Opinion
Case No. 1:12-cv-628
12-11-2013
JIMMIE L. WASHINGTON, Plaintiff, v. C/O JOHN McCOY, Defendant.
Beckwith, J.
Litkovitz, M.J.
ORDER AND REPORT
AND RECOMMENDATION
Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF) proceeding pro se, brings this prisoner civil rights action under 42 U.S.C. § 1983 against defendant C/O John McCoy (McCoy) alleging McCoy used excessive force against him in violation of his constitutional rights. This matter is before the Court on: (1) plaintiff's motions to strike defendant's answer (Docs. 42, 46) and defendant's response in opposition (Doc. 44); (2) plaintiff's motion for a temporary restraining order (Doc. 47); (3) plaintiff's motion to withdraw his motion for a temporary restraining order and motion to strike the withdrawal motion (Docs. 49, 50); (4) plaintiff's motions to take deposition upon written questions (Docs. 51, 52); (5) plaintiff's motion to transfer (Doc. 53); and (6) plaintiff's motion for an order to show cause. (Doc. 55).
I. Plaintiff's Motions to Strike (Docs. 42, 46)
Plaintiff moves to strike defendant John McCoy's answer to plaintiff's complaint (Doc. 37) under Federal Rule of Civil Procedure 12(f), asserting that it is scandalous as it fails to admit or deny the complaint's allegations and is redundant as it is primarily comprised of defendant McCoy's asserted defenses rather than responses to plaintiff's factual allegations. (Doc. 42). Plaintiff further asserts striking the answer is necessary because defendant McCoy failed to timely serve the answer on him. (Doc. 44).
In opposition, defendant McCoy contends that the pleading is not subject to dismissal under Fed. R. Civ. P. 12(f) as there is no legal support for plaintiff's conclusory assertions that it is scandalous and redundant. Further, defendant McCoy notes that striking portions of a pleading is a drastic and disfavored remedy. Defendant thus requests that plaintiff's motions be denied. (Doc. 44).
Rule 12(f) permits courts to strike "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). However, motions to strike are generally disfavored and should be used sparingly and only in cases where the material at issue has "no possible relation to the controversy." Anderson v. U.S., 39 F. App'x 132, 135 (6th Cir. 2002) (quoting Brown v. Williamson Tobacco Corp. v. U.S., 201 F.2d 819, 822 (6th Cir. 1953)). Nevertheless, it is well-established that district courts have inherent power to control their own docket; this power includes "determining whether to strike documents or portions of documents." Getachew v. Central Ohio Transit Authority, No. 2:11-cv-860, 2013 WL 819733, at *2 (S.D. Ohio Mar. 5, 2013) (citing Anthony v. BRT Auto. Sealing Sys., 339 F.3d 506, 516 (6th Cir. 2003)); see also In re Prevot, 59 F.3d 556, 566 (6th Cir. 1995).
Plaintiff has provided no support for his contention that defendant McCoy's pleading is either scandalous or redundant as a matter of law. Rather, plaintiff argues that the answer is "scandalous" because "it never directly denies the allegation neither does it give admittance thereby being scandalous." (Doc. 42 at 1). A review of defendant McCoy's pleading demonstrates, contrary to plaintiff's assertion, that defendant McCoy admitted and denied where he was able to based upon his knowledge and information. See Doc. 37, ¶¶ 1-4, 6-7, 13, 17. As to the remaining allegations, defendant McCoy answers that he is without sufficient knowledge and information to either admit or deny the allegation or that the allegation contains legal conclusions that do not require a response. Id. at ¶¶ 5, 8-12, 14-16. As a review of the answer demonstrates that defendant McCoy responded to plaintiff's allegations as required by Federal Rule of Civil Procedure 8(b), the Court finds that plaintiff's characterization of the pleading as "scandalous" is without merit and his motion to strike in this regard is denied.
Likewise, plaintiff has provided no legal authority or support for his assertion that defendant McCoy's answer is "redundant" because "[i]t set forth defenses to cover all grounds instead of the issue at hand . . . ." (Doc. 42 at 1). Federal Rule of Civil Procedure 8 provides that a party responding to a pleading must set forth "in short and plain terms its defenses to each claim asserted against it. . . ." Fed. R. Civ. P. 8(b)(1)(A). In light of this requirement, the Court finds that defendant McCoy's pleading appropriately sets forth both general and specific defenses to plaintiff's allegations against him. Plaintiff's motion to strike the pleading as "redundant" is thus denied.
