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Hargrove v. Holley

United States District Court, S.D. Ohio, Western Division

August 1, 2018

DANIEL P. HARGROVE, Plaintiff,
v.
CO HOLLEY, et al., Defendants

          Black, J.

          ORDER AND REPORT AND RECOMMENDATION

          Karen L. Litkovitz, United States Magistrate Judge.

         Plaintiff, a former inmate at Lebanon Correctional Institution ("LeCI"), brings this civil rights action under 42 U.S.C. § 1983 against three prison employees alleging violations of his Eighth Amendment rights for failing to protect him from an attack by a fellow inmate and for deliberate indifference to his medical needs. (Doc. 7). This matter is before the Court on defendants Holley and Hubbard's[1] motion to dismiss (Doc. 24), plaintiffs response in opposition (Doc. 29), and defendants' reply memorandum (Doc. 30). This matter is also before the Court on plaintiffs motion for punitive damages (Doc. 14), motion for monetary judgment (Doc. 26), second motion for monetary judgment (Doc. 32), motion for monetary judgment/breach of time (Doc. 42) and defendants' response in opposition (Doc. 44), and plaintiffs motion to change the name of and properly serve a new defendant (Doc. 45). This matter is also before the Court on defendants' motion to strike (Doc. 36).

         I. Procedural Background

         Plaintiff was granted leave to proceed in forma pauperis and initiated this action on August 25, 2017. (Docs. 1, 3). On October 31, 2017, the undersigned conducted a sua sponte review of plaintiff s amended complaint (Doc. 7) under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). The undersigned recommended that plaintiff could proceed with his Eighth Amendment individual capacity claim for failure to protect against defendants Holley and Hubbard and his Eighth Amendment individual capacity claim for deliberate indifference to his serious medical needs against defendant Heyd. (Doc. 10 at 16). The undersigned further recommended that plaintiffs motions to amend his complaint a second time and motion for a preliminary injunction be denied. On December 27, 2017, the District Court adopted the Report and Recommendation. (Doc. 17).

         II. The Amended Complaint (Doc. 7)

         Plaintiff alleges that on July 1, 2017 at 11:50 a.m., while he was half asleep in his cell in R-block, his cellmate "attacked] him and bit[] his right ear off or half of it and pulled his right eye out of [its] socket." (Amended Complaint, Doc. 7 at 1). At the time of the alleged attack, plaintiff claims that "only one officer [Holley] was working in R-block." (Id.). Plaintiff further claims that "the cells had no emergency call system." (Id.). According to plaintiff, he informed defendant Holley before the alleged attack "about the differences [he] and his cell-mate had." (Id.). Plaintiff alleges that defendant Holley was "negligent in moving [him] out of the cell." (Id.). Plaintiff also alleges that defendant Holley "failed to stop the attack, he was just standing there watching." (Id.). Plaintiff claims that defendant Hubbard, "the supervisor that['s] over the hole [sic], R-block," should have moved plaintiff out of the cell the day before the attack "after [Hubbard] was told about [the] cell-mate[']s constant ejackulation [sic] in the cell while the plaintiff was in the cell with him." (Id. at 3). Based on these allegations, plaintiff brings claims against defendants Holley and Hubbard under the Eighth Amendment for failure to protect him from the attack by his cellmate.

         III. Motion to Strike

         Defendants Holley and Hubbard move to strike plaintiffs supplemental memorandum (Doc. 31) filed in response to their reply memorandum, as well as plaintiffs motion for monetary judgment (Doc. 32), which they construe as an additional response to their reply memorandum. (Doc. 36).

         Motions to strike are governed by Rule 12(f), which provides that a court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). The Local Rules for the Southern District of Ohio provide:

Opposing and Reply Memoranda. Any memorandum in opposition shall be filed within twenty-one days after the date of service of the motion. Failure to file a memorandum in opposition may result in the granting of any motion that would not result directly in entry of final judgment or an award of attorneys' fees. Any reply memorandum shall be filed within fourteen days after the date of service of the memorandum in opposition. No additional memoranda beyond those enumerated are permitted except upon leave of court for good cause shown.

         S.D. Ohio Local Civil Rule 7.2(a)(2) (emphasis added). Plaintiff has neither sought leave of court nor shown good cause for the filing of these memoranda in response to defendants' reply.

         Accordingly, defendants' motion to strike (Doc. 36) is GRANTED and plaintiffs memoranda (Docs. 31, 32) shall be STRICKEN from the docket of this Court.

         IV. Defendants Holley and Hubbard's Motion to Dismiss (Doc. 24)

         A. Rule ...


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