Bussiere v. Cano et al

Filing 108

ORDER Granting Plaintiff's 105 Motion to File Sur-Reply and Denying Defendant's 107 Motion to Strike Plaintiff's Sur-Reply signed by Magistrate Judge Gerald B. Cohn on 10/22/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR T. BUSSIERE,

CASE NO. 1:10-cv-00945-AWI-GBC (PC)

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Plaintiff,

ORDER GRANTING PLAINTIFF’S MOTION
TO FILE SUR-REPLY AND DENYING
DEFENDANT’S MOTION TO STRIKE
PLAINTIFF’S SUR-REPLY

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v.
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CANO, et al.,
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Docs. 105, 107
Defendants.

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/

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On May 26, 2010, Plaintiff Arthur T. Bussiere (“Plaintiff”), a state prisoner proceeding pro
se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983.

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On November 7, 2011, Defendant Lopez filed a Motion to Dismiss for failure to exhaust

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administrative remedies. Doc. 62. On December 2, 2011, Plaintiff filed an Opposition to Defendant’s

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motion to dismiss. Doc. 68. On December 13, 2011, Defendant filed a Reply to Plaintiff’s

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opposition. Doc. 69. On January 9, 2012, Plaintiff filed a Sur-Reply. Doc. 70. On March 5, 2012,

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the Magistrate Judge issued Findings and Recommendations, recommending granting Defendant’s

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motion to dismiss, for failure to exhaust administrative remedies. Doc. 81. On March 23, 2012,

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Plaintiff filed Objections. Doc. 84. On May 29, 2012, Plaintiff filed an Addendum to Objections.

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Doc. 90. On June 5, 2012, Defendant Lopez filed a Motion to Strike Plaintiff’s Addendum to

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Objections. Doc. 91. On June 11, 2012, Plaintiff filed a Second Addendum to Objections. Doc. 92.

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On June 18, 2012, Plaintiff filed an Opposition to Defendant Lopez’s Motion to Strike. Doc. 94. On

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July 18, 2012 and July 23, 2012, Plaintiff filed motions to supplement his objections / opposition.

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Docs. 97, 98.

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On July 6, 2012, the Ninth Circuit found that the notice and warning of requirements for
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opposing a defendant’s motion to dismiss should be issued contemporaneously when a defendant

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files a motion to dismiss, as opposed to a year or more in advance. Woods v. Carey, 684 F.3d 934,

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936 (9th Cir. 2012). On July 18, 2012, the Court issued an amended second informational order to

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Plaintiff, in accordance with Woods, and provided Plaintiff with twenty-one (21) days to stand on

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his existing opposition or withdraw his opposition and file an amended opposition. Docs. 95, 96. On

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August 2, 2012, Plaintiff filed an amended opposition to the motion to dismiss. Doc. 99. On August

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27, 2012, Defendant filed a motion for extension of time to file an amended reply, nunc pro tunc.

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Doc. 102. In Defendant’s motion, counsel stated that the motion was not filed previously due to

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clerical error. Id. Defendant requested an extension of time because Plaintiff’s amended opposition

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was one hundred and twenty-four (124) pages. Id. On September 24, 2012, the Court granted

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Defendants’ nunc pro tunc motion for extension of time to file an amended reply to Plaintiff’s

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amended opposition. Defendant’s amended reply, filed September 10, 2012, was deemed timely.

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On October 4, 2012, Plaintiff filed a motion to file a sur-reply contemporaneously with filing

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a sur-reply. Docs. 105, 106. On October 8, 2012, Defendant filed a motion to strike Plaintiff’s sur-

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reply. Doc. 107. In Defendant’s motion, he argues that the local rules does not provide for filing a

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sur-reply. Id. However, since Defendant filed a motion for extension of time to file an amended reply

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twenty-five (25) days after Plaintiff filed his amended opposition; since Defendant filed his amended

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reply thirty-nine (39) days after Plaintiff filed his amended opposition; and since the Court granted

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Defendant’s motion for extension of time to file an amended reply nunc pro tunc, the Court will

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GRANT Plaintiff’s motion to file a sur-reply and DENY Defendant’s motion to strike.

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IT IS SO ORDERED.

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Dated:
7j8cce

October 22, 2012
UNITED STATES MAGISTRATE JUDGE
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