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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNNY L. FRANKLIN, 12 No. 2:14-cv-00057 KJM DB Plaintiff, 13 v. 14 F. FOULK, et al., 15 ORDER Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action under 42 U.S.C. § 1983 alleging deliberate indifference to his medical needs while he was 19 incarcerated at High Desert State Prison. On January 29, 2016, defendants filed a motion for 20 summary judgment claiming that plaintiff failed to exhaust his administrative remedies. (ECF 21 No. 71.) Plaintiff filed an opposition to the motion. (ECF No. 76.) Defendants filed a reply in 22 support of the motion. (ECF No. 77.) On April 4, 2016, plaintiff filed a sur-reply. (ECF No. 79.) 23 Defendants move to strike plaintiff’s sur-reply as unauthorized. (ECF No. 80.) Plaintiff 24 did not respond to the motion to strike. For the following reasons, the undersigned grants 25 defendants’ motion to strike. 26 Plaintiff’s sur-reply is not authorized by, nor filed in conformance with, the Local Rules 27 or the Federal Rules of Civil Procedure. Moreover, plaintiff did not obtain the court’s permission 28 to file this sur-reply. 1 1 A reply (or other response) to a reply is not recognized by the Federal Rules of Civil 2 Procedure or the Local Rules of this court. The Local Rule governing motions in prisoner cases 3 contemplates the submission of only an opposition by a responding party, and a reply by the 4 moving party. See E.D. Cal. L.R. 230(l). Furthermore, it provides that the motion is deemed 5 submitted twenty-eight days after the service of the motion or when the reply is filed. Here, 6 defendants’ reply brief was filed on March 23, 2016. Therefore, the motion for summary 7 judgment was already deemed submitted before plaintiff filed his sur-reply. 8 9 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 10 court’s permission to file such a brief, plaintiff’s sur-reply is improper. Accordingly, IT IS 11 HEREBY ORDERED that defendants’ motion to strike (ECF No. 80) is granted and the clerk’s 12 office is instructed to strike plaintiff’s sur-reply (ECF No. 79) from the docket. 13 Dated: February 13, 2017 14 15 16 17 18 19 20 TIM-DLB:10 DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / foul.0057.mts 21 22 23 24 25 26 27 28 2

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