Scher v. Bureau of Prisons

Background

Gregory A. Scher, proceeding without a lawyer, filed the original complaint on July 29, 2019. The defendants later moved to dismiss or for summary judgment. The court extended Scher’s deadline to respond and also extended the time for him to amend his complaint.

Scher filed an amended complaint on October 20, 2020. It added seven defendants, provisional John and Jane Doe defendants, new claims and factual allegations, additional damages, and clarified the names of two existing defendants. The court treated the amended complaint as timely and as the complaint governing the case going forward.

Rulings on the pending motions

The defendants’ motion addressed the original complaint and was filed before Scher submitted his amended complaint. The court concluded that it would not be practical or efficient to apply that motion to the amended complaint because the defendants had not addressed the new allegations and damages. The court therefore recommended that the defendants’ Motion to Dismiss and/or for Summary Judgment be denied without prejudice as moot. This ruling did not decide whether Scher’s claims were legally sufficient or whether he would prevail.

Scher moved to strike the defendants’ motion, arguing that the defendants had not met and conferred with him as required by local rules. Because the defendants’ motion was recommended for denial as moot, the court also recommended that Scher’s Motion to Strike Defendants’ Motion to Dismiss be denied without prejudice as moot.

Scher separately sought help from the Marshals Service in serving the summons and amended complaint. The court explained that, although Scher was proceeding without a lawyer and had received service forms, he was responsible for completing and returning one USM-285 form for each defendant. The court therefore denied his Motion for Service of Summons and Complaint.

Other directives

The court ordered that Scher could supplement his amended complaint with a physician’s notarized affidavit by January 4, 2021. If he wanted to make additional amendments, he had to file a formal motion for permission to amend. The Bureau of Prisons and F.M.C. Rochester were required to answer or otherwise respond by January 25, 2021. Properly served new defendants, and defendants who waived service, were required to respond no earlier than January 25, 2021, or within 21 days after service, whichever was later.

Nature of the ruling and review

Magistrate Judge Becky R. Thorson issued an order and a report and recommendation. The order denied Scher’s service motion and set deadlines. The report and recommendation proposed denying the other two motions without prejudice as moot. The notice stated that the report and recommendation was not directly appealable to the U.S. Court of Appeals for the Eighth Circuit and that written objections could be filed within 14 days. The opinion did not reach the merits of Scher’s underlying claims.