Free Motion to Strike - District Court of Delaware - Delaware

Case 1:07-cv-00791-GMS

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Filed 09/05/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL L. JONES, ) ) Plaintiff, ) ) v. ) ) RAYNARD JONES and AUDREY EVANS,) ) Defendants. )

C.A. No. 07-791-GMS Jury Trial Demanded

DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S RESPONSE TO DEFENDANTS' ANSWER 1. Michael L. Jones ("Plaintiff") is an inmate under the supervision of the

Delaware Department of Correction ("DOC") at the James T. Vaughn Correctional Center ("JTVCC") in Smyrna, Delaware. 2. On December 6, 2007, Plaintiff filed a Complaint pursuant to 42

U.S.C. §1983, with leave to proceed in forma pauperis alleging First, Eighth and Fourteenth Due Process violations against numerous DOC employees. [D.I. 2]. On this same date, Plaintiff also filed a Motion for Preliminary Injunction as well as a Motion to Appoint Counsel. [D.I. 4, 5]. On or about April 16, 2008, by Order of the Court, all of the Defendants were dismissed except Defendants Raynard Jones and Audrey Evans. [D.I. 8]. Plaintiff's Motion for Appointment of Counsel was also denied. Id. 3. 4. On August 5, 2008, Defendants filed an Answer. [D.I. 14]. On September 3, 2008, Plaintiff filed a Response to Defendants' Answer

to Complaint. [D.I. 20]. 5. Plaintiff's Response to Defendants' Answer to Complaint should be

stricken pursuant to Fed.R.Civ.P. 7. Rule 7 provides in relevant part:

Case 1:07-cv-00791-GMS

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(a) Pleadings. Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. (emphasis added). 6. There is nothing in the Court's docket reflecting that the Court ordered the

Plaintiff to file a response to Defendants' Answer. The Plaintiff's latest motion should be stricken as it clearly violates Fed.R.Civ.P. 7. While Defendants do not dispute the Plaintiff's right to seek redress for perceived violations of his rights, he must do so pursuant to the Court's rules so that the parties and the Court will be aware of the specific factual and legal issues to be decided in a pending case. WHEREFORE, Defendants respectfully request that this Honorable Court strike Plaintiff's motion filed on September 3, 2008, as the Plaintiff's motion is outside the scope of pleadings permitted by Fed.R.Civ.P. 7.

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Catherine Damavandi Catherine Damavandi (ID # 3823) Deputy Attorney General Delaware Department of Justice Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 [email protected] (302) 577-8400

Dated: September 5, 2008

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CERTIFICATE OF SERVICE I hereby certify that on September 5, 2008 I electronically filed Defendants' Motion to Strike with the Clerk of Court using CM/ECF. I further certify that on September 5, 2008, I caused the within document to be mailed to the following nonregistered participant by United States Postal Service:

Michael L. Jones SBI#417267 James T. Vaughn Correctional. Center 1181 Paddock Road Smyrna, DE 19977

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Catherine Damavandi Catherine Damavandi (ID # 3823) Deputy Attorney General Delaware Department of Justice Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 [email protected] (302) 577-8400 Attorney for Defendants

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL L. JONES, ) ) Plaintiff, ) ) v. ) ) RAYNARD JONES and AUDREY EVANS,) ) Defendants. )

C.A. No. 07-791-GMS Jury Trial Demanded

ORDER

Upon the Plaintiff's Response to Defendants' Answer to Complaint [D.I. 20], and Defendants' Motion to Strike; and it appearing that good and sufficient notice of Plaintiff's Motion and Defendants' Response has been given; and after due deliberation thereon: IT IS HEREBY ORDERED that Plaintiff's Response to Defendants' Answer to Complaint is STRICKEN.

SO ORDERED this _________ day of ______________, 2008.

_________________________________ The Honorable Gregory M. Sleet United States District Court Judge