Dunn, Phillip v. Levine, Elliott et al

Filing 41

ORDER that the briefing schedule on the motion for summary judgment filed by defendants Ryan Secord, Shawn Kudron, Dan Ulrich and Nathan Poke is STAYED. Defendants may have until June 1, 2016, to attempt service again and report back to the court, after following the instructions in this order. If defendants do not respond by June 1, 2016, I will deny their summary judgment motion for lack of service. Signed by District Judge Barbara B. Crabb on 5/24/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - PHILLIP S. DUNN,
ORDER
Plaintiff,
15-cv-430-bbc
v.
RYAN SECORD, SHAWN KUDRON,
DAN ULRICH and NATHAN POKE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Phillip Dunn is suing several police officers for alleged Fourth
Amendment violations. On May 16, 2016, defendants filed a motion for summary judgment
on plaintiffs’ claims. Dkt. #31. Now defendants have filed a letter in which they say that
“plaintiff refused the delivery” of their summary judgment materials. Dkt. #40. They ask
for the court’s “guidance on how to proceed.” Id.
Attached to defendants’ letter is a printout of a webpage from the delivery service
defendants used, stating that a package was “Refused by recipient” on May 18, 2016.
Defendants interpret this statement to mean that plaintiff refused the delivery, but that is not
the only possibility or even the most likely one. As defendants well know, plaintiff is
incarcerated at the La Crosse County jail. Thus, it may be that officials at the jail rather
than plaintiff refused to accept the package.
Surprisingly, defendants do not say that they tried to contact the jail to determine
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what happened to the package, but that should have been their first step. In any event, that
is what they should do now. In particular, defendants should contact jail staff and ask them
whether they have any record of the reasons the package was refused. Even if jail staff do
not have such a record, defendants should confirm with jail staff that they (defendants)
followed all of the jail’s rules for mail. If jail staff refused the package because defendants
failed to comply with one or more jail rules for mail packages, defendants should work with
jail staff to determine how they can serve their summary judgment materials on plaintiff
while complying with the rules.
If defendants are able to correct the problem and serve plaintiff successfully, they
should notify the court at that time so that the court can set a new briefing schedule. If
defendants acquire proof that plaintiff personally refused to accept their summary judgment
motion or if they are unable after good faith, reasonable efforts to comply with the jail’s mail
rules, they should notify the court of that as well. If defendants are unable to accomplish
service, they should submit with their response an explanation of all the efforts they took
before giving up.

ORDER
IT IS ORDERED that the briefing schedule on the motion for summary judgment
filed by defendants Ryan Secord, Shawn Kudron, Dan Ulrich and Nathan Poke is STAYED.
Defendants may have until June 1, 2016, to attempt service again and report back to the
court, after following the instructions in this order. If defendants do not respond by June

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1, 2016, I will deny their summary judgment motion for lack of service.
Entered this 24th day of May, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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