To the extent that plaintiff asserts the pleading should be stricken for untimeliness, his motion is not well-taken. Plaintiff's complaint was served upon defendant McCoy on July 19, 2013. (Doc. 39). Consequently, defendant McCoy's answer was due by August 9, 2013. Fed. R. Civ. P. 12(A)(i). Defendant McCoy filed his answer with the Court on August 8, 2013 (Doc. 37) and plaintiff admits he was served on August 9, 2013. (Doc. 46 at 2). Plaintiff's assertion that the answer was to be filed and served upon him by August 8, 2013, is without any support in the record.
For the above reasons, plaintiff's motions to strike (Docs. 42, 46) are DENIED.
II. Motions Related to Plaintiff's Motion for a Restraining Order (Docs. 47, 49, 50)
Plaintiff filed an "Order for Temporary Restraining Order" which the Court construes as plaintiff's motion for a restraining order, wherein plaintiff requests that the Court enter an order requiring plaintiff's transfer to another institution and that defendant McCoy and other employees at the SOCF be "restrained" from plaintiff. (Doc. 47). Plaintiff subsequently moved to withdraw his motion, representing that he is no longer in fear for his safety from defendant McCoy. (Doc. 49). The following day, plaintiff filed a "Motion to Strike His Motion to Strike Temporary Protection Order and to Proceed with his Request for an Order for Protection Order." (Doc. 50). This motion was accompanied by an affidavit wherein plaintiff represents that unknown SOCF employees harassed and threatened him. (Doc. 50 at 2). Plaintiff's affidavit includes a request for a transfer to another correctional institution. (Id.). Plaintiff's motions for injunctive relief are not well-taken.
While plaintiff's motions are titled "Motion to Strike," the Court construes them as motions to withdraw.
In determining whether to issue an a preliminary injunction or temporary restraining order, this Court must balance the following factors:
1. Whether the party seeking the injunction has shown a "strong" likelihood of success on the merits;Northeast Ohio Coalition for Homeless and Srv. Employees Inter. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006); Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000); United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341, 347 (6th Cir. 1998); Southern Milk Sales, Inc. v. Martin, 924 F.2d 98, 103 n.3 (6th Cir. 1991). The four factors are not prerequisites, but must be balanced as part of a decision to grant or deny injunctive relief. Blackwell, 467 F.3d at 1009; Leary, 228 F.3d at 736; Performance Unlimited v. Quester Publishers, Inc., 52 F.3d 1373, 1381 (6th Cir. 1995).
2. Whether the party seeking the injunction will suffer irreparable harm absent the injunction;
3. Whether an injunction will cause others to suffer substantial harm; and
4. Whether the public interest would be served by a preliminary injunction.
Plaintiff has presented no evidence demonstrating that he has a substantial likelihood of success on the merits of his claim or that he will suffer irreparable harm should his motions be denied. Plaintiff's declarations under 28 U.S.C. § 1746 do not contain facts demonstrating that plaintiff is entitled to a restraining order or transfer from the SOCF. Moreover, plaintiff's motions relate to alleged retaliatory acts which have already occurred. "[A] temporary restraining order is not the proper mechanism for remedying past violations yet to be proven." Brown v. Voorhies No. 1:07cv463, 2009 WL 4331157, at *1 (S.D. Ohio Nov. 30, 2009) (Beckwith J.) (citing Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir. 1996)). This is precisely the remedy plaintiff seeks - a restraining order to address alleged constitutional violations which have already taken place. As the relief requested is improper given the instant circumstances and as the evidence submitted by plaintiff fails to demonstrate either that he has a substantial likelihood of success based on the merits of his constitutional claim or that he will suffer irreparable harm absent a Court order, plaintiff's motions for restraining orders (Docs. 47, 50) should be DENIED. Plaintiff's motion to withdraw his motion for a restraining order (Doc. 49) is DENIED as moot.
The undersigned notes that plaintiff has been put on notice previously as to the necessary showing for obtaining injunctive relief. See Doc. 23 at 3-5; Doc. 32 at 2-3.
III. Plaintiff's Motions to Take Depositions Upon Written Questions (Docs. 51, 52)
Plaintiff moves to take the depositions of defendant McCoy and witness Larry Green by written question pursuant to Federal Rule of Civil Procedure 31. (Docs. 51, 52). Plaintiff has submitted the questions he seeks to present to defendant McCoy (Doc. 51 at 2-4) and Mr. Green. (Doc. 52 at 2-4). Attached to plaintiff's motion for summary judgment filed on November 21, 2013 (Doc. 54), are the sworn answers by defendant McCoy and witness Green to the questions propounded by plaintiff. Therefore, plaintiff's motions (Docs. 51, 52) are DENIED as moot.
