United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S
MOTION TO STRIKE DEFENDANT'S AFFIRMATIVE DEFENSES BE
GRANTED IN PART AND DENIED IN PART (ECF No. 27)
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.)
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.
MOTION TO STRIKE
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)).
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)).
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). \\\
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
First Affirmative Defense: Exhaustion of Administrative
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.)
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).
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).
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 ...