Peterson, Erick v. Meisner, Michael et al

Filing 32

ORDER denying 28 Motion to Substitute Party. As stated in the court's previous order, Dkt. 16 , if no party moves to substitute defendant Charles Cole's estate as a defendant by August 10, 2016, I will dismiss defendant Cole from the case. Signed by District Judge James D. Peterson on 7/8/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ERICK PETERSON,
Plaintiff,
v.
MICHAEL MEISNER, JANEL NICKEL,
LON BECHER, TIMOTHY CASIANA, BLOUNT,
NATHAN PRESTON, TRACY KOPFHAMER,
BENJAMIN NEUMAIER, SCOTT ROYCE,
TRAVIS HAAG, HAUTAMAKI, DALIA SULIENE,
MELISSA THORNE, EMILY, KAREN ANDERSON,
JOANNE LANE, CINDY FRANCOIS,
CINDY O’DONNELL, DEIRDNE MORGAN,
CHARLES COLE, DENNIS SCHUH,
CHARLES FACKTOR, DENNIS RICHARDS, and
ALEXANDER AGNEW,

ORDER
15-cv-49-jdp

Defendants.
On May 17, 2016, the court issued an order informing the parties that defendant
Charles Cole is deceased and explaining that if no party moves to substitute defendant Cole’s
estate by August 10, 2016, the court will dismiss plaintiff’s claim against him. Dkt. 16.
Now plaintiff has filed a motion to substitute. Dkt. 28. But plaintiff does not move to
substitute defendant Cole’s estate; rather, he requests that the court replace Cole with “the
next complaint examiner in Madison.” Id. at 1. But plaintiff misunderstands the court’s order
and the rules governing substitution. “If a party dies and the claim is not extinguished, the
court may order substitution of the proper party.” Fed. R. Civ. P. 25(a)(1). The “proper
party” is “ordinarily the personal representative of the party who has died.” Atkins v. City of
Chicago, 547 F.3d 869, 870 (7th Cir. 2008). As the court stated in its previous order,
plaintiff, or any other party to this case, will need to identify and move to substitute a proper

party—likely Cole’s estate or personal representative. Plaintiff cannot simply transfer his
claim against Cole to another complaint examiner who played no role in denying plaintiff’s
grievances. The claim plaintiff brings against Cole arises from actions Cole allegedly
personally took, not from his position generally.

ORDER
IT IS ORDERED that plaintiff Erick Peterson’s motion to substitute, Dkt. 28, is
DENIED. As stated in the court’s previous order, Dkt. 16, if no party moves to substitute
defendant Charles Cole’s estate as a defendant by August 10, 2016, I will dismiss defendant
Cole from the case.
Entered July 8, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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