Ransom v. Martinez et al

Filing 40

ORDER DENYING 32 Plaintiff's Motion to Amend Opposition and/or Request to Submit Surreply; ORDER STRIKING 33 Plaintiff's Amendment to Opposition and/or Surreply; ORDER STRIKING 35 Defendants' Surreply, signed by Magistrate Judge Gerald B. Cohn on 11/19/2010. (Martin, S)

(PC) Ransom v. Martinez et al

Doc. 40

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 18 Plaintiff Bryan E. Ransom ("Plaintiff") is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 9, 2010, Defendants 20 filed a motion to revoke Plaintiff's in forma pauperis status. (Doc. 24). On August 20, 2010 21 Plaintiff submitted an opposition and on August 27, 2010, Defendants filed a reply. (Docs. 29 & 22 31). On September 7, 2010, Plaintiff filed a motion to "amend Plaintiff's opposition" and Plaintiff 23 submitted an "amendment" and/or surreply raising an imminent danger claim never before presented 24 to the court. (Docs. 32 & 33). On September 14, 2010, Defendants have submitted a surreply to 25 Plaintiff's September 7, 2010 "amendment" and or surreply. (Docs. 35). 26 /// 27 /// 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT

BRYAN E. RANSOM, Plaintiff, v. J. MARTINEZ, et al., Defendants.

CASE NO. 1:08-cv-01812-AWI-GBC PC ORDER DENYING PLAINTIFF'S MOTION TO AMEND OPPOSITION AND/OR REQUEST TO SUBMIT SURREPLY (Doc. 32) ORDER STRIKING PLAINTIFF'S AMENDMENT TO OPPOSITION AND/OR SURREPLY (Doc. 33) ORDER STRIKING DEFENDANTS' SURREPLY (Doc. 35)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: 612e7d

Plaintiff and Defendants do not have a right to file a surreply under the Local Rules or the Federal Rules of Civil Procedure. Plaintiff cannot now add a never before presented imminent danger claim in this action in an attempt to prevent revocation of his in forma pauperis status. See e.g., Wasco Products, Inc. v. Southwall Technologies, Inc., 435 F.3d 989, 992 (9th Cir. 2006) (finding that opposition to movant's motion is not procedural second chance to add a new claim). Even if the Court were to entertain Plaintiff's "amendment" and/or surreply, Plaintiff's fear of potentially being peppered sprayed for his future refusal to obey the strip search orders of prison officials does not fall within the imminent danger exception. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Therefore, Plaintiff's motion to file a surrply and/or motion to amend opposition to add an argument never previously raised is DENIED. (Doc. 32). Furthermore, Plaintiff's "amendment" and/or surreply in addition to Defendants' surreply are ORDERED STRICKEN from the record. (Docs. 33, 35).

IT IS SO ORDERED. November 19, 2010 UNITED STATES MAGISTRATE JUDGE

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