Bowell v. Montoya et al

Filing 95

ORDER striking impermissible Surreply 94 signed by Magistrate Judge Gary S. Austin on 3/2/2021. (Lundstrom, T)

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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-NONE-GSA-PC
ORDER STRIKING IMPERMISSIBLE
SURREPLY
(ECF No. 94.)

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 January 25, 2021, defendants Carter, Killmer, Lopez, and Montoya (“Defendants”)

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filed a motion for summary judgment. (ECF No. 90.) On February 3, 2021, Plaintiff filed an

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opposition to the motion. (ECF No. 28.) On February 9, 2021, Defendants filed a reply to

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Plaintiff’s opposition. (ECF No. 93.)

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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 February 25, 2019, Plaintiff filed a second opposition to Defendants’ motion. (ECF

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No. 30.) The court construes Plaintiff’s second opposition as an impermissible surreply.

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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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March 1, 2021). The Local Rules provide for a motion, an opposition, and a reply. Neither the

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Local Rules nor the Federal Rules provide the right to file a surreply. A district court may allow

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

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where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136,

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

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Plaintiff’s second opposition to Defendants’ motion is a surreply because it was filed on

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February 3, 2021 after Defendant’s motion was fully briefed. The motion for summary judgment

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was fully briefed and submitted on the record under Local Rule 230(l) on February 9, 2021 when

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Defendants filed a reply to Plaintiff’s first opposition. (ECF No. 93.) In this case the court

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

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

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Therefore, Plaintiff’s surreply shall be stricken from the record.2

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III.

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

February 13, 2019, is STRICKEN from the court’s record.

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IT IS SO ORDERED.
Dated:

March 2, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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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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