Owens v. Defazio et al

Filing 64

ORDER signed by Magistrate Judge Kendall J. Newman on 1/18/2018 DENYING 60 Motion to Strike. Defendants granted 14 days from the date of this order to file a reply to Plaintiff's amended objections. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THEON OWENS,

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No. 2: 16-cv-2750 JAM KJN P
Plaintiff,

v.

ORDER

JOSEPH DEGAZIO, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to strike. (ECF No. 60.)

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For the reasons stated herein, defendants’ motion to strike is denied.

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On October 3, 2017, the undersigned recommended that defendants’ motion to dismiss

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pursuant to Federal Rule of Civil Procedure 12(b)(6) be granted in part and denied in part. (ECF

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No. 49.) On October 11, 2017, defendants filed objections to the findings and recommendations.

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(ECF No. 50.)

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On November 27, 2017, plaintiff filed objections to the findings and recommendations

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and a reply to defendants’ objections. (ECF No. 55, 56.) On December 4, 2017, plaintiff filed

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amended objections, an amended reply to defendants’ objections and a declaration by inmate

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Sanchez. (ECF Nos. 57, 58, 59.)

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Defendants move to strike the three pleadings filed by plaintiff on December 4, 2017, on
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the grounds that they not authorized. (ECF No. 60.) Defendants are correct that amended

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objections and an amended reply to objections are not permitted by the Federal Rules of Civil

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Procedure and Local Rules. However, in the original objections, plaintiff states that he did not

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receive the objections. Plaintiff states that his original objections were based on his review of

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defendants’ objections.

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On December 14, 2017, the undersigned directed the Clerk of the Court to re-serve the

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findings and recommendations on plaintiff. (ECF No. 61.) The undersigned granted plaintiff

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thirty days to either file new objections or inform the court that he intended to stand on either the

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original or amended objections. (ECF No. 61.)

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On January 5, 2018, plaintiff filed a pleading stating that he intends to stand on the

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amended objections. (ECF No. 63.) Plaintiff states that he prepared the amended findings and

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recommendations after “finally” receiving the findings and recommendations from prison

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officials. Accordingly, the undersigned will forward to the district court plaintiff’s amended

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objections as well as plaintiff’s amended reply to defendants’ objections. Defendants’ motion to

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strike these pleadings is denied. Defendants will be granted an opportunity to file a reply to the

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amended objections.

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In his January 5, 2018 pleading, plaintiff states that he did not intend the declaration of

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inmate Sanchez to be filed in support of his objections. Plaintiff indicates that the declaration of

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inmate Sanchez was filed in support of his claim. Because the declaration was not filed in

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support of the objections, the motion to strike this pleading is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ motion to strike (ECF No. 60) is denied;

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2. Defendants are granted fourteen days from the date of this order to file a reply to

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plaintiff’s amended objections.

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Dated: January 18, 2018

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