Fraher v. Heyne et al

Filing 74

ORDER DENYING 59 Plaintiff's Motion for Document Substitution and DENYING 62 Plaintiff's Motion to Compel; and ORDER GRANTING 67 Defendants' Motion to Strike Sur-Reply signed by Magistrate Judge Michael J. Seng on 3/26/2014. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CECILIA FRAHER,

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Case No. 1:10-cv-0951-LJO-MJS
ORDER DENYING PLAINTIFF’S
MOTIONS FOR DOCUMENT
SUBSTITUTION AND TO COMPEL
AND
GRANTING DEFENDANTS’ MOTION TO
STRIKE PLAINTIFF’S SUR-REPLY

Plaintiff,
v.
DR. S. HEYNE, et al.,

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Defendants.
(ECF Nos. 59, 62, 67)

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Plaintiff Cecilia Fraher (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. §1983.
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The case proceeds under 28 U.S.C. § 1915A on the Second Amended
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Complaint (“Complaint”) against Defendants Le and Mitchell for providing allegedly
inadequate medical care at Central California Women’s Facility in violation of the Eighth

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Amendment.
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The Court has issued Findings and Recommendations granting

Defendants’ motion for summary judgment. (ECF Nos. 46, 70.)

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Plaintiff has filed a motion for document substitution (ECF No. 59) and a motion
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to compel (ECF No. 62). Defendants have filed a motion to strike Plaintiff’s sur-reply to

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their motion for summary judgment. (ECF No. 67.) These motions are now before the
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1 Court.
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PLAINTIFF’S MOTION FOR DOCUMENT SUBSTITUTION

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Plaintiff asks the Court to substitute a typed document for her original

4 handwritten opposition to Defendants’ motion for summary judgment. (ECF No. 59.)
5 Plaintiff alleges that these two documents are identical. (Id.)
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In ruling on Defendants’ motion for summary judgment, the Court relied on

7 Plaintiff’s handwritten document. It was timely filed, legible, and fully considered by the
8 Court. No useful purpose would be served in substituting a late, typed version even if
9 there were a proper procedural or other basis for doing so.
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Accordingly, Plaintiff’s motion (ECF No. 59) is DENIED.

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PLAINTIFF’S MOTION TO COMPEL

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Plaintiff filed a motion to compel on August 5, 2013. (ECF No. 62.) Per the

13 Court’s initial scheduling order, all motions to compel were to be filed by May 5, 2013.
14 (ECF No. 28.) Plaintiff failed to request an extension of the deadline before it expired.
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Accordingly, Plaintiff’s motion (ECF No. 62) is DENIED.

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DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S SUR-REPLY

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Defendants have requested that the Court strike Plaintiff’s sur-reply (ECF No. 66)

18 to their motion for summary judgment. (ECF No. 67.)
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The Court did not grant Plaintiff leave to file a sur-reply. The Court does not

20 desire any further briefing on the motion. The Court did not review Plaintiff’s sur-reply in
21 ruling on Defendants’ motion for summary judgment.
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Accordingly, Defendants’ motion to strike Plaintiff’s sur-reply is HEREBY

2 GRANTED (ECF No. 67) and Plaintiff’s sur-reply (ECF No. 66) is STRICKEN from the
3 record.
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IT IS SO ORDERED.
Dated:

March 26, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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