Gevas v. Cox et al

Filing 28

ORDER finding as moot 23 Motion to Strike ; granting 24 Motion for Leave to File; finding as moot 26 Motion to Strike. Defendants have up to and including Oct. 3, 2011 in which to file an Amended Answer. Plaintiff has up to and including Oct. 11, 2011 in which to file a responsive pleading to Defendants' motion for summary judgment. Signed by Magistrate Judge Stephen C. Williams on 9/27/11. (anj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID C. GEVAS, #B-41175,
Plaintiff,
vs.
T. COX and L. WALTERS,
Defendants.

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Case No. 11–cv–352–MJR–SCW

MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
Before the Court are two motions filed by Plaintiff and one motion filed by Defendants.
Specifically, Plaintiff has filed a Motion to Strike Defendants Motion for Summary Judgment (Doc. 23).
Plaintiff seeks to strike Defendants’ motion for summary judgment (Doc. 20) because Defendants did
not assert exhaustion of administrative remedies as an affirmative defense in their Answer. In response
to that motion, Defendants filed a Motion for Leave to File an Amended Answer and Affirmative
Defenses (Doc. 24) in which Defendants argued that they had only discovered that exhaustion was an
issue after conducting discovery in light of the trial practice schedule, but neglected to amend their
Answer prior to filing their motion for summary judgment. Defendants asked for leave to file their
amended answer and stated that such motion was not in bad faith and would not prejudice Plaintiff.
In response to that motion, Plaintiff filed his Amended Motion to Strike [and] Response in Opposition
to Defendants Motion for Leave to File (Doc. 26). Plaintiff insists that he has exhausted his
administrative remedies and maintains that Defendants should not have filed the motion as they failed
to raise exhaustion as an affirmative defense.
While Plaintiff maintains that Defendants’ motion for summary judgment (Doc. 20)

should be stricken for failure to raise exhaustion in their Answer, Defendants have asked for leave to
amend their Answer to include exhaustion as an affirmative offense. Under FEDERAL RULE OF CIVIL
PROCEDURE 15(a)(2), “a party may amend its pleading only with...the court’s leave. The court should
freely give leave when justice so requires.” Here, Defendants state that the failure to list exhaustion in
their original answer was due in part because they had not conducted enough discovery to determine
if exhaustion of administrative remedies was a proper defense in this case. Further, they note that the
failure to seek to file an amended answer before filing their motion for summary judgment was a mere
oversight on their part. The Court finds that justice requires an amendment in this case as it does not
appear that Defendants were acting in bad faith by not adding the claim in their Answer or seeking leave
to amend sooner. Further, Plaintiff has failed to point to any prejudice that he might suffer by allowing
the amendment. Contrarily, the Court finds that Plaintiff will not be unduly prejudice by an amended
answer as there is a pending summary judgment on the issue of exhaustion and Plaintiff is aware that
Defendants are claiming that affirmative defense. Therefore, the Court GRANTS Defendants motion
to amend (Doc. 24). Defendants will have up to and including October 3, 2011 in which to file their
Amended Answer. In light of the Court’s Order granting the motion to amend, the Court FINDS as
moot Plaintiff’s motions to strike (Docs. 23 & 26). Plaintiff will have up to and including October 11,
2011 in which to file a responsive pleading to Defendants’ motion for summary judgment.
IT IS SO ORDERED.
DATED: September 27, 2011.
/s/Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge

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