The opinion of the court was delivered by: Judge George C. Smith
Magistrate Judge Norah McCann King
This is a civil rights action brought under 42 U.S.C. § 1983 by Dwayne Harris ("plaintiff"), an inmate at the Richland Correctional Institution in Mansfield, Ohio. This matter is before the Court on Plaintiff's Motion to Strike Defendants' Motion to Dismiss; and their Response to Plaintiff's Motion to File Supplemental Pleadings ("Plaintiff's Motion to Strike"). Doc. No. 33. For the reasons that follow, Plaintiff's Motion to Strike is DENIED.
In Plaintiff's Motion to Strike, plaintiff argues that Defendants' Motion to Dismiss must be stricken because "both sides entered matters outside the pleadings," i.e., Plaintiff's Motion for Summary Judgment and defendants' opposition to that motion. Plaintiff's Motion to Strike at 1-2. Plaintiff, however, is simply mistaken.
As a general rule "[m]atters outside of the pleadings are not to be considered by a court in ruling on a 12(b)(6) motion to dismiss." Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997) (emphasis added). This Court did not refer to matters outside the pleadings*fn1 when it considered Defendants' Motion to Dismiss. See Doc. No. 32.
In Plaintiff's Motion to Strike, plaintiff also asks this Court to strike defendants' response to two earlier motions to file supplemental pleadings because these earlier motions, Doc. Nos. 14, 16, have since been withdrawn. Plaintiff's Motion to Strike at 2. Plaintiff's request is not well-taken.
Although plaintiff voluntarily withdrew his earlier motions, plaintiff requested the same relief in his later motion for leave to file an amended complaint, Doc. No. 26, i.e., leave to add a habeas corpus claim to this action. It was therefore entirely appropriate for defendants, in opposing plaintiff's later motion, to incorporate their response to plaintiff's earlier motions.
WHEREUPON, in light of the foregoing, Plaintiff's Motion to Strike, Doc. No. 33, is DENIED.
Norah McCann King United States ...