Haney v. Johnson et al

Filing 69

ORDER signed by Magistrate Judge Kendall J. Newman on 02/01/19 DENYING 61 Motion for Extension of time and GRANTING 64 Motion to strike plaintiff's sur-reply. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MONTE L. HANEY,

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Plaintiff,

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No. 2: 16-cv-1173 TLN KJN P

v.

ORDER

S. JOHNSON, et al.,

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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. Pending before the court is plaintiff’s November 28, 2018 motion for an

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extension of time to file a sur-reply to defendants’ reply to plaintiff’s objections. (ECF No. 61.)

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Plaintiff filed the sur-reply on November 30, 2018. (ECF No. 63.) Also pending is defendants’

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motion to strike plaintiff’s sur-reply. (ECF No. 64.) For the reasons stated herein, plaintiff’s

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motion for an extension of time is denied and defendants’ motion to strike is granted.

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On October 17, 2018, the undersigned recommended that defendants’ summary judgment

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motion be granted in part and denied in part. (ECF No. 57.) The findings and recommendations

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granted the parties fourteen days to file objections. (Id.) The findings and recommendations

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further stated that any response to objections was due within fourteen days after service of the

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objections. (Id.)

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On October 31, 2018, defendants filed objections. (ECF No. 58.) On November 1, 2018,

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plaintiff filed objections. (ECF No. 59.) On November 14, 2018, defendants filed a reply to

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plaintiff’s objections. (ECF No. 60.) On January 18, 2018, the Honorable Judge Troy L. Nunley

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adopted the October 17, 2018 findings and recommendations. (ECF No. 67.)

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Generally, parties do not have the right to file sur-replies, which is the document plaintiff

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filed on November 30, 2018. See Rowland v. Beard, 2018 WL 4372795 at *1 (E.D. Cal. 2018).

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The Court generally views motions for leave to file sur-replies with disfavor. Id., citing Hill v.

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England, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes–Benz USA,

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LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005)). However, district courts have the discretion

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to either permit or preclude a sur-reply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565

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F.3d 1195, 1203 (9th Cir. 2009), overruled on other grounds by U.S. ex. Rel. Hartpence v. Kinetic

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Concepts Inc., 792 F.3d 1121 (9th Cir. 2015) (district court did not abuse discretion in refusing to

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permit “inequitable sur-reply”).

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As observed by defendants in the motion to strike, plaintiff’s sur-reply largely duplicates

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his objections to the findings and recommendations. (See ECF Nos. 59, 63.) Plaintiff has not

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shown good cause to allow the filing of this largely duplicative pleading.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for extension of time to file a sur-reply (ECF No. 61) is denied;

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2. Defendants’ motion to strike plaintiff’s sur-reply (ECF No. 64) is granted.

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Dated: February 1, 2019

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Han1173.ord
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