Walker v. Hollaway et al

Filing 156

ORDER denying 147 Motion to Substitute Party. Signed by Magistrate Judge Robert H. Walker on July 13, 2020 (King, Steve)

Case 1:17-cv-00244-LG-RHW Document 156 Filed 07/13/20 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
PLAINTIFF
DEMARIO DONTEZ WALKER

VERSUS

CIVIL ACTION NO. 1:17CV244-LG-RHW

JAMARIO CLARK et al

DEFENDANTS

ORDER DENYING MOTION TO SUBSTITUTE
Before the Court is Plaintiff Demario Dontez Walker’s motion to substitute party. Doc.
[147]. On April 16, 2020, counsel for Defendants filed a suggestion of death with respect to
Defendant Jamario Clark. Doc. [138]. Plaintiff later filed the instant motion to substitute
MDOC Commissioner Tommy Taylor as Defendant Clark’s successor on the basis that Clark
was a public officer who acted as Taylor’s agent. Doc. [147]. By agreement of the parties, the
only claims remaining against Defendant Clark are based on allegations he committed acts of
physical and sexual abuse against Plaintiff. See Doc. [139-1] at 5-6. In other words, there are no
remaining official capacity claims pending against Clark.
In his complaint, Plaintiff alleges intentional torts committed by Defendant Clark in his
individual capacity. Plaintiff cannot simply substitute the MDOC Commissioner as successor
for Defendant Clark based on principles of agency or supervisory liability. Under § 1983,
supervisory officials such as Commissioner Taylor are not liable for the actions of subordinates
on any theory of vicarious liability. Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.1987).
Plaintiff’s motion to substitute the MDOC Commissioner appears to be brought pursuant to Rule
25(d). However, by its terms, Rule 25(d) only provides for substitution of a successor in office

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where the original defendant was sued for actions in his official capacity. Accordingly,
Plaintiff’s motion to substitute should be denied.
Plaintiff’s individual capacity claims against Defendant Clark survive his death.
However, to continue his suit against Defendant Clark, Plaintiff needs to proceed against the
decedent’s estate or personal representative. See Kentucky v. Graham, 473 U.S. 159, 166 (1980);
Patrice v. Young, 832 F.Supp. 721, 724-27 (S.D.N.Y. 1993). Rule 25(a)(1) of the Federal Rules
of Civil Procedure provides that “[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.” Rule 25 requires the motion for substitution to
be served on the deceased-defendant’s estate before the court will grant the motion and substitute
the deceased-defendant’s estate as a party. Sampson v. ASC Indus., 780 F.3d 679, 682 (5th Cir.
2015).
At this point, it is unclear whether Plaintiff wishes to pursue individual capacity claims
against the estate and/or personal representative of Jamario Clark. It is Plaintiff’s responsibility
to identify the proper party, make the substitution, and provide sufficient information to the
Court for the U.S. Marshal to locate the party for service. Accordingly, Plaintiff shall have until
August 13, 2020, to identify the proper estate and/or personal representative, including an
address for service of process, and to file a motion to substitute.
If Plaintiff fails to file a motion to substitute, including all the necessary information
and within the time allotted, his claims against Defendant Clark will be dismissed for
failure to prosecute.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s [147] Motion to
Substitute Party is DENIED, subject to the provisions outlined in this order.

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SO ORDERED AND ADJUDGED, this the 13th day of July 2020.

/s/ Robert H. Walker
ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE

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