Turner v. Ralkey

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA VICTOR JULIAN TURNER, CASE NO. 3:20-CV-5472-BHS-DWC 11 Plaintiff, ORDER 12 v. TORI TALKEY, et al., 14 Defendant.

16 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. Before the Court are two motions filed by Plaintiff: (1) Motion to stay Plaintiff’s 42 USC § 1983 Claim Pending Appeal of Report and Recommendation (Dkt. 26, “Motion to Stay”) and (2) Motion to Strike Affirmative Defenses Pursuant to Fed. R. Civ. P. 12 (Dkt. 29, “Motion to Strike”).1 Also pending is Plaintiff’s Second Motion to Strike Defendants Affirmative Defense (Dkt. 33, “Second Motion to Strike”) which attacks Defendants’ Amended Answer (Dkt. 31). The Second Motion to Strike is ready for the Court’s consideration on October 9, 2020 and will be addressed in a separately filed order. Dkt. 33.

1 1. Motion to Stay (Dkt. 26) 2 Plaintiff moves for the Court to stay this case pending his eventual, but not yet filed, appeal of undersigned’s report and recommendation denying Plaintiff’s Motion for Preliminary Injunction (Dkt. 8, 24). Dkt. 26.

5 On July 23, 2020, the undersigned issued a report and recommendation denying Plaintiff’s Motion for Preliminary Injunction. Dkt. 24. Plaintiff filed objections. Dkt. 25. On September 21, 2020, the District Judge assigned to this matter, the Honorable Benjamin H.

8 Settle, adopted the undersigned’s report and recommendation and denied Plaintiff’s Motion for Preliminary Injunction. Dkt. 34.

10 Plaintiff’s Motion to Stay seeks a stay of this matter during a future appeal to the Ninth Circuit. Dkt. 26. Plaintiff has not yet filed an appeal of Judge Settle’s Order Adopting the Report and Recommendation or any decision of this Court. Plaintiff has not demonstrated any reason to stay this case pending the outcome of a prospective appeal. Accordingly, the Motion to Stay (Dkt. 26) is denied as premature without prejudice.

15 2. Motion to Strike (Dkt. 29) 16 Defendants filed their Original Answer to the Complaint on August 17, 2020, listing three affirmative defenses. Dkt. 27. On August 27, 2020, Plaintiff filed the Motion to Strike. Dkt.

18 29. On September 8, 2020, Defendants filed an Amended Answer, listing one affirmative defense. Dkt. 31. On September 11, 2020, Defendants filed a Response to the Motion to Strike.

20 Dkt. 32.

21 Rule 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). Defendants are required to “affirmatively state any avoidance or affirmative defenses.” Fed. R. Civ. P. 8(c)(1).

3 Here, the Motion to Strike seeks to strike the affirmative defenses as alleged by Defendants in the Original Answer. Dkt. 27, 29. Defendants filed an Amended Answer on September 8, 2020. Dkt. 31. Defendants may amend once as a matter of course within 21 days of serving their Answer. See Fed. R. Civ. P. 15(a)(1)(A). In light of the filing of the Amended Answer, Plaintiff’s Motion to Strike (Dkt. 29) seeking to strike the affirmative defenses in the Original Answer is denied as moot. See Russell Rd. Food & Beverage, LLC v. Galam, 2013 WL 9 6684631, at *1 (D. Nev. Dec. 17, 2013) (denying motion to strike affirmative defenses in the answer as moot once an amended answer was filed).

11 Dated this 23rd day of September, 2020.

A David W. Christel 14 United States Magistrate Judge