Beamon v. Wilke

Filing 35

ORDER signed by Judge Rudolph T. Randa on 6/29/2015. 17 Beamon's MOTION to Strike Affirmative Defenses DENIED. 19 Beamon's MOTION to Amend/Correct Complaint DENIED. 21 Beamon's MOTION for Order to Enter Expedited Discovery Plan DENIED. 24 Beamon's MOTION for Summary Judgment DENIED. 27 Defendants' MOTION to Strike DENIED. (cc: all counsel, via mail to Earnest Beamon at Waupun Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EARNEST D. BEAMON, JR.,
Plaintiff,
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Case No. 14-CV-136

MICHAEL A. DITTMANN,
CAPTAIN WILKE,
CAPTAIN REYES,
LT. WESNER,
UNKNOWN, sued as Deputy Warden,
CAPTAIN TETZLAFF,
MICHELLE SMITH, and
CO HEFT,
Defendants.

DECISION AND ORDER
The plaintiff, Earnest D. Beamon, Jr., is proceeding pro se on
retaliation and free exercise claims under the First Amendment and a
Fourteenth Amendment due process claim. This matter is before the Court
on the plaintiff’s motion to strike the affirmative defenses, the plaintiff’s
motion to amend/correct the complaint, the plaintiff’s motion to enter
expedited discovery plan, the plaintiff’s motion for summary judgment, and
the defendants’ motion to strike the plaintiff’s motion for summary
judgment.
The defendants filed an Answer on November 7, 2014, which

contained a number of affirmative defenses. The plaintiff filed a motion to
strike the affirmative defenses and responded to each one in an
accompanying brief. However, there is no provision in the Federal Rule of
Civil Procedure for the plaintiff to respond to the defendants’ affirmative
defenses at this point in the litigation.

See Fed. R. Civ. P. 8(c).

The

defendants need to include them in their answer to preserve the
arguments, and can address them as the case proceeds. If the defendants
pursue these affirmative defenses, the plaintiff will have an opportunity to
respond to them at a later date, either in response to a motion for summary
judgment or at trial. The Court will not consider their merits at this time.
Next, the plaintiff filed a motion to amend his complaint to add a
claim under the Religious Land Use and Institutionalized Persons Act of
2000 (RLUIPA). He asserts that courts have allowed plaintiffs in other
cases to proceed under both First Amendment and RLUIPA claims and
that RLUIPA applies to this case because a substantial burden is imposed
on the free exercise of his religion as a Black Muslim. He does not assert
any new facts or any new relief.
This motion does not comply with Civil Local Rule 15 regarding
amending complaints. However, the Court could construe it as a motion to
reconsider the screening order to allow the plaintiff to proceed on a
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RLUIPA claim. See Fed. R. Civ. P. 54(b) (“[A]ny order or other decision,
however designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not end the action as
to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights
and liabilities.”).
“RLUIPA prohibits prisons that receive federal funds from imposing
a substantial burden on a prisoner’s religious exercise unless the burden
furthers a compelling governmental interest and does so by the least
restrictive means.” Ortiz v. Downey, 561 F.3d 664, 670 (7th Cir. 2009)
(citations omitted). However, RLUIPA does not permit claims for money
damages against states or prison officials in their official capacity. See
Sossamon v. Texas, __ U.S. ___, 131 S.Ct. 1651, 1658-60, 179 L.Ed.2d 700
(2011).

Nor does RLUIPA allow suits against prison officials in their

individual capacities. See Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir.
2011); Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009). The plaintiff
seeks only monetary damages in his complaint and has made no request
for injunctive relief, which is the only relief available under RLUIPA. The
Court will deny his motion.
On December 4, 2014, the plaintiff filed a motion asking the court to
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enter an expedited discovery plan and proposed specific deadlines,
including a trial date. The Court needed to resolve these other motions
before it could enter a scheduling order.

The plaintiff’s motion will be

denied, but the Court will be issuing a Scheduling Order in conjunction
with this Order.
On January 9, 2015, the plaintiff filed a motion for summary
judgment, along with a brief, proposed findings of fact, and a sworn
affidavit.

