United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON, DISTRICT JUDGE
plaintiff and prisoner Matthew La Brec is proceeding on
claims that each of the defendants violated his rights under
the Eighth Amendment and state law by failing to protect him
from self-harm. La Brec now moves to strike portions of
defendants' answer. Dkt. 29.
Brec's motion is divided into two parts. First, La Brec
challenges defendants' decision to deny allegations that
he says are “easily verifiable.” Second, La Brec
contends that defendants should not be allowed to assert
affirmative defenses for qualified immunity, sovereign
immunity, limitation of damages under 42 U.S.C. §
1997(e), and “intervening” or
deny the first part of La Brec's motion. The gist of the
motion is that La Brec is frustrated that defendants have not
admitted all the allegations he believes they should have.
That is understandable, but that does not mean he can file
what is in essence a premature motion for summary judgment to
establish certain facts as a matter of law. A defendant
cannot challenge the sufficiency of the complaint on the
ground that an allegation is not actually true, so a similar
rule should apply to the answer. After all, the purpose of an
answer is simply to put the plaintiff on notice of possible
factual disputes and defenses. Once that purpose is
satisfied, the case should proceed to the discovery phase. If
La Brec believes that some of his allegations cannot be
denied plausibly, he is free to serve defendants with
requests for admission under Federal Rule of Civil Procedure
36. See Prude v. Milwaukee County, 2014 WL 1276516,
at *1 (W.D. Wis. 2014).
defendants' affirmative defenses, I will grant La
Brec's motion to strike the defense of sovereign
immunity. Defendants say that they raised the defense because
they weren't sure whether La Brec was suing them in their
official or personal capacity. But the law on this issue is
clear: a plaintiff may sue a state actor in his personal
capacity for damages or in his official capacity for
injunctive relief. See Kentucky v. Graham, 473 U.S.
159, 165-67 and n.14 (1985); Greenawalt v. Indiana
Dep't of Corrs., 397 F.3d 587 (7th Cir. 2005).
Because the law on this issue is well established, courts in
this circuit do not require plaintiffs to specify whether an
individual is being sued in his personal or official
capacity. Rather, courts look at the nature of the claim and
the relief sought. See, e.g., McGee v. Illinois
Dep't of Transp., No. 02 C 0277, 2004 WL 726110, at
*1 (N.D. Ill. Apr. 1, 2004) (“In cases where a
plaintiff seeks injunctive relief from official policies and
customs, the Seventh Circuit treats the claim as an official
capacity suit, but where the plaintiff alleges the tortious
conduct of an individual acting under color of state law, the
suit is considered to be against the individual.”). The
same is true in this case. La Brec's claims for damages
are personal capacity claims; his requests for injunctive
relief are official capacity claims. Because La Brec
isn't proceeding on any claims that implicate sovereign
immunity, that affirmative defense is moot.
deny La Brec's motion to strike the other affirmative
defenses. La Brec says that defendants aren't entitled to
qualified immunity because it is clearly established that
prison officials have a duty to protect prisoners from
self-harm. But qualified immunity isn't determined by
such a general proposition. Rather, the court must consider
“the specific facts confronting the public official
when he acted.” Volkman v. Ryker, 736 F.3d
1084, 1090 (7th Cir. 2013). Because the facts of this case
have not yet been established, it is too early to determine
whether defendants are entitled to qualified immunity.
Brec's argument regarding the defense under 42 U.S.C.
§ 1997e(e) is similar. La Brec says that all of his
claims involve self-harm, so defendants cannot contend that
any of his claims involve only “mental or emotional
injury.” Again, that is a factual determination that
cannot be resolved at the pleading stage.
La Brec says that Estate of Hill v. Richards, 525
F.Supp.2d 1076 (W.D. Wis. 2007), and Taylor v. Wausau
Underwriters Insurance Co., 423 F.Supp.2d 882 (E.D. Wis.
2006), foreclose a defense that La Brec's own actions
were an intervening or supervening cause of La Brec's
harm. But that is simply incorrect. In both cases, the courts
noted that it was unresolved in Wisconsin whether a suicide
attempt can be the basis of a negligence action. Because
defendants are raising the defense only in the context of La
Brec's negligence claims, I decline to strike this
ORDERED that Matthew La Brec's motion to strike, Dkt. 29,
is GRANTED as to defendants' sovereign immunity defense.
The motion is DENIED in all other respects.
 I have amended the caption to reflect
the full name of each defendant, as identified in the
Acceptance of Service form filed by the Wisconsin Department