Ceasar v. Aguirre

Filing 27

FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's 22 Motion to Strike be Granted in Part and Denied in Part signed by Magistrate Judge Erica P. Grosjean on 03/23/2017. Referred to Judge O'Neill; Objections to F&R due by 4/10/2017.(Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 1:15-cv-00873-LJO-EPG (PC) WALTER D. CEASAR, III, 10 Plaintiff, 11 v. 12 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S MOTION TO STRIKE BE GRANTED IN PART AND DENIED IN PART E. AGUIRRE, 13 (ECF NO. 22) Defendant. 14 15 I. BACKGROUND 16 Walter D. Ceasar, III (“Plaintiff”) is an inmate in custody of the State of California 17 Department of Corrections and Rehabilitation and is currently confined at California Substance 18 Abuse and Treatment Facility (“CSATF”) at Corcoran State Prison (“CSP”) in Corcoran, 19 California, proceeding pro se and in forma pauperis with a civil rights action filed pursuant to 20 42 U.S.C. § 1983. (ECF Nos. 1, 9, 10, 11). Plaintiff moves to strike the affirmative defenses 21 set forth in the Answer of Defendant E. Aguirre (“Defendant”), a correctional officer. (ECF 22 Nos. 17, 22). 23 Plaintiff filed his Complaint on June 9, 2015. (ECF No. 1). Plaintiff’s allegations stem 24 from conduct that occurred while Plaintiff was incarcerated at CSP. Plaintiff alleges that, on 25 December 18, 2013, he informed Correctional Officer Reyna (“Reyna”) that he needed to move 26 out of his cell because he was having issues with his cellmate, inmate Gonzalez, and was 27 advised by Reyna to inform the floor manager the next day. 28 returning from breakfast, a fight ensued between inmate Gonzalez and Plaintiff. Plaintiff 1 On December 19, 2013, after 1 yelled for help, noticed Defendant looking at Plaintiff’s cell door, and even made eye contact 2 with Defendant, who then turned away. Plaintiff asserts that it was not until the alarm sounded 3 that Defendant went to Plaintiff’s cell and ordered both Plaintiff and inmate Gonzalez to “get 4 down.” 5 Plaintiff was taken to Hanford Regional Medical Center for treatment and observation. 6 He sustained swelling in his forehead and pain and stiffness in his neck from being attacked by 7 inmate Gonzalez. 8 After screening Plaintiff’s complaint, the Court found that Plaintiff has a cognizable 9 claim against Defendant for violation of the Eighth Amendment based upon failure to protect 10 11 Plaintiff from serious harm. (ECF No. 13, pg. 5). II. PLAINTIFF’S MOTION TO STRIKE 12 Defendant filed his Answer to Plaintiff’s Complaint on December 12, 2016 (ECF No. 13 17). Defendant denies seeing Plaintiff and inmate Gonzalez fighting in their cell, and further 14 denies failing to approach the cell to investigate. Plaintiff filed a Motion to Strike Defendant’s 15 affirmative defenses to Complaint on December 23, 2016 (ECF No. 22). Defendant’s 16 Opposition to Plaintiff’s Motion to Strike was filed on January 12, 2017. (ECF No. 23). 17 III. LEGAL STANDARD 18 Rule 12(f) of the Federal Rules of Civil Procedure allows a district court to “strike from 19 a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous 20 matter.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010); Fed. R. Civ. 21 P. 12(f). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and 22 money that must arise from litigating spurious issues by dispensing with those issues prior to 23 trial . . .” Everett H. v. Dry Creek Joint Elementary Sch. Dist., 5 F. Supp. 3d 1167, 1177 (E.D. 24 Cal. 2014) (citing Sidney–Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983)). 25 Before a motion to strike affirmative defenses may be granted, the Court “must be 26 convinced that there are no questions of fact, any questions of law are clear and not in dispute, 27 and that under no set of circumstances could the defense succeed.” Jones v. Sweeney, No. CV- 28 F-04-6214-AWI-DLB, 2006 WL 1439080, at *1 (E.D. Cal. May 24, 2006) (citing SEC v. 2 1 Sands, 902 F. Supp. 1149, 1165 (C.D. Cal. 1995)). “[C]ourts may not resolve disputed and 2 substantial factual or legal issues in deciding a motion to strike.” Whittlestone, 618 F.3d at 973 3 (internal quotation marks and alterations omitted). “In the absence of any apparent or declared 4 reason—such as undue delay, bad faith or dilatory motive on the part of the movant, undue 5 prejudice to the opposing party by virtue of allowance of the amendment, futility of 6 amendment—leave to amend should be “freely given.” Hall v. City of Los Angeles, 697 F.3d 7 1059, 1073 (9th Cir. 2012) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 8 222 (1962)) (internal quotations and punctuation omitted). 9 Plaintiff seeks to strike affirmative defenses one through nine because Defendants failed 10 to support them with facts. Defendants are required to “affirmatively state any avoidance or 11 affirmative defenses.” Fed. R. Civ. P. 8(c)(1). “In pleading an affirmative defense, a defendant 12 must comply with Rule 8’s requirement of a ‘short and plain’ statement to give the opposing 13 party fair notice of the defense and the grounds upon which it rests.” Barnes v. AT&T Pension 14 Ben. Paln Nonbargained Program, 718 F. Supp. 2d 1167 (N.D. Cal. 2010) (citing Wyshak v. 15 City National Bank, 607 F.2d 824, 827 (9th Cir. 1993)). “An affirmative defense is insufficient 16 as a matter of pleading if it fails to give plaintiff ‘fair notice.’” Sherwin-Williams Co. v. 17 Courtesy Oldsmobile- Cadillac, Inc., No. 1:15-CV-01137 MJS HC, 2016 WL 615335, at *2 18 (E.D. Cal. Feb. 16, 2016). “The key to determining the sufficiency of pleading an affirmative 19 defense is whether it gives plaintiff fair notice of the defense.” Simmons v. Navajo Cty., Ariz., 20 609 F.3d 1011, 1023 (9th Cir. 2010) (citing Wyshak, 607 F.2d at 827); Gomez v. J. Jacobo 21 Farm Labor Contractor, Inc., 188 F. Supp. 3d 986, 991–93 (E.D. Cal. 2016). “The ‘fair notice’ 22 required by the pleading standards only requires describing [an affirmative] defense in ‘general 23 terms.’” Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (quoting 5 Charles 24 Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1274 (3d ed. 1998)). 25 “Although ‘fair notice’ is a low bar that does not require great detail, it does require a defendant 26 to provide ‘some factual basis’ for its affirmative defenses. [Citations] Simply referring to a 27 doctrine or statute is insufficient to afford fair notice.” Gomez, 188 F. Supp. 3d at 992 (quoting 28 United States v. Gibson Wine Co., 2016 WL 1626988, *4–6 (E.D. Cal. Apr. 25, 2016)); 3 1 Dodson v. Munirs Co., No. CIV. S-13-0399 LKK, 2013 WL 3146818, at *2 (E.D. Cal. June 18, 2 2013) (providing that ”[f]air notice generally requires that the defendant identify the nature and 3 grounds for the affirmative defense, rather than plead a detailed statement of the facts upon 4 which the defense is based.”) 5 6 IV. ANALYSIS A. Motion to Strike 7 Plaintiff asserts that all nine of the affirmative defenses Defendant has pled in his 8 answer are insufficient because they fail to provide Plaintiff fair notice. Plaintiff suggests two 9 primary arguments why Defendant’s affirmative defenses should be stricken from the record. 10 First, Plaintiff claims that Defendant’s affirmative defenses are a boilerplate listing of 11 affirmative defenses, which are irrelevant to the claim asserted. Second, Plaintiff asserts that 12 Defendant has failed to allege sufficient facts to establish that the affirmative defenses are 13 plausible. Additionally, Plaintiff claims that Defendant uses only conclusory statements and 14 failed to allege any identifiable facts supporting the affirmative defenses. (ECF No. 22, p. 2). 15 B. Defendant’s Affirmative Defenses 16 On December 12, 2016, Defendant filed his answer to the Complaint, asserting the 17 following affirmative defenses: (1) punitive damages; (2) statute of limitations; (3) qualified 18 immunity; (4) res judicata and collateral estoppel; (5) failure to exhaust administrative 19 remedies; (6) plaintiff’s conduct contributory factor; (7) failure to mitigate damages; (8) 20 injunctive relief; and (9) reservation of right to amend defenses. (ECF 17, p. 4). All of 21 Defendant’s defenses are presented in conclusory fashion with no explanation of their 22 applicability to the facts of this case. 23 1. First Affirmative Defense: Punitive Damages 24 Defendant’s first affirmative defense is that “Plaintiff is not entitled to punitive damages 25 because the answering Defendant did not act with malicious intent to deprive him of any 26 constitutional right or to cause any other injury.” (ECF 17, p. 4). Plaintiff asserts that this 27 defense should be stricken because it denies allegations in the complaint or is “an assertion that 28 plaintiff cannot prove the elements of its claim.” 4 1 The Court agrees that this is not a proper affirmative defense; it is an assertion that 2 Plaintiff has not proved essential elements of his claim. Vargas v. Cty. of Yolo, No. 3 215CV02537TLNCKD, 2016 WL 3916329, at *5 (E.D. Cal. July 20, 2016) (quotations and 4 citations omitted). Therefore, the Court finds that Defendant has not met the pleading standard, 5 and recommends that Plaintiff’s Motion to Strike be GRANTED without leave to amend. 6 Defendant can challenge Plaintiff’s right to punitive damages without asserting this affirmative 7 defense. 