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Smith v. Cobb

United States District Court, S.D. California

September 5, 2017

GREGORY SMITH, Plaintiff,
v.
R. COBB, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO STRIKE AND ADOPTING REPORT AND RECOMMENDATION [Dkt. Nos. 50, 58]

          Hon. Gonzalo P. Curiel, United States District Judge

         Before 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Gregory 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.

         On 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 cell.” Id.

         The 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. Id.

         On 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.

         Plaintiff 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.

         Plaintiff 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.

         On May 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.

         After 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.

         LEGAL STANDARD

         Under 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).

         An 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).

         DISCUSSION

         Plaintiff 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 ...


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