UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JEFFREY AARON,

Plaintiff,

Case No. 15-cv-11014

v.

HONORABLE VICTORIA A. ROBERTS

JACKIE DYER, et al.,

Defendants.

 /

ORDER ON OUTSTANDING MOTIONS

On April 26, 2016, the Court held a status conference following the Order on

Defendants’ Motion for Summary Judgement, dated March 31, 2016. ECF No. 40. 

Attending were: Solomon Radner on behalf of Mr. Aaron, and Clifton Schneider on

behalf of Defendants. 

After the Court entered the Summary Judgment Order, Mr. Aaron, who was a pro

se litigant, obtained Mr. Radner as counsel (ECF No. 41). Thereafter, the following

activities occurred: Mr. Aaron filed a Motion for Default Judgment as to Defendant Dyer

(ECF Nos. 42, 44), Defendant Dyer filed an Answer (ECF No. 43), Mr. Aaron filed a

Motion to Strike Defendant Dyer’s Answer (ECF No. 45), Defendants filed a Motion to

Strike Aaron’s Motion to Strike Defendants’ Answer (ECF No. 48), and Defendants filed

a Motion for Reconsideration of the Court’s Summary Judgment Order (ECF No. 46).

Responsive pleadings were filed on all of these motions except for the Motion for

Reconsideration, for which the Court did not order a response. 

Defendants contend that the Court improperly entered a default judgment against

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Defendant Dyer in derogation of a statutory exemption. The Court’s Order was advisory,

not executory; it did not, at that point in time, enter a default judgment. The Order

highlighted the fact that Defendant Dyer had not filed an Answer as requested by two

Court orders: (1) the Return of execution of waiver of service by Defendant Dyer (ECF

No. 37); and (2) the Order finding as moot Plaintiff’s Motion for Assistance (ECF No.

38). Both orders instruct Defendant Dyer to file an Answer or appropriate motion.

Nevertheless, Defendant Dyer did not comply with the Court’s deadlines, which led the

Court to believe that Defendant Dyer might be subject to default judgment. 

Defendants challenge the ability of Aaron to seek default judgment against Dyer

as well the advisory statement that default judgment might be appropriate. As reflected

in the hearing transcript and discussed below, Defendants’ Motion for Reconsideration

is GRANTED. 

Congress created an exception to the standard rules of civil pleading outlined in

the Federal Rules of Civil Procedure when it enacted the Prison Litigation Reform Act

and subsequent amendments. In particular, 42 U.S.C. § 1997e(g)(1) allows a Defendant

to “waive the right to reply to any action brought by a prisoner.” Id. This waiver right is

not absolute; section 1997e(g)(2) provides “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.” Id. Section 1997e(g)(1) requires a court

to make such a finding before defaulting a defendant. Id. (“No relief shall be granted to

the plaintiff unless a reply has been filed.”) 

The statute does not define the phrase “reasonable opportunity to prevail on the

merits,” nor does it explain what a Court must do to communicate its finding that the

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plaintiff has a reasonable opportunity to prevail on the merits; for example, it is unclear

whether a specific finding of reasonable opportunity must enter or whether this finding

can be made implicitly through an order requiring a response. Similarly, the statute does

not explain the relationship between section 1997e(g)(2) and the frivolous review

procedures outlined in section 1997e(c). Further, the statute could be more exact in its

language – ordinarily a “reply” follows an “answer;” it is not a generic term used for any

responsive pleading, which is the way the statute apparently uses the term. Thus, the

Court relies on previous Sixth Circuit decisions that construe the term “reply” to

encompass an “Answer,” the pleading relevant to the current motion.

In this particular case, the Court’s Order Directing Plaintiff to Provide Additional

Copies (ECF No. 4) could be construed to put Defendants on notice that Plaintiff has a

reasonable opportunity to prevail on the merits. It states “The Court has conducted an

initial review of the complaint pursuant to ... 42 U.S.C. § 1997e(c), to determine whether

it is frivolous, malicious, or fails to state a claim upon which relief can be granted. Upon

initial review, the Court concludes that the complaint is not frivolous and states at least

one cognizable claim.” ECF No. 4. 

While statutory vagueness and ambiguity complicate the Court’s task, there is

sufficient foundation on which to conclude that the extraordinary remedy of default

judgment is inappropriate in this case. The Court never expressly stated that it found

“plaintiff has a reasonable opportunity to prevail on the merits,” and the Motion for

Default Judgment was filed prior to, not after, Defendant Dyer’s Answer. Because

section 1997e(g)(1) precludes issuance of relief unless a reply is issued, and no reply

was entered prior to the motion, the Court cannot give effect to the motion for default. 

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To remedy any confusion from the prior Order, the Court GRANTS Defendants’

Motion for Reconsideration, striking the last paragraph of the Summary Judgment Order

(ECF No. 40) that discusses Defendant Dyer. The balance of the Order was

unchallenged and remains in force as entered. 

As a result of the foregoing analysis, Plaintiff’s Motion for Default Judgment and

Motion to Strike Defendants’ Answer are both DENIED. In addition, Defendants’ Motion

to Strike Plaintiff’s Motion to Strike is DENIED as MOOT. 

Finally, the Court discussed several scheduling matters in anticipation of trial.

The parties agreed to the following stipulations: 

(1) No more dispositive motions will be filed prior to trial;

(2) Plaintiff may file an Amended Complaint that modifies only the prayer for

relief. Plaintiff is to submit the proposed Amended Complaint to Defendants, who will

then decide whether to concur in the amendment. If concurrence is denied, Plaintiff

must file a motion to submit an Amended Complaint;

(3) A bench trial was requested. That request is denied; the parties will have a

jury trial; 

(4) The parties have until May 9, 2016, to exchange discovery requests.

Additional details about discovery, joint final pre-trial matters, and other scheduling

logistics are set forth in an Order to follow; and

(5) By June 29, 2016, the parties must exchange formal settlement offers. Either

party can thereafter request a settlement conference with the Court. 

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IT IS ORDERED

S/Victoria A. Roberts 

 

Victoria A. Roberts

United States District Judge

Dated: April 28, 2016

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

April 28, 2016.

s/Linda Vertriest 

Deputy Clerk

. 

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