(PC) Hernandez v. Marcelo ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARINO ANTONIO HERNANDEZ, No. 1:19-cv-01219-NONE-JLT (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND 13 v. RECOMMENDATIONS AND DENYING PLAINTIFF’S MOTION TO STRIKE 14 J. MARCELO, et al., DEFENDANTS’ AFFIRMATIVE DEFENSES 15 Defendants. (Doc Nos. 28, 40) 16 17 Plaintiff Marino Hernandez is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 17, 2020, plaintiff filed a motion to strike all but one of defendants’ 21 affirmative defenses asserted in their answer. (Doc. No. 28.) Defendants filed an opposition on 22 September 11, 2020, (Doc. No. 31), to which plaintiff filed a reply on September 21, 2020, (Doc. 23 No. 32). 24 On January 6, 2021, the assigned magistrate judge filed findings and recommendations, 25 recommending that plaintiff’s motion be denied because (1) plaintiff’s motion was untimely 26 under Federal Rule of Civil Procedure 12(f) and (2) plaintiff failed to allege or demonstrate 27 prejudice arising from defendants’ affirmative defenses. (Doc. No. 40.) The findings and 1 | thereto. Ud. at 2.) After receiving an extension of time, plaintiff filed objections on February 16, 2 | 2021. (Doc. No. 44.) 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(©), this court has conducted a 4 | de novo review of this case. Having carefully reviewed the file, including plaintiff's objections, 5 | the court finds the findings and recommendations to be supported by the record and proper 6 | analysis. Plaintiff does not dispute that his motion was untimely or that he has failed to 7 | demonstrate prejudice stemming from defendants’ assertion of the affirmative defenses. On the 8 | latter point, as the magistrate judge correctly noted, “motions to strike are regarded with 9 | disfavor;” therefore, “courts often require a showing of prejudice by the moving party.” S.E.C. v. 10 || Sands, 902 F. Supp. 1149, 1165-66 (C.D. Cal. 1995) Ginternal quotation marks and citations 11 omitted). Plaintiff has not made such a showing in his motion or in his objections. 12 Accordingly, 13 1. The findings and recommendations issued on January 6, 2021 (Doc. No. 40) are 14 adopted in full; and, 15 2. Plaintiffs motion to strike defendants’ affirmative defenses (Doc. No. 28) is denied. 16 | IT IS SO ORDERED. si □ 1 Dated: _March 16, 2021 Yole A Lange 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28