(PC) Solvey v. Gates et al

Filing 77

ORDER STRIKING Impermissible 76 Surreply, signed by Magistrate Judge Gary S. Austin on 11/17/2022. (Rivera, O)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STANLEY H. SOLVEY, 12 Plaintiff, 13 14 vs. 1:19-cv-01444-JLT-GSA-PC ORDER STRIKING IMPERMISSIBLE SURREPLY (ECF No. 76.) S. GATES, et al., 15 Defendants. 16 17 18 I. BACKGROUND 19 Stanley H. Solvey (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 21 First Amended Complaint filed on January 14, 2020, against defendant Dr. Andrew Zepp 22 (“Defendant”) for refusing to provide Plaintiff with sufficient pain medication as he awaited 23 surgery, in violation of the Eighth Amendment. (ECF No. 14.) 24 On June 27, 2022, Defendant Zepp filed a cross-motion for summary judgment. (ECF 25 No. 55.) On September 12, 2022, Plaintiff filed an opposition to the motion. (ECF No. 69.) On 26 October 14, 2022, Defendant filed a reply to Plaintiff’s opposition. (ECF No. 75.) 27 28 On November 3, 2022, Plaintiff filed a reply to Defendant’s reply. (ECF No. 76.) The court construes Plaintiff’s November 3, 2022 reply as an impermissible surreply. 1 1 II. SURREPLY 2 A surreply, or sur-reply, is an additional reply to a motion filed after the motion has 3 already been fully briefed. USLegal.com, http://definitions.uslegal.com/s/sur-reply/ (last visited 4 March 1, 2021). The Local Rules provide for a motion, an opposition, and a reply. Neither the 5 Local Rules nor the Federal Rules provide the right to file a surreply. A district court may allow 6 a surreply to be filed, but only “where a valid reason for such additional briefing exists, such as 7 where the movant raises new arguments in its reply brief.” Hill v. England, 2005 WL 3031136, 8 *1 (E.D.Cal. Nov. 8, 2005). Plaintiff’s reply to Defendant’s reply is a surreply because it was filed on November 3, 9 10 2022, after Defendant’s cross-motion was fully briefed. 11 judgment was fully briefed and submitted on the record under Local Rule 230(l) on October 14, 12 2022, when Defendant filed a reply to Plaintiff’s opposition. (ECF No. 75.) In this case, the 13 court neither requested a surreply nor granted a request on behalf of Plaintiff to file a surreply. 14 Nor has Plaintiff shown good cause for the court to allow him to file a surreply. Therefore, 15 Plaintiff’s surreply shall be stricken from the record.1 16 III. 17 18 The cross-motion for summary CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s surreply, filed on November 3, 2022, is STRICKEN from the court’s record. 19 20 21 IT IS SO ORDERED. Dated: November 17, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 “A document which is ‘stricken’ will not be considered by the Court for any purpose.” (Informational Order, ECF No. 3 at 2 ¶II.A.) 1 28 2

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