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Righetti v. California Department of Corrections and Rehabilitation

United States District Court, Ninth Circuit

May 6, 2013



EDWARD M. CHEN, District Judge.


Pending before the Court is Plaintiff's motion to strike Defendant Dr. William Benda's first through tenth and twelfth affirmative defenses. Docket No. 114. Plaintiff argues that Benda fails to allege sufficient facts to support the applicability of the defenses to the instant case, and thus fails to meet the pleading standard under Iqbal and Twombly. Defendant Benda does not object to striking affirmative defenses five, six, and eight, but argues that he has sufficiently plead the remaining affirmative defenses. Docket No. 119. Having read and considered the papers presented by the parties, the Court finds this matter appropriate for disposition without a hearing.


Plaintiff Righetti, who is currently incarcerated in state prison, has a condition called triplegia that prevents him from moving his legs or left arm. Second Amended Complaint ("SAC") § 4. The instant suit arises out of a July 2007 incident where Plaintiff broke his left femur when he fell from his bed. SAC § 21. He alleges that various medical professionals who treated him in the following weeks failed to timely detect the broken bone, and that they failed to provide him with proper treatment for two months even once the break had been diagnosed. SAC §§ 23-42. Plaintiff now brings causes of action against Defendants alleging violation of his Eighth Amendment rights and medical negligence. SAC §§ 45-74.

The current motion pertains only to Defendant Dr. William Benda, who works for Natividad Medical Center, a hospital near the prison where Defendant was sent for treatment the day after his fall, and on several subsequent occasions. SAC §§ 25-28, 33-35, 42. Plaintiff alleges that he saw Defendant Benda when he was first treated at Natividad, and that he explained to Defendant Benda the fall and that he was experiencing excruciating pain in his head, upper left leg, and hip. SAC § 25. Plaintiff alleges that Defendant Benda failed to perform a physical examination, and "did not touch or examine Plaintiff Righetti's leg at all." Id. Plaintiff further alleges that Defendant Benda failed to record Plaintiff's reports of pain in Plaintiff's medical records. Id.

Plaintiff alleges that despite his reports of pain in his upper left leg and hip, Defendant Benda ordered an x-ray to be taken only of Plaintiff's knee, and that this failure to order proper x-rays contributed to the delayed diagnosis of Plaintiff's fractured femur. SAC §§ 25-27. According to Plaintiff, he again saw Defendant Benda after the x-ray, and strenuously protested that the technician had not x-rayed the correct part of his leg. SAC § 27. Defendant Benda allegedly ignored Plaintiff's concerns, and discharged Plaintiff without examining him. Id. Plaintiff does not allege that Defendant Benda was involved in his care at any subsequent point in time. Plaintiff brings only one cause of action against Defendant Benda, a § 1983 claim alleging deliberate indifference to serious medical needs in violation of the Eighth Amendment. SAC §§ 45-50.

Defendant Benda filed a motion to dismiss Plaintiff's First Amended Complaint on August 14, 2012. Docket No. 48. This Court granted that motion and dismissed the claims against Defendant Benda with leave to amend, finding that Plaintiff had failed to adequately plead deliberate indifference. Docket No. 71 at 7-8. After Plaintiff amended his complaint, Defendant Benda again filed a motion to dismiss, arguing that Plaintiff had again failed to allege sufficient facts to support a finding of deliberate indifference. Docket No. 84. This Court denied that motion on January 30, 2013. Docket No. 97.

On March 8, 2013, Defendant Benda filed his answer to Plaintiff's Second Amended Complaint. Defendant Benda denies that he ever treated Plaintiff at Natividad, though he admits that he took the referral from an individual at the prison, and filled out one of the forms in Plaintiff's medical records. Benda Answer §§ 25, 27. He also raises twelve affirmative defenses: (1) failure to state a claim; (2) statute of limitations; (3) negligence of plaintiff; (4) comparative negligence; (5) the applicability of the Medical Malpractice Compensation Reform Act; (6) California Civil Code § 1714.8 (barring recovery for injuries caused by the natural progression of a disease or condition, or by the natural or expected results of reasonable treatment); (7) failure to mitigate; (8) failure to mitigate - assumption of risk; (9) laches; (10) the applicability of the Fair Responsibility Act of 1986; (11) no causation; and (12) no damage.

Plaintiff argues that all of these affirmative defenses except the eleventh are not supported by allegations in the answer, and that they should thus be struck. Defendant does not object to striking affirmative defenses five, six, and eight. Docket No. 119 at 2.


Under Federal Rule of Civil Procedure 12(f), "[a] court may strike from a pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."[1] Fed.R.Civ.P. 12(f). Rule 8(c), requires parties to "affirmatively state any avoidance or affirmative defense, " and Rule 8(b)(1) further requires a party to "state in short and plain terms its defenses to each claim asserted against it." Fed.R.Civ.P. 8(b)(1), (c). "The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense." Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979). While the Ninth Circuit has not addressed whether the Ashcroft/Twombly pleading standard applies to affirmative defenses, most courts which have considered the issue have applied the heightened pleading standard to affirmative defenses. See PageMelding, Inc. v. ESPN, Inc., C 11-06263 WHA, 2012 WL 3877686 (N.D. Cal. Sept. 6, 2012) ("Within this district... there is widespread agreement that" the Iqbal/Twombly standard applies to affirmative defenses); Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1171 (N.D. Cal. 2010) (collecting cases).

As this Court has previously found, " Twombly's rationale of giving fair notice to the opposing party would seem to apply as well to affirmative defenses given the purpose of Rule 8(b)'s requirements for defenses." Barnes & Noble, Inc. v. LSI Corp., 849 F.Supp.2d 925, 929 (N.D. Cal. 2012) (citations omitted). Applying the heightened pleading standard to affirmative defenses "serves a valid purpose in requiring at least some valid factual basis for pleading an affirmative defense and not adding it to the case simply upon some conjecture that it may somehow apply." Barnes, 718 F.Supp.2d at 1172 (citations omitted). Further, "[a]pplying the same standard will also serve to weed out the boilerplate listing of affirmative defenses which is commonplace in most defendants' pleadings where many of the defenses alleged are irrelevant to the claims asserted." Barnes & Noble, 849 F.Supp.2d at 929 (citations omitted). Therefore, the Iqbal / Twombly standard should apply to determine whether Defendant Benda's affirmative defenses are adequately plead.

Under this standard, "a defense need not include extensive factual allegations in order to give fair notice, [however] bare statements reciting mere legal conclusions may not be sufficient." Perez v. Gordon & Wong Law Group, P.C., No. 11-CV-03323 LHK, 2012 WL 1029425, at *8 (N.D. Cal. Mar. 26, 2012) (citations omitted). "Just as a plaintiff's complaint must allege enough supporting facts to nudge a legal claim across the line separating plausibility from mere possibility, a defendant's pleading ...

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