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Harris v. Pimentel

United States District Court, E.D. California

February 9, 2015

DARRELL HARRIS, Plaintiff,
v.
R. PIMENTEL, et al., Defendants.

FINDINGS AND RECOMMENDATIONS TO: (1) DENY DEFENDANT'S MOTION TO STRIKE FIRST AMENDED COMPLAINT (ECF No. 16); (2) GRANT IN PART AND DENY IN PART DEFENDANT'S MOTION TO DISMISS (ECF No. 16); (3) GRANT DEFENDANT'S MOTION TO STRIKE SURREPLY (ECF No. 28) AND (4) DENY PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE (ECF No. 20) FOURTEEN (14) DAY OBJECTION DEADLINE

MICHAEL J. SENG, Magistrate Judge.

I. PROCEDURAL HISTORY

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. ยง 1983. (ECF Nos. 7 & 9.) This matter proceeds against Defendant Escamilla on Plaintiff's First Amendment free exercise, Fourteenth Amendment equal protection, and RLUIPA claims for damages. (ECF No. 10.)

Defendant moved to strike Plaintiff's first amended complaint on the ground it consists of sham allegations, and also moved to dismiss on the ground that the first amended complaint failed to state a claim. (ECF No. 16.) Plaintiff filed an opposition and a request for judicial notice. (ECF No. 20.) Defendant filed a reply (ECF No. 24) and objections to the request for judicial notice and the evidence and arguments submitted with Plaintiff's opposition (ECF No. 25). Plaintiff then filed a surreply (ECF No. 26), and a reply to Defendant's objections (ECF No. 27).

Defendant moved to strike Plaintiff's surreply and objections. (ECF No. 28.) Plaintiff opposed the motion (ECF No. 30), and Defendant replied (ECF No. 31).

These matters are deemed submitted pursuant to Local Rule 230( l ).

II. REQUEST FOR JUDICIAL NOTICE AND OBJECTIONS

Plaintiff asks the Court to take judicial notice of purported filings in unrelated state court proceedings. (ECF No. 20.) Defendant objects to the request, as well as to new allegations submitted by Plaintiff in opposition to the motion to strike and motion to dismiss. (ECF No. 25.) The Court has not considered the disputed evidence or allegations in these findings and recommendations. Accordingly, Plaintiff's request for judicial notice (ECF No. 20) should be denied as unnecessary. Defendant's objections will not be addressed.

III. MOTION TO STRIKE SURREPLY

Defendant moves to strike Plaintiff's surreply to the motion to strike and motion to dismiss. (ECF No. 28.)

Absent leave of court, no briefing on Defendant's motions is permitted beyond the opposition and reply. The Court did not grant Plaintiff leave to file a surreply and does not desire any further briefing on the motions. The surreply has not been considered in these findings and recommendations.

Accordingly, Defendant's motion to strike Plaintiff's surreply should be granted, and Plaintiff's surreply should be stricken from the record.

IV. MOTION TO STRIKE FIRST AMENDED COMPLAINT

A. No Authority to Strike Complaint

Defendant argues that the first amended complaint consists of "sham allegations" and therefore should be stricken. (ECF No. 16 at 2.)

Defendant's argument that the Court has the authority to strike false or sham pleadings is not good law. PAE Gov't Servs., Inc. v. MPRI, Inc., 514 F.3d 856, 859 (9th Cir. 2007) ("The district court has no free-standing authority to strike pleadings simply because it believes that a party has taken inconsistent positions in the litigation."). Indeed, this proposition has not been good law since 1983. See id. at 859 n.3. The primary case relied on by Defendant, Ellingsworth v. Burlington N., Inc., 653 F.2d 1327 (9th Cir. 1981), has been superseded by changes to the Federal Rules of Civil Procedure. See PAE Gov't Servs, Inc., 514 F.3d at 859 n.3. The other case relied on by Defendant, Bradley v. Chiron Corp., 136 F.3d 1317 (Fed. Cir. 1998), has been flatly rejected in this jurisdiction. PAE Gov't Servs, Inc., 514 F.3d at 859 n.4.

Defendant presents no lawful basis to strike Plaintiff's complaint, and accordingly, the motion to strike should be denied.

B. No Basis to Strike Specific Allegations

Although not artfully pled, Defendant's motion may be read to request that only specific allegations in the complaint be stricken.

1. Legal Standard

At the screening stage and on a motion to dismiss, the Court must accept the factual allegations of the complaint as true and draw all reasonable inferences in favor of the non-moving party. Daniels-Hall v. Natl. Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). Additionally, pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). At the same time, however, the Court is not required to accept as true allegations that are contradicted by documents attached to the complaint. Roth v. Garcia Marquez, 942 F.2d 617, 625 n.1 (9th Cir. 1991.)

2. Plaintiff's Allegations

Plaintiff's first amended complaint alleges that Defendant searched Plaintiff's cell when Plaintiff was not present. When Plaintiff returned to his cell, he found his Quran had been kicked under his bed and defiled by a boot mark. Plaintiff's cell mate told him that Defendant was responsible, did not leave a cell search slip, ...


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