Opinion
Case No. 2:10-cv-74.
June 9, 2010
ORDER AND REPORT AND RECOMMENDATION
Plaintiff, James Thomas, a state prisoner, filed this case under 42 U.S.C. § 1983 against a number of employees of the Ohio Department of Rehabilitation and Correction. The case is before the Court to consider his motions to strike the defendant's notice of waiver of reply (#36) and to strike portions of the answer (#41). The former motion will be denied because it is moot. The Court recommends the latter motion be denied because it lacks merit.
I. The Motion to Strike Defendant's Notice of Waiver of Reply and Reservation of Affirmative Defenses
On April 6, 2010, defendant Moore filed a Notice of Waiver of Reply and Reservation of Affirmative Defenses. Among other things, that notice requested the Court to conduct an initial screening of the complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A. The Court noted in its Opinion and Order of April 21, 2010, that the screening had already occurred. Plaintiff's motion to strike, which essentially argues that defendant Moore should not be permitted to file the Notice of Waiver, was filed before the Court issued its Opinion and Order. Defendant Moore then filed a timely answer to the complaint. Under these circumstances, Mr. Thomas' motion to strike the Notice of Waiver is clearly moot, and it will be denied for that reason.
II. The Motion to Strike Portions of the Answer
In his motion to strike portions of the answer (to which the defendants have chosen not to respond), Mr. Thomas asks the Court to strike the third and sixth defenses raised as insufficient, and to strike portions of the fist defense as scandalous. He also asks the Court to strike or deny the conclusion asserted at the end of the answer.
The answer filed on April 28, 2010, asserts, as the third defense, that the complaint "fails to state a claim for which relief may be granted." The sixth defense asserts that plaintiff has failed to exhaust administrative remedies. The first defense asserts, in the part to which plaintiff objects, that two corrections officers, Officers Thompson and Freeman, were involved in an incident with plaintiff on November 27, 2009. Finally, the conclusion asserted in the answer is that the complaint be dismissed with prejudice, that costs be assessed against Mr. Thomas, and that any appeal be deemed not taken in good faith. Mr. Thomas asserts that this Court has already found that his complaint states a claim upon which relief can be granted, that he did exhaust administrative remedies, and that Officers Thompson and Freeman were not present during the November 27, 2009 incident.
Generally, striking a defense pleaded in an answer on grounds that the defense is legally insufficient is disfavored. Such motions should be granted only if the plaintiff can "show that (1) there is no question of fact which might allow the defense to succeed; (2) there is no question of law which might allow the defense to succeed; and (3) plaintiff would be prejudiced by the inclusion of the defense." U.S. Commodity Futures Trading Comm'n v. A.S. Templeton Group, Inc., 297 F.Supp. 2d 531, 533 (E.D.N.Y. 2003). A motion to strike is not typically used to resolve disputed questions of law raised by legal defenses, and "[c]lose . . . questions of law should not be resolved on a motion to strike. . . ." Mohegan Tribe v. State of Connecticut, 528 F.Supp. 1359, 1362 (D. Conn. 1982). Similarly, if a defense raises any substantial question of fact, it should not be stricken. See United States v. 187.40 Acres of Land, 381 F.Supp. 54, 56 (M.D. Pa. 1974). The defenses of failure to state a claim and exhaustion of administrative remedies do raise either close legal questions or questions about which the facts may be in dispute. Further, there is no evident prejudice to Mr. Thomas from leaving those defenses in the answer. Thus, there is no basis upon which to strike them.
As to the defendant's inclusion of the names of two corrections officers whom Mr. Thomas does not believe to have been present during the incident in question, Mr. Thomas appears to contend that such information is immaterial. Immaterial matter can be stricken from a pleading, but only if it has no relationship to the matter being pleaded. See Van Slyke v. Capital One Bank, 503 F.Supp. 2d 1353, 1367 (N.D. Cal. 2007). The fact that there appears to be a disagreement between the parties about who was present and involved in the November, 2009 incident is related to the defendants' pleading, and therefore cannot be stricken on grounds that it is immaterial. Finally, as the court stated inArmstrong v. Snyder, 103 F.R.D. 96, 100 (E.D. Wisc. 1984), "the Court cannot characterize as immaterial or inappropriate the . . . request in [the] answer that judgment be entered dismissing the complaint." That court also noted that "such a request is characteristic of most answers filed to complaints filed in federal court and is even envisioned by the Federal Rules of Civil Procedure." Id. at 101. Thus, there is no basis for granting Mr. Thomas any relief on this motion to strike.
III. Recommended Disposition and Order
Based on the foregoing, the motion to strike waiver (#36) is denied as moot. It is further recommended that the motion to strike directed to defendants' answer (#41) be denied.IV. Procedure on Objections
If any party objects to the Report and Recommendation concerning Doc. #41, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
If any party objects to the dismissal of Doc. #36 as moot, that party may, within fourteen days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due fourteen days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
The order with respect to Doc. #36 is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.