CUNNINGHAM

v.

DEPARTMENT OF CORRECTIONS

MARGHERITA CUNNINGHAM, As Personal Representative of the Estate of RAY CUNNINGHAM, JR., Plaintiff, v.

STATE OF FLORIDA DEPARTMENT

OF CORRECTIONS and CENTURION OF FLORIDA, LLC, Defendants. / Case No.: 4:21cv414-MW/MAF

ORDER ADOPTING IN PART AND REJECTING IN PART

REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate Judge's Report and Recommendation, ECF No. 73, and has reviewed de novo Defendant FDOC's and Plaintiff's objections, ECF Nos. 74 and 77.

This Court agrees with the Magistrate Judge that Plaintiff's claims against Defendant FDOC are due to be dismissed with prejudice due to Plaintiff's untimely service, Plaintiff's failure to request an extension of time for service, and Plaintiff's lack of diligence and failure to demonstrate good cause for extension of time for service. See Profit v. Americold Logistics, LLC, 248 F.R.D. 293, 297 (N.D. Ga. 2008) (dismissing case with prejudice for untimely service of process under similar circumstances). Plaintiff's objections on this point are non-responsive to the report

and recommendation and, instead, simply restate Plaintiff's response to FDOC's motion to dismiss. But the Magistrate Judge already rejected these arguments in his report and recommendation, and this Court is not persuaded that the Magistrate Judge's analysis on this issue is incorrect for any reason.

Inasmuch as the FDOC's motion to dismiss with respect to untimely service is due to be granted with prejudice, this Court need not adopt the balance of the report and recommendation with respect to the additional reasons why Plaintiff's claims against FDOC are due to be dismissed. Accordingly, this Court accepts in part the report and recommendation only with respect to the matter of untimely service. Otherwise, this Court rejects the balance of the report and recommendation with respect to Defendant FDOC.

As for Defendant Centurion's motion to dismiss, this Court accepts the report and recommendation in full, over Plaintiff's objections. Having reviewed Plaintiff's objections and the allegations in the amended complaint, this Court agrees with the Magistrate Judge that Plaintiff's amended complaint is insufficient to show that a specific policy of Centurion violated Mr. Cunningham's Eighth Amendment rights.

Accordingly,

IT IS ORDERED:

The report and recommendation, ECF No. 73, is accepted in part and rejected in part, over the Plaintiff's and Defendant FDOC's objections, as this

Court's opinion. Defendant FDOC's motion to dismiss, ECF No. 68, is GRANTED. Plaintiff's claims against FDOC are DISMISSED with prejudice for untimely service of process. Defendant Centurion's motion to dismiss, ECF No. 60, is GRANTED. Plaintiff's claims against Centurion are DISMISSED without prejudice. Plaintiff is permitted to file a third amended complaint, limited to an Eighth Amendment claim pertaining to a policy or custom of Centurion. This case is referred back to the Magistrate Judge for further proceedings.

SO ORDERED on May 5, 2025.

s/Mark E. Walker Chief United States District Judge