Brothers, II v. Buenafe et al

Filing 86

ORDER Striking 84 Plaintiff's Unauthorized Reply from the Record, signed by Magistrate Judge Helena M. Barch-Kuchta on 04/23/2021.(Maldonado, C)

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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.
CHITA BUENAFE, N. RAMIREZ,

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Case No. 1:17-cv-00607-NONE-HBK
ORDER STRIKING PLAINTIFF’S
UNAUTHORIZED REPLY FROM THE
RECORD
(Doc. No. 84)

Defendant.

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

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response to plaintiff’s improper surreply,” construed as an unauthorized pleading. (Doc. No. 84).

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I.

BACKGROUND
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

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

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defendants filed a reply (Doc. No. 78). The motion for summary judgment remains pending

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before this court. On April 5, 2021, plaintiff filed an unauthorized surreply (Doc. No. 80) and

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defendants moved to strike the surreply from the record. (Doc. No. 81). On April 14, 2021, the

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court granted defendant’s motion to strike the surreply. (Doc. No. 83). On April 20, 2021,

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plaintiff filed the instant reply. (Doc. No. 84).

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II.

APPLICABLE LAW AND ANALYSIS

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Federal Rule of Civil Procedure 7(a) only allows for certain pleadings, namely a

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complaint, answer, and reply. Neither the Federal Rules of Civil Procedure, nor the Local Rules

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for the Eastern District of California permit the filing of additional pleadings as a matter of right.

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See Garcia v. Biter, 195 F.Supp.3d at 1131 (E.D. Ca. July 18, 2016) (noting the plaintiff did not

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have a right to file a surreply under the local rules or under the Federal Rules of Civil Procedure).

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Moreover, the “court may strike from a pleading an insufficient defense or any redundant,

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immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P 12(f).

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Here, plaintiff has already filed an unauthorized surreply and the court has stricken this

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surreply from the record. (Doc. Nos. 80, 83). Plaintiff now files a second unauthorized reply.

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(Doc. No. 84). Some of the material in this reply rehashes arguments already made previously in

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this case. Although it is likely that plaintiff did not receive the court’s April 14, 2021 order

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striking plaintiff’s initial unauthorized surreply before he filed the this second unauthorized

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reply, because the court did not authorize plaintiff’s reply, the court orders it stricken from the

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record.

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Accordingly, it is now ORDERED:

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The Clerk of Court shall strike plaintiff’s unauthorized reply from the record. (Doc. No.

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84).

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IT IS SO ORDERED.

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Dated:
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April 23, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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