Heilman v. Wasko, et al

Filing 28

ORDER signed by Magistrate Judge Allison Claire on 07/10/13 denying 27 Motion to Strike plaintiff's unauthorized surreply. Defendant is granted 14 days from the date of this order in which to reply to plaintiff's second opposition filed on 05/03/13. (Plummer, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 THOMAS JOHN HEILMAN, 11 No. 2:12-cv-01966 AC P Plaintiff, 12 v. 13 TODD WASKO, 14 ORDER Defendant. 15 16 Plaintiff, a state prisoner, has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 17 1983. Plaintiff proceeds with a single claim under the First Amendment against defendant Todd 18 Wasko. On March 28, 2013, defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) 19 asserting that plaintiff failed to exhaust available administrative remedies. ECF No. 23. Plaintiff 20 filed an opposition to the motion and defendant filed a reply. ECF Nos. 24, 25. Subsequently, 21 plaintiff filed a second opposition which defendant has moved to strike as an unauthorized 22 surreply. ECF Nos. 26, 27. 23 Under the local rule governing prisoner actions, proper briefing of a motion in this court 24 consists of the moving party’s motion, the responding party’s opposition or statement of non- 25 opposition, and the moving party’s optional reply to the opposition. See Local Rule 230(l). Here, 26 in light of plaintiff’s pro se status, and because defendant will not suffer prejudice, the court will 27 consider plaintiff’s second opposition to the motion to dismiss. Plaintiff is advised, however, that 28 future unauthorized briefing will not be considered except with leave of court which may be 1 1 sought by filing a motion for leave to submit supplemental briefing. Sua sponte, defendant is 2 granted 14 days from the date of this order in which to reply to plaintiff’s second opposition, 3 should defendant wish to do so. 4 In accordance with the above, IT IS HEREBY ORDERED THAT: 5 1. Defendant’s motion to strike plaintiff’s unauthorized surreply (ECF No. 27) is 6 7 8 9 DENIED; 2. Defendant is granted 14 days from the date of this order in which to reply to plaintiff’s second opposition filed on May 3, 2013. DATED: July 10, 2013 10 11 ___________________________________ ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 AC:LS//heil.1966.motstrike.docx 18 19 20 21 22 23 24 25 26 27 28 2

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