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)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
THEON OWENS,
12
13
14
No. 2: 16-cv-2750 JAM KJN P
Plaintiff,
v.
ORDER
JOSEPH DEGAZIO, et al.,
15
Defendants.
16
17
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant
18
to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to strike. (ECF No. 60.)
19
For the reasons stated herein, defendants’ motion to strike is denied.
20
On October 3, 2017, the undersigned recommended that defendants’ motion to dismiss
21
pursuant to Federal Rule of Civil Procedure 12(b)(6) be granted in part and denied in part. (ECF
22
No. 49.) On October 11, 2017, defendants filed objections to the findings and recommendations.
23
(ECF No. 50.)
24
On November 27, 2017, plaintiff filed objections to the findings and recommendations
25
and a reply to defendants’ objections. (ECF No. 55, 56.) On December 4, 2017, plaintiff filed
26
amended objections, an amended reply to defendants’ objections and a declaration by inmate
27
Sanchez. (ECF Nos. 57, 58, 59.)
28
Defendants move to strike the three pleadings filed by plaintiff on December 4, 2017, on
1
1
the grounds that they not authorized. (ECF No. 60.) Defendants are correct that amended
2
objections and an amended reply to objections are not permitted by the Federal Rules of Civil
3
Procedure and Local Rules. However, in the original objections, plaintiff states that he did not
4
receive the objections. Plaintiff states that his original objections were based on his review of
5
defendants’ objections.
6
On December 14, 2017, the undersigned directed the Clerk of the Court to re-serve the
7
findings and recommendations on plaintiff. (ECF No. 61.) The undersigned granted plaintiff
8
thirty days to either file new objections or inform the court that he intended to stand on either the
9
original or amended objections. (ECF No. 61.)
10
On January 5, 2018, plaintiff filed a pleading stating that he intends to stand on the
11
amended objections. (ECF No. 63.) Plaintiff states that he prepared the amended findings and
12
recommendations after “finally” receiving the findings and recommendations from prison
13
officials. Accordingly, the undersigned will forward to the district court plaintiff’s amended
14
objections as well as plaintiff’s amended reply to defendants’ objections. Defendants’ motion to
15
strike these pleadings is denied. Defendants will be granted an opportunity to file a reply to the
16
amended objections.
17
In his January 5, 2018 pleading, plaintiff states that he did not intend the declaration of
18
inmate Sanchez to be filed in support of his objections. Plaintiff indicates that the declaration of
19
inmate Sanchez was filed in support of his claim. Because the declaration was not filed in
20
support of the objections, the motion to strike this pleading is denied.
21
Accordingly, IT IS HEREBY ORDERED that:
22
1. Defendants’ motion to strike (ECF No. 60) is denied;
23
2. Defendants are granted fourteen days from the date of this order to file a reply to
24
plaintiff’s amended objections.
25
Dated: January 18, 2018
26
27
Owen2750.ord.kc
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?