IV. Plaintiff's Motion to Transfer (Doc. 53)
Plaintiff moves for a transfer from SOCF to the Ohio State Penitentiary on the ground that an unknown correctional officer at SOCF recently sprayed him with pepper spray while he was behind "2 slammer cell doors." (Doc. 53). Plaintiff's motion to transfer seeks both a court order restraining SOCF employees and a transfer to another correctional facility. Plaintiff has presented no evidence in support of his motion. Accordingly, for the reasons stated above in connection with plaintiff's motion for a restraining order, plaintiff's motion to transfer (Doc. 53) should be DENIED.
V. Plaintiff's Motion for Show Cause Order (Doc. 55)
Plaintiff has filed an "Order to Show Cause for An (sic) Temporary Restraining Order," which is styled as a proposed order and a supporting memorandum, which the Court will construe a motion for injunctive relief. See Doc. 55. Plaintiff seeks entry of an order enjoining defendant and others from harassing and retaliating against plaintiff and from withholding his legal work; plaintiff also seeks transfer to another correctional facility, namely the Ohio State Penitentiary. (Id. at 1). Plaintiff argues that a temporary restraining order is appropriate because: (1) there is a strong likelihood that he will be successful at trial in showing a violation of his constitutional rights based on the pleadings and discovery in the instant case; (2) based on his affidavit, there is evidence that plaintiff will suffer irreparable harm absent entry of the order; (3) plaintiff will suffer psychological and physical injury if SOCF officials are not restrained from harassing him; and (4) the public interest is served by entry of the order as the transfer to the Ohio State Penitentiary will not result in a reduction of plaintiff's current security level or status. (Doc. 55 at 4). Plaintiff supports his motion with an affidavit wherein he attests that "C/O Fry" called him a "snitch" and other correctional officers threatened plaintiff for filing the instant lawsuit against defendant McCoy. (Id. at 6). Plaintiff further supports his motion with the declaration of fellow SOCF inmate Marc. A. Crockett, who declares that he overheard the above name-calling and threats. (Id. at 7).
This Court finds that plaintiff has not alleged facts sufficient to warrant an injunction. Plaintiff's requests to enjoin non-party SOCF employees should be denied for several reasons. First, the affidavits filed by plaintiff are insufficient for purposes of granting his request for injunctive relief as both rely on inadmissible hearsay. Second, the claims of threats and harassment by non-parties raised in the motion are unrelated to the excessive use of force claim in the complaint. "The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). Plaintiff has requested the Court to enjoin individuals who are not parties to this lawsuit and he seeks relief that is unrelated to the excessive use of force claim in his complaint. See Atakpu v. Lawson, No. 1:05-cv-524, 2006 WL 3803193, at *l-2 (S.D. Ohio Nov. 28, 2006) (Spiegel, J.) (prisoner's motion for injunctive relief for harassment and retaliation denied as unrelated to prisoner's complaint, which alleged denial of adequate medical care). Plaintiff cannot use his standing in this lawsuit to litigate unrelated claims against non-parties. Plaintiff's assertions do not support the issuance of an injunction in this matter.
For these reasons, plaintiff's motion for a temporary restraining order (Doc. 55) should be DENIED.
VI. Conclusion
For the reasons stated herein, IT IS RECOMMENDED THAT plaintiff's motions for temporary restraining orders (Docs. 47, 50, 53, 55) should be DENIED.
Further, IT IS ORDERED THAT plaintiff's motions to strike defendants' answer (Docs. 42, 46) are DENIED; plaintiff's motion to withdraw his motion for a temporary restraining order (Doc. 49) is DENIED as moot; and plaintiff's motions to take depositions upon written questions (Docs. 51, 52) are DENIED as moot. In the event plaintiff is able to proceed with the depositions upon written questions, plaintiff is ORDERED to notify the Court upon submitting his notices of depositions.
_____________
Karen L. Litkovitz
United States Magistrate Judge
JIMMIE L. WASHINGTON, Plaintiff,
vs. C/O JOHN McCOY, Defendant.
Case No. 1:12-cv-628
Beckwith, J.
Litkovitz, M.J.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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