Bruce v. Chaiken et al

Filing 76

ORDER signed by Magistrate Judge Kendall J. Newman on 12/12/17 ORDERING defendants' summary judgment motion 37 is reinstated. Defendants may file a supplemental reply within 30 days of the date of this order. If defendants present new evidence in the reply, plaintiff may file a response to the supplemental reply within 30 days thereafter. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT BRUCE,

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No. 2: 15-cv-960 TLN KJN P

Plaintiff,
v.

ORDER

SHAMA CHAIKEN, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On August 31, 2017, the undersigned vacated defendants’ summary

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judgment motion. (ECF No. 70.) The undersigned also granted defendants’ request to reopen

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discovery. (Id.) Defendants were granted 80 days to depose plaintiff’s expert, Dr. Mallory. (Id.)

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The undersigned ordered that within 100 days, defendants were to inform the court whether they

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wished to file a new summary judgment motion or a supplemental reply. (Id.)

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On December 7, 2017, defendants filed a request to file a supplemental reply. (ECF No.
75.) The undersigned herein sets a briefing schedule for this further briefing.
“It is well accepted that the raising of new issues and submission of new facts in [a] reply

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brief is improper.” Schwartz v. Upper Deck Co., 183 F.R.D. 672, 682 (S.D. Cal. 1999) (citing

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Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (“We agree with the Seventh Circuit,

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which held that ‘[w]here new evidence is presented in a reply to a motion for summary judgment,
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the district court should not consider the new evidence without giving the [non-]movant an

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opportunity to respond.’”)).

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If defendants present new evidence in the reply, including Dr. Mallory’s deposition
transcript, plaintiff should be granted an opportunity to respond.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ summary judgment motion (ECF No. 37) is reinstated;

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2. Defendants may file a supplemental reply within thirty days of the date of this order;

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3. If defendants present new evidence in the reply, plaintiff may file a response to the

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supplemental reply within thirty days thereafter.
Dated: December 12, 2017

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Br960.ord(sj)
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