Opinion
Civil No. 05-5083.
July 12, 2006
ORDER
On May 16, 2006, an evidentiary hearing was held in this case. (Doc. 33). On June 8, 2006, a notice of the death of the defendant was filed by defendant's counsel. (Doc. 34). The notice indicates the defendant Wesley Kern was killed in an automobile accident.
By order entered on June 12, 2006 (Doc. 35), plaintiff was given until July 7, 2006, to file a motion to substitute the administrator of Kern's estate pursuant to Rule 25 of the Federal Rules of Civil Procedure. On June 28, 2006, plaintiff filed a motion for clarification of the court's order and for an extension of time to file the motion to substitute if it becomes necessary to do so (Doc. 36).
On June 29, 2006, an order was entered (Doc. 37) granting plaintiff's request for an extension of time and his motion for clarification. Relevant case law discussing the distinction between official capacity and individual capacity claims was contained in the order. Plaintiff was given until July 24, 2006, to advise the court whether he intended to proceed with an official capacity claim against Kern only, in which case the claim would be the equivalent of a claim against Washington County, or an individual capacity claim, in which case Kern would be personally held liable, or both types of claims. Plaintiff was informed that if he intended to hold Kern personally liable, a motion to substitute Kern's estate would have to be filed.
On July 10, 2006, plaintiff filed a response to the court's order (Doc. 38). In his response, plaintiff states he would like to proceed with an official capacity claim against Corporal Wesley Kern and Washington County. Accordingly, the clerk is directed to note on the docket sheet that the defendant is sued in his official capacity only.
IT IS SO ORDERED.