Sutherland v. Herrmann et al

Filing 83

ORDER signed by Magistrate Judge Dale A. Drozd on 1/6/2012 ORDERING Defendants' # 69 motion to strike filings is GRANTED; Docket Nos. 64 , 66 , and 67 are STRICKEN; Plaintiff's # 76 motion to pursue perjury charges is DENIED; Plaintiff's # 78 motion for leave to reopen discovery is DENIED; and Plaintiff's motion # 79 for subpoenas duces tecum is DENIED. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM YOUNG SUTHERLAND,

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Plaintiff,

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No. CIV S-09-2391 WBS DAD P

vs.
S. HERRMANN, et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to
42 U.S.C. § 1983. Several matters are pending before the court.
On March 11, 2011, two of the four defendants in this action, defendants Parmar

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and Spinks, filed a motion for summary judgment. Plaintiff filed his opposition to that motion

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on April 11, 2011, and defendants filed a reply on April 15, 2011. On May 23, 2011, plaintiff

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filed a response to defendants’ reply, and on June 13, 2011, plaintiff filed an amendment to his

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opposition and an amendment to the declaration appended to his May 23, 2011 response to

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defendants’ reply brief. Defendants have moved to strike the latter three documents filed by

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plaintiff as unauthorized and impermissible surreply briefs.

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Local Rule 230(1) authorizes the filing of an opposition to a motion and a reply
brief in support of the motion, and provides that a motion is “deemed submitted twenty-eight
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(28) days after the service of the motion or when the reply is filed, whichever comes first.” Local

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Rule 230(l) (E.D.Cal.). Plaintiff’s May 23, 2011 response to defendants’ reply, and his June 13,

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2011 amendment to the declaration appended to that response, are not authorized and will

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therefore be stricken.

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The court has reviewed plaintiff’s June 13, 2011 proposed amendment to his

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opposition. The proposed amendment is missing the third page of plaintiff’s opposition to the

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motion, missing nine pages from Exhibit D, and adds as Exhibit K a copy of plaintiff’s

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complaint. Plaintiff is not required to tender a copy of his complaint as an exhibit in opposition

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to defendants’ motion for summary judgment. See Fed. R. Civ. P. 56(c)(3) (at summary

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judgment court may consider other materials in the record). The June 13, 2011 proposed

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amendment to plaintiff’s opposition adds no material necessary to plaintiff’s opposition. It will

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therefore also be stricken.

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On September 15, 2011, plaintiff filed a document styled “Petition to Persue [sic]

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Charges of Perjury Against M. Spinks and Subornation of Perjury Against Deputy Attorney

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General Jessica R. Devencenzi.” Therein, plaintiff contends that throughout defendant Spink’s

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responses to a set of interrogatories propounded by plaintiff, masculine articles of speech (such

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as “his”) are used to refer to defendant Spink, when defendant Spink is in fact a female. It is

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clear in the record, and undisputed by defendants, that defendant Spink is female. Plaintiff’s

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motion will be denied.

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On October 24, 2011, plaintiff filed a motion for to reopen discovery, and on

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October 28, 2011, filed a motion for subpoenas duces tecums for service of discovery requests on

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non-parties. In his motion to reopen discovery, plaintiff contends that the time to conduct

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discovery in this action was inadequate to permit him to compel further responses to discovery

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from defendants and to serve subpoenas duces tecum on non-parties. The record reflects that

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plaintiff did timely file a motion to compel discovery responses which has been resolved by the

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court. See Order filed July 21, 2011 (Doc. No. 70).1 The record also reflects that plaintiff has

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previously sought and been denied leave to serve subpoenas duces tecum. Id. In the motion now

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pending before the court, plaintiff does not provide any specific information concerning the of

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the discovery he would seek by the requested subpoenas or why such discovery is essential to his

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prosecution of this action. Therefore, plaintiff’s motions will be denied.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Defendants’ June 20, 2011 motion to strike filings (Doc. No. 69) is granted;

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2. Docket Nos. 64, 66, and 67 are stricken;

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3. Plaintiff’s motion to pursue perjury charges (Doc. No. 76) is denied;

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4. Plaintiff’s motion for leave to reopen discovery (Doc. No. 78) is denied; and

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5. Plaintiff’s motion for subpoenas duces tecum (Doc. No. 79) is denied.

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DATED: January 6, 2012.

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DAD:12
suth2391.o2

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The court has completed the in camera review required by the July 21, 2011 order,
which has led to production of some additional documents to plaintiff.
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