the proper party is “ordinarily the personal representative of the party who has died”
How later courts described this case
- the proper party is “ordinarily the personal representative of the party who has died”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALLEN BROWN, JR.,
#R53255,
Plaintiff, Case No. 23-cv-00107-SPM
v.
WEXFORD HEALTH SOURCES, INC., et
al.,
Defendants.
MEMORANDUM AND ORDER
MCGLYNN, District Judge:
This matter is before the Court for case management purposes. Plaintiff has filed motions
regarding substituting the deceased defendant, Kimberly Martin, and a motion for leave to amend
the complaint. Defendants Poteat and Wexford Health Sources, Inc. have filed a motion to prevent
early discovery.
SUBSTITUTE DECEASED PARTY
The Court has received notice that Defendant Kimberly Martin is deceased. (See Doc. 28).
Plaintiff has been given until January 9, 2024, to file a motion for substitution of a party pursuant
to Federal Rule of Civil Procedure 25(a)(1). (Id.). Plaintiff has filed two motions concerning
substitution. First, Plaintiff asks the Court to extend this deadline because he does not know what
he is doing concerning substitution. (Doc. 40). In the alternative, he asks the Court to recruit
counsel to represent him because not only does he not know the proper procedures or individuals
for substitution, but he is seriously mentally ill and does not have any experience litigating a civil
lawsuit. (Id.). Second, Plaintiff moves the Court to substitute Defendant Martin with her estate or
her employer. (Doc. 41). If he is unable to substitute Martin with her employer, then Plaintiff seeks
Martin’s personal information so that he can attempted to identify the proper individual for
substitution.
For the reasons previous stated (see Doc. 20, 37), the Court will not recruit counsel to
represent Plaintiff at this time. Plaintiff’s inexperience with civil litigation is not unique to him as
a pro se litigant, and despite his mental illness, his filings continue to demonstrate that he is more
than capable of representing himself at these early stages. The request for counsel is DENIED.
The Court will also not substitute Martin’s employer as a defendant in this case. Neither
Wexford Health Sources, Inc., nor the Illinois Department of Corrections can be considered a
“proper party” for the purposes of substitution. See Atkins v. City of Chicago, 547 F. 3d 869, 870
(7th Cir. 2008) (the proper party is “ordinarily the personal representative of the party who has
died”); McGuire v. Thompson, No. 18-cv-760-JD-MGG, 2019 WL 6912284, at *2 (N.D. Ind. Dec.
18, 2019) (declining to substitute Corizon Health, Wexford, and the Indiana Department of
Corrections as defendants for the deceased).
The Court will also not direct Defendants to produce the personal information requested.
However, Defendants are DIRECTED to notify the Court and Plaintiff as to whether an estate has
been opened for Kimberly Martin or, if possible, to provide the identity of a special representative
that can be substituted in place of the deceased defendant if no estate has been opened. Defendants
shall have until December 28, 2023, to provide this information.
The deadline to file a motion to substitute is extended. Plaintiff shall have until January
29, 2024, to identify a person to substitute in the place of Martin.
MOTION TO AMEND
The motion for leave to file an amended complaint is DENIED. (Doc. 44). Plaintiff’s
proposed amended complaint is not complete; it merely adds allegations, claims, and requests of
relief to the existing Complaint. An amended complaint supersedes and replaces the original
complaint, rendering it void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.
1 (7th Cir. 2004). Therefore, the Court does not allow piecemeal amendments or supplements to a
complaint. An amended complaint must stand on its own, without reference to any previous
pleading, and include all claims against all defendants and requests for relief.
DISCOVERY
Plaintiff has filed a motion seeking to serve a subpoena on the Illinois Department of
Corrections for administrative directives, the mental health manual, personal information of other
inmates, and standard operating procedures. (Doc. 43). The motion is DENIED as premature.
Discovery in this case has not yet started, as the Court has not entered its initial scheduling and
discovery order. (See Doc. 20, p. 11). Additionally, Defendants have raised Plaintiff’s failure to
exhaust his administrative remedies as an affirmative defense, and discovery on the merits will be
stayed until the issue of exhaustion is resolved.
The motion for a protective order filed by Defendants Wexford Health Sources, Inc., and
Poteat is GRANTED. (Doc. 45). As mentioned, Plaintiff’s requests for production are premature.
Once the Court enters an initial scheduling and discovery order, Defendants will be directed to
produce to Plaintiff initial disclosures, which will include medical records and counseling records,
and merits-based discovery will be stayed. The Court ORDERS that Defendants Wexford Health
Sources, Inc., and Poteat do not have to respond to Plaintiff’s First Request for Production until
after the Court enters initial scheduling and discovery order and do not have to respond to
Plaintiff’s Second Request for Production until the issue of exhaustion is resolved.
DISPOSITION
The motions for substitution of deceased party filed by Plaintiff are GRANTED in part
and DENIED in part. (Doc. 40, 41). Defendants are DIRECTED to notify the Court and
Plaintiff, on or before December 28, 2023, as to whether an estate has been opened for Kimberly
Martin or, if possible, to provide the identity of a special representative that can be substituted in
place of the deceased defendant if no estate has been opened.
The deadline to file a motion to substitute is extended. Plaintiff shall have until January
29, 2024, to identify a person to substitute in the place of Martin.
The motion for subpoena filed by Plaintiff is DENIED. (Doc. 43). The motion for leave to
amend filed by Plaintiff is DENIED. (Doc. 44).
The motion for protective order filed by Defendants Poteat and Wexford Health Sources,
Inc. is GRANTED. (Doc. 45).
IT IS SO ORDERED.
DATED: December 7, 2023
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge