Everett v. Alman

Opinion

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION

CHRISTOPHER EVERETT ADC #152664 PLAINTIFF

Vv. No. 3:20-cv-197-DPM-PSH

JEREMY ALMAN, Sergeant, North Central Unit, ADC; ALEXANDER DELGADO, Corporal, North Central Unit, ADC; IAN WARD, Sergeant, North Central Unit, ADC; THANE HUYARD, Sergeant, North Central Unit, ADC; CODY BRUYETTE, Corporal, North Central Unit, ADC; KENNETH MOSS, Sergeant, North Central Unit, ADC; KEITH DAY, Major, North Central Unit, ADC; NURZUHAL FAUST, Warden, Arkansas Department of Correction; ALEC WILBUR, Sergeant, North Central Unit, ADC; KEVIN HOLT, Corporal, North Central Unit, ADC; DAVID FOSTER, Lieutenant, North Central Unit, ADC; RONALD GILLIHAN, Captain, North Central Unit, ADC; DEXTER PAYNE, Director, Pine Bluff ADC; and RICHARD COHOON, Sergeant, North Central Unit, ADC DEFENDANTS

ORDER On de novo review, the Court adopts Magistrate Judge Harris’s partial recommendation, Doc. 61, and overrules Everett's objection, Doc. 63. FED. R. Civ. P. 72(b)(3).. The Court also denies Everett's motion to substitute, Doc. 62. The Court may extend the time to

substitute only if Everett shows excusable neglect. FED. R. Clv. P. 6(b)(1)(B); Kaubisch v. Weber, 408 F.3d 540, 542 (8th Cir. 2005). Everett argues that he isn’t a lawyer and didn’t know he needed to file a motion to substitute. But a person’s pro se status generally doesn’t excuse a failure to comply with the Federal Rules of Civil Procedure. Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996). Further, both Defendants’ suggestion of death and Everett's suggestion of death cited Rule 25(a)(1)—the same provision that requires substitution within ninety days. Doc. 32 & 47. A “misapplication or misreading of the plain language of Rule 25 does not establish excusable neglect.” Kaubisch, 408 F.3d at 543. Everett's remaining claims against Alman are therefore dismissed without prejudice for failure to timely substitute. FED. R. Clv. P. 25(a)(1). So Ordered.

Pred J D.P. Marshall Jr. United States District Judge la- May 2A02(

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