Lamon v. Adams et al
Filing
144
ORDER Denying Plaintiff's 127 Motion to Strike Defendants' Statement of Discovery Needed and Disregarding Objections signed by Magistrate Judge Sandra M. Snyder on 12/13/2011. (Flores, E)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
BARRY LOUIS LAMON,
10
11
12
Plaintiff,
vs.
1:09-cv-00205 LJO SMS (PC)
ORDER DENYING PLAINTIFF’S
MOTION TO STRIKE DEFENDANTS’
STATEMENT OF DISCOVERY NEEDED
AND DISREGARDING “OBJECTIONS”
ADAMS, et al.,
(Doc. 127)
13
Defendants.
14
________________________________/
15
Plaintiff is a prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. §
16
1983. On May 3, 2011, an Order issued directing both parties to file discovery motions
17
delineating remaining discovery sought with allowance for filing of oppositions and replys
18
subsequent to re-screening of the Complaint in light of Ashcroft v. Iqbal, 556 U.S. 662, 129
19
S.Ct. 1937 (2009). (Docs. 109, 121.) Plaintiff filed a “Statement of Discovery Needed”
20
(“Plaintiff’s Statement”) delineating discovery he believed was still necessary on June 29, 2011.
21
(Doc. 123.) Defendants filed their “Statement of Discovery Needed” (“Defendants’
22
Statement”) on June 30, 2011. (Doc. 122.) Defendants filed a response to Plaintiff’s Statement
23
on July 8, 2011 to which Plaintiff replied on September 19, 2011. (Docs. 125, 134.) Rather
24
than filing an opposition or response to Defendants’ Statement, on July 13, 2011, Plaintiff filed
25
a document entitled “Plaintiff’s Objection to, and Motion to Strike From the Record,
26
Defendants ‘Statement of Discovery Needed.’” (Doc. 127.)
27
In this document, Plaintiff requests that the Court strike Defendants’ Statement, arguing
28
1
that “it has been inappropriately filed in [sic] address of matters not before the Court.” (Id.)
2
Plaintiff does not delineate specific legal objections; rather he argues that since Defendants’
3
Statement addresses the requests for admissions it “is merely a sheisty [sic] attempt by
4
Defendant’s [sic] Counsel to re-introduce issues previously decided against the Defendants, and
5
to do so in the most dilatory and untimely manner.” (Id., at p. 3.) Since Plaintiff does not cite
6
any legal authority other than a few Local Rules, which address discovery procedures and
7
motions in prisoner cases (see id., at pp. 3, 4), Plaintiff’s motion is construed as a motion to
8
strike under the Federal Rules of Civil Procedure 12 and 37.1
9
Both Federal Rules of Civil Procedure 12 and 37 provide for striking all, or portions of,
10
a pleading.2 Only pleadings are subject to motion to strike; improper motions, declarations or
11
other material not contained in pleadings cannot be stricken under Rule 12(f). Sidney -Vinstein
12
v. A.H. Robins Co. 697 F.2d 880, 885 (9th Cir. 1983). Defendants’ Statement is not a pleading
13
subject to a motion to strike under either Rule 12 or 37; rather it is a document which the
14
parties were ordered to file delineating what, if any, further discovery was necessary in light of
15
the case having been re-screened under the standards delineated in Iqbal. If this document were
16
to be stricken from the record, it would be as though Defendants had never filed a response to
17
this Court’s Order (see Docs. 109, 121) resulting in prejudice to Defendants for both failure to
18
respond to a court order and by removing their impressions of the remaining discovery issues
19
from consideration. Plaintiff does not cite any legal authority to support his request that this
20
statement from Defendants be stricken and the Court finds none applicable to this scenario.
21
Defendants’ Statement will not be struck from the record, but will be addressed for adequacy
22
and compliance with the orders requiring submission by separate, subsequent order addressing
23
possible remaining discovery issues. Likewise, while Plaintiff’s objections are being
24
disregarded and motion to strike denied here, they will be construed as Plaintiff’s opposition to
25
26
27
28
1
If Plaintiff intended to pursue this motion under some other legal standard he has only himself to blame
for failing to cite it in his motion.
2
Federal Rule of Civil Procedure 7(a) defines allowed pleadings.
1
Defendants’ Statement when the necessity of additional discovery is addressed.
2
Accordingly, Plaintiff’s “Motion to Strike From the Record, Defendants’ Statement of
3
Discovery Needed” (Doc. 127), filed July 13, 2011, is hereby DENIED and since Plaintiff did
4
not delineate any legal objections to Defendants’ statement to be ruled on, all such “objections”
5
he intended to raise are hereby DISREGARDED.
6
7
8
IT IS SO ORDERED.
9
Dated:
icido3
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
December 13, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?