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Freitas v. Thomas

United States District Court, D. Arizona

May 26, 2016

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

          ORDER

          Eileen S. Willett, United States Magistrate Judge

         The Court issues its rulings on the three Motions (Docs. 140, 141, 146) discussed herein.

         I. Plaintiff’s “Notice of Service for Permission to Amend Freitas Second Set of Supplemental Disclosure Statement . . .” (Doc. 140), Docketed as “Motion to Amend/Correct Notice”

         In October 2015, Plaintiff filed a “Second Set of Supplemental Disclosure Statement Plus 304 to 374 Production of Documents” (Doc. 110) (the “Second Supplemental Disclosure Statement”). In its January 26, 2016 Order (Doc. 137 at 2), the Court reiterated its instruction from a prior Order that “disclosures under Rule 26(a)(1) or (2) . . . must not be filed until they are used in the proceeding or the court orders filing . . . .” The Court directed the Clerk of Court to strike the Second Supplemental Disclosure Statement. (Doc. 137 at 6). The Court also directed the Clerk of Court to seal the Second Supplemental Disclosure Statement because it contained the full names of correctional employees and presented potential risks to the privacy and security interests of the employees. (Id.). The Court directed Plaintiff to file a Notice of Service in compliance with Rule 5.2 of the Local Rules of Civil Procedure (“LRCiv”), which indicates that on October 21, 2015, Plaintiff served the Second Supplemental Disclosure Statement on Defendants.[1] (Id.).

         In February 2016, Plaintiff filed a document captioned as “Notice of Service for Permission to Amend Freitas Second Set of Supplemental Disclosure Statement Present to Court Order [Doc. #137-1] and LRCiv 5.2 PLUS CERTIFICATE OF SERVICE” (Doc. 140). The Clerk of Court docketed Plaintiff’s Notice (Doc. 140) as a “Motion to Amend/Correct Notice.” Instead of filing a Notice of Service in compliance with LRCiv 5.2, Plaintiff filed an Amended Second Supplemental Disclosure Statement.[2] Plaintiff stated that he redacted the first names of correctional employees. However, as Defendants point out (Doc. 143) and Plaintiff concedes (Doc. 152), Plaintiff did not redact all of the names.

         Although pro se litigants are given leniency in evaluating compliance with the technical Rules of Civil Procedure, the rules still apply to pro se litigants. Draper v. Combs, 792 F.2d 915, 924 (9th Cir. 1986). (“We recognize that the plaintiff represented himself and therefore, in evaluating his compliance with the technical rules of civil procedure, we treat him with great leniency.”); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.”). Plaintiff’s filing of the actual Amended Second Supplemental Disclosure Statement instead of a Notice of Service violates Fed.R.Civ.P. Rule 5(d) and LRCiv 5.2. The Court will order the Clerk of Court to strike the Amended Second Supplemental Disclosure Statement (Doc. 140). Because the Amended Second Supplemental Disclosure Statement contains the full names of correctional employees, the Court will also order the Clerk of Court to seal the Amended Second Supplemental Disclosure Statement (Doc. 140).[3] The Court deems service of the Amended Second Supplemental Disclosure Statement (Doc. 140) on Defendants complete as of February 18, 2016, the date it was docketed by the Clerk of Court. By June 16, 2016, Plaintiff shall comply with LRCiv 5.2 by filing a Notice of Service indicating that on February 18, 2016, he served his Amended Second Supplemental Disclosure Statement on Defendants. The Notice of Service shall not attach the Disclosure Statement.

         II. Plaintiff’s “Notice of Service for Permission to File this Motion to Strike . . .” (Doc. 141), Docketed as “Motion to Strike”

         i. Plaintiff’s Request to Strike Inmate Kalima Smith’s Statements

         On October 2, 2015, Defendants filed a “Motion for Sanctions Pursuant to Rule 11” (Doc. 104). Plaintiff responded on October 27, 2015 (Doc. 112). On November 6, 2015, Defendants filed their “Reply in Support of Motion for Sanctions Pursuant to Rule 11” (Doc. 116). Attached to Defendants’ Reply are an affidavit and incident statement signed by inmate Kalima Smith (“Smith”). (Docs. 116-1 and 116-2). On November 16, 2015, Plaintiff filed a “Notice of Service for Permission to Amend Plaintiffs Response to Defendant’s Motion for Sanctions [Doc. # 116] Affidavit of Kalima Smith” (Doc. 124).

         In his Notice, Plaintiff stated that he “respectfully amend [sic] his response and oppose against Defendant’s newly-discovered evidence of the Affidavit claims of inmate Kalima Smith.” (Id.). Plaintiff’s Notice contained his response to Smith’s statements.

         Defendants moved to strike Plaintiff’s Notice (Doc. 124) on the ground that it is an improper sur-reply. (Doc. 127). In a January 2016 Order (Doc. 137), the Court concluded that because Defendants’ Reply (Doc. 116) contained new evidence (i.e. Smith’s affidavit and incident statement), it is appropriate to allow Plaintiff the opportunity to respond to the new evidence. The Court construed Plaintiff’s Notice (Doc. 124) as a request for leave of Court to amend his Response as set forth in the Notice. (Doc. 137 at 4-5). The Court granted Plaintiff’s request. (Id. at 5).

         In February 2016, Plaintiff filed a document captioned as “Notice of Service for Permission to File this Motion to Strike . . .” (Doc. 141). The Clerk of Court docketed the document as a “Motion to Strike.” The Motion (Doc. 141) requests that the Court “strike and not consider” Smith’s affidavit and incident statement on the ground that it is improper to include new evidence in a reply. The Court, however, has allowed Plaintiff the opportunity to respond to Smith’s statements. (Docs. 124, 137). Plaintiff’s request to strike Smith’s affidavit and incident statement (Docs. 116-1, 116-2) will be denied.

         ii. Plaintiff’s Request to Strike Inmate James Clancy’s Declaration

         On December 22, 2015, Defendants filed their “Reply in Support of Amended Motion for Summary Judgment” (Doc. 135). The Reply explains that on December 21, 2015, Defendants learned information from inmate James Clancy (“Clancy”) that supports their defense. (Id. at 8). Attached to Defendants’ ...


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