McCoy v. Kelso, et al.

Filing 97

ORDER Denying Plaintiff's Motion To File Surreply (Document 96 ), signed by Magistrate Judge Dennis L. Beck on 4/27/2015. (Fahrney, E)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9
10
11

JOSEPH RAYMOND MCCOY,

12
13
14
15

Plaintiff,
vs.
STRONACH, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:12cv00983 AWI DLB PC
ORDER DENYING PLAINTIFF’S
MOTION TO FILE SURREPLY
(Document 96)

16
17

Plaintiff Joseph Raymond McCoy (“Plaintiff”) is a state prisoner proceeding pro se and

18

in forma pauperis in this civil rights action. Plaintiff filed his complaint on June 19, 2012. This

19

action is proceeding on an Eighth Amendment deliberate indifference claim against Defendants

20
21
22

Stronach, Gonzales, LeMay, Beltran, Fisher, Snell and Tann.
On April 22, 2015, the Court issued Findings and Recommendations granting
Defendants’ motion for summary judgment based on exhaustion. Objections are due within

23

thirty (30) days.
24
25
26

On April 23, 2015, Plaintiff filed a motion for leave to file a surreply. The Court deems
the matter suitable for decision without an opposition.

27
28

1

1
2
3
4

Parties do not have the right to file surreplies and motions are deemed submitted when
the time to reply has expired. Local Rule 230(l). The Court generally views motions for leave to
file a surreply with disfavor. Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing
Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D. Ga. 2005)). However,

5

district courts have the discretion to either permit or preclude a surreply. See U.S. ex rel. Meyer
6
7
8
9

v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009) (district court did not abuse
discretion in refusing to permit “inequitable surreply”); JG v. Douglas County School Dist., 552
F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not abuse discretion in denying leave to file

10

surreply where it did not consider new evidence in reply); Provenz v. Miller, 102 F.3d 1478,

11

1483 (9th Cir. 1996) (new evidence in reply may not be considered without giving the non-

12

movant an opportunity to respond).

13

Here, the Court has already issued Findings and Recommendations. Moreover, to the

14

extent that Plaintiff states that he wants to reply to Defendants’ argument that his opposition was

15

untimely, the Court addressed the argument and considered Plaintiff’s opposition.

16

Plaintiff’s motion is therefore DENIED.

17
18

IT IS SO ORDERED.

19

Dated:
20

/s/ Dennis

April 27, 2015

UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28

L. Beck

2