Hearns v. Gonzales, et al.

Filing 53

ORDER DENYING Plaintiff's 51 Motion to File Surreply; ORDER Striking Proposed Surreply signed by Magistrate Judge Gary S. Austin on 10/31/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMAR HEARNS,

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Plaintiff,

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v.
ROSA GONZALES, et al.,

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1:17-cv-00038-AWI-GSA (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO FILE SURREPLY
(ECF No. 51.)
ORDER STRIKING PROPOSED SURREPLY
(ECF No. 50.)

Defendants.

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I.

BACKGROUND

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Jamar Hearns (“Plaintiff”) is a former state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds

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against defendant Rosa Gonzales on Plaintiff’s claims for retaliation, violation of the Free

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Exercise Clause, and violation of the Bane Act. (ECF No. 21.)

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On July 19, 2019, Plaintiff filed a motion for leave to file a surreply and submitted a

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proposed surreply for the court’s review. (ECF Nos. 50, 51.) Defendant has not opposed the

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motion.

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II.

SURREPLY

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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. USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last visited

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December 31, 2013). The Local Rules provide for a motion, an opposition, and a reply. Neither
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the Local Rules nor the Federal Rules provide the right to file a surreply. A district court may

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allow a surreply to be filed, but only “where a valid reason for such additional briefing exists,

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such as where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL

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3031136, *1 (E.D.Cal. Nov. 8, 2005).

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Plaintiff seeks to file a surreply in response to Defendant’s reply to Plaintiff’s opposition

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to Defendant’s motion for summary judgment filed on May 3, 2019. Plaintiff argues that

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Defendant raised two new issues in her reply brief. The first issue concerns Defendant’s

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statement that Plaintiff admitted in his opposition that he received a free prayer rug approximately

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five months after the incident, a fact that “Plaintiff explicitly refused to provide” at his deposition.

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(ECF No. 51 at 10.) Defendant objects to Plaintiff using this purported fact to create a genuine

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dispute of material fact. The second issue concerns Defendant’s statement that Plaintiff has used

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standards for a RLUIPA claim, not a First Amendment free exercise claim. If granted leave to

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file a surreply, Plaintiff expects to explain why he did not disclose at his deposition that he

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received a free prayer rug, and to defend his use of facts supporting a RLUIPA claim.

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These two “new” issues identified by Plaintiff were not newly raised by Defendant in her

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reply brief. Plaintiff himself disclosed in his opposition that he had received a free prayer rug,

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and Plaintiff himself raised and argued a RLUIPA claim in his opposition. These are not new

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issues requiring a surreply by Plaintiff.

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In his proposed surreply, Plaintiff offers substantial support to his argument that

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Defendant’s actions caused a substantial burden to the practice of his religion and were not

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reasonably related to a legitimate penological interest. Plaintiff previously argued the substantial

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burden issue in his opposition and he now seeks to bring the argument again, more than a month

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after Defendant’s motion for summary judgment was fully briefed and deemed submitted to the

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court. L.R. 230(l).

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

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Plaintiff’s motion shall be denied and his proposed 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:
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Plaintiff’s motion to file a surreply (ECF No. 51), filed on July 19, 2019, is
DENIED; and

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Plaintiff’s proposed surreply (ECF No. 50), filed on July 19, 2019, is STRICKEN
from the record.

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IT IS SO ORDERED.
Dated:

October 31, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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