Tanksley, James v. Wall, Edward et al

Filing 34

ORDER that plaintiff's amended complaint, dkt. 27 is the operative pleading in this case; denying plaintiff's 26 Motion to deny the defendants' motion to dismiss the complaint; denying plaintiff's 33 Motion for an Order directing the Defendants to Answer the Amended Complaint. Signed by District Judge James D. Peterson on 11/23/2016. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JAMES A. TANKSLEY,
Plaintiff,
v.

ORDER

JON E. LITSCHER, BRIAN FOSTER, and
WISCONSIN DEPARTMENT OF CORRECTIONS,

15-cv-126-jdp

Defendants.
Pro se plaintiff James A. Tanksley, a Wisconsin Department of Corrections prisoner,
is proceeding on claims that Waupun Correctional Institution and Department of
Corrections officials violated his right to freely exercise his religion by prohibiting his access
to specific tarot cards. Tanksley has filed a motion to deny the defendants’ motion to dismiss
the complaint, Dkt. 26, an amended complaint, Dkt. 27, and a motion to issue an order
directing the defendants to file an answer to his amended complaint, Dkt. 33. I will deny
Tanksley’s motions but accept his amended complaint as the operative pleading in the case.
First, I will deny Tanksley’s motion to deny defendant’s motion to dismiss the case,
Dkt. 26, because defendants have not moved to dismiss Tanksley’s case. Defendants
answered Tanksley’s complaint on June 7, 2016. Dkt. 23. In their answer, defendants assert a
number of affirmative defenses, as required by Federal Rule of Civil Procedure 12(b).
Tanksley misconstrues defendants’ answer as a motion to dismiss. If defendants move to
dismiss the case, they must clearly label their motion as such, and the court will give
Tanksley a deadline to respond. But defendants have not yet moved to dismiss the case, and
so I will deny Tanksley’s motion as unnecessary.

Second, I will accept Tanksley’s amended complaint. Dkt. 27. Tanksley mailed an
amended complaint to the court on June 27, 2016, just within the 21-day timeframe to
amend his complaint without leave of the court. See Fed. R. Civ. P. 15(a)(1); Edwards v.
United States, 266 F.3d 756, 758 (7th Cir. 2001) (per curiam) (holding that the prison
mailbox rule, providing that a prisoner’s filing is filed at the moment he places it in the prison
mail system, applies to all district-court filings save for “exceptional situation[s]”). Therefore,
Tanksley need not move the court for leave to amend his complaint. However, I still must
screen his amended complaint pursuant to 28 U.S.C. §§ 1915 and 1915A. Tanksley’s
amended complaint names Jon E. Litscher, the current secretary of the Department of
Corrections, and Brian Foster, the current warden of the Waupun Correctional Institution, as
defendants, and drops the former secretary and warden. I already made these substitutions in
my April 28 screening order. Dkt. 17. Tanksley’s amended complaint includes more details
about the denial of his request for the tarot cards. These changes do not affect my initial
conclusion that Tanksley may proceed on his RLUIPA claims against all three defendants and
on his First Amendment claims against only Litscher and Foster, so I accept Tanksley’s
amended complaint as the operative pleading in the case.
Finally, I will deny Tanksley’s motion for an order directing defendants to file an
answer to the amended complaint. Dkt. 33. Now that the amended complaint is accepted as
the operative pleading in the case, defendants may respond pursuant to Rule 15(a)(3). No
further court order is necessary.

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ORDER
IT IS ORDERED that:
1. Plaintiff James A. Tanksley’s amended complaint, Dkt. 27, is the operative
pleading in the case.
2. Plaintiff’s motion to deny defendants’ motion to dismiss the complaint, Dkt. 26, is
DENIED.
3. Plaintiff’s motion for an order directing defendants to file an answer to the
amended complaint, Dkt. 33, is DENIED.
Entered November 23, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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