Lynn v. Maddox et al

Filing 201

MEMORANDUM AND ORDER denying as moot 168 Motion to Strike. Signed by District Judge Monti L. Belot on 12/3/2014.Mailed to pro se party Patrick Lynn by regular mail. (smg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PATRICK C. LYNN,
Plaintiff,
v.
LEONARD MADDOX,
Defendant.

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CIVIL ACTION
No.

12-3104-MLB

MEMORANDUM AND ORDER
This case comes before the court on defendant’s motion to strike
plaintiff’s response.

(Doc. 168).

and is ripe for decision.
I.

The motion has been fully briefed

(Doc. 170).

Facts and Procedural History
Plaintiff, a prisoner, contends that defendant Maddox, a guard,

violated his Eighth Amendment right to be free from excessive force.
The complaint alleges that defendant kneed plaintiff in the mouth
resulting in injuries to plaintiff’s teeth. On May 1, 2013, the court
denied defendant’s motion to dismiss.

The parties proceeded to

discovery and the dispositive motion deadline was set for March 7,
2014.

In anticipation of that deadline, plaintiff filed a “Response

and Supporting Arguments that Defendant is Absolutely Not Entitled to
Qualified Immunity.” (Doc. 160). Two days later, defendant submitted
his motion for summary judgment.
On March 13, 2014, plaintiff sought additional time to file a
response to defendant’s motion.

The court granted the request and

ordered plaintiff to comply with Rule 56.

The court notified

plaintiff that failure to comply may result in sanctions and/or

dismissal.

(Doc. 167).

ultimately

filed

a

Plaintiff sought additional extensions and

response

and

memorandum

(Docs.

185,

Plaintiff’s response, however, does not comply with Rule 56.

186).
In his

response, plaintiff fails to respond to defendant’s statement of
facts.
II.

Analysis
Defendant moves to strike plaintiff’s premature response on the

basis that it is immaterial and redundant, citing Fed. R. Civ. P.
12(f).

Rule 12(f) provides that the court may order stricken from

any pleading “any redundant, immaterial, impertinent or scandalous
matter.”

Because striking an entire pleading is a drastic remedy,

motions to strike under Rule 12(f) are generally disfavored. Thompson
v. Jify Lube Int'l, Inc., No. 05–1203, 2005 WL 2219325, at *1 (D. Kan.
Sept. 13, 2005); Pencro Assoc., Inc. v. Sprint Corp., No. 04–2459,
2005 WL 950626, at *1 (D. Kan. Apr. 25, 2005); Nwakpuda v. Falley's,
Inc., 14 F. Supp.2d 1213, 1215–16 (D. Kan. 1998).
There is no provision in the rules for filing a response prior
to an opposing party filing a motion.

While plaintiff is proceeding

pro se, he is not unfamiliar with this court’s rules and the Federal
Rules of Civil Procedure. In this district alone, plaintiff has filed
15 cases.

After a review of those cases, it is clear that plaintiff

understands that filing a response is not appropriate until the
opposing party has properly filed a motion. Therefore, the court will
not consider plaintiff’s premature response.
III. Conclusion
Defendant’s motion to strike is denied as moot.

(Doc. 168).

Plaintiff must file a response to defendant’s motion for summary
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judgment that complies with the rules of this court and Rule 56 by
January 5, 2015.

Plaintiff’s pro se status does not relieve him of

his obligation to follow procedural rules.
not be extended for any reason.

The January 5 date will

Plaintiff’s response will be limited

to 15 double-spaced pages in legible writing.
plaintiff used in Doc. 185-1 is unacceptable.

Tiny writing such as
Any exhibits must

comply with the rules and cannot contain argument, nor may they be
used to circumvent the page limit for the response.
The response must address defendant’s statement of facts.

Any

fact which is not properly controverted by plaintiff will be deemed
uncontroverted.

Plaintiff may set forth an additional statement of

facts if he deems it necessary.

Plaintiff’s response to defendant’s

statement of facts and additional facts, if any, shall not contain
argument.

Plaintiff may also include an argument section in his

response.

The response will be limited to the issue of qualified

immunity.

The facts and arguments contained in Docs. 185 and 186

adequately address the issue of exhaustion and the court requires no
further briefing on the issue.
Failure by plaintiff to comply with the procedural requirements
of this order will result in dismissal of this case, with prejudice,
without further notice.
this regard.

Plaintiff previously has been admonished in

(Doc. 167).

IT IS SO ORDERED.
Dated this

2nd

day of December 2014, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
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