McCoy v. Kelso, et al.
Filing
51
ORDER DENYING 48 Defendants' Motion to Strike Plaintiff's Request for Judicial Notice, signed by Magistrate Judge Dennis L. Beck on 7/14/2014. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSEPH RAY McCOY,
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Plaintiff,
v.
GONZALES, et al.,
Defendants.
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Case No.: 1:12cv00983 AWI DLB (PC)
ORDER DENYING DEFENDANTS’ MOTION
TO STRIKE PLAINTIFF’S REQUEST
FOR JUDICIAL NOTICE
(Document 48)
Plaintiff Joseph Raymond McCoy (“Plaintiff”) is a state prisoner proceeding pro se and in
forma pauperis in this civil rights action. Plaintiff filed his complaint on June 19, 2012. This action is
proceeding against Defendants Stronach, Gonzales, LeMay, Beltran, Fisher, Snell and Tann for
violation of the Eighth Amendment.
On June 19, 2014, Defendants filed a motion to strike Plaintiff’s May 29, 2014, request for
judicial notice. The motion is suitable for decision without an opposition. Local Rule 230(l).
DISCUSSION
Defendants move to strike Plaintiff’s May 29, 2014, request for judicial notice pursuant to
Federal Rule of Civil Procedure 12(f), which authorizes courts to strike “from any pleading any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
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Defendants’ reliance on Federal Rule of Civil Procedure 12(f) is misplaced. The request for
judicial notice is not a pleading. Fed. R. Civ. P. 7(a), 12(f); Sidney-Vinstein v. A.H. Robins Co., 697
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F.2d 880, 885-86 (9th Cir. 1983). Notwithstanding that deficiency, “ [m]otions to strike are disfavored
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and infrequently granted,” Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1170 (E.D. Cal. 2005), and
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moving for relief which is markedly disproportional to the offense committed, as here, results in an
unnecessary drain on the Court’s resources.
In this instance, it appears that the May 29, 2014, request for judicial notice is connected to
Plaintiff’s motion to appoint counsel, filed on the same day. However, even if the documents are not
connected, the Court is capable of determining the relevancy of the documents and/or evidence
submitted, and the filing of the request by a pro se litigant does not justify striking the document in its
entirety.
Accordingly, Defendants’ motion to strike is DENIED.
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IT IS SO ORDERED.
Dated:
/s/ Dennis
July 24, 2014
L. Beck
UNITED STATES MAGISTRATE JUDGE
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