Walker v. Hollaway et al

Filing 197

ORDER adopting Report and Recommendations re 192 Report and Recommendations as the finding of this Court; finding as moot 196 Motion (NOTICE) to Change Plaintiff's Name. Plaintiff's Complaint is dismissed without prejudice. Signed by District Judge Louis Guirola, Jr. on 11/30/20. (RLW)

Case 1:17-cv-00244-LG-RPM Document 197 Filed 11/30/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DEMARIO DONTEZ WALKER
v.

PLAINTIFF
CAUSE NO. 1:17CV244-LG-RPM

JAMARIO CLARK

DEFENDANT

ORDER ADOPTING PROPOSED FINDINGS OF FACT AND
RECOMMENDATION AND DISMISSING COMPLAINT
BEFORE THE COURT is the [192] Proposed Findings of Fact and
Recommendation of United States Magistrate Judge Robert P. Myers, entered in
this cause on October 26, 2020. Magistrate Judge Myers recounted the Court’s
efforts to instruct and remind the Plaintiff of his duty to prosecute this case, and the
Plaintiff’s failure to substitute the proper party for the deceased-defendant, Jamario
Clark. Magistrate Judge Myers accordingly recommended that Plaintiff’s
Complaint be dismissed without prejudice for failure to prosecute.
Since Plaintiff was granted additional time to file his motion to substitute on
August 20, 2020, he has yet to identify the proper party to substitute for defendant,
Jamario Clark. Rather, Plaintiff has filed numerous other motions not pertinent to
the substitution of the proper party. Magistrate Judge Myers cautioned Plaintiff
that failure to file a timely motion to substitute party would lead this Court to
dismiss his claims. (See Order, July 13, 2020, ECF No. 156).
Where no objection has been filed, the Court need only review the Proposed
Findings of Fact and Recommendation to determine whether it is either clearly
erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.

Case 1:17-cv-00244-LG-RPM Document 197 Filed 11/30/20 Page 2 of 2

1989). Having conducted the required review, the Court finds the Magistrate
Judge’s findings and conclusions neither clearly erroneous nor contrary to law. The
Court agrees that Plaintiff’s Complaint is due to be dismissed for failure to
substitute the proper party under Federal Rule of Civil Procedure 25(a)(1) and for
failure to prosecute this case under Federal Rule of Civil Procedure 41(b).
Therefore, the Proposed Findings of Fact and Recommendation will be adopted as
the opinion of this Court, and Plaintiff’s Complaint will be dismissed without
prejudice.
IT IS THEREFORE ORDERED AND ADJUDGED that the [192]
Proposed Findings of Fact and Recommendation of United States Magistrate Judge
Robert P. Myers entered in this cause on October 26, 2020 is ADOPTED as the
finding of this Court. All pending motions are DENIED AS MOOT.
IT IS FURTHER ORDERED AND ADJUDGED that the Plaintiff
Demario Dontez Walker’s [1] Complaint is DISMISSED WITHOUT
PREJUDICE.
SO ORDERED AND ADJUDGED this the 30th day of November, 2020.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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