Wilkins v. Overall et al

Filing 211

ORDER granting 209 Motion to Appoint and Substitute Party. Pursuant to Federal Rule of Civil Procedure 25(a), James Pogue, as special representative, is SUBSTITUTED as Plaintiff for Joseph Wilkins, deceased. The Clerk of Court is DIRECTED to update the docket sheet to reflect this substitution of parties. The assignment of Counsel Nathan Eimer transfers to James Pogue, now the Plaintiff in this case. Signed by Judge Stephen P. McGlynn on 10/8/2021. (jrj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH WILKINS,
Plaintiff,

Case No. 16-cv-01324-SPM

v.
LILLIAN OVERALL,
Defendants.

MEMORANDUM AND ORDER
MCGLYNN, District Judge:
This matter is before the Court on a motion to appoint and substitute James Pogue as
special representative of Joseph Wilkins. (Doc. 209). After ruling on the motions for summary
judgment, court recruited counsel for Plaintiff Joseph Wilkins, Nathan Eimer, filed a suggestion
of death, notifying the Court that Joseph Wilkins had passed away. (Doc. 203). Counsel then
served Wilkins’s next of kin, his mother, Rita Kirlew, and his brother, James Pogue, with the
suggestion of death on May 11, 2021. On August 9, 2021, Counsel Eimer filed this motion asking
the Court to appoint James Pogue as special representative for the purpose of prosecuting
Wilkins’s surviving legal claim 1 and substitute Pogue as Plaintiff in Wilkins’s stead. Defendant
Overall did not file a response in opposition.
Rule 25(a) of the Federal Rules of Civil Procedure provides:
If a party dies and the claim is not extinguished, the court may order substitution of
the proper party. A motion for substitution may be made by any party or by the
decedent’s successor or representative. If the motion is not made within 90 days
after service of a statement noting the death, the action by or against the decedent
must be dismissed.

Following summary judgment, Wilkins is proceeding on an Eighth Amendment claim against Defendant Overall
for deliberate indifference to serious dental needs. (Doc. 201).

1

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In accordance with the Rule 25, Wilkins’s Eighth Amendment claim of deliberate indifference is
not extinguished by his death, and the motion to substitute was timely filed. See Bennet v. Tucker,
827 F. 2d 63, 68 (7th Cir. 1987); Anderson v. Romero, 42 F. 3d 1121, 1123 (7th Cir. 1994); Estrada
v. Hamby, N. 04-434-CJP, 2010 WL 333701, at *1 (S.D. Ill. Jan. 26, 2010) (observing that it “is
settled that a civil rights claim brought under 42 U.S.C. § 1983 is a claim that survives under the
Illinois Survival Act, 755 ILCS 5/27-6”). That leaves the Court with the decision of whether James
Pogue is a “proper party” for the purpose of substitution and prosecuting Wilkins’s surviving
claim. FED. R. CIV. P. 25(1)(1).
In making this determination, the Court looks to Illinois state law. See also Anderson, 42,
F. 3d at 1123 (the Seventh Circuit using state law to determine whether an individual is a “proper
party” for substitution); Tucker v. Mitchell-Lawshea, No. 17 CV 05883, 2019 WL 1057384, at *34 (N.D. Ill. Mar. 6, 2019) (finding that the district court had the authority to appoint a special
representative under Illinois law); Wolter v. Anselmo Lindberg Oliver, LLC, No. 16 C 4205, 2017
WL 11559026, at * 1 (N.D. Ill. Arp. 27, 2017) (“whether the proposed party is a ‘proper party’ is
substantive, however, and is determined by state law”); Mitchell v. LVNV Funding, LLC, No. 12CV-523-TLS, 2020 WL 614645, at *3 (N.D. Ind. Feb. 10, 2020) (recognizing that many courts in
and outside this circuit “have held that state law should be used to resolve issues related to
substitution”). Normally, the proper party is the “personal representative of the party who has
died.” See Atkins v. City of Chi., 71 F. 3d 869, 870 (7th Cir. 2008). Under Illinois law, however,
when “no petition for letters of office for the decedent’s estate has been filed, the court may appoint
a special representative for the deceased for the purpose of prosecuting the action.” 735 ILCS 5/21008(b).
James Pogue is the brother of the deceased, and no objections have been raised regarding
his substitution. At this point, the Court finds no reason why he cannot be considered a proper
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party and serve as special representative. As this case has survived summary judgment, it is
reasonable to compel the parties to proceed on the merits and in the interest of justice. See Wolinsky
v. Kadison, 987 N.D. 2d 971, 987-88 (2013) (noting that an overriding consideration when
determine whether there was error in permitting a party substitution under 2-1008(b) is “whether
substantial justice is being done between the litigants”). Accordingly, the motion is GRANTED.
The assignment of Counsel Nathan Eimer, transfers to James Pogue, now the Plaintiff in this case.
IT IS SO ORDERED.
DATED: October 8, 2021
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge

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