Bowell v. Montoya et al

Filing 33

ORDER STRIKING Impermissible 32 Surreply signed by Magistrate Judge Gary S. Austin on 2/19/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES BOWELL,
Plaintiff,

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vs.

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1:17-cv-00605-LJO-GSA-PC
ORDER STRIKING IMPERMISSIBLE
SURREPLY
(ECF No. 32.)

F. MONTOYA, et al.,
Defendants.

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I.

BACKGROUND

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James Bowell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

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

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First Amended Complaint, filed on May 3, 2018, against defendants Montoya and Carter for

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violation of due process under the Fourteenth Amendment, and against defendants Killmer and

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Lopez for conspiracy to place Plaintiff at risk of serious harm and for failure to protect Plaintiff

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under the Eighth Amendment. (ECF No. 16.)1

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On October 25, 2018, the court issued an order dismissing all other claims and defendants from
this case for Plaintiff’s failure to state a claim. (ECF No. 20.)

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On January 10, 2019, Defendants filed a motion for an order revoking Plaintiff’s in forma

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pauperis status (“motion”). (ECF No. 24.) On January 29, 2019, Plaintiff filed an opposition to

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the motion. (ECF No. 28.) On February 4, 2019, Defendants filed a reply to Plaintiff’s

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opposition. (ECF No. 29.)

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On February 13, 2013, Plaintiff filed a second opposition to Defendants’ motion. (ECF

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No. 30.) On February 15, 2019, the court issued an order striking the second opposition as an

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unauthorized surreply. (ECF No. 31.)
On February 2019, Plaintiff filed a third opposition to Defendants’ motion. (ECF No.

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32.) The court construes Plaintiff’s third opposition again as an impermissible surreply.
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’s third opposition to Defendants’ motion is a surreply because it was filed on

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February 15, 2019, after Defendant’s motion was fully briefed. The motion for an order revoking

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Plaintiff’s in forma pauperis status was fully briefed and submitted on the record under Local

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Rule 230(l) on February 4, 2019, when Defendant filed a reply to Plaintiff’s first opposition.

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(ECF No. 29.) In this case, the court neither requested a surreply nor granted a request on the

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behalf of Plaintiff to file a surreply. Plaintiff has not shown good cause for the court to allow

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him to file a surreply at this juncture. Therefore, Plaintiff’s surreply shall be stricken from the

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record.2

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A document which is ‘stricken’ will not be considered by the Court for any purpose.”
(Informational Order, ECF No. 3 at 2 ¶II.A.)
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III.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s surreply, filed on

February 15, 2019, is STRICKEN from the court’s record.

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IT IS SO ORDERED.
Dated:

February 19, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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