He seeks a finding of liability against the defendants and a

finding that they are not entitled to qualified immunity. In response, the
defendants filed a motion to strike the plaintiff’s motion for summary
judgment and supporting documents (ECF Nos. 24-26) because the
plaintiff did not comply with the local rules. In their briefs, the parties
debate the requirements of Civil Local Rule 56(b)(1)(C) and whether the
plaintiff’s adoption of the statement of claim section from his complaint
pursuant Federal Rule of Civil Procedure 10(c) is permitted. The plaintiff
represents that he attached all the evidence he has to the affidavits and
maintains that he explicitly cited to the exhibits in his brief in support of
his motion for summary judgment.
In his memorandum of law (ECF No. 25), the plaintiff does not
include a statement of facts. Instead, he directs the court to the statement
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of claim section of his complaint, which is verified under 28 U.S.C. §1746.
He refers to Rule 10(c), which allows a statement in a pleading to be
“adopted by reference elsewhere in the same pleading or in any other
pleading or motion.” The plaintiff says he did this “to prevent repetitive
pleadings.” (ECF No. 25, p. 1). This memorandum is not verified, but it
contains legal arguments and citations to the plaintiff’s exhibits.
The final document the plaintiff filed is entitled “Plaintiff Beamon’s
Proposed Findings of Facts and Sworn Affidavit Authenticating Exhibits
Listed in Such Documents with the Actual Exhibits #1-20 Attached in
Support.” (ECF No. 26). Again, the plaintiff refers to Rule 10(c) and says
that the exhibits are adopted in support of plaintiff’s proposed findings of
fact. The next three pages that are part of the proposed findings of fact
consist of a verified statement by the plaintiff describing each of the
twenty exhibits.

He swears that the “list of documents are true and

correct as his ‘proposed findings of fact.’” (ECF No. 26, p. 2). The exhibits
total more than 60 pages and include verified or notarized affidavits from
the plaintiff and others, as well as documentary evidence regarding the
plaintiff’s claims.
The Court notes, as an initial matter, that collateral motions, such
as motions to strike, are disfavored. Civil Local Rule 56(b)(9) (E.D. Wis.).
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However, the Court understands why the defendants are concerned about
responding to the plaintiff’s motion for summary judgment. Both parties
acknowledge that Civil Local Rule 56(b)(1)(C) requires “a statement of
proposed material facts as to which the moving party contends there is no
genuine issue and that entitle the moving party to a judgment as a matter
of law.”

Further, “the statement shall consist of short numbered

paragraphs, including within each paragraph specific references to the
affidavits, declarations, parts of the record, and other supporting
materials relied upon to support the fact described in that paragraph.
Civil L. R. 56(b)(1)(C)(i) (E.D. Wis.). A party “may not file more than 150
separately numbered statements of fact,” and “failure to submit such a
statement constitutes grounds for denial of the motion.”

Civil L. R.

56(b)(1)(C)(ii) and (iii).
To the extent the plaintiff relies in his memorandum of law on the
statement of claim from his complaint, the numbered paragraphs contain
multiple factual assertions and combine factual and legal assertions. Also,
they do not contain the required citations to the record, and the
defendants have already responded to those statements in their Answer.
To the extent the plaintiff refers to the twenty numbered
paragraphs in ECF No. 26 as his proposed findings of fact, the defendants
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cannot admit or deny them. The numbered paragraphs simply describe
the plaintiff’s exhibits.
It is simply too much to ask the defendants to respond to a motion
for summary judgment that does not identify the material facts supporting
the claim that the plaintiff is entitled to judgment as a matter of law. The
plaintiff has not submitted a statement of proposed material facts as
required by the Local Rules. The Court will not strike ECF Nos. 24-26,
but the Court will deny the plaintiff’s motion for summary judgment
without prejudice. See McNeil v. United States, 508 U.S. 106, 113, 113
S.Ct. 1980, 124 L.Ed.2d 21 (1993) (A court has discretion to enforce its
local rules, even against a pro se litigant.); see also Schmidt v. Eagle Waste
& Recycling, Inc., 599 F.3d 626, 630 (7th Cir. 2010) (“We have routinely
held that a district court may strictly enforce compliance with its local
rules regarding summary judgment motions.”).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the plaintiff’s motion to strike affirmative
defenses (ECF No. 17) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion to
amend/correct complaint (ECF No. 19) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for order
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to enter expedited discovery plan (ECF No. 21) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for
summary judgment (ECF No. 24) is DENIED.
IT IS FURTHER ORDERED that the defendants’ motion to strike
(ECF No. 27) is DENIED.
Dated at Milwaukee, Wisconsin, this 29th day of June, 2015.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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