United States District Court, D. Nevada
FERENBACH, UNITED STATES MAGISTRATE JUDGE
matter involves Plaintiff David Gonzalez's pro
se civil rights action under 42 U.S.C. § 1983 and
Nevada law against Defendants Clark County, ex rel, High
Desert State Prison (“HDSP”) Sergeant David
Aspiazu, and HDSP Correctional Officer Erin Hood. Before the
Court is Gonzalez's Motion to Strike (ECF No. 13); the
Defendants' Response (ECF No. 14); and Gonzalez's
Reply (ECF No. 15). For the reasons stated below,
Gonzalez's Motion to Strike is denied.
is currently incarcerated at HDSP. Gonzalez originally filed
this action in state court in November 2016. See ECF
No. 1-1 at 2. On February 24, 2017, the Defendants removed
the action to Federal Court. See ECF Nos. 3; 8.
Gonzalez's Complaint has not been screened under 28
U.S.C. § 1915A. On March 3, 2017, the Defendants filed
an Answer to the Complaint. See ECF No. 5. On April
12, 2017, the Defendants filed a proposed discovery plan and
scheduling order which Gonzalez did not agree to.
See ECF No. 10. The following day, this Court
approved the discovery plan and scheduling order.
See ECF No. 11. A few days later, Gonzalez filed the
instant Motion asking this Court to strike the discovery plan
and scheduling order because it was filed by Defendants
before the District Court screened his complaint under §
Rule of Civil Procedure 12(f) provides that “[t]he
court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). Additionally, district
courts have the inherent power to control their own dockets,
including the power to strike items from the docket. See
Ready Transportation, Inc., v. AAR Manufacturing, Inc.,
627 F.3d 402, 404 (9th Cir. 2010) (quoting Atchison,
Topeka & Santa Fe Ry. v. Hercules, Inc., 146 F.3d
1071, 1074 (9th Cir. 1998)).
courts ordinarily screen a prisoner's complaint prior to
service. See 28 U.S.C. § 1915A(a). Both §
1915A(a) and the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e, mandate early
judicial screening of prisoner complaints. See Jones v.
Bock, 549 U.S. 199, 213-14 (2007) (noting that district
courts must screen a prisoner's complaint “before
any responsive pleading is filed”). When defendants
file an answer or responsive pleading, however, the need for
screening is obviated. See, e.g., Nordstrom v.
Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (“The
purpose of § 1915A is to ensure that the targets of
frivolous or malicious suits need not bear the expense of
responding”); O'Neal v. Price, 531 F.3d
1146, 1153 (9th Cir. 2008) (explaining that the PLRA's
screening provision was intended “to conserve judicial
resources by authorizing district courts to dismiss
nonmeritorious prisoner complaints at an early stage”);
Mayo v. Williams et al., Case No.
2:16-cv-00047-APG-VCF (ECF No. 7, February 1, 2016).
case, a screening order is not necessary. The Defendants
filed a notice of removal on February 24, 2017. The
Defendants have responded to Gonzalez's Complaint by
timely filing an Answer. See ECF No. 5. Fed.R.Civ.P.
81(c)(2) states, among other things, that after
“removal, repleading is unnecessary unless the court
orders it” and that a “defendant who did not
answer before removal must answer or present other defenses
or objections” within “7 days after the notice of
removal is filed.” See Fed.R.Civ.P. 81(c)(2);
see also LR 81-1. This case should proceed on the
normal litigation track as guided by the Federal Rules of
Civil Procedure. Accordingly, striking the discovery plan and
scheduling order is not warranted. See Chan v. Pan W.
Corp., No. 2:10-CV-1317-KJD-PAL, 2011 WL 830237, at *1
(D. Nev. Mar. 4, 2011) (“A Rule 12(f) motion is
considered a ‘drastic remedy' that is
‘generally disfavored' by federal courts.”)
(citing Nevada Fair Housing Center, Inc. v. Clark
County, 565 F.Supp.2d 1178 (D. Nev. 2008)); see also
Bureerong v. Uvawas, 922 F.Supp. 1450, 1478 (C.D. Cal.
1996) (“Rule 12(f) motions are generally disfavored
because they are often used as delaying tactics, and because
of the limited importance of pleadings in federal
practice.”) (citations omitted). The Court also notes
that pursuant to the discovery plan and scheduling order,
Gonzalez may file a motion or stipulation to extend a
deadline or modify a provision in the discovery plan and
scheduling order. See ECF No. 11 at 4. Gonzalez is
advised that any stipulation or motion must be made no later
than 21 days before the expiration of the subject deadline
and must meet certain basic requirements.
and for good cause shown, IT IS ORDERED that Gonzalez's
Motion to Strike (ECF No. 13) is DENIED.
to Local Rule IB 3-1(a), a party may object to an order
issued by the Magistrate Judge. Objections must be in writing
and filed with the Clerk of the Court within 14 days.
See LR IB 3-1(a). The Supreme Court has held that
the courts of appeal may determine that an appeal has been
waived due to the failure to file objections within the
specified time. See Thomas v. Arn, 474 U.S. 140, 142
(1985). This circuit has also held that (1) failure to file
objections within the specified time and (2) failure to
properly address and brief the objectionable issues waives
the right to appeal the District Court's order and/or
appeal factual issues from the order of the District Court.
See Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.
1991); see also Britt v. Simi Valley United Sch.
Dist., 708 F.2d 452, 454 (9th Cir. 1983).
to Local Special Rule 2-2, the Plaintiff must immediately
file written notification with the court of any change of
address. The notification must include proof of service upon
each opposing party of the party's attorney Failure to
comply with this Rule may result in dismissal of the action
See LSR 2-2.