United States District Court, E.D. Wisconsin
ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION
(DKT. NOS. 25-26), DISMISSING DR. RICHARD STELIGA AS
DEFENDANT AND GRANTING PLAINTIFF'S MOTION TO DISMISS DR.
LILY LIU AS DEFENDANT (DKT. NO. 28)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
Paul Allen Adams, who is representing himself, is proceeding
on claims against the defendants based on his allegations
that they were deliberately indifferent to his knee pain.
Dkt. No. 10. On January 9, 2019, the court referred this case
to U.S. Magistrate Judge William Duffin to handle pretrial
matters. Dkt. No. 11.
the defendants the plaintiff has sued is Dr. Richard Steliga.
The plaintiff indicated in his complaint that he was referred
to Dr. Steliga by Dr. Larson; Dr. Steliga saw the plaintiff
on a couple of occasions, examined him, ordered an ortho
consult and an MRI and prescribed the plaintiff Benadryl.
Dkt. No. 10 at 4-5. He alleged that Dr. Steliga caused him
pain by pushing hard on the bump on the plaintiff's knee,
and that Dr. Steliga referred to the bump as a
“nodule”-a word the plaintiff alleges that Dr.
Steliga made up. Id. at 4. On January 25, 2019, the
defendants' lawyer notified the court that the Wisconsin
Department of Justice would not accept service on behalf of
Dr. Richard Steliga because he is deceased. Id.
March 12, 2019, Judge Duffin ordered the plaintiff, under
Federal Rule of Civil Procedure 25, to file a motion to
substitute the proper party for Dr. Steliga or to dismiss his
claims against him. Dkt. No. 17. Judge Duffin informed the
plaintiff that the proper party usually is the representative
of the decedent's estate or the decedent's successor.
April 1, 2019, the court received from the plaintiff a motion
to substitute the proper party. Dkt. No. 24. He explained
that he had no way of finding out who Dr. Steliga's
representative or successor is. Id. He also
expressed confusion over why he could not substitute the
Department of Corrections, given that Dr. Steliga was a DOC
employee at the time of the events he alleged. Id.
Finally, the plaintiff stated that he “does not believe
that Dr. Steliga's estate, representative, family and
loved ones shoul[d] be made to cover his actions as a DOC
employee . . . .” Id.
Duffin ruled on the plaintiff's motion a few days later.
Dkt. No. 25. He explained to the plaintiff that the doctrine
of respondeat superior does not apply to §1983
actions, so the DOC cannot be held liable for the acts of its
employees. Id. He also explained that it was the
plaintiff's-not the court's- responsibility to figure
out the identity of the person or persons with the authority
to defend his claims against Dr. Steliga. Id.
Finally, Judge Duffin acknowledged the plaintiff's
statement that he didn't want to name Dr. Steliga's
estate, representative, family or loved ones. Id.
Judge Duffin ordered the plaintiff to substitute the proper
party by June 11, 2019. Id. He also recommended
that, if the plaintiff didn't ask to substitute the
proper party by the deadline, this court should dismiss Dr.
Steliga as a defendant. Id.
week later, on April 11, 2019, the court received a letter
from the plaintiff, disagreeing that it is his responsibility
to figure out the identity of the person or persons with the
authority to defend his claims against Dr. Steliga. Dkt. No.
27. The plaintiff said he has no way to find out this
information, and he was “not comfortable naming a
current loved one, as a successor, ” so he was
“waiving that for an appeal issue to the 7th
Cir.” Id. at 3.
Civ. P. 25(a)(1) discusses a court's authority to order
substitution if a claim is not extinguished. As Judge
Duffin's order implicitly acknowledges, the
plaintiff's deliberate-indifference claim was not
extinguished when Dr. Steliga died. “[W]hether a civil
rights claim brought under §1983 survives a party's
death is generally made in accordance with state law.”
Rocco v. Bickel, No. 12-cv-829, 2013 WL 4000886, at
*2 (M.D. Penn. Aug. 5, 2013) (citing Robertson v.
Wegmann, 436 U.S. 584, 588-89 (1978)). “[Section]
1983 claims are best characterized as personal injury
actions.” Owens v. Okure, 488 U.S. 235, 240
(1989) (citations omitted). The Supreme Court of Wisconsin
has affirmed that, under Wisconsin's survival statute,
personal injury actions survive death. Bartholomew v.
Wis. Patients Comp. Fund and Compcare Health Servs. Ins.
Corp., 293 Wis.2d 38, 61, n.36 (2006) (citing Wis.Stat.
the plaintiff's claim against Dr. Steliga survives Dr.
Steliga's death, however, this court finds that Rule 25
does not apply. It does not appear that the Court of Appeals
for the Seventh Circuit has addressed this issue, but other
courts have found that “[a]s a general rule, the
substitution of parties consistent with Rule 25(a)(1) cannot
be ordered ‘where the person for whom the substitution
is sought died prior to being named a party.'”
Schlumpberger v. Osborne, No. 16-cv-78, 2019 WL
927322, at *3 (D. Minn. Feb. 26, 2019) (quoting Lacy v.
Tyson, No. 07-cv-381, 2012 WL 4343837, at *2 (E.D. Cal.
Sept. 20, 2012), adopting report and recommendation,
2012 WL 5421230, at *1 (E.D. Cal. Nov. 5, 2012) (collecting
the Department of Justice informed the court that Dr. Steliga
had passed away, it did not inform the court when he
died. According to an obituary published online, Dr. Steliga
died on April 29, 2018-approximately five months
before the plaintiff signed (September 30, 2018) and
filed (October 3, 2018) his complaint on. See
(last visited June 17, 2019).
court will adopt Judge Duffin's recommendation that it
dismiss Dr. Steliga; because he already had passed away by
the time the plaintiff filed his complaint, Dr. Steliga could
not appear or be served with process. He never was a
defendant in the case. Rule 25 does not allow the plaintiff
to substitute anyone for Dr. Steliga because a plaintiff
cannot substitute a person for someone who never was a party
in the first place. See Laney v. S.C. Dept. of
Corrs., No. 11-cv-3487, 2012 WL 4069680 (D.S.C. May 8,
2012) (“Obviously, a deceased person cannot be served
and respond to a lawsuit.”)
plaintiff has indicated more than once that he does not want
to name Dr. Steliga's estate or name a family member as a
representative of Dr. Steliga's estate, although where a
claim survives death, the decedent's estate is likely the
proper defendant. The court offers no opinion on who the
plaintiff should sue; that is his decision. The court finds
only that it must dismiss Dr. Steliga, because he was not
living when the plaintiff filed the complaint. If the
plaintiff wants to pursue his claim against Dr. Steliga, he
may amend the complaint and name the estate as a defendant,
but he cannot substitute anyone for Dr. Steliga.
on April 25, 2019, the plaintiff filed a motion to dismiss
defendant Lily Liu. Dkt. No. 28. The plaintiff explains that,
after reviewing his medical records, he has concluded that
she never received any of the health service request forms
that he filed. Id. The court will grant the
court ADOPTS Judge Duffin's
recommendation that the court dismiss Richard Steliga as a
defendant. Dkt. No. ...