Patterson v. Patterson et al

Filing 30

ORDER. Plaintiff is instructed to file a motion for substitution with respect to deceased defendant William S. Palmer within 90 days. Signed by Hon. Elizabeth A. Wolford on 03/20/2019. (CDH)(A copy of this Order was mailed to Plaintiff)

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UNITED STATES DISTRICT COURT

MAR 2 0 2019

WESTERN DISTRICT OF NEW YORK
iQEWENGVJTJi

DISTRl^
JOHN P. PATTERSON,
Plaintiff,
ORDER
V.

I:I6-CV-00844 EAW

JOEL M.PATTERSON, Sergeant, Five
Points Correctional Facility, SHARI L.
KAMPNICH, Correctional Officer, Five
Points Correctional, WILLIAM S.
PALMER, Correctional Officer, Five

Points Correctional Facility, MATTHEW
R. PIOTROWSKI, Correctional Officer,
Five Points Correctional Facility, and
JOANNE E. SPRINGER,Facility Nurse,
Five Points Correctional Facility,
Defendants.

Plaintiff John P. Patterson ("Plaintiff), proceeding pro se, brings the instant action
pursuant to 42 U.S.C. § 1983. (Dkt. 12). Plaintiff claims that defendant William S. Palmer
("Palmer"), along with various other defendants (collectively "Defendants"), violated his

constitutional rights. (Id). On September 12, 2018, Defendants filed a suggestion of death
of Palmer to inform the Court that Palmer passed away on September 9, 2018. (Dkt. 25 at
I). The suggestion of death was mailed to Plaintiff on September 12, 2018. (Id. at 3).
Federal Rule of Civil Procedure 25 provides:
"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. ... If the motion is not made within 90 days after service of a

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statement noting the death, the action by or against the decedent must be
dismissed.

Fed. R. Civ. P. 25(a)(1). It has been more than 90 days since Defendants served the
suggestion of death on Plaintiff.

However, the Court will afford Plaintiff extra

consideration because he is proceeding pro se. See, e.g., Labounty v. Coughlin, No. 93
Civ. 3443(BSJ), 2003 WL 21692766, at *5 (S.D.N.Y. July 21, 2003)(addressing Rule 25

in the context of a pro se Plaintiff); McCorkle v. Juchenwicz, No. 94 CIV. 6363(TPG),
1999 WL 163205, at *2(S.D.N.Y. Mar. 23, 1999)(same).

As this Order is the first notice to Plaintiff of the procedural consequences of
Palmer's death, the Court interprets Rule 25 "so that in this case, the 90-day period runs

from the date of the present opinion." McCorkle, 1999 WL 163205, at *2. Plaintiff is

hereby instructed that no later than 90 days from the date of this Order, he must submit
a motion to substitute the proper party for Palmer. A failure to file a motion to substitute
may result in the dismissal of Plaintiffs claims against Palmer. If Plaintiff has any

questions, he may direct them to the Pro Se Office.
SO ORDERED.

ELIZT^ET^ WOLFORD
tejPStates District Judge
Dated: March 20, 2019
Rochester, New York

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