Mendez v. Knoblach et al, No. 9:2011cv00961 - Document 63 (N.D.N.Y 2013)

Court Description: DECISION AND ORDER: ORDERED that, the 60 Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). ORDERED, that Ms. Mendez's 50 Motion to Substitute is DENIED. ORDERED, that this case is DISMISSED for failure to substitute within 90 days after service of the statement noting the death of plaintiff Angel Mendez pursuant to Federal Rule of Civil Procedure 25(a). Signed by Judge David N. Hurd on 11/26/13. (served on Carmen Mendez by regular mail) (alh, )

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------ANGEL MENDEZ, Plaintiff, No. 11-CV-961 -vKNOBLACH, Sgt., Onieda Correctional Facility; MASNER, Correctional Officer, Onieda Correctional Facility; and TIMOTHY COLLINS, Correctional Officer, Onieda Correctional Facility, Defendants. -------------------------------APPEARANCES: OF COUNSEL: ANGEL MENDEZ Plaintiff pro se 05-A-5320 Wende Correctional Facility Regional Medical Unit P.O. Box 1187 Alden, NY 14004 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendants The Capitol Albany, NY 12224 CHRISTOPHER W. HALL, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge DECISION and ORDER Pro se plaintiff Angel Mendez brought this action pursuant to 42 U.S.C. § 1983. Subsequently, plaintiff died and his wife, Carmen Mendez, attempted to substitute herself as plaintiff and continue the action on her deceased husband's behalf. On September 17, 2013, the Honorable Christian F. Hummel, United States Magistrate Judge, advised by ReportRecommendation that Ms. Mendez's motion to substitute be denied. No objections to the Report-Recommendation were filed. Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). Therefore, it is ORDERED that 1. Ms. Mendez's motion to substitute is DENIED; and 2. This case is DISMISSED for failure to substitute within 90 days after service of the statement noting the death of plaintiff Angel Mendez pursuant to Federal Rule of Civil Procedure 25(a). The Clerk is directed to serve a copy of this Decision and Order upon defendants and Carmen Mendez. IT IS SO ORDERED. Dated: November 26, 2013 Utica, New York. -2-

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