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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AUBREY LEE BROTHERS, II, 12 Plaintiff, 13 14 v. CHITA BUENAFE, N. RAMIREZ, 15 Case No. 1:17-cv-00607-NONE-HBK ORDER STRIKING PLAINTIFF’S UNAUTHORIZED REPLY FROM THE RECORD (Doc. No. 84) Defendant. 16 17 Pending review before the court is plaintiff’s pleading titled “reply to defendant’s 18 response to plaintiff’s improper surreply,” construed as an unauthorized pleading. (Doc. No. 84). 19 20 I. BACKGROUND Plaintiff Aubrey Lee Brothers, II, a state prisoner, initiated this action on May 1, 2017 by 21 filing a pro se civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1). Defendants moved 22 for summary judgment. (Doc. Nos. 63). Plaintiff filed an opposition (Doc. No. 76) and 23 defendants filed a reply (Doc. No. 78). The motion for summary judgment remains pending 24 before this court. On April 5, 2021, plaintiff filed an unauthorized surreply (Doc. No. 80) and 25 defendants moved to strike the surreply from the record. (Doc. No. 81). On April 14, 2021, the 26 court granted defendant’s motion to strike the surreply. (Doc. No. 83). On April 20, 2021, 27 plaintiff filed the instant reply. (Doc. No. 84). 28 1 II. APPLICABLE LAW AND ANALYSIS 2 Federal Rule of Civil Procedure 7(a) only allows for certain pleadings, namely a 3 complaint, answer, and reply. Neither the Federal Rules of Civil Procedure, nor the Local Rules 4 for the Eastern District of California permit the filing of additional pleadings as a matter of right. 5 See Garcia v. Biter, 195 F.Supp.3d at 1131 (E.D. Ca. July 18, 2016) (noting the plaintiff did not 6 have a right to file a surreply under the local rules or under the Federal Rules of Civil Procedure). 7 Moreover, the “court may strike from a pleading an insufficient defense or any redundant, 8 immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P 12(f). 9 Here, plaintiff has already filed an unauthorized surreply and the court has stricken this 10 surreply from the record. (Doc. Nos. 80, 83). Plaintiff now files a second unauthorized reply. 11 (Doc. No. 84). Some of the material in this reply rehashes arguments already made previously in 12 this case. Although it is likely that plaintiff did not receive the court’s April 14, 2021 order 13 striking plaintiff’s initial unauthorized surreply before he filed the this second unauthorized 14 reply, because the court did not authorize plaintiff’s reply, the court orders it stricken from the 15 record. 16 Accordingly, it is now ORDERED: 17 The Clerk of Court shall strike plaintiff’s unauthorized reply from the record. (Doc. No. 18 84). 19 20 IT IS SO ORDERED. 21 Dated: 22 23 April 23, 2021 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2

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