro se Plaintiff Randy C. Williams’
(“Plaintiff”) claims asserted against Defendant Theresa Seabrook in his Complaint
 be dismissed. R. & R.  at 1-2. On December 28, 2016, Plaintiff filed an
Objection  to the Report and Recommendation. After due consideration of the
Report and Recommendation, Plaintiff’s Objection, the record, and relevant legal
authority, the Court finds that Plaintiff’s Objection  should be overruled, and
that the Magistrate Judge’s Report and Recommendation  should be adopted as
the finding of this Court. Plaintiff’s claims against Defendant Theresa Seabrook
should be dismissed.
On November 30, 2015, Plaintiff, proceeding in forma pauperis, filed a
Complaint , against Defendant Theresa Seabrook (“Seabrook”) and others
pursuant to 42 U.S.C. § 1983. On December 30, 2015, the Magistrate Judge entered
an Order  granting Plaintiff’s Motion  to Amend his Complaint  “to the
extent that the Court will consider the allegations contained within the pleading
and the Motion is deemed to be compliance (sic) with the Court’s Order  directing
Plaintiff to provide more information.” Order  at 1. The Order  directed the
Clerk to issue a Notice of Lawsuit and Request to Waive Service of Summons to be
sent to Janis G. Stancil at Mississippi Department of Corrections (“MDOC”). Order
 at 1. The Order further directed Defendants to file a “signed Waiver form or
Response within 30 days,” and directed MDOC to notify the Court of the last known
address of any Defendant no longer employed at MDOC. Id. at 1-2.
On January 19, 2016, Defendants Jacqueline Banks, Ron King, Hubert
Davis, and Timothy Morris filed a Suggestion of Death , pursuant to Federal
Rule of Civil Procedure 25(a), notifying the Court that Defendant Seabrook passed
away on or about December 14, 2015. Suggestion of Death  at 1.
On December 9, 2016, the Magistrate Judge sua sponte recommended that
Plaintiff’s claims against Seabrook be dismissed because “more than ninety (90)
days have passed, and Plaintiff has not moved to substitute another party for
Theresa Seabrook” as required by Rule 25(a)(1), citing to Sampson v. ASC Indus.,
780 F.3d 679, 681 (5th Cir. 2015). R. & R.  at 1-2.
On December 28, 2016, Plaintiff filed an Objection  to the Report and
Recommendation asserting in pertinent part that he objected to “Seabrook being
dismissed due to the defendant being apart (sic) of the M.d.o.c. (sic) at the time the
the (sic) Plaintiff filed his Complaint.” Obj.  at 3.
Because Plaintiff has objected to the Magistrate Judge=s Report and
Recommendation, this Court is required to Amake a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.@ 28 U.S.C. ' 636(b)(1); see also Longmire v. Guste, 921 F.2d 620,
623 (5th Cir. 1991) (noting parties are Aentitled to a de novo review by an Article III
Judge as to those issues to which an objection is made@). A court is not required,
however, to make new findings of fact independent of those made by a magistrate.
Warren v. Miles, 230 F.3d 688, 694-95 (5th Cir. 2000). Nor is a court required to
reiterate the findings and conclusions of a magistrate judge. Koetting v. Thompson,
995 F.2d 37, 40 (5th Cir. 1993). Also, a court need not consider objections which are
frivolous, conclusive, or general in nature. Battle v. United States Parole
Commission, 834 F.2d 419, 421 (5th Cir. 1987).
In the present matter, Plaintiff objected to the recommendation that
Defendant Seabrook be dismissed on grounds that Defendant Seabrook had been an
employee of MDOC at the time he “filed his Complaint.” Plaintiff did not deny that
Seabrook had passed away, that he had received the Suggestion of Death  filed
January 19, 2016, or that more than 90 days had elapsed without Plaintiff filing a
motion to substitute another party for Seabrook. See Objection  at 1-3.
As set forth in the Report and Recommendation, Federal Rule of Civil
Procedure 25(a) governs the substitution of parties in case of death. Rule 25(a)
[i]f 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). “Plaintiff was served with the Suggestion of Death in
accordance with Federal Rule of Civil Procedure 5. See Sampson v. ASC Indus., 780
F.3d 679, 681 (5th Cir. 2015).” R. & R.  at 1.
The Court finds that because more than 90 days have passed since the
Suggestion of Death was filed, Plaintiff’s claims against Defendant Theresa
Seabrook should be dismissed pursuant to Rule 25(a)(1) and Seabrook should be
dismissed from this matter. See Sampson, 780 F.3d at 681. Plaintiff’s claims
against the remaining Defendants in this matter will go forward pursuant to Rule
This Court further finds that because Plaintiff did not substitute another
party for Seabrook, Plaintiff appears to have effectively abandoned his claims
against her. The Court has the authority to sua sponte dismiss a claim as long as
the litigant has an opportunity to be heard before the claim is dismissed, “except
where the claim is patently frivolous.” Century Sur. Co. v. Blevins, 799 F.3d 366,
372 (5th Cir. 2015). Plaintiff was afforded an opportunity to object to the
Magistrate Judge’s recommendation of dismissal and did in fact file an Objection.
After a thorough review and consideration of the Magistrate Judge=s Report
and Recommendation , Plaintiff=s Objection , and the record as a whole, the
Court finds that Plaintiff=s Objection  is not well taken or supported by the
record and should be overruled. The Court concludes that the Magistrate Judge’s
Report and Recommendation  should be adopted as the opinion of this Court.
After a de novo review and consideration of the Magistrate Judge=s Report
and Recommendation, Plaintiff’s Objection, the record as a whole, and relevant
legal authority, the Court concludes that Plaintiff=s Objection  should be
overruled, and that the Magistrate Judge=s Report and Recommendation  should
be adopted as the opinion of the Court. Plaintiff’s claims against Defendant
Theresa Seabrook should be dismissed. Accordingly,
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff=s
Objection  to United States Magistrate Judge John C. Gargiulo=s Report and
Recommendation  is OVERRULED.
IT IS, FURTHER, ORDERED AND ADJUDGED that United States
Magistrate Judge John C. Gargiulo=s Report and Recommendation  entered on
December 9, 2016, is ADOPTED AS THE FINDING OF THIS COURT, and that
Plaintiff=s claims against Defendant Theresa Seabrook are DISMISSED.
SO ORDERED AND ADJUDGED, this the 6th day of February, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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