McMahon v. The Rockly County Correctional Center et al
Filing
29
ORDER AND OPINION re: 26 MOTION to Dismiss . filed by The Rockly County Correctional Center, Louis Falco, III, Peter Orlando, Bauer, The County of Rockland, C. Hickey, Anthony J. Volpe. For the reasons stated above, the Cour t GRANTS Defendants' Motion to Dismiss. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 26, enter judgment in favor of Defendants, and close the case. The Clerk of the Court is also respectfully directed to mail a copy of this decision to: William K. McMahon, pro se, 16 Bivona Lane, Lot 86, New Windsor, New York 12553. Estate of William K. McMahon, 16 Bivona Lane, Lot 86, New Windsor, New York 12553, and to file proof of service on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 12/13/2018) (rj) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WILLIAM K. McMAHON,
Plaintiff,
-againstTHE ROCKLAND COUNTY CORRECTIONAL
CENTER, LOUIS FALCO, III SHERIFF, CHIEF
OF CORRECTIONS ANTHONY J. VOLPE,
CORRECTIONAL OFFICER, PETER ORLANDO,
CORRECTIONAL OFFICER HICKEY, and
CORRECTIONAL OFFICER BAUER and THE
COUNTY OF ROCKLAND,
15-cv-8768 (NSR)
ORDER AND OPINION
Defendants.
NELSON S. ROMAN, United States District Judge:
Plaintiff William K. McMahon ("Plaintiff') commenced this action against the Rockland
County Correctional Center, Louis Falco, III Sheriff, Chief of Corrections Anthony J. Volpe,
Correctional Officer, Peter Orlando, Correctional Officer Hickey, Correctional Officer Bauer, and
the County of Rockland (collectively, "Defendants") with the filing of a summons and complaint
on or about November 6, 2015. (See Complaint, ("Compl."), ECF No. 2.). Plaintiff claimed that
Defendants violated his constitutional rights and were liable under 42 U.S.C. § 1983. (Id).
On July 25, 2018, after learning that Plaintiff had been murdered, Defendants filed a motion
to dismiss the action pursuant to Fed. R. Civ. P. 25(a). (See Defendants' Memorandum of Law in
Support of Motion to Dismiss, ("Def. Mem."), ECF No. 28.) For the reasons explained below,
Defendant' motion is GRANTED.
BACKGROUND
On or about November 6, 2015, Plaintiff a prose litigant, filed an action, pursuant to 42
U.S.C. § 1983, claiming that Defendants violated various of his constitutional rights. (See Compl.).
Defendants subsequently learned that Plaintiff was murdered by reading an article in the Times
Herald Record. (Def. Mem at 2; Schuh Declaration, ("Schuh Deel."), ECF No. 27, Ex C.)
On March 7, 2018, Defendants filed and served a Notice of Death of Party William K.
McMahon. (Def. Mem at 2; Schuh Deel. Ex D.) On March 14, 2018, Defendants' counsel received
a call from Winifred McMahon and her boyfriend Michael Mccafferty, inquiring as to the Notice
of Plaintiffs Death. (Def. Mem. at 2).
Defendants' counsel advised Winifred McMahon that he was representing the County of
Rockland, and that Rockland County's interests were averse to Decedent-Plaintiffs. (Id.) Ms.
McMahon responded that she would speak to the rest of her family to determine how they wished
to proceed in the instant matter. (Id.)
Since that time, Defendants' counsel has received no further contact from anyone
representing the Plaintiffs estate or claiming to be the Plaintiffs estate representative. (Id. at 3.).
More than ninety (90) days have elapsed since the service of the Notice of Plaintiffs Death and
no motion has been filed or served to substitute Plaintiff by decedent's successor or representative.
DISCUSSION
Federal Rule of Civil Procedure 25(a)(l) states in part:
if 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 ninety (90)
days after service of a statement noting the death, the action by or against the
descendant must be dismissed as to the deceased party.
Here, Plaintiffs death certificate reflects that Plaintiff died on October 24, 2017. (See
Schuh Deel., Ex. D.) It is undisputed that counsel for Defendants filed Notice of Plaintiffs Death
with the Court on March 7, 2018, estimating that his death occurred on or about April 19-20, 2017.
(See Schuh Deel., Ex. E.)
Counsel for Defendants are a party to this case, sufficient to satisfy the notice of death
requirement of Fed. R. Civ. P. 25(a)(l). See Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 469
(2d Cir. 1998). Further, while counsel did not specifically identify a specific individual as
Plaintiffs legal representative or successor, counsel did identify the "Estate of William K.
McMahon," which is sufficient to satisfy the identification provision of Fed. R. Civ. P. 25(a)(l).
See id.
Moreover Defendants' counsel has represented to the Court, that about one week after
filing the notice of death, he was contacted by Winifred McMahon, who represented that she would
speak to the rest of her family to determine how they wished to proceed in the instant matter. (Def.
Mem. at 2.) Hence, all the predicate conditions of Fed. R. Civ. P. 25(a)(l) are met.
Since well over 90 days (approximately 281 days) have passed since Defendants' filed the
Notice of Death Motion with the Court, and no motion for substitution has been made by any party,
including the decedent-Plaintiffs successor or estate representative, decedent-Plaintiffs
Complaint against Defendants' is appropriately dismissed. See Unicorn Tales, 138 F.3d 467.
CONCLUSION
For the reasons stated above, the Court GRANTS Defendants' Motion to Dismiss. The
Clerk of Court is respectfully directed to terminate the motion at ECF No. 26, enter judgment in
favor of Defendants, and close the case. The Clerk of the Court is also respectfully directed to mail
a copy of this decision to:
William K. McMahon, pro se
16 Bivona Lane, Lot 86
New Windsor, New York 12553
Estate of William K. McMahon
16 Bivona Lane, Lot 86
New Windsor, New York 12553
and to file proof of service on the docket.
Dated:
December 13, 2018
White Plains, New Yark
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