United States District Court, E.D. Wisconsin
TOMMIE L. CARTER, Plaintiff,
JUSTIN MAHER, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR PROTECTIVE
ORDER (DKT. NO. 14), GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO STRIKE (DKT. NO. 19), AND STRIKING
THE DEFENDANT'S SOVEREIGN IMMUNITY AFFIRMATIVE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
Tommie L. Carter is a Wisconsin state prisoner representing
himself. He filed a complaint alleging that the defendant,
Officer Justin Maher, did not give him his inhaler or alert
medical staff when the plaintiff suffered an asthma attack.
Dkt. No. 1. On October 10, 2017, Magistrate Judge David E.
Jones screened the complaint and allowed the plaintiff to
proceed on an Eighth Amendment deliberate indifference to a
serious medical need claim based on these allegations. Dkt.
No. 10 at 6-7. On October 25, 2017, the case was reassigned
to this court, because the defendant did not consent to
magistrate judge jurisdiction. Dkt. No. 13. The plaintiff has
filed a motion for a protective order, dkt. no. 14, and a
motion to strike defendant's affirmative defenses, dkt.
Motion for Protective Order
plaintiff states that on October 20, 2017, he transferred
from Green Bay Correctional Institution, where the incident
at issue in this case occurred, to Columbia Correctional
Institution. Dkt. No. 14. When the plaintiff arrived at
Columbia, institution staff immediately placed him on a
“sergeant only” restriction, which provided in
part that his cell would be randomly searched daily for
contraband or damage to the cell. Id. The plaintiff
states that from October 21 until October 25, 2017,
“John Doe correctional officers” destroyed his
cell daily, shuffling his legal files and strewing them
around, which hampered the plaintiff's preparation for
this case. Id. During the searches, which sometimes
occurred in the middle of the night, officers strip-searched
the plaintiff and tethered him to the strip cage door while
they searched his cell. Id. The plaintiff states
that the officers conducted the daily strip searches and cell
searches to harass and intimidate him, as well as to disrupt
his litigation efforts in this case. Id. at 2.
plaintiff does not state in the motion what he wants the
court to do. The court presumes that the plaintiff wants the
court to issue an order to stop the daily cell and strip
searches, so the court construes the plaintiff's motion
as a motion for preliminary injunction under Fed.R.Civ.P. 65.
But the issues the plaintiff identifies do not relate to the
Eighth Amendment medical care claim he has raised in this
case. See Hashim v. Hamblin, Case No. 14-cv-1265,
2016 WL 297465 at *4 (E.D. Wis. January 22, 2016)
(“Plaintiff's requests for injunctive relief are
not connected to the claims he is proceeding on in this case.
He may not seek relief in connection with these claims in
this lawsuit.”) (citations omitted). If the plaintiff
believes that he has a claim against employees at Columbia
Correctional Institution, he may file a separate lawsuit
against those individuals. See Hashim, 2015 WL
1840434 at *3 (quoting George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007) (“Unrelated claims against
different defendants belong in different suits.”)) The
court will deny the plaintiff's motion for a protective
Motion to Strike Affirmative Defenses
December 13, 2017, the plaintiff filed a motion to strike
affirmative defenses. Dkt. No. 19. He alleges that the
defendant's answer pleads several irrelevant affirmative
defenses, such as sovereign immunity. Id. at 1. He
asks the court to strike the defendant's affirmative
defenses. Id. at 1-2.
defendant's answer contains four affirmative defenses:
(1) “All or portions of Plaintiff's complaint must
be dismissed to the extent that Plaintiff failed to exhaust
administrative remedies;” (2) “To the extent that
Defendant is named in his personal capacity, all or portions
of Plaintiff's complaint must be dismissed pursuant to
the doctrine of qualified immunity;” (3) “To the
extent that Defendant is named in his official capacity, all
or portions of Plaintiff's complaint must be dismissed
pursuant to the doctrine of sovereign immunity and the
Eleventh Amendment to the United States Constitution;”
and (4) “Any claims for monetary damages in this case
are limited under the provisions of 42 U.S.C. §
1997e(e).” Dkt. No. 18 at 3-4.
Federal Rules of Civil Procedure provide that a court
“may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). Affirmative defenses are
pleadings, and are subject to all pleading requirements of
the Federal Rules of Civil Procedure. Heller Fin., Inc.
v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th
Cir. 1989). Rule 8(b)(1)(A) requires a party to “state
in short and plain terms its defenses to each claim asserted
against it[.]” Rule 8(c) requires a party to plead an
affirmative defense. The purpose of these rules is to avoid
surprise and undue prejudice to the plaintiff by providing
him notice and the opportunity to demonstrate why a defense
should not prevail. Venters v. City of Delphi, 123
F.3d 956, 967 (7th Cir. 1997).
generally disfavor motions to strike, but they should strike
affirmative defenses that fail to meet basic pleading
requirements, are clearly mistitled, or are redundant and add
unnecessary clutter to a case. See Heller, 883 F.2d
at 1295; see also United States v. 416.81 Acres of
Land, 514 F.2d 627, 631 (7th Cir. 1975). Bare legal
conclusions never are sufficient and must be stricken.
See Heller, 883 F.2d at 1295 (granting motion to
strike affirmative defenses where defendants omitted any
short and plain statement of facts and failed to allege
necessary elements of a claim).
case, the court agrees that it should strike the
defendant's affirmative defense that the defendant is
entitled to sovereign immunity to the extent he is sued in
his official capacity, because-as the plaintiff points out-
he did not sue the defendant in the defendant's official
capacity. He sued the defendant for money damages in
his individual capacity.
the plaintiff also asked the court to strike the other three
affirmative defenses, the plaintiff does not say why those
defenses are not valid. Rather, he makes a general argument
that the defendant's counsel just cut and pasted a
routine, boilerplate list of defenses. Without a more
specific explanation of why the other three affirmative
defenses are not valid, the court will deny the
plaintiff's motion as to the other three affirmative
court DENIES the plaintiff's motion for
protective order. Dkt. No. 14.
court GRANTS IN PART AND DENIES IN PART the