(PC) Zaiza v. Clark ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE ROBERTO ZAIZA, 1:19-cv-01476-DAD-GSA-PC 12 ORDER DISREGARDING PLAINTIFF’S Plaintiffs, REPLY TO ANSWER 13 14 vs. (ECF No. 34.) CLARK, et al., 15 Defendants. 16 17 Jose Roberto Zaiza (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the 19 Complaint commencing this action on October 17, 2019. (ECF No. 1.) This case now proceeds 20 with the First Amended Complaint against Defendants Ken Clark (Warden) and Captain J. 21 Gallagher1 (collectively, “Defendants”) for insufficient access to out-of-cell exercise in violation 22 of the Eighth Amendment.2 (ECF No. 11.) On February 25, 2022, Defendants filed an Answer 23 to the First Amended Complaint. (ECF No. 29.) 24 25 1 Sued as Gallager. 26 2 On April 20, 2021, the court issued an order dismissing all claims and defendants from this case except for Plaintiff’s adverse conditions of confinement claims against defendants Clark, 27 Gallagher, and Baughman, for Plaintiff’s failure to state a claim. (ECF No. 15.) On January 27, 2022, 28 the Court granted in part Defendants’ motion to dismiss, dismissing Defendant Baughman from this case. (ECF No. 21.) 1 On March 30, 2022, Plaintiff filed a reply to Defendants’ Answer. (ECF No. 34.) Federal 2 Rule of Civil Procedure 7(a) identifies the types of pleadings which are allowed. Fed. R. Civ. P. 3 7(a). Parties are only permitted to file a reply to an Answer “if the court orders one.” Fed. R. 4 Civ. P. 7(a)(7). A reply is not permitted as a right. 5 Leave to file a reply, or to compel a reply, requires the moving party to make clear and 6 convincing reasons or show extraordinary circumstances why a reply is necessary. Moviecolor, 7 Ltd. v. Eastman Kodak Co., 24 F.R.D. 325, 326 (S.D. N.Y. 1959) (“that a reply to an affirmative 8 defense should not be ordered unless there is a clear and convincing factual showing of necessity 9 or other extraordinary circumstances of a compelling nature”). 10 Defendants’ Answer to Plaintiff’s First Amended Complaint does not include a 11 counterclaim against Plaintiff. (See ECF No. 27.) Nor has the Court ordered Plaintiff to reply 12 to Defendants’ Answer. Furthermore, Plaintiff has not stated clear and convincing reasons or 13 what extraordinary circumstances would compel this Court to permit him to file a reply. 14 Therefore, the Court shall disregard Plaintiff’s reply. 15 Therefore, based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s reply to 16 Defendants’ Answer, filed on March 30, 2022, is disregarded. 17 IT IS SO ORDERED. 18 19 Dated: April 20, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28