Branch v. Grannis, et al.,

Filing 167

ORDER Striking Plaintiff's 166 Motion as Impermissible Filing/Surreply signed by Magistrate Judge Gary S. Austin on 05/16/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS BRANCH,

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Plaintiff,

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vs.

1:08-cv-01655-AWI-GSA-PC
ORDER STRIKING PLAINTIFF’S
MOTION AS IMPERMISSIBLE
FILING/SURREPLY
(Doc. 166.)

N. GRANNIS, et al.,

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Defendants.

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I.

BACKGROUND

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Louis Branch (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on July 7, 2008. (Doc. 1.) This action now proceeds on the Third

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Amended Complaint, filed by Plaintiff on July 10, 2013, against defendants Umphenour,

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Szalai, and Alvarez (“Defendants”) for deliberate indifference to a serious risk to Plaintiff’s

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safety in violation of the Eighth Amendment, and against defendant Umphenour for retaliation

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in violation of the First Amendment. (Doc. 94.)

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On September 2, 2014, Defendants filed a motion for summary judgment. (Doc. 138.)

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On September 29, 2014, Plaintiff filed an opposition to the motion. (Doc. 142.) On January

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29, 2015, with leave of court, Plaintiff filed an amended opposition. (Doc. 155.) On February

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5, 2015, Defendants filed a reply to the amended opposition. (Doc. 157.) On April 22, 2015,

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Plaintiff filed a motion requesting the court not to consider Defendants’ new argument in

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Defendants’ reply. (Doc. 166.) The court construes Plaintiff’s motion of April 22, 2015, as a

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surreply.

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II.

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SURREPLY
A surreply, or sur-reply, is an additional reply to a motion filed after the motion has

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already been fully briefed.

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visited December 31, 2013). The Local Rules provide for a motion, an opposition, and a reply.

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Neither the Local Rules nor the Federal Rules provide the right to file a surreply. A district

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court may allow a surreply to be filed, but only “where a valid reason for such additional

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briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v.

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England, 2005 WL 3031136, *1 (E.D.Cal. Nov. 8, 2005).

USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last

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Plaintiff’s motion filed on April 22, 2015, seeks to respond to Defendants’ reply to

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Plaintiff’s amended opposition. The court neither requested a further response nor granted a

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request by Plaintiff to file one. Moreover, Defendants’ motion for summary judgment was

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deemed admitted to the court on February 5, 2015, more than two months before Plaintiff filed

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his motion. L. R. 230(l). Plaintiff has not shown good cause for the court to allow a further

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response at this juncture. Therefore, Plaintiff’s motion shall be stricken from the record as an

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impermissible surreply.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff=s motion filed on

April 22, 2015, is STRICKEN from the Court=s record.

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IT IS SO ORDERED.
Dated:

May 16, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE