Lipsey v. Reddy et al

Filing 52

ORDER STRIKING 42 Plaintiff's Reply to Answer and ORDER Requiring Defendants to Respond to Settlement Conference Within Fourteen (14) Days signed by Magistrate Judge Barbara A. McAuliffe on 6/12/2018. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

CHRISTOPHER LIPSEY, JR.,

13
14
15

Plaintiff,
vs.
DR. REDDY, et al.,

16

Defendants.

17

)
)
)
)
)
)
)
)
)
)
)
)

1:17-cv-00569-LJO-BAM (PC)
ORDER STRIKING PLAINTIFF’S REPLY
TO ANSWER
ORDER REQUIRING DEFENDANTS TO
RESPOND TO SETTLEMENT
CONFERENCE REQUEST
[Doc. 42]

18

I.

Introduction and Background

19

Plaintiff Christopher Lipsey is a state prisoner proceeding pro se and in forma pauperis in

20

this civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s third

21

amended complaint against Defendants Hernandez, Celedon, and Mancilla for excessive force in

22

violation of the Eighth Amendment.

23

On February 1, 2018, Defendants filed an answer to Plaintiff’s third amended complaint.

24

(Doc. 40.) The Court issued a discovery and scheduling order on February 2, 2018. (Doc. 41.)

25

On March 29, 2018, Plaintiff filed a document titled, “Summary Judgment &/or

26

adjudication request in respond (sic) to defendants’ answer.” (Doc. 42.) Defendants filed a

27

response on April 16, 2018, (Doc. 44), and Plaintiff filed a reply to the response on May 18,

28

2018, (Doc. 48.) Plaintiff’s filing is deemed submitted.

1

1

II.

Reply to Answer

2

Plaintiff’s filing, although labeled as a request for summary judgment or adjudication, is

3

in substance a reply to Defendants’ answer. Specifically, Plaintiff sets forth a response to each

4

of Defendants’ affirmative defenses in the answer and contests those defenses.

5

In relevant part, the Federal Rules of Civil Procedure provide that there shall be a

6

complaint, an answer to a complaint, and, if the court orders one, a reply to an answer. Fed. R.

7

Civ. P. 7(a). As stated above, in reviewing Plaintiff’s filing, it seeks to generally deny the

8

answer and the defenses raised in the answer, and is therefore a reply to the answer. Plaintiff did

9

not seek leave to file any reply to the answer, the Court has not ordered a reply to Defendants’

10

answer, and the Court declines to require any reply to the answer.
Accordingly, Plaintiff’s filing made on March 29, 2018 is construed as a reply to

11
12

Defendants’ answer to the third amended complaint, and shall be stricken from the record.

13

III.

Request for Settlement Conference

14

In Plaintiff’s filing, he asserts a desire to engage in a settlement conference. As a result,

15

the Court finds it appropriate to inquire as to whether Defendants believe, in good faith, that

16

settlement in this case is a possibility and whether the parties are interested in having a

17

settlement conference scheduled by the Court.

18

IV.

19

Accordingly, it is HEREBY ORDERED that:

20

1.

21

Conclusion and Order

Plaintiff’s filing on March 29, 2018 (Doc. 42) is construed as a reply to

Defendants’ answer to the third amended complaint, and is stricken from the record;
2.

22

Within fourteen (14) days from the date of service of this order, Defendants shall

23

file a written response to this order regarding whether a settlement conference would benefit this

24

matter;
3.

25

Defendant may address any scheduling issues and/or security and transport

26

concerns in their response, if necessary; and

27

///

28

///

2

1

4.

If a settlement conference is agreeable to all parties, then the Court will issue a

2

separate order setting the conference date and indicating each of the parties’ responsibilities

3

regarding the settlement conference.

4
5
6
7

IT IS SO ORDERED.
Dated:

/s/ Barbara

June 12, 2018

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3