United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTIONS TO FILE SURREPLY AND TO STRIKE AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NOS. 94, 103, 112)
MICHAEL J. SENG, Magistrate Judge.
I. PROCEDURAL HISTORY
Plaintiff is a federal prisoner proceeding pro se in this civil rights action filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971).
Pending before the Court are (1) a motion for summary judgment by Defendants Cobb, Estrada, Gonzaga, Valero, and Zaragoza, (2) Plaintiff's motion to strike portions of Defendants' motion, and (3) Plaintiff's motion to file a surreply to Defendants' motion.
II. FACTUAL BACKGROUND
The action arose while Plaintiff was incarcerated at the Federal Correctional Institution - Atwater, California ("Atwater"). It proceeds on Plaintiff's Second Amended Complaint against Defendants Gonzaga, Cobb, Zaragoza, Valero, and Estrada for confiscating and retaining Plaintiff's incoming and outgoing mail ("Mail Items") without providing notice of confiscation and a post-deprivation remedy (ECF No. 41, at 3-8). The Mail Items claimed to have been seized are described in the Second Amended Complaint as follows::
November 7, 2007 incoming mail items Express Mail #'s EB215054867US and EB734930888US,
May 25, 2008 outgoing Priority Mail envelope,
April 2009 incoming Priority Mail Item # 2008 1140 0000 6011 6651,
May 16, 2010 incoming Certified Mail item # 7008 1140 0000 8015 3898,
July 26, 2010 incoming Certified Mail item # 7010 0780 0001 8760 1388,
October 2010 outgoing Certified Mail package.
Defendants claim Plaintiff was suspected of using the mails to send and receive fraudulent financial documents. An investigation was initiated by the Atwater Office of Special Investigative Supervisor ("SIS"). Suspected fraudulent financial documents were seized from Plaintiff's mail as contraband (hereinafter the "Contraband Items", ECF No. 94-4, at Ex.'s 1-6g).
Plaintiff claims the Mail Items in issue in this action are not Contraband Items.
III. PLAINTIFF'S MOTION TO FILE SURREPLY
The filing of a surreply is unauthorized by the Federal Rules of Civil Procedure and Local Rules. Plaintiff provides no justification for filing a surreply to Defendants' motion. The Court did not request or approve the surreply.
Accordingly, Plaintiff's motion to surreply (ECF No. 112) will be denied. The proposed surreply ("Proposed Notice" - ECF No. 113) will be stricken from the record without having been considered by the Court.
IV. PLAINTIFF'S MOTION TO STRIKE
A. Legal Standard
"The Court may strike from a pleading an insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). Rule 12(f) is limited to striking from a pleading only those specific matters which are provided for in the rule. Whittlestone, Inc. v. Handi-Craft Co. , 618 F.3d 970, 973-75 (9th Cir. 2010).
"A movant must show that the allegations are devoid of merit, unworthy of any consideration, and unduly prejudicial." Facility Wizard Software, Inc. v. Southeastern Technical Services, LLC , 647 F.Supp.2d 938, 942 (N.D. Ill. 2009). A motion to strike is generally disfavored. ...