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Estrada v. Vanderpoel

United States District Court, E.D. California

June 29, 2017

J. VANDERPOEL, et al., Defendants.


         I. BACKGROUND

         David Estrada (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. The case now proceeds on the Complaint filed by Plaintiff on May 12, 2016, against defendants A. Maxfield, M. Sexton, and J. Vanderpoel (“Defendants”) for violation of Fifth, Eighth, and Fourteenth Amendments. (ECF No. 15.) Plaintiff alleges that he has been improperly confined to the Segregated Housing Unit (“SHU”) and subject to an “R” classification without cause or due process for the last ten years. (ECF No. 13.)

         Defendants filed an answer to the complaint on March 21, 2017, listing several affirmative defenses. (ECF No. 21.) On April 26, 2017, Plaintiff filed a motion to strike the defendants' affirmative defenses. (ECF No. 27.) On April 28, 2017, Defendants filed an opposition to the motion. (ECF No. 28.) This motion and opposition are now before the Court.


         Rule 12(f) of the Federal Rules of Civil Procedure allows a district court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . .” Everett H. v. Dry Creek Joint Elementary Sch. Dist., 5 F.Supp.3d 1167, 1177 (E.D. Cal. 2014) (citing Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983)).

         Defendants are required to “affirmatively state any avoidance or affirmative defenses.” Fed.R.Civ.P. 8(c)(1). The Ninth Circuit has indicated that “‘the fair notice' required by the pleading standards only requires describing the defense in ‘general terms.'” Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1274 (3d ed. 1998)). Since Kohler, this District has routinely applied the fair notice standard to a motion to strike affirmative defenses. Gomez v. J. Jacobo Farm Labor Contractor, Inc., 188 F.Supp.3d 986, 991-92 (E.D. Cal. 2016) (citing United States v. Gibson Wine Co., 2016 WL 1626988, *4-6 (E.D. Cal. Apr. 25, 2016)).

         The fair notice standard “is less demanding than the Twombly/Iqbal standard, but still requires a party to plead some factual basis for its allegations.” Sherwin-Williams Co. v. Courtesy Oldsmobile- Cadillac, Inc., No. 1:15-CV-01137 MJS HC, 2016 WL 615335, at *2 (E.D. Cal. Feb. 16, 2016). “The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.” Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1023 (9th Cir. 2010) (citing Wyshak v. City National Bank, 607 F.2d 824, 827 (9th Cir. 1979)). “Although ‘fair notice' is a low bar that does not require great detail, it does require a defendant to provide ‘some factual basis' for its affirmative defenses. [Citations] Simply referring to a doctrine or statute is insufficient to afford fair notice.” Gomez, 188 F.Supp.3d at 992 (quoting Gibson Wine Co., 2016 WL 1626988, *4-6). \\\


         Defendants' answer lists five affirmative defenses. (ECF No. 21.) Plaintiff has moved to strike all five. (ECF No. 27.) Defendants oppose the motion to strike as to four of the affirmative defenses but do not object to striking the fifth affirmative defense. (ECF No. 28, p. 7, “As their fifth affirmative defense, Defendants reserved their right to assert additional affirmative defenses to the extent such defenses were applicable… As Plaintiff implies, the mere reservation of rights is not an affirmative defense. [citations].”). Thus, the Court will recommend that the motion to strike be granted as to the fifth affirmative defense and will discuss defenses one through four immediately below.

         A. First Affirmative Defense: Exhaustion of Administrative Remedies

         Defendant's first defense states, “[t]o the extent Plaintiff has failed to exhaust available administrative remedies, his claims are barred by 42 U.S.C. § 1997e(a).” (ECF No. 21, p. 6.) Plaintiff's motion to strike appears to argue that he did exhaust administrative remedies by filing numerous “602” appeals. (ECF No. 27.)

         A failure to exhaust is a valid affirmative defense. Jones v. Bock, 549 U.S. 199, 212 (2007) (“[T]he usual practice under the Federal Rules is to regard exhaustion as an affirmative defense.”). For such a defense, the defendant needs to show “that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014).

         Plaintiff has fair notice of the exhaustion defense because it applies to every civil rights case filed by a prisoner. See 42 U.S.C. § 1997e(a).

         Plaintiff will have an opportunity to contest this defense if and when Defendants assert the defense through a motion to dismiss or motion for summary judgment, and if needed, at an evidentiary hearing. The fact that Plaintiff challenges ...

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