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Freitas v. Thomas

United States District Court, D. Arizona

January 26, 2016

Melvin De Freitas, Plaintiff,
v.
Todd Thomas, et al., Defendants.

ORDER

Eileen S. Willett United States Magistrate Judge

Pro se Plaintiff Melvin De Freitas is a prisoner confined in the Saguaro Correctional Center, a Corrections Corporation of America facility in Eloy, Arizona. On July 8, 2013, Plaintiff initiated this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court are a number of motions. The Court has reviewed the motions and issues its orders as set forth below.

I. DISCUSSION

A. Defendants’ “Motion to Strike and Remove from the Docket Plaintiff’s Second Set of Supplemental Disclosure Statement Plus 304 to 374 Production of Documents (Doc. #110)” (Doc. 120)

On October 21, 2015, Plaintiff filed a “Second Set of Supplemental Disclosure Statement Plus 304 to 374 Production of Documents” (Doc. 110) (the “Second Supplemental Disclosure Statement”). The Second Supplemental Disclosure Statement supplements Plaintiff’s Initial Disclosure Statement that Plaintiff served on Defendants in October 2014 (Doc. 52). In their Motion (Doc. 120), Defendants request the Court to strike the Second Supplemental Disclosure Statement (Doc. 110). Plaintiff has responded in opposition (Doc. 128). Defendants have replied (Doc. 130).

As discussed in the Court’s October 28, 2015 Order (Doc. 113 at 3), “disclosures under Rule 26(a)(1) or (2) . . . must not be filed until they are used in the proceeding or the court orders filing . . . .” Fed.R.Civ.P. 5(d). Rule 5.2 of the Local Rules of Civil Procedure (“LRCiv”) provides that “[a] ‘Notice of Service’ of the disclosures and discovery requests and responses listed in Rule 5(d) of the Federal Rules of Civil Procedure must be filed within a reasonable time after service of such papers.” Plaintiff has not “used” the Second Supplemental Disclosure Statement (Doc. 110) in the proceeding (e.g. by relying upon the document in support of a motion). Plaintiff’s filing of the Second Supplemental Disclosure Statement (Doc. 110) instead of a “Notice of Service” therefore violates Rule 5(d) of the Federal Rules of Civil Procedure and LRCiv 5.2. Accordingly, Plaintiff’s Second Supplemental Disclosure Statement (Doc. 110) will be stricken. The Court deems the October 21, 2015 filing date of Plaintiffs Second Supplemental Disclosure Statement (Doc. 110) to be the date of service on Defendants. By February 9, 2016, Plaintiff shall file a Notice of Service in compliance with LRCiv 5.2 indicating that on October 21, 2015, Plaintiff served the Second Supplemental Disclosure Statement on Defendants.

Defendants’ Motion (Doc. 120) also requests that the Court remove Plaintiffs Second Supplemental Disclosure Statement from the docket as it contains the first and last names of correctional personnel. (Doc. 120 at 2). The Court construes Defendants’ request as a motion to seal Plaintiff’s Second Supplemental Disclosure Statement (Doc. 110).

The public has a general right to inspect and copy judicial records and documents. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). Although this right is not absolute, there is a strong presumption in favor of access to judicial records. To overcome this presumption, a party seeking to seal a judicial record must meet (i) the “compelling reasons” standard if the record is a dispositive pleading or (ii) the “good cause” standard if the record is a non-dispositive pleading. Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir. 2006); Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010).

Here, because Plaintiff’s Second Supplemental Disclosure Statement (Doc. 110) is not a dispositive pleading, Defendants must show good cause for sealing the document. The “good cause” standard requires a showing that specific prejudice or harm will result if the document is not sealed. Phillips ex. rel. v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). “If a court finds particularized harm will result from disclosure of information to the public, then it balances the public and private interests” to decide whether it is necessary to seal a document. Id.

Plaintiff’s Second Supplemental Disclosure Statement (Doc. 110) lists the first and last names of a number of correctional employees. Defendants assert that the full names of correctional employees are not divulged to current or former inmates in order to protect the employees’ privacy and security. (Doc 120 at 2). The Court recognizes the potential safety risks to correctional employees if their full names became public record. These potential safety risks outweigh the need for the public’s access to the information. The Court finds that Defendants have shown good cause for sealing Plaintiff’s Second Supplemental Disclosure Statement (Doc. 110).

For the above reasons, the Court directs the Clerk of Court to seal and strike Plaintiff’s Second Supplemental Disclosure Statement (Doc. 110).

B. Plaintiff’s “Notice of Service for Permission to Amend Plaintiff’s Response to Defendant’s Motion for Sanctions [Doc # 116] Affidavit of Kalima Smith” (Doc. 124) and Defendants’ “Motion to Strike and Remove from the Docket Plaintiff’s Notice of Service for Permission to Amend Plaintiff’s Response to Defendants’ Motion for Sanctions [Doc 116-1] Affidavit of Kalima Smith” (Doc. 127)

On October 2, 2015, Defendants filed a “Motion for Sanctions Pursuant to Rule 11” (Doc. 104). Defendants allege that Plaintiff willfully and knowingly defrauded the Court by submitting witness declarations that Plaintiff knew were false. Plaintiff responded to the Motion for Sanctions on October 27, 2015 (Doc. 112). Defendants replied on November 6, 2015 (Doc. 116). In their Reply (Doc. 116 at 1), Defendants allege that newly discovered evidence shows that Plaintiff also attempted to bribe inmate Kalima Smith to provide a false declaration in support of Plaintiff’s claims. Attached to Defendants’ Reply is an affidavit signed by Mr. Smith, which is dated October 29, 2015. On November 16, 2015, Plaintiff filed a “Notice of Service for Permission to Amend Plaintiff’s Response to Defendant’s Motion for Sanctions [Doc # 116] Affidavit of Kalima Smith” (Doc. 124).[1] In his Notice, Plaintiff explains that he is amending his Response to oppose the affidavit of Mr. Smith. (Doc. 124). Defendants request that the Court strike Plaintiff’s Notice (Doc. 124) as an improper sur-reply. (Doc. 127).

Defendants are correct that neither the Federal nor Local Rules of Civil Procedure authorize the filing of a sur-reply. Yet “[i]t is well settled that new arguments cannot be made for the first time in reply. This goes for new facts too.” Gold v. Wolpert, 876 F.2d 1327, 1331 n.6 (7th Cir. 1989). To the extent that a party raises a new argument or proffers new evidence and information in a reply brief, that argument or evidence is improper because the opposing party is deprived of an opportunity to respond. See Tovar v. United States Postal Service, 3 F.3d 1271, 1273 n.3 (9th Cir. 1993). A court cannot consider new evidence provided in a reply when the other party does not have an opportunity to respond to the evidence. See ...


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