Opinion
No. 1:15-cv-00910-DAD-MJS
01-19-2017
MICHAEL BIRD, Plaintiff, v. A. MUSLEH, Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND (1) DENYING MOTION TO STRIKE ANSWER, (2) GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE DEFENSES, AND (3) DENYING MOTION FOR SANCTIONS
(Doc. Nos. 21, 22, 23, 39)
Plaintiff Michael Bird is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.
On November 30, 2016, the assigned magistrate judge issued findings and recommendations, recommending that this court (1) deny plaintiff's motion to strike defendant's answer, (2) grant in part and deny in part plaintiff's motion to strike defendant's affirmative defenses, and (3) deny plaintiff's motion for sanctions. (Doc. No. 39.) With respect to plaintiff's motion to strike defendant's affirmative defenses, the magistrate judge recommended that (a) affirmative defense Nos. 1, 4, 5, 6, 7, and 8 be stricken, and (b) defendant be granted leave to amend his answer. (Id. at 4-6.) The findings and recommendations provided the parties with fourteen days with which to file objections. (Id.) No objections were filed. On December 30, 2016, defendant filed an amended answer in response to the magistrate judge's findings and recommendations. (Doc. No. 41.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Based on the foregoing,
1. The November 30, 2016 findings and recommendations (Doc. No. 39) are adopted in full;IT IS SO ORDERED.
2. Plaintiff's motion to strike defendant's answer (Doc. No. 21) is denied;
3. Plaintiff's motion to strike defendant's affirmative defenses (Doc. No. 22) is granted in part and denied in part;
4. Affirmative defense Nos. 1, 4, 5, 6, 7, and 8 in defendant's answer (see Doc. No. 18) are stricken;
5. In light of defendant having already filed his first amended answer (see Doc. No. 41), further leave to amend defendant's answer is denied without prejudice;
6. Plaintiff's motion for sanctions (Doc. No. 23) is denied; and
7. This matter is referred back to the assigned magistrate judge for further proceedings consistent with this order.
Dated: January 19 , 2017
/s/_________
UNITED STATES DISTRICT JUDGE