Leos v. Rasey et al

Filing 68

ORDER Adopting 62 Findings and Recommendations on Plaintiff's Motion to Strike Defendants' Affirmative Defenses re 51 , 52 , signed by Chief Judge Lawrence J. O'Neill on 3/27/17. 21-Day Deadline. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAMES LEOS, 10 11 12 13 14 Case No. 1:14-cv-02029-LJO-JLT (PC) Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ON PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ AFFIRMATIVE DEFENSES RASEY, et al., (Docs. 51, 52, 62) Defendants. TWENTY-ONE DAY DEADLINE 15 Plaintiff, James Leos, is a state prisoner proceeding pro se and in forma pauperis in this 16 civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 17 Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. 18 On March 2, 2017, the Magistrate Judge issued Findings and Recommendations (F&R) on 19 20 21 Plaintiff’s motion to strike Defendants’ affirmative defenses, which recommended to grant Plaintiff’s motion and strike Defendants’ sixth affirmative defense with leave to amend and to deny Plaintiff’s motion as to Defendants’ first, second, third, and fourth affirmative defenses. 22 (Doc. 62.) This was served on the parties that same day and contained notice that any objections 23 to it were to be filed within fourteen days. (Id.) Plaintiff requested and was granted an extension 24 of time to file objections, with which he complied. (Docs. 64, 65, 67.) 25 In his objections, Plaintiff repeats statements of law with legal citations from the F&R, 26 (compare Doc. 67, p. 2 with Doc. 62, p. 2), and then, as asserted in his motion, argues that 27 28 1 1 Defendants’ affirmative defenses one through four lack factual basis.1 2 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 3 de novo review of this case. Having carefully reviewed the entire file, the Court finds the 4 Findings and Recommendations to be supported by the record and by proper analysis. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. 7 The Findings and Recommendations, filed March 2, 2017 (Doc. 62), is adopted in full; 8 2. 9 Plaintiff’s motion to strike is GRANTED as to Defendants’ Sixth Affirmative Defense, which is STRICKEN with leave to amend and is DENIED as to 10 Defendants’ First, Second, Third, and Fourth Affirmative Defenses; 11 3. 12 If Defendants desire to amend their Sixth Affirmative Defense, they SHALL do so within twenty-one (21) days of the date of service of this order; and 13 4. This case is referred back to the Magistrate Judge for further proceedings. 14 15 IT IS SO ORDERED. 16 Dated: /s/ Lawrence J. O’Neill _____ March 27, 2017 UNITED STATES CHIEF DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 1 28 Plaintiff correctly notes that Defendants’ First Amended Answer contained only six affirmative defenses, not twelve as noted in the F&R. This typographical error is of no consequence to the substantive analysis in the F&R. 2

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