Gil v. Spalding et al

Filing 39

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/7/2017 ORDERING Clerk of Court to assign a district judge and RECOMMENDING Plaintiff's 36 request to strike defendants' answer be denied. Referred to Judge Garland E. Burrell, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO GIL, 12 Plaintiff, 13 14 No. 2:16-cv-0587 KJN P v. ORDER AND FINDINGS AND RECOMMENDATIONS S. SPAULDING, et al., 15 Defendants. 16 Plaintiff is a state prisoner, proceeding pro se, in this civil rights action for relief pursuant 17 18 to 42 U.S.C. § 1983. On May 12, 2017, plaintiff filed a document styled “Objection to 19 Defendants’ Answer to the Complaint Pursuant to Federal Rules and Civil Procedure Rule 12.” 20 (ECF No. 36.) Plaintiff claims he opposes and objects to the answer on the grounds that it is 21 ambiguous and vague, and requests that the answer be dismissed and the court “rule that there be 22 a trial.” (ECF No. 36 at 2.) Plaintiff relies on Pliscou v. Holtville Unified School Dist., 411 F. 23 Supp. 842, 850 (S.D. Cal. Feb. 13, 1976), claiming the answer “does not provide explicit 24 standards for its enforcement.” (ECF No. 36 at 1, 2.) Defendants construe plaintiff’s filing as a 25 request to strike the answer, and argue it should be denied because plaintiff does not provide any 26 authority for the requested relief. 27 //// 28 //// 1 1 Plaintiff’s filing is not entirely clear. However, to the extent plaintiff is attempting to file 2 a reply to defendants’ answer, such effort is unavailing. Rule 7(a) of the Federal Rules of Civil 3 Procedure provides: 4 (a) Pleadings. Only these pleadings are allowed: 5 (1) a complaint; 6 (2) an answer to a complaint; 7 ... 8 (7) if the court orders one, a reply to an answer. 9 10 11 Fed. R. Civ. P. 7(a) (emphasis added). The court has not ordered plaintiff to reply to defendants’ answer and declines to make such an order. To the extent plaintiff attempts to strike defendants’ answer, such attempt is similarly 12 unavailing. Under Federal Rule of Civil Procedure 12(f), the Court may strike “an insufficient 13 defense or any redundant, immaterial, impertinent or scandalous” matter from the pleadings. Id.; 14 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (same) (citation 15 omitted). Motions to strike are disfavored, “because of the limited importance of pleading in 16 federal practice, and because they are often used as a delaying tactic.” Neilson v. Union Bank of 17 Cal., N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003). 18 Here, plaintiff fails to demonstrate that the court should strike the answer. Plaintiff does 19 not allege that the answer is redundant, immaterial, impertinent, or scandalous. In any event, the 20 court finds that the answer does not meet such criteria. Moreover, the Pliscou case, upon which 21 plaintiff relies, did not address a motion to strike an answer or affirmative defenses. Id., 411 F. 22 Supp. at 842. Rather, in Pliscou, the court addressed a high school student’s request for a 23 preliminary injunction enjoining the school district from interfering with the publication of an 24 official student newspaper. Id. Nothing in Pliscou supports a request to strike an answer under 25 Rule 12(f). In his objection, plaintiff mentions a motion to dismiss, but no motion to dismiss has 26 been filed in this action. Plaintiff’s complaint was not dismissed for failure to state a claim; 27 rather, defendants have filed an answer, and the court has issued its discovery and scheduling 28 order. If dispositive motions are addressed in plaintiff’s favor, the case will be set for trial. 2 1 Finally, as argued by defendants, plaintiff fails to provide support for his requested relief. Thus, 2 to the extent plaintiff requests the court strike defendants’ answer, such request should be denied. 3 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign 4 5 6 a district judge to this case; and IT IS RECOMMENDED that plaintiff’s request to strike defendants’ answer (ECF No. 36) be denied. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be filed and served within fourteen days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: June 7, 2017 16 17 /gil0587.77e 18 19 20 21 22 23 24 25 26 27 28 3

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