Conrad, Chad et al. v. Litscher, Jon et al

Filing 129

ORDER that defendants may have until October 8, 2019, to serve the proper party with notice of death and file proof of service or show cause why they were unable to do so. If defendants file proof of service, Conrad's successors or personal representative will have 90 days to file a motion for substitution. Signed by District Judge James D. Peterson on 9/17/2019. (rks),(ps)

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

CHAD J. CONRAD and JEFFREY A. SCHULTZ, JR.,
Plaintiffs,
v.

ORDER

CAPTAIN LEROY DUNAHAY, JR., and
NICHOLAS R. KLIMPKE,

17-cv-418-jdp

Defendants.
In 2017, pro se plaintiffs Chad J. Conrad and Jeffrey A. Schultz brought this lawsuit
asserting equal protection and retaliation claims against officials at Jackson Correctional
Institution (JCI) arising out of the confiscation of their guitar accessories. I dismissed the case
at summary judgment. Dkt. 84. On August 22, 2019, I denied plaintiffs’ Rule 59 motion to
alter or amend that judgment. Dkt. 127. The clerk of court sent a copy of my decision on the
Rule 59 motion to plaintiff Conrad, but it was returned with a handwritten notation on the
enclosure envelope that says “Deceased.” Dkt. 128.
Because the handwritten notation from the Department of Corrections provides notice
of Conrad’s death, it qualifies as a “suggestion of death” under Federal Rule of Civil Procedure
25(a). Rule 25(a)(1) 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.
Conrad presumably died while the Rule 59 motion remained pending and thus never received
my order denying it. He would have had the right to appeal my decision, see Fed. R. App. P.

4(a)(4)(A), and his successors or representatives might yet wish to assume his interest in this
action. But that raises questions about how to advise Conrad’s successors or representatives of
their rights. As interpreted in Atkins v. City of Chicago, 547 F.3d 869, 870–74 (7th Cir. 2008),
Rule 25 requires the party filing the suggestion of death to both identify the proper party to
be substituted and serve that individual with the notice. Until proper service is effectuated, the
90-day deadline for substitution is not triggered. Id. at 874 (“[N]othing will suffice to start the
90-day clock running except service on whoever is identified as the decedent’s representative
or successor.”).
When this situation has arisen in other prisoner cases, I have typically ordered
defendants to identify the proper party to be substituted and then to serve the notice on that
party. I will do the same here. The proper party is “the decedent’s successors (if his estate has
been distributed) or personal representative ([if] it has not been).” Id. at 873. Once Conrad’s
successors or representatives have been notified, they will have 90 days to file a motion for
substitution.
One last note: Conrad currently has one other case pending in this court,
No. 19-cv-369-jdp. I had not yet screened the complaint in that case, so it had not been sent
to the Attorney General for service on the defendants it named. In their response to this order,
defendants in this case should provide contact information for Conrad’s successors or personal
representative so that the court may contact them in connection with the 19-cv-369 case.

ORDER
IT IS ORDERED that:
1. Defendants may have until October 8, 2019, to serve the proper party with notice
of death and file proof of service or show cause why they were unable to do so.

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2. If defendants file proof of service, Conrad’s successors or personal representative
will have 90 days to file a motion for substitution.
3. Defendants should provide the court with contact information for Conrad’s
successors or personal representatives in their response to this order.
Entered September 17, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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