Smith, Antonio v. Kolbo et al

Filing 30

ORDER that The Wisconsin Department of Justice may have until February 14, 2019, to serve the proper person with notice of death or show cause why they are unable to do so. Once the Wisconsin DOJ files proof of service, plaintiff will have 90 days to file a motion for substitution. Plaintiff may have until February 7, 2019, to respond to this order regarding defendant Doe Atwood. Signed by Magistrate Judge Peter A. Oppeneer on 1/23/2019. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ANTONIO J. SMITH,
ORDER
Plaintiff,
Case No. 18-cv-385-jdp

v.
JOSHUA KOLBO, BROCK LISNEY-STELDT,
MATTHEW PECKHAM, RICKY STILWELL,
DANIEL SUTHERS, JOSHUA BROWN,
TODD BRESEE, STEPHEN SCHNEIDER,
STEVE ECK, WAYNE PRIMMER,
JARED HUNT, NICOLE LOOMIS,
REBECCA EAGLEBURGER,
MICHAEL SNYDER, BRIAN LANGE,
PATRICK GOVIER, DOE ATWOOD and
MICHAEL HANFELD1,
Defendants.

In an order entered on July 18, 2018, plaintiff Antonio J. Smith was granted leave to
proceed in forma pauperis against defendants Kolbo and John Doe defendants. On October 23,
2018, a pretrial conference order was entered giving plaintiff a deadline of December 17, 2018
to submit an amended complaint naming the Doe defendants in this case. On November 21,
2018, plaintiff filed an amended complaint naming the Doe defendants as Joshua Kolbo, Brock
Lisney-Steldt, Matthew Peckham, Ricky Stilwell, Daniel Suthers, Joshua Brown, Todd Bresee,
Stephen Schneider, Steve Eck, Wayne Primmer, Jared Hunt, Nicole Loomis, Rebecca
Eagleburger, Michael Snyder, Brian Lange, Patrick Govier, Doe Atwood and Michael Hanfeld.
Now the Wisconsin Department of Justice (DOJ) has filed an acceptance of service indicating
that it accepts service on behalf of all defendants, except for defendant Doe Atwood because it
is unable to identify this defendant, and defendant Michael Hanfeld because he is deceased.

I have amended the case caption to include the full name of defendant Joshua Kolbo as identified in
the Acceptance of Service.

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The court will construe the DOJ’s statement regarding Hanfeld as a suggestion of death
pursuant to Federal Rule of Civil Procedure 25(a).
As set forth 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 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.”).
The DOJ may have an opportunity to identify the proper party to be substituted and then to
serve the notice on that party. Once that occurs, plaintiff will have 90 days to file a motion for
substitution.
Pursuant to the informal service agreement between the DOJ and this court, the DOJ
has agreed to accept electronic service of documents on behalf of the defendants it represents.
This means that for the remainder of this lawsuit, plaintiff does not have to send a paper copy
of each document filed with the court to the court to the Department or defendants Joshua
Kolbo, Brock Lisney-Steldt, Matthew Peckham, Ricky Stilwell, Daniel Suthers, Joshua Brown,
Todd Bresee, Stephen Schneider, Steve Eck, Wayne Primmer, Jared Hunt, Nicole Loomis,
Rebecca Eagleburger, Michael Snyder, Brian Lange and Patrick Govier. The Wisconsin DOJ
will access the document through the court’s electronic filing system.
As for defendant Doe Atwood, the parties might be able to hash out the correct identity
with minimal effort. Smith does not say how he arrived at that name for one of the Doe
defendants, but presumably he did so after reviewing discovery responses from the state. The
court will give Smith a short time to respond to his order, explaining whether he still wishes to

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bring a claim against Atwood, and if so, explaining what information he used to arrive at that
name.

ORDER
IT IS ORDERED that:
1. The Wisconsin Department of Justice may have until February 14, 2019, to serve
the proper person with notice of death or show cause why they are unable to do so.
Once the Wisconsin DOJ files proof of service, plaintiff will have 90 days to file a
motion for substitution.
2. Plaintiff may have until February 7, 2019, to respond to this order regarding
defendant Doe Atwood.

Entered this 23rd day of January, 2019.
BY THE COURT:
/s/
PETER OPPENEER
Magistrate Judge

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