Wilcox v. Ozmint et al

Filing 58

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 45 Motion to Substitute Party; and denying 48 Motion to Dismiss. Signed by Honorable Richard M Gergel on 4/24/2012.(cwhi, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Marshall Frank Wilcox,
Plaintiff,
v.

Jon Ozmint, William R. Byars, Jr., John R.
Pate, Thomas Byrne, Anthony Padula,
Ronald Steen, GEO Care of South Carolina,
Inc., and the South Carolina Department
Of Corrections,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No.9: 11-cv-2073-RMG

ORDER

-----------------------------)
In this case, Plaintiff asserts claims pursuant to, inter alia, 42 U.S.C. § 1983, based on

Defendants' alleged failure to provide adequate medical care to Plaintiff while he was an inmate
with the South Carolina Department of Corrections. Pursuant to the provisions of 28 U.S.C. §
636(b) and Local Rule 73.02(B)(2)(d) DSC, this case was automatically referred to the United
States Magistrate Judge for all pretrial proceedings. After this action was filed on August 4,
2011, Plaintiff passed away on October 3, 2011. On February 17,2012, Plaintiff's counsel filed
a notice of death and a motion to allow substitution of Plaintiff with a personal representative
pursuant to Federal Rule of Civil Procedure 25.

(Dkt. No. 45).

On February 27, 2012,

Defendants filed a response in opposition to Plaintiffs motion to substitute and a motion to
dismiss Plaintiffs Complaint. (Dkt. Nos. 47 and 48).

After the parties fully briefed both

motions, the Magistrate Judge issued a Report and Recommendation recommending that the
Court grant Plaintiffs motion to substitute and deny Defendants' motion to dismiss. Defendants

did not file any objections to the Report and Recommendation. As explained herein, the Court
agrees with and wholly adopts the Magistrate Judge's Report and Recommendation.
Law/Analysis

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and responsibility for making a final determination remains with this
Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). This Court is charged with making a
de novo determination of those portions of the Report and Recommendation to which specific

objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may also
"receive further evidence or recommit the matter to the magistrate with instructions." ld.
Where, as in this case, no specific objections are filed to the Report and Recommendation, the
Magistrate Judge's conclusions are reviewed only for clear error, see Diamond v. Colonial Life
& Accident Ins. Co., 416 F .3d 310, 315 (4th Cir. 2005), and this Court is not required to give any

explanation for adopting the recommendation of the Magistrate. Camby v. Davis, 718 F.2d 198
(4th Cir. 1983).
After carefully considering the record, the arguments of the parties, and the applicable
law, the Court finds that the Magistrate Judge's Report and Recommendation accurately
summarizes the relevant law and correctly applies the law to the facts of this case. First, with
regard to Plaintiffs motion to substitute pursuant to Federal Rule of Civil Procedure 25, Plaintiff
has properly requested that the Court substitute Timothy O. Driggers, the personal representative
ofthe Estate of Marshall Frank Wilcox, as the Plaintiff in this action. In Defendants' response in
opposition to Plaintiffs motion (which also served as the basis for Defendant's motion to
dismiss), Defendants argued that, because the Orangeburg County Probate Court had not yet

2

appointed Mr. Driggers as Plaintiffs Personal Representative, no one was authorized to act on
behalf of Plaintiffs estate or to make decisions regarding this lawsuit. (Dkt. No. 47 at 3).
However, on March 1, 2012, the Orangeburg County Probate Court issued an Order appointing
Mr. Driggers as Plaintiffs personal representative. (Dkt. No. 49-2). Thus, Plaintiffs counsel
now has the authority to request that the Court substitute Mr. Driggers for Plaintiff. See Fariss v.
Lynchburg Foundry, 769 F.2d 958, 961 (4th Cir. 1985) (holding that a "motion for substitution

may be made by any party or by the successors or representatives of the deceased party").
Further, as explained in the Magistrate Judge's Report and Recommendation, Plaintiff filed the
motion to substitute within the ninety-day time limit provided by Federal Rule of Civil Procedure
25. (Dkt. No. 53 at 4-5). Thus, the Court grants Plaintiffs motion to substitute Mr. Driggers, as
personal representative of the Estate of Marshall Frank Wilcox, as the Plaintiff in this action.
For these same reasons, the Court denies Defendants' motion to dismiss.
AND IT IS SO ORDERED.

Richard M. Gerg
United States Distnct Judge
April 2 tt, 2012
Charleston, South Carolina

3