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Burgess v. Hoem

United States District Court, W.D. Wisconsin

August 23, 2019




         Plaintiff 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.

         Several 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.

         Some of Burgess's motions raise issues that must be resolved prior to defendants' summary judgment motion, so I will start with them.

         A. Burgess's motion to compel

         On 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.

         B. Burgess's motions concerning his proposed amended complaint

         In my 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.

         Burgess 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.

         C. Burgess's motion seeking relief for failure of certain defendants to answer his complaint

         On 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.

         I will 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.

         Courts 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)).

         For those reasons, I will accept defendants' amended answer, deny Burgess's motion to dismiss or strike defendants' motion for partial summary judgment, ...

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