Free Motion to Strike - District Court of Delaware - Delaware

Case 1:04-cv-01396-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DANIEL L. MOORE ) ) Plaintiff, ) ) v. ) ) STATE OF DELAWARE ) DEPARTMENT OF CORRECTION et al., ) ) Defendants. )

C.A.No.04-1396-JJF

STATE DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS 1. Plaintiff Daniel Moore, ("Moore") is a former inmate who was incarcerated at

the Howard R.Young Correctional Institution ("Gander Hill") in Wilmington, Delaware during the relevant period of the actions giving rise to this Complaint. 2. On or about October 27, 2004, Moore filed a Complaint pursuant to 42

U.S.C.§1983, alleging Eighth Amendment Constitutional violations of cruel and unusual punishment against the State defendants. (Complaint, passim). Specifically, Moore alleged that while incarcerated at Gander Hill during the period from March, 1997 to 1999, he was subject to experimentation, behavioral modification, sleep deprivation and overt and covert verbal harassment by the State defendants. Id. 3. On or about December 17, 2004, State defendants filed a Motion to Dismiss with

a Memorandum of Points and Authorities in Support thereof. (D.I.##9,10). On or about January 18, 2005, Moore filed Plaintiffs' Memorandum of Points and Authorities in Support against Defendants' Motion to Dismiss. (D.I.#11). On or about February 3, 2005 in a letter to the Court State defendants waived their right to file a Reply Brief. (D.I.#12). On or about May 31, 2005,

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four months after State defendants waived their right to file a Reply Brief Moore filed Plaintiffs' Response to the Defendants' Motion to Dismiss. This motion appears to be a second Answering Brief filed by Moore. (D.I.#20) 4. Briefing on this matter was completed under the clear terms of D.Del. L.R.

7.1.2., which states in pertinent part: (a) Briefing and affidavit schedule . . . Unless otherwise ordered by the Court, the briefing and affidavit schedule for presentation of all motions shall be : (1) the opening brief and accompanying affidavit(s) shall be served and filed on the date of the filing of the Motion; (2) the answering brief and accompanying affidavit(s) shall be served and filed no later that 10 days after service and filing of the opening brief; (3) The reply brief and accompanying affidavit(s) shall be served and filed no later that five days after service and filing of the answering brief. * * * * * * * * * * * *

(c) Citation of subsequent authorities. No additional briefs, affidavits, or other papers in support of or in opposition to the motion shall be filed without prior approval of the Court, except that a party may call to the Court s attention and briefly discuss pertinent cases decided after a party s final brief is filed or after oral argument. Moore's latest motion should be stricken as it clearly violates D. Del. L.R. 7.1.2 (a) and (c). While State defendants do not dispute Moore'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.

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WHEREFORE, State defendants respectfully request that this Honorable Court strike Moore's Answering Brief filed on or about May 31, 2005, as Moore's motion is outside the scope of pleadings permitted by D. Del. L.R. 7.1.2.

DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Richard W. Hubbard____ Richard W. Hubbard, ID#2442 Deputy Attorney General Carvel State Office Building 820 North French Street, 6th Fl., Wilmington, DE 19801 (302) 577-8400 Attorney for State Defendants [email protected]

Dated: June 6, 2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DANIEL L. MOORE ) ) Plaintiff, ) ) v. ) ) STATE OF DELAWARE ) DEPARTMENT OF CORRECTION et al., ) ) Defendants. ) ORDER IT IS SO ORDERED this day of , 2005, that

C.A.No.04-1396-JJF

Plaintiffs' Response to the Defendants' Motion to Dismiss filed on or about May 31, 2005 violates D. Del. L.R. 7.1.2 (a) and (c) and should be stricken.

______________________________ Judge Joseph J. Farnan, Jr.,

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CERTIFICATE OF MAILING AND/OR DELIVERY
The undersigned certifies that on June 6, 2005, he caused the attached State Defendants' Motion to Strike Plaintiffs' Response to the Defendants' Motion to Dismiss Filed on May 31, 2005, to be delivered to the following person(s) in the form and manner indicated:

NAME AND ADDRESS OF RECIPIENT(S): Daniel L. Moore 22 Ryan Avenue New Castle, De 19720

MANNER OF DELIVERY: ________One true copy by facsimile transmission to each recipient Two true copies by first class mail, postage prepaid, to each recipient _______ Two true copies by Federal Express _______ Two true copies by hand delivery to each recipient

/s/ Richard W. Hubbard Richard W. Hubbard, ID#2442 Deputy Attorney General Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 302-577-8400 Attorney for State Defendants