Thomas v. Rene Wilkinson , et al

Filing 47

ORDER GRANTING Defendant Tehrani's Motion to Strike 38 ; ORDER STRIKING Plaintiff's Surreply 37 , signed by Magistrate Judge Gary S. Austin on 1/18/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSH THOMAS,

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Plaintiff,

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vs.
WILKINSON, et al.,

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Defendants.

1:15-cv-00527-LJO-GSA-PC
ORDER GRANTING DEFENDANT
TEHRANI’S MOTION TO STRIKE
(ECF No. 38.)
ORDER STRIKING PLAINTIFF’S
SURREPLY
(ECF No. 37.)

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I.

BACKGROUND

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Josh Thomas (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. Plaintiff filed the complaint commencing this action on April

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21, 2014, at the Fresno County Superior Court, case number 14CECG01710. On April 2, 2015,

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defendant Jasmine A. Tehrani removed the complaint to federal court pursuant to 28 U.S.C.

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1441(a). (ECF No. 2.) This case now proceeds on the original complaint against defendants

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Jasmine A. Tehrani and Renee Wilkinson, Ph.D1 (“Defendants”) on Plaintiff’s Eighth

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Amendment claim that Defendants refused to correct inaccurate information on Plaintiff’s

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psychological report, which led to the repeated denial of parole; and on related state claims.

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(Id.)

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Sued as “Rene Wilkinson.” (ECF No. 41 at 1:23-34.)

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On August 29, 2016, defendant Tehrani file a Rule 12(b)(6) motion to dismiss. (ECF

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No. 31.) On September 23, 2016, Plaintiff filed an opposition to the motion to dismiss. (ECF

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No. 35.) On September 29, 2016, defendant Tehrani filed a reply to Plaintiff’s opposition.

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(ECF No. 36.) On October 13, 2016, Plaintiff filed a response to defendant Tehrani’s reply.

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(ECF No. 37.)

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On October 20, 2016, defendant Tehrani filed a motion to strike Plaintiff’s October 13,

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2016 response as an impermissible surreply. (ECF No. 38.) On November 11, 2016, Plaintiff

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filed an opposition to the motion to strike. (ECF No. 40.) Defendant Tehrani’s motion to strike

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is now before the court.

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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 Tehrani argues that Plaintiff’s document styled “Opposition to Defendant[]

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Tehrani’s Reply,” filed on October 13, 2016, is an improper surreply, and the Court should

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strike it from the record. (ECF No. 38 at 3:5-7.) In opposition, Plaintiff argues that his

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surreply should be allowed to protect his record on appeal, and that defendant Tehrani should

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be ordered to submit evidence that Plaintiff’s Eighth Amendment, negligence, and intentional

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infliction of emotional distress were litigated in his prior habeas case.

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Plaintiff’s opposition to defendant Tehrani’s reply is a surreply because it was filed on

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October 13, 2016, after defendant Tehrani’s motion to dismiss was fully briefed. The motion to

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dismiss was fully briefed and submitted on the record under Local Rule 230(l) on September

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29, 2016, when defendant Tehrani filed a reply to Plaintiff’s opposition. (ECF No. 36.) In this

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case, the court neither requested any 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.

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Plaintiff’s surreply shall be stricken from the record as improperly filed.

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III.

Therefore, defendant Tehrani’s motion to strike shall be granted, and

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Defendant Tehrani’s motion to strike, filed on October 20, 2016, is GRANTED;
and

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Plaintiff=s surreply, filed on October 13, 2016, is STRICKEN from the court’s
record.

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IT IS SO ORDERED.
Dated:

January 18, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE