Butler, Terranzo v. Tose et al

Filing 22

ORDER denying defendants' 14 motion for summary judgment. Plaintiff Terranzo Butler may have until May 14, 2018, to inform the court whether he wishes to continue with this case. Signed by District Judge James D. Peterson on 4/24/2018. (jef),(ps)

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

TERRANZO BUTLER,
Plaintiff,
v.

ORDER
17-cv-138-jdp

OFFICER TOSE,
Defendant.

Pro se prisoner Terranzo Butler is proceeding on a claim that defendant Tose used
excessive force against him while he was a juvenile detainee at the Lincoln Hills School for
Boys. (Tose is now an adult and confined at the Columbia Correctional Institution.) A motion
titled “Defendant’s motion for summary judgment” is now before the court, Dkt. 14, but the
motion is a bit of a headscratcher. Counsel for “defendant” say in their brief that the court
should dismiss the claim against Tose because “there is no record of an ‘Officer Tose’ (or Officer
Taze, Tase, etc.) ever being an employee of Lincoln Hills School.” Dkt. 21, at 1. Alternatively,
counsel for “defendant” say that no employee used excessive force against Butler while he was
detained at the school. Butler did not respond to the motion.
The motion raises an obvious question. If Office Tose does not exist, who is counsel
representing? Generally, in cases like this one involving pro se prisoners suing employees of the
Wisconsin Department of Correction, service of the complaint is accomplished through an
informal agreement with the Wisconsin Department of Justice. Dkt. 7, at 4. In accordance with
that agreement, this court forwarded the complaint in this case to the Attorney General for
service on defendant Tose. Shortly after the court issued that order, counsel filed an answer on
Tose’s behalf without raising any objections related to service or personal jurisdiction. Dkt. 11.

Now, for the first time, counsel say that staff have conducted “a diligent search of relevant
records,” but there is no record of anyone being employed at the school by the name of Tose,
Tase, Taze, or “any similar variation.” Dkt. 18, ¶¶ 4-8.
Missing from counsel’s brief is any explanation as to why they filed an answer on behalf
of a person they say does not exist or under what authority they had to do so. By counsel’s
own assertion, they do not have a client and no defendant has been served with the complaint.
It follows that counsel had no authority to file a motion for summary judgment in this case.
For this reason, I will deny the motion.
The question is what to do next. As noted above, Butler did not respond to counsel’s
motion, though his deadline for doing so was April 2. It would be pointless to allow Butler to
amend his complaint or conduct discovery to determine the identity of an appropriate
defendant if he no longer wishes to prosecute this lawsuit. Accordingly, I will give Butler an
opportunity to inform the court whether he wants to proceed. If he does not respond, I will
dismiss the case for failure to prosecute under Rule 41(b) of the Federal Rules of Civil
Procedure. If he does respond, I will consider the next steps for determining whether Butler
can identify an appropriate defendant.

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ORDER
IT IS ORDERED that:
1. “Defendant’s” motion for summary judgment, Dkt. 14, is DENIED.
2. Plaintiff Terranzo Butler may have until May 14, 2018, to inform the court whether
he wishes to continue with this case. If he does not respond by that date, I will
dismiss the case for failure to prosecute.
Entered April 24, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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