McClure v. Chen, et al.

Filing 57

ORDER striking surreply 56 signed by Magistrate Judge Gary S. Austin on 8/31/2017. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE MCCLURE, 12 Plaintiff, 13 14 1:14-cv-00932-DAD-GSA-PC ORDER STRIKING SURREPLY (ECF No. 56.) v. C. K. CHEN, et al., 15 Defendants. 16 17 18 I. BACKGROUND 19 George McClure (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the 21 Complaint commencing this action on June 4, 2014. (ECF No. 1.) This case now proceeds 22 with Plaintiff’s First Amended Complaint filed on February 9, 2015, against Defendants C. K. 23 Chen (M.D.) and C. Horton (Physician’s Assistant) (“Defendants”) on Plaintiff’s medical claim 24 under the Eighth Amendment. (ECF No. 12.) 25 On April 18, 2017, Defendants filed a motion for summary judgment. (ECF No. 47.) 26 On July 17, 2017, Plaintiff filed an opposition. (ECF No. 52.) On August 7, 2017, Defendants 27 filed a reply to the opposition. (ECF No. 55.) On August 24, 2017, Plaintiff filed a surreply. 28 (ECF No. 56.) 1 1 II. 2 SURREPLY A surreply, or sur-reply, is an additional reply to a motion filed after the motion has 3 already been fully briefed. 4 visited December 31, 2013). The Local Rules provide for a motion, an opposition, and a reply. 5 Neither the Local Rules nor the Federal Rules provide the right to file a surreply. A district 6 court may allow a surreply to be filed, but only “where a valid reason for such additional 7 briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. 8 England, 2005 WL 3031136, *1 (E.D.Cal. Nov. 8, 2005)., (last 9 Plaintiff has filed a surreply in response to Defendants’ reply to his opposition to the 10 motion for summary judgment. Defendants’ motion for summary judgment of April 18, 2017, 11 was fully briefed and submitted on the record under Local Rule 230(l) on August 7, 2017, when 12 Defendants filed their reply to Plaintiff’s opposition. 13 requested a surreply nor granted a request on the behalf of Plaintiff to file one. Plaintiff has not 14 shown good cause for the court to allow him to file a surreply at this juncture. Therefore, 15 Plaintiff’s surreply, filed on August 24, 2017, shall be stricken1 from the record. 16 III. 17 18 (ECF No. 55.) The Court neither CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff=s surreply, filed on filed on August 24, 2017, is STRICKEN from the court’s record. 19 20 IT IS SO ORDERED. Dated: 21 August 31, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 A document which is “stricken” will not be considered by the Court for any purpose. (Informational Order, ECF No. 5 at 2 ¶II.A.) 2

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