Brothers, II v. Buenafe et al

Filing 83

ORDER GRANTING Defendants' Motion to Strike Surreply and DIRECTING Clerk to Strike Plaintiff's Surreply, signed by Magistrate Judge Helena M. Barch-Kuchta on 04/13/2021.(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AUBREY LEE BROTHERS, II,

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Plaintiff,

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v.

Case No. 1:17-cv-00607-NONE-HBK
ORDER GRANTING DEFENDANTS’
MOTION TO STRIKE SURREPLY AND
DIRECTING CLERK TO STRIKE
PLAINTIFF’S SURREPLY

CHITA BUENAFE, N. RAMIREZ,
(Doc. Nos. 80, 81)

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Defendant.

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Pending review before the court is plaintiff’s pleading titled “reply to defendant’s reply to

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plaintiff’s opposition to motion for summary judgment” construed as a surreply. (Doc. No. 80).

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Defendants filed a response to the surreply incorporating a motion to strike plaintiff’s surreply.

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(Doc. No. 81). For the reasons set forth below, the court grants defendants’ motion to strike

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plaintiff’s surreply.
I.

BACKGROUND

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Plaintiff Aubrey Lee Brothers, II, a state prisoner, initiated this action on May 1, 2017 by

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filing a pro se civil rights complaint under 42 U.S.C. § 1983 (Doc. No. 1). Defendants moved for

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summary judgment. (Doc. Nos. 63). Plaintiff filed an opposition (Doc. No. 76) and defendants

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filed a reply (Doc. No. 78). On April 5, 2021, plaintiff filed an unauthorized surreply (Doc. No.

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80) and defendants moved to strike the surreply from the record. (Doc. No. 81).

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II.

APPLICABLE LAW

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Neither the Federal Rules of Civil Procedure, nor the Local Rules for the Eastern District

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of California permit the filing of a surreply as a matter of right. See Garcia v. Biter, 195 F.Supp.3d

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at 1131 (E.D. Ca. July 18, 2016) (noting the plaintiff did not have a right to file a surreply under

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the local rules or under the Federal Rules of Civil Procedure). However, district courts have

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discretion to permit, or preclude, a surreply. Id. at 1133 (other citations omitted). While courts are

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required to provide pro se litigants leniency, the court generally views motions for leave to file a

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surreply with disfavor and will not consider granting a motion seeking leave to file a surreply absent

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good cause shown. Id. (other citations omitted). The surreply reasserts the same arguments raised

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by plaintiff in his opposition.
III.

ANALYSIS

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Here, defendants’ motion for summary judgment was deemed submitted and ripe for review

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on March 18, 2021 when defendants filed their reply to plaintiff’s opposition. (Doc. No. 78).

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Plaintiff did not seek leave to file a surreply and instead filed a surreply on April 5, 2021. (Doc.

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No. 80). Plaintiff has not requested leave too file a surreply nor shown good cause to file a surreply.

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Because Federal Rule of Civil Procedure 12(f) authorizes the court to strike any insufficient

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defense, or any redundant, immaterial, impertinent, or scandalous matter, the court will grant

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defendants’ motion and will strike plaintiff’s surreply. See id. Accordingly, the court will not

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consider the arguments in plaintiff’s surreply (Doc. No. 80) or in defendants’ reply to plaintiff’s

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surreply. (Doc. No. 81).

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Accordingly, it is now ORDERED:

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1. Defendants’ motion to strike plaintiff’s surreply (Doc. No. 81) is GRANTED.

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2. The Clerk of Court shall strike plaintiff’s surreply (Doc. No. 80).

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IT IS SO ORDERED.

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Dated:
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April 13, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE
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