Brown v. Harris et al

Filing 34

ORDER STRIKING 31 Surreply signed by Magistrate Judge Gary S. Austin on 2/19/2014. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CORNELL BROWN,

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Plaintiff,

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1:12-cv-01472-GSA-PC
ORDER STRIKING SURREPLY
(Doc. 31.)

vs.
R. HARRIS, et al.,

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Defendants.

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I.

BACKGROUND
Cornell Brown (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.

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Plaintiff’s initial Complaint filed on September 10, 2012, against defendant Harris for

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excessive force in violation of the Eighth Amendment, and defendant Nelson for failure to

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protect Plaintiff in violation of the Eighth Amendment. (Doc. 1.)

This case now proceeds on

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On December 6, 2013, Defendants filed a motion to dismiss this action for failure to

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exhaust remedies. (Doc. 22.) Plaintiff filed an opposition to the motion on January 27, 2014.

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(Doc. 27.) On January 29, 2014, Defendants filed a notice of errata, making a correction to

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their motion to dismiss. (Doc. 28.) On February 14, 2014, Plaintiff filed a response to

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Defendants’ notice of errata. (Doc. 30.) On February 18, 2014, Plaintiff filed a surreply.

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(Doc. 32.)

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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, and the Court

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neither requested one nor granted a request on the behalf of Plaintiff to file one. Accordingly,

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Plaintiff=s surreply, filed on February 18, 2014, shall be stricken from the record. 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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USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last

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

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Plaintiff has filed a surreply in response to Defendants’ reply to his opposition to the

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motion to dismiss. Defendants’ motion to dismiss of December 6, 2013 was fully briefed and

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was submitted on the record under Local Rule 230(l) on February 3, 2014, when Defendants

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filed their reply to Plaintiff’s opposition. (Doc. 29.) The Court neither requested a surreply nor

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granted a request on the behalf of Plaintiff to file one. Plaintiff has not shown good cause for

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the court to allow him to file a surreply at this juncture. Therefore, Plaintiff’s surreply shall be

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stricken from the record.

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III.

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

February 18, 2014, is STRICKEN from the Court=s record.

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IT IS SO ORDERED.
Dated:

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February 19, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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