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Barno v. Ryan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 9, 2008

RODNEY BERNARD BARNO, CDCR #V- PLAINTIFF,
v.
STUART RYAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge, U.S. District Court

ORDER DENYING PLAINTIFF'S MOTION TO STRIKE DISCOVERY FROM PRIOR PLEADING [DOC. NO. 32.]

Plaintiff, proceeding pro se and in forma pauperis ("IFP") with a civil rights Complaint [Doc. No. 1] filed pursuant to 42 U.S.C. § 1983, and currently incarcerated at RJ Donovan Correctional Facility, has filed a motion to strike the exhibits attached to his original complaint and preclude them from use by the Defendants in further stages of the litigation. (See Doc. No. 32, Plaintiff's motion at 1:1-2.)

"Where a pleading is amended or withdrawn, the superceded portion ceases to be a conclusive judicial admission." Huey v. Honeywell, Inc., 82 F.3d 327, 33 (9th Cir. 1996) (quoting Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 32 F.2d 195, 198 (2d Cir. 1929)). Nevertheless, "allegations in prior pleadings are competent, admissible evidence of the facts stated [and] may be controverted "like any other extra judicial admission made by a party." See e.g. Warren v. Fox Family Worldwide, Inc., 171 F. Supp. 2d 1057, 1065-66 (C.D. Cal. 2001). Accordingly, there is no need to strike Plaintiff's prior pleading or exhibits attached thereto. Such material may generally no longer be considered conclusive by virtue of the operative amended pleading. But see White v. Arco/Polymers, Inc., 720 F.2d 1361, 1396 n.5 (5th Cir. 1983) ("Admissions made in superceded pleadings are as a general rule considered to lose their binding force . . [b]ut where, . . . the amendment only adds allegations, deleting nothing stated in the prior pleadings, admissions made in the prior pleadings continue to have conclusive effect.") At the very least, the prior pleading and its attachments that Plaintiff seeks without cause to "void" may still have evidentiary value that may be advanced or disputed by either party during the course of the litigation. Id. at 1066. Accordingly, Plaintiff's motion is DENIED.

IT IS SO ORDERED.

20080709

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