The opinion of the court was delivered by: Herndon, Chief Judge
Trial in this matter is currently set for June 9, 2008. Now before the Court are three pending motions: Defendants' motion for leave to file amended answer (Doc. 244), Plaintiff's objection and motion to strike Defendant's motion for leave to file amended answer (Doc. 255), Defendants' motion for leave to file amended final pre-trial order (Doc. 245),*fn1 and Defendants' motion to clarify issues for trial. Each motion is considered below.
It is important for the Court to review the procedural history of this case in order to provide the necessary context in which the motions pending before it arise. On June 12, 1998, Plaintiff William Canon ("Plaintiff"), a prisoner in the custody of the Illinois Department of Corrections, filed a complaint (Doc. 1) pursuant to 42 U.S.C. § 1983 alleging that prison guards severely beat Plaintiff. The first incident allegedly occurred on June 13, 1996. At that time, the Illinois Department of Corrections required that inmates file all grievances within 6 months of the incident. Plaintiff maintains that he placed his grievance regarding the June 13, 1996 incident in the prison mail system on December 13, 1996, but that it was returned on December 14, 1996 for insufficient postage. Plaintiff further maintains that he resent the grievance immediately. The Administrative Review Board ("ARB") received the grievance on December 23, 1996, but denied it as untimely. The ARB informed Plaintiff that it might reconsider the grievance if Plaintiff submitted a copy of the original grievance and a new grievance explaining the delay. Plaintiff failed to follow these directions and instead wrote to the Director of the Department of Corrections. The ARB denied Plaintiff's request for reconsideration because he did not follow its instructions. As stated above, Plaintiff initially filed suit in June 1998 alleging claims related only to the June 1996 incidents.
On or about May 5, 1998, just prior to filing his Complaint, Plaintiff alleges that he was again attacked by several guards who were unhappy that he was filing a lawsuit regarding the June 1996 incident. Plaintiff filed a timely grievance regarding this alleged incident, but it was denied on the merits. In March 2001 the Court granted Plaintiff leave to amend his complaint to add several claims and defendants related to the May 1998 events.
In June of 2003, the Court dismissed or granted summary judgment on all claims, with the exception of a claim against one defendant, who was in default. Plaintiff appealed, and on August 10, 2005 the Seventh Circuit affirmed except as to summary judgment on Counts 13 and 14,*fn2 which were remanded for further proceedings. The Seventh Circuit found that Plaintiff had exhausted all of his administrative remedies with respect to the May 1998 events and that those claims should proceed, even though Plaintiff failed to exhaust his administrative remedies with respect to the June 1996 claims, which the Seventh Circuit held were properly dismissed. On December 22, 2005 - over seven years after the original Complaint was filed - Defendants filed a motion for leave to file an answer instanter. (Doc. 179.) Leave was granted and Defendants filed their first answer in this case. (Doc. 181.) The answer asserted two affirmative defenses: "1. At all relevant times, Defendants acted in good faith performance of their official duties and without violating Plaintiff's clearly established constitutional rights. Therefore, Defendants are protected from suit by the doctrine of qualified immunity. 2. The eleventh amendment bars Plaintiff's action against Defendants in their official capacity." The answer contained no mention of the statute of limitations.
A. Motion to File Amended Answer
On November 16, 2007, just over two weeks before trial was set to begin in this case and six and a half years since the amended complaint was filed, Defendants filed a motion for leave to file an amended answer to add the affirmative defense of the statute of limitations. (Doc. 244.)
FEDERAL RULE OF CIVIL PROCEDURE 8(c) requires a defendant to plead a statute of limitations defense and any other affirmative defense in its answer to the complaint. See FED.R.CIV.P.8(c). On the other hand, the district court has the discretion to allow an answer to be amended to assert an affirmative defense not raised initially. See FED.R.CIV.P. 15(a). RULE 15(a) states that "leave shall be freely given when justice so requires." See id.
The Illinois two-year statute of limitations for personal injury actions applies to § 1983 claims. See Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001). Defendants now argue that the claims filed by Plaintiff in his amended complaint do not relate back to the original complaint and were filed outside of the two-year statute of limitations for § 1983 claims. The Court, however, need not determine whether, in fact, the statute of limitations defense applies in this case because the Court finds that justice does not require allowing the Defendants to amend their answer to add this defense at this very late stage.
The Seventh Circuit has held:
Once the availability of an affirmative defense is reasonably apparent, the defendant must alert the parties and the court to his intent to pursue that defense. A defendant should not be permitted to 'lie behind a log' and ambush a plaintiff with an unexpected defense. The appropriate thing for the defendant to do, of course, is to promptly seek the court's ...