Winston v. Hannah et al

Filing 44

ORDER signed by Judge J.P. Stadtmueller on 5/24/2017: DENYING 25 Plaintiff's Motion for a Pavey Hearing and DENYING 29 Plaintiff's Motion to Strike Affirmative Defenses. (cc: all counsel, via mail to Michael L. Winston at Columbia Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL L. WINSTON,
Plaintiff,

v.

MICHAEL HANNAH, LT. TOWNS,
ERIN QUANDT, OFFICER
DANZLER, OFFICER EMANUELE,
and JOHN DOES 1 - 10,

Case No. 16-CV-1420-JPS

ORDER

Defendants.
The Court addresses several of Plaintiff’s pending motions.1 On
April 13, 2017, Plaintiff filed a motion seeking a Pavey hearing, which
involves taking testimony on the issue of exhaustion of administrative
remedies. See Wagoner v. Lemmon, 778 F.3d 586, 590-92 (7th Cir. 2015). This
motion is premature and must be denied as such. Exhaustion of remedies
is an affirmative defense Defendants may raise on summary judgment, and
their time to do so has not expired. Further, the Court would almost
certainly deny such a motion even if it were filed at the appropriate time;
Plaintiff must submit appropriate documentary evidence and argument to
oppose Defendants’ assertion of this defense, rather than relying on
testimony at a hearing.
On April 27, 2017, Plaintiff filed a motion to strike Defendants’
affirmative defenses. (Docket #29). Motions to strike answers and

The Court will not address Plaintiff’s motion for summary judgment, filed
on April 11, 2017, as the briefing on that motion is not complete. (Docket #21). The
same is true for Plaintiff’s motions to substitute a party, (Docket #33), and to
compel discovery responses, (Docket #42).
1

affirmative defenses are not favored “and will not be granted unless it
appears to a certainty that plaintiffs would succeed despite any state of the
facts which could be proved in support of the defense.” Williams v. Jader
Fuel Co., Inc., 944 F.3d 1388, 1400 (7th Cir. 1991). In considering a motion to
strike, the Court “views the challenged pleadings in the light most
favorable to the non-moving party. Moreover, motions to strike will
generally be denied unless the portion of the pleading at issue is
prejudicial.” McGinn v. J.B. Hunt Transport, Inc., No. 10-CV-610-JPS, 2010
WL 4363419, at *1 (E.D. Wis. Oct. 27, 2010) (citation omitted). Plaintiff’s
motion to strike must be denied for two reasons. First, when viewing
Defendants’ allegations most favorably to them, they pass the low bar set
for pleading affirmative defenses. Defendants are entitled to present any
appropriate defenses on their merits. Second, Plaintiff raises no concerns
with regard to prejudice.2
Accordingly,
IT IS ORDERED that Plaintiff’s motion for a Pavey hearing (Docket
#25) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s motion to strike (Docket
#29) be and the same is hereby DENIED.

Defendants appear to believe that the Court has not screened Plaintiff’s
amended complaint. (Docket #39 at 4; Docket #40 at 1). Defendants are incorrect.
(Docket #20 at 1). Plaintiff’s amended complaint is his operative pleading. (Docket
#26).
2

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Dated at Milwaukee, Wisconsin, this 24th day of May, 2017.
BY THE COURT:
____________________________
J. P. Stadtmueller
U.S. District Judge

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