United States District Court, W.D. Wisconsin
EDWARD B. BURGESS, Plaintiff,
STACY HOEM, RUBIN SCOTT, DR. MINK, LT. SCULLION, CAPTAIN ESSER, JOLINDA WATERMAN, and REBECCA TRACY-FELDMAN, Defendants.
OPINION AND ORDER
D. PETERSON, DISTRICT JUDGE
Edward Burgess, appearing pro se, is incarcerated at
Wisconsin Secure Program Facility (WSPF). I granted him leave
to proceed on Eighth Amendment deliberate indifference and
First Amendment retaliation claims against various WSPF
officials based on his allegation that they failed to respond
adequately to his medical and mental health needs, and that
they retaliated against him when he complained about their
responses. See Dkt. 10 and Dkt. 32.
motions are pending before the court. Defendants have filed a
motion for partial summary judgment based on Burgess's
alleged failure to exhaust his administrative remedies. Dkt.
35. Burgess has filed (1) a renewed motion for assistance in
recruiting counsel, Dkt. 40; (2) a motion to compel, Dkt. 42;
(3) a motion for extension of time to file an amended
complaint, Dkt. 54; (4) a motion for clarification, Dkt. 55;
(5) a proposed second amended complaint, Dkt. 63; and (6) a
motion seeking relief for the failure of certain defendants
to answer his complaint, Dkt. 57.
Burgess's motions raise issues that must be resolved
prior to defendants' summary judgment motion, so I will
start with them.
Burgess's motion to compel
April 11, 2019, Burgess filed a motion to compel alleging
that defendants had failed to respond to some of his document
requests and were refusing to consult with him about why the
requested documents had not been produced. Dkt. 42; Dkt. 43;
Dkt. 44. In response, defendants indicated that they had
received a letter from Burgess outlining deficiencies in
their document production and making additional discovery
requests on March 25, 2019. Defendants say that they sent
Burgess a letter addressing these concerns and enclosing
responses to his additional requests on April 24, 2019. Dkt.
56. Burgess did not file a reply in support of his motion to
compel by the May 6, 2019 deadline, so I assume that
defendants' response resolved Burgess's concerns. I
will therefore deny Burgess's motion to compel as moot.
Burgess's motions concerning his proposed amended
initial screening order, I allowed Burgess to proceed on
Eighth Amendment claims against defendants Mink, Scullion,
Hoem, and Scott, as well as First Amendment retaliation
claims against Mink and Hoem. Dkt. 10. But I dismissed
several other defendants from Burgess's case because I
concluded that his allegations were not sufficient to state
claims against them. Burgess then filed a motion to
reconsider my screening order, in which he included new
allegations about some of the defendants I had previously
dismissed. Dkt. 22. I construed this as a motion to amend the
complaint, and in a subsequent screening order, I granted
Burgess leave to proceed on additional Eighth Amendment
claims against Esser, Waterman, and Tracy-Feldman. Dkt. 32.
has now submitted three additional filings based on my second
screening order: (1) a motion asking for clarification
whether he needs to file an amended complaint in response to
my second screening order, Dkt. 55; (2) a motion for an
extension of time to file an amended complaint, Dkt. 54; and
(3) a proposed amended complaint, Dkt. 63. The proposed
amended complaint reiterates the claims on which I have
already allowed him to proceed without adding new substantive
allegations. Typically, when I allow pro se litigants to
amend their complaints, I will consider the operative
complaint to be (1) the allegations in the original complaint
(Dkt. 9), plus (2) the allegations in the motion to amend
(Dkt. 22), as summarized and analyzed in my screening orders
(Dkt. 10 and Dkt. 32). This is generally enough to provide
defendants with adequate notice of a plaintiff's claims;
there is no need for the plaintiff to draft a new,
comprehensive complaint document. So I will deny
Burgess's motions regarding the proposed amended
complaint as unnecessary.
Burgess's motion seeking relief for failure of certain
defendants to answer his complaint
April 26, 2019, while briefing on defendants'
exhaustion-based summary judgment motion was still underway,
Burgess filed a motion asking me to dismiss or strike the
exhaustion motion because the three later-added defendants,
Esser, Waterman, and Tracy-Feldman, had failed to answer his
amended complaint. Dkt. 57. In response, defendants filed an
amended answer, Dkt. 60, along with a notice that the
Wisconsin Department of Justice would accept service on
behalf of all three later-added defendants, Dkt. 61.
deny Burgess's motion to strike or dismiss
defendants' summary judgment motion. In general, the
proper recourse when a defendant fails to answer a complaint
is a motion for entry of default under Federal Rule of Civil
Procedure 55(a), not a motion to strike the defendants'
pleadings. Here, it is clear from defendants' summary
judgment brief that defendants' counsel knew that Esser,
Waterman, and Tracy-Feldman were defendants in the case, and
that counsel intended to represent them despite the failure
to file a timely answer. See, e.g., Dkt. 36, at 2
(defendants' summary of the claims in issue, which
includes discussion of the second screening order and the
later-added defendants). Burgess does not explain how
defendants' technical error has prejudiced him, and I can
see no reason why it would have.
have discretion to accept untimely pleadings where the delay
is attributable to excusable neglect, Fed.R.Civ.P.
6(b)(1)(B), and they will, where possible, err on the side of
allowing for adjudication on the merits rather than dinging
parties for inadvertent technical errors. See
Romero v. JBS Packerland Inc., No. 17-c-729, 2017 WL
3273662, at *2 (E.D. Wis. Aug. 1, 2017) (“While it is
important to comply with the deadlines created by the rules
or required by the court, it is ‘entirely contrary to
the spirit of the Federal Rules of Civil Procedure for
decisions on the merits to be avoided on the basis of . . .
mere technicalities.'” (quoting Foman v.
Davis, 371 U.S. 178, 181 (1962)).
those reasons, I will accept defendants' amended answer,
deny Burgess's motion to dismiss or strike
defendants' motion for partial summary judgment, ...