8 2. Second Affirmative Defense: Statute of Limitations 9 Defendant’s second affirmative defense states “This action is barred by the applicable 10 statute of limitations.” (ECF No. 17, p. 4). This affirmative defense is listed in Rule 8(c)(1) of 11 the Federal Rules of Civil Procedure which allows for defenses on the basis of statute of 12 limitations dependent on the underlying statute of limitations. Fed. R. Civ. P. 8(c)(1). 13 Defendant has not identified a specific limitations period that would apply and has provided no 14 information about how Plaintiff’s claim is barred. The incident in question occurred on 15 December 19, 2013. (ECF No. 1, p 6). Plaintiff filed his Complaint on June 9, 2015, 17 months 16 following the incident. See Television Educ., Inc. v. Contractors Intelligence Sch., Inc., No. CV 17 2:16-1433-WBS-EFB, 2016 WL 7212791, at *2 (E.D. Cal. Dec. 12, 2016). Defendant’s 18 defense simply states “merely state[s] a doctrine or legal theory without any indication as to 19 how the doctrine may apply in this case.” Bird v. Zuniga, No. 115CV00910DADMJSPC, 2016 20 WL 7912005, at *3 (E.D. Cal. Nov. 30, 2016), report and recommendation adopted sub nom. 21 Bird v. Musleh, No. 115CV00910DADMJS, 2017 WL 272226 (E.D. Cal. Jan. 19, 2017). 22 The Court finds that this assertion of affirmative defense does not give sufficient notice 23 to the Plaintiff regarding the basis of the defense, especially considering the timing of the 24 complaint. Based upon the foregoing, the Court recommends Plaintiff’s Motion to Strike is 25 GRANTED as to this defense with leave to amend. 26 3. Third Affirmative Defense: Qualified Immunity 27 In his third affirmative defense, Defendant claims he is entitled to immunity or qualified 28 5 1 immunity. Plaintiff asserts in his Motion to Strike that Defendant is not an entity and he is 2 being sued in his individual capacity and likely would not be entitled to qualified immunity 3 (ECF No. 22, p. 4). 4 The U.S. Supreme Court has held that government officials performing discretionary 5 functions should be shielded from liability for civil damages insofar as their conduct does not 6 violate clearly established statutory or constitutional rights of which a reasonable person would 7 have known. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S. Ct. 2727, 2737, 73 L. Ed. 2d 396 8 (1982). 9 government officials sued in their individual capacities. Cmty. House, Inc. v. City of Boise, 10 Idaho, 623 F.3d 945, 965 (9th Cir. 2010) (citing Eng v. Cooley, 552 F.3d 1062, 1064 n. 1 (9th 11 Cir.2009); Kentucky v. Graham, 473 U.S. 159, 165–68 (1985)). See also, e.g., Wheaton v. 12 Webb-Petett, 931 F.2d 613, 619 (9th Cir. 1991) (finding that a section 1983 plaintiff could not 13 recover damages from a defendant sued in his individual capacity due to qualified immunity). 14 15 Contrary to Plaintiff’s assertion, qualified immunity is a defense available to Therefore, the Court recommends that Plaintiff’s Motion to Strike be DENIED as to this defense. 16 4. Fourth Affirmative Defense: Res Judicata or Collateral Estoppel 17 Defendant’s fourth affirmative defense states that “to the extent that Plaintiff has 18 previously litigated the issues raised in this Complaint, the Complaint and all causes of action 19 are barred by the doctrines of res judicata or collateral estoppel.” (ECF No. 17, p. 4). 20 Defendant fails to identify any prior action which would conceivably bar the present 21 action. Defendant should at least reference the cases or cases where Plaintiff has alleged similar 22 claims against it and/or obtained a judgment. See Gomez, 188 F. Supp. 3d at 1004. 23 24 Therefore, the Court recommends that the Plaintiff’s Motion to Strike be GRANTED as to this defense, with leave to amend. 25 5. Fifth Affirmative Defense: Exhaustion of Administrative Remedies 26 For his fifth affirmative defense, Defendant asserts that to the extent Plaintiff has failed 27 to exhaust available administrative remedies, his claims are barred by 42 U.S.C. § 1997e. (ECF 28 No. 17, p. 4). While Defendant is not required to provide specific facts supporting the defense, 6 1 he is required to provide some factual support which would provide fair notice to Plaintiff. 2 Dodson, CIV. S-13-0399 LKK, 2013 WL 3146818, at *2. Defendant admits that Plaintiff 3 submitted CDCR Form 602 on January 18, 2014 and continued with the CDCR review process 4 through March 24, 2015 at CSATF. (ECF No. 17 at 2-3). Defendant essentially asserts that he 5 does not know yet whether this defense applies, and will presumably make efforts to confirm 6 his claims. Leos v. Rasey, No. 114CV02029LJOJLTPC, 2016 WL 1162658, at *2 (E.D. Cal. 7 Mar. 24, 2016). 8 9 The Court finds Plaintiff has been placed on fair notice of this defense and recommends that Plaintiff’s Motion to Strike be DENIED. 