United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO STRIKE AND ADOPTING REPORT AND
RECOMMENDATION [Dkt. Nos. 50, 58]
Gonzalo P. Curiel, United States District Judge
the Court is Plaintiff's motion to strike the affirmative
defenses offered by Defendants in response to Plaintiff's
18 U.S.C. § 1983 complaint. Dkt. No. 50. On May 30,
2017, U.S. Magistrate Judge William V. Gallo issued a Report
and Recommendation that passed upon the merits of
Plaintiff's motion to strike. Dkt. No. 58. Plaintiff
submitted timely objections to the Report and Recommendation.
Dkt. No. 59. Accordingly and after having reviewed the moving
papers, the Report and Recommendation and the applicable law,
the Court GRANTS in part, and DENIES
in part, Plaintiff's motion to strike.
AND PROCEDURAL BACKGROUND
Smith (“Plaintiff”) is currently an inmate at
Folsom State Prison, in Folsom, California. Previously and at
all times relevant to this action, he was housed at the
Richard J. Donovan Correctional Facility (“Donovan
Facility”) in San Diego, California. First Amended
Complaint (“FAC”), Dkt. No. 4. Defendants Cobb,
Perez, Daroglou, Beduhi, and Sharpe
(“Defendants”) are officers at the Donovan
Facility. Id. at 2-4.
September 29, 2010, Plaintiff reported to Officers Perez,
Daroglou, and Beduhi that his cellmate was displaying
“bizarre behavior.” Id. at 9. This
behavior included walking around the cell naked, talking
about rape and having sex with men, and expressing a desire
to watch Plaintiff use the toilet. Id. Perez,
Daroglou, and Beduhi responded to Plaintiff's concerns by
telling him that they would “take care of the
problem.” Id. Plaintiff further alleges that
Officer Beduhi specifically knew that Plaintiff's
cellmate was a “serious problem” because
“he was the officer who move[d] him out of his previous
following day, Plaintiff's cellmate attacked him.
Id. at 4. Plaintiff suffered second-degree burns on
his right arm, neck and back, a broken left shoulder, left
eye damage, two stab wounds, and a fractured disc in his
back. Id. As a result, Plaintiff was hospitalized
for ten days. Id. Officials placed Plaintiff in
administrative segregation for the two weeks following the
attack and thereafter returned him to the general population.
October 29, 2010, Plaintiff submitted an appeal to Defendant
Cobb, the appeal coordinator, “for process due to the
battery at the hands of” his cellmate. Id. at
5. In it, he requested that his single cell status be
continued, that he be compensated for his injuries, and that
he be provided with copies of all the reports related to the
incident. Id. On November 8, 2010 “the 602
Appeal was Screen back to Plaintiff for informal level
review” with his “Counselor.” Id.
Sometime thereafter, Plaintiff gave his appeal to Defendant
Sharpe, a “counselor, ” for informal review.
Id. Sharpe told Plaintiff that he was unable to
provide the relief requested and that the appeal was
inappropriate for informal review. Id. at 5-6.
Sharpe stated that Plaintiff's appeal “should have
been bypass[ed] to the next level” and, as such, Sharpe
“said he would take the appeal back to Appeal
Coordinator” so that Plaintiff would not be faulted for
filing the appeal late. Id. at 6.
sent two requests to Officer Cobb, in March and May 2011,
seeking a status update of his appeal. Id. at 6.
Cobb responded in writing to Plaintiff's May appeal by
stating “[a]ppeal not in this office.”
Id. In response, on May 23, 2011, Plaintiff
submitted a letter to the chief of the “chief inmate
appeal branch” in Sacramento, CA seeking assistance.
Id. The chief appeal branch, however, rejected
Plaintiff's request because he had bypassed the lower
levels of appeal. Id. After receiving the chief
appeal branch's response, Plaintiff sent the rejection to
Cobb, hoping to restart the appeal process. Id. at
7. According to Plaintiff, however, he was “again met
with opposition.” Id.
filed the First Amended Complaint on March 23, 2015. Dkt. No.
4. He alleges that Defendants Cobb and Sharpe obstructed his
access to the courts in violation of his First Amendment
rights. Id. at 11. Plaintiff also alleges that
Defendants Daroglou, Perez, and Beduhi failed to protect him
from the assault perpetrated by his cellmate in violation of
his Eighth Amendment rights. Id. at 13. Defendants
responded to Plaintiff's complaint, in October 2015, by
filing a motion for summary judgment for failure to exhaust
administrative remedies and a motion to dismiss for failure
to state a claim. Dkt. Nos. 24, 25.
6, 2016, Magistrate Judge Gallo issued a Report and
Recommendation on Defendants' motion to dismiss. Dkt. No.
42. In it, the magistrate judge recommended that the Court
(1) deny Defendants' motion for summary judgment and
sua sponte enter summary judgment in favor of
Plaintiff on the issue of exhaustion and (2) deny
Defendants' motion to dismiss. Id. On August 29,
2016, this Court adopted the Report and Recommendation in
full. Dkt. No. 46.
this Court ruled on the Report and Recommendation, Defendants
filed an answer to Plaintiff's First Amended Complaint.
Dkt. No. 47. The answer asserted twenty affirmative defenses.
Id. The instant motion followed.
Federal Rule of Civil Procedure (“Rule”) 12(f), a
court may strike “an insufficient defense or any
redundant, immaterial, impertinent or scandalous
matter” from the pleadings. Fed.R.Civ.P. 12(f). An
affirmative defense is insufficient if it fails to give the
plaintiff “fair notice” of the nature of the
defense. Barnes v. AT & T Pension Ben.
Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1170
(N.D. Cal. 2010) (citing Wyshak v. City Nat'l
Bank, 607 F.2d 824, 827 (9th Cir. 1979)). A defense is
immaterial for purposes of a motion to strike “if it
has no essential or important relationship to the claim for
relief pleaded.” Id. A matter is impertinent
if it does not pertain to the issues at hand.
Barnes, 718 F.Supp.2d at 1170. Motions to strike are
regarded with disfavor because they are a drastic remedy.
Freeman v. ABC Legal Servs., Inc., 877 F.Supp.2d
919, 923 (N.D. Cal. 2012). If a claim is stricken,
“leave to amend should be freely granted in the absence
of prejudice to the opposing party. Vogel v. Huntington
Oaks Del. Partners, LLC, 291 F.R.D. 438, 440 (C.D. Cal.
2013) (citing Wyshak, 607 F.2d at 826-27).
affirmative defense is a defense that does not negate the
elements of the plaintiff's claim, but instead precludes
liability even if all of the elements of the plaintiff's
claim are proven.” Barnes, 718 F.Supp.2d at
1173-74; Zivkovic v. S. Cal. Edison Co., 302 F.3d
1080, 1088 (9th Cir. 2002). Accordingly, the defendant has
the burden to prove an affirmative defense. Barnes,
718 F.Supp.2d at 1174. In the Ninth Circuit, “[t]he key
to determining the sufficiency of pleading an affirmative
defense is whether it gives plaintiff fair notice of the
defense.” Simmons v. Navajo Cnty., Ariz., 609
F.3d 1011, 1023 (9th Cir. 2010). “Fair notice generally
requires that the defendant state the nature and grounds for
the affirmative defense.” Roe v. City of San
Diego, 289 F.R.D. 604, 608 (S.D. Cal. 2013).
provides two primary reasons for why all of Defendants'
twenty affirmative defenses should be stricken. First,
Plaintiff contends that a number of Defendants' asserted
defenses are not proper affirmative defenses. Second,
Plaintiff asserts that Defendants' other affirmative
defenses fail to ...