Ahdom v. Etchebehere et al
Filing
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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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BILAL AHDOM,
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Plaintiff,
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vs.
C. ETCHEBEHERE, et al.,
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Defendants.
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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.)
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I.
BACKGROUND
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Bilal Ahdom (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights
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action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action
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on October 9, 2013. (ECF No. 1.) This case now proceeds on Plaintiff’s Second Amended
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Complaint, filed on December 8, 2015, against defendant Associate Warden C. Etchebehere
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(“Defendant”) for violation of the Religious Land Use and Institutionalized Persons Act [42
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U.S.C. § 2000cc-1].1 (ECF No. 24.)
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On January 20, 2017, Defendant filed a motion for summary judgment and a motion for
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an order requiring payment of security. (ECF No. 44.) On April 12, 2017, Plaintiff filed an
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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.)
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opposition to Defendants’ motions. (ECF No. 52.) On April 19, 2017, Defendant filed a reply
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to Plaintiff’s opposition. (ECF No. 54.)
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Defendant’s reply. (ECF No. 57.) Defendant’s motion for summary judgment and motion for
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an order requiring payment of security are pending.
On May 5, 2017, Plaintiff filed a response to
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On May 19, 2017, Defendant filed a motion to strike Plaintiff’s May 5, 2017, response
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as an improper surreply. (ECF No. 58.) On June 13, 2017, Plaintiff filed an opposition to
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Defendant’s motion to strike. (ECF No. 59.)
Defendant’s motion to strike is now before the court. Local Rule 230(l).
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II.
SURREPLIES
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. 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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England, 2005 WL 3031136, *1 (E.D.Cal. Nov. 8, 2005).
USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last
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Defendant argues that Plaintiff’s document entitled “Plaintiff’s Response to
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Defendant’s Reply to His Opposition to Motion for Summary Judgment and Motion for an
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Order Requesting Security” filed on May 5, 2017, appears to be an improper surreply, which
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the court should strike from the record. (ECF No. 57.) In opposition, Plaintiff argues that his
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surreply should be allowed because “there is no Federal Rules of Civil Procedure that prohibits
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a response to a Reply to an Opposition to Motion for Summary Judgment and Motion for an
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Order Requesting Security.” (ECF No. 59.)
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Plaintiff’s argument is unpersuasive. Defendant’s motion for summary judgment was
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fully briefed and submitted on the record under Local Rule 230(l) on April 19, 2017, when
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Defendant filed a reply to Plaintiff’s opposition. (ECF No. 54.) Plaintiff then improperly filed
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a surreply on May 5, 2017, after the motion was fully briefed, without leave of court. In this
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case, the court neither requested a surreply nor granted a request on the behalf of Plaintiff to
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file a surreply. Plaintiff has not shown good cause for the court to allow him to file a surreply
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at this juncture. Therefore, Defendant’s motion to strike shall be granted, and Plaintiff’s
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surreply shall be stricken from the record as improperly filed.
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III.
CONCLUSION
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Based on the foregoing, IT IS HEREBY ORDERED that:
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1.
Defendant’s motion to strike, filed on May 19, 2017, is GRANTED; and
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2.
Plaintiff=s surreply, filed on May 5, 2017, is STRICKEN from the court’s record.
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IT IS SO ORDERED.
Dated:
July 24, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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