Franklin v. Foulk

Filing 93

ORDER signed by Magistrate Judge Deborah Barnes on 02/13/17 granting 80 Motion to strike. The clerk's office is instructed to strike plaintiff's sur-reply 79 from the docket. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHNNY L. FRANKLIN,

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No. 2:14-cv-00057 KJM DB

Plaintiff,

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v.

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F. FOULK, et al.,

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ORDER
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983 alleging deliberate indifference to his medical needs while he was

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incarcerated at High Desert State Prison. On January 29, 2016, defendants filed a motion for

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summary judgment claiming that plaintiff failed to exhaust his administrative remedies. (ECF

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No. 71.) Plaintiff filed an opposition to the motion. (ECF No. 76.) Defendants filed a reply in

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support of the motion. (ECF No. 77.) On April 4, 2016, plaintiff filed a sur-reply. (ECF No. 79.)

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Defendants move to strike plaintiff’s sur-reply as unauthorized. (ECF No. 80.) Plaintiff

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did not respond to the motion to strike. For the following reasons, the undersigned grants

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defendants’ motion to strike.

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Plaintiff’s sur-reply is not authorized by, nor filed in conformance with, the Local Rules

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or the Federal Rules of Civil Procedure. Moreover, plaintiff did not obtain the court’s permission

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to file this sur-reply.
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A reply (or other response) to a reply is not recognized by the Federal Rules of Civil

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Procedure or the Local Rules of this court. The Local Rule governing motions in prisoner cases

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contemplates the submission of only an opposition by a responding party, and a reply by the

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moving party. See E.D. Cal. L.R. 230(l). Furthermore, it provides that the motion is deemed

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submitted twenty-eight days after the service of the motion or when the reply is filed. Here,

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defendants’ reply brief was filed on March 23, 2016. Therefore, the motion for summary

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judgment was already deemed submitted before plaintiff filed his sur-reply.

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Because there is no provision in the Federal Rules of Civil Procedure or the Local Rules
authorizing the filing of a sur-reply, and because plaintiff did not seek nor does plaintiff have this

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court’s permission to file such a brief, plaintiff’s sur-reply is improper. Accordingly, IT IS

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HEREBY ORDERED that defendants’ motion to strike (ECF No. 80) is granted and the clerk’s

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office is instructed to strike plaintiff’s sur-reply (ECF No. 79) from the docket.

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Dated: February 13, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / foul.0057.mts

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