Beamon v. Pollard et al

Filing 28

ORDER signed by Magistrate Judge William E Duffin. IT IS THEREFORE ORDERED that Beamon's motion to strike affirmative defenses (ECF No. 25 ) is GRANTED in part and DENIED in part. The motion is granted as to defenses five and ten and denied as to the remaining defenses. (cc: all counsel, plaintiff) (asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EARNEST D. BEAMON, JR.,
Plaintiff,
v.

Case No. 15-CV-560

WILLIAM POLLARD, et al.,
Defendants.
ORDER
Plaintiff Earnest Beamon, who is proceeding pro se, filed a civil rights complaint
under 42 U.S.C. § 1983, alleging that his First Amendment rights were violated at the
Waupun Correctional Institution. The court issued a screening order allowing him to
proceed with his action on February 17, 2016 (ECF No. 17) and the defendants filed their
answer on April 7, 2016 (ECF No. 24). The parties have consented to the jurisdiction of
this court. (ECF Nos. 5, 16).
This matter is before the court on Beamon’s “motion to strike affirmative
defenses.” (ECF No. 25). The defendants have not responded. For the reasons explained
in this order, the court will grant in part and deny in part Beamon’s motion to strike.

The court may, upon motion or upon its own initiative, “order stricken from any
pleading any insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f). The burden on a motion to strike is upon the
moving party. Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664 (7th Cir. 1992). The
court should not grant a motion to strike unless the defense is patently defective under
the requirements set forth in the Federal Rules of Civil Procedure. Bobbitt v. Victorian
House, Inc., 532 F. Supp. 734, 736 (N.D. Ill. 1982). Indeed, the court must give defendants
the opportunity to prove their allegations if there is any possibility that the defense
might succeed after a full hearing on the merits. United States v. 416.81 Acres of Land, 514
F.2d 627, 631 (7th Cir. 1975).
Defendants raise ten “defenses” in their answer. (ECF No. 24 at 9). Beamon asks
the court to strike all ten defenses from the answer.
a. Defense One: Failure to State a Claim
Beamon contends that the court must strike as “moot” defendants’ defense of
failure to state a claim because the court issued a screening order allowing the action to
proceed. The Prison Litigation Reform Act requires that federal courts screen
complaints brought by prisoners seeking relief against a governmental entity or officer
or employee of a governmental entity. 28 U.S.C. § 1915A(a). In doing so, the court uses
the motion to dismiss standard established under Rule 12(b)(6) when screening the
complaint. § 1915(e)(2)(B). However, a screening order is issued without the benefit of

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defendants’ response. § 1915A(a). Once defendants present their arguments, the court
may conclude that plaintiff’s complaint does not state a claim upon which relief can be
granted. Moreover, the screening order is a cursory review of the complaint construed
in favor of allowing the action to proceed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Thus, defendants’ assertion that plaintiff’s complaint fails to state a claim is legally
“possible.” The court will deny the motion to strike defense one.
b. Defense Two: Sovereign Immunity
Beamon next argues that, contrary to defendants’ second defense, he may file
suit against state government employees in their “official capacity” under § 1983
without violating the doctrine of sovereign immunity under the Eleventh Amendment.
Beamon is correct that he may seek injunctive or declaratory relief against state
government employees in their “official capacity.” Kentucky v. Graham, 473 U.S. 159
(1985). However, he may not seek monetary damages against a state government
employee in his or her official capacity. Id; Cory v. White, 457 U.S. 85, 90 (1982); Edelman
v. Jordan, 415 U.S. 651, 663 (1974). “[A] judgment against a public servant ‘in his official
capacity’ imposes liability on the entity that he represents” in violation of the Eleventh
Amendment. Brandon v. Holt, 469 U.S. 464, 471 (1985).
Beamon has filed suit against the defendants in their “personal” and “official”
capacities, seeking both declaratory and monetary relief. The defendants’ sovereign
immunity defense is not “redundant, immaterial, impertinent, scandalous,” or

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“patently defective” to the extent that Beamon asserts that he is entitled to monetary
damages from a defendant who was acting in his or her official capacity. The court will
deny the motion to strike defense two.
c. Defenses Three, Four, Six, Seven, and Nine: Qualified Immunity, Personal
Involvement, Control, Failure to Mitigate, and Claim/Issue Preclusion.
Beamon contends that the defenses of qualified immunity, lack of personal
involvement, lack of control, failure to mitigate, and claim/issue preclusion must be
raised at summary judgment and not in the answer as affirmative defenses under Rule
8(c). The Federal Rules of Civil Procedure provide that, “[i]n responding to a pleading,
a party must state in short and plain terms its defenses to each claim asserted against
it.” Fed. R. Civ. P. 8(b)(1)(A). “Every defense to a claim for relief in any pleading must
be asserted in the responsive pleading if one is required.” Fed. R. Civ. P. 12(b).
Defendants have done that. The motion to strike defenses three, four, six, seven and
nine will be denied.
d. Defense Five: State Law Claims
Beamon contends that the court should strike the fifth defense because he is not
pursuing any state law claims. The court will grant Beamon’s motion to strike defense
five as “immaterial.” Beamon is advised that the court will hold him to his
representation and will not accept a later argument that the complaint should be
construed to be alleging a state law claim.

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e. Defense Eight: Exhaustion of Administrative Remedies
Beamon argues that the eighth defense is “insufficient” because defendants do
not have “any basis” for the belief. Defendants need not present a “basis for the belief”
in the answer. See Fed. R. Civ. P. 8(b)(1)(A). Rather, they need only assert a “short and
plain” statement of their defenses to each claim asserted against them. Id. Defendants
have done that. The court will deny Beamon’s motion to strike defense eight.
f. Defense Ten: Right to Reserve Affirmative Defenses
Beamon contends that Rules 8 and 12(b) prohibit defendants from reserving the
right to raise affirmative defenses in the future. Affirmative defenses are waived if they
are not raised in the first pleading. Fed. R. Civ. P. 12(b). However, “[a]s with all motions
for leave to amend, the district court has the discretion to allow an answer to be
amended to assert an affirmative defense not raised at the outset.” Wallace v. City of
Chicago, 472 F. Supp. 2d 942, 946 (N.D. Ill. 2004). The court will grant Beamon’s motion
to strike defense ten as a “legal nullity.” See Fed. Deposit Ins. Corp. v. Giannoulias, No. 12
C 1665, 2014 WL 3376892, at *9 (N.D. Ill. July 10, 2014). If defendants later seek to add
additional affirmative defenses the court will address such a request at that time.
Finally, Beamon also asserts that all defenses should be stricken because they
were not “submitted in motion form.” Rule 12(b) permits certain identified defenses to
be brought by motion before pleading if a responsive pleading is allowed. Courts in the
Seventh Circuit give defendants the option of presenting Rule 12(b) defenses in the

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responsive pleading or by motion. Swanson v. City of Hammond, Ind., 411 F. App'x 913,
915 (7th Cir. 2011). Defendants may assert Rule 12(b) defenses in the answer and are not
required to do so by motion.
ORDER
IT IS THEREFORE ORDERED that Beamon’s motion to strike affirmative
defenses (ECF No. 25) is GRANTED in part and DENIED in part. The motion is
granted as to defenses five and ten and denied as to the remaining defenses.
Dated at Milwaukee, Wisconsin this 6th day of May, 2016.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

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