Hammler v. Haas, et al.

Filing 57

ORDER signed by Magistrate Judge Allison Claire on 7/10/2018 GRANTING 50 Motion for Leave to File a Surreply. Plaintiffs surreply 51 is admitted; the Clerk of Court shall designate this filing as Surreply Part 1 of 2. Plaintiffs motion for su mmary judgment 55 is construed as Part 2 of his surreply and, as such, is admitted; the Clerk of Court shall delete the designation Motion for Summary Judgment, and designate this filing as Surreply Part 2 of 2. Defendants oppositions 52 and [56 ] will also be considered when the court conducts a substantive review of defendants motion for summary judgment. The parties are directed to refrain from filing any additional material related to the motion for summary judgment, which is submitted for decision. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALLEN HAMMLER,

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Plaintiff,

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No. 2:15-cv-2266 JAM AC P

v.

ORDER

HAAS, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with this civil rights action filed pursuant to

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42 U.S.C. § 1983. By order filed August 11, 2017, this court set a deadline of April 13, 2018 for

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filing dispositive motions. ECF No. 33. Sole defendant Haas timely filed a motion for summary

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judgment. ECF No. 42. Plaintiff timely filed an opposition, ECF No. 48; and defendant timely

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filed a reply, ECF No. 49. Thereafter, plaintiff filed a motion for leave to file a surreply, ECF No.

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50, and a proposed surreply, ECF No. 51, which defendant opposed, ECF No. 52. Still later, on

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June 15, 2018, plaintiff filed an untimely “motion for summary judgment,” ECF No. 55, which

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defendant opposes, ECF No. 56. For the reasons that follow, this court will construe plaintiff’s

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motion as further argument in surreply, and will allow both surreplies to be considered when the

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court reviews the merits of defendant’s motion for summary judgment.

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A surreply is not authorized by the Local Rules or by the Federal Rules of Civil

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Procedure, although it may be allowed “where a valid reason for such additional briefing exists.”

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See e.g. Hill v. England, 2005 WL 3031136, at *1, 2005 U.S. Dist. LEXIS 29357, at *2-3 (Case

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No. 1:05-cv-0869 REC TAG) (E.D. Cal. Nov. 8, 2005). The undersigned finds good cause to

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consider plaintiff’s additional filings which are specific, succinct, and aimed at refuting

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defendant’s substantive arguments. See ECF No. 51 (4 pp.); ECF No. 55 (8 pp.). Moreover,

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plaintiff appropriately sought leave of court to submit his first filing, supported by his sworn

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affidavit. ECF No. 50. However, because plaintiff’s subject filings are outside the deadline for

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dispositive motions in this case, his “motion for summary judgment” will be construed as the

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final portion of his surreply.

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For these reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to file a surreply, ECF No. 50, is granted.

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2. Plaintiff’s surreply, ECF No. 51, is admitted; the Clerk of Court shall designate this

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filing as “Surreply Part 1 of 2.”

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3. Plaintiff’s motion for summary judgment, ECF No. 55, is construed as Part 2 of his

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surreply and, as such, is admitted; the Clerk of Court shall delete the designation “Motion for

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Summary Judgment,” and designate this filing as “Surreply Part 2 of 2.”

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4. Defendant’s oppositions, ECF Nos. 52, 56, will also be considered when the court
conducts a substantive review of defendant’s motion for summary judgment.
5. The parties are directed to refrain from filing any additional material related to the

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motion for summary judgment, which is submitted for decision.

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DATED: July 10, 2018

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