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(PC) Owens v. Defazio, 2: 16-cv-2750 JAM KJN P. (2018)

Court: District Court, E.D. California Number: infdco20180119610 Visitors: 22
Filed: Jan. 18, 2018
Latest Update: Jan. 18, 2018
Summary: ORDER KENDALL J. NEWMAN , Magistrate Judge . Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. 1983. Pending before the court is defendants' motion to strike. (ECF No. 60.) For the reasons stated herein, defendants' motion to strike is denied. On October 3, 2017, the undersigned recommended that defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) be granted in part and denied in part. (ECF No. 49.)
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ORDER

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to strike. (ECF No. 60.) For the reasons stated herein, defendants' motion to strike is denied.

On October 3, 2017, the undersigned recommended that defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) be granted in part and denied in part. (ECF No. 49.) On October 11, 2017, defendants filed objections to the findings and recommendations. (ECF No. 50.)

On November 27, 2017, plaintiff filed objections to the findings and recommendations and a reply to defendants' objections. (ECF No. 55, 56.) On December 4, 2017, plaintiff filed amended objections, an amended reply to defendants' objections and a declaration by inmate Sanchez. (ECF Nos. 57, 58, 59.)

Defendants move to strike the three pleadings filed by plaintiff on December 4, 2017, on the grounds that they not authorized. (ECF No. 60.) Defendants are correct that amended objections and an amended reply to objections are not permitted by the Federal Rules of Civil Procedure and Local Rules. However, in the original objections, plaintiff states that he did not receive the objections. Plaintiff states that his original objections were based on his review of defendants' objections.

On December 14, 2017, the undersigned directed the Clerk of the Court to re-serve the findings and recommendations on plaintiff. (ECF No. 61.) The undersigned granted plaintiff thirty days to either file new objections or inform the court that he intended to stand on either the original or amended objections. (ECF No. 61.)

On January 5, 2018, plaintiff filed a pleading stating that he intends to stand on the amended objections. (ECF No. 63.) Plaintiff states that he prepared the amended findings and recommendations after "finally" receiving the findings and recommendations from prison officials. Accordingly, the undersigned will forward to the district court plaintiff's amended objections as well as plaintiff's amended reply to defendants' objections. Defendants' motion to strike these pleadings is denied. Defendants will be granted an opportunity to file a reply to the amended objections.

In his January 5, 2018 pleading, plaintiff states that he did not intend the declaration of inmate Sanchez to be filed in support of his objections. Plaintiff indicates that the declaration of inmate Sanchez was filed in support of his claim. Because the declaration was not filed in support of the objections, the motion to strike this pleading is denied.

Accordingly, IT IS HEREBY ORDERED that:

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

2. Defendants are granted fourteen days from the date of this order to file a reply to plaintiff's amended objections.

Source:  Leagle

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