Guerrero v. McClure et al

Filing 96

ORDER signed by Magistrate Judge Dale A. Drozd on 02/11/13 ordering defendants' motion to strike plaintiff's additional briefing 94 is denied. The court will consider plaintiff's supplemental filings 87 - 89 and 92 in ruling on the pending motion for summary judgment brought on behalf of defendants Fecht, Ferguson, and Fox. Defendants are granted 7 days from the date of this order to file a reply brief, if any, addressing the merits to plaintiff's additional briefing on the motion. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES ANTHONY GUERRERO

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Plaintiff,
vs.
S. McCLURE, et al.,
Defendants.

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No. 2:10-cv-0318 GEB DAD P

ORDER
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Plaintiff, a state prisoner, is proceeding pro se with a civil rights complaint filed

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pursuant to 42 U.S.C. § 1983. Pending before the court is a motion by defendants J. Fecht, D.

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Ferguson and R. Fox to strike additional briefing filed by plaintiff in opposition to their pending

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motion for summary judgment.

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On August 17, 2012, defendants J. Fecht, D. Ferguson and R. Fox moved for

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summary judgment pursuant to Fed. R. Civ. P. 56. (Doc. No. 83.) On September 4, 2012,

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plaintiff filed a response to that motion for summary judgment which included plaintiff’s own

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unsigned declaration. (Doc. No. 84.) On September 14, 2012, defendants J. Fecht, D. Fergus

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and R. Fox filed objections to plaintiff’s evidence and a reply brief, noting that plaintiff’s

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declaration was unsigned. (Doc. Nos. 85, 86.) Subsequently, plaintiff filed three separate

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statements of fact (Doc. Nos. 87, 88 [styled as an “opposition”], 92) and another opposition to
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the pending motion for summary judgment (Doc. No. 89). Defendants J. Fecht, D. Ferguson and

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R. Fox have moved to strike plaintiff’s submission which followed his initial opposition (Doc.

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Nos. 87, 88, 89 and 92) as unauthorized pleading. (Doc. No. 94.) In the alternative, defendants

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Fecht, Ferguson and Fox request 30 days leave to file a reply to the merits of plaintiff’s

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additional filings.

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Under the local rule governing prisoner actions, proper briefing of a motion in this

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court consists of the moving party’s motion, the responding party’s opposition or statement of

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non-opposition, and the moving party’s optional reply to the opposition. See Local Rule 230(l).

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In light of plaintiff’s pro se status, however, in this instance the court will consider his various

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unauthorized supplemental submissions as his opposition to the pending motion for summary

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judgment. Plaintiff is advised that future unauthorized briefing will not be considered except

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with leave of court which may be sought by filing an application for leave to submit

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supplemental briefing.

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

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1.

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Defendants’ motion to strike plaintiff’s additional briefing (Doc. No. 94)
is DENIED;

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2.

The court will consider plaintiff’s supplemental filings (Doc. Nos. 87-89

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& 92) in ruling on the pending motion for summary judgment brought on

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behalf of defendants Fecht, Ferguson and Fox ; and

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3.

Defendants are granted seven days from the date of this order to file a

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reply brief, if any, addressing the merits to plaintiff’s additional briefing

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on the motion.

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DATED: February 11, 2013.

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DAD: 11
guer0318.strikebrief

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