Franklin v. Foulk
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JOHNNY L. FRANKLIN,
No. 2:14-cv-00057 KJM DB
F. FOULK, et al.,
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights
action under 42 U.S.C. § 1983 alleging deliberate indifference to his medical needs while he was
incarcerated at High Desert State Prison. On January 29, 2016, defendants filed a motion for
summary judgment claiming that plaintiff failed to exhaust his administrative remedies. (ECF
No. 71.) Plaintiff filed an opposition to the motion. (ECF No. 76.) Defendants filed a reply in
support of the motion. (ECF No. 77.) On April 4, 2016, plaintiff filed a sur-reply. (ECF No. 79.)
Defendants move to strike plaintiff’s sur-reply as unauthorized. (ECF No. 80.) Plaintiff
did not respond to the motion to strike. For the following reasons, the undersigned grants
defendants’ motion to strike.
Plaintiff’s sur-reply is not authorized by, nor filed in conformance with, the Local Rules
or the Federal Rules of Civil Procedure. Moreover, plaintiff did not obtain the court’s permission
to file this sur-reply.
A reply (or other response) to a reply is not recognized by the Federal Rules of Civil
Procedure or the Local Rules of this court. The Local Rule governing motions in prisoner cases
contemplates the submission of only an opposition by a responding party, and a reply by the
moving party. See E.D. Cal. L.R. 230(l). Furthermore, it provides that the motion is deemed
submitted twenty-eight days after the service of the motion or when the reply is filed. Here,
defendants’ reply brief was filed on March 23, 2016. Therefore, the motion for summary
judgment was already deemed submitted before plaintiff filed his sur-reply.
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
court’s permission to file such a brief, plaintiff’s sur-reply is improper. Accordingly, IT IS
HEREBY ORDERED that defendants’ motion to strike (ECF No. 80) is granted and the clerk’s
office is instructed to strike plaintiff’s sur-reply (ECF No. 79) from the docket.
Dated: February 13, 2017
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / foul.0057.mts
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