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May v. Mote

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS


August 4, 2006

FLOYD MAY, ET. AL., PLAINTIFFS,
v.
STEPHEN MOTE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Harold A. Baker United States District Judge

ORDER

This cause is before the court for case management. The defendants have filed a Suggestion of Death regarding Defendant Francis Melvin.

This complaint was filed by three pro se plaintiffs including Floyd May, Demond Reid and Andre Mason pursuant to 42 U.S.C. §1983. The plaintiff's are suing nine defendants from Pontiac Correctional Center including Warden Stephen Mote; Superintendents Troy Quinley, Davidson and Francis Melvin; Correctional Officers Michael Burger and Edward Gerber; Warden Cox; and Lieutenants Evans and Punke. The court has found that the plaintiffs have adequately alleged that:

1) a lack of adequate clothing for cold and rain violated the plaintiff's Eighth Amendment rights;

2) a lack of adequate clothing violated the plaintiff's equal protection rights; and

3) the implementation of an excessive noise policy violated the plaintiff's rights under the First and Eighth Amendments.

The defendants suggestion of death was filed on July 25, 2006 and simply states that Superintendent Francis Melvin has died during the pendency of this action. Several courts have held that "while Rule 25(a)(1) states only that the Suggestion of Death must give notice of the fact of death, the need to give the identify of the [representative] or [successor] of the deceased is implicit in the statute." Arana v. Martin, 1992 WL 71759 at 1(N.D. Ill Apr 1, 1992) On the other hand, [t]he requirement of identify a substitute has been criticized when there is no evidence of bad faith on the part of the party making the suggestion, and the opposing party has not promptly moved to substitute parties." Crotty v. City of Chicago, 1990 WL 151857 at 1(N.D. Ill. Jan. 10 1990).

In this case, there is no evidence of bad faith on the part of the defendants. However, the plaintiff is proceeding pro se and the court will require more information for a proper suggestion of death. See Walker v. Pistilli, 1995 WL 151857 (N.D. Ill. Mar. 31 1995) Defense counsel must file a proper suggestion of death for Defendant Melvin by providing information as to whether a personal representative has been or was appointed for either Defendant. This information must be provided to the court on or before August 18, 2006. Once the defendants provide information concerning the estate of Defendant Melvin, the plaintiff will have 90 days to name a substitute defendant. See Fed.R.Civ.P. 25(a)(1).

The court notes that there is a dispositive motion deadline in this case of August 22, 2006, that will remain as set. The plaintiff's claims are stated against all nine defendants and will likely survive or fail as to all defendants.

IT IS THEREFORE ORDERED that:

1) Defense counsel must inform the court whether a personal representative was appointed for Francis Melvin, and if so, provide the name of that representative. This information must be provided on or before August 18, 2006.

4) The dispositive motion deadline remains as set on August 22, 2006. No continuances will be granted.

Enter this 4th day of August, 2006

20060804

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