Mwanza v. Foster et al

Filing 107

ORDER denying Defendants' ECF No. 103 Motion to Strike. Signed by Magistrate Judge William G. Cobb on 9/19/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TACUMA J. M’WANZA,
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Plaintiff,
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vs.
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DEPUTY DIRECTOR FOSTER, et al.,
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Defendants.
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______________________________________)

3:14-cv-00331-MMD-WGC
ORDER
Re: ECF No. 103

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Before the court is Defendants’ Motion to Strike the Affidavit of Kenny Richard. (ECF Nos.
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103, 103-1 to 103-7.) Plaintiff has not filed a response.1

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Defendants filed their motion for summary judgment on March 16, 2017. (ECF Nos. 86, 86-1
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to 86-13.) Plaintiff filed his response on April 17, 2017. (ECF No. 92.)
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Defendants then sought an extension of time to file their reply brief. (ECF No. 95.) The court
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granted this motion, ordering the reply brief to be filed by May 4, 2017. (ECF No. 96.) Defendants never
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filed a reply brief.
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On May 22, 2017, Plaintiff filed a request for leave to submit the affidavit of Kenny Richard2 as

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an exhibit to his response to the pending dispositive motion. (ECF Nos. 100, 100-1.) The court granted
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Local Rule 7-2(d) provides that the failure to file a response to a motion constitutes consent to grant the motion;
however, this does not apply to a response to a motion filed under Rule 56. Defendants move to strike a document filed in
connection with a response to a motion for summary judgment; therefore, the court will not apply Local Rule 7-2(d), and will
consider the merits of the motion to strike.
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According to Defendants, the inmate’s correct name is Richard R. Kenny, although they acknowledge that the
inmate “inconsistently interchanges his surname with his given name.” (ECF No. 103 at 2 n. 2.) The court will refer to him
as Mr. Richard, since that is how he is identified in Plaintiff’s motion and the affidavit.

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the request. (ECF No. 101.)

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The affidavit provides a description of events in October of 2013, which corroborate Plaintiff’s

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version of events supporting his Fourth Amendment claim in Count III of his Second Amended

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Complaint. (ECF No. 100-1.)

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In addition to not filing a reply brief in support of their dispositive motion, Defendants did not

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seek reconsideration of the court’s order granting Plaintiff leave to file the affidavit of Mr. Richard.

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Instead, they waited three months and filed a motion to strike the affidavit on August 29, 2017.

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(ECF Nos. 103, 103-1 to 103-7.)

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Defense counsel asserts that after the motion for leave and the affidavit were reviewed, counsel

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questioned the authenticity of the affidavit and its veracity because the handwriting resembles Plaintiff’s,

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and the signature on the affidavit does not match the signature provided by Mr. Richard in other

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documentation submitted within the prison. Defense counsel attempted to schedule a telephone

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conference with the inmate, but Mr. Richard refused to participate. Defendants state they are not

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handwriting analysts and cannot confirm whether Plaintiff or Mr. Richard signed the affidavit, and did

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not have a procedural vehicle to question Mr. Richard about its authenticity because Plaintiff did not

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identify him as a witness. Therefore, Defendants ask the court to strike the affidavit on the grounds that

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it appears to be forged and because it was submitted after briefing was closed. Alternatively, Defendants

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request the court to conduct an evidentiary hearing requiring Plaintiff to establish the affidavit’s

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authenticity.

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While Federal Rule of Civil Procedure 12(f) provides authority for the court to strike "redundant,

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immaterial, impertinent, or scandalous matter" from a pleading, it does not authorize the court to strike

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material contained in other documents filed with the court. See Fed. R. Civ. P. 12(f). Courts, however,

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have inherent powers to control their dockets, see Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402,

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404 (9th Cir. 2010) (citations omitted), and to "achieve the orderly and expeditious disposition of cases."

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Chambers v. Nasco, Inc., 501 U.S. 32, 43 (1991). "This includes the power to strike items from the

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docket as a sanction for litigation conduct." Ready, 627 F.3d at 404 (citations omitted); see also Wallace

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v. U.S.A.A. Life General Agency, Inc., 862 F.Supp.2d 1062, 1068 (D. Nev. 2012) (citing Ready, 627 F.3d

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at 404). "Such power is indispensable to the court's ability to enforce its orders, manage its docket, and
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regulate insubordinate...conduct." Id. (citing Mazzeo v. Gibbons, No. 2:08-cv-01387-RLH-PAL, 2010

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WL 3910072, at * 2 (D. Nev. Sept. 30, 2010)).

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Insofar as Defendants ask the court to strike the affidavit because it was submitted after briefing

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on the motion for summary judgment was closed, Defendants’ motion is denied. As indicated above,

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Defendants were granted an extension of time to file their reply brief, but did not do so. Shortly after the

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deadline to file the reply brief passed, Plaintiff sought leave of court to file Mr. Richard’s affidavit. The

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court granted the motion. While discouraged, this is permissible under Local Rule 7-2(b). Their claim

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that the filing after briefing was closed somehow prejudiced them is belied by the fact that they waited

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three months to move to strike the affidavit.

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As to the second ground asserted for striking the affidavit, the court agrees that the signature on

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the affidavit (ECF No. 100-1 at 2) does not match the signature of Mr. Richard on other documents

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submitted to NDOC (see ECF Nos. 103-2 at 2, 103-3 at 2, 103-4 at 2). The court, however, is also not

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a handwriting analyst or expert and cannot determine whether it is Plaintiff’s handwriting, Mr. Richard’s

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or someone else’s. Defendants assert that the handwriting resembles Plaintiff’s in earlier filings, pointing

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to ECF No. 12 at 5, but upon comparing the handwriting in the affidavit with Plaintiff’s handwriting

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there, the court does not perceive the resemblance. On this record, the court cannot determine that the

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affidavit should be stricken.

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The court declines to conduct an evidentiary hearing on this issue because the court does not need

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to rely on the affidavit in connection with its determination of Defendants’ motion for summary

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judgment. If Plaintiff attempts to present the affidavit as an exhibit at trial, Defendants will have an

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opportunity to contest its authenticity.

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Therefore, Defendants’ Motion to Strike (ECF No. 103) is DENIED.

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IT IS SO ORDERED.

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DATED: September 19, 2017.

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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