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Azhar Lal v. Felker

December 15, 2011

AZHAR LAL, PLAINTIFF,
v.
FELKER, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff has filed a motion for sanctions, see Dckt. Nos. 129, 130, and a "Motion for Judicial Intervention" requesting that the U.S. Marshal notify him when service is effected on defendant Flores. Dckt. No. 138. Additionally, defendants have filed a motion to strike two of plaintiff's filings, an "opposition" to an answer to the complaint and a late reply brief in support of the sanctions motion. Dckt. No. 139.

I. Motion to Strike

Defendants move to strike plaintiff's September 26 "opposition to defendant Carter's answer" on the grounds that there is no provision for such a filing under the Federal Rules, and plaintiff's September 26 reply brief on his motion, because it was filed late. Although defendants cite no authority in their motion, Fed. R. Civ. P. 12(f) governs motions to strike pleadings. That rule provides that a "court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f).

Only pleadings are subject to motion to strike. Fed. R. Civ. P. 12(f); Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Motions are not pleadings as defined by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 7(a). Accordingly, plaintiff's reply brief in support of his motion for sanctions may not be stricken pursuant to a Rule 12(f) motion to strike. Sidney--Vinstein, 697 F.2d at 885-86. Rather, the remedy for a late brief on a motion is provided by Local Rule 230. As it relates to the late reply brief in issue here, Local Rule 230(l) states that motions will be deemed submitted twenty-eight days after the service of the motion or when the reply is filed, whichever comes first. Here, plaintiff's reply brief was filed more than 28 days after his July 19 motion was filed. Accordingly, the brief is untimely and will be disregarded.

It is less clear whether plaintiff's "opposition to defendant Carter's answer" should be considered a pleading for purposes of Rule 12(f). However, it appears to make little difference whether the document is ordered stricken or simply disregarded because it is a filing not contemplated either by the Federal Rules of Civil Procedure or the Local Rules. There plainly is no basis for barring defendant Carter from filing an answer to the complaint. Accordingly, plaintiff's "opposition" to the answer will be disregarded. Plaintiff is admonished that he need not and should not file any "oppositions" to other defendants' answers to the complaint in the future.

II. Motion for Judicial Intervention

On June 16, 2011, the court ordered the U.S. Marshal to serve defendants Carter and Flores. Dckt. No. 126. On August 16, 2011, a waiver of service was returned executed as to defendant Carter. Dckt. No. 133. The docket does not show that defendant Flores has been served.

Plaintiff requests "judicial intervention so that the court can keep track of the date Flores is served." Dckt. No. 138 at 2. The docket reflects that Flores was served on November 3, 2011. See Dckt. No. 140. Plaintiff's motion is denied as unnecessary.

III. Motion for Sanctions

Plaintiff has filed a motion for sanctions, which defendants oppose. See Dckt. No. 129, 130. Plaintiff ostensibly brings the motion for sanctions pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v), which provides that if a party fails to obey an order to provide discovery, the court may dismiss the action in whole or in part. However, plaintiff obviously does not intend to seek the dismissal of his own lawsuit. In the body of his motion, plaintiff writes that he seeks judgment in his favor. Dckt. No. 129 at 4. Therefore, the court construes his motion as one brought under Rule 37(b)(2)(A)(vi) (rendering a default judgment against a disobedient party). Sanctions under this Rule are only appropriate if a party has violated a discovery order.

Plaintiff contends that defendants have violated this court's discovery orders in two ways: 1) by failing to produce copies of all of his internal appeals, and 2) by knowingly submitting false statements in a declaration attesting that there was no document setting forth a policy and procedure of "P.M. nourishment bags" that was in effect in 2006 and 2007. The court addresses each argument in turn.

A. Internal Appeals

On March 4, 2011, the court granted plaintiff's motion to compel in part and ordered defendants to produce "all of the internal appeals he filed at High Desert State Prison and to the Director of Corrections." Dckt. No. 109 at 10.

Plaintiff has submitted a declaration attesting that defendants have not complied with this order. Dckt. No. 129, Ex. E ("Defendant(s) have not provided plaintiff with all of plaintiff's internal appeals filed at High Desert State Prison or the ones filed with the Director of Corrections."). Defendants claim that they have indeed produced the documents at issue, because they produced plaintiff's complete medical and central files to him, which "contained all inmate appeals (CDCR 602's) filed by Lal, including the matters at issue in this action, as well as Health Care Services Requests." Dckt. No. 130 at 2. In support of this assertion, defendants' counsel has submitted a declaration stating that "The central file records included all inmate grievances . . . submitted by Lal. The medical records included Health Service Requests by Lal." Dckt. No. 130-1 at 3. Missing from the declaration, however, is an affirmation that defendant has conducted a reasonable search for all responsive documents and that such diligent search revealed only those documents that were produced. "If the responding party cannot conduct a 'careful and thorough' search for all responsive documents within the thirty-day period, it 'ha[s] an obligation to seek appropriate extensions,' Lava Trading, Inc. v. Hartford Fire Ins. Co., 2005 WL 459267, *9-10, 2005 U.S. Dist. LEXIS 2866, *28 (S.D.N.Y.2005), either by agreement or, if necessary, by a motion for time under Fed. R. Civ. Pro. 6." Novelty, Inc. v. Mountain View Marketing, Inc., 265 F.R.D. 370, at 376 (S.D. Ind. 2009) Although the declaration states that there were no other grievances submitted by plaintiff, the declarant, defendant's attorney, does not claim to have personal knowledge of how plaintiff's grievances were filed or maintained by the department of corrections. His declaration does not explain what steps, if any, were taken to verify that all of plaintiff's grievances and health service requests are, indeed, contained in the documents that have been produced to plaintiff. In contrast, plaintiff has personal knowledge of what grievances he ...


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