(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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STANLEY H. SOLVEY,
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Plaintiff,
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vs.
1:19-cv-01444-JLT-GSA-PC
ORDER STRIKING IMPERMISSIBLE
SURREPLY
(ECF No. 76.)
S. GATES, et al.,
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Defendants.
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I.
BACKGROUND
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Stanley H. Solvey (“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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First Amended Complaint filed on January 14, 2020, against defendant Dr. Andrew Zepp
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(“Defendant”) for refusing to provide Plaintiff with sufficient pain medication as he awaited
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surgery, in violation of the Eighth Amendment. (ECF No. 14.)
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On June 27, 2022, Defendant Zepp filed a cross-motion for summary judgment. (ECF
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No. 55.) On September 12, 2022, Plaintiff filed an opposition to the motion. (ECF No. 69.) On
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October 14, 2022, Defendant filed a reply to Plaintiff’s opposition. (ECF No. 75.)
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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.
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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).
Plaintiff’s reply to Defendant’s reply is a surreply because it was filed on November 3,
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2022, after Defendant’s cross-motion was fully briefed.
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judgment was fully briefed and submitted on the record under Local Rule 230(l) on October 14,
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2022, when Defendant filed a reply to Plaintiff’s opposition. (ECF No. 75.) In this case, the
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court neither requested a surreply nor granted a request on behalf of Plaintiff to file a surreply.
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Nor has Plaintiff shown good cause for the court to allow him to file a surreply. Therefore,
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Plaintiff’s surreply shall be stricken from the record.1
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III.
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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.
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IT IS SO ORDERED.
Dated:
November 17, 2022
/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. 3 at 2 ¶II.A.)
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