United States District Court, E.D. California
JESUS B. CASTANEDA, Plaintiff,
D. FOSTON, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S SURREPLY (ECF No. 80) FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION TO DISMISS (ECF No. 95)
BARBARA A. McAULIFFE, Magistrate Judge.
I. Procedural History
Plaintiff Jesus B. Castaneda, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 5, 2012. This action proceeds on Plaintiff's second amended complaint against Defendants Reeves, J. Brown, Trimble, Nelson and Martinez for deliberate indifference in violation of the Eighth Amendment and against Defendants Quezada, Lopez, Nelson, Martinez, Webster, Mendez and Stone for retaliation in violation of the First Amendment.
On August 29, 2014, Defendants filed a motion to dismiss the second amended complaint without leave to amend pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants contend that Plaintiff's Eighth Amendment claim is barred by claim and issue preclusion and Plaintiff's retaliation claim is prohibited by claim preclusion. (ECF No. 70.) Defendants also filed a request for judicial notice. (ECF No. 71.)
On September 17, 2014, Plaintiff filed his opposition to the motion to dismiss. (ECF No. 73.) Plaintiff also filed a request for judicial notice. (ECF No. 74.)
Defendants filed a reply to Plaintiff's opposition on October 1, 2014. (ECF No. 77.) Plaintiff filed a supplemental response to the motion to dismiss on October 14, 2014. (ECF No. 79.) On October 16, 2014, Defendants filed a motion to strike Plaintiff's supplemental response. (ECF No. 80.) Plaintiff did not respond to Defendants' motion to strike.
The motions have been submitted upon the record without oral argument. Local Rule 230( l ).
II. Defendants' Request for Judicial Notice
Defendants request that the Court take judicial notice of the records in Plaintiff's habeas corpus proceedings In re Castaneda, Fifth District Court of Appeal Case Number F066609. The records include the following: (1) Petition for Writ of Habeas Corpus; (2) May 10, 2013 Informal Response filed by the Federal Receiver; (3) June 4, 2013 Informal Response filed by Plaintiff; (4) June 7, 2013 Supplemental Informal Response filed by the Federal Receiver; (5) August 8, 2013 Order Denying the Petition; and (6) Docket Sheet obtained from Fifth District Court of Appeal's website on August 25, 2014.
Defendants' request is unopposed. Further, a court may "take judicial notice of matters of public record outside the pleadings and consider them for purposes of [a] motion to dismiss." Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (court may take judicial notice of matters of public record outside the pleadings when considering a motion to dismiss). Accordingly, Defendants' request for judicial notice is GRANTED.
III. Plaintiff's Request for Judicial Notice
Plaintiff requests that the Court take judicial notice of the following documents: (1) Pleasant Valley State Prison's Clinical Case Management Review Committee's Memorandum dated December 14, 2011; (2) October 3, 2013 letter signed by Plaintiff and S. Hosman, Correctional Sergeant, Health Care Access, Pleasant Valley State Prison; and (3) Director's Level Decision dated August 28, 2014. The Court did not rely on these documents in reaching the merits of Defendants' motion to dismiss and they are immaterial to the Court's findings and recommendations. Accordingly, Plaintiff's request for judicial notice is DENIED.
IV. Defendants' Motion to Strike Plaintiff's Surreply
As noted above, Defendants filed a motion to dismiss the Second Amended Complaint, Plaintiff responded and Defendants replied. (ECF Nos. 70, 73, 77.) Thereafter, on October 14, 2014, Plaintiff filed a document entitled "Plaintiffs Supplemental Response to Defendants Motion to Dismiss." (ECF No. 79.) Defendants move to strike Plaintiff's supplemental response because it was unauthorized.
This Court's Local Rules provide for a motion, an opposition, and a reply. Local Rule 230(l). Neither the Local Rules nor the Federal Rules of Civil Procedure provide the right to file a response to a reply. See, e.g., Wyatt v. Zanchi, 2011 WL 5838438, at *5 (E.D. Cal. Nov. 21, 2011). Furthermore, the Court neither requested a response to Defendants' reply nor granted a request on Plaintiff's behalf to file one. Accordingly, Defendants' motion to strike is GRANTED, and Plaintiff's supplemental response, filed October 14, 2014, shall be stricken from the record.
V. Findings and Recommendations Regarding ...