Edwards, Tremayne v. Haines, Tim et al

Filing 23

ORDER denying 11 Motion for Default Judgment; granting in part 14 Motion to Amend Complaint. The caption is amended to replace the John Doe defendant with C.O. Gilardi. The 14 motion is DENIED with respect to plaintiff's request to add new claims. Signed by District Judge James D. Peterson on 1/4/2017. (jef),(ps)

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

TREMAYNE EDWARDS,

v.

Plaintiff,

TIM HAINES and JOHN DOE OFFICER,

ORDER
16-cv-317-jdp

Defendants.
On August 17, 2016, I granted plaintiff Tremayne Edwards leave to proceed on
Eighth Amendment claims that defendant John Doe sexually harassed him during a drug test
and that defendant Tim Haines either implemented the drug test policy for the purposes of
humiliating inmates or that he refused to change the policy even after the potential for
harassment was made clear to him. That same day, via electronic notification, this court sent
the office of the Wisconsin attorney general a copy of the August 17, 2016 order for
acceptance of informal service of process on defendants. On August 29, the attorney general’s
office advised that it was accepting service on behalf of defendant Haines. On September 29
defendant Haines filed his answer with the court, three days after the September 26 deadline
set by the court in accordance with an informal service agreement between the court and the
Wisconsin Department of Justice for pro se prisoner cases. In early October, Edwards filed a
motion for entry of default pursuant to Fed. R. Civ. P. 55(a).
The clerk of court understandably did not enter default because Haines’s answer was
already on the docket by the time Edwards filed his motion. But even had the clerk entered
default, I would set it aside given the government’s response to Edwards’s motion. The state
contends that its answer was timely because, under Federal Rule of Civil Procedure 6(d), it
received three extra days to file its answer (September 29 is the forty-third day after August
17). See Rule 6(d) (“When a party may or must act within a specified time after being served

and service is made under Rule 5(b)(2) . . . (F) (other means consented to), 3 days are added
after the period would otherwise expire under Rule 6(a).”). I agree with the state that the
answer is timely. Accordingly, I will deny Edwards’s motion for entry of default. 1
Edwards has also filed a motion for leave to file an amended complaint identifying
C.O. Gilardi as the John Doe defendant and “adding Discrimination.” Dkt. 14. Going
forward, C.O. Gilardi will replace the John Doe defendant in the caption. The state should
respond to this order, explaining whether it will accept service on behalf of Gilardi.
I take Edwards to be saying that he would like to add equal protection claims to this
case. In the August 17 order, I stated that “he does not identify any discriminatory treatment
on the basis of any ‘suspect classification,’ or explain that he was singled out arbitrarily for
unfair treatment in a way that might support an equal protection claim.” Dkt. 6, at 3 n.1. It
is possible that Edwards could amend his complaint to include allegations supporting an
equal protection claim, but he does not include a proposed amended complaint along with
his motion. Accordingly, I will deny that portion of his motion and direct him to refile it,
along with a proposed amended complaint that explains the factual basis for his equal
protection claims.

1

Even if the answer had been submitted a few days after the correct deadline, default
judgment would be inappropriate. The Seventh Circuit has “articulate[d] a policy of favoring
trial on the merits over default judgment.” Cracco v. Vitran Express, Inc., 559 F.3d 625, 631
(7th Cir. 2009). And the state explains that it delayed in submitting an answer because of a
calendaring oversight, and submitted the answer as soon as the mistake was discovered. I may
find good cause to overcome a default even where “there is no good excuse for the
defendant’s inattention to the case.” Sims v. EGA Prod., Inc., 475 F.3d 865, 868 (7th Cir.
2007). Edwards would not have been prejudiced in a meaningful way even if the answer had
been filed a few days late.

2

ORDER
IT IS ORDERED that:
1. Plaintiff Tremayne Edwards’s motion for entry of default, Dkt. 11, is DENIED.
2. Plaintiff’s motion for leave to amend his complaint, Dkt. 14, is GRANTED IN PART;
the caption is amended to replace the John Doe defendant with C.O. Gilardi. His
motion is DENIED with respect to his request to add new claims.
Entered January 4, 2017.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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