Carter v. Dawson et al

Filing 177

ORDER Denying Plaintiff's 175 Motion for Authorization to File Reply; ORDER Denying Plaintiff's 176 Motion for Extension of Time to File Reply signed by Magistrate Judge Barbara A. McAuliffe on 08/21/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LON CARTER,

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Plaintiff,
v.
NICK DAWSON, et al.,

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Defendants.

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Case No.: 1:07-cv-01325-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
AUTHORIZATION TO FILE REPLY
(ECF No. 175)
ORDER DENYING PLAINTIFF’S MOTION FOR
EXTENSION OF TIME TO FILE REPLY
(ECF No. 176)

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Plaintiff Lon Carter is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants Dawson and

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Mendoza-Powers for unconstitutional conditions of confinement in violation of the Eighth

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Amendment.

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On September 15, 2011, Defendants filed a Motion for Summary Judgment. (ECF No. 119.)

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Plaintiff opposed the motion on September 17, 2013. (ECF Nos. 146-150.) On October 29, 2013,

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Defendants filed a reply, along with objections and a motion to strike Plaintiff’s evidence. (ECF Nos.

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159, 160.)

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On November 20, 2013, the Court denied Plaintiff leave to file a response to Defendants’
reply, but granted Plaintiff leave to file a response to Defendants’ motion to strike filed on October 29,

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2013. The Court informed Plaintiff that neither this Court’s Local Rules nor the Federal Rules provide

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the right to file a response or surreply to Defendants’ reply. (ECF No. 166.)

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On November 25, 2013, Plaintiff filed his opposition to Defendants’ Objections and Motion to

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Strike. (ECF No. 169.) Plaintiff also filed a Motion to Strike Defendants’ Submitted Weather

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Reports. (ECF No. 168.) Following an extension of time, on December 20, 2013, Defendants filed a

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reply to Plaintiff’s opposition, along with a response to Plaintiff’s motion to strike the weather reports.

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(ECF No. 173.)

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On January 6, 2014, Plaintiff filed the instant motions requesting (1) authorization to file a

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reply to Defendants’ December 20, 2013 reply and (2) an extension of time to file the reply. (ECF

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Nos. 175, 176.) Plaintiff’s motions shall be denied.
As the Court previously explained, the Local Rules provide for a motion, an opposition, and a

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reply. Local Rule 230(l). Neither the Local Rules nor the Federal Rules of Civil Procedure provide

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the right to file a surreply and the Court has not requested a surreply in this matter.

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Additionally, Plaintiff provides no basis for the authorization of a surreply. Plaintiff states

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only that “Defendants 12-20-13 reply bears on the October 29, 2013 reply, as plaintiff has filed strike

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motions per the October 29, 2013, which defendants now also address . . . .” (ECF No. 175, p. 2.)

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That one reply “bears on” another reply in the same action is not sufficient. There is no indication that

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the Court requires additional briefing in an already lengthy case for the purpose of resolving

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evidentiary issues. In the event the Court requires additional briefing, it will direct the parties to

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provide a response. The Court has not done so in this matter.

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Plaintiff suggests that an additional reply is necessary because Defendants included a response

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to his motion to strike their weather reports. Upon review of the briefing, the Court is not persuaded

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that any reply is necessary. In his moving papers, Plaintiff seeks to strike Defendants’ weather reports

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reportedly submitted in support of their motion for summary judgment. (ECF No. 168, p. 1.)

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However, Defendants have responded that Plaintiff’s motion is really an argument in opposition to

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Defendants’ objections and that they did not file any weather reports in support of their motion for

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summary judgment, in support of their reply, or in their objections to Plaintiff’s evidence. (ECF No.

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173, p. 4.) The Court does not require any further reply to determine whether or not Defendants have

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submitted weather reports in support of their motion for summary judgment.

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Accordingly, Plaintiff’s motion for authorization to file a reply to Defendants’ December 20,

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2013 reply is DENIED. Plaintiff’s related motion seeking an extension of time to file such a reply

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also is DENIED.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

August 21, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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