10 6. Sixth Affirmative Defense: Plaintiff’s Own Conduct 11 Defendant’s sixth affirmative defense states that “Plaintiff’s own conduct has 12 contributed to his damages, if any.” (ECF No. 17, p. 4). Plaintiff asserts that Defendant failed 13 to set forth any facts suggesting why Plaintiff’s conduct has contributed to his damages, and 14 that Defendant has failed to provide any legal support for this possibility. (ECF No. 22, pgs. 4- 15 5). While Defendant has failed to expressly provide any legal or factual support for this 16 possibility, he does deny that he failed to respond to or disregarded Plaintiff’s cries for help. 17 (ECF No. 17, p. 3). 18 While Defendant is not required to provide specific details of the defense, he is required 19 to set forth some factual support for the claim. See Leos, No. 114CV02029LJOJLTPC, 2016 20 WL 1162658, at *2. Accordingly, the Court recommends that Plaintiff’s Motion to Strike be 21 GRANTED with leave to amend. 22 7. Seventh Affirmative Defense: Mitigate Damages 23 Defendant’s seventh affirmative defense states, “To the extent Plaintiff failed to take 24 reasonable actions to mitigate his damages, if any such damages occurred, any recovery against 25 Defendant must be reduced by the amount of damage that Plaintiff could have presented 26 through the exercise of reasonable diligence.” (ECF No. 17, p. 4). Although this statement 27 does not provide a factual basis, the Court finds that it provides reasonable notice of the issue 28 for purposes of discovery. 7 As such, the Court recommends that Plaintiff’s Motion to Strike be DENIED as to this 1 2 defense. 3 8. Eighth and Ninth Affirmative Defenses: Injunctive Relief and Other Potential 4 Defenses 5 In his eighth affirmative defense, Defendant claims that Plaintiff is not entitled to 6 injunctive relief. Plaintiff asserts that this defense should be stricken because Defendant fails 7 to set forth any facts suggesting why Plaintiff is not entitled to injunctive relief. 8 9 However, the Court notes that Plaintiff has not prayed for injunctive relief in his Complaint. Defendant purports to identify a defect in Plaintiff’s complaint concerning 10 injunctive relief. However, “an allegation that plaintiff has not met its burden of proof as to an 11 element plaintiff is required to prove is not an affirmative defense.” Wild v. Benchmark Pest 12 Control, Inc., No. 1:15-CV-01876-JLT, 2016 WL 1046925, at *7 (E.D. Cal. Mar. 16, 2016) 13 (citing Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002)) (internal 14 quotations and citations omitted.) The Court agrees that this is not a proper affirmative defense. 15 The ninth affirmative defense claims that Defendant cannot fully anticipate all 16 affirmative defenses that may be applicable to this matter and as such, reserves the right to 17 assert additional affirmative defenses to the extent that such affirmative defenses are 18 applicable. 19 114CV02029LJOJLTPC, 2016 WL 1162658, at *3. (“The right to assert affirmative defenses 20 depends upon whether they have been pleaded in the answer and the right to amend an answer 21 to add further affirmative defenses depends upon Rule 15 and the scheduling order.”). 22 23 24 This ninth defense is not an affirmative defense. Leos, No. Thus, the statements set forth under the eighth and ninth defenses are improper as defenses and the Court recommends that these defenses be STRICKEN. V. CONCLUSION 25 Based on the forgoing, the Court HEREBY RECOMMENDS: 26 Plaintiff's Motion to Strike the affirmative defenses is GRANTED IN PART and 27 28 DENIED IN PART as follows: A. Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses is GRANTED 8 1 2 3 as to the Second, Fourth, and Sixth Affirmative Defenses with leave to amend; B. Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses is GRANTED as to the First, Eighth, and Ninth Affirmative Defenses without leave to amend. 4 C. The Motion is DENIED as to the Third, Fifth, and Seventh Affirmative Defenses. 5 These Findings and Recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(1). Within fourteen (14) 7 days after being served with these Findings and Recommendations, any party may file written 8 objections with the Court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the 10 objections shall be served and filed within ten days after service of the objections. The parties 11 are advised that failure to file objections within the specified time may waive the right to appeal 12 the District Court’s Order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 13 14 15 IT IS SO ORDERED. Dated: March 23, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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