Turner v. Porter et al

Filing 30

ORDER Striking Impermissible Surreply re 29 , signed by Magistrate Judge Gary S. Austin on 10/31/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEDRIC TURNER,
Plaintiff,

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vs.

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1:16-cv-00542-GSA-PC
ORDER STRIKING IMPERMISSIBLE
SURREPLY
(ECF No. 29.)

M. PORTER, et al.,
Defendants.

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I.

BACKGROUND

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Dedric Turner (“Plaintiff”) 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. On April 18, 2016, Plaintiff filed the

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Complaint commencing this action. (ECF No. 1.) This case now proceeds with the original

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Complaint against defendant Ramirez (“Defendant”) for violation of due process under the

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Fourteenth Amendment. (Id.)

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All parties to this action have voluntarily consented to Magistrate Judge jurisdiction

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under 28 U.S.C. § 636(c). (ECF Nos. 8, 22.)

Therefore, the undersigned shall conduct any

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and all further proceedings in this case, including the trial and entry of a final judgment.

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On July 5, 2017, Defendant filed a motion to dismiss. (ECF No. 20.) On September

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29, 2017, Plaintiff filed an opposition to the motion. (ECF No. 26.) On October 6, 2017,

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Defendant filed a reply to Plaintiff’s opposition. (ECF No. 28.)
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On October 27, 2017, Plaintiff filed a second opposition to the motion to dismiss. (ECF

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No. 29.) The court construes Plaintiff’s second opposition as an impermissible surreply.

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II.

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. 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’s second opposition to the motion to dismiss is a surreply because it was filed

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on October 27, 2017, after Defendant’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 October 6,

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2017, when Defendant filed a reply to Plaintiff’s first opposition. (ECF No. 28.) In this case,

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the court neither requested a surreply, nor granted a request on the behalf of Plaintiff to file a

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surreply. Plaintiff has not shown good cause for the court to allow him to file a surreply at this

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juncture. Therefore, Plaintiff’s surreply shall be 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

October 27, 2017, is STRICKEN from the court’s record.

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IT IS SO ORDERED.
Dated:

October 31, 2017

/s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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