Turner v. Westchester County et al

Filing 120

ORDER OF DISMISSAL: Accordingly, this action is hereby DISMISSED pursuant to Rule 25(a)(1) of the Federal Rules of Civil Procedure. Defendants must serve a copy of this Order upon Plaintiff's daughter at her email address, and must file proof of such service with the Court. The Clerk of the Court is respectfully directed to serve a copy of this Order upon the pro se Plaintiff at his address of record on the docket. The Clerk of the Court is further respectfully directed to terminate all motions and close this case. (Signed by Magistrate Judge Andrew E. Krause on 1/25/2022) (tg) Transmission to Docket Assistant Clerk for processing.

Case 7:18-cv-03370-AEK Document 120 Filed 01/25/22 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
Wilbert Kitson Andrew Turner,
Plaintiff,
-against-

ORDER OF DISMISSAL
18 Civ. 3370 (AEK)

Dr. Raul Ulloa, et al.,
Defendants.
-------------------------------------------------------------X
THE HONORABLE ANDREW E. KRAUSE, U.S.M.J.
On September 17, 2021, Defendants filed a “Suggestion of Death Upon the Record
Pursuant to Rule 25(a)(1),” noting the death of pro se Plaintiff Wilbert Kitson Andrew Turner
during the pendency of this action, and stating that the suggestion of death was “based upon the
Suggestion of Death and Order of Dismissal filed and entered in the United States District Court
for the Southern District of New York in Wilbert K.A. Turner v. Agent George Gjelaj, et al.,
Case No. 1:18-cv-01973-LTS-GWG.” ECF Nos. 113 & 114. 1 On September 20 , 2021, the
Court issued an Order setting a December 27, 2021 deadline for an authorized representative of
Plaintiff to move to substitute the proper party and setting a January 10, 2022 deadline for
Defendants to file a letter motion to dismiss for failure to timely file a motion to substitute in the
event that no action was taken by December 27, 2021. ECF No. 115. The September 20 Order
also directed Defendants to serve copies of that Order on Plaintiff at the address set forth in the
Order and on Plaintiff’s daughter, at the email address used by the parties for service of various

1

ECF Nos. 113 and 114 are virtually identical, except that at ECF No. 113, counsel
attached a copy of this Court’s order at ECF No. 112 to the suggestion of death.

Case 7:18-cv-03370-AEK Document 120 Filed 01/25/22 Page 2 of 2

documents on Ms. Turner in the Gjelaj matter. Defendants promptly effected such service. See
ECF No. 116.
Rule 25(a)(1) of the Federal Rules of Civil Procedure provides that:
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 90 days after service of a statement noting
the death, the action by or against the decedent must be dismissed.
(emphasis added). More than 90 days have passed since the service of a statement noting
Plaintiff’s death, and no motion for substitution has been made. Defendants filed and served a
letter motion to dismiss pursuant to Rule 25(a) on January 10, 2022. ECF No. 118 (refiled at
ECF No. 119). No opposition to the letter motion has been filed, nor has the Court received any
other communication related to this action.
Accordingly, this action is hereby DISMISSED pursuant to Rule 25(a)(1) of the
Federal Rules of Civil Procedure.
Defendants must serve a copy of this Order upon Plaintiff’s daughter at her email
address, and must file proof of such service with the Court.
The Clerk of the Court is respectfully directed to serve a copy of this Order upon the
pro se Plaintiff at his address of record on the docket.
The Clerk of the Court is further respectfully directed to terminate all motions and close
this case.
Dated: January 25, 2022
White Plains, New York

SO ORDERED.
___________________________________
ANDREW E. KRAUSE
United States Magistrate Judge

2