Wilson v. Lombardi et al

Filing 66

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Case Management Order (ECF #60) and Order Referring Case to Alternative Dispute Resolution (ECF #61), and all the deadlines and schedules contained therein, are VACATED. IT IS FURTHER ORDERED that , not later than March 6, 2017, the personal representative of Patrick Wilsons estate, if any, shall move for substitution of the proper party under Fed. R. Civ. P. 25(a)(1). Failure to timely file a motion for substitution shall result in the dism issal of this action without prejudice. IT IS FURTHER ORDERED that attorneys John M. Simon and Anthony G. Simon shall serve this Memorandum and Order upon any known survivors or heirs of Patrick Wilson, after which they are granted leave to withdraw as appointed counsel and shall no longer be considered as counsel of record. IT IS FURTHER ORDERED that this action is STAYED for ninety (90) days pending resolution of the status of the claim. Response to Court due by 3/6/2017. Signed by District Judge Catherine D. Perry on December 15, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
PATRICK WILSON,
Plaintiff,
v.
PAUL JONES, M.D., et al.,
Defendants.

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Case No. 2: 15 CV 45 CDP

MEMORANDUM AND ORDER
I appointed counsel to represent plaintiff Patrick Wilson in this prisoner civil
rights action brought under 42 U.S.C. § 1983, in which he alleged that medical and
correctional personnel at Moberly Correctional Center were deliberately indifferent to
his serious medical needs by ignoring his requests for care and denying recommended
treatment for complications related to a broken ankle. On December 5, 2016, counsel
filed a notice that Mr. Wilson had died. Because counsels’ representation does not
extend to Wilson’s estate or to his heirs, they shall be relieved of their appointment in
this case. If Wilson’s heirs believe that the claim raised in this action survives
Wilson’s death and wish to pursue the claim, a personal representative of Wilson’s
estate may be substituted as the proper party upon motion under Rule 25(a)(1),
Federal Rules of Civil Procedure. See Rapa v. Novartis Pharm. Corp., 53 F. Supp. 3d
1150, 1153 (E.D. Mo. 2014), aff'd, 607 F. App'x 617 (8th Cir. 2015) (in Missouri,
“[a] decedent's cause of action can only survive if brought by a personal

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representative of his estate appointed by a probate court.”).
Accordingly, upon consideration of the matter, and for the reasons stated
during a status conference with all counsel on December 14, 2016,
IT IS HEREBY ORDERED that the Case Management Order (ECF #60) and
Order Referring Case to Alternative Dispute Resolution (ECF #61), and all the
deadlines and schedules contained therein, are VACATED.
IT IS FURTHER ORDERED that, not later than March 6, 2017, the
personal representative of Patrick Wilson’s estate, if any, shall move for substitution
of the proper party under Fed. R. Civ. P. 25(a)(1). Failure to timely file a motion for
substitution shall result in the dismissal of this action without prejudice.
IT IS FURTHER ORDERED that attorneys John M. Simon and Anthony G.
Simon shall serve this Memorandum and Order upon any known survivors or heirs of
Patrick Wilson, after which they are granted leave to withdraw as appointed counsel
and shall no longer be considered as counsel of record.
IT IS FURTHER ORDERED that this action is STAYED for ninety (90)
days pending resolution of the status of the claim.

_______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 15th day of December, 2016.
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