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Penman v. Correct Care Solutions

United States District Court, W.D. Kentucky, Paducah

November 26, 2018




         Defendant Robert Harris has moved to strike multiple paragraphs from Plaintiff Ms. Penman's Amended Complaint. (R. 46). Ms. Penman has responded (R. 51), and this matter is now ripe for adjudication. For the reasons that follow, the Court DENIES IN PART AND GRANTS IN PART the Defendants' Motion to Strike Plaintiff's Amended Complaint. (R. 46).


         Ms. Penman's Amended Complaint brings excessive force, deliberate indifference, failure to intervene, supervisory liability, municipal liability, negligence, and intentional infliction of emotional distress claims against multiple defendants for events alleged to have taken place at Kentucky State Penitentiary that resulted in inmate Marcus Penman's death. Defendant, Robert Harris, now moves the Court to strike paragraphs 7 and 9-14 from Ms. Penman's Amended Complaint as “immaterial or scandalous statements designed to improperly elicit sympathy, to curry favor, or to cast dispersions on the defendants.”


         Rule 12(f) allows a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). A court may strike portions of the pleading acting on its own initiative or “on a motion made by a party . . . before responding to the pleading.” Id. Courts are given considerable discretion in deciding whether to strike portions of pleadings under 12(f). See id.; see also Delta Consulting Group, Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009); Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992). Courts have generally decided to strike portions of a pleading for being impertinent or scandalous only where the language is extreme or offensive. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (quoting Phillips v. Carey, 638 F.2d 207, 208 (10th Cir.1981)) (“[I]f the complaint or other pleadings are abusive or contain offensive language, they may be stricken sua sponte under the inherent powers of the court.”); Talbot, 961 F.2d at 665 (district court did not abuse its discretion in striking paragraphs in a complaint that insinuated defendants knowingly caused a salmonella outbreak where there was no factual basis for such assertions); Alvarado-Morales v. Digital Equipment Corp., 843 F.2d 613, 617-18 (1st Cir. 1988) (district court did not abuse its discretion in striking provisions of a complaint that used phrases like “concentration camp, ” “brainwash, ” “torture, ” and “Chinese communists in Korea” to describe a work environment). “Scandalous allegations” generally means “any allegation that unnecessarily reflects on the moral character of an individual or states anything in repulsive language that detracts from the dignity of the court.” Pigford v. Veneman, 215 F.R.D. 2, 4 (D.D.C. 2003); see also In re Inc. Securities Litigation, 114 F.Supp.2d 955, 965 (C.D. Cal. 2000) (defining scandalous allegations as placing “cruelly derogatory light on a party or other person.”). “An allegation is ‘impertinent' or ‘immaterial' when it is not relevant to the issues involved in the action.” L and L Gold Associates, Inc. v. American Cash for Gold, LLC, 2009 WL 1658108, at *1 (E.D. Michigan Southern Division June 10, 2009) (quoting Cobell v. Norton, 224 F.R.D. 1, 5 (D.D.C. 2004)).


         Frankly, the Court must note that Ms. Penman's Amended Complaint comes off as over-the-top in certain portions. The Court must note further that such hyperbole, as used in portions of Ms. Penman's Complaint, is generally ill advised. Typically, such phrasing and language distracts more than it does anything else, particularly when-as is the case here-the conduct alleged speaks loudly enough for itself. However, the bar for striking pleadings is a high one, and motions to strike are generally disfavored. See Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953) (holding that because it is a drastic remedy, “the action of striking a complaint should be used sparingly by the courts”); CWI, Inc. v. SmartDog Servs., LLC, No. 1:15-CV-00139-GNS, 2016 U.S. Dist. LEXIS 60786, at *8 (W.D. Ky. May 6, 2016) (“In general, such motions are disfavored and infrequently granted in this jurisdiction.”) (citing Operating Eng'rs Local 324 Health Care Plan v. G & W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2015))). While the Court recognizes that some of Ms. Penman's Amended Complaint may be slightly histrionic in spots, with the exception of paragraph 10, the Court does not find it scandalous or impertinent. However, to be thorough, the Court will examine each of the paragraphs from Ms. Penman's Amended Complaint that Harris seeks to strike.

         A. Paragraph 7

         Harris seeks to strike the following portion of paragraph 7, “. . . Mr. Penman spent his final moments in this world shackled, in darkness, desperately gasping for his last breath. He died alone and in unimaginable pain, never to see daylight again.” (Pl.'s Am. Compl., p. 3: ¶ 7). Mr. Penman, in fact, died at Kentucky State Penitentiary, and the Amended Complaint alleges his death was the result of harms that would have been objectively painful. Thus, these statements are relevant to Ms. Penman's claims, and although the word choice and phrasing might be ill advised, it does not rise to the level of scandalous so that it must be stricken.

         B. Paragraph 9

         Harris seeks to strike the following portion of paragraph 9:

On the same day that KSP and Correct Care Solutions employees callously tortured Mr. Penman to death, KSP officials falsely stated to members of the Kentucky media, that all evidence pointed to Mr. Penman's death being the result of self-inflicted injuries. They continued this false narrative when they told Penman's family and wife that his death was the result of suicide.

(Pl.'s Am. Compl., p. 3: ¶ 7). Harris basically claims that this passage should be stricken because it is not true. The Court is not satisfied that these statements are “obviously false” or “clearly injurious to a party because of the language used” so as to require the Court to strike them. Pessin v. Keeneland Asso., 45 F.R.D. 10, 13 (E.D. Ky. 1968). In any event, the Court finds a motion to strike an improper tool to resolve disputed questions of fact and law. Such determinations are better left until after discovery. See SEC v. Toomey, 866 F.Supp. 719, 722 (S.D.N.Y. 1992) (“It is particularly important to refrain from considering disputed questions ...

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