Scott v. Beregovskay, et al.

Filing 64

ORDER STRIKING Impermissible 63 Surreply signed by Magistrate Judge Gary S. Austin on 10/6/2021. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIANTE DION SCOTT,

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Plaintiff,

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vs.

1:17-cv-01146-NONE-GSA-PC
ORDER STRIKING IMPERMISSIBLE
SURREPLY
(ECF No. 63.)

BEREGOVSKAYA, et al.,

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Defendants.

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I.

BACKGROUND

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Tiante Dion Scott (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s

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Third Amended Complaint, filed on November 19, 2019, against defendants Olga Beregovskaya

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(MD), David Gines (MD), C. Agbasi (LVN), and A. Armendarez (RN) (“Defendants”) for

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inadequate medical care in violation of the Eighth Amendment. (ECF No. 25.)1

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On August 9, 2021, Defendants filed a motion for summary judgment. (ECF No. 56.)

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On September 15, 2021, Plaintiff filed an opposition to the motion. (ECF No. 60.) On September

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22, 2021, Defendants filed a reply to Plaintiff’s opposition. (ECF No. 62.)

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On August 11, 2020, the Ninth Circuit remanded this case to proceed on Plaintiff’s medical
indifference claim. (ECF No. 39.)

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On October 5, 2021, Plaintiff filed a second opposition to Defendants’ motion. (ECF No.

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63.) 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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October 5, 2021, after Defendants’ 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 September 22, 2021,

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when Defendants filed a reply to Plaintiff’s first opposition. (ECF No. 62.) 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

October 5, 2021, is STRICKEN from the court’s record.

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IT IS SO ORDERED.
Dated:

October 6, 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. 8 at 2 ¶ II.A.)
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