-SKO (PC) Washington v. Adams et al, No. 1:2009cv01666 - Document 54 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Plaintiff's 51 Motion to Strike be Denied and Surreply be Disregarded signed by Magistrate Judge Sheila K. Oberto on 11/28/2011. Referred to Judge Ishii; Objections to F&R due by 1/3/2012. (Flores, E)
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-SKO (PC) Washington v. Adams et al Doc. 54 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 CHRISTOPHER N. WASHINGTON, CASE NO. 1:09-cv-01666-AWI-SKO PC 9 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION TO STRIKE BE DENIED AND SURREPLY BE DISREGARDED 10 v. 11 DERRAL G. ADAMS, 12 (Doc. 51) Defendant. 13 THIRTY-DAY OBJECTION DEADLINE / 14 15 Plaintiff Christopher N. Washington, a state prisoner proceeding pro se and in forma 16 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 21, 2009. On 17 August 24, 2011, Defendant filed a motion to dismiss. Plaintiff filed an opposition on September 18 6, 2011, and Defendant filed a reply on September 19, 2011. The motion was deemed submitted and 19 the Court recommends that it be granted in part and denied in part in a separate but concurrently- 20 issued findings and recommendations. 21 Also pending before the Court is Plaintiff’s related motion to strike Defendant’s reply, filed 22 on September 29, 2011. Fed. R. Civ. P. 12(f). The motion also appears to be intended as a surreply. 23 Rule 12(f) provides that the Court may strike from a pleading “an insufficient defense, or any 24 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Rule 12(f) is 25 limited to striking from a pleading only those specific matters which are provided for in the rule. 26 Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974-75 (9th Cir. 2010). Neither a motion to 27 dismiss nor a reply is a pleading, Fed. R. Civ. P. 7(a), and Plaintiff’s disagreement with arguments 28 /// 1 Dockets.Justia.com 1 set forth therein does not subject them to being stricken as redundant, immaterial, impertinent, or 2 scandalous, Fed. R. Civ. P. 12(f). 3 Further, Plaintiff did not seek and obtain leave of court to file a surreply and the Court did 4 not order one filed. As a result, Defendant’s motion was submitted upon the filing of the reply, and 5 Plaintiff’s arguments in surreply should be disregarded. Local Rule 230(l). 6 7 For the reasons set forth herein, the Court RECOMMENDS that Plaintiff’s motion to strike be denied and his surreply be disregarded. 8 These Findings and Recommendations will be submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 10 days after being served with these Findings and Recommendations, the parties may file written 11 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 12 Findings and Recommendations.” The parties are advised that failure to file objections within the 13 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 14 1153 (9th Cir. 1991). 15 16 IT IS SO ORDERED. 17 Dated: ie14hj November 28, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2