Ahdom v. Etchebehere et al

Filing 61

ORDER GRANTING Defendant's Motion to Strike 58 ; ORDER STRIKING Plaintiff's May 5, 2017, Response as an Improper Surreply 57 , signed by Magistrate Judge Gary S. Austin on 7/24/17. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BILAL AHDOM, 12 Plaintiff, 13 14 vs. C. ETCHEBEHERE, et al., 15 Defendants. 16 1:13-cv-01623-DAD-GSA-PC ORDER GRANTING DEFENDANT’S MOTION TO STRIKE (ECF No. 58.) ORDER STRIKING PLAINTIFF’S MAY 5, 2017, RESPONSE AS AN IMPROPER SURREPLY (ECF No. 57.) 17 18 I. BACKGROUND 19 Bilal Ahdom (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 20 action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action 21 on October 9, 2013. (ECF No. 1.) This case now proceeds on Plaintiff’s Second Amended 22 Complaint, filed on December 8, 2015, against defendant Associate Warden C. Etchebehere 23 (“Defendant”) for violation of the Religious Land Use and Institutionalized Persons Act [42 24 U.S.C. § 2000cc-1].1 (ECF No. 24.) 25 On January 20, 2017, Defendant filed a motion for summary judgment and a motion for 26 an order requiring payment of security. (ECF No. 44.) On April 12, 2017, Plaintiff filed an 27 28 1 On December 16, 2015, the court dismissed all remaining claims and defendants from this action based on Plaintiff’s failure to state a claim. (ECF No. 25.) 1 opposition to Defendants’ motions. (ECF No. 52.) On April 19, 2017, Defendant filed a reply 2 to Plaintiff’s opposition. (ECF No. 54.) 3 Defendant’s reply. (ECF No. 57.) Defendant’s motion for summary judgment and motion for 4 an order requiring payment of security are pending. On May 5, 2017, Plaintiff filed a response to 5 On May 19, 2017, Defendant filed a motion to strike Plaintiff’s May 5, 2017, response 6 as an improper surreply. (ECF No. 58.) On June 13, 2017, Plaintiff filed an opposition to 7 Defendant’s motion to strike. (ECF No. 59.) Defendant’s motion to strike is now before the court. Local Rule 230(l). 8 9 10 II. SURREPLIES A surreply, or sur-reply, is an additional reply to a motion filed after the motion has 11 already been fully briefed. 12 visited December 31, 2013). The Local Rules provide for a motion, an opposition, and a reply. 13 Neither the Local Rules nor the Federal Rules provide the right to file a surreply. A district 14 court may allow a surreply to be filed, but only “where a valid reason for such additional 15 briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. 16 England, 2005 WL 3031136, *1 (E.D.Cal. Nov. 8, 2005). USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last 17 Defendant argues that Plaintiff’s document entitled “Plaintiff’s Response to 18 Defendant’s Reply to His Opposition to Motion for Summary Judgment and Motion for an 19 Order Requesting Security” filed on May 5, 2017, appears to be an improper surreply, which 20 the court should strike from the record. (ECF No. 57.) In opposition, Plaintiff argues that his 21 surreply should be allowed because “there is no Federal Rules of Civil Procedure that prohibits 22 a response to a Reply to an Opposition to Motion for Summary Judgment and Motion for an 23 Order Requesting Security.” (ECF No. 59.) 24 Plaintiff’s argument is unpersuasive. Defendant’s motion for summary judgment was 25 fully briefed and submitted on the record under Local Rule 230(l) on April 19, 2017, when 26 Defendant filed a reply to Plaintiff’s opposition. (ECF No. 54.) Plaintiff then improperly filed 27 a surreply on May 5, 2017, after the motion was fully briefed, without leave of court. In this 28 case, the court neither requested a surreply nor granted a request on the behalf of Plaintiff to 1 file a surreply. Plaintiff has not shown good cause for the court to allow him to file a surreply 2 at this juncture. Therefore, Defendant’s motion to strike shall be granted, and Plaintiff’s 3 surreply shall be stricken from the record as improperly filed. 4 III. CONCLUSION 5 Based on the foregoing, IT IS HEREBY ORDERED that: 6 1. Defendant’s motion to strike, filed on May 19, 2017, is GRANTED; and 7 2. Plaintiff=s surreply, filed on May 5, 2017, is STRICKEN from the court’s record. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: July 24, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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