HERRING v. WARD

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION JAMES HERRING, Plaintiff, CIVIL ACTION NO. v. 5:22-cv-00185-TES-CHW COMMISSIONER CHARLIE WARD, et al., Defendants.

ORDER ADOPTING THE UNITED STATES

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Before the Court is the United States Magistrate Judge’s Report and Recommendation (“R&R”) [Doc. 59] regarding the Motion for Summary Judgment [Doc. 56] filed by Defendants Walter Berry, Tracey Lumpkin, Eric Martin, Crystal Tatum, Sabrina Booth, and Pretrillion Whipple.1 Pro se Plaintiff James Herring filed a letter on January 31, 2023,2 requesting an extension of time to file objections to the R&R.

1 Defendants filed and served on Plaintiff a Suggestion of Death [Doc. 49] for Defendant Ingram on March 16, 2023. Because no motion for substitution was “made within 90 days after service” of the suggestion of death, Rule 25(a)(1) requires that “the action . . . against [Ingram] must be dismissed.” Fed. R. Civ. P. 25(a)(1).

2 “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the date it is delivered to prison authorities for mailing.” Daker v. Comm’r, Ga. Dep’t of Corrs., 820 F.3d 1278, 1286 (11th Cir. 2016) (quoting Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009)). “Absent evidence to the contrary,” we “assume that [the prisoner’s filing] was delivered to prison authorities the day he signed it.” Daker, 820 F.3d at 1286 (quoting Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001)). [Doc. 60]. The magistrate judge granted Plaintiff’s motion and extended his deadline to object until February 20, 2024. [Doc. 61].

Plaintiff’s extended deadline has come and gone, and he has failed to file any objections, so the Court reviews the R&R for clear error. See 28 U.S.C. § 636(b)(1)(C) in connection with Fed. R. Civ. P. 6(a)(1) & (d). Rather than timely file any objections to the

R&R, Plaintiff sent a letter to the Court dated February 7, 2024, discussing, inter alia, concerns with receipt of his mail and indicating that he is “still working on [his] respon[s]e to summary judg[]ment.” [Doc. 62, pp. 1–2]. However, Plaintiff filed his

Response [Doc. 58] to Defendants’ summary-judgment motion months ago. To the extent Plaintiff means to say that he is still working on his objections to the R&R, nearly a month has passed since the already-extended deadline expired. Having reviewed the United States Magistrate Judge’s Report and Recommendation [Doc. 59] for clear error,

the Court ADOPTS it and MAKES IT THE ORDER OF THE COURT. Accordingly, the Court GRANTS Defendants’ Motion for Summary Judgment [Doc. 56] and DISMISSES Plaintiff’s claims against Defendant Ingram. See supra note 1.

As there are no remaining defendants, the Court DIRECTS the Clerk of Court to enter Judgment accordingly and CLOSE this case. SO ORDERED, this 12th day of March, 2024. S/ Tilman E. Self, III TILMAN E. SELF, III, JUDGE UNITED STATES DISTRICT COURT