Answer & Affirmative Defenses

What happens at this stage

If the court denies the motion to dismiss (or if defendants choose not to file one), defendants must file an answer to your complaint. The answer responds to every allegation — paragraph by paragraph — with one of three responses:

Admit — the allegation is true
Deny — the allegation is false
Insufficient knowledge — the defendant claims they don’t know enough to admit or deny (functionally treated as a denial)

Why the answer matters

Most pro se litigants glance at the answer and move on. Don’t. The answer is a goldmine of information:

Admissions are binding

Anything the defendant admits in the answer is established for the rest of the case. They can’t later dispute it at summary judgment or trial. Read every admission carefully. Some will seem trivial but may establish elements of your claim.

For example, if your complaint says “Defendant Markham arrested Plaintiff at approximately 1:46 AM” and the answer says “Admitted,” the fact of the arrest is established. You don’t need to prove it.

Denials tell you what’s contested

Every denial signals a factual dispute you’ll need to prove. Map the denials to your claims — they show you exactly what evidence you’ll need in discovery.

”Insufficient knowledge” is sometimes improper

A defendant can’t claim “insufficient knowledge” about their own actions. If your complaint says “Officer Smith tackled Plaintiff” and Officer Smith responds “insufficient knowledge,” that may be improper. You can challenge it via a motion to strike or raise it at summary judgment.

Affirmative defenses

The answer typically includes a section of affirmative defenses — legal arguments that, even if your facts are true, bar or limit your recovery. Under Rule 8(c), the defendant must raise affirmative defenses in the answer or waive them.

Common affirmative defenses in § 1983 cases

Qualified immunity — yes, again. Even if they raised it at Rule 12 and lost, they’ll preserve it for summary judgment.
Statute of limitations — your claim was filed too late
Failure to exhaust — you didn’t complete required administrative remedies (more common in prisoner cases under the PLRA)
Heck v. Humphrey bar — your § 1983 claim would invalidate an existing criminal conviction (see Heck doctrine)
Comparative fault / failure to mitigate — you contributed to your own injury
Good faith — the officer acted reasonably (overlaps with QI)
Eleventh Amendment immunity — if state entities are involved

Boilerplate defenses

Defense counsel routinely includes 15-20 affirmative defenses, many of which are boilerplate that don’t apply to your case. They do this to preserve every possible argument. Don’t panic at the volume — most won’t be pursued.

That said, if a defense is clearly inapplicable (e.g., “failure to exhaust” when there’s no exhaustion requirement for your claim), you can move to strike under Rule 12(f). This is optional and tactical — sometimes it’s not worth the effort, but it can narrow the issues early.

Counterclaims

Rare in § 1983 cases, but defendants can file counterclaims — claims against you. For example, a city might counterclaim for costs of defending against a “frivolous” suit (though this is uncommon at the answer stage).

If counterclaims are filed, you must respond within 21 days, just as defendants responded to your complaint.

What to do with the answer

Create an admit/deny chart — track which allegations are admitted, denied, or “insufficient knowledge.” This becomes your discovery roadmap.
Flag improper responses — “insufficient knowledge” for things the defendant personally did or witnessed.
Note all affirmative defenses — even boilerplate ones. You’ll need to be prepared to counter them.
Check for waived defenses — if a defense isn’t in the answer, it’s generally waived. If they try to raise it later, object.

The scheduling order

Shortly after the answer is filed, the court typically issues a scheduling order (Rule 16) or holds an initial scheduling conference. This sets deadlines for:

Discovery cutoff
Dispositive motions (summary judgment)
Pretrial conference
Trial date

These deadlines control your life for the next 12-18 months. Calendar them immediately.

Timeline

Answer due: 21 days after service (or 60 days if defendant waived service)
If MTD was filed and denied: typically 14 days after the court’s order
Scheduling conference: usually within 60-90 days of the answer