STROMINGER v. IDOC et al

Filing 47

ENTRY - For these reasons, the defendants' motion for leave to amend answer [dkt. 46] is denied. **SEE ORDER** Copy to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 10/11/2016. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RAYMOND STROMINGER,
Plaintiff,
vs.
INDIANA DEPT. OF CORRECTION,
LT. C. NICHOLSON,
Defendants.

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Case No. 1:15-cv-01654-TWP-MPB

ENTRY
The defendant’s motion for leave to amend their answer has been considered. The
defendants allege that at the plaintiff’s deposition, some allegations related to the wheelchair
ramp were revealed “which had not been previously grieved, and which are not plead in the
Amended Complaint.” The defendants allege that this “new information has revealed the
possibility that Plaintiff has not exhausted his administrative remedies.” The defendants seek to
amend their answer by adding the failure to exhaust affirmative defense.
If the amended complaint does not allege a claim, then it is not before the Court. The
only claim that survived screening in this action is that the plaintiff was denied access to outdoor
recreation for over 10 months, beginning in December of 2013, because Lt. C. Nicholson failed
to timely and properly repair a wheelchair ramp, in violation of the ADA and RA and the
Fourteenth and Eighth Amendments. Under these circumstances, it would not be appropriate to
amend the answer for a claim that was “not plead in the Amended Complaint.” Moreover, any
request to brief the issue of failure to exhaust at the same time as the merits would be denied
because exhaustion must be resolved first. Perez v. Wis. Dep't of Corr., 182 F.3d 532, 536 (7th

Cir. 1999)(“The statute [requiring administrative exhaustion] can function properly only if the
judge resolves disputes about its application before turning to any other issue in the suit.”).
For these reasons, the defendants’ motion for leave to amend answer [dkt. 46] is denied.
IT IS SO ORDERED.

Date: 10/11/2016

Distribution:
Raymond Strominger, 160814, Pendleton Correctional Facility, Inmate Mail/Parcels, 4490 West
Reformatory Road, Pendleton, IN 46064
Electronically registered counsel