UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ GREGORY ATWATER,

Plaintiff, v. Case No. 21-cv-225-pp

RODNEY MENNE, JULIE NICKEL, MARK RICE and RICHARD SCHNEITER (a/k/a SAM SCHNEITER),

Defendants. ______________________________________________________________________________

ORDER DISMISSING DECEASED DEFENDANT ______________________________________________________________________________

On May 4, 2023, the court denied the plaintiff’s proposed bill of costs and ordered service of the complaint on defendants Captain Menne and Sam Schneiter at Dodge Correctional Institution and Julie Nickels and Mark Rice at John Burke Correctional Center. Dkt. No. 40. The court ordered the defendants to respond to the complaint within sixty days. Id. at 4. On June 16, 2023, counsel from the Wisconsin Department of Justice entered a notice of appearance and accepted service on behalf of the defendants. Dkt. Nos. 41, 42. Defense counsel noted that defendant Captain Menne, whose full name is Rodney Menne, is deceased. Dkt. No. 42. Federal Rule of Civil Procedure 25(a) gives a court authority to substitute a proper party where a claim survives the death of a defendant. See Walsh v. City of Chicago,

(N.D. Ill. 1989) (substitution of deceased defendant with decedent’s representative may be appropriate in §1983 action). The Wisconsin Supreme Court has confirmed that under Wisconsin’s survival statute, personal injury claims survive death. Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Servs. Ins. Corp.,

(Wis. 2006) (citing

)). Lawsuits brought under §1983 “are best characterized as personal injury

actions.” Owens v. Okure,

(1989) (internal quotations and citations omitted). Although the Department of Justice notified the court that Captain Menne was deceased, it did not specify when he died. That date is important because if Captain Menne died before the plaintiff filed this lawsuit, then Menne never was a defendant and no proper party may be substituted for him. See Macklin v. Serrano, No. 19-CV-583,

, at *2 (E.D. Wis. Oct. 28, 2020) (citing Schlumpberger v. Osborne, No. 16-cv-78,

, at *3 (D. Minn. Feb. 26, 2019); and Laney v. South Carolina Dept. of Corrections, No. 11-cv-3487,

(D.S.C. May 8, 2012)). According to an obituary published online, Captain Menne died on January 10, 2017. See https://www.fdlreporter.com/story/news/local/2017/01/19/ eldorado-firefighter-remembered-giving-spirit/96733206/ (last visited July 14, 2023); https://www.legacy.com/funeral-homes/obituaries/name/rodney- menne-obituary?pid=183566787&v=batesville&view=guestbook (last visited

July 14, 2023). Although the complaint involves events that occurred in 2013, the plaintiff did not file his complaint until February 2021—more than four years after Captain Menne passed away. Because Captain Menne died several years before the plaintiff brought this lawsuit, he never was a proper party in the lawsuit. That means the plaintiff may not substitute a proper party for Captain Menne and may not proceed against him or his estate. The court DISMISSES defendant Rodney Menne, sued as Captain Menne. This case will proceed against the remaining three defendants. The court will issue a separate order scheduling deadlines to move this case forward. Dated in Milwaukee, Wisconsin this 18th day of July, 2023. BY THE COURT:

Chief United States District Judge