Ware v. McDonald et al

Filing 106

ORDER signed by Magistrate Judge Kendall J. Newman on 07/19/16 ordering the court will consider plaintiffs perfected declaration and affidavit in connection with the pending motion for summary judgment. The Clerk of the Court is directed to docket a copy of plaintiffs affidavit, (ECF No. 103 at 16-17) as ECF No. 102 -1. Within fourteen days from the date of this order, defendants shall file a response to plaintiffs declarations, as discussed above, and shall submit the items missing from their prior briefing. The remainder of plaintiffs surreply 103 is disregarded.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARTIN WARE,

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No. 2:12-cv-1505 TLN KJN P
Plaintiff,

v.

ORDER

M. McDONALD, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. On February 10, 2016,

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defendants filed their reply to plaintiff’s opposition to the January 15, 2016 motion for summary

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judgment. However, on February 16, 2016, plaintiff submitted a 166 page document purportedly

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in support of plaintiff’s opposition to the motion. (ECF Nos. 102, 103.)

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The Local Rules do not authorize the routine filing of a surreply. Nevertheless, a district

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court may allow a surreply “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, at

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*1 (E.D. Cal. 2005); accord Norwood v. Byers, 2013 WL 3330643, at *3 (E.D. Cal. 2013),

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adopted, 2013 WL 5156572 (E.D. Cal. 2013).

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Here, plaintiff submitted a letter addressed to the undersigned in which he claims he had
reviewed his opposition and noticed that one of his declarations was not signed or dated, and

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therefore he had rewritten that page and signed his name and dated the document January 31,

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2016. Plaintiff stated that he also enclosed “original copies of his statement of the facts and

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perfected declaration.” (ECF No. 103 at 1.) Plaintiff asked to be excused because he has been

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taking medication for severe chest pain.
Plaintiff’s “perfected declaration” was separately docketed as ECF No. 102. Because

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plaintiff’s prior declaration was not signed (ECF No. 98), the court will consider his “perfected

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declaration.” However, the “perfected declaration,” containing 136 paragraphs, differs from the

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previously-submitted declaration, which contains 34 paragraphs. Therefore, defendants were not

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provided an opportunity to consider plaintiff’s complete declaration in drafting their February 10,

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2016 reply. The court will provide defendants an opportunity to file a response to plaintiff’s

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“perfected declaration.”

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With his letter, plaintiff included another affidavit that may be relevant to his opposition.

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(ECF No. 103 at 16-17.) Thus, the Clerk of the Court is directed to docket a copy of plaintiff’s

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affidavit as ECF No. 102-1. Defendants are provided an opportunity to respond to this affidavit

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as well.
It appears that some of plaintiff’s statements in these two declarations were included in his

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verified pleading. (ECF No. 41.) However, if plaintiff’s “perfected declaration” and “affidavit”

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require editing defendants’ statement of undisputed facts, defendants are also granted leave to do

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so.

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The court has reviewed the remainder of plaintiff’s February 16, 2016 filing. The bulk of

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this filing is not relevant to the pending motion. For example, plaintiff provides information

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concerning his underlying criminal conviction, as well as documents pertaining to incidents

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unrelated to the April 10, 2011 incident at issue here. Defendants did not raise new arguments in

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their reply brief, and plaintiff did not seek leave to file a surreply. For these reasons, the

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remainder of plaintiff’s February 16, 2016 filing, construed as a surreply, is disregarded.

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Moreover, in reviewing the briefing submitted in connection with the pending motion,

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certain documents are missing. In the declaration of T. Johnson, no page 42 of plaintiff’s

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deposition is provided, despite reference to page 42 in defendants’ statement of undisputed facts.
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Also, it appears that a portion of defendant Tancreto’s declaration is missing. (ECF No. 96-10.)

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The last sentence in paragraph number 3 on page one is a complete sentence, but the next

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sentence on page two begins mid-sentence, and the next paragraph is numbered “5,” not 4.

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Defendants are directed to provide corrected documents within fourteen days.

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Finally, plaintiff is cautioned that no further filing in connection with the pending motion

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is authorized. The Local Rules provide for a motion, an opposition, and a reply. Local Rule

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230(l). Plaintiff has filed his own partial motion for summary judgment, as well as opposing

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documents on February 5, 2016, February 8, 2016, and now February 16, 2016. Plaintiff shall

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file no further document in opposition to the motion for summary judgment. Once the court

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issues its findings and recommendations, plaintiff will be provided an opportunity to file

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objections.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The court will consider plaintiff’s “perfected declaration” and “affidavit” in connection

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with the pending motion for summary judgment;
2. The Clerk of the Court is directed to docket a copy of plaintiff’s “affidavit,” (ECF No.
103 at 16-17) as ECF No. 102-1;
3. Within fourteen days from the date of this order, defendants shall file a response to

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plaintiff’s declarations, as discussed above, and shall submit the items missing from their prior

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briefing; and

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4. The remainder of plaintiff’s surreply (ECF No. 103) is disregarded.
Dated: July 19, 2016

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