Hampton v. Haynie et al

Filing 41

ORDER signed by Magistrate Judge Kendall J. Newman on 12/04/15 ordering plaintiff's surreply 35 is stricken from the court. Plaintiff's motion to bring perjury charges 36 is denied. On or before 1/04/16, plaintiff shall either, 1)re-s ubmit his prior opposition bearing his signature, or 2) file a signed amended opposition that includes all of his arguments and evidence in opposition to the motion. If plaintiff files an "Amended Opposition," defendants shall file an amended reply within 7 days, No other briefing is permitted. The clerk of the court shall send plaintiff a copy of his opposition with the filing banner removed 33 .. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES HAMPTON,

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No. 2:14-cv-2038 TLN KJN P

Plaintiff,
v.

ORDER

R. HAYNIE, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. Defendants’ motion for summary

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judgment is presently pending. However, plaintiff failed to sign his opposition. (ECF No. 33.)

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Rule 11 of the Federal Rules of Civil Procedure states:

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Every pleading, written motion, and other paper must be signed by
at least one attorney of record in the attorney’s name -- or by a
party personally if the party is unrepresented. The paper must state
the signer's address, e-mail address, and telephone number. Unless
a rule or statute specifically states otherwise, a pleading need not be
verified or accompanied by an affidavit. The court must strike an
unsigned paper unless the omission is promptly corrected after
being called to the attorney's or party's attention.

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Fed. R. Civ. P. 11. Because plaintiff failed to sign the opposition, the court will provide plaintiff

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an opportunity to file a signed opposition.

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Moreover, after defendants filed their reply, plaintiff filed a document entitled “Motion in
Response to Defendants’ Reply.” (ECF No. 35.) Such filing is a surreply. The Local Rules do
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not authorize the routine filing of a surreply. Nevertheless, a district court may allow a surreply

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“where a valid reason for such additional briefing exists, such as where the movant raises new

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arguments in its reply brief.” Hill v. England, 2005 WL 3031136, at *1 (E.D. Cal. 2005); accord

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Norwood v. Byers, 2013 WL 3330643, at *3 (E.D. Cal. 2013) (granting the motion to strike the

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surreply because “defendants did not raise new arguments in their reply that necessitated

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additional argument from plaintiff, plaintiff did not seek leave to file a surreply before actually

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filing it, and the arguments in the surreply do not alter the analysis below”), adopted, 2013 WL

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5156572 (E.D. Cal. 2013). In the present case, defendants did not raise new arguments in their

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reply, and plaintiff did not seek leave to file a surreply. Plaintiff’s surreply is stricken.

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Finally, plaintiff filed a document entitled “Motion to bring Charges of Perjury Against

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Witness.” (ECF No. 36.) It appears that plaintiff believes that the appeals coordinator either lied

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or “falsified a legal document to protect the same co-workers.” (ECF No. 36 at 2.) Plaintiff is

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advised that his request for this court to bring “charges of perjury” is inappropriate. Rather, if

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plaintiff has evidence to rebut the declaration of the appeals coordinator, or to refute the

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documentary evidence at issue in the pending motion, plaintiff must submit such evidence for

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consideration by the court with his opposition.

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In addition, in the declaration appended to this motion, plaintiff included a statement that

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he “declares that all statements made in this case have been made under penalty of perjury.”

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(ECF No. 36 at 3.) Plaintiff is advised that such a broad and global statement is not proper and is

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ineffective because it deprives defendants of an opportunity to address such statements in the

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context in which such statements are made.

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Moreover, plaintiff appended exhibits to the motion alleging perjury, and included

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arguments concerning the pending motion for summary judgment. Local Rule 230 contemplates

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the filing of a motion, an opposition, and a reply. Id. Plaintiff is advised that all of his arguments

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in opposition to the motion for summary judgment must be contained in one opposition, and all

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evidence in support thereof must be provided with the opposition. However, plaintiff may refer

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to the exhibits appended to his original complaint (ECF No. 1 at 6-23), because such documents

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remain a part of the court record for use by any party.
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In light of the above, plaintiff is granted an opportunity to correct the above deficiencies.

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Plaintiff may choose to (1) re-submit his prior opposition bearing his signature, or, (2) file a

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signed amended opposition that includes all of his arguments and evidence in opposition to the

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motion. If plaintiff resubmits his first opposition with his signature, no further briefing is

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required, and the motion will stand submitted. If plaintiff chooses the second option, plaintiff

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shall entitle his filing “Amended Opposition,” and defendants shall file an amended reply within

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seven days. Once the amended reply is filed, no further filing by any party is permitted. No

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surreply is authorized.
No extensions of time will be granted.1 Plaintiff is cautioned that if he fails to timely

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respond to this order, the undersigned is required to strike his unsigned opposition, and consider

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defendants’ motion as unopposed. See Fed. R. Civ. P. 11.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s surreply (ECF No. 35) is stricken from the court record.

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2. Plaintiff’s motion to bring perjury charges (ECF No. 36) is denied.

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3. On or before January 4, 2016, plaintiff shall either (1) re-submit his prior opposition

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bearing his signature, or (2) file a signed amended opposition that includes all of his arguments

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and evidence in opposition to the motion.
4. If plaintiff files an “Amended Opposition,” defendants shall file an amended reply

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within seven days. No other briefing is permitted.

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5. The Clerk of the Court shall send plaintiff a copy of his opposition with the filing

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banner removed. (ECF No. 33.)

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Dated: December 4, 2015

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/hamp2038.fb

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Plaintiff is cautioned that the court is imposing a January 4, 2016 filing deadline. This means
that plaintiff must prepare his filing and submit it to prison officials for mailing with sufficient
time to ensure it is filed on or before January 4, 2016. Plaintiff is well aware of his arguments in
opposition to the pending motion, and the issues are limited to the exhaustion of administrative
remedies. The merits of plaintiff’s underlying claims against defendants are not at issue at this
time.
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