Brothers, II v. Buenafe et al
ORDER Striking 84 Plaintiff's Unauthorized Reply from the Record, signed by Magistrate Judge Helena M. Barch-Kuchta on 04/23/2021.(Maldonado, C)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
AUBREY LEE BROTHERS, II,
CHITA BUENAFE, N. RAMIREZ,
Case No. 1:17-cv-00607-NONE-HBK
ORDER STRIKING PLAINTIFF’S
UNAUTHORIZED REPLY FROM THE
(Doc. No. 84)
Pending review before the court is plaintiff’s pleading titled “reply to defendant’s
response to plaintiff’s improper surreply,” construed as an unauthorized pleading. (Doc. No. 84).
Plaintiff Aubrey Lee Brothers, II, a state prisoner, initiated this action on May 1, 2017 by
filing a pro se civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1). Defendants moved
for summary judgment. (Doc. Nos. 63). Plaintiff filed an opposition (Doc. No. 76) and
defendants filed a reply (Doc. No. 78). The motion for summary judgment remains pending
before this court. On April 5, 2021, plaintiff filed an unauthorized surreply (Doc. No. 80) and
defendants moved to strike the surreply from the record. (Doc. No. 81). On April 14, 2021, the
court granted defendant’s motion to strike the surreply. (Doc. No. 83). On April 20, 2021,
plaintiff filed the instant reply. (Doc. No. 84).
APPLICABLE LAW AND ANALYSIS
Federal Rule of Civil Procedure 7(a) only allows for certain pleadings, namely a
complaint, answer, and reply. Neither the Federal Rules of Civil Procedure, nor the Local Rules
for the Eastern District of California permit the filing of additional pleadings as a matter of right.
See Garcia v. Biter, 195 F.Supp.3d at 1131 (E.D. Ca. July 18, 2016) (noting the plaintiff did not
have a right to file a surreply under the local rules or under the Federal Rules of Civil Procedure).
Moreover, the “court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P 12(f).
Here, plaintiff has already filed an unauthorized surreply and the court has stricken this
surreply from the record. (Doc. Nos. 80, 83). Plaintiff now files a second unauthorized reply.
(Doc. No. 84). Some of the material in this reply rehashes arguments already made previously in
this case. Although it is likely that plaintiff did not receive the court’s April 14, 2021 order
striking plaintiff’s initial unauthorized surreply before he filed the this second unauthorized
reply, because the court did not authorize plaintiff’s reply, the court orders it stricken from the
Accordingly, it is now ORDERED:
The Clerk of Court shall strike plaintiff’s unauthorized reply from the record. (Doc. No.
IT IS SO ORDERED.
April 23, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?