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Jones v. Barnhart

United States District Court, E.D. Michigan, Southern Division

April 26, 2017

JOHN JONES, Plaintiff,
v.
PATRICIA BARNHART, et al., Defendants.

          Arthur J. Tarnow District Judge

          ORDER DENYING PLAINTIFF'S MOTION TO STRIKE DEFENDANT BARNHART'S ANSWER TO AMENDED COMPLAINT (DE 152)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Like an old Beatles' song, the procedural history of this nearly seven year old case has been a “long and winding road.” Beatles, The Long and Winding Road (Apple Records 1970). In relevant part, Plaintiff filed his initial complaint on May 26, 2010 and was granted leave to file an amended complaint on August 22, 2013. (DE 59.) On December 3, 2013, Defendant Barnhart-at one time the acting Warden of Thumb Correctional Facility-filed her first motion for summary judgment, incorporating by reference the motion for summary judgment previously filed by the other Defendants in the action, which asserted that Plaintiff failed to state a claim upon which relief can be granted under the Eighth Amendment, improperly asserted individual liability under the Americans with Disabilities Act (“ADA”), and that Defendants were entitled to qualified immunity. (DE 63.) The Court denied the motion on September 15, 2014 because it was filed in response to Plaintiff's initial complaint and not the active pleading. (DE 81.) Defendant Barnhart, with Court approval, filed a second motion for summary judgment on March 25, 2014, asserting the same arguments as her previous motion, which was denied on March 26, 2015. (DE 70 and 97.) She filed her third motion for summary judgment on February 16, 2016, and withdrew the motion on July 26, 2016, following the order of assignment of counsel issued on May 4, 2016, appointing attorney Daniel E. Manville as counsel for Plaintiff. (DE 109, 118, and 122.) Defendant Barnhart filed her fourth motion for summary judgment on February 13, 2017 and it awaits the Court's review. (DE 140.) She argues that the case is barred by the applicable statute of limitations, that Plaintiff failed to exhaust his administrative remedies, that she is entitled to qualified immunity, and that there is no personal liability under the ADA.

         On February 17, 2017, Plaintiff filed a request for clerk's entry of default and motion for default judgment, asserting that Defendant Barnhart had failed to file an answer in this matter. (DE 145 and 146.) Later that day, Defendant Barnhart filed an answer and the clerk denied the entry of default. (DE 147 and 151.) Plaintiff withdrew his motion for default judgment on February 18, 2017. (DE 150.)

         II. THE INSTANT MOTION AND HEARING

         This brings us to the instant motion. Plaintiff argues that, pursuant to Federal Rule of Civil Procedure 15(a)(3), Defendant Barnhart was required to file an answer within fourteen days after her second motion for summary judgment was denied, making it due on or before April 10, 2015. Because she did not file it until 23 months later, Plaintiff asserts that the answer should be stricken and Defendant should be barred from asserting the affirmative defense of failure to exhaust administrative remedies by motion.[1] Defendant counters that she was not required to file any answer pursuant to the Prisoner Litigation Reform Act (“PLRA”), specifically 42 U.S.C. § 1997e(g).

         The parties, through counsel, came before me for a hearing on this matter on April 19, 2017. For the reasons stated on the record and those that follow, Plaintiff's motion is DENIED.

         III. DISCUSSION

         Pursuant to Rule 15, “any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.” Fed.R.Civ.P. 15(a)(3). However, the PLRA provides in relevant part as follows:

(g) Waiver of reply
(1) Any defendant may waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983 of this title or any other Federal law. Notwithstanding any other law or rule of procedure, such waiver shall not constitute an admission of the allegations contained in the complaint. No relief shall be granted to the plaintiff unless a reply has been filed.
(2) The court may require any defendant to reply to a complaint brought under this section if it finds that the plaintiff has a reasonable opportunity to prevail on the merits.

42 U.S.C. § 1997e (g). In spite of this provision, Plaintiff asserts that Defendant Barnhart was required to file an answer to his amended complaint within 14 days after the Court denied her motion for summary judgment. To support this proposition, he points to Henricks v. Pickaway Corr. Inst., No. 2:08-cv-580, 2016 WL 4705647 (S.D. Ohio Sept. 8, 2016), an unpublished, non-binding case from another district, which holds that a defendant entitled to the protections of § 1997e(g) waives this right by filing a “reply, ” which that particular judge defined as an “answer, a motion to dismiss, or a motion for summary judgment.” Id. at *3 (citing Lafountain v. Martin, No. 1:07-cv-76, 2009 WL 4729933, at *3 (W.D. Mich. Dec. 3, 2009)). However, a review of the statute and of the Lafountain case reveals no such definition of “reply.” The holding in Lafountain was based on § 1997e(g)(2) because the Court ordered a reply in that instance and, in its order, indicated that such a reply could be filed by way of answer, motion for summary judgment, or motion to dismiss. Lafountain, 2009 WL 47229933 at *3. ...


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