IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 23, 2009
DAVID W. WILSON, PLAINTIFF,
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pursuant to the Order, filed on 9/25/08, this action now proceeds only as to plaintiff's First, Eighth and Fourteenth Amendment claims against defendants Nesbeth, Hislip and Baker and solely for money damages, plaintiff's claims against defendants Grannis and CDCR, and for injunctive relief under the ADA/RA, having been dismissed. On 11/10/08, the remaining defendants filed their answer to the second amended complaint, pursuant to the court's Order, filed on 10/16/08. On 11/24/08, plaintiff filed a document entitled "counterclaim to defendants' affirmative defenses answers second amended complaint," an apparently inapposite filing not contemplated within the Federal Rules of Civil Procedure or the Local Rules.*fn1 Nevertheless, defendants filed an opposition, on 11/24/08, evidently because plaintiff within his filing references Rule 11(b) and seeks the imposition of sanctions because he maintains the affirmative defenses pled are false and misleading.
Defendants are correct that plaintiff's putative motion does not comply with the requirements of Rule 11 (Opp., p. 2); that is, plaintiff evidently did not first serve defendants' counsel with the motion, providing an opportunity for the pleading to be withdrawn before filing the purported motion. See Rule 11(c)(2). Moreover, plaintiff, simply by disputing the defenses raised, has not demonstrated that the asserted defenses lack any merit.
Accordingly, IT IS ORDERED that to the extent that plaintiff's "counterclaim to defendants affirmative defenses....," filed on 11/24/08 (docket # 35), purports to be a motion seeking Rule 11 sanctions for defendants having allegedly asserted affirmative defenses in their answer which are false, the motion is denied both for plaintiff's having failed to comply with Rule 11(c)(2), and because it lacks merit.