Salerno # 063416 v. Ryan

Filing 26

ORDER denying 25 Plaintiff's Motion to Allow a Response to Defendant's Reply in Support of his Unenumerated Rule 12(B) Motion to Dismiss. Signed by Magistrate Judge Lawrence O Anderson on 10/11/12.(DMT)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 Fox Salerno, ) ) Plaintiff, ) ) vs. ) ) ) Charles Ryan, Director of the Arizona) Department of Corrections, ) ) Defendant. ) ) ) No. CV-12-489-PHX-ROS (LOA) ORDER 16 This matter is before the Court on Plaintiff’s Motion to Allow a Response to 17 Defendants’ Reply in Support of his Unenumerated Rule 12(b) Motion to Dismiss. (Doc. 18 25) 19 I. Background 20 Plaintiff filed a pro se Prisoner Civil Rights Complaint on March 8, 2012, pursuant 21 to 42 U.S.C. § 1983. (Doc.1) After the mandatory screening process, pursuant to 28 U.S.C. 22 § 1915A(a), the Court dismissed the original complaint for failure to state a claim with leave 23 to amend. (Doc. 5) Plaintiff filed a First Amended Complaint on May 15, 2012. (Doc. 7) 24 The Court again conducted the mandatory screening process on the First Amended 25 Complaint and ordered that Counts I and II and Defendant Harris were dismissed without 26 prejudice. (Doc. 9) The Court further ordered that Defendant Ryan must answer Count III 27 of the First Amended Complaint and must file a response to the Motion for Preliminary 28 Injunction, doc. 8. (Id.) On August 27, 2012, Defendant Ryan filed Defendant’s 1 Unenumerated Rule 12(b) Motion to Dismiss. (Doc. 17). Plaintiff filed a Response to 2 Defendant’s Motion to Dismiss on September 19, 2012, doc. 23, and Defendant filed a Reply 3 on October 4, 2012, doc. 24. 4 II. Analysis 5 The Court on its on motion finds that Plaintiff’s Motion is an inappropriate filing 6 under the Federal Rule of Civil Procedure 7(a)(7). The rule sets forth the only pleadings that 7 are allowed. Subsection (7) specifically states that a reply to an answer is only permitted if 8 the court orders one. (Id.) Plaintiff does not allege, nor does the docket reflect, that the 9 Court ordered a response to Defendants’ Reply. Therefore, under Rule 7(a)(7) of the Federal 10 Rules of Civil Procedure, it is an impermissible pleading and the Court will strike it from the 11 record. 12 Accordingly, 13 IT IS ORDERED that Plaintiff’s Motion to Allow a Response to Defendant’s Reply 14 15 in Support of his Unenumerated Rule 12(B) Motion to Dismiss, doc. 25, is DENIED. Dated this 11th day of October, 2012. 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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