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Burke v. Glass

United States District Court, E.D. Missouri, Eastern Division

July 14, 2017

CALVIN BURKE, Plaintiff,
DALE GLASS, Defendants.



         This matter is before the court on Plaintiff Calvin Burke's ("Burke") Motion to Strike Answers/Pleadings Out of Time (ECF No. 105), Burke's Motion for Discovery Extension (ECF No. 108), Burke's Motion for Entry of Default (ECF No. 110), Plaintiffs Motion to Stay Summary Judgment (ECF No. 114), and Defendants' Motion to Strike Plaintiffs "Material Facts Not in Dispute" (ECF No. 122). These matters are fully briefed and ready for disposition.


         Burke's lawsuit arises from his confinement at the Medium Security Institution ("MSI"), also known as the "Workhouse, " against Defendants in their individual capacities pursuant to 42 U.S.C. §1983 and 42 U.S.C. §2000cc. Plaintiffs Second Amended Complaint contains eight separate counts: Count I "42 U.S.C. §1983"; Count II "First Amendment Violations"; Count III "Fourth Amendment Violations, " i.e., the strip search policy at MSI was unconstitutional; Count IV "Due Process Violation of the Fifth Amendment"; Count V "Deliberate Indifference to Safety and Health"; Count VI "Custom and Usage"; Count VII "Violation of Equal Protection and Due Process Under the Fourteenth Amendment, " and Count VIII "42 USC §1983".

         Burke alleges that the accommodations at MSI were unsatisfactory because MSI was unsanitary and the heating system malfunctioned. Burke also complains about the quality of the food service at MSI because it did not conform to nutritional and caloric standards, and Defendants interfered with his access to kosher meals. Burke alleges that inmates at MSI were encouraged to engage in "gladiator style battles." Burke alleges that Defendants' strip search policy is unconstitutional because he was searched in the presence of "homosexuals, sexual predators, and known sex offenders, " without privacy partitions, and that the searches occurred on a floor made wet from leaking toilets and urinals. Burke complains that the disciplinary process at MSI was unfair and he was confined to segregation for 5 days longer than his sentence. Burke further alleges that Defendants Gray, Glass, Edwards, Harry, Fields, Earvin, and Weber were policy-makers who acquiesced to various unsatisfactory conditions at MSI and/or ignored his complaints.



         Burke argues that Defendant Peterson belatedly filed his answers to Burke's Complaint and, therefore, Burke has been "extremely prejudiced" by Peterson's failure to respond to the Complaint in a timely manner. (ECF No. 105).

         Federal Rule of Civil Procedure 12(f) provides, "The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "Because the rule is stated in the permissive, however, it has always been understood that the district court enjoys 'liberal discretion' thereunder." Stanbury Law Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000) (citing Thor Corp. v. Automatic Washer Co., 91 F.Supp. 829, 832 (D.C. Iowa 1950); F.D.I.C v. Niblo, 821 F.Supp. 441, 449 (N.D. Tex. 1993)). Despite this broad discretion however, striking a party's pleadings is an extreme measure, and, as a result, the Eighth Circuit has previously held that "[m]otions to strike under Fed.R.Civ.P. 12(f) are viewed with disfavor and are infrequently granted." Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.1977) (citing 5 Wright & Miller, Federal Practice and Procedure: Civil § 1380 at 783 (1969)). See also, Resolution Trust Corp. v. Gibson, 829 F.Supp. 1103, 1106 (W.D. Mo. 1993); 2 James Wm. Moore et al., Moore's Federal Practice § 12.37[1] (3d ed. 2000) ("Courts disfavor the motion to strike, because it 'proposes a drastic remedy.'").

         The Court holds that Burke has not demonstrated any prejudice that would warrant the Court striking Defendant Peterson's pleadings. Burke has not identified any discovery that he was not allowed to conduct or any other disadvantage as a result of Peterson's late-filed pleadings. As a result, the Court denies Burke's Motion to Strike Answers/Pleadings Out of Time(ECFNo. 105).


         Burke filed a Motion for Discovery Extension (ECF No. 108). Burke requests that this Court "obtain non-privileged discovery matter previously requested which is relevant to prove [plaintiffs] case." (ECF No. 108 at 1). Burke requested information regarding the following:

• Captain Erwin's weekly inspection and documentation of repairs needed in the jails;
• requests for work written by correctional officers on every shift;
• documentation of the shift commander calling the maintenance supervisor for repairs because of extreme coldness from 2005-2015;
• documentation regarding the floor supervisory shift commander's requests for extra clothing and ...

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